Miller v. Sinjen

• Decision Date: 23 April 1923
• Docket Number: 6169.
• Parties: MILLER, Alien Property Custodian, et al. v. SINJEN.
• Court: U.S. Court of Appeals — Eighth Circuit

289 F. 388

MILLER, Alien Property Custodian, et al. v. SINJEN.

No. 6169.

United States Court of Appeals, Eighth Circuit.

April 23, 1923

Dean Hill Stanley, Sp. Asst. Atty. Gen. (James C. Kinsler, U.S Atty., of Omaha, Neb., and Adna R. Johnson, Jr., Sp. Asst Atty. Gen., on the brief), for appellants.

Arthur F. Mullen, of Omaha, Neb. (Edwin C. Boehler, of Omaha, Neb on the brief), for appellee.

Before LEWIS, Circuit Judge, and TRIEBER and BOOTH, District Judges.

BOOTH District Judge.

This is a suit in equity brought by appellee (hereinafter called plaintiff) to recover property owned by him which was seized by the Alien Property Custodian during the war with Germany and while appellee was living in that country. The property was seized by virtue of the provisions of the Trading with the Enemy Act of October 6, 1917. 40 Stat. 411, c. 106, as amended by Act March 28, 1918, 40 Stat. 459, c. 28, and Act Nov. 4, 1918, 40 Stat. 1020, c. 201, and Act July 11, 1919, 41 Stat. 35, c. 6, and Act June 5, 1920, 41 Stat. 977, c. 241.

The constitutionality of the act has been upheld. Stoehr v. Wallace, 255 U.S. 239, 41 Sup.Ct. 293, 65 L.Ed. 604. No question is raised as to the regularity or validity of the seizure.

Authority to maintain the suit is claimed by virtue of subsection (c), subsection (b), and subdivisions 1 and 8 thereof, and subsection (a), all of section 9 of the act as amended June 5, 1920 (41 Stat. 977, c. 241). Those subsections, in so far as material, read as follows:

'(c) Any person whose property the President is authorized to return under the provisions of subsection (b) hereof may file notice of claim for the return of such property, as provided in subsection (a) hereof, and thereafter may make application to the President for allowance of such claim and/or may institute suit in equity to recover such property, as provided in said subsection, and with like effect. The President or the court, as the case may be, may make the same determinations with respect to citizenship and other relevant facts that the President is authorized to make under the provisions of subsection (b) hereof.'

'(b) In respect of all money or other property 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, if the President shall determine that the owner thereof at the time such money or other property was required to be so conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or at the time when it was voluntarily delivered to him or was seized by him was--

'(1) A citizen or subject of any nation or state or free city other than Germany or Austria or Hungary or Austria-Hungary, and is at the time of the return of such money or other property hereunder a citizen or subject of any such nation or state or free city. * * *

'(8) * * * Then the President without any application being made therefor, may order the payment, conveyance, transfer, assignment, or delivery of such money or other property held by the Alien Property Custodian or by the Treasurer of the United States, or of the interest therein to which the President shall determine such person entitled, either to the said owner or to the person by whom said property was conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian. * * * '

'(a) * * * Claimant may, at any time before the expiration of six months after the end of the war institute a suit in equity in the Supreme Court of the District of Columbia or in the District Court of the United States for the district in which such claimant resides, or, if a corporation, where it has its principal place of business (to which suit the Alien Property Custodian or the Treasurer of the United States, as the case may be, shall be made a party defendant), to establish the interest, right, title, or debt so claimed, and if so established the court shall order the payment, conveyance, transfer, assignment, or delivery to said claimant of the money or other property so held by the Alien Property Custodian or by the Treasurer of the United States or of the interest therein to which the court shall determine said claimant is entitled. * * * '

As applied to the plaintiff's case, the substance of those provisions is that if he was a citizen of the United States at the time his property was seized, and at the time of the suit brought to recover the same, then he can maintain the suit; otherwise his property must be held by the Alien Property Custodian, and disposed of under section 12 of the act 'as Congress shall direct.'

The vital question in the case, therefore, is whether plaintiff was at the times mentioned a citizen of the United States. The facts disclosed by the evidence are largely undisputed, and are as follows:

Plaintiff was born in Krakau, Germany, June 24, 1857. He came, with his wife, to the United States in December, 1885. In March, 1887, they settled on a farm in Franklin county, Neb. He made application for citizenship and became a naturalized citizen February 28, 1893. Plaintiff and his wife continued to live in Franklin county, Neb., until 1901, when they returned to Germany for the benefit of Mrs. Sinjen's health. She recovered her health, but they continued to stay in Germany on account of the illness of her father, who was upwards of 70 years of age. The mother was also living. Mrs. Sinjen helped to take care of them. Plaintiff had left his brother-in-law, Emil Sindt, in charge of his farm in Nebraska, and received remittances from him while in Germany of about $1,500 a year, being about one-half of the income from the property. No definite contract was made by Sindt for the care of the property, as he testifies, because he understood plaintiff would be gone only a year or two. In 1903 plaintiff bought a house and about seven acres of land in Germany, and he and his wife, and his wife's father and mother, lived there together. The wife's father owned a farm in Germany, but rented it to one of his sons. The father-in-law died in 1906.

In September, 1908, plaintiff and his wife returned to Nebraska. Plaintiff at this time talked to his brother-in-law about going to California to settle and live. In the latter part of 1908 word came that the mother-in-law in Germany was ill. Thereupon plaintiff and his wife returned to Germany, in February, 1909. The mother-in-law died in April, 1909. After her death the farm which her husband had owned went to one of his sons. Plaintiff's wife received a legacy from her father's estate. About six months after the death of the mother-in-law plaintiff began efforts to sell the house and land which he had bought in Germany. He continued his efforts from 1909 to 1914, but was unable to sell the property, and still owns the same. He and his wife continued to remain in Germany. In 1914, after the war broke out, plaintiff applied to the American consul at Kiel for a passport; but this was refused, on the ground that plaintiff could not overcome the presumption of expatriation, which it was claimed had arisen under the Act of March 2, 1907 (34 Stat. 1228). That act, so far as here material, reads as follows: 'Sec. 2. That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state.

'When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, that such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe: And provided also, that no American citizen shall be allowed to expatriate himself when this country is at war. ' Comp. St. Sec. 3959.

Plaintiff made no further effort to leave Germany until after the Armistice. In November, 1919, he applied to the Spanish consul at Kiel for a passport to the United States. The application was referred to the American authorities, and the passport was refused on the ground that he 'failed to overcome the presumption of expatriation which arose against him in 1909 under the Citizenship Act of March 2, 1907. ' In 1920 plaintiff renewed his application for a passport through the American Commission at Berlin, and this was also refused by the State Department. After this last refusal, plaintiff applied to a German official and secured a passport to Holland. The passport was viseed there by the Mexican consul, and plaintiff proceeded to Mexico. In Mexico he was referred by some German official to the American consul. Plaintiff made application for a passport to the United States to the American charge d'affairs in Mexico City, presenting his citizenship papers and his German passport, and secured the American passport in August, 1921. He returned to Nebraska and commenced the present suit in January, 1922.

While the plaintiff was in Germany he took no active steps to become a German citizen, engaged in no business there, and took no part in the German government or in the war. He was not required by the German authorities to register, and was not questioned as to his citizenship. His property was not placed under supervision. In 1914 or 1915 he bought German bonds, as he explains, because of the popular furore. His brother-in-law in Nebraska, in charge of the property in the United States, reinvested there some...