United States v. Pewee Coal Company/Dissent Burton

Mr. Justice BURTON, with whom THE CHIEF JUSTICE, Mr. Justice CLARK and Mr. Justice MINTON concur, dissenting.

I agree that there was a 'taking' of the mining property from May 1 to October 12, 1943, but I find no ground for allowing the respondent to recover the sum here sought as compensation for such taking.

This case is within the principle stated in Marion & Rye Valley R. Co. v. United States, 270 U.S. 280, 282, 46 S.Ct. 253, 254, 70 L.Ed. 585, as follows: '(E)ven if there was technically a taking, the judgment for defendant was right. Nothing was recoverable as just compensation, because nothing of value was taken from the company; and it was not subjected by the Government to pecuniary loss. Nominal damages are not recoverable in the Court of Claims.'

Here there is no showing by the company of any rental value due it as compensation for the Government's possession of its properties. There is no showing that anything of compensable value was taken by the Government from the company, or that the Government subjected the company to any pecuniary loss. The dissenting judge in the Court of Claims pointed out that-'This extra expense consisted of an increased vacation allowance to the plaintiff's workmen, and the refund to them of occupational charges like rentals on mine lamps. The court has not found that the plaintiff (company) could have operated its mine without making the concessions directed by the War Labor Board, nor has it found what the losses to the plaintiff would have been if the Government had not intervened and the strike had continued. I think that the court is not justified in awarding the plaintiff the amount of these expenditures when it does not and, I think, could not, find that the plaintiff was, in fact, financially harmed by the Government's acts.' 88 F.Supp. at page 431, 115 Ct.Cl. at pages 678-679.

Accordingly, I would reverse the judgment of the Court of Claims and allow no recovery by the respondent.