The opinion
Madden, Judge,
dissenting.
I am unable to agree with the court’s decision and opinion. I think that the Government did not take the plaintiff’s property, in fact or within the meaning of the Constitution. Disregarding the words used in the Government’s directives, the acts which must be relied on to constitute a taking are the following: (1) The Government ordered the plaintiff to pay, for the future, the wage increase which had some months before, been directed by the War Labor Board. (2) The Government required the plaintiff to increase the rates for some of its services. (3) The Government forbade the seizure by creditors of the property of the plaintiff without the Government’s specific or general consent, which consent it gave upon application to permit the plaintiff to purchase needed equipment. (4) The Government required some extra accounting which, though of the same general type required of the plaintiff for other purposes, was in addition to what the plaintiff would otherwise have done.
As to (1), the increased wages, even in peacetime the Government fixes wages and requires their payment as fixed. The Fair Labor Standards Act, 52 Stat. 1063 , 29 U. S. C. 201-219, is an example. This is, of course, regulation, and not a taking of the employer’s plant or business. I do not *791 see why it is a taking when, in the emergency of war, essential means of transportation are rendered useless by a strike and can be restored to use by a Government order that the wages found to be equitable by the body responsible for making such determinations should be paid, and the Government makes such an order. In fact and in reality it is not a taking. The business resumes, the legally fixed wages are paid. The employer’s situation is like that of his thousands of fellow employers who are obliged to pay legally fixed wages.
As to (2), the Government’s increase, against the plaintiff’s will, of some of its freight rates, the plaintiff was an interstate common carrier, a public utility, whose rates are, of course, subject to public regulation. If, in the emergency, that regulation was exercised by one Governmental agency, the Office of Defense Transportation, rather than another, the Interstate Commerce Commission, that can hardly constitute the difference between regulation and taking. As to (3), the Government’s forbidding that a public utility be disabled from rendering the service which it is required to render under its franchise, by the seizure of its facilities by creditors, that is nothing more than a rule of law applied for the protection of the public interest. One’s property is not taken by the State because it is exempted by the law of the State from seizure by his creditors. As to (4), the extra burden of accounting which was imposed upon the plaintiff, there are, of course, many laws requiring the keeping and supplying to local or State or Federal Governmental units various kinds of accounts and records. The plaintiff itself had to file accounts with the Interstate Commerce Commission giving much of the same information required by the Federal Manager.
The court relies upon the case of United States v. United Mine Workers of America, 330 U. S. 258 . But the Supreme Court there had for decision only the question whether the workers in the mines, were, for the purposes of that case, employees of the Government and therefore not covered by the Norris-LaGuardia Act. There the Government and the union had, pursuant to the Executive order, entered into a new and formal collective bargaining contract substantially changing the former contract in many important respects. *792 This contract was solely between the Government and tíre union. The mine operators were not parties to it. The president of the union had referred to the operators as “strangers to the * * * agreement” and had said, “The mine workers do not propose to deal with parties who have no status under that contract.” The report of the case does not disclose the extent to which the Government, in fact, interposed itself in the operation of the mines; hence we have no basis for comparing the instant case with the United Mine Workers case as to the actual conduct which, I think, must be the determining factor as to whether or not there has been a taking.
In the instant case, throughout the period of Government control the same officers of the plaintiff who had always managed the business continued to do so. The employees were the same, except for turnover having no relation to Government control. Business was solicited, bills were collected, checks were drawn, employees were hired and discharged just as had always been done. The plaintiffs had their property. That seems to me to show that the Government did not have it.
I do not understand why the court has placed upon the defendant, the Government, the burden of proving that the plaintiff did not suffer a loss in the payment of the increased wages directed by the Government. I would have supposed that, since the Government’s conduct is not claimed to have been wrongful in any respect, and since the evidence necessary to prove loss or lack of it was not particularly within the control of the Government, the usual rule would apply and the plaintiff would have to prove its case. But regardless of the burden of proof, I think it is quite clear from the evidence, and from the circumstances of the time in question of which we are judicially aware, that the plaintiff could not have operated its business without increasing its wages, and that even a few more days of being closed down by the strike would have caused the plaintiff a greater loss than the increase in wages amounted to for the period of Government control.