United States v. Commodities Trading Corporation Commodities Trading Corporation/Dissent Jackson
Mr. Justice JACKSON, dissenting.

When Congress enacted the Emergency Price Control Act, it provided that 'Nothing in this Act shall be construed to require any person to sell any commodity * * *.' 56 Stat. 28, § 4(d), 50 U.S.C.Appendix, § 904(d), 50 U.S.C.A.Appendix, § 904(d). Of course, Congress did not thereby surrender the Government's right to requisition any goods it might want under the usual eminent domain powers and for 'just compensation.' Why then this provision?

It seems obvious that the purpose was to avoid just what the Court does today-making ceiling prices for voluntary sales the measure of compensation for compulsory sales. This separation was not made as a favor to profiteers. In United States v. John J. Felin & Co., 334 U.S. 624, 650, 68 S.Ct. 1238, 1251, 92 L.Ed. 1614, writing in dissent for Mr. Justice Douglas and myself, I set forth considerations which weighed heavily upon those proponents of price controls who wanted the controls to operate smoothly and expeditiously and also to avoid constitutional litigation, or at least adverse decisions. I said there:

'It is hard to see how just compensation can be the legal equivalent of a controlled price, unless a controlled price is also always required to equal just compensation. It never has been held that in regulating a commodity price the Government is bound to fix one that is adequately compensatory in the constitutional sense, so long as the owner is free to keep his property or to put it on the market as he chooses. If the Government were required to do so, the task of price regulation would be considerably, if not disastrously, complicated and retarded. It seems quite indispensable to the Government itself, for the long-range success of price controls, that fixed prices for voluntary sales be not identified with the just compensation due under the Constitution to one who is compelled to part with his property.' 334 U.S. at page 651, 68 S.Ct. at page 1251.

The Court today nullifies the congressional policy that no one is compelled to sell under the Act by using the condemnation power to compel the sale and this Act to fix the price. It also makes the constitutional provision for just compensation meaningless since the Government may first fix the price, as if no sales were compelled, and then compel the sales at the prices so fixed. I think the constitutional power to fix prices for voluntary sale in interstate commerce is much less confined than the power to fix prices for taking property. But hereafter, the price fixed may have to be tested by whether it would be just compensation for a compulsory sale.

I agree that the court below erred in its theory of 'retention value.' It did so by making the same basic error this Court is making: that of combining two separate systems-price fixing and condemnation. It considered that because the Emergency Price Control Act said a claimant was not required to sell under the Act, he might retain his property for some future rise in market. But it is not that Act which makes him sell. It is under the power of eminent domain that the Government expropriates this pepper. And under that power he has no right of delay and hence no retention value. He must part with his property on demand, and the issue is what is just compensation at that time.

At the time of this expropriation there was, insofar as market price were concerned, a controlled market in the United States-controlled by the Government that was doing the expropriating. There was also a world market, with far higher market prices, to which the Government would have had recourse had not these parties earlier imported a large supply. Moreover, while the ceiling price on whole pepper was kept at a low figure, the price on ground pepper to the public showed what seems to be an unaccountably large spread. The problem of combining all relevant considerations that go to a valuation is a difficult one.

I concur in the reversal but would return the case for redetermination of the value at the date of requisition without allowance for 'retention value.' I should not direct that the ceiling price be used as the sole measure of just compensation. 

Notes