§ 203 (section 3477, R.S.). Furthermore, Congress in the preamble to the Joint Resolution, quoted above, regarded the fund as a trust fund. Observe this significant language, "whereas payments on awards of the said Special Mexican Claims Commission from funds paid to the Government of the United States by the Government of Mexico * * * should not, in justice to the beneficiaries, be deferred," etc.
The case of Doerschuck v. Mellon, 60 App.D.C. 383, 55 F.2d 741, is in point. There it appears that by agreement between the United States and Germany a commission was established to determine the claims of American citizens against the German Government and German nationals under the terms of the 1921 treaty between the United States and Germany (42 Stat.1939) and the Treaty of Versailles.
This commission made an award to the Z and F Corporation of $817,134.85. A part of the fund so awarded was paid into the United States Treasury, and $400,000 thereof was paid by the Secretary of the Treasury to the Z and F Corporation. The plaintiff and others, asserting an interest in the fund, filed their bill against the Secretary of the Treasury and the Z and F Corporation, a non-resident of the District of Columbia, praying for an injunction and the appointment of a receiver to hold the fund pending determination of its ownership, and to declare a lien in favor of the plaintiff and others similarly situated.
The defendant, Z and F Corporation, pleaded to the jurisdiction. This plea was overruled. The Court of Appeals held that Section 105 of the District Code 1924, Tit. 24, § 378, D.C.1929, applied.
Mr. Justice Groner, delivering the opinion of the Court, at pages 386-387, 55 F.2d at page 744, said: "It seems to us obvious therefore that, as to the fund thus created, the United States are not the debtor, and are neither paying nor undertaking to pay anything on their own account or from their own funds, but on the contrary have in their control a specially earmarked account for a special purpose as to which they are under no other responsibility than that of the ordinary stakeholder. There is no contention, and can be none, that this fund is not now, and has not been at all times since its receipt by the Secretary of the Treasury, located in the District of Columbia. The bill so charged. In this aspect, we think it is clearly personal property within the District, * * *. We think the situation is more nearly like that in Jones v. Rutherford, 26 App.D.C. 114, in which it was held that a check or draft in the hands of the Treasury and in which the United States have no interest is personal property within the meaning of section 105."
The reasoning of the learned Justice is applicable here. The fund is clearly personal property within the District of Columbia, and, therefore, within the jurisdiction of this Court. In view of the allegations of the bill it was necessary that Bergh be made a party, and, as he is a non-resident, the provision of section 105 may be invoked. See, also, Morgenthau v. Fidelity & Deposit Co., 68 App.D.C. 163, 94 F.2d 632.
The motion to dismiss for lack of jurisdiction because "there is no property or res within the District of Columbia to give the Court in rem jurisdiction" is overruled.
The motion to dismiss for lack of indispensable parties must be sustained. Clearly the presence of these claimants to whom awards have been made is necessary and indispensable to a complete determination of the controversy. The plaintiff is granted ten days in which to file an amended bill.
Since an amended bill is to be filed, the Court suggests that a more definite allegation be made concerning the contract or agreement between the plaintiff and the claimants showing the rights accruing to the plaintiff by virtue thereof. Attention is also directed to the allegation in paragraph 8 of the bill "that funds have been provided by Congress for payment of the same and that such payment will be made in the very near future." This allegation has been ignored by the Court following the rule that matters alleged which are contrary to judicial knowledge are not admitted by motion to dismiss. A cursory examination of the Convention of 1934 and the Act of April 10, 1935 and also the Joint Resolution of August 25, 1937 will disclose that the Congress has made no appropriation for the payment of these awards. This the Court judicially knows, and thus is able to determine that the fund in the Treasury was created for the specific purpose of paying the awards made by the Commission.
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