claimants of the vessel moved to abate the action on the ground that Kawato by reason of the state of war existing between Japan and the United States had become an enemy alien and therefore had no right to prosecute any action in any court of the United States during the pendency of the war. In discussing this contention of the claimants of the vessel, the Supreme Court said: "In asking that the rights of resident aliens be abrogated in their behalf, private litigants in effect seek to stand in the position of government. But only the government, and not the private individual, is vested with the power to protect all the people, including loyal aliens, from possible injury by disloyal aliens. If the public welfare demands that this alien shall not receive compensation for his work or payment for his injuries received in the course of his employment, the government can make the decision without allowing a windfall to these claimants. * * *" (Emphasis supplied.)
In the instant case, the government, acting through its executive branch under legislative authority, has abrogated the rights of the claimant here and divested him of all his property interests. Such action is decisive and dispositive.
In United States v. Chemical Foundation, 272 U.S. 1, at page 10, 47 S. Ct. 1, at page 4, 71 L. Ed. 131, the Supreme Court of the United States, in discussing the Trading with the Enemy Act of October 6, 1917, stated: "There is nothing to support a strict construction of the act in respect of the seizure and disposition of enemy property. * * * The law should be liberally construed to give effect to the purposes it was enacted to subserve."
Again, 272 U.S. on page 11, 47 S. Ct. on page 5, 71 L. Ed. 131, the court stated: "Congress was untrammeled and free to authorize the seizure, use or appropriation of such properties without any compensation to the owners."
On page 12, of 272 U.S., on page 5 of 47 S. Ct., 71 L. Ed. 131, the court said: "The language of the statute is too plain to be misunderstood. Except as affected by the proviso, the Custodian's dominion over the property and power to dispose of it -- acting under the President as provided -- were as unlimited as are the powers of an absolute owner, * * *."
In the case cited, the Supreme Court specifically ruled that seizure and sale of enemy patents by the Alien Property Custodian was a valid exercise of the President's power under the Trading with the Enemy Act of 1917. The court also ruled that the vesting in the Custodian of the property interests of the former owners constituted a complete divestment of all of their rights, and that consequently they could not complain that the Custodian had sold their patents for an inadequate consideration, etc. Said the court in this connection (272 U.S. at page 11, 47 S. Ct. at page 5, 71 L. Ed. 131): "There is no constitutional prohibition against confiscation of enemy properties. * * * The former enemy owners have no claim against the patents or the proceeds derived from the sales. It makes no difference to them whether the consideration paid by the Foundation was adequate or inadequate."
Significantly, in United States v. Chemical Foundation, the Supreme Court upheld the right of the Custodian to seize and to sell "choses in action" held by the enemy alien. In the instant case, in the final analysis, the substance of the dispute between the claimant and the Custodian is the claimant's assertion of his property interest in a chose in action -- a right to defend in the forfeiture proceedings originally instituted by the United States against the "Antoinetta".
In Cummings v. Deutsche Bank, 300 U.S. 115, 57 S. Ct. 359, 81 L. Ed. 545, the Supreme Court of the United States reaffirmed the principles enunciated in United States v. Chemical Foundation, supra. Said the court (300 U.S. at page 120, 57 S. Ct. at page 362, 81 L. Ed. 545): "Alien enemy owners were divested of every right in respect of the money and property seized and held by the Custodian under the Trading with the Enemy Act."
On page 121 of 300 U.S., on page 362 of 57 S. Ct., 81 L. Ed. 545, the court stated: "As the taking left in enemy owners no beneficial right to, or interest in, the property, the United States did not take or hold as trustee for their benefit. * * * To the extent that the argument rests upon the assumption that the taking did not divest enemy owners of every right or that the United States did not acquire absolute title, it is fallacious and need not be noticed."
In my opinion United States v. Chemical Foundation and Cummings v. Deutsche Bank are dispositive of the issue involved in the case at bar.
The claimant's contention here narrows down to the proposition that the Custodian cannot exercise his valid powers simply because the subject matter of the seizure was already the subject of litigation brought by the United States.
To sustain such a contention would be to nullify the intent of the Congress as declared in the Trading with the Enemy Act.
For the reasons stated, I am of the opinion that the orders prayed for in the petition of the Alien Property Custodian should be granted, and that the motions of the claimant should be denied.
An order may be submitted in accordance with this opinion.