dissenting.
I am unable to agree with the court’s decision awarding the plaintiff $267,779.74, the amount which the plaintiff would have received if it had been paid the subsidy of 80 cents per cwt. which was paid to nonprocessing slaughterers under Regulation No. 3. The plaintiff was not a nonprocess-ing slaughterer, as defined in the regulation. The regulation was issued as a part of the process of controlling prices and encouraging production. There was authority for its issuance and, constitutional questions aside, it had the force of law. Yet the court holds that, to be justly compensated for the meat taken from it by the Government, the plaintiff should receive, in addition to the wholesale ceiling price already paid it, the amount of this subsidy.
If the plaintiff is entitled to more than the ceiling price for its meat taken by the Government, because the ceiling price does not constitute “just compensation” under the Fifth Amendment, I still do not see what the amount of the subsidy has to do with the question. This amount does not compensate the plaintiff for its losses, as found by the court, nor satisfy any other test of just compensation which occurs to me. Its allowance must be predicated upon the idea of inequality of treatment as between the plaintiff and others. *90But, assuming that inequality of treatment would entitle the plaintiff to money to which, under the applicable law, constitutional questions aside, it had no claim, I see no evidence whatever of inequality of treatment. Regulation No. 3 was stated in general terms, applicable to all slaughterers similarly situated. Those who issued it had concluded that if a slaughterer had retail outlets for his meat, his profits would, on the whole, be sufficient without his being given the additional 80-cent subsidy. Those who issued Regulation No. 3 were, presumably, aware that a considerable part of the product of all sizeable slaughterers would not, in fact, be retailed, but would be set aside in carcass form for the armed forces. But the same situation existed with regard to the slaughterers who did not retail, but who processed. All of the large packers did this, and did not, therefore, receive the 80-cent subsidy. Yet, a considerable part of their product was not, in fact, processed, because it went in carcass form to the armed forces.
The promulgators of Regulation No. 3 must have concluded that the processing slaughterers and the retailing slaughterers could, at the permitted sale prices of such of their meats as were not set aside for the armed forces, come out reasonably well on the operation of their business as a whole. We have no evidence that this conclusion was not correct. The evidence relates only to the meat which the plaintiff did not retail because it was set aside for the Government. We do not know how the plaintiff came out on the meat that/it retailed. In the difficult and complicated task of keeping a complex economy operating during a total war, it can hardly be a constitutional requirement that Government controls operate so that each item in the inventory of a storekeeper, or each pound of meat produced by a slaughterer can be sold without loss, regardless of the effects of the controls upon the operation as a whole.
JONES, Chief Judge, took no part in the decision of this case.