¶1(dissenting).
¶2I agree , with the Court in its conclusion that the compulsory “set -aside orders” constituted a. taking by the Government, which required it to pay just compensation. I do not agree that what was paid was less than just compensation.
¶3At the time of the taking-there was in effect a ceiling price for milled rice, fixed by the Price Administrator. To be sure, it was an “interim price” increasing the former .ceiling price by 50 cents a barrel, and issued; in .contemplation of the fact that a further study was to be made,, after which study it would be determined whether a further change would, be made in the ceiling. price. Such a change was made some two months later, the ceiling price being further increased. The “interim price” was, however, for the time that it was in effect, the lawful price, and the only price at which a- private sale of rice could be lawfully made.
¶4The Supreme Court, in the case of United States v. Commodities Trading Corporation, 339 U.S. 121, 125, 70 S.Ct. 547, 550, 94 L.Ed. 707, said, after analyzing the pertinent provisions of the Price Control Act, “We think the congressional purpose and the necessities of a wartime economy require that ceiling prices be accepted as the measure of just - compensation, so far as that can be done consistently with the objectives-of the [Fifth Amendment”. That holding eliminates from a case such as the one before us all questions of legislative intent or statutory interpretation and leaves only the question whether the Fifth Amendment requires that the Government pay more for the requisitioned rice than it paid' in this case. The only suggested basis for such a constitutional requirement in this case is that the ceiling price paid was less than the cost to the plaintiffs of the rice taken. It is, of course, elementary that just compensation may be greater or less than the cost to the owner of the thing taken. Hence it must be urged, to justify the -Court’s decision, that in the case of the taking of property for which there is' a ceiling price, -at least cost must be paid, although in the case of the taking of property for which there is a free market price, it need not be paid, but that argument is-no longer open for our consideration. It was made and expressly rejected in the-Commodities Trading Corporation case, supra. This Court had in that case; 83 F. Supp. 356, 113 Ct.Cl. 244, made a finding that the cost to the owner of the commodity there taken was almost twice the amount paid by the Government, on its requisition.. The Government disputed that finding, in the Supreme Court, but the Court held that, it was unnecessary to resolve that factual dispute, since, whatever the owner’s costs, may have been, the ceiling price was just, compensation for the taking. 339 U.S. at. page 130, 70 S.Ct. 547, 94 L.Ed. 707. I see no distinction between that case and the in-, stant one, and would hold that the plaintiff is not entitled to. recover.