as a sovereign toward German subjects, and particularly these plaintiffs, now resident in this country.
Under the definition of "enemy", as set out in the Trading with the Enemy Act, supra, these plaintiffs do not fall within that category unless included by proclamation of the President. I find no proclamation as yet proclaimed by the President under the terms and authority of the Trading with the Enemy Act, and I am therefore of the opinion that the provisions of that Act have no application to this action at this time.
However, by proclamation of the President of the United States on December 8, 1941, No. 2526, pursuant to Section 21 of Title 50 of the United States Code, 50 U.S.C.A. § 21, "all natives, citizens, denizens or subjects of Germany being of the age of fourteen years and upwards who shall be within the United States * * * are termed alien enemies * * *." This proclamation further sets out that all alien enemies shall be liable to restraint, or to give security, or to remove and depart from the United States, and provides by reference strict regulations for their conduct.
Shortly after our entry into the war with Germany and Austria-Hungary in 1917, there were similar proclamations which included the following, the language being substantially identical in both proclamations: "* * * and so long as they shall conduct themselves in accordance with law, they shall be undisturbed in the peaceful pursuit of their lives and occupations and be accorded the consideration due to all peaceful and law-abiding persons, except so far as restrictions may be necessary for their own protection and for the safety of the United States; and towards such alien enemies as conduct themselves in accordance with law, all citizens of the United States are enjoined to preserve the peace and to treat them with all such friendliness as may be compatible with loyalty and allegiance to the United States." 40 United States Statutes at Large, Part 2, page 1650, as to Germany, and 40 United States Statutes at Large, Part 2, page 1772 as to Austria-Hungary.
In the Presidential Proclamation of December 8, 1941, although there is a recital that the proclamation includes directions as to "the conduct to be observed on the part of the United States to all natives, citizens, denizens or subjects of Germany * * *", no such provision as that above quoted from the Proclamation of 1917 is therein contained.
In permitting a citizen of Austria-Hungary, resident in this country, to maintain his suit in 1918, the Court, in Krachanake v. Acme Mfg. Co., supra, based its holding, in large measure, upon that provision of the 1917 Proclamation quoted above.
I cannot escape the conclusion that omission of such a provision is of paramount significance. In the 1917 Proclamation, it is provided that alien subjects shall "be accorded the consideration due to all peaceful and law-abiding persons, except so far as restrictions may be necessary for their own protection and for the safety of the United States; * * *" In the 1941 Proclamation, German subjects, including these plaintiffs, are denominated as alien enemies, and the provision that they be accorded the consideration due to all peaceful and law-abiding persons is significantly omitted.
I find no other Presidential Proclamation nor Act of Congress bearing on this subject.
In the light of well recognized rules of construction, the omission of the above quoted provision of the 1917 Proclamation from the 1941 Proclamation must be construed as the deliberate intent on the part of our Government at this time to impose greater restrictions upon subjects of enemy countries resident here than were imposed in 1917. It is entirely reasonable to assume that this action was well considered.Our enemies have declared that this is Total War, while in 1917-1918 some of the amenities of civilization were preserved. It is only natural that our Government should grant fewer privileges now than in 1917 to citizens of countries which have declared that it is their deliberate purpose to altogether destroy us and our allies.
It therefore seems to me that the privilege of prosecuting their cause of action must be denied to these plaintiffs at this time. Their right of action should not be prejudiced, but it is my conclusion that this action must be stayed for the duration of the War or until these plaintiffs are accorded the privilege of prosecuting their cause of action, either by Act of Congress, or by Proclamation of the President, who has the power under 50 U.S.C.A. § 21 to "direct the conduct to be observed, on the part of the United States" toward aliens. An order will be entered accordingly.
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