Opinion of the Court

114 C. Cls.

Program was used, to which was added what we called "a fair mark-up for profit." In this case plaintiff was paid its actual total costs computed according to the formula of the Surplus Stocks Program. It was paid nothing for profit. Defendant insists that any allowance for profit runs counter to a number of decisions, including Bothwell v. United States, 254 U. S. 231; Mitchell v. United States, 267 U. S. 341; DeLaval Co. v. United States, 284 U. S. 61; United States v. Powelson, 319 U. S. 266. These decisions do hold that anticipated profits from the sale of requisitioned property are not recoverable. We have no quarrel with these holdings. But we do say that an owner whose property has been requisitioned is entitled to something more than the cost to it of the property and the cost of bringing it to the place of requisition and keeping it until it is requisitioned. "Just compensation" means something more than this. Cost has never been the measure of just compensation. The Surplus Stocks Program formula allowed cost only. This owner when it purchased this property ran the risk of the loss of it at sea; it ran the risk of having it damaged in transit; it ran the risk of fire and theft while in storage; it ran the risk of a declining market; it ran all the risks incident to business enterprise. No doubt some of these risks were compensable under the insurance policies; some equally without doubt were not. It seems to us unjust that a condemnor should reap the benefit of all these risks without paying for it.

In addition, plaintiff had the right to retain its property until all restrictions on its use and disposition had been removed. This right was of some value, although difficult to ascertain. Of this right plaintiff was deprived by the requisition. This cannot be done without compensating it therefor. In the Neumaticos case we loosely spoke of this extra amount to which we thought plaintiff was entitled over the Surplus Stocks Program figure as "a fair mark-up for profit." This was an inaccurate and a misleading expression. The mark-up to which we think plaintiff is entitled is one to compensate it for the risks any owner runs who buys property beyond the seas and who transports it here and keeps

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Opinion of the Court

it in storage awaiting an opportunity to use it or to dispose of it. Something should be added to cost to compensate it therefor, call it what you will.

The minds of reasonable men may well differ as to what this mark-up should be; it no doubt would vary in different cases; but in this case it seems to us that ten percent added to cost, including freight, insurance and storage, is not wide of the mark.

In Neumaticos-Goodyear, S. A., v. United States, supra, the mark-up allowed did not amount to quite this amount. We allowed no more in that case than plaintiff had claimed in its application filed with the Board of Economic Warfare. Plaintiff in this case is not so limited.

In this case, as in the Neumaticos case, plaintiff claims the so-called "retention value" of the rubber. This value plaintiff says is definitely proved in this case because defendant sold it rubber for exportation to Uruguay in the years after requisition at an average price of 57.1 cents per pound. This, it says, is its retention value.

This turned out to be its retention value, it is true, but this does not mean it was its retention value at the time of the requisition. It is as of that time that the retention value is to be fixed. It is as of this time that just compensation is to be determined. United States v. New River Collieries, 262 U. S. 341; United States v. Miller, 317 U. S. 369; United States v. Powelson, 319 U. S. 266. "Retention value" as an element of just compensation means what it is worth to a property owner at the time of requisition to hold on to his property, which he could not then use or dispose of, until he is at liberty to use it or dispose of it.

It is an intangible value, incapable of anything like exact measurement. It has been availed of in our decisions more to show that the value of property requisitioned at the ceiling price was not necessarily limited thereto rather than to afford any measurement of value. It influences value, but affords but a poor guide by which to measure it.

Some owners no doubt would have preferred to risk the uncertainties of war and war conditions and hold on to their property rather than to take a mere mark-up of 10 percent;

Syllabus

114 C. Cls.

others perhaps would not; but, viewing the situation as it was when the property was requisitioned, we think such a markup fairly and justly compensates the owner in this case.

Plaintiff is entitled to recover the sum of $93,411.98, plus interest as a part of just compensation at 4 percent on $81,757.91 from September 17, 1942 to September 11, 1945, except for the period from January 29, 1943 to March 1, 1943, and also plus interest at 4 percent per annum on $11,654.07 from October 22, 1942 to September 11, 1945, except for the period from January 29, 1943 to March 1, 1943, and plus interest at 4 percent per annum on $51,187.73 from September 11, 1945 to date of payment, less $43,572.95 paid on account. Judgment will be entered accordingly.

HOWELL, Judge; MADDEN, Judge; LITTLETON, Judge; and JONES, Chief Judge, concur.

J. H. CRAIN AND R. E. LEE WILSON, JR., TRUSTEES OF LEE WILSON AND COMPANY, A BUSINESS TRUST v. THE UNITED STATES

[Nos. 45779 and 45997. Decided July 11, 1949. Plaintiffs' motion for new trial overruled October 3, 1949]*

On the Proofs

Agricultural Adjustment Act; jurisdiction; discretion of Secretary of Agriculture in determination of facts; offsets; counterclaim. In two suits to recover amounts alleged to be due them for 1937 (Case No. 45779) and 1938 (Case No. 45997) by reason of their compliance with the programs of the Department of Agriculture relating to soil-rebuilding and soil-conservation practices, in connection with the production of cotton, under the provisions of the Soil Conservation and Domestic Allotment Act of February 29, 1936, as amended; it is held that plaintiffs are not entitled to recover. (See 104 C. Cls. 713 and 756.) Agriculture 3

Same; jurisdiction.-A study of the statutes under construction in the instant suits, and of reports of Congressional Committees, fails to reveal clear language by Congress expressing its intention to confer upon the Department of Agriculture exclusive jurisdiction and to make the decision of the Secretary with respect to claims such as are here involved, final in all respects

*Plaintiffs' petition for writ of certiorari pending.

94

Syllabus

and not subject to further consideration by the Court of Claims. United States v. Babcock, 250 U. S. 328, 331, and Williamsport Wire Rope Co. v. United States, 277 U. S. 551, 561, distinguished.

Agriculture 3

Administrative Law and Procedure 496

Same. The instant suits present claims founded upon a law of Congress under 28 U. S. C. 1491 (2). The fact that no contract existed between the parties and the fact that the payments which the statutes provided should be made were grants or bounties does not deprive the Court of Claims of jurisdiction. Courts 449 (1)

Same; extent of jurisdiction.-In view of the nature of the grants; the purposes to be accomplished by the Soil Conservation and Domestic Allotment Act of 1936 and the Agricultural Adjustment Act of 1938; the nature of the programs thereunder and the performances required of agricultural producers, and the provisions of the statutes vesting authority in the Secretary of Agriculture to determine the facts constituting the basis for any payment and the amount of payment due; the extent of the jurisdiction of the Court of Claims in these cases is governed by the principles announced in Dismuke v. United States, 297 U. S. 167, 171–173.

Same; findings conclusive unless arbitrary or capricious; proof.— Under the provisions of the statutes concerning the findings of the Agricultural Adjustment Administration and the Secretary of Agriculture, the findings are to be accepted as conclusive without proof that they are arbitrary or capricious.

Agriculture 3

Administrative Law and Procedure 496

Same; intent of Congress.-When Congress intends to make administrative findings and decisions conclusive for all purposes and not subject to consideration by the courts, Congress usually expresses this intention in clear language.

Same; burden of proof.—In the instant cases, the court holds that plaintiffs had the burden of proof to show that the Secretary's findings and decisions were arbitrary or capricious not only with respect to the year 1937 but also with respect to the offsets, and plaintiffs have not sustained this burden. The record affords no basis for the conclusion that the Secretary of Agriculture did not properly apply the provisions of the statutes and the regulations to the facts found by him.

Agriculture 3

Administrative Law and Procedure 496

114 C. Cls.

Reporter's Statement of the Case Same; Secretary's authority to reopen prior payments and make offsets. Where the Secretary of Agriculture found, and the evidence adduced shows, that the distributions originally made by plaintiffs to certain of their tenants and share croppers for the years 1933 to 1936, inclusive, were not made in accordance with the intent and purpose of the statute and the provisions of the written instructions and regulations issued by the Secretary of Agriculture; and where the evidence further shows that plaintiffs' departure from the regulations was unauthorized; and where the record shows that until an investigation was begun in 1939 these irregularities were not known to the Department and the Secretary; it is held the action of the Secretary in 1941 in reopening the payments for the years 1933 to 1936, inclusive, was within his authority under the statutes; that the Secretary properly made the offsets in question; and plaintiffs are not entitled to recover.

Same; counterclaim dismissed.-Defendant's counterclaim as to certain payments made to a partnership in which plaintiffs owned a controlling interest is dismissed, since it is not shown that the plaintiffs had the land operated through the partnership for the purpose of defeating the agricultural program. Agriculture 3

Courts 450

The Reporter's statement of the case:

Mr. Scott P. Crampton for the plaintiffs.

Mr. Geo. E. H. Goodner was on the brief.

Mr. Donald B. MacGuineas, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant.

In these two cases plaintiffs seek to recover amounts alleged to be due them for 1937 and 1938 by reason of their compliance with the agricultural programs of the Department of Agriculture relating to soil-rebuilding and soilconserving practices, in connection with the production of cotton, under the provisions of the Soil Conservation and Domestic Allotment Act of February 29, 1936, as amended (49 Stat. 1148; 16 U. S. C. 590 h). Case No. 45779 relates to the year 1938 for which plaintiffs claim $74,413.12. Case No. 45997 relates to the year 1937 for which plaintiffs claim $29,261.78.

There is no controversy as to the amount which plaintiffs earned for 1938. The controversy relates to the correctness