Kahn v. Garvan

263 F. 909, 1920 U.S. Dist. LEXIS 1291

• Court: District Court, S.D. New York
• Decided: April 13, 1920
• Status: Published

Opinion

LEARNED HAND, District Judge (after stating the facts as above).

The bill has two aspects: (1) As a trustee’s bill, asking an accounting; (2) as a bill in the nature of a bill of interpleader. If it had enough equity under the first aspect, the motion to dismiss the whole bill must be denied, regardless of the second. Eor the moment, therefore, I may assume, without deciding, that it will not lie as a bill for interpleader, because the daughters have no standing in the court at all, and the property had been lawfully captured.

[1] Upon these assumptions, it is necessary briefly to consider the nature of the “right, title, and interest” which was the subject of the putative capture. It did not profess to be greater than the right of the enemies as cestuis que trustent, and it did not in law change the substance, or the incidents, of the right itself, any more than if, for example, it had been an unliquidated claim for breach of contract. Nor, indeed, could the Alien Property Custodian under such a demand, or unless he asserted a legal right to the securities themselves, by capture change the character of the enemy’s right as obligee. If it be a chose in action, subject to an accounting as a condition of its assertion, he must submit to some judicial determination between himself, as captor, and the trustee as obligor. Such a demand neither enlarges nor contracts the rights seized.

[2] If so, the Alien Property Custodian, as cestui que-trust, might pursue against the trustee all the remedies which the enemy might have pursued, if an alien friend. Among such rights is a bill to compel an accounting upon showing that the period had arrived for distribution, and as a condition of reducing the right to possession. Conversely, the trustee has the right, before distributing the res, to file a bill for a voluntary statement and settlement of his accounts (Mildeberger v. Franklin, 130 App. Div. 860, 115 N. Y. Supp. 903), so that he may get a valid discharge and close up the estate. Such a right is as much an incident to the right of the cestui que trust as his own substantive right to compel a distribution after such an accounting.

[3, 4] If so, the first question here is simply one of the jurisdiction of this court under section 17 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 31151/2). It is now settled that under that .section the Alien Property Custodian may himself begin such ancillary proceedings as may be necessary to reduce the res to possession. Garvan v. $25,000 Mortgage Bonds, 265 Fed. 477, -C. C. A.-. He could similarly have brought a bill for an accounting in this court under this deed of trust. May not the trustee conversely have resort to this court? In TCpppp.1ma.nn v. Keppelmann, 108 Atl. 432, the Court of Errors of New Jersey entertained such a bill filed by a trustee asking for instructions, and advised him that he should distribute the res to the Alien Property Custodian as cestui que trust. The trustee might perhaps file this bill in the New York courts, have his accounts stated, and get binding instructions; but it does not follow that he may not file a bill here as well. Section 17 confers on this court general jurisdiction “to enforce the provisions of” the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115^a — 31IS1^j), and if this be a suit ancillary to that purpose the jurisdiction extends so far. While it is not a bill by the Alien Property Custodian to enforce his rights under the act, a judicial accounting is, as I said, a condition upon its orderly execution, because without it the trustee cannot be compelled to distribute. I think it makes no difference, this being its substantial purpose, who is plaintiff or who is defendant.

The Alien Property Custodian urges that the cas'e of Garvan v. $25,-000 Mortgage Bonds, supra, is to the contrary. I think not. There he had determined that he was entitled, not to whatever rights as cestuis que trustent the German insurance companies had, but to the very corpus of the res. The court decided that the investigation and decision of the Alien Property Custodian was conclusive, and that the capture went as far as it purported to go, and required delivery of possession, under rule 2 (c). Piad the Alien Property Custodian in this case demanded, as he most properly did not do, out of the hands of the plaintiff, the securities themselves, a question would arise, similar to that in Garvan v. $25,000 Mortgage Bonds, supra, and Salamandra, etc., Co. v. N. Y. Life Ins. & Trust Co. (D. C.) 254 Fed. 852, whether any inquiry whatever was justiciable into the validity of the conclusion of the Alien Property Custodian, or whether there was any remedy at all except by suit brought under section 9. In the case at bar all he claimed was the acknowledged rights of enemies, and these were, as 1 have said, conditional upon some such proceeding as is here instituted.

[5] For these reasons the motion to dismiss the whole bill would have to be denied, except for one other objection, which is that the bill denies that the Alien Property Custodian is in fact the cestui que trust and disputes his title. Now it is not of course a condition upon-the usual bill of a trustee for an accounting that he should attempt to decide between rival claimants who is the lawful cestui que trust. Rather he may interplead them all so long as he acknowledges the validity of the trust by virtue of which alone he comes into court. But the jurisdiction of this court under section 17 is limited to suits to enforce the provisions of the act, and if in fact, as I shall show, the controversy which the trustee interjects into this suit is not a controversy justiciable in any court whatever, the bill cannot be held to fall within section 17, since it is not ancillary to the purposes of the act, but introduces a controversy which no court may entertain, save under section 9. Therefore the bill will lie only in the event that it recognize the title of the Alien Property Custodian and ask for a settlement with him as cestui que trust, merely as a necessary preliminary to distribution of the res. Therefore the motion must be granted as the bill stands, though the plaintiff may save it by amending so as to recognize the title by capture of 'the Alien Property Custodian.

The second point next arises, of the equity of the bill as a quasi interpleader. If it be true that the plaintiff has no possible ground to fear the claims of the enemy cestuis que trustent, and if, moreover, they are expressly forbidden by valid enactment from bringing any suit in any court against him, the ground of interpleader disappears. It is apparent that the practicable administration of a statute drawn for the purpose of capturing and sequestering enemy property-in time of war would be at an end, if any bailee or trustee might interplead other claimants, whether enemies or friends. Such a statute presupposes the immediate reduction to possession of the captured funds, and the interposition of such litigation would in effect destroy the possibility of its summary execution. Garvan v. $25,000 Mortgage Bonds, supra.

That the purpose'of the act was the contrary admits, I think, of no question. Section 9 gave a right of action in the District Court to all claimants within 6 months after the conclusion of peace and conferred full jurisdiction on that court to declare the respective interests in the fund and to decree payment. As the capture is in no sense a condemnation, but merely a sequestration, section 9 furnishes complete relief to all who come within its terms, except for the necessary interruption of their possession, and the possible loss arising from conversion of the property into cash by sale, an incident which does not arise in this case. The interruption to possession, or to the right to immediate possession, was a necessary incident in practice to such a system, which was itself short of the actual war -powers of the nation. Miller v. U. S., 11 Wall. 268, 20 L. Ed. 135. It has not, so far as I can learn, ever been questioned in any court. Salamandra, etc., Co. v. N. Y. Life Ins., etc., Co. (D. C.) 254 Fed. 852; Garvan v. $25,000 Mortgage Bonds, supra; Keppelmann v. Keppelmann, supra.

But section 9, having created this remedy, concludes with a paragraph which makes all captured property immune from process in any court, and thus cuts off any remedy in rem or in personam. Moreover, as a necessary corollary, section 7 (e) provides immunity in personam to any person who shall comply with any demand of the Alien Property Custodian. The language, of the section it is not necessary to give in extenso; it provides in the most explicit way for the complete protection in every court of the bailee, trustee, agent, obligor, or other person called upon to yield to the Alien Property Custodian’s symbolic act of capture.

[6] This being the scheme of the act, there are but two grounds upon which a bill of interpleader might conceivably rest: (1) That the capture was not within the scope of the act; (2) that the statute is void. Ignoring the more fundamental question whether this court has jurisdiction in any case to entertain such a bill under section 17, I think that neither ground is good. There can be not the least doubt that the capture was within the act, because section 7 (a), third paragraph, and section 7 (c), and section 7 (d) all very clearly include equitable interests in any kind of property. The language of 7 (c).and 7 (d) is as follows:

“Property • » * * held for * * * or on behalf of or for the benefit of” an enemy.

The third paragraph of 7 (a) includes all kinds of trusts, and is not limited by the language of the first paragraph:

“Trustees * * * issuing shares or certificates representing beneficial interests.”

The general terms were used to include all kinds of property, and it is scarcely likely that so common a form as trusts should have been excluded. Section 8 (a) covers only property held as security.

[7, 8] The only other points which can be raised as to the capture are that the demand was not signed by the Alien Property Custodian personally and that the daughters were not enemies. As to the first, it is covered by section 3 (a) of the Executive Order of February 26, 1918, unless that be invalid. That section authorized a delegation by the President to the Alien Property Custodian of his own power to delegate, and it is, of course, inconceivable that such an officer should not have the power to distribute his duties among his subordinates. The duty is executive, not judicial (Runkle v. U. S., 122 U. S. 543, 7 Sup. Ct. 1141, 30 L. Ed. 1167), not even the preliminary investigation, which concludes no one, and is without force in a suit under section 9. That the daughters were enemies appears from the allegations of the bill that they resided in Germany; as such they are enemies, regardless of their citizenship. Section 2 (a).. It has been the general doctrine that citizens domiciled in enemy territory do by the rules of international law take on the status of enemies. The Francis, 9 Fed. Cas. 673, No. 5,034, affirmed 8 Cranch, 363, 3 L. Ed. 590; The Venus, 8 Cranch, 253, 3 L. Ed. 553; U. S. v. El Telegrafo, 25 Fed. Cas. 1008, No. 13,049 (semble); The Venice, 2 Wall. 258, 275, 17 L. Ed. 866.

In some of these cases it is mentioned as one element that the citizen was not only domiciled in enemy territory, but a merchant whose goods were being used in enemy trade. I do not understand that this was a deciding factor in determining his status, but of the validity of the capture; the cases being in prize. The crucial question is whether the citizen has taken steps to return; some overt act being necessary. The Venus, supra. If actually constrained from return, perhaps the question is open. The Peterhoff, 5 Wall. 28, 60, 18 L. Ed. 564. But, however that may be, it was open to Congress under its war powers to declare the status of all citizens actually present in enemy territory, certainly in a statute like this, because, however blameless of any share in hostile acts, their property, if reduced to possession where they reside, by hypothesis falls within the power of the enemy government for such purposes as it may choose. Here we have in question, not the condemnation of enemy .property, but its sequestration; the final purpose of Congress being not yet disclosed. Section 12. How far citizens who can show themselves constrained against return may claim the rights of friends under section 9 is not before me. That Congress might capture and sequester their property during war seems to me open to no doubt whatever.

[9, 10] Thus it appears that the claims of the codefendants are without substance in law, and it is not enough in a bill of interpleader that baseless claims should be made against the stakeholder; they must not be void on their face, or the bill will not lie. Bassett v. Leslie, 123 N. Y. 396, 25 N. E. 386; Pusey & Jones Co. v. Miller (C. C.) 61 Fed. 401. But the vice of the bill is deeper, because the plan of the act is that, so far as concerns capture, the decision of the Alien Property Custodian shall be conclusive, and there shall be no remedies whatever, except under section 9. Doubtless, if the Custodian, exceeding his powers, seized property not covered by the act, or without any demand, he would be guilty of trespass, and could be sued individually; but the res seized by color of his office would be captured and sequestered, and no process would run against it, or against any one who delivered it to him because of that delivery. Garvan v. $25,000 Mortgage Bonds, supra; Salamandra, etc., Co. v. N. Y. Life Ins., etc.., C'o., supra.

Thus, even if the questions raised were in enough doubt of themselves to justify a bill of interpleader, none such could- lie here. The act intends the immediate reduction to possession of all property which the Custodian shall decide to be enemy property; all questions arising from his mistakes, or even from his oppressive or arbitrary action, are relegated to suits uhder' section 9. By the capture nothing is condemned, nothing confiscated, nothing concluded. The citizen runs only the risk of temporary dispossession through the misprision of the officials ; not always a light matter it is true, but a necessary incident of war. To entangle this power in incidental litigations would be substantially to deny its value, which depends upon its speedy and absolute exercise. Therefore the plaintiff has complete protection in section 7 (e), and there is no ground for an interpleader.

[11] There remains only the question of the constitutionality of the act, about which I shall say little. As between the Custodian and citizens, section 9 is enough, for the reasons I have given; so far as they may suffer injury, which that section does not meet, it is a loss that cannot be cured without undue impediment to the national power. As between enemies and the .Custodian, if in fact enemies, they are subject to the exercise of that power without any legal limitations. Up to -the present time in any case it has not been exercised to the full extent of confiscation, as might have been done. Miller v. U. S., 11 Wall. 268, 20 L.’Ed. 135. It is urged, however, that under McVeigh v. U. S., 11 Wall. 259, 20 L. Ed. 80, they are constitutionally entitled to a hearing, and that this is the only one possible, since section 9 does not cover them. The effect of that decision has been misunderstood ; it proceeded upon the ground that the claimant in a proceeding in rem had under the statute a right to appear. No one can question that necessity under that statute, since only by appearance could the claimant show that his goods were not forfeits

But the Trading with the Enemy Act provides an adequate remedy in section 9 to those who can maintain that they are not enemies, and who can therefore have any rights to object to the capture; under the Civil War Confiscation Act, its equivalent was included in the claimant’s right to appear and contest condemnation. It is, indeed, a question whether, after peace is declared, a former enemy, then an alien friend, might not bring a suit under section 9, at least as amended on July 11, 1919; but I do not press that point. My reliance is upon the fact that it covers all who do not come in the avowed status of enemies, and that those who do can have no rights arising from capture. Theoretically it may be possible to conceive of cases, -though I have not been able to imagine any, of avowed enemies who might still protest on the ground, as I have already suggested, that the property captured was not within the act, or that the formalities of capture were not observed.

Such supposed protests can arise, I think, only from too narrow an understanding of the scope of the act, and leave the rights denied to enemies too tenuous to impose any constitutional limitation on the powers of Congress. The purpose was to accomplish a swift, certain, and final reduction to possession of vast quantities of property involved in incredible complication of ownership and interest. That purpose could be accomplished only at the sacrifice of much that custom had made sacred; with its propriety courts have nothing to do; they may only learn what it was, and consider whether the constitutional limitations were observed. In the latter consideration it is legitimate' to remember that any initial hearing of an enemy would have been a fatuous procedural requirement in practice. That the statute is invalid, because there was no eventual equivalent, seems to me a contention which subjects the nation’s powers to unreal and scholastic limitation.

Therefore the bill is without equity as a bill of interpleader. It is quite true that American Exchange Nat. Bank v. Palmer (D. C.) 256 Fed. 680, is not in accord with my reasoning here; but that case differs from this on the facts, because the only codefendant was a citizen, while here they are all enemies. There is no reason whatever to suppose that, had the codefendant there been an enemy, the result would haye been different from this. As to the reasoning which I have adopted, it has seemed to me that the language of the Circuit Court of Appeals in Garran v. $25,000 Mortgage Bonds, supra, which is necessarily authoritative upon me, has given wider scope to the powers of the Alien Property Custodian than was thought to exist in American, etc., Bank v. Palmer, supra, or than is consistent with the maintenance of this bill. I am therefore compelled to yield my assent to that construction of the statute.

The bill will be dismissed, with costs, unless within 20 days the plaintiff shall amend by striking out the defendants other than the Alien Property Custodian and the bank, and by recognizing the Custodian as a cestui que trust under the deed.