dissenting:
I agree with the opinion of the majority that the taking of plaintiffs’ silk took place on October 16, 1941, but I do not agree that $3.08 represents just compensation. The price at which silk was selling on the last day on which there was a free market for the sale of silk was $3.57, and there is no doubt that the market price would have continued to rise except for the imposition by the Government of restrictions on transactions in silk, and the fixing of a ceiling price of $3.08.
In my opinion, the nearest we can come to fixing “just compensation” for the taking of plaintiffs’ silk on October 16, 1941, is the price plaintiffs could have gotten for this silk on the last day on which there was a free market for it.
I do not think under the facts in these cases the ceiling price of $3.08 fixed by the Office of Price Administration and Civilian Supply had any legal effect in the determination of just compensation.
In the case of United States v. Felin, 334 U. S. 624, three Justices of the Supreme Court expressed the opinion that the ceiling price was the measure of just compensation, but it did not appear in that case, as it does in these cases, that this ceiling price had been fixed prior to the time that the President had been granted statutory authority to fix prices. The first Act authorizing the President to fix prices was passed on January 30, 1942 (56 Stat. 23; Title 50 (War, Appendix), U. S. C. 1940 ed., Supp. II, sections 901, et seq.). The price of $3708 was fixed by the Office of Price Administration and Civilian Supply on August 2, 1941, some months prior to the passage of this Act. The silk was taken on October 16, 1941, prior to the passage of this Act.
In my opinion, the fixing of this price on August 2, 1941, was without authority and of no legal effect. If so, it is to be disregarded, except for such evidentiary value as it may have.
*747The only body in this country with authority to fix prices is the Congress of the United States. It derives that power from section 1 of Article I of the Constitution which vests in the Congress “all legislative powers herein granted,” and from section 8 of Article I, providing that “The Congress shall have power * * * to provide for the common defense and general welfare of the United States * * * to declare war * * * to raise and support armies * * *” and “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers * *
No article of the Constitution could possibly be construed to give the President or any department of the executive branch of the Government authority to fix prices without congressional authorization. The President’s power is executive. He is charged with the duty to “take care that the laws be faithfully executed,” and he is Commander in Chief of the Army and Navy, but, except for his power to recommend measures, and his authority to participate in the making of treaties, and for his power of veto, he has no legislative power.
The plaintiffs assert in their briefs that the first legislative Act giving the President power to fix prices was passed on January 30,1942, and the defendant does not deny this. We have found no statute from which any such power can be implied.
Under the Act of June 7,1939 (53 Stat. 811) he was given the power to acquire stocks of strategic and critical materials, and this power was broadened by the Acts of June 28, 1940 (54 Stat. 676) and July 2,1940 (54 Stat. 712), and under the Act of May 31, 1941 (55 Stat. 236) he was given the power to establish priorities and to allocate material, but from none of these Acts can any authority be inferred to fix the price of materials acquired by the Government nor the price at which an owner could sell his property to private individuals. The first such authorization, as we have stated, was on January 30,1942.
Executive Order 8734 establishing the Office of Price Administration and Civilian Supply referred to no statute authorizing the President to fix prices. This order begins, “By virtue of the authority vested in me by the Constitution *748and the statutes”; but the particular- statute giving this authority is not cited, nor is the section of the Constitution conferring such authority.
The Government in its briefs cite none, and, so far as I have been able to find, there is none.
The following Message to the Congress from the President recommending the passage of price-control legislation is significant (Senate Report No. 931 on H. 3J. 5990, pp. 4-5, 77th Congress, 2d Session) :
For 12 months we have tried to maintain a stable level of prices by enlisting the voluntary cooperation of business and through informal persuasive control. The effort has been widely supported because farsighted business leaders realize that their own true interests would be jeopardized by runaway inflation. But the existing authority over prices is indirect and circumscribed and operates through measures which are not appropriate or applicable in all circumstances. It has further been weakened by those who purport to recognize need for price stabilization yet challenge the existence of any effective power. In some cases, moreover, there has been evasion and bootlegging; in other cases the Office of Price Administration and Civilian Supply has been openly defied.
While the President is careful not to admit lack of authority for the regulations already promulgated, it is plain that he would like to be able to plant his feet on somewhat firmer ground.
Aside from whether or not a ceiling price fixed under congressional authority is controlling in determining just compensation, certainly a ceiling price fixed without congressional authorization is of no effect whatever.
However urgent it may have been to control prices at the time Executive Order 8734, establishing the Office of Price Administration and Civilian Supply, was issued on April 11, 1941, and however much the situation may have justified the President in issuing this order, even though he was without authority to do so, nevertheless, a price fixed under this order can have no effect in determining the just compensation to which plaintiffs are entitled under the Constitution.
*749By the foregoing I do not mean to imply tbat I agree that a ceiling price fixed under congressional authorization ■ is conclusive in determining just compensation.
I think plaintiffs are entitled to recover at the rate of $3.57 a pound.
Judge Howell concurs in the foregoing opinion.