The opinion of the court was delivered by: TAMM
Plaintiff brings this action for return of property seized under the "Trading With the Enemy Act", 50 U.S.C.A.Appendix, § 1 et seq., hereinafter referred to as the Act. The Government having moved to dismiss thereby concedes the following well pleaded facts:
Plaintiff was born in Germany in 1870 and moved to Hawaii in 1896 where he has since resided. In April 1938 plaintiff, accompanied by his wife and daughter, who is a citizen of the United States, left Hawaii for a trip to Germany. Permits were issued to them to re-enter the United States, which permits, as extended, expired in March 1940. Following the outbreak of World War II in September 1939, plaintiff and his family were unable to secure return passage to Hawaii within the period referred to in said re-entry permits. On the contrary they were compelled to remain involuntarily in Germany during hostilities. Plaintiff's daughter returned to the United States in January 1947, but plaintiff and his wife were unable to return until July 1949. During his enforced stay in Germany, plaintiff did not own property of any kind there, purchased no war bonds or other securities, did not vote in any elections, did not engage in any efforts directly or indirectly in aid of or assistance to the was effort of Germany or of any enemy or ally of an enemy of the United States, nor was he ever directly or indirectly employed by or in the service of any government which was an enemy of the United States and never committed any act hostile inimical to the interests of the United States. Plaintiff's entire estate was included in a deed of trust with the Bishop Trust Company, Ltd. of Honolulu, Hawaii, executed in 1934, amended by trust deed of January 18, 1938, and during his absence from Hawaii plaintiff's household goods, books and similar personalty were in storage with the City Transfer Company, Ltd. of Honolulu, Hawaii. On his departure from Hawaii, plaintiff took with him to cover expenses of his trip, the sum of $ 6,500 and when his return was made impossible, in June 1940 he withdrew $ 6,000 from the trust fund and again in May 1941 he withdrew and additional $ 4,000 therefrom.
On February 5, 1948 and May 12, 1949, the then duly appointed and qualified Director of the office of Alien Property, acting under the said Act and Executive Orders No. 9193, July 6, 1942, as amended, and No. 9788, 50 U.S.C.A.Appendix, § 6 note, issued Vesting Orders No. 10616, 13 Fed.Reg. 702, 703, and No. 13253, 14 Fed.Reg. 2887, 2888, respectively. Said Orders vested in the Attorney General all of plaintiff's property therein described, being the property under the aforesaid trust agreement of May 11, 1934, as amended, including all accrued income therefrom, and all personalty stored with the aforesaid Transfer Company in Honolyly, "to be held, used, administered, liquidated, sold or otherwise dealt with in the interest of and for the benefit of the United States."
On August 27, 1948, said Trust Company delivered to the defendants the sum of $ 24,018.75 in cash, being the net income accruing from said trust estate as of June 30, 1948 and said sum is now in the possession of the defendant Treasurer of the United States.
On January 24, 1949 said Trust Company notified the Director of the Office of Alien Property that it would not make further payments of such accrued income in the future and also demanded return of said sum theretofore paid, which demand has not been acknowledged or complied with.
On November 2, 1949 plaintiff and his wife filed their declarations of intention to become naturalized citizens of the United states and on December 9, 1949 they received there first papers (Nos. 78275 and 78274). Since July 1949 plaintiff, his wife and daughter have been staying in Flushing, Long Island, New York, and aside from the wages of their daughter who is employed by a New York department store, plaintiff and his wife are without funds.
In addition to the Government's Motion to Dismiss, plaintiff has filed a Motion for Summary Judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.
Plaintiff brings this action under § 9 of the Act
on the theory that he is not an enemy or ally of an enemy. Section 2 of the Act defines the terms "enemy" and "ally of enemy", in pertinent part as follows:
"(a) Nay individual * * * of any nationality, resident within the territory * * * of any nation with which the United States is at war * * *.
"(c) Such other individuals * * * as may be natives, citizens, or subjects of any nation with which the United States is at war * * * as the President, if he shall find the safety of the United States or the successful prosecution of the war shall so require, may, by proclamation, include within the term 'enemy.' "
"(a) Any individual, partnership, or other body of individuals, of any nationality, resident within the territory * * * of any nation which is an ally of a nation with which the United States is at war * * * ".
"(c) Such other individuals, or body or class of individuals, as may be natives, citizens, or subjects of any nation which is an ally of a nation with which the United States is at war * * * as the President, if he shall find the safety of the United States or the successful prosecution of the war shall ...