AGO 1961 No. 51 - Aug 2 1961
OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR ‑- AUTHORITY ACTING THROUGH DEPARTMENT OF CIVIL DEFENSE, IN COOPERATION WITH OCDM TO ENFORCE PRE‑POSITIONED ORDERS OF THE PRESIDENT OF THE UNITED STATES TO CONSERVE FOOD, PETROLEUM, ETC
The governor, acting through the state department of civil defense in cooperation with the federal office of civil defense and defense mobilization, is authorized to enforce pre‑positioned orders of the United States which would prohibit the sale of food, petroleum and other essential consumer items for five days in the event of an actual attack on this country by hostile forces.
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August 2, 1961
Honorable Charles C. Ralls
Director, Civil Defense
P.O. Box 519
Cite as: AGO 61-62 No. 51
By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:
May the governor, acting through the state department of civil defense in cooperation with the federal office of civil defense mobilization, enforce pre‑positioned orders of the President of the United States which would effectively prohibit the sale of food, petroleum and other essential consumer items for a period of five days in the event of an actual attack on this country by hostile forces?
We answer your question in the affirmative.
In order to better understand both your question and our analysis of the legal problem involved we find it necessary to consider the background from which your question arises.
The Congress of the United States has created an agency in the executive department of the federal government known as the Office of Civil Defense and Defense Mobilization. (OCDM) See the Federal Civil Defense Act of 1950, 50 App. U.S.C. 2251-97. Under the authority [[Orig. Op. Page 2]] conferred upon him by that act, the director of this agency has compiled an extensive and comprehensive plan for the civil defense of this country. This plan contemplates and requires the coordination of the activities of the federal, state and local authorities in this field.
Briefly stated, the portion of the federal plan pertinent to your question deals with emergency economic stabilization and emergency distribution and consumption controls. See Annex 27 of the National Plan for Civil Defense and Defense Mobilization. We find it beneficial to quote at length from portions of Annex 27.
"This annex supports and amplifies the National Plan for Civil Defense and Defense Mobilization, particularly Part VI, FUNCTIONS FOR MOBILIZATION AND MANAGEMENT OF RESOURCES AND PRODUCTION.
". . .
"In a general war (that is, with attack on the United States), the annex is directed to the emergency monetary and credit policies and actions required tomaintain and stabilize the monetary and economic systems on a 'going concern' basis, especially in undamaged areas. In such a situation, it is also concerned equally with 'direct' controls on prices, wages, salaries, and rents, and with emergency rationing, all intended and triggered to function in undamaged areas immediately after attack.
"Periods of international tension would be unlikely to require the actual use of most of the emergency measures outlined in this annex but would require accelerated preparedness for their possible imminent use.
"In the event of massive attack, the headquarters of the Federal Government could not administer most of the immediately required regulatory measures. This annex emphasizes, therefore, that the only workable alternative is for local, State, and Federal regional authorities to have immediate postattack responsibility for the interim administration and coordination of many of the emergency measures involved. This responsibility would continue in varying degrees and for varying times, depending upon how rapidly the headquarters of the Federal Government could gradually consolidate interim [[Orig. Op. Page 3]] local, State, and Federal regional actions into a cohesive national stabilization operation.
". . .
"For the purposes of clarity, limited war and general war are treated as self-contained entities in this annex, inasmuch as the policies, objectives, and techniques involved must necessarily differ.
". . .
"For the purpose of this annex, emergency economic stabilization includes the 'indirect' controls (monetary, credit, and tax measures) required to support mobilization for limited war and to stabilize the economy during such a mobilization. It also includes the 'indirect' or financial policies and controls necessary to maintain and stabilize the continued functioning of a 'going concern' economy following massive attack on the United States. Finally, it includes the equally important 'direct' controls necessary to stabilize prices, wages, salaries, and rents, and to ration essential consumer items.
"II. LIMITED WAR
". . .
"III. GENERAL WAR
"1. Because of the interdependence and interrelationships of the Nation's monetary and credit system, massive attack would gravely jeopardize the continued operation of banks and other financial institutions, including those in undamaged areas. This would be true at a time when the maximum capacity and functioning of our surviving monetary and economic systems would be most needed, and when it would be least desirable to shut down or introduce substitute systems.
"In keeping with the preparedness and operating [[Orig. Op. Page 4]] concepts which this assumption produces, theimmediate and urgent postattack national objectives are to support the continued functioning of the surviving portions of our monetary systemand to stabilize the surviving economic system.
"Emergency financial and indirect controls, outlined later in this section, would be required to instill confidence in and assure the continued but regulated operation of our monetary and credit systems in undamaged areas, while avoiding the introduction of new or substitute systems. Simultaneously, emergency direct controls, particularly including rationing, would be required to stabilize the surviving economy in order to assure its maximum contribution to the national security.
"This annex assumes that, whether from the present seat of the Federal Government or from relocation sites, it would be virtually impossible for the national headquarters of Federal agencies to administer initial and interim postattack stabilization operations.
"2. The great bulk of the operating responsibility for these emergency actions in undamaged areas, during the critical first period following attack, would fall upon local and State authorities, OCDM Regional Offices, and the field staffs of Federal agencies which normally administer financial and credit programs or to which special responsibilities have been delegated (for example, the Department of the Treasury, the Federal Reserve Board, the Federal Home Loan Bank Board, the Federal Deposit Insurance Corporation, the Housing and Home Finance Agency, the Department of Labor, and the Department of Agriculture).
"Most of the coordinating responsibility in this initial period will rest with State authorities and with OCDM Regional Offices.
"After the interim postattack period, as Federal agencies gradually become able to administer and coordinate nationally, the Federal Government (through OCDM, permanent agencies, and emergency stabilization agencies) will draw together local, State, and regional interim operations in the direction of a cohesive and stabilized national economy.
[[Orig. Op. Page 5]]
"3. This annex does not envisage the possibility of organized economic activity, nor of a functioning money economy, during the initial postattack period in the heavily damaged areas. The policies and measures outlined in the annex are intended primarily for immediate postattack use in undamaged areas, as the only alternative to shutting down our surviving monetary and economic systems when they are most needed. Nevertheless, the economic objectives included in this annex, primarily for immediate and interim postattack [[post-attack]]use in undamaged areas, should also guide authorities in other areas as the gradual restoration of restricted economic functioning becomes possible.
"B. GENERAL RESPONSIBILITIES
"1.The Federal Government will be responsible for establishing the national policies and taking the Federal actions required to support the mobilization of all economic forces and the maximum utilization of surviving human, material, and economic resources. It will be responsible for establishing the national policies and directing the actions required to maintain the functioning of the monetary, credit, and financial system; the continuance of banking operations; and the operations of the surviving economy as a 'going concern,' including provision for the sharing of war losses to the extent necessary to carry out these responsibilities.
"The Federal Government will be responsible forauthorizingthe general control of prices, wages, salaries, and rents and the imposition of rationing; and it will be responsible for creating emergency stabilization agencies to advise and assist, as rapidly as possible, in immediate local-State postattack operations in these fields and gradually to absorb these interim operations.
"By prearrangement, the Federal Government will also be responsible for requesting State governors to exercise their emergency authority in connection with the initial and interim postattack [[post-attack]]administration of price and rent control and rationing. (In keeping with existing plans, the Wage and Hour offices of the Department of Labor will initiate interim postattack [[post-attack]]wage and salary control and will provide machinery for dealing with such labor disputes as may arise.)
[[Orig. Op. Page 6]]
"2. At the request of the Director, OCDM, State governments will be responsible for supporting the prearranged actions of the Federal agencies (including their field staffs), having responsibility for monetary, credit, and financial controls, to assure the continued functioning of the monetary, credit, and banking system in undamaged areas.
"Also at the request of the Director, OCDM, State governments will be responsible for the interim postattack administration of price and rent control and rationing and for assisting or supporting Department of Labor Wage and Hour offices in the interim administration of wage and salary controls.
"Local governments, acting under State authority and coordination, will have the same interim direct controls responsibilities.
"3. Private citizens and organizations, particularly including financial institutions, will be responsible for cooperating with and assisting local, State, and Federal regional authorities in carrying out the immediate postattack [[post-attack]]objectives of national economic policy.
"a. To assure the continued functioning of a money and credit economy in undamaged areas, so as to assure its maximum contribution to economic activity, reconstruction, and the national security.
"b. To stabilize the surviving economy by preventing inflation and a flight from the national monetary and credit system, by supporting the continuity of the system, and by avoiding drastic substitutes for it, such as barter or scrip.
"c. To undertakeimmediate rationing of essential items in undamaged areas, in keeping with prearranged plans, in order to conserve and share available supplies and to support and complement other financial, indirect, and direct controls.
[[Orig. Op. Page 7]]
"d. To rely upon prearranged State and local interim administration of direct controls on prices and rents, and of rationing, in undamaged areas, in keeping with national economic policies, objectives, and standards prescribed by the Federal Government preattack; and to rely upon the Wage and Hour offices of the Department of Labor to impose and administer wage and salary controls in undamaged areas.
"e. To pursue the preceding objectives in damaged areas, and those adjoining, as soon as conditions permit.
"f. To consolidate interim local, State, and regional actions and responses in undamaged areas into a coordinated national stabilization program as soon as conditions permit. This will be undertaken gradually by OCDM, permanent Federal agencies, and emergency stabilization agencies.
"2. Actions Required
". . .
"d. To support and complement these financial, monetary, and credit controls, the Federal Government (through the Director, OCDM) will immediately issue a pre‑positioned general 'freeze' of prices, wages, salaries, and rents, to be applicable particularly in undamaged areas during the immediate and interim postattack [[post-attack]]period.
"e.The Director, OCDM, will also issue a prepositioned order requiring the immediate conservation and rationing of essential consumer items. It will be national policy to control immediately, under State and local government direction, all retail and pre‑retail inventories through pre‑positioned orders and, for a period of at least 5 days, to prohibit all sales of food, petroleum, and other essential consumer items, except for the most essential purposes and except for perishables in danger of spoilage.
"f. By prearrangement, the Director, OCDM, will request governors, and through them, community authorities, to initiate and administer these interim direct controls as to prices, rents, and rationing. The Secretary of Labor, through the [[Orig. Op. Page 8]] Wage and Hour offices of the Department of Labor, will initiate and administer interim wage and salary controls and necessary labor disputes machinery.
"g. Simultaneously, by Executive order, there will be created an emergency Federal stabilization agency and component direct-controls agencies, including a rationing agency. To the extent possible, the nucleus staffs of these agencies will advise and assist Federal regional authorities and State authorities as the latter initiate, administer, and coordinate interim direct-controls operations. These emergency Federal stabilization agencies will be expanded as rapidly as conditions permit in order to gradually absorb the local-State administration of interim direct controls.
"h. In connection with emergency rationing, local-State authorities will assess their respective supply and replenishment situations and take the prearranged administrative steps required to impose and administer a prescribed system of rationingat the expiration of the period of prohibition of sales. Initial rationing techniques will be based upon the policy that tight conservation receives first priority, to be followed by austere rationing until the supply situation is clarified, notwithstanding the fact that some areas may appear to have supplies surplus to their own needs.
"The emergency rationing techniques to be followed will also be based upon pre‑positioned ration 'evidence' (cards, coupons, certificates, etc.), supplied by the Federal Government. Registration of consumers and preparation and distribution of ration evidence will be undertaken by local-State authorities during the period of prohibition of sales.
"Also during this period and thereafter, field representatives of the Department of Agriculture (food), the Department of the Interior (petroleum and solid fuels), and the Department of Commerce (other essential consumer items) will supervise and coordinate the allocation and replenishment of inventories required for effective emergency rationing.
[[Orig. Op. Page 9]]
"Representatives of these agencies will collaborate to the extent possible in the local-State assessment of the supply and replenishment situation, and will provide local-State authorities with necessary information and guidance as emergency rationing is initiated.
"i. The Director, OCDM, will take such other actions as may be necessary to confirm, establish, or revise national emergency economic policies in terms which will support interim local-State administration of direct controls until the Federal Government can effectively coordinate and administer these interim actions nationally.
"To the extent possible, necessary interim actions will be taken and coordinated by State authorities and by OCDM regions with the objective of supporting a cohesivenational response to the emergency as quickly as possible, even though the national economy may be fragmented and the only workable responses are temporarily local and State in nature." (Single emphasis ours.)
As we read the provisions of the civil defense plan, the federal government will be responsible for authorizing the general control of consumer goods and issue prepositioned orders requiring the immediate conservation and rationing of such items including the prohibition of the sale of such goods for a period of at least five days. The federal government requests the state and local governments take responsibility for the direction of such controls until the federal government is able to take direct control.
There can be little question that the federal government has authority to provide these forms of regulations. See,L. P. Steuart & Bro., Inc. v. Bowles, 322 U.S. 398, 88 L.Ed. 1350, and the annotation in 153 A.L.R. 1453. See, also, 56 Am.Jur., War, § 46. Such regulations would of course be the supreme law of the land and the public officers of this state may be charged with assisting in their enforcement. Our legislature has in RCW 38.52.050 ordered the governor of this state:
"(h) To cooperate with the president and the heads of the armed forces, the civil defense agency of the United States, and other appropriate federal officers and agencies, . . . in matters pertaining to the civil defense of the state and nation, . . ."
[[Orig. Op. Page 10]]
In an opinion to the governor dated July 1, 1942, (AGO No. 4504) [[1941-42 OAG 188]]a copy of which is enclosed, this office concluded that the governor could cooperate with the federal government in enforcing federally imposed restrictions on public gatherings by invoking the provisions of the criminal code (RCW 9.66.010) which makes
". . .
"Every act unlawfully done and every omission to perform a duty, which act or omission
"(1) Shall annoy, injure or endanger the safety, health, comfort, or repose of any considerable number of persons; or,
"(2) Shall offend public decency; or,
"(3) Shall unlawfully interfere with, befoul, obstruct, or tend to obstruct, or render dangerous for passage, a lake, navigable river, bay, stream, canal or basin, or a public park, square, street, alley or highway; or,
"(4) Shall in any way render a considerable number of persons insecure in life or the use of property;
"Shall be a public nuisance."
We there noted that conduct in violation of the federal regulations could be prosecuted or abated.
The governor may of course call upon the militia to execute such laws. See Article X, § 2, of our Constitution and Chapin v. Ferry, 3 Wash. 386, 28 Pac. 754 (1891).
We therefore conclude that the executive authority of this state may cooperate with the federal office of civil defense by enforcing prepositioned orders of that department which will effectively prohibit the sale of essential consumer items should this country be actually attacked by hostile forces.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
R. TED BOTTIGER
Assistant Attorney General