FRANKFURTER, J., dissenting. 337 U.S. contains evidence of the most conclusive kind that a taking was improbable: the Government had got rid of the tug only seven months before the taking, with complete awareness that she was capable of being adequately reconditioned. Among those whose dealings in tugs established market value, therefore, whatever may have been the tendency of their activities to bring about speculative increase in the value of tugs generally, it must have seemed so unlikely that the Government would reverse itself and take the MacArthur back that the market value found by the Court of Claims for this particular tug could hardly have reflected enhancement due to speculation at the expense of the Government's need for her. It may be suggested, to be sure, that the need which prompted this reversal might have been anticipated by one shrewd enough to foresee a growing shortage of tugs more accurately than those responsible for the Government's decisions in these matters. But whatever might conceivably be the effect on the market of the operations of such persons, it would be an effect so far beyond the possibility of measurement that it would be futile in the extreme to remand for a finding on the point, especially when it is remembered that the MacArthur was requisitioned not for use as a tug but as a heating plant. We must reject, therefore, speculation by purchasers of tugs at the expense of the Government's need as a factor contributing to the market value of the MacArthur at the time she was requisitioned. The only other way that has been suggested in which her market value could have been increased by the Government's need is as a result of the increase in demand presumably brought about by previous Government seizures of tugs during a period when, as the Court of Claims found, there was a shortage of tugs due to a great "increase in shipping and 325 FRANKFURTER, J., dissenting. harbor traffic." In this indirect way, the Government's need can be regarded as a "cause" of the increase in the MacArthur's market value. Because this need could be foreseen at least by the time of the declaration of limited national emergency on September 8, 1939, the Government argues that all enhancement in the value of vessels since that date should therefore be deducted from their market price in determining just compensation. In the alternative, it urges that there should be deducted that proportion of this increase which is allocable to the Government's intervention in the market. Whether regarded as founded upon § 902 (a) of the Merchant Marine Act or upon judicial principles of just compensation, both these contentions, in my judgment, must be rejected. When the Government first took out of commercial operation some of the tugs which had been thus employed, it could requisition them at a price uninfluenced by its own need. A subsequent increase in the market value, though precipitated by the shortage caused by the earlier taking, could be a direct result only of the tug operators' need for the remaining tugs, not of the Government's for those it had taken. Leaving enhancement attributable to speculation out of account, as the record obliges us to do, the Government could then requisition still more tugs at a market value at most no higher than the level at which the new price had settled. Unlike an increase due to speculation by buyers of tugs that awards for requisitioned tugs would exceed the price likely to be paid by commercial operators purchasing tugs for their own use, an increase due to shortage would affect the price to any purchaser and enhance value to any owner even though no further requisitions were anticipated and even though none were made. Exactly the same increase would result whether the shortage were induced by the expanded business of a commercial oper FRANKFURTER, J., dissenting. 337 US. ator or by Government requisition. It simply is not true, therefore, that the enhanced price resulting from shortage is a price which the need necessitating the taking, as opposed to need of the tug operators, created. The need of the tug operators, moreover, not merely for the tugs that had been taken, but for additional tugs, was in its turn only one factor in the complex which makes up demand in a period of high costs, high wages, shortages, and inflation. We speak, in referring to the interacting forces of such a period, of the "inflationary spiral," and although a requisition by the Government in the midst of this dynamic process undoubtedly has some effect in accelerating it, it is an effect which loses its ascertainable significance by being merged with countless other factors. Whatever may be the proper scope of the declaration in § 902 (a) that the value of vessels taken during the national emergency shall not "be deemed enhanced by the causes necessitating the taking or use," the wartime economy itself cannot be regarded as such a cause. Even assuming that there may be other circumstances than those of gambling on the result of an award in which a connection between the taker's intervention in the market and an enhancement of price might be traced, on this record it would be asking for the impossible to insist on an attempt to trace one. The Government has advanced no basis for the undertaking; it points to no evidence already offered which would justify it and suggests none that it might have offered. Under the circumstances, we should not require the Court of Claims to embark upon so murky a sea of speculation. Cf. International Harvester Co. v. Kentucky, 234 U. S. 216, 223-24. If what I have said appeals to common sense, market values which have been increased as the result of the interaction of supply and demand in a wartime economy 325 FRANKFURTER, J., dissenting. cannot be rejected as the applicable measure of just compensation merely because the competition of the Government, regarded from the point of view of an exercise in tracing ultimate causes, may theoretically be deemed to have contributed to the increase. Nor is it to make a fetish of market value to affirm its selection as a standard in a case where no other standard that offers the possibility of observance has been put forward. The record rules out any increase due to speculation, the only other suggested form of enhancement attributable to the Government's need. Since it is our duty to avoid constitutional adjudication, see the concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341, 346 et seq., and Rescue Army v. Municipal Court, 331 U. S. 549, 568 et seq., the decision below should be affirmed without reaching the constitutional issues raised by the Government's construction of § 902 (a). Syllabus. 337 U.S. UNITED STATES v. WITTEK. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 473. Argued April 20-21, 1949. Decided June 13, 1949. The District of Columbia Emergency Rent Act of December 2, 1941, 55 Stat. 788, as amended, is not applicable to the United States as landlord of Government-owned defense housing in the District of Columbia. Pp. 347-368. 1. The Act makes no distinction between the United States as a landlord of defense housing and as a landlord of low-rent housing; and, when the circumstances are appreciated, it is practically inconceivable that Congress would have subjected its Government-owned low-rent housing in the District of Columbia to the control prescribed by the District of Columbia Emergency Rent Act in addition to the control prescribed by existing legislation and that of the presidentially designated administrators of low-rent housing in the District of Columbia. Pp. 351-358. 2. The Act contains no express reference to the United States as a landlord or to its application to Government-owned housing of any kind; rental rates in Government-owned defense housing were under complete governmental control; it appears to have been enacted as a temporary measure supplementing, rather than superseding, the contribution already being made by the permanent federal housing authorities toward meeting the housing crisis; and there was no need to apply to Government-owned defense housing the new rent control that it imposed upon privately owned housing. Pp. 358–363. 3. Both the form and the practical operation of the National Emergency Price Control Act indicate that Congress did not seek by the District of Columbia Emergency Rent Act to place Government-owned housing under a local rent administrator. Pp. 364-367. 4. The conclusion here reached is supported by the fact that the District Administrator of Rent Control has taken no part in this proceeding and there is no evidence that he has sought at any time to exercise jurisdiction over the United States as a landlord of either low-rent housing or defense housing. P. 368. 83 U. S. App. D. C. 377, 171 F. 2d 8, reversed. |