APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
MR. JUSTICE McKENNA delivered the opinion of the Court.
This is a suit under the Trading with the Enemy Act of October 6, 1917, c. 106, 40 Stat. 411, and the amendment of November 4, 1918, c. 201, 40 Stat. 1020. It was commenced by Francis P. Garvan, as Alien Property Custodian. He ceasing to be such, Thomas W. Miller was appointed his successor, and substituted as petitioner.
Section 7 of the act provide that "If the President shall so require any money or other property . . . held . . . for the benefit of an enemy", without license "which the President after investigation shall determine . . . is so held, shall be conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian."
The act has received exposition in Central Union Trust Co. v. Garvan, 254 U.S. 554, and Stoehr v. Wallace, 255 U.S. 239, and what it authorizes, and the conditions of the exercise of its authorization determined.
Whatever problems the act presents those cases resolve. They decide that the President's power may, under § 5*fn1 of the act, be delegated to and be exercise by the Custodian, and that the determination of the Custodian is conclusive whether right or wrong. And it may be exercised by forcible seizure of the property or by suit and, if by suit, the suit is purely possessory and must be yielded to; the right of any claimant being postponed to subsequent assertion. And it was decided that the Custodian acquires by suit "nothing but the preliminary custody such as would have been gained by seizure. It attaches the property to make sure that it is forthcoming if finally condemned and does no more." In other words, and in comprehensive description, the act may be denominated an exercise of governmental power in the emergency of war and its procedure is accommodated to and made adequate to its purpose, but securing, as well, the assertion of opposing or countervailing rights "by a suit in equity unembarrassed by the precedent executive determination", and if the claimant "prevails" the property "is to be forthwith returned to him."
These are the determining generalities, and the Circuit Court of Appeals, applying them, affirmed the decree of the District Court, adjudging, ordering and decreeing that the Commercial Trust Company of New Jersey "do forthwith convey, transfer, assign, deliver and pay to Thomas W. Miller, as Alien Property Custodian, all of the money and other property held by it under a certain trust agreement entered into on January 30, 1913", between the Company and Frederick Wesche and Helene J. v. Schierholz. A list of the moneys and other property was attached to the decree.
It was recited in the trust agreement that the property, which consisted of bonds, was held "for the joint account of said Frederick Wesche and Helene J. v. Schierholz, and to collect the interest to become due and payable on said bonds" for their joint account, and to deliver the bonds from time to time as requested, to either "or to the survivor of them, it being understood that the said bonds and the said interest money to be collected thereon are to be held and collected and delivered or paid over to either the said Frederick Wesche or to the said Helene J. v. Schierholz, or to the survivor of them."
In addition to the above, the following may be quoted from the opinion of the Circuit Court of Appeals:
"The Trust Company, in compliance with the provisions of the act, made a report in December, 1917, that it held stocks, bonds, and mortgages, securities and money, of the value of about $600,000, in trust, as to both principal and interest, for the joint account of Frederick Wesche, of Paris, France, and Helene J. von Schierholz, of Plaue, Germany, to be delivered and paid to either upon his or her sole demand, or to the survivor.
"Upon investigation the Alien Property Custodian determined that Wesche was a neutral and von Schierholz an alien enemy not holding a license for the President, and ...