Mr. Selden Bacon, of New York City, for appellant.
Mr. James A. Fowler, of Knoxville, Tenn., for appellee.
Mr. Justice McKENNA delivered the opinion of the Court.
This case was argued and submitted with No. 575, Commercial Trust Co. of New Jersey v. Thomas W. Miller, as Alien Property Custodian, 262 U.S. 51 , 43 Sup. Ct. 486, 67 L. Ed. --, just decided. It is a petition for leave to intervene in the latter suit instituted (as we have seen) by Francis P. Garvan, then Alien Property Custodian, Miller subsequently succeeding him. That suit is here on appeal from the United States Circuit Court of Appeals for the Third Circuit, this suit is here on appeal from the District Court of the United States for the District of New Jersey, a constitutional question being, it is contended, involved. 'The District Court,' the assertion is, 'months after peace had been declared, denied Wesche's petition to intervene, [262 U.S. 58, 59] and awarded conveyance and delivery of what was admittedly his separate property, to the Custodian.'
In support of these contentions and their pertinency and control, counsel's comment is that the Custodian made two demands for the property, but--
And the further argument is that 'seizure under such circumstances was undonstitutional' and that 'mere demands' by the Custodian 'did not constitute constructive capture, and even constructive capture was not completed before peace cane.'
This statement is enough preliminarily to the understanding and appreciation of Wesche's fundamental contentions which are that the conditions of the act were not complied with before suit and suit, therefore, was not justified. And the unconstitutionality of the act as applied to his case is also urged, and that the defenses were available to him in the suit. The court therefore, is the contention, in denying his petition to intervene, committed error.
The case, it will be observed, is identical in legal aspects with Commercial Trust Co. of New Jersey v. Miller, Alien Property Custodian, 262 U.S. 51 , 43 Sup. Ct. 486, 67 L. Ed. --. Here as there, Wesche's interest is asserted in the property, here by himself, there by the Trust Company. Here, as there, the conditions of suit were asserted not to have been performed; here, perhaps with more emphasis, as there, the [262 U.S. 58, 60] unconstitutionality of the act is argued; here, as there, it is urged that these contentions constituted defenses that could be made in the suit, and that relief was not only through the 'filing of a claim and instituting proceedings as provided by section 9 of the Trading with the Enemy Act' ( Comp. St. 1918, Comp. St. Ann. Supp. 1919, 3115 1/2 e).
We repeat, therefore The cases are identical, and upon the authority of that case, the order of the District Court denying Wesche's petition for intervention is