275 F. 486 | D.N.J. | 1921
Under section 7(a) of the Trading with the. Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%d), the Marconi Wireless Telegraph Company reported that 2,945 shares of its common capital stock stood on its books in the name of the Dresdner Bank of Bremen, Germany. Upon investigation the Alien Property Custodian concluded that the bank was an alien enemy within the purview and meaning of the act, and accordingly demanded the Marconi Company to transfer the stock to him as Alien Property Custodian, cancel the old certificates of stock, issue new ones, and account to him for the dividends on the stock. The company refused to do so, and the Alien Property Custodian filed a petition to compel compliance with his demand on which rule to show cause was issued. The company made a return to that rule in the form of an answer setting out reasons for its refusal. These reasons constitute the issues before me.
The company gave six reasons for not complying with the demand, which will be taken up in order.
Section 5(a) of the act (section 3115%c) provides that the President may exercise any power or authority conferred by the act through such officer as he shall direct. Section 6 (section 3115%.cc) gives him the authority to appoint an Alien Property Custodian. By Executive Orders of October 12, 1917, and December 3, 1918, the President delegated to the Alien Property Custodian certain powers, among which is included the power and authority to make the determination in question. Under these the determination of the status of the Dresdner Bank as an alien enemy was properly made. Kahn v. Garvan (D.
The Alien Property Custodian served written demand on the Marconi Company to transfer, etc., the stock on its books to him. The certificates are merely evidence of the ownership of the stock, which has its situs here in New Jersey, and is deemed to be held by the company in this state for the benefit of the owner. Jellenik v. Huron Copper Min. Co., 177 U. S. 1, 20 Sup. Ct. 559, 44 L. Ed. 647. On February 26, 1918, the President, under the authority of section 5(a) of the act, promulgated certain rules. Rule 2(a) prescribes a “demand” by the Alien Property Custodian as the proper method to effect a transfer of stock, and rule 2(c) provides that such a demand “shall forthwith vest in the Alien, Property Custodian such right, title, etc., in the money or other property demanded * * * as may be included in the demand.” Congress intended that the President should cause property of every kind, tangible and intangible, to be seized. The act does not prescribe the mode of seizure, but a mode must have been intended which is both reasonable and effective. The mode used in this case and prescribed by tire rules is reasonable, and when the demand was made the seizure was complete and effective. Kohn v. Jacob & Josef Kohn, Inc., et al. (D. C.) 264 Fed. 253; Miller v. United States, 78 U. S. (11 Wall.) 268, 20 L. Ed. 135.
Before the transfer is made in accordance with the demand, the Alien Property Custodian must determine whether or not the property belongs to an alien enemy. 'Of course, he may possibly make a mistake. If he does, section 9 (section 3115J4e) provides an adequate remedy for the true owner, and the corporation is completely protected by section 7(e) of the act, which provides that—
“No person shall be held liable in any court for or in respect to anything done or omitted in pursuance of any order, rule or regulation made by the President under the authority of this act.”
See Biesantz v. Alien Property Custodian, 106 Misc. Rep. 545, 175 N. Y. Supp. 46; Garvan v. Certain Shares of International Agricultural Corporation, 276 Fed. 206 (decided January 31, 1921).
Before outstanding certificates of stock may be cancelled and new ones issued in lieu thereof, in time of peace, a corporation is justified, both by reason and legislative enactment, to require the production of the old certificates. But the act under which the Alien Property Custodian is proceeding is a war measure. Under section 12, paragraph 4 (section 3115%ff), it was the duty of every corporation issuing shares to transfer them upon its books to the name of the Alien Property Custodian “upon demand accompanied hy tire presentation of the certifi
■‘It sliall be the duty of any corporation “ * * to comply with such demand when accompanied by the presentation of the certificates which represent such corporate stock.”
The Executive Order of July 16, 1918 (6a), provided, that—
“Shares of stock * * * in a corporation * * * may be advertised and sold wherever the Alien Property Custodian shall determine; and it shall be immaterial whether such shares of stock * * * be represented or evidenced by certificates or instruments or writings of any kind and whether the Alien Property Custodian shall or shall not have the possession or control thereof in the event that the same shall be thus represented or evidenced.”
In selling such shares of stock, however, considerable difficulty was experienced in securing purchasers because the Alien Property Custodian did not have the certificates representing the stock to present to the purchaser as evidence of his ownership. This difficulty was set forth in the remarks of Eee C. Bradley, Esq., at that time General Counsel for the Alien Property Custodian, before the Committee on the “First Deficency Appropriation Bill, 1919.”
On November 4, 1918, and doubtless in consequence of the difficulty thus experienced, section 7(c) of the ad was amended. As amended it provides that it shall be the duty of any corporation issuing shares of stock belonging to or held for or by an alien enemy, to cancel the same on its books, and in lieu thereof to issue certificates for such snares to the Alien Property Custodian when required by him to do so. In this amendment the requirement that the outstanding certificates be presented to the corporation before being cancelled, and new ones issued in lieu thereof, was omitted. No reason, other than the difficulties encountered, sufficiently accounts for the omission. The requirement as it stood in section 12 practically placed the enforcement of the act in many cases into the hands of alien enemies. Some refused to surrender their certificates of stock. Others were in Germany and could not present them even if they desired to do so. The respondent, however, says that while “the amendment of November 4, 1918, did not specifically state that in cases of the demand for transfer of corporate certificates, the certificates should be produced, * * * such condition is implied.” Statutory law covers only such matters as are expressly or by necessary implication included within its terms. “Such condition” is not expressly included in the amendment itself, and there is nothing in its language showing necessary implication. The history of the act indícales that the omission was not accidental, but intentional. The law prior to November 4, 1918, and Executive Orders based thereon, expressly contained the provision retíuiring the presentation of the outstanding certificates before the stock could be transferred on the books of the company. The difficulties thus caused were brought to the attention of certain members of Congress, and the amendment referred to followed and the requirement was left out. The only conclusion tenable is that it was inten
It is the duty of the court to declare the law when a case is properly before it as in this case. Consequently, contrary to the suggestion ot the respondent, the decision should not abide, or be affected by, the diplomatic relations between the United States and Germany.
The rule to show cause therefore will be made ahsolute, and the transfer of the stock ordered in accordance with the prayer of the petition.