Sawyer v. Dollar

• Decision Date: 18 May 1951
• Docket Number: No. 10956,10955,10956
• Citation: 190 F.2d 623
• Parties: LAND et al. v. DOLLAR et al. SAWYER, Secretary of Commerce, v. DOLLAR et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

190 F.2d 623 (1951)

LAND et al. v. DOLLAR et al.

SAWYER, Secretary of Commerce, v. DOLLAR et al.

Nos. 10956, 10955, No. 10956.

United States Court of Appeals District of Columbia Circuit.

May 18, 1951.

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Gregory A. Harrison and Moses Lasky, San Francisco, Cal., for appellees-petitioners for sanctions for contempt.

J. Howard McGrath, Atty. Gen. and Holmes Baldridge, Asst. Atty. Gen., for respondents to petition for sanctions for contempt Sawyer, Fleming, Perlman, Ford, Hickey, Clapp, MacGuineas, Angell and Page. Charles Dickerman Williams, Solicitor, Department of Commerce, New York City, also appeared for respondents Sawyer, Fleming and Page.

Arthur B. Dunne, San Francisco, Cal., for respondent Killion.

Before CLARK, WILBUR K. MILLER and PRETTYMAN, Circuit Judges.

Findings of Fact

1. Asserting that the transfer of shares amounting to 92 percent of the voting control of what is now American President Lines, Ltd., to the United States Maritime Commission, which occurred in 1938, was a pledge to secure indebtedness, and that, the indebtedness having been paid, the pledgors were entitled to have the pledged shares returned to them, the Dollar interests sued the then members of the Maritime Commission to recover possession.

The defense of the members of the Commission was that the 1938 transaction was an outright transfer to the United States and that they held the shares in their official capacities as officers of the government; that the suit was therefore one against the United States to which it had not consented.

The Supreme Court held that the jurisdictional question depended upon the nature of the 1938 transaction: (a) if it was a pledge, the members of the Commission acted tortiously in retaining possession after the indebtedness secured thereby had been discharged, and so could be sued by the Dollar interests for a return of the property; (b) if it was a sale or other absolute transfer of title, the members of the Commission held the shares for the United States as the owner thereof and could not be sued for possession, absent the government's consent. The Supreme Court directed, therefore, that the lower courts determine the nature of the 1938 transaction, pointing out, however, that, while the determination of the question would settle the issue of possession, a decree that the transaction was a pledge only would not prevent the United States itself from asserting title as the government was not a party to the possessory action. Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209.

Subsequently, on July 17, 1950, this court held the transaction of 1938 was a pledge of the shares and not a sale; that, when the indebtedness secured by such collateral had been paid in full with interest, the pledgors were entitled to have the shares returned to them. Dollar v. Land, 87 U.S.App.D.C. 214, 184 F.2d 245.

Acting through Philip B. Perlman, Solicitor General, the former members of the Maritime Commission and their successor, Charles Sawyer, as Secretary of Commerce, petitioned for a writ of certiorari to review our holding. The Supreme Court denied the petition on November 13, 1950. Land v. Dollar, 340 U.S. 884, 71 S.Ct. 198.

We find as a fact, therefore, that since November 13, 1950, all the respondents here have known that a court of competent jurisdiction had finally adjudged that the transaction of 1938 was a pledge of the shares and that, if the members of the Maritime Commission or the Secretary of Commerce refused to surrender them to the pledgors after the indebtedness had been paid, they would hold them, not in their official capacities as agents of the United States, but as tort feasors acting in their individual capacities.

2. Respondent Charles Sawyer, acting on the advice of the Department of Justice respondents, continued nevertheless to hold possession of the shares and refused to surrender them to the pledgors, on the sole ground that the 1938 transaction was an outright transfer and not merely a pledge and that, therefore, Charles Sawyer in his official capacity was entitled to retain possession for the United States.

3. On December 11, 1950, the United States District Court for the District of Columbia entered an order on our mandate; and on December 15, 1950, notices of appeal to this court from that order were filed by the United States, the Secretary of Commerce, and the former members of the United States Maritime Commission. On January 31, 1951, we handed down an opinion in those appeals in which, as amended February 8, 1951, we directed the District Court to modify a portion of its judgment to read as follows:

"2. That plaintiffs are entitled to possession of the shares as against defendants,* and the defendants are ordered and directed to deliver forthwith to the plaintiffs the said shares. The possession to which plaintiffs are entitled is an effective possession of the shares. In so far as such right requires action on the part of defendants in addition to physical delivery of the certificates, such action is hereby directed to be taken. Plaintiffs are entitled under this judgment to all rights belonging to possessors of the shares. Plaintiffs are further entitled, as provided by Rule 70 of the Federal Rules of Civil Procedure, `to a writ of execution or assistance upon application to the clerk' of this court, if such writ becomes necessary.

"* Plaintiff Dollar Steamship Line 2,100,000 shares of the B stock and 2,075 shares of the A stock;

"Plaintiff R. Stanley Dollar 51,174 shares of the A stock "Plaintiff The Robert Dollar Co. 37,722 shares of the A stock;

"Plaintiff H. M. Lorber 9,174 shares of the A stock."

We also noted that Charles Sawyer, Secretary of Commerce, had asserted in the District Court that he "holds custody of the stock which is the subject of this action" and with respect to him we said in the opinion:

"* * * The District Court is directed to enforce obedience to its order, as herein modified, whether effective process is against the present named defendants or is against another official, or other officials, against whom the order might be lawfully enforced if he or they were a party or parties to the suit. If the Secretary of Commerce now has custody or possession of the shares, he obviously acquired such custody or possession since the beginning of this action, indeed since the order of June 11, 1947. Obedience to the order about to be entered pursuant to this opinion is, therefore, enforceable against him, and he is liable, under Rule 71, supra, to the same process for enforcing obedience to that order as if he were a party."

On February 14, 1951, Emory S. Land, et al., former members of the United States Maritime Commission, and Charles Sawyer, Secretary of Commerce, filed a petition for a writ of certiorari to review our judgment of January 31, 1951. The Supreme Court denied that petition on March 12, 1951. Land v. Dollar, 340 U.S. 948, 71 S. Ct. 198.

On March 16, 1951, the District Court entered an order in the language which was prescribed by us, and implemented it by adding thereto the following:

"1. Said Charles Sawyer shall endorse each of said stock certificates in blank by signing thereon in the place provided for endorsement `United States Maritime Commission, by Charles Sawyer, Secretary of Commerce.' And shall forthwith deliver them to the plaintiffs. Such delivery may be made to Moses Lasky, one of the plaintiffs' attorneys.

"2. If said Charles Sawyer delivers said certificates to plaintiffs or to said Moses Lasky, without having endorsed them, the clerk of this Court shall, at the request of any of the attorneys of the plaintiffs, endorse each of said certificates in blank, signing them `United States Maritime Commission, by Harry M. Hull, Clerk of the United States District Court for the District of Columbia,' and shall attach to each of said certificates a certified copy of this order and a certified copy of the above order on mandate modifying final judgment and shall forthwith return said certificates to the plaintiffs through their attorneys.

"3. Said Charles Sawyer shall also forthwith by telegram instruct American President Lines, Ltd., its president, secretary and directors to transfer all the B stock, and 100,145 shares of the A stock of American President Lines, Ltd., to the plaintiffs in the amounts specified in the above mentioned order on mandate, and to make such transfers of record prior to said annual meeting.

"4. In the event the said Charles Sawyer fails by 9:00 A. M., on March 17, 1951, to give to the clerk and to plaintiffs' attorneys at Room 432 Shoreham Building, Washington, D. C., proof satisfactory to said attorneys that he has complied with the provisions of paragraph 3 above, the clerk of this Court shall forthwith give American President Lines, Ltd., its president, secretary and directors at 311 California Street, San Francisco 4, California, the following instructions and advice:

"That said American President Lines, Ltd., its president, secretary and directors are instructed to transfer all said shares of stock of record to the plaintiffs in the amounts specified in the said order on mandate, and to do so prior to the annual meeting of American President Lines, Ltd., on Monday, March 19, 1951; and

"The clerk shall give said advices and instructions by telegram or teletype so that they may reach their destinations prior to the said annual meeting on March 19, 1951. The clerk may give said instructions and advices by sending to American President Lines, Ltd., its president, secretary and directors by telegram or teletype a copy of said order on mandate and a copy of this order together with a statement that the instructions commanded to be given by this paragraph 4 of this order shall be deemed thereby to have been given."

4. During the period beginning in December, 1950, and extending into March, 1951, the Department of...