15 Reporter's Statement of the Case United States to export gold ores, concentrates, precipitates, or unretorted amalgam. None of the gold bars involved in this suit was in any of such forms. 16. August 28, 1933, the President issued Executive Order No. 6260, a copy of which is attached to the petition herein as Exhibit 10, and is also in evidence as Exhibit 5 to the stipulation, and is made a part hereof by reference. August 29, 1933, the President issued Executive Order No. 6261, a true copy of which is in evidence as Exhibit 6 to the stipulation and is made a part hereof by reference. September 12, 1933, the Secretary of the Treasury issued certain "Gold Regulations," a copy of which is attached to the petition herein as Exhibit 11 and is also in evidence as Exhibit 7 to the stipulation, and is made a part hereof by reference. 17. Following the issuance of Executive order of August 29, 1933, and the regulations issued thereunder and pursuant thereto by the Secretary of the Treasury relating to the sale and export of gold recovered from natural deposits, the officials of the U. S. Mint, San Francisco, held a conference relative to the type of gold properly eligible for receipt by them under such orders and regulations. Such officials were acquainted with the provisions of the Executive order of April 5, 1933, requiring that every person acquiring gold after April 28, 1933, should deliver it to a Federal Reserve Bank, or a branch or agency thereof, or to any member thereof, within three days after receipt thereof. The Mint officials decided that the maximum time that would be required for any gold producer to ship its gold production to the Mint after such gold had been melted was three days; that gold arriving at the Mint within three days after it was first melted was being forwarded promptly, and, accordingly, that such gold was not being hoarded or held in noncompliance with the Executive orders of April 5, April 28, and August 8, 1933, or regulations issued thereunder. It was also concluded and decided that newly mined gold recovered from natural deposits of the United States or any place subject to the jurisdiction thereof which had been melted within three days of issuance of the Executive order of August 29, 1933, or thereafter, would be regarded as eligible Opinion of the Court 94 C. Cls. for receipt and disposition under such order of August 29, 1933. 18. Plaintiff's gold bars numbered 1190-1212, inclusive, were held by plaintiff in San Francisco for an unreasonable length of time before being delivered to the Mint under the applicable Executive orders and Treasury regulations, and at the time they were delivered to the Mint they did not meet the requirements of the Executive order of August 29, 1933, and the applicable Treasury regulations issued thereunder. 19. The United States Mint at San Francisco refused to accept bars numbered 1195 to 1212, inclusive, for consignment and disposition under Executive order of August 29, 1933, for the reason that such bars did not meet the requirements of such Executive order and the regulations issued thereunder. 20. If plaintiff's gold bars numbered 1176 to 1212, inclusive, involved in this suit, were not within the terms of and covered by the provisions of the act of March 9, 1933, and subsequent acts of Congress upon the same subject, Executive order of April 5, 1933, and subsequent Executive orders and Treasury regulations relating to gold and gold bullion, other than newly mined gold authorized by the Executive order of August 29, 1933, to be received on consignment and disposed of for the benefit of the producer thereof, or, if plaintiff at the time such bars were delivered to the United States Mints had held a license granting it unlimited authority to acquire, hold, retain, and sell or dispose of such gold bars in the world market, such gold bars could have been sold or disposed of in such world market at prices, per fine ounce of gold therein, considerably in excess of the total of the amounts which it received therefor from the defendant. The court decided that the plaintiff was not entitled to recover. LITTLETON, Judge, delivered the opinion of the court: The question presented in this case is whether plaintiff was entitled to receive from defendant payment at a rate in excess of $20.67 plus per fine ounce for gold bullion, as 15 Opinion of the Court described in the findings, delivered by it during the period April 20 to September 18, 1933, to the United States Assay Office at Seattle, Washington, and to the United States Mint at San Francisco, California. Plaintiff contends that this is a simple suit for just compensation for property taken by the defendant in 1933 and that while the defendant paid plaintiff certain sums totaling $894,497.43, the amount so paid was $319,745.28 less than the fair market value of the gold at the time it was taken. In support of this position, it is argued that the property here involved was not coin, currency, or monetary gold, but newly mined gold in crude and natural alloy form, unrefined, taken directly from the hands of miners; that such crude gold was a simple commodity to be valued as any other commodity; that questions as to whether the "face" or denominational value of gold money in other forms of lawful money was the fair value thereof do not arise in this case; that while the government has the right after gold has become money and has gone into circulation as a medium of exchange, either as coin, gold certificates or monetary bars, to take back that circulating medium and substitute other media of the same face and denominationthat is, one who acquires coin or other monetary gold acquires only the circulating medium and not the substance of which it is made such action is not here material or necessary to be determined for the reason that no such considerations apply to newly mined gold as such gold has never entered the channels of trade, passed into the hands of the government or become a part of the gold base of the monetary system, that it is owned by the miner as completely as the earth from which it was extracted or the ore from which it was separated under the original patent from the government to the miner; that if the owner of the mine refrains from mining, or if he mines the ore and refrains from extracting the metal therefrom, or if he mines and extracts but holds the crude alloy in his own hands, he does not thereby diminish the gold base of the currency system; that the government cannot compel him to extract ore from the ground or prevent him from ceasing his operations at any point up to the production of the crude bar; Opinion of the Court 94 C. Cls. that if he has carried his operations so far as actually to produce gold bars in the form in which those involved in this suit were produced, the government cannot compel him to surrender his property for less than its actual value; that his property right in such commodity remains and is not subject to confiscation; that howsoever the exigencies of the situation with respect to the functions of government justify regulation, they cannot justify forfeiture or confiscation, total or partial. From a consideration of the act of March 9, 1933, 48 Stat. 1, and subsequent acts on the same subject, and the Executive order of April 5, 1933, and subsequent Executive orders and regulations of the Secretary of the Treasury issued pursuant to such acts and Executive orders, we are of opinion that the gold bars produced by plaintiff as described in the findings, which were 83 percent or more pure gold, constituted "gold bullion" within the meaning of the act of March 9, 1933, and the Executive order of April 5, 1933, and that in the circumstances such gold was not, as plaintiff contends, a simple commodity which had no real relation to the monetary system of the United States. Plaintiff is, therefore, not entitled to recover as just compensation, as for a taking of property under the Fifth Amendment of the Constitution, any amount in excess of the total amount paid by the defendant for the bars at the rate of $20.67 plus per fine ounce of gold under the rules applied in Nortz v. United States, 294 U. S. 317; Perry v. United States, 294 U. S. 330; and British-American Tobacco Co., Limited, v. United States, 104 Fed. (2d) 652; 105 Fed. (2d) 935. It seems clear to us that plaintiff's claim for payment for the gold in question of a sum in addition to $20.67 plus per fine ounce already received is not an ordinary claim for just compensation, but is in substance a claim that a limited privilege, voluntarily granted by the President by Executive order of August 29, 1933, permitting miners of gold to sell their bullion at a price equivalent to the world market price of gold, was not conferred at an earlier date and did not extend to the gold bars of plaintiff involved in this proceeding. Of this fact we think plaintiff has no legal right to complain. We think plaintiff was in no better position than any other holder of 15 Opinion of the Court gold or gold bullion within the meaning of the act of March 9, 1933, and Executive order of April 5, 1933, and the Treasury regulations merely because its gold bullion was obtained as the result of its mining operations rather than by purchase or by some other mode of acquisition. The record conclusively shows that the term "gold bullion," as it has been consistently understood, interpreted, and applied over a period of many years prior to the events giving rise to the controversy presented in this case, included gold bars of the character and of the gold content as the bars numbered 1176-1212, inclusive, of the plaintiff, and there is nothing in the record which would justify the conclusion that the Congress in the act of March 9, 1933, supra, and the President in the Executive order of April 5, 1933, did not intend to include in the term "gold bullion" newly mined gold melted and cast into gold bars containing as much as 83 percent pure gold, as did the gold bars of the plaintiff. It is not denied that gold bullion bears a direct relationship to and is an integral part of the monetary system of the United States. It is the recognized basis of currency and credit, and the power of Congress to regulate the monetary system and to regulate gold coin includes the power to regulate gold bullion. The limit of this power is not to be measured by confining it only to gold bullion that is .999 fine, in the absence of an expression of a purpose to do so. From a consideration of the relationship which gold bullion bears to the monetary system of the United States and the incidental authority of Congress to legislate to preserve and protect that system, the authority to requisition gold bullion was specifically recognized in Nortz v. United States, supra, and British-American Tobacco Co., Limited, v. Federal Reserve Bank of New York, supra. In the Nortz case it was specifically held that the Congress had power to appropriate unto the government outstanding gold bullion, gold coins, and gold certificates, and that this power could not be successfully challenged. The act of March 9, 1933, supra, was enacted to meet the national emergency declared by the President's proclamation of March 6, 1933. Section 2 of this act amended section 5 (b) of the Trading with the Enemy Act of October |