Untitled Texas Attorney General Opinion ( 1947 )

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R-72
THEA NERAL
February 17, 1947
Honorable Maureen Moore Opinion No. V-30
Commissioner, Bureau of
Labor Stntistios Re: Inasmuch as the President
Austin, Texas has by proclamation de-
clared an end of hostill-
ties, does that also mean
that the state of nation-
al emergency has ceased
to exist?
Dear Mrs. Moore:
Your request for our opinion on the above oap-
tioned matter has been received by this department. We
quote from your letter as follows:
wSbction 6 of the Nine, Fifty-four Hour Law,
enacted by the 40th Legislature, authorizes the
Labor Commissioner to grant certain exemptions from
the Nine, Fifty-four Hour Law ‘in time of war and/
or when the President of the United States pro-
claims a state of national emergency to exist.’
“Inasmuch as the President has by proolama-
tion declared an end of hostilities, d~oesthat al-
so mean that the state of national emergency has
ceased to exist?”
Section 6 of the Nine, Fifty-four Hour Law,
referred to in your letter, sets forth certain excep-
tions during war or national emergencies. Section 9 0P
this law deals with the authority of the Commissioner
of Labor Statistics to make an order granting an exemp-
tion in time of war under certain oonditions.
We are confining our opinion to the meaning
of “in time of war” and to your question of whether or
not the state oP national emergency has ceased to exist,
inasmuch as the President has by proclamation declared
an end of hostilities.
Title 38, Chapter 12, Sec. 704, U. S. C. A.,
provides in part as r’ollows:
Hon. Maureen Moore, page 2 (V-30)
"The president shall prescribe by re ulation
(subject to the provisions of section 7017e) of
this title) the date of the beginning and of the
termination of the period in each war subsequent
to the Civil War, includiq the B,oxerRebellion
and the Philippine Insurrection, . . en
As stated to you in opinion MO. O-7360, ap-
proved October 25, 1946, this department has held in
several opinions that a war is not concluded in the
legal sense until some formal action by a competent
authority terminating the war and re-establishing
peace is had. The 77th Congress of the United States,
by joint resolution, formally declared a state of war
between the United,States and certain foreign govern-
ments.
On May 27, 1941, by proclamation 2487, 1 CFR,
cum. supp., 2.1, the President prdclaimed a state of
unlimited national emergency to exist. To date this
proclamation has not been revoked.
In Vol. 41, Words and Phrases, the following
definition of "Time of War" appears:
"*Time of War' continues Prom the date of the
declaration of war by Congress until some formal
proclamation of peace by an authority competent to
proclaim it." Ex parte Givins, D. C. N. D., Ga.,
262 F. 702, 705.
Our research discloses that neither Congress
nor the President has formally declared a terLmination
of the War referred to above. On December 31, 1946,
the President of the United States issued Proclamation
2714,.entitled "Cessation of Hostilities of Wo~rldWar 11,"
The proclamation is published in Vol. 12, No. 1, of the
Federal Register dated January 1, 1947, a portion of
which is quoted:
"Although a state of war still exists, it is
at this time possible to declare, and I find it
to be in the public interest to declare, that
hostilities have terminated." (Emphasis supplied)
"Now, therefore, I, Harry S. Truman, Presi-
dent of the United States of America, do hereby
proclaim the cessation of hostilities of World
War II, effective 12 o!clock noon, December 31,
1946."
. .
.’
Hon. Maureen Moore, page 3 (V-30)
In the case of Ribas y Hijo v. United States,
decided May 16, 1904, 194 U.S. 315, 24 S. Ct. 727, 48 L.
Ed. 994, Mr. Justice Harlan, in duscussing the case at
bar, said:
“It is none the less a case sounding in tort
because the claim is in form for the use of the
vessel after actual hostilities were suspended by
the protocol of August 12th, 1898. A state of war
did not, in law, oease until the ratification in
April 1899, of the treaty of peace. ‘A truce or
suspension of arms ,’ says Kent, *does not terminate
the war, but ,it is one of the commercia bell1 which
suspends its op erations. . . . At the expiration
of a truce, hostilities may recommence without any
fresh declaration of war.’ 1 Kent, Corn.159, 161.”
In the case of Citizens Protecti,veLeague et
al. v. Clark, Attorney General of U. S., and Reimann v.
Same, decided May 2, 1946, by the United States Court
of Appeals, District of Columbia, 155 F. R. (2d) 290,
Associate Justice Prettyman said:
11. . . No peace treaty has yet been signed
with Germany, and a state cf war has not been ter-
minated by an Act of Congress or by executive
proclamation. Cases involving the termination of
other wars dispose of Appellants’ point. It is
not for the Court to determine the end of a war
declared by the Congress.”
It is our opinion, therefore, on the basis of
the authorities and laws,hereinabove cited, that a “Time ’
of War” and national emergency still exist, even though
the President has proclaimed a cessation of hostilities.
There is a Pundamental difference between the
“end of hostilities” and the “end of a war.” The
President’s Proclamation of December 31, 1946,
declares only cessation of hostilities of World
War II and recognizes that “a state OP war” still
exists. Such state of war can be terminated only
by Congress or Presidential Proclamation pursuant
to authority of congress, which has not been don?
in relation to World War II or the national emer-
genoy proclaimed by President Roosevelt on May 27,
1941. Therefore, Section 6 of Senate Bill 129,
Hon. Maureen Moore, page 4 (V-30)
48th Legislature, setting forth certain exceptions
during war or national emergencies, and Section 9
of such Senate Bill authorizing the Commissioner
of Labor Statistics to make an order granting an
exemption in time of war under certain conditions,
are still in effect.
Yours very truly
ATTORNEY GENERAL OFTEXAS
Assistant
APPROVED FEB. 17, 1947
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ATTORNEY GERERAL
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