DOUGLAS, J., dissenting.

345 U.S.

There is not a word in the Act which allows such an unconscionable appropriation of the public domain by private interests. To infer that Congress sanctioned such a scheme is to assume it was utterly reckless with the public domain. I would assume that Congress was a faithful trustee, that what it approved as "public works" projects it dedicated to the good of all the people.

Syllabus.

ORVIS ET AL. v. BROWNELL, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT.

No. 404. Argued February 4, 1953. Decided March 16, 1953.

After Executive Order No. 8389, issued pursuant to the Trading with the Enemy Act, became effective as to Japan, blocking all transfers of evidences of debt or interests in property of Japanese citizens, petitioners commenced a suit in a New York state court against Japanese debtors. Without obtaining a license therefor, petitioners attached a credit owed the Japanese debtors by a third party, and obtained judgment. Thereafter the Custodian vested the credit by a res vesting order and it was paid over to the Custodian. Held: By their unlicensed attachment, petitioners obtained no "interest, right, or title" recoverable against the Custodian in a proceeding under § 9 (a) of the Act. Pp. 184-189.

(a) The freezing order, while permitting an attachment for jurisdictional and other state law purposes, prevented the subsequent acquisition of a lien which would bind the Custodian under §9 (a). Pp. 186-189.

(b) The Custodian may proceed to administer the vested assets according to § 34 of the Act and to consider petitioners' claim and its status thereunder, subject to the review therein provided. Pp. 188-189.

198 F.2d 708, affirmed.

The District Court granted petitioners' motion for judgment on the pleadings in a suit against the Custodian under § 9 (a) of the Trading with the Enemy Act. The Court of Appeals reversed. 198 F. 2d 708. This Court granted certiorari. 344 U. S. 902. 344 U. S. 902. At the time of the

argument, February 4, 1953, Brownell, present Attorney General, was substituted as respondent for McGranery, former Attorney General. Affirmed, p. 189.

nied that of the respondent. The Court of Appeals reversed. We granted certiorari.3

In

The petitioning judgment creditors here are in the same position as were those in the declaratory judgment action of Zittman v. McGrath, 341 U. S. 446, in that they have judgments and attachment liens valid under New York law as against their enemy national debtors and as against those whose credits were attached. In the first Zittman case, we held that the executive freezing order did not prevent such an attachment from creating rights between the judgment creditor and the enemy debtor whom the Custodian had elected to succeed. the second Zittman case, however, we held that where the Custodian elected to vest the res for administration purposes he was entitled to possession, even as against such an attaching creditor whose lien would have been valid under New York law. We are now called upon to decide a question not presented by these earlier cases: whether the freezing order prevented a creditor from thereafter acquiring by attachment an "interest, right, or title" in property such as will support a claim against the Custodian under § 9 (a) of the Act. We hold that the freezing order did have such an effect and that, while it recognized attachment liens insofar as they determined

2 198 F. 2d 708.

4

3 344 U. S. 902.

Executive Order No. 8389, April 10, 1940, 5 Fed. Reg. 1400, as amended by Executive Order No. 8785, June 14, 1941, 6 Fed. Reg. 2897: ". . . All of the following transactions are prohibited, except as specifically authorized by the Secretary of the Treasury by means of . . . licenses, . . . if . . . such transactions involve property in which any foreign country designated in this Order, or any national thereof, has at any time on or since the effective date of this Order had any interest of any nature whatsoever, direct or indirect: . . . E. All transfers, withdrawals or exportations of, or dealings in, any evidences of indebtedness or evidences of ownership of property by any person within the United States . . . ."

Syllabus.

ORVIS ET AL. v. BROWNELL, ATTORNEY GENERAL, SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT.

No. 404. Argued February 4, 1953. Decided March 16, 1953.

After Executive Order No. 8389, issued pursuant to the Trading with the Enemy Act, became effective as to Japan, blocking all transfers of evidences of debt or interests in property of Japanese citizens, petitioners commenced a suit in a New York state court against Japanese debtors. Without obtaining a license therefor, petitioners attached a credit owed the Japanese debtors by a third. party, and obtained judgment. Thereafter the Custodian vested the credit by a res vesting order and it was paid over to the Custodian. Held: By their unlicensed attachment, petitioners obtained no "interest, right, or title" recoverable against the Custodian in a proceeding under § 9 (a) of the Act. Pp. 184-189.

(a) The freezing order, while permitting an attachment for jurisdictional and other state law purposes, prevented the subsequent acquisition of a lien which would bind the Custodian under §9 (a). Pp. 186-189.

(b) The Custodian may proceed to administer the vested assets according to § 34 of the Act and to consider petitioners' claim and its status thereunder, subject to the review therein provided. Pp. 188-189.

198 F.2d 708, affirmed.

The District Court granted petitioners' motion for judgment on the pleadings in a suit against the Custodian under § 9 (a) of the Trading with the Enemy Act. The Court of Appeals reversed. 198 F.2d 708. This Court granted certiorari. 344 U. S. 902. At the time of the argument, February 4, 1953, Brownell, present Attorney General, was substituted as respondent for McGranery, former Attorney General. Affirmed, p. 189.

Donald Marks argued the cause and filed a brief for petitioners.

James L. Morrisson argued the cause for respondent. With him on the brief were Solicitor General Cummings, Assistant Attorney General Kirks, James D. Hill and George B. Searls.

Briefs of amici curiae supporting petitioners were filed by Joseph M. Cohen for Zittman; and Henry I. Fillman for McCarthy.

MR. JUSTICE JACKSON delivered the opinion of the Court.

This suit, under § 9 (a) of the Trading with the Enemy Act,' asks a decree that petitioners have an interest in vested property of Japanese nationals in the hands of the Alien Property Custodian, that he holds the prop

150 U. S. C. App. § 9 (a): “Any person not an enemy or ally of enemy claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian or seized by him hereunder and held by him or by the Treasurer of the United States... may file with the said custodian a notice of his claim under oath and in such form and containing such particulars as the said custodian shall require; and the President, if application is made therefor by the claimant, may order the payment. . . or delivery to said claimant of the money or other property so held by the Alien Property Custodian . . . or of the interest therein to which the President shall determine said claimant is entitled . . . . If the President shall not so order within sixty days after the filing of such application or if the claimant shall have filed the notice as above required and shall have made no application to the President, said claimant may institute a suit in equity in the Supreme Court of the District of Columbia or in the district court of the United States for the district in which such claimant resides. . . to establish the interest, right, title, or debt so claimed, and if so established the court shall order the payment . . . or delivery to said claimant of the money or other property so held by the Alien Property Custodian . . .

"