Thorsch v. Miller

• Citation: 5 F.2d 118,55 App. DC 295
• Decision Date: 06 April 1925
• Docket Number: No. 4130.,4130.
• Parties: THORSCH v. MILLER, Alien Property Custodian et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 App. DC 295, 5 F.2d 118 (1925)

THORSCH v. MILLER, Alien Property Custodian et al.

No. 4130.

Court of Appeals of District of Columbia.

Submitted December 9, 1924.

Decided April 6, 1925.

G. T. Farrell, L. S. Rappaport, and H. H. McCormick, all of Washington, D. C., for appellant.

D. H. Stanley, of Washington, D. C., and John Marshall, of Parkersburg, W. Va., for appellees.

Before MARTIN, Chief Justice, ROBB, Associate Justice, and HATFIELD, Judge of the United States Court of Customs Appeals.

MARTIN, Chief Justice.

This suit was brought by Hugo Thorsch under section 9 of the Trading with the Enemy Act as amended (42 Stat. 1511), to recover from the Alien Property Custodian the proceeds of certain 3,550 shares of the capital stock of the Werner-Pfleiderer Company, a Michigan corporation, which had been seized by the Custodian on March 7, 1918, as the property of Richard and Otto Werner, who were citizens and residents of Germany.

Mr. Thorsch claimed that he was a naturalized citizen of the United States, that he had bought the stock in question from the Werners on March 12, 1917, a year before the Custodian seized it, and that he was the sole owner of it at the time of the seizure. He claimed accordingly that the property or its proceeds should be returned to him under subsections (a) and (b) of section 9 of the act as amended, since he was not an enemy or ally of enemy, nor a citizen or subject of Germany, Austria, Hungary, or Austria-Hungary. The Custodian denied that Thorsch was a citizen of the United States, and also denied that he was the owner of the property in question at the time of its seizure. The lower court decreed against the claimant, who thereupon appealed.

The first question which arises upon the record is whether Mr. Thorsch has established his right to maintain this suit as a naturalized citizen of the United States. The following enactments relate to that subject:

On March 2, 1907, Congress passed an act in reference to the expatriation of citizens and their protection abroad. 34 Stat. 1228 (U. S. Comp. St. §§ 3958-3964). Section 2 thereof reads in part as follows:

"Sec. 2. * * * 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."

On March 4, 1923, Congress passed an act to amend the Trading with the Enemy Act (42 Stat. 1511). Section 21 thereof, as added, reads as follows:

"Sec. 21. That the claim of any naturalized American citizen under the provisions of this act shall not be denied on the ground of any presumption of expatriation which has arisen against him, under the second sentence of section 2 of the act entitled `An act in reference to the expatriation of citizens and their protection abroad,' approved March 2, 1907, if he shall give satisfactory evidence to the President, or the court, as the case may be, of his uninterrupted loyalty to the United States during his absence, and that he has returned to the United States, or that he, although desiring to return, has been prevented from so returning by circumstances beyond his control."

It appears that Mr. Thorsch was born in the city of Prague, Austria. In 1894, when he was 19 years of age, he emigrated to this country, and became a naturalized citizen in 1898. In the course of time he established a printing business in Indianapolis, and by 1912 he had amassed a fortune of about $500,000. His family then consisted of his wife and one son. In the summer of 1912 he made sale of all of his property located in this country including his business and his home, converted the proceeds into Austrian money, and removed with his family to Vienna, Austria. He and his family have made temporary visits to the United States since that time, but nevertheless Vienna has been their place of general abode from the summer of 1912 up to the present time. Mr. Thorsch states that he never intended to expatriate himself, but always expected to return at some future time to this country. The testimony relating to an intentional expatriation upon his part is conflicting; but we do not find it necessary now to pass upon that question.

On August 28, 1914, after the war broke out in Europe, Mr. Thorsch became vice consul of the United States at Vienna, resigning on April 14, 1917, after diplomatic relations between this country and Austria were broken off. He and his family then continued to reside at Vienna, and during the war which followed he was not interned, nor was his property sequestered, but he continued as before to engage unrestrictedly in business in that city. In 1916 he assisted in establishing the Vienna Bank of Commerce, investing the greater part of his fortune in its stock, and becoming a director and also a member of the executive committee of the bank. He held these positions throughout the war, during which time the bank subscribed to each of the war loans issued by Austria, whereby that country was assisted in waging war against the United States and its allies. Nor has he ever become a resident of the United States since that time.

These facts bring Mr. Thorsch within the limitations of section 21, Act of March 4, 1923, supra, and prevent him from recovering as a naturalized American citizen in this suit; for he had resided for two years in the foreign state from which he came, and consequently could not recover against the Custodian without first giving satisfactory evidence to the court "of his uninterrupted loyalty to the United States during his absence, and that he has returned to the United States, or that he, although desiring to return, has been prevented from so returning by circumstances beyond his control." Mr. Thorsch has utterly failed to give any evidence of that character. It should be noted that these requirements are not mere rules of evidence for ascertaining whether a naturalized American citizen thus residing abroad had thereby intentionally expatriated himself. They serve rather as a limitation upon the Trading with the Enemy Act, prohibiting any naturalized citizen of the United States from recovering under section 9 of the act after residing abroad for the prescribed period, without first proving his uninterrupted loyalty to this country while abroad, and that he had returned to the United States, or been prevented from doing so by circumstances beyond his control.

These conditions apply in this case notwithstanding the fact that Mr. Thorsch was vice consul of the United States at Vienna during three years of his residence in that city, and that he had secured passports upon the occasions of his visits to this country. For at that time it was not required that such an officer should be a citizen of this country, and moreover Mr. Thorsch continued thereafter to reside in Vienna for more than two years before the commencement of this case. Section 2 of the act of March 2, 1907, provides that no American citizen shall be allowed to expatriate himself when this country is at war; nevertheless residence abroad during war time is to be counted when computing the period of absence from this country for the present purpose. The Department of State, acting under the authority conferred upon...