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- IT IS CONSIDERED THAT AS OF THE FORMER DATE THERE EXISTED "THE CAUSES NECESSITATING THE TAKING OR USE" WITHIN THE MEANING OF THE PROVISIONS OF SAID SECTION THAT "IN NO CASE SHALL THE VALUE OF THE PROPERTY TAKEN OR USED BE DEEMED ENHANCED" BY SUCH CAUSES. 22 COMP. 1943: I HAVE YOUR LETTER OF DECEMBER 31. - YOUR OPINION THAT THE LIMITED NATIONAL EMERGENCY "WAS SUCH A STATE AS WAS CONTEMPLATED BY SECTION 902 (A) WITH RESPECT TO THE REQUISITIONING OF VESSELS" AND THAT "THE CONDITIONS SET OUT IN SAID SECTION 902 (A) AS NECESSARY FOR THE LAWFUL TAKING OF A PRIVATE VESSEL EXISTED AS OF SEPTEMBER 8. THE LETTER THEN PURPORTS TO SHOW THAT THIS INTERPRETATION OF SAID SECTION 902 (A) IS AT VARIANCE WITH THAT PLACED UPON IT BY THE CHIEF EXECUTIVE AND VARIOUS MEMBERS OF CONGRESS INCLUDING THE CHAIRMAN OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES OF THE HOUSE OF REPRESENTATIVES AND INCONSISTENT WITH VARIOUS OTHER ACTS OF CONGRESS.

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B-30613, JANUARY 7, 1943, 22 COMP. GEN. 608

COMPENSATION FOR VESSELS REQUISITIONED UNDER SECTION 902 (A), MERCHANT MARINE ACT OF 1936, AS AMENDED WHETHER IT BE CONSIDERED THAT THE CONDITIONS NECESSARY FOR A LAWFUL TAKING OR USE OF PRIVATE VESSELS UNDER SECTION 902 (A) OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, EXISTED AS OF SEPTEMBER 8, 1939--- THE DATE OF THE PRESIDENT'S PROCLAMATION OF A "LIMITED NATIONAL EMERGENCY"- OR THAT SUCH CONDITIONS DID NOT EXIST PRIOR TO MAY 27, 1941--- THE DATE OF THE PRESIDENT'S PROCLAMATION OF AN "UNLIMITED NATIONAL EMERGENCY" --- IT IS CONSIDERED THAT AS OF THE FORMER DATE THERE EXISTED "THE CAUSES NECESSITATING THE TAKING OR USE" WITHIN THE MEANING OF THE PROVISIONS OF SAID SECTION THAT "IN NO CASE SHALL THE VALUE OF THE PROPERTY TAKEN OR USED BE DEEMED ENHANCED" BY SUCH CAUSES. 22 COMP. GEN. 497, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, WAR SHIPPING ADMINISTRATION, JANUARY 7, 1943:

I HAVE YOUR LETTER OF DECEMBER 31, 1942, IN WHICH YOU REQUEST RECONSIDERATION OF MY DECISION OF NOVEMBER 28, 1942, 22 COMP. GEN. 497, ON CERTAIN QUESTIONS INVOLVING THE SO-CALLED ENHANCEMENT CLAUSE OF SECTION 902 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, IN THE LIGHT OF CERTAIN FACTS CONTAINED IN YOUR LETTER.

IN THE FIRST PARAGRAPH OF YOUR LETTER YOU STATE---

YOUR OPINION THAT THE LIMITED NATIONAL EMERGENCY "WAS SUCH A STATE AS WAS CONTEMPLATED BY SECTION 902 (A) WITH RESPECT TO THE REQUISITIONING OF VESSELS" AND THAT "THE CONDITIONS SET OUT IN SAID SECTION 902 (A) AS NECESSARY FOR THE LAWFUL TAKING OF A PRIVATE VESSEL EXISTED AS OF SEPTEMBER 8, 1939," PERVADES AND APPEARS TO CONTROL ALL OF YOUR CONCLUSIONS.

THE LETTER THEN PURPORTS TO SHOW THAT THIS INTERPRETATION OF SAID SECTION 902 (A) IS AT VARIANCE WITH THAT PLACED UPON IT BY THE CHIEF EXECUTIVE AND VARIOUS MEMBERS OF CONGRESS INCLUDING THE CHAIRMAN OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES OF THE HOUSE OF REPRESENTATIVES AND INCONSISTENT WITH VARIOUS OTHER ACTS OF CONGRESS.

CONGRESS PRESCRIBED IN SECTION 902 (A) TWO SEPARATE AND DISTINCT SITUATIONS UNDER WHICH THE POWERS CONFERRED THEREIN MIGHT BE EXERCISED: (1) "WHENEVER THE PRESIDENT SHALL PROCLAIM THAT THE SECURITY OF THE NATIONAL DEFENSE MAKES IT ADVISABLE; " OR (2) "DURING ANY NATIONAL EMERGENCY DECLARED BY PROCLAMATION OF THE PRESIDENT.' ON SEPTEMBER 8, 1939, THE PRESIDENT PROCLAIMED THAT "A NATIONAL EMERGENCY EXISTS IN CONNECTION WITH AND TO THE EXTENT NECESSARY FOR THE PROPER OBSERVANCE, SAFEGUARDING, AND ENFORCING OF THE NEUTRALITY OF THE UNITED STATES AND THE STRENGTHENING OF OUR NATIONAL DEFENSE WITHIN THE LIMITS OF PEACETIME AUTHORIZATIONS.'

APPARENTLY, THERE HAS BEEN NO AUTHORITATIVE RULING BY THE COURTS OR OPINION BY THE ATTORNEY GENERAL UPON THE QUESTION OF WHETHER THE POWERS CONFERRED BY SECTION 902 LAWFULLY COULD HAVE BEEN EXERCISED UPON THE ISSUANCE OF THAT PROCLAMATION. HOWEVER, IT DOES APPEAR FROM YOUR LETTER THAT IT WAS DETERMINED ADMINISTRATIVELY BY THE MARITIME COMMISSION THAT THE PROCLAMATION DID NOT HAVE THAT EFFECT. I FIND IT UNNECESSARY FOR PRESENT PURPOSES--- AS WILL HEREINAFTER APPEAR--- TO DISAGREE WITH THAT INTERPRETATION.

THE THIRD PARAGRAPH ON PAGE 3 OF YOUR LETTER READS:

THE UNITED STATES MARITIME COMMISSION RECEIVED NO DIRECTION OR AUTHORIZATION DURING THE ENTIRE PERIOD OF THE LIMITED EMERGENCY (FROM SEPTEMBER 8, 1939, TO MAY 27, 1941), EITHER AS TO SECTION 902 OF THE MERCHANT MARINE ACT, 1936, AS AMENDED, OR AS TO SECTION 37 OF THE SHIPPING ACT OF 1916, AS AMENDED (WHICH IS ALSO OPERATED "DURING ANY NATIONAL EMERGENCY, THE EXISTENCE OF WHICH IS DECLARED BY PROCLAMATION OF THE PRESIDENT"), OR AS TO ANY LAW OR DUTY WITHIN THE SCOPE OF ITS ADMINISTRATION.

IN DECISION OF NOVEMBER 28, 1942, THERE WAS A STATEMENT TO THE EFFECT THAT THE CONDITIONS PRESCRIBED BY CONGRESS IN SAID SECTION 902 (A) AS NECESSARY FOR THE LAWFUL EXERCISE OF THE REQUISITIONING POWER APPEARED TO EXIST UPON THE PROCLAMATION BY THE PRESIDENT ON SEPTEMBER 8, 1939, THAT "A NATIONAL EMERGENCY EXISTS IN CONNECTION WITH AND TO THE EXTENT NECESSARY FOR THE PROPER OBSERVANCE, SAFEGUARDING, AND ENFORCING OF THE NEUTRALITY OF THE UNITED STATES AND THE STRENGTHENING OF OUR NATIONAL DEFENSE WITHIN THE LIMITS OF PEACETIME AUTHORIZATIONS.' IN THIS CONNECTION, IT IS TO BE NOTED THAT, ALTHOUGH THE CONCLUDING SENTENCE OF SAID PROCLAMATION STATED THAT "SPECIFIC DIRECTIONS AND AUTHORIZATIONS WILL BE GIVEN FROM TIME TO TIME FOR CARRYING OUT THESE TWO PURPOSES," NO SPECIFIC DIRECTION OR AUTHORIZATION FROM THE PRESIDENT WAS NECESSARY UNDER THE TERMS OF SECTION 902 (A) OF THE MERCHANT MARINE ACT OF 1936 FOR IT TO BECOME OPERATIVE.

HOWEVER, ASSUMING THAT PRIVATE VESSELS COULD NOT HAVE BEEN TAKEN OVER BY THE GOVERNMENT UNDER SAID SECTION 902 UNTIL THE PRESIDENT HAS PROCLAIMED THE EXISTENCE OF AN UNLIMITED NATIONAL EMERGENCY--- AS HE DID ON MAY 27, 1941--- CERTAINLY BY THAT TIME THE MARKET VALUES OF MOST TYPES OF VESSELS HAD BEEN ENHANCED BY "THE CAUSES NECESSITATING THE TAKING OR USE.' HENCE, IT IS READILY APPARENT THAT TO ATTACH SIGNIFICANCE TO THAT DATE IN FIXING THE COMPENSATION TO BE PAID FOR REQUISITIONED VESSELS WOULD PRACTICALLY NULLIFY THE EFFECT OF THE ENHANCEMENT CLAUSE.

THE PRINCIPAL CONSIDERATIONS UPON WHICH MY DECISION MAY BE SAID TO HAVE BEEN BASED MAY BE STATED BRIEFLY AS FOLLOWS: (1) THAT IT WOULD BE DIFFICULT--- IF NOT IMPOSSIBLE--- TO GIVE FULL EFFECT TO THE INTENT OF THE CONGRESS IN ENACTING THE ENHANCEMENT CLAUSE UNLESS A CERTAIN AND FIXED DATE BE RECOGNIZED AS CONTROLLING IN FIXING THE COMPENSATION TO BE PAID BY THE GOVERNMENT FOR REQUISITIONED VESSELS; (2) THAT NO MORE APPROPRIATE DATE COULD BE SELECTED THAN THE DAY UPON WHICH THE CHIEF EXECUTIVE DEEMED IT ADVISABLE TO ISSUE A FORMAL PROCLAMATION THAT A NATIONAL EMERGENCY EXISTED FOR CERTAIN STATED PURPOSES; AND (3) THAT APPROPRIATENESS OF THAT DATE IS FULLY ATTESTED BY SUBSEQUENT CONDITIONS AND CIRCUMSTANCES AFFECTING THE VALUE OF VESSELS.

IT WAS CONCLUDED IN MY DECISION OF NOVEMBER 28--- UPON THE ASSUMPTION THAT VESSELS LAWFULLY COULD HAVE BEEN REQUISITIONED UPON THE ISSUANCE OF THE PROCLAMATION OF SEPTEMBER 8, 1939--- THAT ,THE DATE UPON WHICH SUCH CONDITIONS CAME INTO BEING MUST LIKEWISE BE CONSIDERED THE DATE WHEN "THE CAUSES NECESSITATING THE TAKING OR USE" BEGAN TO EXERCISE THEIR INFLUENCE ON THE MARKET VALUE OF VESSELS.' HOWEVER, THAT SUCH DATES WERE ONE AND THE SAME WAS A MATTER OF COINCIDENCE ONLY, THERE BEING NOTHING IN SAID SECTION 902--- EITHER SPECIFICALLY STATED OR NECESSARILY IMPLIED--- TO REQUIRE THAT WHERE IT WAS DETERMINED THAT FROM AND AFTER A CERTAIN DATE SHIP VALUES BECAME INFLATED DUE TO ECONOMIC CONDITIONS DIRECTLY CAUSED BY THE NATIONAL EMERGENCY, THE ENHANCEMENT CLAUSE DID NOT PROHIBIT THE PAYMENT OF COMPENSATION BASED UPON SUCH INFLATED VALUES UNLESS THERE EXISTED, ALSO, DURING THAT TIME THE POWER TO REQUISITION SUCH VESSELS.

CONSEQUENTLY, THE FACT--- IF IT BE A FACT--- THAT PRIVATE VESSELS COULD NOT HAVE BEEN TAKEN OVER BY THE GOVERNMENT UNDER SAID SECTION UNTIL THE PROCLAMATION OF AN UNLIMITED NATIONAL EMERGENCY ON MAY 27, 1941, WOULD APPEAR TO HAVE NO MATERIAL BEARING UPON THE QUESTIONS CONSIDERED IN MY DECISION OF NOVEMBER 28, NOR UPON THE CONCLUSIONS REACHED THEREIN, AND I AM PLEASED TO HAVE BEEN AFFORDED THIS OPPORTUNITY TO CORRECT ANY ERRONEOUS IMPRESSIONS TO THE CONTRARY THAT MAY HAVE BEEN ENTERTAINED WITH RESPECT TO THIS FEATURE OF MY DECISION.

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