Chemieprodukte from such licenses. Evidence was introduced to the effect that the business of Arobiga was dominated and directed by the original plaintiff.
The Government contends that these facts are sufficient to justify a conclusion that the original plaintiff was doing business in Germany and other enemy-occupied territories. The Court is of the opinion, however, that this inference is not warranted on the basis of the evidence in this case. First, there is no evidence as to what the connection was between the original plaintiff and Arobiga, other than the fact that the original plaintiff was directing its activities. More than that, however, there is no evidence as to whether Chemieprodukte was issuing licenses as agent of Arobiga or whether it was doing so as an independent contractor. If the former was the case, an inference might well be drawn that Arobiga was doing business in Germany and other enemy-occupied territory. If the latter is the case, no such deduction is justified. As just stated, there is no evidence on this point, although the fact that Arobiga was receiving from Chemieprodukte only one-third of the net profits from the licenses would seem to indicate that the two concerns were independent contractors rather than that they maintained the relation of principal and agent.
Thus the Court concludes that the original plaintiff, on the basis summarized, was doing business in Italy during the crucial was years. It is urged, however, as a matter of law in behalf of the plaintiff that doing business in Italy was not within the definition of Section 2 of the Act, on the theory that Italy should not be regarded as enemy territory. This contention is predicated on Section 1 of the Act of August 5, 1947, 61 Stat. 784. That section authorized the President to return, in accordance with the procedures provided for in Section 32 of the Trading with the Enemy Act, as amended, any property that before its seizure was the property or interest of Italy or a citizen or subject of Italy, or a corporation or association organized under the laws of Italy.
There are two difficulties with this contention of the plaintiff. One is that the authority granted to the President by the Congress by this statute, was extended only to such property as had been the property of a citizen or subject of Italy. The original plaintiff was a citizen of Germany. The second difficulty the plaintiff confronts in this respect is that this authority is limited to a return of property sn accordance with the procedures provided for in Section 32 of the Trading with the Enemy Act. That section authorized the President to return seized property of certain types to individuals included within certain specified classes. The Supreme Court has ruled, however, that this section confers on the President or his nominee certain administrative discretion and that this discretion is not subject to judicial review. Schilling v. Rogers, 363 U.S. 666, 80 S. Ct. 1288, 4 L. Ed. 2d 1478. No action may be maintained, therefore, under Section 32 if the President or his nominee -- in this instance the Attorney General -- declines, in the exercise of his discretion, to return any property referred to in that provision. Consequently, this Court is limited to the restrictions of Section 9(a) and the definition contained in 2(a) of the Act in determining whether this action may be maintained.
The Court concludes that the original plaintiff was not a qualified claimant under Section 9(a) of the Trading with the Enemy Act, on the ground that during the crucial war years he was doing business in enemy territory, towit, Italy. In view of these considerations the Court will render judgment dismissing the action on the merits.
The transcript of this oral decision shall constitute the findings of fact and conclusions of law. Counsel will submit an appropriate judgment.
© 1992-2004 VersusLaw Inc.