Petition of Bernheimer

• Decision Date: 03 August 1942
• Docket Number: No. 7935.,7935.
• Citation: 130 F.2d 396
• Parties: Petition of BERNHEIMER et al.
• Court: U.S. Court of Appeals — Third Circuit

130 F.2d 396 (1942)

Petition of BERNHEIMER et al.

No. 7935.

Circuit Court of Appeals, Third Circuit.

Argued April 10, 1942.

Decided August 3, 1942.

Thomas Raeburn White, of Philadelphia, Pa. (Hamilton Page, C. L. Cushmore, Jr., and White & Staples, all of Philadelphia, Pa., on the brief), for petitioners.

Philip H. Strubing, of Philadelphia, Pa. (Evans, Bayard & Frick, of Philadelphia, Pa., on the brief), for Judge Barksdale.

Before BIGGS, JONES, and GOODRICH, Circuit Judges.

BIGGS, Circuit Judge.

The petitioners, Caroline Bernheimer and Franz Bernheimer, a mother and her son, are Jewish refugees who fled from the German Reich. Both came lawfully into the United States and have registered as aliens as required by law, 54 Stat. 673, 8 U.S.C.A. §§ 451-460. They reside in Montgomery County in the Eastern District of Pennsylvania. Caroline Bernheimer has received her first papers for naturalization as a citizen of the United States. Franz Bernheimer has applied for his first papers but he has not resided in the United States a sufficient length of time to qualify him to receive them. Both petitioners were injured in an automobile accident which occurred on February 2, 1941. They brought suit for damages in the District Court of the United States for the Eastern District of Pennsylvania on February 28, 1941. Their case was at issue, ready for trial and on the January, 1942, list when the defendant moved to strike it from the list on the ground that the petitioners were alien enemies not competent to maintain an action in the civil courts of the United States. The court granted the motion.¹ A subsequent application on the part of the petitioners to restore the case to the list was denied. Since the order of the District Court was not an order from which an appeal could be taken, the petitioners have brought their present proceeding in this court and pray that we may direct the District Court of the Eastern District of Pennsylvania to restore the case to the list.

The question for our determination may be stated as follows: Does the war between the United States and Germany suspend the right of a citizen of Germany resident in the United States to prosecute a civil action in a court within the United States.

The learned District Judge held, by reason of the omission of certain words from the Presidential Proclamation relating to enemy aliens of December 8, 1941,² words which appeared in a Presidential Proclamation³ promulgated shortly after our declaration of war against Germany in 1917, that there was "a deliberate attempt on the part of our Government" to take from resident alien enemies the right to prosecute civil actions during the war. Before dealing specifically with these proclamations, we think it desirable to discuss briefly the rights of the enemy alien at common law.

Since the end of the seventeenth century and the decision of the Court of the King's Bench in Wells v. Williams, 1697, 1 Ld. Raym. 282, 91 Eng.Rep. 1086, it has been the law that an alien resident within the realm of England could maintain a civil action in the English courts per licentiam and sub protectione domini regis (by the King's license and under his protection). Prior to that time in England when the King engaged in war it was the duty of his subjects to plunder and kill his enemies wherever found.⁴ In Wells v. Williams, Treby C. J. stated a rather delicate reason for the reversal of English authority and said that "* * * the necessity of trade has mollified the too rigorous rules of the old law in their restraint and discouragement of aliens." The next step in the English law was the implication of a license from the very fact that the enemy citizen or subject was interned or incarcerated within the realm. See Schaffenius v. Goldberg, 1916 1 K.B. 284; Porter v. Freudenberg, 1915 1 K. B. 857; Princess Thurn and Taxis v. Moffitt, 1915 1 Ch. 58; Sparenburg v. Bannatyne 1797, 1 Bos. & Pul. 163; Maria v. Hall, 1 Taunt. *33 C.P.1807.

In Clark v. Morey, 10 Johns. 69, Chancellor Kent in the first application of these principles by an American court, established the rule that lawful residence in the United States in and of itself operates as a license to sue in the absence of an executive mandate to the contrary. See Birge-Forbes Co. v. Heye, 251 U.S. 317, 40 S. Ct. 160, 64 L.Ed. 286.⁵ In the Birge-Forbes Co. case Mr. Justice Holmes said at page 323 of 251 U.S., at page 161 of 40 S.Ct., 64 L.Ed. 286: "There is nothing `mysteriously noxious' * * * in a judgment for an alien enemy. Objection to it in these days goes only so far as it would give aid and comfort to the other side." The Supreme Court approved a direction in the judgment that the sum recovered should be paid to the Alien Property Custodian.

It is not even the case that a suit may not be prosecuted on behalf of an enemy subject even though resident in enemy or neutral territory. Such suits are occasionally allowed to proceed to judgment where adequate measures may be taken to prevent advantage to the enemy. See Birge-Forbes Co. v. Heye, supra; Propper v. Buck, 178 Misc. 76, 33 N.Y.S.2d 11, affirmed 263 App. Div. 948, 34 N.Y.S.2d 134; Weiditschka v. Supreme Tent of Knights of Maccabees of the World, 188 Iowa 183, 170 N.W. 300, 175 N.W. 835; Geiringer v. Swiss Bank Corp. 1940 1 All Eng.R. 406 and White Engineering Corp. v. Canadian Car and Foundry Co. 1940 43 Quebec Pr. 419.

Today sums realized on judgments in favor of resident alien enemies can be frozen by the Secretary of the Treasury. See Executive Order No. 8389 of April 10, 1940, as amended, 5 Fed.Reg. 1400. The courts in which such judgments were rendered can "attach" or otherwise control any funds accruing under them. Proper v. Buck, supra, at page 13 of 33 N.Y.S. 2d; Weiditschka v. Supreme Tent of Knights of Maccabees of the World, supra, at page 303 of 170 N.W. The President possesses the power to regulate the conduct of enemy aliens residing within the United States. Alien Enemy Act, 50 U.S.C.A. § 21. The Alien Property Custodian may vest in himself any property of any foreign national or country. First War Powers Act, 1941, 55 Stat. 838, 50 U.S.C.A.Appendix § 601 et seq., Executive Order No. 9095 of March 11, 1942, 7 Fed.Reg. 1971. Today the proceeds of a judgment secured by a resident enemy alien whether in a state or federal court may be so guarded that they will be of no benefit to the enemy.

The respondent takes the position that there is a difference of authority in the state and federal courts and contends that while the state decisions allow suits by an enemy alien, the decisions of the federal courts require suspension of the proceeding until peace has been concluded. We cannot agree with the last assertion of the respondent. The weight of authority in the federal courts permits the prosecution of a suit by the resident enemy alien. The Supreme Court did not directly settle this question in Birge-Forbes Co. v. Heye, supra, for the plaintiff in that case was a non-resident alien who became an enemy after judgment had been rendered in his favor. But four very recent decisions of inferior federal courts permit suits by resident enemy aliens. They are Verano v. DeAngelis Coal Co., Inc., supra; Anastasio v. Anastasio, supra. Uberti v. Maiatico, supra and Stern v. Ruzicka, supra. We think that the earlier decisions of the federal courts do not support the respondent's contention that the resident enemy alien may not maintain a suit, though there is some obiter to that effect. See Hanger v. Abbott, 6 Wall. 532, 18 L.Ed. 939; Masterson v. Howard, 18 Wall. 99, 21 L.Ed. 764 and Mumford v. Mumford, Fed.Cas.No. 9918.

As a matter of fact none of the federal decisions cited by the respondent in support of its proposition is in point. The case cited which presents the closest analogy to that at bar is The Oropa, D.C., 255 F. 132. But in The Oropa, the plaintiff himself urged that his action be suspended until the conclusion of peace. He did not take the position that he should be allowed to prosecute his action to judgment immediately.

The decision of the Supreme Court in Ex parte Colonna, 314 U.S. 510, 62 S.Ct. 373, 86 L.Ed. 379, is of no aid to the respondent. In that case the Royal Italian Ambassador by applying for writs of prohibition and mandamus sought to protect a vessel and its cargo of oil alleging it to be the property of the Italian Government and therefore entitled to the benefit of Italy's sovereign immunity.. The Supreme Court refers to the definition of the word "enemy" as set forth in Section 2(b) of the Trading with the Enemy Act, 40 Stat. 411, 50 U.S.C.A. Appendix § 2. Section 2(a) of the Act by its definition of "enemy" makes the Act applicable to persons residing in enemy country or trading therein. The petitioners do not come within such classification. Section 2(b) makes the Act applicable to the government of any nation with which the United States is at war. The declaration of war between the United States and Italy took place on December 11, 1941 and was in effect when the Supreme Court decided Ex parte Colonna. Section 2(c) describes as an "enemy" such other individuals as may be citizens of any nation with which the United States is at war, wherever resident, as the President by proclamation shall include within the term "enemy".⁶ In Ex parte Colonna the Supreme Court made plain that war suspends the right of an enemy plaintiff to prosecute an action in our courts. But the "enemy" described in Sections 2(a), (b) and (c) of the Trading with the Enemy Act is not the "enemy alien" described in the Alien Enemy Act, 40 Stat. 531, 50 U.S.C.A. § 21. The petitioners in the case at bar are "alien enemies" within the meaning of the Alien Enemy Act. They are not "enemies" within the meaning of Section 2 of the Trading with the Enemy Act. It should be noted that the President has issued no proclamation pursuant to the provisions of Section 2(c) of the Trading with the Enemy Act.⁷ The...