Stadtmuller v. Miller

• Citation: 45 ALR 895,11 F.2d 732
• Decision Date: 19 March 1926
• Docket Number: No. 242.,242.
• Parties: STADTMULLER v. MILLER, Alien Property Custodian, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

45 ALR 895, 11 F.2d 732 (1926)

STADTMULLER v. MILLER, Alien Property Custodian, et al.

No. 242.

Circuit Court of Appeals, Second Circuit.

March 19, 1926.

Schnitzler, Thorn & Dayton, of New York City (Paul C. Schnitzler, of New York City, of counsel), for appellant.

Emory R. Buckner, U. S. Atty., of New York City, Ira Lloyd Letts, Asst. Atty. Gen., and Dean Hill Stanley, Sp. Asst. Atty. Gen., for appellees.

Hoke Smith, of Atlanta, Ga., and A. W. Lafferty, of New York City, amici curiæ, in behalf of John H. Volkmann.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS, Circuit Judge.

This suit is brought under section 9 of the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115½e) to recover property alleged to belong to the plaintiff, and which was seized by the Alien Property Custodian, and is now in the custody of the Treasurer of the United States. The District Court dismissed the complaint.

The plaintiff was born in Germany, and still is technically a German citizen. He came to the United States in 1890, and has ever since that time been, with the exception of an absence in Europe hereinafter referred to, a resident in the city of New York. He is a physician, and has been practicing his profession in New York ever since 1890, subject to the exception to be mentioned. His standing is evidenced by the fact that from February 1, 1910, until 1920, he continuously was a professor of clinical medicine at Columbia University. While he never became a citizen of the United States, he had filed application to become a citizen.

In 1917 he was in poor physical condition and suffering from serious eye trouble, which necessitated his temporary discontinuance of his medical practice. Acting upon the urgent advice of his doctors, he left the United States for Europe, with the intention of returning to this country "as soon as possible." He left in May, 1917, and carried with him the safe conduct issued to him by the State Department. He landed in Denmark, and then went to Germany "for a short rest," and "in order to settle the estate of his parents," intending thereupon to go to Switzerland, and then return to New York. He found himself prohibited from leaving Germany, and while compelled so to remain did no act inimical to the interests of the United States. While compelled to remain against his will in Germany, his property in the United States, amounting to some $40,000, was seized as being that of an alien enemy, and his claim to have it restored to him by the government has been refused, and he brings this suit to recover it. Can he maintain the action? The District Court has decided that he cannot.

The complaint alleges, among other things, as follows:

"First. That the above-named plaintiff, ever since 1890 has been and now is a resident and a practicing physician in New York City, and never since 1890 has been a resident elsewhere, and that from February 1, 1910, until 1920, he continuously was a professor of clinical medicine at Columbia University, city of New York.

"Second. That plaintiff was born in Germany, and is still technically a German citizen, though he filed application to become a citizen of the United States; that at no time during the war plaintiff was an enemy, within the meaning of the Trading with the Enemy Act.

"Third. That in May, 1917, plaintiff, with the safe conduct issued him by the State Department, left this country for Europe in accordance with the urgent advice given to him by his doctors, he being at that time in very poor physical condition, and suffering from serious eye trouble, necessitating the temporary discontinuance of his practice; it being plaintiff's intention to return to the United States as soon as possible.

"Fourth. When landing in Denmark, plaintiff went to Germany for a short rest and in order to settle the estate of his parents, who had died within 24 hours of each other, and thereupon to go to Switzerland until he could return to New York, but that, on account of the regulations then existing, plaintiff was prohibited from leaving Germany, compelling his stay therein until the end of the war, when he returned to New York City as soon as possible.

"Fifth. That at no time during the war plaintiff was directly or indirectly employed by or in the service of the German government, or of any of the states composing it, and that at no time did he do anything or act hostile or inimical to the interests of the United States.

"Sixth. That plaintiff, when leaving for Europe in May, 1917, left in New York City his office, furniture, books, and equipment as a doctor, in charge of his associate. Dr. St. George, and also all his savings, amounting to about forty thousand ($40,000) dollars, in charge of Henry Ruhlender, and took only with him the small amount, which, under the regulations then prevailing, he was allowed to take along."

The complaint goes on to allege that, pursuant to the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115½a et seq.) the plaintiff's said moneys were seized by the Alien Property Custodian; that on December 6, 1922, the plaintiff filed a notice of claim, pursuant to section 9 of the Act of October 6, 1917, and also made application to the President of the United States; that the Alien Property Custodian filed an opinion recommending the allowance of the plaintiff's application, but that upon the adverse report of the Department of Justice the President denied his application.

The complaint prays in conclusion that the defendants be directed, in accordance with the said Trading with the Enemy Act and the treaty between this country and Prussia of 1828 (8 Stat. U. S. 378), to account to plaintiff for the moneys seized and held by them, and to pay the same over to plaintiff, with interest thereon.

The question is whether this complaint states a good cause of action. It is our opinion that it does, and we will proceed to state our reasons for the conclusion we have reached.

Section 9 of the Trading with the Enemy Act authorizes a suit to be brought by "any person, not an enemy, or ally of an enemy, claiming any interest, right, or title in any money or other property" taken over by the Alien Property Custodian and held by him or the Treasurer of the United States; and it is expressly provided that, if application for the return of the property is made to the President and he denies the application, "no such order by the President shall bar any person from the prosecution of any suit at law or in equity against the claimant to establish any right, title or interest which he may have in such money or other property."

The Trading with the Enemy Act no doubt was founded upon the public policy which forbids "the doing of acts that may be to the advantage of the enemy state by increasing its capacity for prolonging hostilities, in adding to the credit, money or goods, or other resources valuable to individuals in the enemy state." We concede that the intention was to make it impossible to aid the enemy (Germany) by forbidding that money or property of any kind held in the United States should reach the hands of the enemy. The intention was to make it impossible for a dollar to inure to the advantage of Germany.

Unless the plaintiff is an "enemy," or an "ally of an enemy," within the meaning of the act, he is authorized by section 9 to maintain this suit. Section 2 of the act defines "enemy" as follows:

"That the word `enemy,' as used herein, shall be deemed to mean, for the purposes of such trading and of this Act — `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.'" Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115½aa.

The plaintiff contends that the words "resident within," as used in section 2, mean domiciled within. The defendant contends that they mean "physical presence within." The word "resident" is somewhat ambiguous. This is due to the fact that it is used sometimes to mean domicile and sometimes temporary residence. The Standard Dictionary defines the word as "one having either legal residence or domicile."

As the word "residence," when used in a statute, may mean permanent domicile or temporary residence, in determining which meaning is to be attached to it in the Trading with the Enemy Act, the court must keep in view the legislative purpose as well as the context. In United States v. Curran, 299 F. 206, 211, this court pointed out that the word "residence," as used in various statutes, had been considered synonymous with domicile, and said: "The courts have so construed statutes relating to the qualification of voters, to homesteads, to taxation, to limitations, to succession, to guardianship, to actions for divorce and separation. * * * But this depends upon the intent of a particular statute as ascertained by construction of its provisions."

Residence and citizenship are not synonymous terms. Wolfe v. Hartford Life & Annuity Insurance Co., 13 S. Ct. 602, 148 U. S. 389, 37 L. Ed. 493; Pennsylvania Co. v. Bender, 13 S. Ct. 591, 148 U. S. 255, 37 L. Ed. 441; Sharon v. Hill (C. C.) 26 F. 337; Danahy v. National Bank of Denison, 64 F. 148, 12 C. C. A. 75; Tug River Coal & Salt Co. v. Brigel, 67 F. 625, 14 C. C. A. 577; Chambers v. Prince (C. C.) 75 F. 176; Marks v. Marks (C. C.) 75 F. 521; Eisele v. Oddie (C. C.) 128 F. 941, 945; Yocum v. Parker, 130 F. 770, 66 C. C. A. 80; Irving v. Smith (C. C.) 132 F. 207; Sanbo v. Union Pacific Coal Co., 140 F. 713, 72 C. C. A. 24; Koike v. Atchison, T. & S. F. Ry. Co....