Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Cullen Ganey, Judge.
Before BIGGS and JONES, Circuit Judges, and BARD, District Judge.
The primary question presented for our determination iks whether the City of Chester, Pennsylvania, can compel an agency of the United States Government, viz., the United States Housing Authority,*fn1 acting through the National Housing Agency,*fn2 to comply with local building regulations in building emergency housing to house war workers in Chester. Chester's answer alleges failure on the part of the United States to comply with Section 4 of Article 1 of the City's Building Code Ordinance requiring the approval of an application and plans by its Building Inspector before any building may be constructed within the City.*fn3 The United States in its complaint avers that it "is exempted from complying with the regulations, restrictions and specifications set up by the City of Chester * * * "*fn4 in the Building Code Ordinance by virtue of the provisions of Section 1 of the Lanham Act.*fn5 The defendants in their answer deny that " * * * the United States of America in carrying out its duties and functions as a sovereign power, is not subject to * * * regulations, restrictions or specifications promulgated by the City of Chester, * * * ," and aver that the United States " * * * hals violated the express provisions" of the ordinance.*fn6 The City of Philadelphia, in which there are also a number of emergency housing projects, and the National Institute of Municipal Law Officers were heard as amici curiae and filed briefs in aid of the defendants.The Philadelphia Housing Authority has filed a brief as amicus curiae supporting the position of the United States.
The essential facts are not in dispute and may be stated briefly. The National Housing Agnecy in order to erect houses for emergency housing on April 28, 1943, entered into a contract with Domenico Lo Cascio to construct one hundred fifty dwellings in Chester. The lands were selected for that purpose by the Chester Housing Authority (an authority created by the Housing Authorities Law of the Commonwealth of Pennsylvania, 1937, May 28, P.L. 955, 35 P.S. Pa. § 1541 et seq.) and acquired by condemnation proceedings brought by the United States in the District Court of the United States for the Eastern District of Pennsylvania.*fn7 The dwellings were to be of a temporary construction designed for the present war emergency in order to obviate a shortage of housing for war workers in the Chester area. The defendants do not deny that a shortage of dwellings existed at the time of the happening of the events complained of by the United States.*fn8
thereafter, on May 6, 1943, the Building Inspector of Chester and the City Solicitor advised the Chester Housing Authority not to proceed with the construction of the project until a permit had been secured and the plans for the project had been made to comply with the provisions of the Building Code Ordinance. The Chester Housing Authority made no effort to secure a permit or to cause the plans of the project to comply with the ordinance. Such a gesture would have been futile because shortages of critical material would have rendered it virtually impossible to build the project in accordance with plans which would have been approved.*fn9
On May 17, 1943 the contractor, through Renato Da Vito, his contract superintendent, began the construction of a tool shed on the leased premises. One day later, an information was filed by the Building Inspector before a magistrate and a warrant was served upon Da Vito. At the hearing Da Vito's case was continued but he was warned under penalty of imprisonment not to proceed with the construction of the project until a permit had been secured. The United States then brought the suit at bar naming the City of Chester, the Mayor and Councilmen, the magistrate before whom Da Vito was taken, and other municipal officials as defendants and sought an injunction to restrain Chester and the other defendants from interfering with or obstructing the building of the project. After hearing, the court below issued a permanent injunction. See 51 F.Supp. 573. The appeal at bar followed.
The Lanham Act was passed in order to enable the Federal Works Administrator to provide housing for persons engaged in national-defense activities and their families in those areas in which the President of the United States should find that an acute shortage of housing exists or impends which would impede national-defense activities and that such housing would not be provided by private capital. Section 1 (a) of the Act provides that lands may be acquired for this purpose prior to approval of title by the Attorney General and without regard to the provisions of certain federal statutes, not pertinent here. Section 1(b), authorizes the Administrator "By contract or otherwise (without regard to section 1136, as amended, and 3709 of the Revised Statutes, section 322 of the Act of June 30, 1932 (47 Stat. 412)*fn10 or any Federal, State, or municipal laws, ordinances, rules, or regulations relating to plans and specifications or forms of contract, the approval thereof or the submission or estimates therefor) prior to the approval of title bny the Attorney General to make surveys and investigations, plan, design, construct, remodel, extend, repair, or demolish structures, buildings, improvements, and community facilities, on lands or interests in lands acquired under the provisions of subsection (a) hEREOF OR ON other lands of the United States which may be available. * * * Provided further, That where the Administrator shallk consider that there is no reasonable prosepect of disposing of such housing to meet a need extending beyond the emergency he shall construct temporary units * * * ."
Section 2 of the Act, 42 U.S.C.A. § 1522, states that "the term 'persons engaged in national-defense activities'" shall incvlude "(1) enlisted men in the naval or military services of the United States; (2) employees of the United States in the Navy any War Departments assigned to duty at naval or military reservations, posts, or bases; (3) workers engaged or to be engaged in industries connected with and essenial to the national defense; (4) officers of the Army and Marine Corps not above the grade of captain, and officers of the Navy and Coast Guard, not above the grade of lieutenant, senior grade, assigned to duty at naval or military reservations, posts, or bases, or to duty at defense industries: * * * "
By the Lanham Act, Congress has decreed that housing for persons engaged in national-defense activities, as defined in Section 2, is essential to the national defense.*fn11 Such legislation is clearly within the war powers granted to Congress by the Constitution.See provisions of Article 1, Section 8, clauses 11 to 16 inclusive. In Hirabayashi v. United States, 320 U.S. 81, 93, 63 S. Ct. 1375, 1382, 87 L. Ed. 1774, the Supreme Court by Mr. Chief Justice Stone stated, "The war power of the national government is 'the power to wage war successfully'. See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A.Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war." While the opinion of the Supreme Court in the cited case dealt with the constitutionality of a curfew order imposed by the Military Commander of the Western Defense Command, the principles enunciated are interpretative of the powers given to Congress as well as to the Executive to wage ar and to act in the national defense.
Nor can it be considered necessary thalkt the United States must be at war in rder that Congress and the Executive possess the constitutional sanction to prepare for it. Such an interpretation would be so unrealistic as not to warrant serious consideration. Cf. United States v. 243.22 Acres of Land, D.C., 43 F.Supp. 561, 567, 568, affirmed 2 Cir., 129 F.2d 678.
Amici in support of the defendants assert that the definition contained in Section 2(3) of the Act, quoted above is so broad as to encompass within its scope " . . . almost all of the inhabitants of the country, including those employed by concerns which are engaged in manufacture, processing, distillation or in any kind of activity supplementary or auxiliary thereto", and for this reason " . . . goes far beyond the legislative authority delegated by the States to Congress with respect to the war powers." This argument is withou merit. It is difficult to believe that definitions of total war might vary and that one part of the united industry of our country might be at war while another portion is at peace, depending on whether the manufacture involved was of munitions or of goods for civilian consumption, but we do not have to decide such a question in the case at bar. A very large percentage of the industries in the Chester area are essential for the successful prosecution of the war. See note 8 supra. They are not industries "supplementary or auxiliary" to the war effort. They are industries whose curtailment would impede the prosecution of the war.
Further argument of the defendants and amci turns upon the scope of the Act and its constitutionality as construed by the court below. It is based on the Ninth and Tenth Amendments read in conjunction with Article I, Section 8, Clause 17 of the Constitution.*fn12 It amounts in substance to this: Since the Tenth Amendment expressly reserves to the States or to the people those powers not delegated to the United States or prohibited it by the Constitution, and the Ninth Amendment provides that the enumeration of rights in the Constitution shall not be construed to deny or disparage others retained by the people, and since the United States did not acquire the leasehold in the City of Chester by consent of the Legislature of Pennsylvania in accordance with the provisions of Article I, Section 8, Clause 17 of the Constitution, all laws of the State of Pennsylvania and ordinances of the City of Chester, including the Building Code Ordinancle, based upon acknowledged valid police powers, must be deemed to be in effect and prohibit the Federal Works Administrator and those employed by contract with him from proceeding with the project until a permit has been secured. In support of this proposition the defendants and the City of Philadelphia rely on such authorities as The Slaughter House Cases, 16 Wall. 36, 83 U.S. 36, 62, 21 L. Ed. 394; Fort Leavenworth R.Co. v. Lowe, 114 U.S. 525, 5 S. Ct. 995, 29 L. Ed. 264; Surplus Trading Co. v. Cook 281 U.S. 647, 50 S. Ct. 455, 74 L. Ed. 1091, and the recent decision of the Supreme Court in Penn Dairies v. Milk Control Commission, 318 U.S. 261, 63 S. Ct. 617, 87 L. Ed. 748.*fn13
When the United States acquires lands for the purposes enumerated in Clause 17 of Section 8 of Article I by purchase with the consent of the legislature of a State the federal jurisdiction may be exclusive of state authority.Fort Leavenworth R.Co. v. Lowe, supra, 114 U.S. at page 541, 5 S. Ct. 995, 29 L. Ed. 264; United States v. Unzeuta, 281 U.S. 138, 50 S. Ct. 284, 74 L. Ed. 761; Ex parte Hebard, Fed. Cas. No. 6,312, 4 Dill. 380; James v. Dravo Contracting Co., 302 U.S. 134, 146, 58 S. Ct. 208, 82 L. Ed. 155, ...