Behn, Meyer & Co. v. Miller

• Decision Date: 03 March 1924
• Docket Number: 4014.
• Citation: 296 F. 1002
• Parties: BEHN, MEYER & CO., Limited, v. MILLER, Alien Property Custodian, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

296 F. 1002

BEHN, MEYER & CO., Limited, v. MILLER, Alien Property Custodian, et al.

No. 4014.

United States Court of Appeals, District of Columbia.

March 3, 1924

Submitted February 11, 1924.

Appeal from the Supreme Court of the District of Columbia.

Walter B. Howe and Charles H. Bradley, of Washington, D.C., and William D. Guthrie and Bernard Hershkopf, both of New York City, for appellant.

Peyton Gordon and Dean Hill Stanley, both of Washington, D.C., for appellees.

Before SMYTH, Chief Justice, and ROBB and VAN ORSDEL, Associate justices.

VAN ORSDEL, Associate Justice.

This case is here on appeal from a decree entered in the Supreme Court of the District of Columbia, dismissing an amended bill of complaint filed by Behn, Meyer & Co., Limited, plaintiff corporation, against the Alien Property Custodian and the Treasurer of the United States, to recover certain assets of the plaintiff, seized by the Alien Property Custodian, or the money derived from their sale, and for an accounting.

It is averred in the bill of complaint that the plaintiff corporation was engaged in business in the Philippine Islands in February, 1918, when its assets were seized by the Alien Property Custodian; that it was--

'a subject of the British empire, the minority of whose capital stock was not owned, held, or possessed by any citizen subject or resident of any enemy nation or of any ally thereof.'

From this averment it appears that the majority of the stock was enemy-owned. Indeed, it was conceded in argument that the majority of the stock was owned by German citizens.

The case arises under section 9 of the Trading with the Enemy Act, approved October 6, 1917 (40 Stat. 411), as amended March 4, 1923 (42 Stat. 1511). Subsection (a) of section 9 of the amended act is substantially a re-enactment of section 9 of the original act. It provides for recovery by--

'any person not an enemy or ally of enemy claiming 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.'

Plaintiff contends that its case comes within the provisions of subsection (a) of section 9. This position cannot be sustained, since, while plaintiff is in its corporate entity nonenemy, a portion of its stock is enemy-owned, and this is sufficient to prevent it from recovering in its corporate capacity under subsection (a). The case, we think, falls within the provisions of paragraph 11 of subsection (b), Sec 9, which, among other things, accords the right of recovery to 'a corporation, organized or incorporated within any country other than Germany, Austria, Hungary, or Austria-Hungary, and that the control of, or more than 50 per centum of the interests or voting power in, any such * * * corporation, was at such time, and is at the time of the return of any money or other property, vested in citizens or subjects of nations, states, or free cities' other than the enemy countries named. The act, in addition, broadly includes partnerships, associations, and unincorporated bodies of individuals having their...