The main issue is as to the purpose and effect of the Executive Order. The words of the Executive Order and, read as a whole, its plain purpose are to give to the Secretary of the Treasury such complete control over these frozen bank deposits as will enable him to prevent the acquisition or transfer of any rights whatsoever therein.
The Executive Order is designed for the purpose of affording the Secretary the means of preventing nations with which we are at war from utilizing in any manner such deposits. The entrance of the United States into the war, and more especially the declaration of war between the United States and Rumania, emphasizes this primary purpose. These freezing orders are used to give complete wartime control, and to effect a complete prohibition against trading by or with the enemy. To insure the effectiveness of such control, the Secretary of the Treasury is given the power to grant or refuse licenses. There is nothing to prevent the Secretary of the Treasury from consenting to any transfer of interest. In the absence, however, of a precedent consent by the Secretary of the Treasury, no interest whatsoever can be lawfully acquired in this property in view of the terms of the Executive Order. Otherwise not only the wording but the purpose of the freezing order is violated.
If I understand the difference of opinion in this court, it is that those opposed to the above view take the position that a transfer by attachment may be made conditioned upon a subsequent releasing of the deposits by the Secretary of the Treasury. Such a view affords a medium of trading in these blocked accounts. It is the view here taken that any construction of the Executive Order which would permit trading in these blocked deposits to any extent would immediately render them available for purposes inimical to the national interest. If no interest at all is acquired then the attachment must fail. In so far as an interest is acquirable, to that extent trading with the enemy is permitted and perhaps under certain circumstances protected by constitutional requirements. No transfer of title in the absence of a license is permitted by the wording of the Executive Order, whether the transfer be by means of assignment or attachment. The purpose of the Executive Order is not to freeze the deposits and permit a change of ownership *Page 340 subject to a license, but the purpose is to freeze deposits as now owned and still to be owned by blocked nationals. The important point is that the Executive Order freezes this deposit under the ownership of the National Bank of Rumania as a blocked national, and that this deposit cannot be divorced from that ownership without a prior release from the Secretary of the Treasury.
The States of this Union do not share in the power over external affairs. When the United States, acting within its sphere of dealing with foreign nations, seeks enforcement of its policy by the courts, the policies of the States become irrelevant to judicial inquiry (United States v. Pink,315 U.S. 203).
In addition, the attempted levy by attachment in the absence of a license obtained from the Secretary of the Treasury, failed to give to the court any dispositive dominion over any interest of the defendant in the fund, and hence it follows that no valid levy has been made and no jurisdiction acquired (Pennoyer v.Neff, 95 U.S. 714, 727).
The very nature of an attachment is to hold the property attached until an execution may be available following the judgment rendered upon the trial. No effective levy can be made where the right which is sought to be attached is not a right inpraesenti or in futuro, but is merely a right based upon a contingency which may or may not happen in the future.
An authority in point is Sheehy v. Madison Square GardenCorporation (266 N.Y. 44), where payments were attempted to be attached under a contract contingent upon performance of service. Since the party to the contract who was to perform had rendered no service, he had no enforceable rights either in praesenti orin futuro, and hence no attachment was possible.
In Herrmann Grace v. City of New York (130 App. Div. 531,535, affd. on opinion below, 199 N.Y. 600), where nothing was absolutely payable either in the present or in the future, it was held that no attachment could issue. So, in the case at bar, if the Executive Order has been correctly above interpreted, nothing is payable in the present or in the future except upon a contingency which may never happen. While the foregoing authorities show no dispositive dominion possible over the res because no res ever came into being, and in the case at bar dispositive dominion is lacking *Page 341 because alienability is based upon a contingency which may never happen, yet the principle upon which attachment may not issue is the same in both instances. There is nothing in the statute of New York authorizing attachment and no authority which specifies any such possibilities or hopes as the subject of attachment. What the plaintiff is seeking here is a res sufficiently illusory not to fall within the all-inclusive prohibition of the Executive Order and at the same time to be sufficiently substantial to afford a basis for jurisdiction. In my opinion such inconsistency seeks the impossible. Hence within the authorities no attachment is possible.
In the cases relied upon to sustain the attachment, the levy was upon property, realization upon which was not dependent upon any contingencies which might prevent the property from ever being alienable.
In so far as the brief submitted by the United States may be read as consenting to a transfer, it was written before war was declared between the United States and Rumania.
It follows that the order appealed from should be reversed, the levies and the order for service by publication and the service made pursuant thereto, vacated, and the certified question answered in the negative, with one bill of costs to the respondents.
LEHMAN, Ch. J., LEWIS and DESMOND, JJ., concur with LOUGHRAN, J.; FINCH, J., dissents in opinion in which RIPPEY and CONWAY, JJ., concur.
Order affirmed, etc. *Page 342