Guessefeldt v. McGrath, 5153-49.

• Decision Date: 14 March 1950
• Docket Number: No. 5153-49.,5153-49.
• Parties: GUESSEFELDT v. McGRATH et al.
• Court: U.S. District Court — District of Columbia

89 F. Supp. 344

GUESSEFELDT v. McGRATH et al.

No. 5153-49.

United States District Court, District of Columbia.

March 14, 1950.

Robert F. Klepinger, of Washington, D. C., for plaintiff.

Walter T. Nolte and Oliver Dibble, of the Department of Justice, Washington, D. C., for defendants.

TAMM, District Judge.

Plaintiff brings this action for return of property seized under the "Trading With The Enemy Act", 50 U.S.C.A.Appendix, § 1 et seq., hereinafter referred to as the Act. The Government having moved to dismiss thereby concedes the following well pleaded facts:

Plaintiff was born in Germany in 1870 and moved to Hawaii in 1896 where he has since resided. In April 1938 plaintiff, accompanied by his wife and daughter, who is a citizen of the United States, left Hawaii for a trip to Germany. Permits were issued to them to re-enter the United States, which permits, as extended, expired in March 1940. Following the outbreak of World War II in September 1939, plaintiff and his family were unable to secure return passage to Hawaii within the period referred to in said re-entry permits. On the contrary they were compelled to remain involuntarily in Germany during hostilities. Plaintiff's daughter returned to the United States in January 1947, but plaintiff and his wife were unable to return until July 1949. During his enforced stay in Germany, plaintiff did not own property of any kind there, purchased no war bonds or other securities, did not vote in any elections, did not engage in any efforts directly or indirectly in aid of or assistance to the war effort of Germany or of any enemy or ally of an enemy of the United States, nor was he ever directly or indirectly employed by or in the service of any government which was an enemy of the United States and never committed any act hostile or inimical to the interests of the United States. Plaintiff's entire estate was included in a deed of trust with the Bishop Trust Company, Ltd. of Honolulu, Hawaii, executed in 1934, amended by trust deed of January 18, 1938, and during his absence from Hawaii plaintiff's household goods, books and similar personalty were in storage with the City Transfer Company, Ltd. of Honolulu, Hawaii. On his departure from Hawaii, plaintiff took with him to cover expenses of his trip, the sum of $6,500 and when his return was made impossible, in June 1940 he withdrew $6,000 from the trust fund and again in May 1941 he withdrew an additional $4,000 therefrom.

On February 5, 1948 and May 12, 1949, the then duly appointed and qualified Director of the Office of Alien Property, acting under the said Act and Executive Orders No. 9193, July 6, 1942, as amended, and No. 9788, 50 U.S.C.A.Appendix, § 6 note, issued Vesting Orders No. 10616, 13 Fed.Reg. 702, 703, and No. 13253, 14 Fed.Reg. 2887, 2888, respectively. Said Orders vested in the Attorney General all of plaintiff's property therein described, being the property under the aforesaid trust agreement of May 11, 1934, as amended, including all accrued income therefrom, and all personalty stored with the aforesaid Transfer Company in Honolulu, "to be held, used, administered, liquidated, sold or otherwise dealt with in the interest of and for the benefit of the United States."

On August 27, 1948, said Trust Company delivered to the defendants the sum of $24,018.75 in cash, being the net income accruing from said trust estate as of June 30, 1948 and said sum is now in the possession of the defendant Treasurer of the United States.

On January 24, 1949 said Trust Company notified the Director of the Office of Alien Property that it would not make further payments of such accrued income in the future and also demanded return of said sum theretofore paid, which demand has not been acknowledged or complied with.

On July 18, 1949 plaintiff filed with the Director of the Office of Alien Property, a claim under oath in conformity with the requirements of said Director (Form APC-1A), demanding the return of said property and estate, but no application therefor was made to the President of the United States and neither property nor estate has been returned to the plaintiff.

On November 2, 1949 plaintiff and his wife filed their declarations of intention to become naturalized citizens of the United States and on December 9, 1949 they received there first papers (Nos. 78275 and 78274). Since July 1949 plaintiff, his wife and daughter have been staying in Flushing, Long Island, New York, and aside from the wages of their daughter who is employed by a New York department store, plaintiff and his wife are without funds.

In addition to the Government's Motion to Dismiss, plaintiff has filed a Motion for Summary Judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.

Plaintiff brings this action under § 9 of the Act¹ on the theory that he is not an enemy or ally of an enemy. Section 2 of the Act defines the terms "enemy" and "ally of enemy", in pertinent part as follows:

"(a) Any individual * * * of any nationality, resident within the territory * * * of any nation with which the United States is at war * * *.

"(c) Such other individuals * * * as may be natives, citizens, or subjects of any nation with which the United States is at war * * * as the President, if he shall find the safety of the United States or the successful prosecution of the war shall so require, may, by proclamation, include within the term `enemy.'"

"(a) Any individual, partnership, or other body of individuals, of any nationality, resident within the territory * * * of any nation which is an ally of a nation with which the United States is at war * * *".

"(c) Such other individuals, or body or class of individuals, as may be natives, citizens, or subjects of any nation which is an ally of a nation with which the United States is at war * * * as the President, if he shall find the safety of the United States or the successful prosecution of the war shall so require, may, by proclamation, include within the term `ally of enemy.'"

The President never issued any proclamations pursuant to sections (c) above.

Section 5(b) of the Act grants to the President, and to his delegates by Executive Orders issued pursuant thereto, the power to vest the property of a national of a designated enemy country and, of course, the formal declaration of war made Germany an enemy country. The constitutionality of this provision of the Act has been upheld by the Supreme Court in the case of Silesian American Corporation v. Clark, 1947, 332 U.S. 469, 68 S.Ct. 179, 182, 92 L.Ed. 81, wherein Justice Reed wrote: "* * * There is no doubt but that under the war power, as heretofore interpreted by this Court, the United States, acting under a statute, may vest in itself the property of a national of an enemy nation. Unquestionably to wage war successfully, the United States may confiscate enemy property."

The question presented then is whether the plaintiff was an enemy, an ally of an enemy or a national of an enemy country at the time these vesting orders were issued. Technically, of course, plaintiff is a citizen of Germany, but it cannot very well be argued that he was "resident within the territory * * * of any nation with which the United States is at war" when he was involuntarily detained in Germany during the period of hostilities. It is hornbook law that to effect a change of residence two essentials are necessary, namely: (1) an intention to abandon the old and (2) an intention to remain in the new domicil. As some writers express it, there must be an animus non revertendi and an animus manendi. Moreover the acts of the person must correspond with such purpose and the change of residence must be voluntary. Morris v. Gilmer, 129 U.S. 315, 9 S.Ct. 289, 32 L.Ed. 690. There is nothing in the record before the Court to indicate that the plaintiff had any such intention when he went from Hawaii to Germany in 1938, or during his sojourn in Germany thereafter.² Accordingly, I find and so hold that plaintiff would not have been estopped from recovering under § 9(a) of the Act.

Following World War I, the Courts³ liberally construed the Act so as to allow recovery of property owned by persons who were free from "enemy taint". But this Court is faced with the fact that on July 3, 1948 the Congress enacted a new section of the Act, 50 U.S.C.A.Appendix, § 39, which provides that: "No property or interest therein of Germany, Japan, or any national of either such country vested in or transferred to any officer or agency of the Government at any time after December 17, 1941, pursuant to the provisions of this Act, shall be returned to former owners thereof or their successors in interest, and the United States shall not pay compensation for any such property or interest therein. * * *" (Emphasis supplied.)

The next question to be decided is whether plaintiff was a national of Germany within the intendment of Section 39 of the Act.

This Act, being one in which the sovereign consents to be sued, is one of grace and must be strictly construed. It is subject to revision or complete repeal at any time. Lynch v. United States, 292 U.S. 571, 581, 54 S.Ct. 840, 78 L.Ed. 1434. Section 39, in particular, relates to property which had vested in the United States after December 17, 1941 and as was stated by Mr. Justice Butler, speaking for the Court, in Cummings v. Deutsche Bank, 300 U.S. 115, 120, 57 S.Ct. 359, 362, 81 L.Ed. 545: "The title acquired by the United States was absolute and unaffected by definition of duties or limitations upon the power of the Custodian or the Treasurer of the United States. Congress reserved to itself freedom at any time to dispose of the property as deemed expedient and right under circumstances that might arise during and after the war. * * * Congress intended after the war justly to deal with former owners and, by restitution or compensation in whole or part, to ameliorate hardships falling upon them as a...