Opinion
No. 44/561.
03-12-1918
TORTORIELLO v. SEGHORN et al.
Samuel Herman, of Newark, for complainant. Louis J. Beers and Edward A. Schilling, both of Newark, for defendants.
Suit for specific performance by Rocco Tortoriello against Anna Louise Seghorn and others. Decree for complainant.
Samuel Herman, of Newark, for complainant. Louis J. Beers and Edward A. Schilling, both of Newark, for defendants.
FOSTER, V. C. This is an action to compel the specific performance of a contract for the sale of certain real estate on Warwick street in the city of Newark, where all the parties reside.
The facts in the case are undisputed. Defendants, however, refused to perform their contract and convey the premises in question to complainant, because they claim they are advised that to do so would make them subject to the penalties of fine and imprisonment imposed by the act of Congress, approved October 6, 1917, and known as the "Trading with the Enemy Act," as they are not citizens of the United States and were born in the German Empire, and are considered subjects of that country, with which this country is at war; and they further claim that they have been advised that byreason of their German citizenship they are considered alien enemies, and are not permitted under the act to complete their contract, and convey their property.
The word "enemy" under the Trading with the Enemy Act is defined therein as follows:
"Sec. 2. (a) Any individual, partnership or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war, or resident outside the United States and doing business within such territory, and any corporation incorporated within such territory of any nation with which the United States is at war or incorporated within any country other than the United States and doing business within such territory.
"(b) The government of any nation with which the United States is at war, or any political or municipal subdivision thereof, or any officer, official, agent, or agency thereof.
"(c) Such other individuals or body or class of individuals, as may be natives, citizens, or subjects of any nation with which the United States is at war, other than citizens of the United States, wherever resident or wherever doing business, 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.'"
Defendants and those advising them assume that because they were born in Germany and are subjects of that nation, they are therefore to be regarded not only as aliens, but as alien enemies, under the terms of the Trading Act; in fact, they assume that every native, citizen, or subject of a nation with which we are at war is classed as an enemy. There is nothing in the act, however, to warrant this assumption. As the defendants are resident of this state, and as neither of them, so far as the record discloses, is an officer, official, or agent of Germany, or of any political or municipal subdivision thereof, they do not therefore come within the congressional definition of the term "enemy" set forth in the above-quoted paragraphs (a) and (b). If they are to be brought within the prohibition of the act, it must be under the provisions of paragraph (c); and they can only be brought within the description of an "enemy," under this paragraph, by virtue of the proclamation of the President. The only proclamation of the President relating to this subject, that has come to my attention, is the one of February 5, 1918, wherein the President finds and proclaims:
"That all natives, citizens and subjects of the German Empire, or the Austro-Hungarian Empire, who * * * have been heretofore or may be hereafter transferred after arrest into the custody of the War Department for detention during the war, shall be included within the meaning of the word 'enemy' for the purposes of the Trading with the Enemy Act, and for such trading * * * every such alien enemy who is so transferred after arrest into the custody of the War Department for detention during the war shall be and hereby is included within the meaning of the word 'enemy,' and shall be deemed to constitute an 'enemy' for such purposes."
As the record does not show that either of the defendants has been arrested and transferred into the custody of the War Department for detention during the war, it is clear that they do not come within the meaning of the word "enemy," as defined in the proclamation of the President: and from what has been said, it is apparent that neither the facts nor the law support defendants' position.
It is true that some text-books on international law and some of the older cases hold that the natives, citizens, and subjects of one belligerent are enemies of the country with which it is at war; and that such persons cannot ordinarily trade in or transact business within such country. The more modern, and I believe the better, view is, that since the Congress has assumed jurisdiction over the subject and has enacted legislation with respect thereto, such legislation, and not the theories and speculations of writers, however eminent, should control in determining the status of aliens while this country is at war. Our statute relating to aliens was enacted in 1817 to correct conditions growing out of the War for Independence and the War of 1812 with Great Britain. This act, among other things, expressly authorizes aliens to purchase and hold real estate in this state (C. S. p. 39), and while it prohibits an alien from purchasing lands while this country is at war with any state or power of which such alien is a subject, yet such purchases made by an alien (as in this case) before the war or after it are permitted, and an alien may "have and to hold the same to him or her and his or her heirs and assigns forever, as fully to all intents and purposes, as any natural-born citizen of the United States may or can do." And it will be noted that while there are restrictions imposed upon the purchase of real estate during the war, no such restraint is imposed on the sale or alienation of real estate, no matter when acquired.
Congress in the Trading with the Enemy Act, aside from the power thereby vested in the President, has made the test of enemy character depend upon residence, or official or agency relation, and not upon nationality, or mere alienage. The President by his proclamation has extended the ban upon trading only to such aliens as have been or may be arrested and interned in the custody of the War Department for the duration of the war; and with his intimate knowledge of the situation, he has not yet found it necessary to include within the meaning of the word "enemy" other individuals who may be natives, citizens, or subjects of the German Empire. As a result of this forbearance, aliens not so classified have been at liberty to continue in the pursuit of their business and trade, including the receipt, banking and expenditure of money belonging to them, without the slightest governmental interference or supervision. Such being the case, there is no reason apparent why an exception should be made with respect to transactions relating to real estate; and if such an exception is to be made, I cannot think of a satisfactoryreason why the courts should assume the prerogative of making it, as the Congress has expressly vested that power in the President; and we require no assurance that he will wisely exercise it when and as the exigencies of the situation call upon him for action.
My conclusion is that the defendants are not "enemies" within the meaning of the Trading with the Enemy Act, or the President's proclamation issued thereunder, and that the record discloses no legal obstacle that prevents them from performing their contract with complainant.
A decree will be advised in accordance with the prayer of the bill.