Cities Service Co. v. McGrath
Opinion of the Court
delivered the opinion of the Court.
In this suit the Attorney General of the United States as successor to the Alien Property Custodian
The District Court granted summary judgment for petitioners on the ground that the Attorney General, in issuing the vesting order in question, had exceeded his authority to vest property “within the United States.”
We believe that the Trading with the Enemy Act grants the.authority necessary to vest obligations evidenced by domestic negotiable bearer debentures even though the debentures themselves are outside the United States. By § 7 .(c) of the Act, enacted during World War I, the President is given the. authority to seize all enemy property, “including . , . choses in action, and rights and claims of every character and description owing or belonging to ... an enemy . . . .” At the beginning of World. War II, Congress made an even broader grant of authority to the Executive through an amendment to § 5 (b), providing that “any property dr interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President . . . .” See Markham v. Cabell, 326 U. S. 404, 411 (1945); Silesian-American Corp. v. Clark, 332 U. S. 469, 479 (1947); Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 485-486 (1947). That the obligations represented by. negotiable bear.er debentures come within these broad terms is beyond question.
Petitioners urge, however, that the debentures themselves constitute the .debt, and since the debentures were located outside of the United States at the time of vesting, the debts did hot have a situs within the United States and therefore were not proper subjects of seizure. To apply this fiction here would not only provide a sanctuary for enemy investments and defeat the recovéry of American securities looted by conquering forces; it would also
A more serious question is whether application of the seizure provisions of the Act to petitioners will take their property in violation of the Fifth Amendment, unless they have á remedy against the United States in the event a foreign court holds them liable to a holder in due course
Affirmed.
The powers and functions Oi the Alien Property Custodian were transferred to the Attorney General by Exec. Order No. 9788 (Oct. 14, 1946), 11 Fed. Reg. 11981. The terms “Custodian”’ and “Attorney General” are used interchangeably in this opinion.
40 Stat. 411, as amended, 50 U. S. C. App. § 1 et seq.
Vesting Order No. 12960 (March 11, 1949), 14 Fed. Reg. 1405. The vesting order recited that the obligations were “owned or controlled by, payable or deliverable to, held on behalf of or on account of, or owing to, or [were] evidence of ownership or control by,” the specified resident and national of Germany.
'With respect to this debenture, the Attorney General seeks payment by petitioners of the proceeds of redemption plus -accrued interest; or, in the alternative,' the'issuance to him of a new debenture of the same series, and for the same face value, and with the same number of unpaid interest coupons attached.
With respect to this debenture, the Attorney General seeks payment of the redemption proceeds plus accrued interest.
By § 2 (c) of Exec. Order No. 9095 (March 11, 1942), 7 Fed. Reg. 1971, as amended by Exec. Order No. 9193 (July 6, 1942), 7 Fed. Reg. 5205, and Exec. Order No. 9567 (June 8, 1945), 10 Fed. Reg. 6917, the President, acting pursuant to the Trading with the Enemy Act, as amended, delegated to the Attorney General authority to vest property “within the United States” owned by a designated enemy country or national thereof, with specified exceptions not relevant here. Assuming, without deciding, that this, language is narrower' than the language of §§ 5 (b) and 7 (c) of the Act, as amended, we need not decide which language is contrdlling. For, as indicated below, we believe that in anyi event the obligations vested here were “within the United States” and thus come within the presumably narrower terms of the Executive Order.
Section 9 (n) was added in 1928 by the Settlement of War Claims Act, 45 Stat. 254, which provided in general for the return of 80% of all seized property. The purpose of § 9 (n) was to authorize the President, where he had seized a stock or bond interest .without seizing the instrument itself, to make such 80% return to the current holder of the .instrument. See H. R. Rep. No. 17, 70th Cong., 1st Sess. 21; S. Rep. No. 273, 70th Cong., 1st Sess. 30.
See §§ 5 (b) (2) and 7 (e).
Such recovery will not be prevented.by § 7 (c) of the Act. That subsection provides in part:
“The sole relief and remedy of any person having any claim to any money or other property heretofore 6r hereafter conveyed, transferred, assigned, delivered, or paid over to the Alien Property Cus-' todian, or required so to be, or seized by him shall be that provided by the, terms of this Act
Petitioners^ however, will not be claiming “any money, or other property . . . conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian, or required so to be, or seized by him . . . .” father they will be claiming just compensation under the. Fifth Amendment for a taking of their property. ' Therefore >the provision quoted abpve will not apply to them. -
Concurring Opinion
with whom Mr. Justice Minton joins, concurring.
We concur in the result and in the opinion except as to its declaration that petitioners will be able to recoup just compensation from the United States should they suffer a judgment effecting a second recovery against them. ■ •
In our view there is- no present taking of the property of Cities 'Service, but only of the money due from Cities Service to the foreign bondholder on maturity of the obligation. Standard Oil Co. v. New Jersey, 341 U. S. 428. It may be that if Cities Service is later required to pay a claimant other than the Alien Property Custodian, it will have a claim against the United States for satisfaction of its expenditure. Determination that the United States owes, such an obligation should await development óf the circumstances of a second judgment. Direction Der Disconto-Gesellschaft v. U. S. Steel Corp., 300 F. 741., 743; 267 U. S. 22, 29.
Reference
- Full Case Name
- CITIES SERVICE CO. Et Al. v. McGRATH, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN
- Cited By
- 35 cases
- Status
- Published