Petitioner sued under § 9(a) of the Trading with the Enemy Act,
as amended, to recover property vested by the Alien Property
Custodian. He alleged that he is a German citizen who had lived
continuously in Hawaii from 1896 to 1938. In April, 1938, he took
his family to Germany for a vacation. After the outbreak of war, he
was unable to secure passage home before March, 1940, when his
reentry permit expired. When the United States entered the war, he
was detained involuntarily in Germany, first by the Germans and
later by the Russians, until July, 1949, when he returned to this
country. He had done nothing directly or indirectly to aid the war
effort of the enemy.
Held:
1. Petitioner was not "resident within" Germany within the
meaning of the definition of "enemy" in § 2 and, therefore, was
"not an enemy" within the meaning of § 9(a), authorizing a suit by
any person "not an enemy" to recover property vested by the Alien
Property Custodian. Pp.
342 U. S.
311-312.
2. Properly construed in the light of its purposes, its
legislative history, and the constitutional issues which otherwise
would be raised, § 39, forbidding the return of property of any
"national" of Germany or Japan vested in the Government at any time
after December 17, 1941, applies only to those German and Japanese
nationals otherwise ineligible to bring suit under § 9(a). Pp.
342 U. S.
312-320.
The District Court dismissed petitioner's suit under § 9(a) of
the Trading with the Enemy Act, as amended, 50 U.S.C.App. § 1
et seq., to recover property vested by the Alien Property
Custodian. 89 F. Supp. 344. The Court of Appeals affirmed. 88
U.S.App.D.C. 383, 191 F.2d 639. This Court granted certiorari. 342
U.S. 810.
Reversed, p.
342 U. S.
320.
Page 342 U. S. 309
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This is a case brought under § 9(a) of the Trading with the
Enemy Act, 40 Stat. 411, as amended, [
Footnote 1] to recover property vested by the Alien
Property Custodian. The District Court granted the Government's
motion to dismiss, holding that plaintiff,
Page 342 U. S. 310
while not "resident within" Germany within the meaning of § 2 of
the Act, and thus "not an enemy" for the purposes of § 9(a), was
precluded from recovering by § 39 which provides that
"No property . . . of Germany, Japan, or any national of either
such country vested in . . . the Government . . . pursuant to the
provisions of this Act, shall be returned to former owners thereof.
. . ."
62 Stat. 1240, 1246, 50 U.S.C.App. (Supp. IV, 1946) § 39,
[
Footnote 2] 89 F. Supp. 344.
The Court of Appeals for the District of Columbia Circuit affirmed.
88 U.S.App.D.C. 383, 191 F.2d 639. We brought the case here for
clarification of the restrictions imposed by and the remedies open
under the Trading with the Enemy Act. 342 U.S. 810.
Accepting the allegations as true for the purpose of dealing
with the legal issues raised by the motions to dismiss, the
situation before us may be briefly stated. Guessefeldt, a German
citizen, lived continuously in
Page 342 U. S. 311
Hawaii from 1896 to 1938. In April of that year, he took his
family to Germany for a vacation. After the outbreak of war, he was
unable to secure passage home before March, 1940, when his reentry
permit expired. When the United States entered the war, he was
involuntarily detained in Germany, first by the Germans and after
1945 by the Russians, until July, 1949, when he returned to this
country. During that time, he did nothing directly or indirectly to
aid the war effort of the enemy.
The first question to be decided is whether the claimant was
"resident within" the territory of a nation with which this country
was at war within the meaning of §§ 2 and 9(a) of the Trading with
the Enemy Act. He was physically within the enemy's territory. He
contends, however, that the meaning conveyed by "resident within"
is something more than mere presence; at the least, a domiciliary
connotation, if not domicile, is implied.
Legislative history leaves the meaning shrouded. Some use of the
term "domicile" as the touchstone of enemy status is to be found in
the Congressional hearings and reports. [
Footnote 3] But on the floor, Representative Montague,
one of the managers of the bill, unequivocally stated under close
questioning that the statutory language was intended to cover much
more than those domiciled in enemy nations. Yet prisoners of war,
expeditionary forces and
Page 342 U. S. 312
"sojourners" were not, he said, intended to be included. 55
Cong.Rec. 4922. [
Footnote
4]
Guessefeldt retained his American domicile. Moreover, if
anything more than mere physical presence in enemy territory is
required, it would seem clear that he was not an "enemy" within the
meaning of § 2. His stay before the war, as a matter of choice, was
short. The circumstances negative any desire for a permanent or
long-term connection with Germany. He intended, and indeed
attempted, to leave there before this country entered the war.
Being there under physical constraint, he is almost literally
within the excepted class as authoritatively indicated by Mr.
Montague. To hold that "resident within" enemy territory implies
something more than mere physical presence and something less than
domicile is consistent with the emanations of Congressional purpose
manifested in the entire Act, and the relevant extrinsic light,
including the decisions of lower courts on this issue, which we
note without specifically approving any of them.
See McGrath v.
Zander, 85 U.S.App.D.C. 334, 177 F.2d 649;
Josephberg v.
Markham, 152 F.2d 644;
Stadtmuller v. Miller, 11 F.2d
732;
Vowinckel v. First Federal Trust Co., 10 F.2d 19;
Sarthou v. Clark, 78 F. Supp.
139.
Guessefeldt has the further obstacle of § 39 to clear before he
can succeed. Congress, in 1948, so the Government's
Page 342 U. S. 313
argument runs, adopted a "policy of nonreturn," [
Footnote 5] and prohibited the restoration of
vested property to a "national" of Germany. A citizen is a
national, and Guessefeldt is a German citizen. Thus, even though he
may, before the enactment of § 39, have been entitled to bring suit
as a nonenemy under § 9(a), that privilege has since been cut off.
To which Guessefeldt counters that § 39 must be construed
harmoniously with § 9(a); the term "national" in the new section
must accordingly be taken to mean only those German and Japanese
citizens who could not theretofore have enforced the return of
their property as of right. Section 39, in the context of its
legislative history and in the light of the scheme and background
of the statute, makes the Government's contention unpersuasive.
It is clear that the Custodian can lawfully vest under § 5 a
good deal more than he can hold against a § 9(a) action.
Central Union Trust Co. v. Garvan, 254 U.
S. 554;
Clark v. Uebersee Finanz-Korp.,
332 U. S. 480.
Thus Congress had to make provision for the disposal of two classes
of vested property. Nonenemy property, lawfully vested under § 5,
was recoverable in a suit against the Custodian. § 9(a);
see
Becker Steel Co. v. Cummings, 296 U. S.
74. The second class, property owned by "enemies" and
therefore not subject to recovery under § 9(a), was reserved f or
disposition "[a]fter the end of the war . . . as Congress shall
direct." 40 Stat. 411, 423, 50 U.S.C.App. § 12.
After both wars, Congress did adopt measures to dispose of this
property. The Treaty of Berlin, 42 Stat. 1939, 1940, at the end of
World War I, confirmed the possession of vested enemy property by
the United States.
Junkers v. Chemical Foundation, Inc.,
287 F. 597;
Lange v. Wingrave, 295 F. 565;
Klein v.
Palmer, 18 F.2d 932. For
Page 342 U. S. 314
present purposes, it does not matter whether this action was
taken simply to secure claims of American citizens against Germany
or was regarded as the rightful withholding of spoils of war. In
the Settlement of War Claims Act of 1928, 45 Stat. 254, 270, 50
U.S.C.App. §§ 9(b)(12), (13), (14), (16), 9(m), Congress provided
for the return to admittedly enemy owners of 80% of their vested
property.
See Cummings v. Deutsche Bank und
Disconto-Gesellschaft, 300 U. S. 115.
[
Footnote 6] Section 32 of the
Trading with the Enemy Act, 60 Stat. 50, as amended, 50 U.S.C.App.
(Supp. IV, 1946) § 32,
Page 342 U. S. 315
enacted after World War II, provided for administrative returns
of property to certain classes of "technical" enemies who were
ineligible to bring suit under § 9(a). Thus, if § 39 is treated as
dealing only with property not otherwise subject to recovery, the
consistency of the pattern of enactment is preserved. On the other
hand, if the significant language of the section is regarded as
requiring the retention of property which would otherwise be
recoverable in a suit under § 9(a), it would mark the first
departure from what appears to be a heretofore consistent
Congressional policy.
Section 39 was passed as part of a measure establishing a
commission on the problem of compensating American prisoners of
war, internees, and others who suffered personal injury or property
damage at the hands of World War II enemies. Congressional
attention was focused on the nature and extent of these claims and
methods of adjudicating them. The issues involved in § 39 were of
peripheral concern. Reading the legislative history in this light,
it lends support to the view that § 39 was conceived as dealing
with property not otherwise subject to return. Senate hearings
opened with detailed testimony analyzing the value of assets which
would be left after payments for administration and liquidation,
returns under § 32, and disbursements in satisfaction of judgments
in suits brought under § 9(a). Hearings before a Subcommittee of
the Senate Committee on the Judiciary on H.R. 4044, 80th Cong., 2d
Sess. 12-21.
See also id., at 44, and Hearings before the
House Committee on Interstate and Foreign Commerce on H.R. 873,
80th Cong., 1st Sess. 264. It seems clear that the legislation
looks to the disposition of this fund, and the conclusion is
reinforced by the provision of the section that
"The net proceeds remaining upon the completion of
administration, liquidation, and disposition pursuant to the
provisions of this Act of any such property or interest
Page 342 U. S. 316
therein shall be covered into the Treasury at the earliest
practicable date."
The tenor of the hearings demonstrates no purpose to change the
existing scope of § 9(a). The only reason a proviso to that effect
was not included in § 39 as passed seems to be an assumption --
unwarranted in the light of other evidence before the committees
discussed below -- that a national of any enemy nation had no
rights under § 9(a) in any case. [
Footnote 7] Indeed, the terms "enemy," "enemy alien,"
"enemy national," and "German or Japanese national" are used
interchangeably in the hearings, not only by committee members but
by witnesses from the Office of Alien Property, without regard to
precise shades of meaning in the context of the Trading with the
Enemy Act.
By § 39 Congress was manifesting its "firm resolve not to permit
the recurrence of events which after the close of World War I led
to the return of enemy property to their former owners." H.R.Rep.
No. 976, 80th Cong., 1st Sess. 2. Those events, as we have seen,
culminated in the Settlement of War Claims Act of 1928 permitting
enemies as defined in § 2 of the Trading with the Enemy
Page 342 U. S. 317
Act to recover 80% of their vested assets. The major controversy
on § 39 was whether this reversal of post-World War I policy was
justifiable as a matter of international law or appropriate as a
course of action for the United States. Opponents of the section
considered the "policy of nonreturn" as applied to admitted enemies
illegal, or at least unjust, confiscation of private property. To
this point -- and not to the issue before the Court in this case --
were directed the references in the reports, H.R.Rep. No. 976, 80th
Cong., 1st Sess. 2, and debate, 94 Cong.Rec. 550-551, on which the
Government relies.
On the other hand, both Senate and House committees had before
them testimony calling attention to the very problem now in issue.
Hearings before the House Committee on Interstate and Foreign
Commerce,
supra, at 265; Hearings before a Subcommittee of
the Senate Committee on the Judiciary,
supra, at 197, 254.
And one witness presented a draft substitute for the section,
complex to be sure, which would expressly have saved cases like
Guessefeldt's from the operation of the bill.
Id. at
233-236. This suggestion was not acted upon by the committee. Yet
taken as a whole, the testimony on this issue was meagre and
unimpressive. It was largely in written form, and therefore less
likely to have been seen by or to have had impact on the committee
members or to reflect their views. These considerations, taken
together with the peripheral character of the problem from the
committees' point of view, the consistent failure to appreciate the
technical significance of the term "enemy national" in the
framework of the Act, and the fact that the matters raised by this
testimony were not touched upon in floor debate -- all go far to
overcome any presumption that the claimant's situation was
considered by Congress and rejected.
Moreover, a decision for the Government would require us to
decide debatable constitutional questions. I
Page 342 U. S. 318
suits by United States citizens, § 9(a) has been construed, over
the Government's objection, to require repayment of just
compensation when the Custodian has liquidated the vested assets.
Becker Steel Co. v. Cummings, supra; Henkels v.
Sutherland, 271 U. S. 298;
see Central Union Trust Co. v. Garvan, supra, 254 U.S. at
254 U. S. 566;
Stoehr v. Wallace, 255 U. S. 239,
255 U. S. 245.
Such a construction, it is said, is necessary to preserve the Act
from constitutional doubt. It is clear, too, that friendly aliens
are protected by the Fifth Amendment requirement of just
compensation.
Russian Volunteer Fleet v. United States,
282 U. S. 481. The
question which remains is whether a citizen in Guessefeldt's
position of a nation with which this country is at war is deemed a
friendly alien. More broadly, is any national of an enemy country
within the reach of constitutional protection? The thrust of the
Government's argument is that § 39 bars any such claimant on the
mere showing of his citizenship.
Ex parte Kawato,
317 U. S. 69, holds
that, as a matter of common law as well as interpretation of the
Trading with the Enemy Act, a resident enemy national, even though
interned, must be permitted access to American courts. And
The Venus, 8
Cranch 253, seems to say that at common and international law, in
the absence of hostile acts, enemy status, at least for the purpose
of trade, follows location and not nationality.
Cf.
78 U. S. United
States, 11 Wall. 268,
78 U. S. 310-311.
On the other side is Mr. Justice (then Judge) Cardozo's careful
opinion in
Techt v. Hughes, 229 N.Y. 222, 128 N.E. 185,
holding that a national of an enemy country, wherever resident, is
an enemy alien, and that any mitigation of the rigors of that
status, as in the right to sue, is a matter of grace. He suggests,
however, that "enemy alien," for the purpose of trade with the
enemy, may be something different than for other purposes, but he
had, of course, no occasion to consider whether this difference
attained constitutional dimensions. In
Klein v.
Palmer,
Page 342 U. S. 319
supra, a suit by two resident German citizens, one
proclaimed a dangerous enemy alien during World War I, against the
Alien Property Custodian for damages and equitable relief, Judges
Hough, L. Hand and Mack held that "the government was under no
constitutional prohibition from confiscating the property of the
enemy's nationals, whether resident or nonresident."
Id.
at 934. It was the court's view that the class of nonenemies for
the purpose of § 2 of the Trading with the Enemy Act was broader
than the class entitled to just compensation under the Fifth
Amendment.
Certainly, the constitutional problem is not imaginary, and the
claim not frivolous which would have to be rejected to decide in
the Government's favor. Considering that confiscation is not easily
to be assumed, a construction that avoids it and is not barred by a
fair reading of the legislation is invited.
The concern of the Trading with the Enemy Act is with problems
at once complicated and far-reaching in their repercussions.
Instead of a carefully matured enactment, the legislation was a
makeshift patchwork. Such legislation strongly counsels against
literalness of application. It favors a wise latitude of
construction in enforcing its purposes.
Cf. Clark v. Uebersee
Finanz-Korp., 332 U. S. 480;
Markham v. Cabell, 326 U. S. 404;
Silesian-American Corp. v. Clark, 332 U.
S. 469. [
Footnote
8]
Page 342 U. S. 320
None of the considerations we have canvassed standing alone is
conclusive in favor of the claimant. Perhaps none, by itself, would
justify a decision in his favor. The cumulative effect, however,
places such a decision well within the bounds of reasonable
construction. We have said enough to show that the question is not
free from doubt. On the balance, however, we think § 39 is properly
construed as applying only to those German and Japanese nationals
otherwise ineligible to bring suit under § 9(a).
The judgment below is
Reversed.
MR. JUSTICE CLARK took no part in the consideration or decision
of this case.
[
Footnote 1]
"SEC. 2. The word 'enemy,' as used herein, shall be deemed to
mean, for the purposes of such trading and of this Act --"
"(a) Any individual, partnership, or other body of individuals,
of any nationality, resident within the territory (including that
occupied by the military and naval forces) of any nation with which
the United States is at war, or resident outside the United States
and doing business within such territory, and any corporation
incorporated within such territory of any nation with which the
United States is at war or incorporated within any country other
than the United States and doing business within such
territory."
"SEC. 9. (a) Any person not an enemy . . . claiming and any
interest, right, or title in any money or other property which may
have been conveyed, transferred, assigned, delivered, or paid to
the Alien Property Custodian or seized by him hereunder and held by
him or by the Treasurer of the United States, . . . may file with
the said custodian a notice of his claim under oath and in such
form and containing such particulars as the said custodian shall
require; . . . [S]aid claimant may institute a suit in equity in
the Supreme Court of the District of Columbia or in the district
court of the United States for the district in which such claimant
resides, or, if a corporation, where it has its principal place of
business (to which suit the Alien Property Custodian or the
Treasurer of the United States, as the case may be, shall be made a
party defendant), to establish the interest, right, title, or debt
so claimed, and if so established the court shall order the
payment, conveyance, transfer, assignment, or delivery to said
claimant of the money or other property so held . . . or the
interest therein to which the court shall determine said claimant
is entitled."
50 U.S.C.Appendix, §§ 2, 2(a), 9(a).
[
Footnote 2]
"SEC. 39. No property or interest therein of Germany, Japan, or
any national of either such country vested in or transferred to any
officer or agency of the Government at any time after December 17,
1941, pursuant to the provisions of this Act, shall be returned to
former owners thereof or their successors in interest, and the
United States shall not pay compensation for any such property or
interest therein. The net proceeds remaining upon the completion of
administration, liquidation, and disposition pursuant to the
provisions of this Act of any such property or interest therein
shall be covered into the Treasury at the earliest practicable
date. Nothing in this section shall be construed to repeal or
otherwise affect the operation of the provisions of section 32 of
this Act or of the Philippine Property Act of 1946."
[
Footnote 3]
See Statement of Hon. Robert Lansing, Secretary of
State, Hearings before the House Committee on Interstate and
Foreign Commerce on H.R. 4704, 65th Cong., 1st Sess. 3, 4.
But
see id. at 9. Assistant Attorney General Charles Warren,
principal draftsman of the bill, testified that it had no
application to Germans "domiciled" in this country.
Id. at
34. And the House Report speaks of enemy status as being
determined
"not so much . . . by the nationality or allegiance of the
individual, . . . as by his . . . commercial domicile or residence
in enemy territory. The enemy domiciled or residing in the United
States is not included. . . ."
H.R.Rep.No.85, 65th Cong., 1st Sess. 2.
[
Footnote 4]
The validity of this construction is additionally suggested by
the explanation in the Senate report of the parallel term of § 2,
"doing business within such territory." According to the report,
that meant "having a branch or agency actively conducting business
within that country." S.Rep.No.111, 65th Cong., 1st Sess. 4. That
is to say, not "domiciled" in enemy territory by American
corporation law standards, but having a substantial, not casual or
transitory connection with it.
See also Hearings before a
Subcommittee of the Senate Committee on Commerce on H.R.4960, 65th
Cong., 1st Sess. 136-137.
[
Footnote 5]
H.R.Rep.No.976, 80th Cong., 1st Sess. 2.
[
Footnote 6]
The resolution of July 2, 1921, terminating the state of war
with Germany, provided that
"All property of the Imperial German Government . . . and of all
German nationals which . . . has . . . come into the possession or
under control of . . . the United States . . . shall be retained .
. . and no disposition thereof made, except as shall have been
heretofore or specifically hereafter shall be provided by law."
42 Stat. 105, 106. By the Treaty of Versailles, art. 297(d),
"all the exceptional war measures, or measures of transfer . . .
shall be considered as final and binding upon all persons." In art.
297(i), Germany undertook "to compensate her nationals in respect
of the sale or retention of their property, rights or interests in
Allied or Associated States." The Treaty of Berlin, 42 Stat. 1939,
1940, incorporated these provisions of the Versailles Treaty,
together with appendices defining "exceptional war measures" and
cutting off the right of suit by German nationals against American
officials on account of wartime action. An agreement of August 10,
1922, 42 Stat. 2200, established a Mixed Claims Commission to
adjudicate claims of American nationals against Germany. Provisions
for the return of vested property were made by successive
amendments to § 9. Finally, in the Settlement of War Claims Act, 45
Stat. 254, 270, Congress provided for the return of 80% of their
vested property to German enemies who would waive their claims to
the remaining 20%. Germany in a debt funding agreement of June 23,
1930, deposited bonds with the United States, payments on which
were to be applied to the settlement of awards of the Mixed Claims
Commission. When Germany defaulted on these payments, Congress, by
Public Resolution No. 53 of June 27, 1934, 48 Stat. 1267, suspended
all deliveries of property under the Settlement of War Claims Act
to German nationals until Germany should clear up the arrears.
[
Footnote 7]
As it passed the House, the bill contained a provision
suspending the payment out of vested assets of debts owed by
enemies to citizens. In the Senate hearings, Representative
Beckworth, who had sponsored that provision, urged the Senate to go
further and suspend the payment of so-called "title claims" as
well. He presented a draft amendment for the Senate committee's
consideration which provided that "no property . . . shall be
returned to former owners . . . except as directed by a court under
§ 9(a) of the act." This was to be an addition to the provision
which became § 39. Hearings before a Subcommittee of the Senate
Committee on the Judiciary on H.R. 4044, 80th Cong., 2d Sess. 124.
Both of these provisions were omitted from the bill reported by the
Senate. Although this bit of legislative history reveals a certain
amount of confusion about the operation of the Act, it is tolerably
clear from it that the operation of § 9(a) was not intended to be
affected by the legislation.
[
Footnote 8]
Other than those here for review, six district court cases have
involved construction of § 39. The Government contends that five of
these have accepted the position it urges in this case.
Schill
v. McGrath, 89 F. Supp. 339;
Lippmann v. McGrath, 94
F. Supp. 1016;
Bellman v. Clark, Civ.No.47-229 (S.D.N.Y.
Nov. 8, 1948);
Mittler v. McGrath, 102 F. Supp. 1007;
Janner v. McGrath, Civ.No.3685-49, D.C.D.C.Mar. 31, 1950.
Even if this were true, it would present no such settled line of
adjudication as to give pause to this Court in upsetting it. But at
least three of these cases present no conflict with a decision in
favor of the claimant here. In
Mittler, Janner, and
Lippmann, plaintiffs are enemies within § 2, thus
ineligible under § 9(a), and, because they are also citizens of
Germany, must be barred by § 39 whatever the meaning ascribed to
the term "national" in that section. The same is possibly true of
Schill, since the plaintiff there was interned as a
dangerous enemy alien during the war. It might also be added that,
in
McGrath v. Zander, supra, decided after the enactment
of § 39, the Government apparently made no contention that the
section would bar the suit, although on the Government's theory
that result would clearly follow. Thus, analysis of the cases shows
no such near unanimity in its favor as the Government contends.
MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE REED and MR.
JUSTICE MINTON join, dissenting.
I dissent because I would read Section 39 as it is written. That
Section plainly forbids return of vested property to "any national"
of Germany or Japan. [
Footnote 2/1]
Petitioner is a German citizen, and the Court itself concedes
Page 342 U. S. 321
that a German citizen is a German national. (Op. p.
342 U. S.
320.) Yet the Court permits return of property to
petitioner, limiting the application of Section 39 to some
nationals, namely those nationals who are also "enemies" as the
term is defined in Section 2(a) of the Trading with the Enemy
Act.
The term "national" has also been given legislative definition.
"National" is defined as including "a subject, citizen or resident
of a foreign country" in Executive Order No. 8389, [
Footnote 2/2] a regulation "approved, ratified, and
confirmed" by Congress in 1941. [
Footnote 2/3] The Court applies Section 39 by reading
out the term "national" and inserting the term "enemy" as defined
in Section 2(a). Since it is apparent on the face of the statute
that Congress in no wise chose to assimilate these two clearly
defined terms, the Court should not.
Just the other day, we held that "[w]e are not free, under the
guise of construction, to amend [a] statute" by reading "carefully
distinguished and separately defined words to mean the same thing."
Pillsbury v. United Engineering Co., 342 U.
S. 197,
342 U. S.
199-200. In departing from that standard in this case,
the Court rewrites Section 39 so that the Trading with the Enemy
Act of 1917, as amended, will conform more closely to its own
notions of statutory symmetry. Condemning that Act as
Page 342 U. S. 322
a "makeshift patchwork" does not justify a failure to read the
1948 addition of Section 39 as it was written by Congress.
Statutory revision by this Court is not consistent with our
judicial function of enforcing statutory law as written by the
legislature.
In my view, this case should be decided on the basis of the
legislatively defined language of Section 39. But the Court has
broadened the inquiry. Even on the Court's own basis, the result in
this case cannot be squared with the history of the Trading with
the Enemy Act, the legislative background of Section 39, or the
scope of Congress' war power over enemy property.
At the outset, it should be clearly understood that, when
petitioner's property was vested, he was an alien enemy in every
ordinary sense of that term. So long as his citizenship was German,
he became an enemy upon the declaration of war with Germany,
wherever his residence and whatever his personal sentiments. This
Court has so held throughout its history. [
Footnote 2/4] The Court today acknowledges that
Techt v. Hughes, 229 N.Y. 222, 128 N.E. 185, so held after
an exhaustive review of the authorities. It should be added that
this Court recently adopted the rationale of
Techt v. Hughes,
supra, in
Johnson v. Eisentrager, 339 U.
S. 763,
339 U. S.
771-773. Nor need we look only to judicial definition of
petitioner's status. Congress has defined "alien enemies" as
including "all natives, citizens, denizens, or subjects of the
hostile nation or government." [
Footnote 2/5] As we so recently said, the classification
between friend and enemy based upon citizenship,
Page 342 U. S. 323
if ever "doctrinaire," has now been "validated by the
actualities of modern total warfare."
Johnson v. Eisentrager,
supra, at
339 U. S.
772.
When, in 1917, Congress defined the term "enemy" solely "for the
purposes of" the Trading with the Enemy Act, it was aware that such
status was ordinarily determined by "nationality or allegiance of
the individual," rather than by "domicile or residence." [
Footnote 2/6] However, at that time,
Congress chose to limit the definition of "enemy" to include only
those persons "resident within" enemy territory -- a definition
which does not include petitioner on the pleadings in this case.
Section 2(a) of the Trading with the Enemy Act. This represented a
deliberate "relaxation" and "modification" of Congress' power over
enemy property. [
Footnote 2/7] This
policy of modification was followed throughout the World War I
alien property program, culminating in the Settlement of War Claims
Act of 1928, which authorized return of 80% of seized property to
its former owners. [
Footnote
2/8]
World War II legislation over alien property represented a
complete reversal of the soft policy of World War I. In 1941,
Congress extended the power of seizure and vesting to all property
of "any foreign country or national thereof" in exercising its war
power "to affirmatively compel the use and application of foreign
property
Page 342 U. S. 324
in a manner consistent with the interest of the United States."
[
Footnote 2/9] In 1946, Congress
added Section 32 to the Trading with the Enemy Act authorizing
administrative return of vested property subject to certain
conditions, one of which prevented administrative return to a
"citizen or subject of [an enemy] nation" who was "present . . . in
the territory of such nation." [
Footnote 2/10] Finally, in the War Claims Act of 1948,
Congress added Section 39 to the Trading with the Enemy Act,
thereby expressing its "firm resolve not to permit the recurrence"
of the World War I policy of returning enemy property. [
Footnote 2/11] The House Committee on
Interstate and Foreign Commerce, in reporting favorably upon the
bill, stated:
"The policy of nonreturn and noncompensation is a sound public
policy which should be enacted into law. It does not violate any
concepts of international law or international morality. No
essential difference exists between private property and public
property in the case of Germany and Japan. For several years before
World War II while Germany and Japan were preparing to make war
upon the United States, property owned in the United States by the
citizens of both of these countries was subject to rigid control of
their respective governments. While the fiction of private
ownership was retained, actually property of German and Japanese
nationals in the United States was widely used to accomplish the
national objectives of those countries."
"The position of Germany and Japan (with respect to war claims
against these countries) is somewhat
Page 342 U. S. 325
analogous to that of a bankrupt against whom claims are apt to
be filed in an amount greatly in excess of the bankrupt's assets.
The legitimate claims of the United States alone, on account of the
expense incurred in fighting World War II, will most likely exceed
many times the assets available for payment even over a
considerable period of years. Under these circumstances, it is
therefore not only expedient, but just and fair, for the United
States to marshal all Japanese and German assets which are
available in this country. [
Footnote
2/12]"
Under this reversal of World War I policy, the property of
German nationals, including petitioner's, was to be retained to
satisfy war claims arising out of German aggression. The policy of
nonreturn of vested property to German nationals restricts the
scope of Section 9(a) as to returns to German nationals such as
petitioner who are not "enemies" as defined in Section 2(a). The
primary purpose of Section 9(a) -- to provide for judicial return
of property mistakenly seized from American citizens or nationals
of friendly countries -- is preserved. [
Footnote 2/13] Such an interpretation of Section 39,
reading the word "national" as meaning "national," and not "enemy,"
is far more harmonious with the entire Act, and particularly the
World War II legislation on alien property, [
Footnote 2/14] than the Court's reading of the
statute.
Page 342 U. S. 326
Looking to the legislative history of Section 39 itself, the
Court notes that congressional attention was focused on the problem
of compensating prisoners of war, internees, and others injured by
our World War II enemies. With the claims of the victims of
aggression pressed upon it, it is not surprising that, when
Congress balanced those claims against the rights of enemy
nationals to property lawfully vested by the Alien Property
Custodian, it prohibited return of property to enemy "nationals,"
and not merely to "enemies" as restrictively defined in Section
2(a) of the Trading with the Enemy Act of 1917. It cannot be fairly
suggested that congressional use of the term "national" was
inadvertent. Objections to the restriction on recovery of property
under Section 9(a) resulting from the use of the term "national"
instead of "enemy" in Section 39 were pressed upon Congress in a
written statement and in oral testimony before a congressional
committee. [
Footnote 2/15] A
witness offered a proposed amendment to Section 39 that would have
limited its application to certain described enemy nationals.
[
Footnote 2/16] Even
Page 342 U. S. 327
this amendment would not have saved petitioner's claim. It would
not have substituted the term "enemy" as narrowly defined in
Section 2(a) of the Act, and hence would not have limited the
operation of Section 39 as drastically as the Court does today.
The Court closes with the statement that its construction of
Section 39 avoids a constitutional problem which, it says, "is not
imaginary." As discussed above, it is settled that petitioner is an
alien enemy in every sense of the word but the purposely
restrictive definition of Section 2(a) of the Trading with the
Enemy Act. "There is no constitutional prohibition against
confiscation of enemy properties."
United States v. Chemical
Foundation, Inc., 272 U. S. 1,
272 U. S. 11, and
cases cited therein. The suggestion that the relaxed legislative
definition of "enemy" in 1917 could limit the constitutional war
power of Congress over enemy property finds no support in decisions
of this Court. [
Footnote
2/17]
Page 342 U. S. 328
Petitioner, a German citizen present in Germany during the war,
is certainly as much an enemy alien as was Ludecke, a German
citizen lawfully resident in this country during the war. We found
no constitutional barrier to Ludecke's summary removal without
judicial scrutiny under the Enemy Alien Act of 1798.
Ludecke v.
Watkins, 335 U. S. 160.
That opinion relied upon an excerpt from a paragraph by Chief
Justice Marshall in
Brown v. United
States, 8 Cranch 110,
12 U. S. 126, a
case dealing with confiscation of property. 335 U.S. at
335 U. S. 164.
The full paragraph reads as follows:
"War gives an equal right over persons and property, and if its
declaration is not considered as prescribing a law respecting the
person of an enemy found in our country, neither does it prescribe
a law for his property. The act concerning alien enemies, which
confers on the president very great discretionary powers respecting
their persons, affords a strong implication that he did not possess
those powers by virtue of the declaration of war."
Any doubts as to Congress' "equal right over persons and
property" of enemy aliens should have vanished with the
Ludecke decision. The Just Compensation Clause, like the
Due Process Clause, is found in the Bill of Rights. As we said in
our
Ludecke decision, "it would savor of doctrinaire
audacity now to find the statute offensive to some emanation of the
Bill of Rights." 335 U.S. at
335 U. S. 171.
In addition to what was said in
Ludecke, the admonition of
Chief Justice Marshall in
Brown v. United States, supra,
is appropriate in this case:
"Respecting the power of government no doubt is entertained.
That war gives to the sovereign full right to take the persons and
confiscate the property of the enemy wherever found, is conceded.
The mitigations of this rigid rule, which the humane and
Page 342 U. S. 329
wise policy of modern times has introduced into practice, will
more or less affect the exercise of this right, but cannot impair
the right itself. That remains undiminished, and when the sovereign
authority shall chuse to bring it into operation, the judicial
department must give effect to its will. But until that will shall
be expressed, no power of condemnation can exist in the Court."
8 Cranch at
12 U. S.
122-123. The will of Congress having been expressed in
unmistakable terms in Section 39, I would enforce, not frustrate,
the legislative command.
[
Footnote 2/1]
"No property or interest therein of Germany, Japan, or
any
national of either such country vested in or transferred to
any officer or agency of the Government at any time after December
17, 1941, pursuant to the provisions of this Act, shall be returned
to former owners thereof or their successors in interest, and the
United States shall not pay compensation for any such property or
interest therein. The net proceeds remaining upon the completion of
administration, liquidation, and disposition pursuant to the
provisions of this Act of any such property or interest therein
shall be covered into the Treasury at the earliest practicable
date. Nothing in this section shall be construed to repeal or
otherwise affect the operation of the provisions of section 32 of
this Act or of the Philippine Property Act of 1946."
(Emphasis supplied.) 62 Stat. 1240, 1246 (1948), 50 U.S.C.App.
(Supp. IV) § 39.
[
Footnote 2/2]
§ 5(E)(i), 6 Fed.Reg. 2897, 2898 (1941).
[
Footnote 2/3]
55 Stat. 838, 840 (1941).
[
Footnote 2/4]
The Rapid, 8
Cranch 155,
12 U. S. 161;
White v.
Burnley, 20 How. 235,
61 U. S. 249;
The Venice, 2
Wall. 258,
69 U. S. 274;
The Benito Estenger, 176 U. S. 568,
176 U. S. 571;
Herrera v. United States, 222 U.
S. 558,
222 U. S.
569.
[
Footnote 2/5]
Alien Enemy Act of 1798, 1 Stat. 577, now 50 U.S.C. § 21. A
similar definition of "alien enemies" had also been used in the
naturalization laws. 2 Stat. 153, 154 (1802), R.S. § 2171. In World
War I, Congress specifically exempted "alien enemies" from the
draft, a context in which the term "alien enemy" would be
meaningless if it did not include nationals of enemy nations
residing in this country. 40 Stat. 76-78, 885, 955 (1917-1918).
[
Footnote 2/6]
H.R.Rep.No.85, 65th Cong., 1st Sess. 2 (1917).
[
Footnote 2/7]
Ibid.; S.Rep.No.111, 65th Cong., 1st Sess. 2 (1917); 55
Cong.Rec. 4842 (1917).
See Ex parte Kawato, 317 U. S.
69,
317 U. S.
76-77.
[
Footnote 2/8]
45 Stat. 254, 270-274 (1928), 50 U.S.C.App. §§ 9(b)(12)-(14) and
(16), 9(m). Returns of German property were postponed in 1934 when
it appeared that Germany was in default in the payment of war
claims. 48 Stat. 1267 (1934).
[
Footnote 2/9]
55 Stat. 838, 839 (1941), 50 U.S.C.App. § 5(b); S.Rep.No.911,
77th Cong., 1st Sess. 2 (1941).
See Clark v. Uebersee
Finanz-Korp., 332 U. S. 480.
[
Footnote 2/10]
60 Stat. 50 (1946), 50 U.S.C.App. § 32(a)(2)(D).
[
Footnote 2/11]
H.R.Rep.No.976, 80th Cong., 1st Sess. 2 (1947).
[
Footnote 2/12]
Id. at 2-3.
[
Footnote 2/13]
Section 9(a) was originally designed to protect American
citizens, S.Rep.No.111, 65th Cong., 1st Sess. 8 (1917), and
apparently the bulk of the claims filed under § 9(a) are those of
American citizens. Hearings before Senate Committee on the
Judiciary on H.R. 4044, 80th Cong., 2d Sess. 44 (1948).
[
Footnote 2/14]
1946 patent legislation likewise conforms to this pattern. In
1921, Congress barred claims based upon World War I use of patent
rights of an "alien enemy." 41 Stat. 1313, 1314, 35 U.S.C. § 86. In
1946, Congress barred claims for patent infringement during World
War II brought by a "national" of an enemy country. 60 Stat. 940,
944, 35 U.S.C. § 111. The failure to use the term "enemy" was
deliberate. The next section of the 1946 Act refers to "rights of
any enemy . . . as defined by the Trading With the Enemy Act. . .
." 60 Stat. 940, 944, 35 U.S.C. § 112. And the bill as drafted in
the House Committee on Patents, H.R.Rep.No. 1498, 79th Cong., 2d
Sess. (1946), used the term "national" as used in proposed bill
H.R. 2111 (§ 9), rejecting the term "alien enemy" as used in the
1921 legislation and in proposed bill H.R. 4079 (§ 10). This was
done after the difference in meaning of the term was called to the
attention of the Committee by the Office of Alien Property
Custodian. Hearings before the House Committee on Patents on H.R.
2111 and H.R. 4079, 79th Cong., 1st Sess. 105 (1945).
[
Footnote 2/15]
Hearings before the Senate Committee on the Judiciary on H.R.
4044, 80th Cong., 2d Sess. 197-198, 233-234 (1948).
See also
id. at 254-255, and 94 Cong.Rec. 551 (1948).
[
Footnote 2/16]
Id. at 235.
[
Footnote 2/17]
Ex parte Kawato, 317 U. S. 69, in
holding that an enemy alien's right of access to federal courts was
not barred by common law or statute, did not touch upon the
constitutional power of Congress over enemy property. The extension
of that power to include property of an American citizen resident
in an enemy country,
The Venus, 8
Cranch 253, hardly supports a restriction of that power in case of
petitioner, an enemy citizen present in an enemy country.
In
Silesian-American Corp. v. Clark, 332 U.
S. 469,
332 U. S. 475,
the Court stated:
"There is no doubt but that, under the war power [Art. I, § 8,
cl. 11], as heretofore interpreted by this Court, the United
States, acting under a statute, may vest in itself the property of
a
national of an enemy nation. Unquestionably, to wage war
successfully, the United States may confiscate enemy property.
United States v. Chemical Foundation, 272 U. S. 1,
272 U. S. 11."
(Emphasis added.) In discussing the requirement that just
compensation be paid for seizure of property of "friendly aliens,"
the Court had obvious reference to the nationals of friendly
nations. 332 U.S.
332 U. S.
475-476,
332 U. S.
479-480.