Cabell v. Markham

Decision Date04 June 1945
Docket NumberNo. 279.,279.
Citation148 F.2d 737
PartiesCABELL v. MARKHAM, Allen Property Custodian, et al.
CourtU.S. Court of Appeals — Second Circuit

Hartwell Cabell, pro se and Charlton Ogburn, both of New York City, for plaintiff-appellant.

William L. Lynch, of New York City, John F. X. McGohey, U. S. Atty., of New York City, and Herbert Wechsler, Asst. Atty. Gen., War Division, Department of Justice (John Ernest Roe, Gen. Counsel to Alien Property Custodian, of Madison, Wis., of counsel), for defendants-appellees.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

Writ of Certiorari Granted June 4, 1945. See 65 S.Ct. 1415.

L. HAND, Circuit Judge.

This appeal depends upon the meaning of a part of the proviso to § 9(e) of the Trading with the Enemy Act, as amended on March 10, 1928, 50 U.S.C.A.Appendix, § 9(e), which we quote in the margin.1 The plaintiff filed a complaint under § 9(a) of that act, alleging that he was a creditor of an Italian insurance company, whose assets in this country the predecessor in office of the defendant, Markham, had seized, as Alien Property Custodian; and that he had presented his claim in due form to the Custodian, who refused to recognize it. The defendants moved to dismiss the complaint because of its insufficiency in law, on the ground that the claim had not been in existence before October 6, 1917, and had not been filed before the date of the enactment of the Settlement of War Claims Act of 1928. The judge held that, since both these facts appeared in the complaint, the proviso of § 9(e) just quoted covered the situation; and for this reason he dismissed the complaint.

When the Trading with the Enemy Act was first passed on October 6, 1917, it contained the substance of what is now subdivision (a), but nothing more. It was amended again and again, but subdivision (e) was not added until 1920 (41 St. L. 980), though from the first it provided that no debt should be paid which had not been "owing" before October 6, 1917. The addition that the claim should be presented before March 10, 1928, dates from the amendment of that year (45 St.L. 271). The statute was not re-enacted when the present war broke out; nor was that necessary, for it automatically went into effect again. This appears, for example, from the definition of the phrase, "beginning of the war," in § 2, 50 U.S.C.A.Appendix, § 2 ("the day on which Congress has declared or shall declare war"); from § 302 of Title III of Chapter 593 of Laws of the First Session of the 77th Congress, 55 St.L. p. 839, 50 U.S.C.A.Appendix, § 617, which assumes that it had not been in force before December 8, 1941, and that it went into effect again at once thereafter; and because § 5(b) was amended without mention of any other part. 55 St.L. 839, 840, 50 U.S.C.A.Appendix, § 616. For this reason it seems proper for purposes of interpretation to interpret it as though it had been enacted on December 8, 1941, when the present war was declared. Were that literally the case, we should be faced with a statute, subdivisions (a) and (e) of which flatly contradicted each other. Subdivision (a) provides that "any person * * * to whom any debt may be owing * * * may file * * * a notice of his claim * * * and the President * * * may order the payment * * * of the money * * * held." If the President does not order payment, the "said claimant may institute a suit in equity * * * to establish the * * * debt so claimed, and if so established the court shall order the payment * * * to which the * * * claimant is entitled." This language is mingled with that giving a remedy for property mistakenly seized, and it is unnecessary to labor the point that it was intended to put creditors upon an equal footing with owners. Indeed, although we assume it to be true that for constitutional purposes it was not necessary to allow the alien's creditors any recourse to the seized property, since the alien himself remains liable; for practical purposes there is little difference between debts and claims to property.

It is at least arguable that the whole of subdivision (e) is limited to seizures made during the first war. It begins with a provision that "a citizen or subject of any nation which was associated with the United States in the prosecution of the war" may recover his property or collect his debt only in case that nation gave reciprocal rights to citizens of the United States. The use of the preterite is significant, particularly when coupled with the word, "associate," which it will be remembered was chosen during the last war in sedulous avoidance of any implication that we had "allies." If this be true, it would be indeed unreasonable not to confine the proviso similarly: that is, to read it otherwise than as limited to seizures made during that war. If we do not so read it, the result is really nonsense, for the remedy given in subdivision (a), which is prospective, is completely defeated by subdivision (e). Nobody can seriously believe that a general plan designed to be successively suspended and revived, as peace and war should alternate, was meant to be permanently mutilated by a statute of limitation expressly made applicable to only the first of its phases. The defendants...

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