Opinion
No. 5421-A.
April 7, 1947.
Patrick J. Gilmore, Jr., U.S. Dist. Atty., and Robert W. Boochever, Asst. U.S. Dist. Atty., both of Juneau, Alaska, for plaintiff.
Howard D. Stabler, of Juneau, Alaska, for demurring defendants.
This action, commenced August 31, 1945, is to condemn certain lands in Juneau, Alaska, pursuant to the request of the Commissioner of Federal Public Housing Authority after the President of the United States had found that in said area there was an acute shortage of housing, which private capital would not remedy, such as would impede the National Defense activities.
Upon September 29, 1945, some of the Defendants, who will hereinafter be called "Defendants," filed a demurrer to said petition.
I.
In the demurrer Defendants assert that there is a defect of parties plaintiff, in that the action is in the name of the United States, whereas the Act giving the United States Housing Authority power to condemn requires that the Authority shall condemn in its own name. Act of June 28, 1940, 54 Stat. 683, 42 U.S.C.A. § 1502.
The Executive Order of the President, Number 9070 of February 24, 1942, 50 U.S.C.A.Appendix, § 601 note, accomplishes the following:
(a) Creates the National Housing Agency and gives that Agency all of the powers of the Federal Works Administrator and the United States Housing Authority, and the Administrator thereof.
(b) Creates the office of Commissioner of the Federal Public Housing Authority and gives him all of the powers of the Federal Works Administrator and the United States Housing Authority and the Administrator thereof.
In bringing the present suit in the name of the United States of America, the Commissioner was within the powers he received as successor to the powers of the Federal Works Administrator. 42 U.S.C.A. § 1521; 40 U.S.C.A. §§ 257, 258, 258a, 258e, 361-386.
II.
Another ground of the demurrer is that the present action is not authorized by law.
Defendants cite the act of Congress of December 28, 1945, § 1(a, f), 59 Stat. 658, 50 U.S.C.A.Appendix, §§ 632a, 645, which states:
"That (a) title II of the Second War Powers Act, 1942, as amended, is amended by adding thereto the following section:
"`Sec. 202. The Authority to acquire property, or any use thereof or interest therein, granted by section 2 of such Act of July 2, 1917, shall not be exercised after the date upon which this section becomes effective.' * * *
"(f) Section 1501 of title XV of the Second War Powers Act, 1942, as amended, is hereby amended to read as follows:
"`Sec. 1501. Titles I to V, inclusive, * * * and the amendments to existing law made by any such title, shall remain in force only until June 30, 1946, * * * and after such amendments cease to be in force any provision of law amended thereby shall be in full force and effect as though this Act had not been enacted; but court proceedings brought under any such title shall not abate by reason of the termination hereunder of such title.'
"Approved December 28, 1945."
The Act of June 29, 1946, § 1, 60 Stat. 345, 50 U.S.C.A.Appendix, § 645, provides with reference to the Second War Powers Act:
"Titles I, II * * * of this Act * * * shall remain in force only until March 31, 1947 * * *; but no court proceedings brought under any such title shall abate by reason of the termination hereunder of such title."
However, the Commissioner of the Federal Public Housing Authority has and had condemnation authority not only through the Second War Powers Act, but through the Act creating a Federal Works Administrator. 42 U.S.C.A. § 1521, Act of October 14, 1940, 54 Stat. 1125, as amended.
Therefore, it is not necessary to decide what effect said Act of December 28, 1945, and Act of June 29, 1946 had upon this action.
Other grounds of demurrer are set up which do not appear to the Court to have merit.
Consequently, said demurrer should be overruled.