United States v. Central Eureka Mining Company/Dissent Frankfurter

Mr. Justice FRANKFURTER, dissenting.

For losses alleged to have resulted from a wartime order of the War Production Board, various of the respondents sought monetary relief in the Court of Claims. These suits had a checkered career in that court, and, as a consequence, Congress passed remedial legislation that has served as a ground for respondents' continued assertion of their right to recover. A consideration of the history of this controversy is necessary for due appreciation of this legislation, and an understanding of the legislation, its background and its meaning, is essential to a proper disposition of the suit before us.

From a time shortly before our entry into the Second World War, gold mines in this country were subjected by the United States Government to increasingly stringent limitations on their operations. Because they were regarded as a non-essential industry, they were first restricted in, and then virtually excluded from, the acquisition of required machinery, spare parts and supplies that were needed in mines producing critical materials. Finally, on October 8, 1942, apparently more in an attempt to divert gold miners into copper mines than (as its preamble recited) to conserve critical materials, the War Production Board issued Limitation Order L-208, 7 Fed.Reg. 7992 7993, as amended, 7 id., at 9613-9614, 8 id., at 12007-12008, which ordered operators of gold mines that did not also produce substantial quantities of strategic materials to cease mining operations within sixty days. This order was revoked on June 30, 1945, 10 id., at 8110.

Early in 1950, one of the mine operators allegedly affected by the shutdown order brought suit against the United States in the Court of Claims, asserting that Order L-208 was issued 'arbitrarily and without authority of law' and was therefore a taking of property within the meaning of the Fifth Amendment for which the claimant sought just compensation. The court, while holding that the six-year statute of limitations (28 U.S.C. § 2501, 28 U.S.C.A., § 2501) did not begin to run against the claimant until the order was rescinded, dismissed the petition for failure to state a claim under the Fifth Amendment. Oro Fina Consol. Mines, Inc., v. United States, 1950, 92 F.Supp. 1016, 118 Ct.Cl. 18. Approximately a month before the end of the statutory period, three other mine operators filed suits in the Court of Claims, also contending that, by virtue of the WPB order, their property had been taken without just compensation in violation of the Fifth Amendment. In their complaints (as amended after the statute had run) they laid a considerably more extenstive factual basis for their contentions of arbitrary and unauthorized action. The Court of Claims in Idaho Maryland Mines Corp. v. United States, 1952, 104 F.Supp. 576, 122 Ct.Cl. 670, denied the Government's motion to dismiss the suits. It distinguished Oro Fina on the ground that the facts there alleged in support of the contentions of unconstitutionality, by contrast with those in Idaho Maryland, had not been sufficient to rebut the presumption of constitutionality attaching to governmental action. A motion by the Government for rehearing was overruled two months later. Ibid.

Within two weeks after the Idaho Maryland decision Senator McCarran of Nevada introduced a bill (S. 3195, 82d Cong., 2d Sess.) to grant the Court of Claims jurisdiction, notwithstanding the statute of limitations, to hear claims of gold mine operators for losses resulting from the issuance of Order L-208. 98 Cong.Rec. 5394. After consideration of the bill, the Committee on the Judiciary on May 28, 1952, recommended 'favorable consideration of the measure by the Senate' in a report, S.Rep. No. 1605, 82d Cong., 2d Sess. The report, '(i)n order that the background of this situation can be fully understood and appreciated,' id., at p. 2, set forth large portions of an earlier report (on H.R. 4393 of the 79th Congress) setting forth in great detail a factual basis for the following contentions:

'1. WPB Order L-208 was unique in that it was the only     Government order closing a productive industry.

'2. Issuance of the order was an administrative error, based     upon a statistical misconception, and may, furthermore, have      been illegal.

'3. The net results of order in accomplishing its avowed     primary purpose of channeling manpower to 'essential' mines      were negligible.

'4. The economic loss to the gold-mining industry has been     great and in some cases the damage may be irreparable.' Id.,      at p. 3.

In the conclusion of the report, it was stated (id., at p. 7) that

'The committee has carefully studied the facts relating to     the situation that arose as a result of the proclamation of      the War Production Board Limitation Order L-208 and is      convinced that the gold mining industry was dealt with in a      fashion which merits the consideration of the court in the      adjudication of the losses which may have been occasioned by      this order. The Idaho Maryland Mines Corp. decision is ample     evidence of the fact that the least that can be done is to      allow those persons affected by Order L-208 their day in      court for such recompense as may seem justified.'

The Senate passed the bill without debate on June 2. 98 Cong.Rec. 6322. In the House of Representatives, the bill was referred to and considered by the Committee on the Judiciary, which recommended its passage in a report (H.R.Rep.No. 2220, 82d Cong., 2d Sess.) substantially identical with the Senate report. The House passed the bill on July 2, 98 Cong.Rec. 8931, and it was signed by the President on July 14, 1952. It provides as follows:

'That the United States Court of Claims be, and hereby is,     given jurisdiction to hear, determine, and render judgment,      notwithstanding any statute of limitations, laches, or lapse      of time, on the claim of any owner or operator of a gold mine      or gold placer operation for losses incurred allegedly      because of the closing or curtailment or prevention of      operations of such mine or placer operation as a result of      the restrictions imposed by War Production Board Limitation      Order L-208 during the effective life thereof: Provided, That      actions on such claims shall be brought within one year from      the date this Act becomes effective.' 66 Stat. 605.

Thereupon a number of gold mine operators brought suit in the Court of Claims, and their claims were consolidated with those involved in Idaho Maryland for trial on the issue of liability. These plaintiffs proceeded under alternative claims against the United States: first, that the action of the Government in ordering them to close their gold mines constituted a taking of their property that entitled them to just compensation; and, second, that the Act of July 14, 1952, created liability on the part of the Government for their provable losses resulting from the closing. The Court of Claims (two judges dissenting) decided that the closing of the mines constituted a compensable 'taking' of the plaintiffs' right to operate their mines within the meaning of the Fifth Amendment. The court dealt with the statutory claim in the following terms: 'In view of our decision in these cases it is unnecessary to discuss the various contentions relative to the special jurisdictional act of July 14, 1952, 66 Stat. 605.' 1956, 138 F.Supp. 281, 310, 134 Ct.Cl. 1, 53.

Since a court of the United States may properly decide a constitutional question only if the case cannot fairly be disposed of on a non-constitutional basis, any statutory question that is not frivolous should be met and disposed of before questions requiring construction of the Constitution are reached. The reason for the Court of Claims' failure to heed this fundamental rule can only be surmised. This litigation was initiated before the Act of July 14, 1952, had been passed by Congress and was framed exclusively in constitutional terms. The statutory claim was injected into the litigation at a time when the court, having already handed down several decisions on the question of whether or not a claim under the Fifth Amendment had been stated, had become preoccupied with, and, therefore, oriented toward, the constitutional aspects of the claims. Understandable though this approach may be, it should not be permitted to govern the ultimate disposition of the cases before us. In the interest of responsible administration of our constitutional system, the scope and meaning of the Act of July 14, 1952, call for determination before any decision is made as to whether or not the Government's action amounted to a 'taking' within the meaning of the Fifth Amendment.

The critical question is, of course, whether the Act merely eliminates the bar of the statute of limitations or substantively establishes a congressionally acknowledged basis for recovery. On its face, the Act is readily susceptible of either interpretation. The action authorized by the statute-i.e., the filing of a certain type of suit in the Court of Claims within one year-is consistent with either or these alternative legislative ends. In order to waive the Government's then existing defense of the statute of limitations, it was necessary for Congress to authorize the assertion of claims notwithstanding the availability of that defense. And recognition by Congress of what it may regard as a just claim against the Government is not necessarily to be met by an outright appropriation to the claimants: there often remain questions (such as may be involved here, whether or not the alleged losses were caused by the Government's liability-creating action) that Congress quite properly wishes to have judicially determined before funds are to be withdrawn from the Treasury for the benefit of claimants.

Since the statutory language alone sheds little light on the congressional purpose, it is appropriate to canvass the legislative background of the Act. At the outset it should be noted that the legislative manner attending the passage of the Act has no relevance as to its interpretation. It is no more admissible that a statute's passage virtually without debate and from a bill on the consent calendar should reflect on its weight than that a decision of this Court should be given less weight because it was argued on the summary docket. There is no reason to suppose that this legislation did not receive the careful study that the committees in their reports claim to have given it. Here one need not even draw on the indisputable fact that much legislation is passed solely on the basis of committee recommendations; the grievances of the gold mining industry had been continually pressed on Congress since shortly after the issuance of L-208, so that the problem to which the Act was directed was one with which many members of Congress were undoubtedly thoroughly conversant.

Nothing is clearer from a reading of the committees' reports than that their members regarded the gold mine operators to have been unjustly treated by the Government. It is, of course, no concern of ours whether or not they were justified in thinking so. The reports quote extensively from an earlier report casting serious doubt on the propriety and even the legality of the government order and detailing the seriousness of the industry's resulting losses. To be sure, support may be drawn from this condemnation for either of the competing interpretations of the statute. It may imply a conviction that the Government should pay for whatever losses resulted from the issuance of the order; but it may also serve as nothing more than a justification for making an exception to the statute of limitations. Specific statements in the reports only compound this ambiguity. The committees make clear their concern that prospective claimants, discouraged by the Oro Fina decision, may have failed to assert their claims within the statutory period, discovering too late (through the Idaho Maryland decision) that they might have recovered. See S.Rep. No. 1605, 82d Cong., 2d Sess. 2; H.R.Rep.No.2220, 82d Cong., 2d Sess. 2. On the other hand, the committees' conclusions that 'the gold mining industry was dealt with in a fashion which merits the consideration of the court in the adjudication of the losses which may have been occasioned by this order' and that 'the least that can be done is to allow those persons affected by Order L-208 their day in court for such recompense as may seem justified,' S.Rep.No.1605, supra, at p. 7; H.R.Rep.No.2220, supra, at p. 7, provide ground for inferring that Congress intended to establish a right of recovery if one did not already exist. The most, then, that can be said concerning the background of the Act is that it is inconclusive.

Although the language of the statute is equivocal and its legislative history ambiguous, another relevant line of inquiry must be pursued. The Act of July 14, 1952, is but one of many special jurisdictional statutes passed from time to time by Congress, and a number of these have been construed by the Court of Claims. An examination of these cases tends to corroborate the conclusion that the wording of the statute provides little clue to its judicially ascertainable meaning. The phrase 'to hear, determine, and render judgment * *  * on the claim,' or an approximate equivalent, is common to most special jurisdictional statutes, including many that have been held to do no more than waive limited defenses. See, e.g., Act of Sept. 25, 1950, 64 Stat. 1032, involved in State of California v. United States, 119 F.Supp. 174, 177, 127 Ct.Cl. 624, 628; Act of June 15, 1946, 60 Stat. 1227, involved in Zephyr Aircraft Corp. v. United States, 104 F.Supp. 990, 997, 122 Ct.Cl. 523, 551; cf. United States v. Mille Lac Band of Chippewas, 229 U.S. 498, 500, 33 S.Ct. 811, 812, 57 L.Ed. 1299. Again, statutes similar in significant respects to the Act of July 14, 1952, have been construed in some cases to create a legal basis for recovery where none had existed before, see, e.g., Act of June 14, 1935, 49 Stat. 2078, involved in Stubbs v. United States, 86 Ct.Cl. 152; Act of June 25, 1938, 52 Stat. 1399, involved in Creech v. United States, 60 F.Supp. 885, 102 Ct.Cl. 301, while in other cases to do no more than provide a forum for the adjudication of a claim on the basis of existing legal principles, see, e.g., Act of May 11, 1948, 62 Stat. 1350, involved in Hempstead Warehouse Corp. v. United States, 98 F.Supp. 572, 120 Ct.Cl. 291.

In many of these special jurisdictional statutes, Congress has clarified its purpose by employing various qualifying phrases and clauses. The absence of such qualifications may be found to have some relevance in the interpretation of the statute before us. For example, where a specific defense is waived (as the statute of limitations is waived in the Act of July 14, 1952), Congress has on occasion been at pains to emphasize that the effect of the statute should extend no further than that limited waiver. See, e.g., Act of Aug. 24, 1949, 63 Stat. 1169, involved in Breinig Bros., Inc., v. United States, 110 F.Supp. 269, 124 Ct.Cl. 645; Act of Oct. 18, 1951, 65 Stat. A124, involved in Watson v. United States, 146 F.Supp. 425, 135 Ct.Cl. 145. Moreover, it has not been uncommon for Congress in these statutes specifically to provide that the passage of the act should not be construed as 'an inference of liability' on the part of the United States Government. See, e.g., Act of July 16, 1952, 66 Stat. A206, A207, involved in Griffith v. United States, 135 Ct.Cl. 278; and Act of Aug. 25, 1950, 64 Stat. A191, involved in Booth v. United States, 140 Ct.Cl. --, 155 F.Supp. 235.

Of course, if there is any significance to Congress' failure expressly to limit the application of the statute, it must also be recognized that Congress failed to employ techniques that would have made clear any intention to create a new right of action. Congress might, for example, have made a virtual confession of liability as it did in the Act of March 1, 1929, 45 Stat. 2345, involved in Garrett v. United States, 70 Ct.Cl. 304. Congress might have waived other defenses than the statute of limitations. See, e.g., the Act of May 28, 1928, 45 Stat. 2001, involved in Alcock v. United States, 74 Ct.Cl. 308. Or Congress might, as it has often done, spell out in detail precisely what the task of the Court of Claims is to be under the statute, making clear what issues remain to be litigated. See, e.g., Act of July 2, 1956, 70 Stat. A103, involved in Kramer v. United States, 149 F.Supp. 152, 137 Ct.Cl. 537; Act of July 16, 1952, 66 Stat. A206, involved in Griffith v. United States, 135 Ct.Cl. 278; Act of March 19, 1951, 65 Stat. 5, involved in Board of County Com'rs v. United States, 105 F.Supp. 995, 123 Ct.Cl. 304.

The Court of Claims, in seeking to determine the meaning of these statutes, has had occasion to turn to their legislative backgrounds. The court has, for example, been more readily able to find an intention on the part of Congress to admit liability where the claim in question arose out of a national emergency that had necessitated hasty and experimental governmental action resulting in disproportionate hardships, see Nolan Bros. v. United States, 98 Ct.Cl. 41, 89 (Act of July 23, 1937, 50 Stat. 533); cf. Mansfield v. United States, 89 Ct.Cl. 12 (Act of Aug. 19, 1935, 49 Stat. 2148). Significance has also been attached to the fact that Congress regarded the governmental action to have been wrongful. See Hawkins v. United States, 96 Ct.Cl. 357, 369-370 (Act of Feb. 11, 1936, 49 Stat. 2217) (statement in committee report to effect that action was 'unmoral, inequitable, and unjust'). Contrariwise, however, where Congress has not made its intention quite clear, the court has approached its task with caution, see Hempstead Warehouse Corp. v. United States, supra, 98 F.Supp. at page 573, 120 Ct.Cl. at page 305; and it has often asserted that special jurisdictional statutes should be strictly construed. See, e.g., State of California v. United States, supra, 119 F.Supp. at pages 178-179, 127 Ct.Cl. at pages 629-630; cf. United States v. Cumming, 130 U.S. 452, 455, 9 S.Ct. 583, 584, 32 L.Ed. 1029.

Thus, even this limited examination of relevant materials leaves one very much in balance. But the fact that the answer to this question is not easy is no excuse for passing over it and deciding constitutional questions. It is startling doctrine to construe the Constitution in order to avoid difficult questions of statutory interpretation. It may well be that the Court of Claims, experienced as it obviously is in interpreting such statutes as these, may find the purpose of the Act of July 14, 1952, more readily susceptible of determination than could a court not possessed of that specialized competence. When the alternatives are initial and yet final decision by this Court and decision by an experienced court with the possibility of review in this Court, the choice seems clear. I would send the case back to the Court of Claims for an authoritative construction of the Special Jurisdictional Act.