Commercial Trust Co. of New Jersey v. Miller

• Decision Date: 01 August 1922
• Docket Number: 2842.
• Citation: 281 F. 804
• Parties: COMMERCIAL TRUST CO. OF NEW JERSEY v. MILLER, Alien Property Custodian.
• Court: U.S. Court of Appeals — Third Circuit

281 F. 804

COMMERCIAL TRUST CO. OF NEW JERSEY v. MILLER, Alien Property Custodian.

No. 2842.

United States Court of Appeals, Third Circuit.

August 1, 1922

Fisk &amp Fisk, of Jersey City, N.J. (Selden Bacon, of New York City and J. Fisher Anderson, of Jersey City, N.J., of counsel) for appellant.

Walter G. Winne, U.S. Atty., of Jersey City, N.J., and Dean Hill Stanley, Sp. Asst. Atty. Gen., for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

This is a suit brought by the Alien Property Custodian under the Trading with the Enemy Act, October 6, 1917, c. 106, Sec. 17 40 Stat. 411, 425 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 3115 1/2i), to obtain possession of securities and money belonging to an alien enemy in the hands of the Central Trust Company of New Jersey, as trustee.

The Trust Company, in compliance with the provisions of the Act, made a report in December, 1917, that it held stocks, bonds, mortgages, securities and money, of the value of about $600,000, in trust, as to both principal and interest, for the joint account of Frederick Wesche, of Paris, France, and Helene J. von Schierholz, of Plaue, Germany, to be delivered and paid to either upon his or her sole demand, or to the survivor.

Upon investigation the Alien Property Custodian determined that Wesche was a neutral and von Schierholz an alien enemy not holding a license from the President, and demanded surrender of the securities. Because the neutral had power upon his sole order to withdraw the whole property, the Trust Company thought the Alien Property Custodian had no right to it and accordingly declined to yield possession. Because the alien enemy had like power upon her sole order to withdraw the whole property and acquire its possession, the Alien Property Custodian thought he had a right to it and accordingly demanded it. The question is, which was right?

The District Court entered a decree for the Alien Property Custodian and the Trust Company took this appeal.

Although the appellant filed 83 assignments of error, raising 71 questions, we are of opinion that the appellant brings here for review but the one question we have stated. This question, admittedly, has several phases, the most of which we think have already been decided by the Supreme Court in Central Union Trust Co. v. Garvan, 254 U.S. 554, 41 Sup.Ct. 214, 65 L.Ed. 403, and Stoehr v. Wallace, 255 U.S. 239, 41 Sup.Ct. 293, 65 L.Ed. 604. In this case, as was done in the cases cited, the appellant attacks the proceeding as one purely possessory in character and challenges the constitutionality of the Trading with the Enemy Act. Again in this case, as happened in the others, the appellant claims the right to have property interests judicially determined by a court of equity before a right to the possession of the property can be asserted by the Alien Property Custodian. Differing from the cases cited, the appellant here maintains, as a matter of fact, that there was no investigation and determination by the Alien Property Custodian that von Schierholz was an alien enemy, and whether or not there was such an investigation and determination, it maintains, as a matter of law, that the Trading with the Enemy Act ceased to be operative after the armistice on November 11, 1918, or...