1. A proceeding for the seizure of enemy-held property, brought
by the Alien Property Custodian as delegate of the President,
under
Page 262 U. S. 52
the Trading with the Enemy Act, is a purely possessory one, in
which the custodian's determination that the property is so held is
conclusive. P.
262 U. S. 55.
Central Trust Co. v. Garvan, 254 U.
S. 554;
Stoehr v. Wallace, 255 U.
S. 239.
2. This is a constitutional exercise of the war power.
Id.
3. Where securities and moneys were held by a trustee in trust
for the joint account of a neutral and an alien enemy, to be
delivered and paid to either upon his sole demand, or to the
survivor, the Alien Property Custodian, proceeding under the
Trading with the Enemy Act, was entitled to a decree requiring the
trustee forthwith to transfer and deliver them all to him. P.
262 U. S.
54.
4. How long this act should remain in force in view of the
consequence of the War, is a legislative, not a judicial, question;
it was not terminated by the cessation of hostilities, by the joint
resolution declaring the state of war as between Germany and the
United States at an end, or by the President's proclamation of
peace. P.
262 U. S.
57.
281 F. 804 affirmed.
Appeal from a judgment of the circuit court of appeals affirming
a judgment of the district court which required the appellant to
convey, transfer, assign, deliver, and pay to the Alien Property
Custodian money and property held by it as a trustee.
MR. JUSTICE McKENNA delivered the opinion of the Court.
This is a suit under the Trading with the Enemy Act of October
6, 1917, and the amendment of November 4, 1918, 40 Stat. 411, 1020.
It was commenced by Francis P. Garvan as Alien Property Custodian.
He ceasing to be such, Thomas W. Miller was appointed his
successor, and substituted as petitioner.
Page 262 U. S. 53
Section 7 of the act provides that "[i]f the President shall so
require, any money or other property . . . held for the benefit of
an enemy," without license
"which the President after investigation shall determine . . .
is so held, shall be conveyed, transported, assigned, delivered, or
paid over to the alien property custodian."
The act has received exposition in
Central Trust Co. v.
Garvan, 254 U. S. 554, and
Stoehr v. Wallace, 255 U. S. 239, and
what it authorizes, and the conditions of the exercise of its
authorization determined.
Whatever problems the act presents those cases resolve. They
decide that the President's power may, under § 5
* of the act, be
delegated to and be exercised by the Custodian, and that the
determination of the Custodian is conclusive whether right or
wrong. And it may be exercised by forcible seizure of the property
or by suit and, if by suit, the suit is purely possessory and must
be yielded to, the right of any claimant being postponed to
subsequent assertion. And it was decided that the Custodian
acquires by suit
"nothing but the preliminary custody, such as would have been
gained by seizure. It attaches the property to make sure that it is
forthcoming if finally condemned and does no more."
In other words, and in comprehensive description, the act may be
denominated an exercise of governmental power in the emergency of
war and its procedure is accommodated to and made adequate to its
purpose, but securing as well, the assertion of opposing or
countervailing rights "by a suit in equity unembarrassed by the
President's executive determination," and if the claimant
"prevails" the property "is to be forthwith returned to him."
Page 262 U. S. 54
These are the determining generalities, and the circuit court of
appeals applying them, affirmed the decree of the district court,
adjudging, ordering and decreeing that the Commercial Trust Company
of New Jersey
"do forthwith convey, transfer, assign, deliver and pay to
Thomas W. Miller, as Alien Property Custodian, all of the money and
other property held by it under a certain trust agreement entered
into on January 30, 1913,"
between the company and Frederick Wesche and Helene J. von
Schierholz. A list of the moneys and other property was attached to
the decree.
It was recited in the trust agreement that the property which
consisted of bonds, was held "for the joint account of said
Frederick Wesche and Helene J. von Schierholz, and to collect the
interest to become due and payable on said bonds" for their joint
account, and to deliver the bonds from time to time as requested,
to either
"or to the survivor of them, it being understood that the said
bonds and the said interest money to be collected thereon are to be
held and collected and delivered or paid over to either the said
Frederick Wesche or to the said Helene J. von Schierholz, or to the
survivor of them."
In addition to the above, the following may be quoted from the
opinion of the circuit court of appeals:
"The Trust Company, in compliance with the provisions of the
act, made a report in December, 1917, that it held stocks, bonds,
mortgages, securities and money, of the value of about $600,000, in
trust, as to both principal and interest, for the joint account of
Frederick Wesche, of Paris, France, and Helene J. von Schierholz,
of Plaue, Germany, to be delivered and paid to either upon his or
her sole demand, or to the survivor."
"Upon investigation, the Alien Property Custodian determined
that Wesche was a neutral and von Schierholz an alien enemy not
holding a license from the President, and demanded surrender of the
securities. Because the
Page 262 U. S. 55
neutral had power upon his sole order to withdraw the whole
property, the Trust Company thought the Alien Property Custodian
had no right to it, and accordingly declined to yield possession.
Because the alien enemy had like power, upon her sole order, to
withdraw the whole property and acquire its possession, the Alien
Property Custodian thought he had a right to it, and accordingly
demanded it. The question is, which was right?"
The court answered the Custodian by virtue of his power under
the act and the efficacy of its exercise. This appeal disputes the
answer, and the contention is that the power was not exercised as
required, because the Custodian had not made an investigation which
justified in any way "any determination that the property was
all (italics counsel's) enemy property, or seizure of
all (italics counsel's) the property as such." In support
of the contention, it is urged, that no investigation was made of
any interest in the property other than that of Mrs. Schierholz --
none of Wesche, or none determined beyond what was shown by the
report of and letter of the Commercial Trust Company. And there is
also a contention that Wesche was not an enemy, and that he was
given no opportunity of review, and the act, as to him, was
"unconstitutional and without due process of law" and that,
consequently, surrender of the property by appellant (Trust
Company) under such circumstances to the Custodian, would have
afforded it no defense to the claim of Wesche for such part of the
property as belonged to him. The appellant accordingly did not
transfer or deliver the property as so demanded, and still retains
it under supersedeas bond.
The contentions are precluded by the cases which we have cited.
As there decided, the act was of peremptory quality and effect. The
suit was tantamount to physical seizure -- gave preliminary custody
such as seizure gives, and was intended to be not "less immediately
effective than a taking with a strong hand."
Page 262 U. S. 56
It is manifest, therefore, that the defenses upon which the
contentions are based were not available to either claimant of the
property. And, besides, under the act, it is to be remembered, the
Custodian succeeds to all the rights in the property to which the
enemy is entitled as completely as if by conveyance, transfer or
assignment, and the Trust Company in the present case held the
bonds for the joint account of Wesche and Mrs. Schierholz to be
paid over to either of them. She had the power, therefore, to
demand the bonds and receive them, and to this power the Custodian
determined he succeeded, and therefore exercised. What interest
Wesche had or has does not require decision, nor can the Trust
Company urge it, the act requiring submission to the determination
of the Custodian.
The case therefore has no complexity and we do not think it is
necessary to trace through the elaborate argument of counsel by
which he attempts to sustain the contention of the Trust Company.
Its foundation is, as said by the circuit court of appeals, that
the Trust Company
"claims the right to have property interests judicially
determined by a court of equity before a right to the possession of
the property can be asserted by the Alien Property Custodian."
The claim is precluded, we have seen, by
Central Union Trust
Co. v. Garvan and
Stoehr v. Wallace, supra. Those
cases decide, as we have also seen, that the suit is as of
peremptory character as "seizure
in pais" and is the
dictate and provision for the emergency of war, not to be defeated
or delayed by defenses, its only condition therefore being the
determination by the Alien Property Custodian that it was enemy
property. It was recognized that there is implication in the act
that mistakes may be made, but it, the act, assumes "that the
transfer will take place whether right or wrong." In other words,
it is the view of the opinions that the act provides for an
exercise of government, but also provides, as
Page 262 U. S. 57
we have said, redress for mistakes in its exercise by the
claimant of the property filing a claim under § 9, which, if not
yielded to, may be enforced by suit.
The next contention of the Trust Company is that, the act being
a provision for the emergency of war, is ceased with the cessation
of war, ceased with the joint resolution of Congress declaring the
state of war between Germany and the United States at an end, and
its approval by the President, July 2, 1921, and the proclamation
of peace by the President August 25, 1921. The contention, however,
encounters in opposition the view that the power which declared the
necessity is the power to declare its cessation and what the
cessation requires. The power is legislative. A court cannot
estimate the effects of a great war and pronounce their termination
at a particular moment of time, and that its consequences are so
far swallowed up that legislation addressed to its emergency had
ceased to have purpose or operation with the cessation of the
conflicts in the field. Many problems would yet remain for
consideration and solution, and such was the judgment of Congress,
for it reserved from its legislation the Trading with the Enemy Act
and amendments thereto, and provided that all property subject to
that act shall be retained by the United States "until such time as
the Imperial German government . . . shall have . . . made suitable
provision for the satisfaction of all claims." Section 5.
See
Kahn v. Anderson, 255 U. S. 1, and
Vincenti v. United States, 272 F. 114, and 256 U.S.
700.
Affirmed.
* By § 5, the President is in terms authorized to exercise "any"
of his powers "through such officer or officers as he shall
direct." By § 6, he is authorized to appoint and "prescribe the
duties of" the officer to be known as the Alien Property
Custodian.