Klein v. Palmer

• Decision Date: 04 April 1927
• Docket Number: 160.,No. 159,159
• Citation: 18 F.2d 932
• Parties: KLEIN v. PALMER et al. HEINS v. SAME.
• Court: U.S. Court of Appeals — Second Circuit

18 F.2d 932 (1927)

KLEIN v. PALMER et al.

HEINS v. SAME.

Nos. 159, 160.

Circuit Court of Appeals, Second Circuit.

April 4, 1927.

Harvey T. Andrews, of New York City (Hiram C. Todd and E. Raymond Shepard, both of New York City, of counsel), for appellants.

Root, Clark, Howland & Ballantine, of New York City (Elihu Root, Jr., Leo Gottlieb, and Joseph Schreiber, all of New York City, of counsel), for appellee American Bosch Magneto Corporation.

Isidor J. Kresel and George J. Corbett, both of New York City (Frank Davis, Jr., and Seiforde M. Stellwagen, both of Washington, D. C., of counsel), for appellees Palmer and Garvan.

Rothwell, Harper & Matthews, of New York City, for appellee Kern.

Before HOUGH, HAND, and MACK, Circuit Judges.

MACK, Circuit Judge (after stating the facts as above).

On the oral argument, the attempt to sustain the claim to equitable relief was practically abandoned. Clearly, title to the seized property was vested in the United States under the Trading with the Enemy Act (Comp. St. §§ 3115½a-3115½j). Any suit to redress the alleged wrongful disposition of the seized property must be brought by the United States; any claim to the property so seized or its proceeds must be made in accordance with the provisions of that act.

Moreover, the provisions of the Treaty of Versailles, art. 297 (d), (i), and annex 1, copied in the margin,¹ and incorporated in the Treaty of Berlin (42 Stat. 1939) by article 1, and article 2, subdivision 1, of the latter Treaty, clearly justify the denial of relief in equity for the recovery of the property.

It is contended, however, that, instead of dismissing the bills they should have been transferred to the law side; that an action at law is maintainable for the damage done to the plaintiffs by defendant officials and those conspiring with them purporting to act under color of office but in fact acting contrary to the obligations thereby imposed upon them and solely for their own private ends. To this contention, too, the provisions of the treaty give a complete answer.

Annexes 2 and 3 to article 298 of the Treaty of Versailles, incorporated in the Treaty of Berlin by article 1 and article 2, subd. 1, of the latter treaty (copied in the margin).²

We emphasize "for whatsoever motive." Clearly by this phrase in the treaty the government aimed to prevent actions involving a consideration and determination as to whether the acts of its agents were lawful or merely colorable; it deemed it wise to protect its officials and those acting under them, from the ofttimes laborious defense in judicial proceedings of just such claims as are made in these cases; but, that no injustice result to the aliens, it remitted German nationals, wherever resident, to their own country for indemnity for any wrongs that may have been done them not only through the proper exercise of their duties by United States officials, but also for acts done "for whatsoever motive," including therefore wrongful acts done merely under color of office. The treaty thereby closed the door to judicial investigation of the motives of those so acting.

But plaintiffs contend that, if the treaty be so interpreted, it violates the Fifth Amendment, applicable as this is to residents whether citizen or alien; Heins moreover was not by statute or presidential proclamation declared an enemy alien. He was nevertheless, as a German national, an enemy, though friendly. As such, he was subject equally with Klein to the exercise of the government's war powers. The Trading with the Enemy Act did not aim to exert these powers to the fullest extent; the government was under no constitutional prohibition from confiscating the property of the enemy's nationals, whether resident or nonresident. And those powers, in the language of Miller v. U. S., 11 Wall. 268, 303, 20 L. Ed. 135, "are not affected by the restrictions imposed by the Fifth and Sixth Amendments." U. S. v. Chemical Foundation, Oct. 11, 1926, 272 U. S. 1, 47 S. Ct. 1, 71 L. Ed. ___; Munich Reinsurance Co. v. First Reinsurance Co. (C. C. A.) 6 F.(2d) 742, and cases cited.

The war powers may be exerted as well by the...