On Motion for Rehearing.
PER CURIAM.The grounds on which the motion is made include one not brought to our attention on the previous argument. It is that the rights conferred upon appellant by the Settlement of War Claims Act (45 Stat. 254) were political and are, therefore, not subject to judicial review.
We are sure it is unnecessary to say that we would not wittingly assume any jurisdiction or do any act which directly or indirectly would embarrass the powers of the government in the control of international relations, and the same declaration has been made by the Supreme Court. Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 60 L.Ed. 297. However, the most meticulous observance of that rule would not justify our refusal to examine the question, when it is raised, precisely as we would examine any other question in the case and if, in our opinion, we. find it not well taken, so to declare.
We are now told that appellant’s “rights” under the Settlement of War Claims Act are not different from those it would have been granted had the terms of the Settlement of War Claims Act been contained in a treaty negotiated between the United States and Germany; and that it is “hornbook law that such rights as are acquired by an alien pursuant to treaty are political and not proprietary in the sense that any impairment is judicially examinable.” Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 631, 32 L.Ed. *5631068, is cited in support of this proposition. In that case it was said that Congress is invested with plenary power over foreign relations and that its action in reference to political rights is wholly one of foreign policy, international in aspect, and not subject to judicial inquiry or decision. But the facts which the court dealt with m that case are so wholly different from those which we have here that, in our opinion, the rule there is inapplicable here.
In the Chae Chan Ping Case this government had by treaty with the Chinese Empire agreed that there might be free migration and _immigration of the citizens and subjects of the two countries. A Chinese resident in San Francisco returned to China, having in his possession a certificate in terms entitling him to return to the United States. On his return he was held for deportation under an act of Congress approved October 1, 1888 (25 Stat. 504). On a petition for habeas corpus he assailed the validity of the act as in violation of existing treaties between the United States and China. When the case reached the Supreme Court, that court said: “The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract. Whatever license, therefore, Chinese laborers may have obtained, previous to the act of October 1, 1888, to return to the United States after their departure, is held at the will of the government, revocable at any time, at its pleasure. * * * If there be any just ground of complaint on the part of China, it must be made to the political department of our government, which is alone competent to act upon the subject.”
This statement by the court, as will be observed, is confined to the proposition that Congress has at all times a continuing right to change and modify a treaty involving personal rights and that, when it acts in that respect,, all questions arising out of its action are political and not subject to judicial review. But there is no such question here; and there the Supreme Court was at pains to point out the difference between rights of a political nature and rights involving property. As to the latter, the Supreme Court said: “The rights and interests created by a treaty, which have become so vested that its expiration or abrogation will not destroy or impair them, are such as are connected with and lie in property capable of sale and transfer, or other disposition. * * * ”
The case, as we think, distinctly recognizes that, even under a treaty, property-rights may become so vested as to be protected by the Fifth Amendment. Nor do we find anything different in either Taylor v. Morton, 2 Black, 481, 17 L.Ed. 277, or Foster v. Neilson, 2 Pet. 253, 314, 7 L.Ed. 415. In the first, the question was in relation to the amount of duties collectible' on imports from Russia, and it was argued that because of the treaty between the United States and Russia, no higher rate of duty could be imposed by the United States on importations than was charged by Russia in the case of importations from the United States. In the Supreme Court the case was not considered on its merits, and there is nothing in the opinion which has any relation to the question we are considering. The other case involved the question of title and boundary in a dispute involving a piece of land in Mississippi claimed under a grant from the Spanish crown on the one hand and a grant from the United States on the other. The question turned upon the treaty with France involved in the Louisiana Purchase, and Chief Justice Marshall, referring generally to the subject of-such treaties, said: “ * * * When either of the parties engages to perform a particular act. — the treaty addresses itself to the political, not the judicial department; and the Legislature must execute the contract before it can become a rule for the court.”
Without more, therefore, we are constrained to say that we find nothing in this new question which will justify a rehearing.
The other points pressed upon us are largely an elaboration of those that were presented and considered in our decision. Counsel, however, cite Frclinghuyseu v. Key, 110 U.S. 63, 3 S.Ct. 462, 470, 28 L. *564Ed. 71, and United States ex rel. Boynton v. Blaine, 139 U.S. 306, 11 S.Ct. 607, 35 L.Ed. 183, as authority to the point that no right vested in appellant under the Settlement of War Claims Act until the property actually physically passed into its possession.
We think neither of these cases is authority to sustain that position. Both involved the same facts. The United States and Mexico had entered into a treaty for the settlement of claims of the citizens of each country against the other and for the appointment of a commission whose decisión should be final. An award was made, among others, to two citizens or corporations of the United States and was paid in installments, but before the entire amount of the award had been turned over to the claimants, it was charged by Mexico that the awards had been made on fraudulent testimony; and on this ground the Secretary of State declined to permit the money then in hand to be turned over. Proceedings by mandamus were begun to require payment. The opinion shows that the treaty was exclusively between the two governments; that the claimants were not parties; and that only such claims could be referred to the commission as were approved by the respective governments; and that this government itself undertook the duty of investigating the evidence and presenting the claim. Its good faith was therefore involved. The court said: “The United States, when they assumed the responsibility of presenting the claims of their citizens to Mexico for payment, entered into no contract obligations with the claimants to assume their frauds and'to collect on their account all that, by their imposition of false testimony, might be given in the awards of the commission. As between the United States and the claimants, the honesty of the claims is always open to inquiry for the purposes of fair dealing with the government against which, through the United States, a claim has been made.”
In the Boynton Case the same conclusion, practicall}’’', was reached, with the addition that the Supreme Court held that in the payment of the awards the President was vested by the act of Congress with discretionary power and was, therefore, not subject to mandamus.
In both cases the ground of the decision was that the rights claimed arose out of a treaty over which the political department of the government had control and that, as the government was itself the party claimant and responsible for the bona fides of the claims, it would seriously embarrass its international relations and dealings if the court held claimants entitled to receive the fund in spite of the alleged fraud.
And, as we have said, that is a wholly different situation than the one confronting us. If, as we have decided, the effect of the Settlement of War Claims Act, when its terms were accepted by appellant, created vested rights in appellant protected by the Constitution, we cannot refuse to declare that fact and to afford relief simply because to do so might embarrass the executive department of the government in the collection of the debts due by Germany to the United States. And in this view we think it is incorrect to say, as counsel say in the brief in support of the motion, that, assuming that vested rights comparable to contract rights, were bestowed upon the appellant, these can be lawfully altered by the Congress in the exercise of a paramount power. We think, on the other hand, that the provision of the Constitution on which we based our conclusion, is the paramount law. And we think there is nothing in Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434, to the contrary.
Appellant, when it filed its consent to the provisions of the War Claims Act and agreed to accept 80 per cent, of the amount and value of its seized property and to release 20 per cent, to the payment of claims of American citizens against Germany, appeared in the role of an alien friend. Its former status as an alien enemy was changed by the terms of the Treaty of Berlin, and to paraphrase the language used by Chief Justice Hughes in Russian Fleet v. United States, 282 U.S. 481, 491, 492, 51 S.Ct. 229, 232, 75 L.Ed. 473, as an alien friend, embraced within the terms of the Fifth Amendment, it cannot be said that its property is subject to confiscation because its government has defaulted in the payment of its debts to the United States. “The provision that private property shall not be taken for public use without just compensation establishes a standard for our government which the Constitution does not make dependent upon the standards of other governments.” Therefore, at the risk of unnecessary repetition, we. repeat what we have already said, namely, that,we fully recognize that the war powers of the United States gave them the *565right to confiscate the property of an enemy found in this country; but we assert, as equally true, that there can be no confiscation of enemy property, in the sense that title is changed and the rights of the original owner destroyed, without an act of Congress to that effect. The declaration of war is not such an act. It has never been held that a state of war operated of itself and by its own force to accomplish a transfer of the title of property. Brown v. United States, 8 Cranch, 110, 3 L.Ed. 504.
In the decision which we are asked to review and reconsider, we have shown that from the moment war between the United States and Germany became imminent, through the whole course of the war, and to and until several years after the passage of the Settlement of War Claims Act - — indeed to the present moment — Congress not only has not passed any act of confiscation of enemy property, but has consistently and steadfastly declared to the people of the United States and to the world a purpose not to indulge that right. And we have shown, likewise, that the policy originally adopted by Congress, and adhered to throughout, was that which in our times — indeed from the time of the establishment of our government — has been universally recognized by civilized peoples as the policy which morality, humanity, and wisdom demanded. When Congress established the office of alien property custodian, it clothed that official with the power to seize and hold and use, and in his discretion to convert into a different form, property of alien enemies found in the United States; but the power of confiscation it held in abeyance. With the seizure went the declaration that the return would be subject to such conditions as Congress might apply. Several years after the close of the war, and after a formal treaty of peace, Congress natned the conditions, and appellant, as is admitted, conformed to those conditions in every respect. By the ordinary rules of contract there was then a meeting of minds, and the rights which appellant asserts in this suit became fixed and vested. To say now, as we are asked to say, that the paramount power — the power to confiscate — which concededly Congress had in the prosecution of the war, but which it never exercised, continued thereafter and indefinitely, because alone of the failure of the physical act of delivery, would be to assert a principle for which we can find no authority anywhere. Construing the treaty with England after the Revolution, Judge Story said of it, “for the treaty itself extinguished the war, and, with it, the rights growing out of war.” Orr v. Hodgson, 4 Wheat. 453, at page 462, 4 L.Ed. 613. Certainly there is nothing in Hart v. United States, 118 U.S. 62, 6 S.Ct. 961, 963, 30 L.Ed. 96, to support the right; for that was a case which involved the payment of money out of the treasury of the United States — money of the United States — controlled by that article of the Constitution which provides that, “No money shall be drawn from the treasury but in consequence of appropriations made by law.” Here, if we are correct, no money of the United States is involved, and no property to which the United States has ever claimed title. But, on the contrary, the subject-matter here is property which, though subject to confiscation, never was confiscated, and which, on the reestablishment of peace between Germany and the United States, was ordered returned if and when the owner thereof consented to the conditions imposed by Congress. Nor is there anything in District of Columbia v. Eslin, 183 U.S. 62, 22 S.Ct. 17, 46 L.Ed. 85, to the contrary of the view we have adopted, for that case involved, not as here a property right, but a gratuity which Congress could give or withhold as it pleased.
There remains only to consider the question, whether the remedy sought by appellant is proper. It is said by appellees that the bill fails to show that the President declined or refused to order the return of the property and that a showing to this effect is jurisdictional. But as to this, we think that the statutory procedure which Congress provided, and which appellant adopted, is in all material respects shown to have been complied with. Enough appears to show unmistakably that there was a refusal by the President to deliver the property on demand. For these reasons, we adhere to our former decision.