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Opinion of the Court.

343 U.S.

was at war with Hungary from December 13, 1941. During October, November, and December 1941, the Hungarian corporation shipped bauxite to Germany and had a contract to do so until the end of 1942.

In 1942, the Alien Property Custodian vested the stocks held by petitioner in several American corporations and all the right, title, and interest of petitioner in and to a certain contract with another American corporation. All of the stocks had been acquired from the proceeds of the original usufruct property.

From October 5, 1931, the date of the usufruct agreement, the usufruct property was controlled, used, and in all ways handled and directed by Wilhelm and his managing agents. The interest of Fritz in petitioner was wholly subordinated to that of Wilhelm. Fritz had the bare legal title and the right to 20% of the income from the property. Wilhelm is now dead. His wife, a daughter, and the son, Fritz, still survive.

Petitioner was in this Court on the pleadings in this case in Clark v. Uebersee Finanz-Korp., A. G., 332 U. S. 480. There, it was alleged in the complaint that petitioner was not an enemy or ally of an enemy, and that at no time specified in the complaint had the property in question been owned or controlled, directly or indirectly, in whole or in part, by an enemy, an ally of an enemy, or a national of a designated enemy country; that none of the property had been owing or belonging to or held on account of or for the benefit of any such person or interest. This Court construed these allegations "to mean that the property is free of all enemy taint and particularly that the corporations whose shares have been seized, the corporations which have a contract in which respondent has an interest, and respondent itself, are companies in which no enemy, ally of an enemy, nor any national of either has any interest of any kind whatsoever, and that respondent has not done business in the territory of the


Opinion of the Court.

enemy or any ally of an enemy." P. 482. The complaint alleging such facts was held to be sufficient as against a motion to dismiss, and the case was sent back for trial. Upon the trial, the facts were found as above stated.

However, from the facts found, it is clear that petitioner for all practical purposes was, to the extent of 97%, largely owned, managed, used, and controlled by Wilhelm von Opel, a national of Germany. The findings demonstrate that petitioner was a corporate holding company acquired for the purpose of enabling Wilhelm to control and use his property as he saw fit. His interest was paramount and controlling. The interest of Fritz was wholly and in reality subordinated to Wilhelm's, except as to the right of Fritz to receive 20% of the income from the usufruct property. Petitioner was neutral in name only. Its enemy taint was all but complete because of the predominant influence and control of Wilhelm. Wilhelm had and used the substance, while Fritz had the bare legal title; and such right as this gave Fritz, he exercised or failed to exercise in complete subordination to the will of his father. We agree with the Court of Appeals when it said:

"This case does not involve a diluted 'taint'; it involves the ownership by enemy nationals of the economic benefits of American business." 88 U. S. App. D. C. at 183, 191 F. 2d at 328.

Before 1941 the property here involved could not have been vested, because this petitioner was a corporation of a neutral country, Switzerland, unless such corporation was shown to be doing business in an enemy country or in the country of an ally of an enemy. Behn, Meyer & Co. v. Miller, 266 U. S. 457; Clark v. Uebersee FinanzKorp., A. G., supra. But on December 18, 1941, Congress amended the Trading with the Enemy Act by the pas

994084 0-52-18

Opinion of the Court.

343 U.S.

sage of the First War Powers Act, 1941, 55 Stat. 839, and gave respondent power to vest any property or interest of any foreign country or national thereof in said. property. However, under § 9 (a) of the Trading with the Enemy Act, one not an enemy, as defined in § 2 of said Act, can recover any interest, right, or title which he has in the property so vested. As construed by this Court in Clark v. Uebersee Finanz-Korp., A. G., supra, § 2 included in the word "enemy" all corporations affected with an "enemy taint." Since we find petitioner to be so affected because of the direct and indirect control and domination by an enemy national, Wilhelm von Opel, petitioner cannot recover under § 9 (a).

It is suggested that vested property must be returned unless there is proof of actual use of the property for economic warfare against the United States. The crucial fact is not the actual use by an enemy-tainted corporation of its power in economic warfare against the United States. It is the existence of that power that is controlling and against which the Government of the United States may move. The Government does not have to wait for the enemy to do its worst before it acts. Cf. Miller v. United States, 11 Wall. 268 at 306.

As the District Court said, it would be difficult "to find a stronger case of enemy taint in vested property short of full ownership by an enemy than exists in this case. The neutral aspect of ownership in the property is insignificant. . . ." 82 F. Supp. at 606.

In view of the decision today in Kaufman v. Societe Internationale, ante, p. 156, consideration must be given to an effort of petitioner to open the case for the assertion of the rights of Fritz von Opel.

Petitioner attempted at the end of the litigation in the District Court to have the case reopened for the purpose of asserting and establishing the nonenemy status of Fritz von Opel. Because of the failure to diligently and timely


Opinion of the Court.

assert the interest of Fritz, the District Court refused to reopen the case for further consideration of such separate interest.

The judgment of the Court of Appeals is affirmed as to petitioner, but in view of the novel holding in Kaufman, the Court is of the opinion that its decision in Hormel v. Helvering, 312 U. S. 552, is applicable. We accordingly vacate the judgment of the court below and remand the cause to the District Court for consideration, in the light of Kaufman and this opinion, of any application that may be made on behalf of Fritz von Opel within 30 days from the date of remand, and in all other respects the judgment is affirmed.

It is so ordered.

MR. JUSTICE CLARK took no part in the consideration or decision of this case.

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No. 649. Argued March 31, 1952-Decided April 3, 1952.Opinions filed April 15, 1952.

Where a state authorizes a political party to choose its nominees for Presidential Electors in a state-controlled party primary election and to fix the qualifications for the candidates, it is not violative of the Federal Constitution for the party to require the candidates for the office of Presidential Elector to take a pledge to support the nominees of the party's National Convention for President and Vice-President or for the party's officers to refuse to certify as a candidate for Presidential Elector a person otherwise qualified who refuses to take such a pledge. Pp. 215-231.

1. Presidential Electors exercise a federal function in balloting for President and Vice-President, but they are not federal officers. They act by authority of the state which in turn receives its authority from the Federal Constitution. Pp. 224-225.

2. Exclusion of a candidate in a party primary by a state or political party because such candidate will not pledge to support the party's nominees is a method of securing party candidates in the general election who are pledged to the philosophy and leadership of that party; and it is an exercise of the state's right under Art. II, § 1, to appoint electors in such manner as it may choose. United States v. Classic, 313 U. S. 299, and Smith v. Allwright, 321 U. S. 649, distinguished. Pp. 225–227.

3 The Twelfth Amendment does not bar a political party from requiring of a candidate for Presidential Elector in its primary a pledge to support the nominees of its National Convention. Pp. 228-231.

4. The requirement of such a pledge does not deny equal protection or due process under the Fourteenth Amendment. Nixon v. Herndon, 273 U. S. 536, distinguished. P. 226, n. 14. 257 Ala., 57 So. 2d 395, reversed.

The Alabama Supreme Court upheld, on federal constitutional grounds, a peremptory writ of mandamus requiring petitioner, the Chairman of the State Executive

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