Cities Service Co. v. McGrath

Supreme Court

Cities Service Co. v. McGrath

342 U.S. 330, 72 S. Ct. 334, 96 L. Ed. 2d 359, 96 L. Ed. 359, 1952 U.S. LEXIS 2484

CourtSupreme Court of the United States

DecidedJanuary 28, 1952

Docket305

StatusPublished

Cited by35 cases

This text of 342 U.S. 330 (Cities Service Co. v. McGrath) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cities Service Co. v. McGrath, 342 U.S. 330, 72 S. Ct. 334, 96 L. Ed. 2d 359, 96 L. Ed. 359, 1952 U.S. LEXIS 2484 (1952).

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Opinions

Mr. Justice Clark

delivered the opinion of the Court.

In this suit the Attorney General of the United States as successor to the Alien Property Custodian¹ seeks payment by petitioners of two 5% gold debentures of the face value of $1,000 each and payable to bearer. Petitioner Cities Service Company is obligor on the debentures and petitioner Chase National Bank of New York is the indenture trustee, v The obligations represented by these debentures had previously been vested, under provisions of the Trading with the Enemy Act,² upon a finding that the obligations were owned by a resident and national of Germany.³ Neither of the debentures is or ever has been in the possession of respondent. One of the debentures, although not maturing until 1969, was presented for redemption at Chase’s offices in New York City on January 5, 1950, subsequent to the date of the vesting order. A [332]*332legend was then typed on the debenture reciting the issuance of the vesting order and the claims of respondent thereunder. This debenture is at present in the possession of a brokerage house in New York City.⁴ The other debenture matured in 1950 but has never been presented for payment. Its whereabouts are unknown but it was last reported to be in Berlin in the hands of the Russians.⁵

The District Court granted summary judgment for petitioners on the ground that the Attorney General, in issuing the vesting order in question, had exceeded his authority to vest property “within the United States.”⁶ 93 F. Supp. 408. The Court felt that the obligations represented by the debentures were inseparable from the certificates themselves, which, insofar as is known, were' outside this country, at the time of vesting. The Court of Appeals reversed and directed summary judgment for respondent, holding that the Act authorized the seizure and enforcement of obligations evidenced by debentures [333]*333outside the country so' long as the obligor is within the. United States. 189 F. 2d 744. In reaching this result, the Court of Appeals indicated that petitioners would have a “claim against the Treasury for recoupment” in the event of a subsequent recovery against them in a foreign court by a bona fide holder of the debentures. Otherwise, the Court felt, the vesting order would take petitioners’ property in violation of the Fifth Amendment. Id., at 747-749. We granted certiorari, 342 U. S. 865.

We believe that the Trading with the Enemy Act grants the.authority necessary to vest obligations evidenced by domestic negotiable bearer debentures even though the debentures themselves are outside the United States. By § 7 .(c) of the Act, enacted during World War I, the President is given the. authority to seize all enemy property, “including . , . choses in action, and rights and claims of every character and description owing or belonging to ... an enemy . . . .” At the beginning of World. War II, Congress made an even broader grant of authority to the Executive through an amendment to § 5 (b), providing that “any property dr interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President . . . .” See Markham v. Cabell, 326 U. S. 404, 411 (1945); Silesian-American Corp. v. Clark, 332 U. S. 469, 479 (1947); Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 485-486 (1947). That the obligations represented by. negotiable bear.er debentures come within these broad terms is beyond question.

Petitioners urge, however, that the debentures themselves constitute the .debt, and since the debentures were located outside of the United States at the time of vesting, the debts did hot have a situs within the United States and therefore were not proper subjects of seizure. To apply this fiction here would not only provide a sanctuary for enemy investments and defeat the recovéry of American securities looted by conquering forces; it would also [334]*334restrict the exercise of the war powers of the United States. Congress did not so intend. The Custodian’s authority to reach a debenture or bonded indebtedness without seizure of the instrument itself is explicitly recognized by § 9 (n) of the Act, which provides that “[i]n the case of property consisting ... of bonded or other indebtedness , . ., evidenced ... by bonds or by other certificates of interest ... or indebtedness . . ., where the right, title, and interest in the property (but not the actual . . . bond or other certificate of interest or indebtedness) was, conveyed; transferred, assigned, delivered, or paid to the Alien Property Custodian, or seized by him . . .,” then the President may, in proper' cases, order return of 80% of the property.⁷ Moreover, in giving the Custodian this power to seize an interest represented by a bond or debenture without seizure of the actual instrument, Congress transgressed, no constitutional limitations on its jurisdiction. As the Court of Appeals pointed out, the obligor, Cities Service Company, is within the United States and the obligation of which the debenture is evidence can be effectively dealt with through the exercise of jurisdiction over that petitioner. See Standard Oil Co. v. New Jersey, 341 U. S. 428, 438-439 (1951).

A more serious question is whether application of the seizure provisions of the Act to petitioners will take their property in violation of the Fifth Amendment, unless they have á remedy against the United States in the event a foreign court holds them liable to a holder in due course [335]*335of the debentures. While petitioners concede that the Act discharges them from liability in any court in the United States,⁸ they contend that they have extensive properties over the world which subject them to foreign -suits from which the Act affords no certain protection. Petitioners readily admit that the court of the country in which suit is brought may apply the laws of the United States and recognize their prior payment to ttíe Attorney General as a complete defense; and that the holder, if qualified, might file a claim under the Act. Nevertheless, they insist, there remains gt least the possibility that they will be exposed to liability in a foreign court. While their defense to such litigation seems adequate and, final payment by them improbable, we agree that petitioners . might suffer judgment the payment of which would effect a double recovery against them. In that event, petitioners. will have the right to Recoup from the United Státes, for a, “taking” of their property within the meaning of the Fifth Amendment, “just coihpensatión” to the extent of their double liability.⁹ Such cause of action will accrue when, as, and if a foreign court forced petitioners to pay a holder in due course of the debentures. .' We, agree, with [336]*336the Court of Appeals that only with this assurance against double liability can it fairly be said that the present seizure is not itself an unconstitutional taking of petitioners’ property.

Affirmed.

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Mr. Justice Clark

delivered the opinion of the Court.

In this suit the Attorney General of the United States as successor to the Alien Property Custodian¹ seeks payment by petitioners of two 5% gold debentures of the face value of $1,000 each and payable to bearer. Petitioner Cities Service Company is obligor on the debentures and petitioner Chase National Bank of New York is the indenture trustee, v The obligations represented by these debentures had previously been vested, under provisions of the Trading with the Enemy Act,² upon a finding that the obligations were owned by a resident and national of Germany.³ Neither of the debentures is or ever has been in the possession of respondent. One of the debentures, although not maturing until 1969, was presented for redemption at Chase’s offices in New York City on January 5, 1950, subsequent to the date of the vesting order. A [332]*332legend was then typed on the debenture reciting the issuance of the vesting order and the claims of respondent thereunder. This debenture is at present in the possession of a brokerage house in New York City.⁴ The other debenture matured in 1950 but has never been presented for payment. Its whereabouts are unknown but it was last reported to be in Berlin in the hands of the Russians.⁵

The District Court granted summary judgment for petitioners on the ground that the Attorney General, in issuing the vesting order in question, had exceeded his authority to vest property “within the United States.”⁶ 93 F. Supp. 408. The Court felt that the obligations represented by the debentures were inseparable from the certificates themselves, which, insofar as is known, were' outside this country, at the time of vesting. The Court of Appeals reversed and directed summary judgment for respondent, holding that the Act authorized the seizure and enforcement of obligations evidenced by debentures [333]*333outside the country so' long as the obligor is within the. United States. 189 F. 2d 744. In reaching this result, the Court of Appeals indicated that petitioners would have a “claim against the Treasury for recoupment” in the event of a subsequent recovery against them in a foreign court by a bona fide holder of the debentures. Otherwise, the Court felt, the vesting order would take petitioners’ property in violation of the Fifth Amendment. Id., at 747-749. We granted certiorari, 342 U. S. 865.

We believe that the Trading with the Enemy Act grants the.authority necessary to vest obligations evidenced by domestic negotiable bearer debentures even though the debentures themselves are outside the United States. By § 7 .(c) of the Act, enacted during World War I, the President is given the. authority to seize all enemy property, “including . , . choses in action, and rights and claims of every character and description owing or belonging to ... an enemy . . . .” At the beginning of World. War II, Congress made an even broader grant of authority to the Executive through an amendment to § 5 (b), providing that “any property dr interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President . . . .” See Markham v. Cabell, 326 U. S. 404, 411 (1945); Silesian-American Corp. v. Clark, 332 U. S. 469, 479 (1947); Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 485-486 (1947). That the obligations represented by. negotiable bear.er debentures come within these broad terms is beyond question.

Petitioners urge, however, that the debentures themselves constitute the .debt, and since the debentures were located outside of the United States at the time of vesting, the debts did hot have a situs within the United States and therefore were not proper subjects of seizure. To apply this fiction here would not only provide a sanctuary for enemy investments and defeat the recovéry of American securities looted by conquering forces; it would also [334]*334restrict the exercise of the war powers of the United States. Congress did not so intend. The Custodian’s authority to reach a debenture or bonded indebtedness without seizure of the instrument itself is explicitly recognized by § 9 (n) of the Act, which provides that “[i]n the case of property consisting ... of bonded or other indebtedness , . ., evidenced ... by bonds or by other certificates of interest ... or indebtedness . . ., where the right, title, and interest in the property (but not the actual . . . bond or other certificate of interest or indebtedness) was, conveyed; transferred, assigned, delivered, or paid to the Alien Property Custodian, or seized by him . . .,” then the President may, in proper' cases, order return of 80% of the property.⁷ Moreover, in giving the Custodian this power to seize an interest represented by a bond or debenture without seizure of the actual instrument, Congress transgressed, no constitutional limitations on its jurisdiction. As the Court of Appeals pointed out, the obligor, Cities Service Company, is within the United States and the obligation of which the debenture is evidence can be effectively dealt with through the exercise of jurisdiction over that petitioner. See Standard Oil Co. v. New Jersey, 341 U. S. 428, 438-439 (1951).

A more serious question is whether application of the seizure provisions of the Act to petitioners will take their property in violation of the Fifth Amendment, unless they have á remedy against the United States in the event a foreign court holds them liable to a holder in due course [335]*335of the debentures. While petitioners concede that the Act discharges them from liability in any court in the United States,⁸ they contend that they have extensive properties over the world which subject them to foreign -suits from which the Act affords no certain protection. Petitioners readily admit that the court of the country in which suit is brought may apply the laws of the United States and recognize their prior payment to ttíe Attorney General as a complete defense; and that the holder, if qualified, might file a claim under the Act. Nevertheless, they insist, there remains gt least the possibility that they will be exposed to liability in a foreign court. While their defense to such litigation seems adequate and, final payment by them improbable, we agree that petitioners . might suffer judgment the payment of which would effect a double recovery against them. In that event, petitioners. will have the right to Recoup from the United Státes, for a, “taking” of their property within the meaning of the Fifth Amendment, “just coihpensatión” to the extent of their double liability.⁹ Such cause of action will accrue when, as, and if a foreign court forced petitioners to pay a holder in due course of the debentures. .' We, agree, with [336]*336the Court of Appeals that only with this assurance against double liability can it fairly be said that the present seizure is not itself an unconstitutional taking of petitioners’ property.

Affirmed.

⁶

By § 2 (c) of Exec. Order No. 9095 (March 11, 1942), 7 Fed. Reg. 1971, as amended by Exec. Order No. 9193 (July 6, 1942), 7 Fed. Reg. 5205, and Exec. Order No. 9567 (June 8, 1945), 10 Fed. Reg. 6917, the President, acting pursuant to the Trading with the Enemy Act, as amended, delegated to the Attorney General authority to vest property “within the United States” owned by a designated enemy country or national thereof, with specified exceptions not relevant here. Assuming, without deciding, that this, language is narrower' than the language of §§ 5 (b) and 7 (c) of the Act, as amended, we need not decide which language is contrdlling. For, as indicated below, we believe that in anyi event the obligations vested here were “within the United States” and thus come within the presumably narrower terms of the Executive Order.

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342 U.S. 330, 72 S. Ct. 334, 96 L. Ed. 2d 359, 96 L. Ed. 359, 1952 U.S. LEXIS 2484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cities-service-co-v-mcgrath-scotus-1952.

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