Petition for a Writ of Certiorari — Land Settlement & Development Corp. v. United States

HAROLD B. WILLEY, ¢

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1953

No. 399

LAND SETTLEMENT AND DEVELOPMENT COR-

PORATION,

Petitioner,

v.

THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

Joserx P. Tumutry, Jr,

M. Joszra Maran,

Counsel for Petitioner.

Brzzp, Assott & Morean,

Of Counsel.

INDEX

Sussror Inprex

Petition for writ of certiorari

Opinion below

Jurisdiction

Questions presented .-

Statutory and other provisions of law involved

Statement

Specifications of errors to be urged

Reasons for granting the writ

Conclusion

Appendix

Crrations

Cases:

Hamilton v. Kentucky Distilleries, 251 U. 8. 146

Harisiades v. Shaughnessy, 342 U. 8. 588

Kahn v. Anderson, 255 U. S. 1

Marcos v. United States, 122 C. Cls. 641, 106

7. Bebe 28 ee _ 8,4, 5, 6, 10, 11

Protector, The, 12 Wall. (US) 700 6

Sese v. United States, — CO. Cls. —, 113 F. Supp.

658 4,10, 11

United States v. Oglesby Grocery Company, 264

F. 691, (rev’d on other grounds) 255 U. 8. 108 6

Statute:

U.S. C. Title 28, Section 2501

Miscellaneous:

H. Rept. No. 1921, 79th Cong. 2nd Sess., House

Committee on Insular Affairs

—905

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1953

No. 399

LAND SETTLEMENT AND DEVELOPMENT COR-

PORATION,

Vv.

THE UNITED STATES

Petitioner,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

Petitioner prays that a writ of certiorari issue to review

a judgment of the United States Court of Claims entered

in the above entitled cause on July 13, 1953.

Opinion Below

The opinion of the United States Court of Claims (R. 29),

is reported in 113 F. Supp. 666.

Jurisdiction

The judgment of the Court of Claims was entered on

July 13, 1953, (R. 29). Jurisdiction of this Court is invoked

under Section 1255 (1) of Title 28 of the United States

Code.

2

Questions Presented

By Presidential Proclamation the date of the cessation

of World War II hostilities was fixed as December 31, 1946.

The Court below, however, held that as to claimants in

the Philippine Islands, its statute of limitations, which

had been suspended as a result of World War II, again

commenced to run on September 2, 1945, (the date of

Japan’s formal surrender), on the ground that access to

that court by such claimants again became possible on

that date. The questions for decision are:

1. Whether the court below usurped, erroneously, a func-

tion of the political branches of our Government by select-

ing, on its own, a date as the logical one to lift the wartime

suspension of its statute of limitations.

2. Whether the date selected by the Court for that pur-

pose was so erroneous as to require reversal.

Statutory and Other Provisions of Law Involved

The pertinent provisions of the statute, Presidential

Proclamation and Regulations involved are set forth in

the Appendix, infra, pp. 12-14.

Statement

Petitioner is a Philippine corporation, owned and con-

trolled by the Republic of the Philippines. It is successor

to an earlier corporation which had been owned and con-

trolled by the former Commonwealth of the Philippines.

(R. 1).

World War II began in the Philippines on December

8, 1941, Philippine time. Over the period between December

8, 1941, and May 31, 1942, the United States Armed Forces

in the Far East commandeered certain of petitioner’s

predecessor’s equipment, chiefly vehicular machines, valued

by petitioner in the amount of $115,044.17. (R. 3).

3

Commencing about December 31, 1941, the Philippine

Islands were designated as enemy territory, and commercial

intercourse between the Islands and the United States

was prohibited by our Government. These restrictions

were not completely lifted until August 31, 1946, when the

Secretary of the Treasury, by General Ruling No. 18, per-

mitted the transfer of funds from the Philippines to the

United States (App. p. 13). On December 31, 1946, the

President of the United States proclaimed the cessation

of hostilities of World War II. (App. p. 12).

On February 11, 1948, petitioner’s predecessor filed a

claim for the fair value of the commandeered property

with the Philippine-Ryukus Command Claims Service of

the United States Army. (R. 1, 17).

However, on April 12, 1948, its claim was dismissed,

for the stated reason that no authority was vested in the

Claims Service to pay claims submitted by the former

Commonwealth of the Philippines or any public corpora-

tion owned, in whole or in part, by it. (R. 2, 20).

On July 23, 1952, having succeeded to the title and inter-

est of its predecessor therein, petitioner brought suit on

the claim in the court below. Respondent moved to dismiss,

on the ground, inter alia’ that the suit was barred because

it should have been filed not later than September 2, 1951,

(i.e. within six years after September 2, 1945, the date

of Japan’s formal surrender), ‘‘selected’’ by the court

below in Marcos v. United States, 122 C. Cls. 641, 106 F.

Supp. 172, as the logical date to terminate the wartime sus-

1 The first ground for dismissal urged below by respondent was that

between 1942 and 1944 the Philippine Commonwealth Government

existed in the United States in exile: *+at therefore, petitioner and its

predecessor having been owned and conicviled by the Commonwealth Gov-

ernment, could have brought suit in the Court of Claims during

that time, and the statute of limitations was not suspended as to it

because of the war in the Philippines. That contention the court below

rejected in its entirety. (R. 30).

4

pension of the statute of limitations, and as marking the

time when Philippine claimants again had access to the court

below.

The court, relying on Marcos, supra, which it affirmed in

its decision of even date with the instant, Sese v. Umited

States, C. Cls.,. — 113 F. Supp. 658, ordered the petition

dismissed as untimely filed.

Specifications of Errors to Be Urged

The Court of Claims erred

(1) In determining judicially, and in derogation of a

function properly within the legislative branch of our Gov-

ernment, that World War II hostilities had so ceased in

the Philippines by September 2, 1945, that thenceforth

Philippine claimants again had access to the Court of

Claims.

(2) In failing to adopt December 31, 1946 (proclaimed

by the President as marking the cessation of World War II

hostilities), as the date which lifted the wartime suspension

of the statute of limitations on such claims.

Reasons for Granting the Writ

The court below, in dismissing as untimely petitioner’s

claim filed therein, did so in reliance upon its decision in

Marcos v. United States, 122 C. Cls. 641, 106 F. Supp. 172,

wherein it had selected September 2, 1945, (when Japan

formally surrendered) as the date to lift the World War II

suspension of the statute of limitations as to claimants

in the Philippines.

Petitioner had asserted below that in fixing a date for

the lifting of the wartime limitations suspension, the court

had thereby determined the date of the cessation of Worid

War II hostilities in the Philippines, a political matter

not within the court’s province, but one properly for the

5

determination of the political branches of our Government.

In its decision, however, the court stated that in Marcos

it ‘** * * did not hold that all hostilities in the Philip-

pines had ceased as of that date * * *,’’ but merely

that ‘‘* * * under all the revealed circumstances in that

and similar cases, it appeared that Philippine claimants

had access to the Court of Claims on and after September

3 1945,..°: °°? (a),

In selecting a date to terminate the wartime tolling of

the statute of limitations, the court, of necessity, also se-

lected the date when resort to the court by Filipinos was

no longer impossible or illegal, and by the same act, and

as a necessary corollary of that act, determined the date

when the existence of hostilities had ceased in the Philip-

pines. In Marcos, itself, the court had stated (106 F. Supp.

at 177):

‘<* * * The legal rule heretofore applied to war

by English and American courts does not allow the

Statute [of limitations] to continue to run during the

existence of hostilities, * * *’’ [Brackets supplied].

Determination of the date of the cessation of hostilities,

however, is a political act, not within the province of the

court, but resting wholly within the prerogatives of the

political branches of our Government.

As recognized from an early date by this Court, the

determination of policies in regard to war powers are

political acts which by our Constitution are so exclusively

granted to the political branches of our Government as to

be largely immune from judicial inquity or interference.

Cf. Harisiades v. Shaughnessy, 342 U. S. 588-589. In

Ludecke v. Watkins, 335 U. S. 160, this Court said that the

state of war may be terminated by treaty or legislation

or presidential proclamation, and further, that (p. 168) :

‘*Whatever the mode, its termination is a political

act,’’

6

It is difficult, if not impossible, to say at what precise

date war terminates. Once the political act of determining

when hostilities ceased has been undertaken by a political

branch of the Government, courts, in the absence of some

compelling reasons for not doing so, should follow and apply

that determination. The Protector, 12 Wall. (.S.) 700, 702; .

Hamilton v. Kentucky Distilleries, 251 U. S. 146, Kahn v.

Anderson, 255 U.S. 1.

As stated in U. 8. v. Oglesby Grocery Company, (D.C.

N.D. Ga.) 264 F. 691, 692 (rev’d. on other grounds, 255

U. 8. 108):

‘“‘The Congress and the President are the constitu-

tional judges of states of war and peace and their deci-

tions should be abided in patience by the people and

courts.’’

The court below’s Marcos decision, selecting the date of

September 2, 1945 was not rendered until July 15, 1952.

More than five and one-half years earlier, however, the

President, by Proclamation, had fixed December 31, 1946,

as the date marking the cessation of World War II hos-

tilities. Proclamation #2714, 61 Stat. 1048, (App. p. 12).

We respectfully submit that in view of the Presidential

Proclamation, made long before the court below was faced

with the issue, the court should have adopted December

31, 1946, the date selected by the President as the date

marking the end of hostilities in the Philippines, and the

date after which that court must be deemed, in law, again

open and accessible to claimants in the Philippines.

In the Marcos decision the court intimated that the date

proclaimed by the President as marking the cessation of

hostilities of World War II would be unrealistic as applied

to the Philippines, in view of the earlier ending of the

enemy occupation, and the earlier surrender of Japan.

On the other hand, surrender of the other World War II

7

belligerents, Germany and Italy, had considerably preceded

Japan’s surrender, hence application of the Proclamation

date to the Philippines certainly would be no less realistic ?

than its application with respect to claimants in other areas

where World War II was waged. Would the court below

reject the Proclamation date in respect of a suit filed by a

claimant, otherwise qualified, who was present in Japan,

Italy, or Germany throughout the war period? if so, and

the court’s logic would seem to compel the result, the Proc-

lamation date is a nullity insofar as the statute of limita-

tions is concerned, and the courts have displaced the

political department with respect to the function of deter-

mining states of war; if not, claimants from those enemy

areas would be more favorably treated in this regard than

would be claimants from the war-devastated Philippines.

In any event, for the reasons heretofore given, determina-

tien of the date of cessation of hostilities was a matter for

the political departments and not for the court.

II

In Ludecke v. Watkins, this Court warned (supra, p.

168):

‘*Whether and when it would be open to this court

to find that a war though merely formally kept alive

had in fact ended, is a question too fraught with gravity

even to be adequately formulated when not corpelled.’’

This Court further cautioned, supra, at p. 170 that judges

have neither technical competence nor official responsibility

in determining matters of political judgment, and that it

was not for the Court to question a belief by the President

_ (then involved) that enemy aliens did not lose their potency

for mischief during the period of confusion and conflict

2 For reasons indicated in Point IT hereof, we submit that the Proclama-

tion date was not unrealistic as applied to the Philippines.

8

which is characteristic of a state of war, even when the

guns are silent ‘‘but the peace of Peace has not come.’’

The very real danger in a court’s exercising powers

which reside in the political branches of the Government

is demonstrated, we believe, only too clearly by this case.

In undertaking to find the date of the cessation of hos-

tilities (which is the effect of the court’s decision despite

the court’s disclaimer of that action) the court below se-

lected as one which was logical a date which in point of

fact is most unrealistic. While September 2, 1945, marked

the date of Japan’s surrender, it did not in actuality mark

the date of the return of peace, nor the date of the ending

of hostilities in the Philippines.

More than six months after Japan’s surrender, the House

Committee on Insular Affairs reported to the Congress

(H. Rept. No. 1921, 79th Cong. 2nd Sess.) :

‘““The Philippines have been termed ‘the most de-

vastated land in the world.’

Official reports, photographic evidence, and state-

ments of those who have seen the ruin and destruc-

tion are unanimous in asserting that, of all the war-

ravaged areas of the world, the Philippines are the

most utterly devastated from the standpoint of the

ratio of functional construction still intact to func-

tional construction damaged or destroyed, the effect of

destruction on functional economy and social facilities

of the nation, and the effect of war damage on the

capacity of the nation to rebuild and repair.

Years of rebuilding will be necessary before the

former physical conditions in the islands can be re-

stored.

Commercial buildings, stores, and modern office build-

ings, factories, bridges, docks, transport facilities,

communications, utilities—in fact, everything on which

the Philippine economy depended—have been de-

stroyed. Every major public building in Manila and

throughout the islands, hundreds of thousands of

9

homes, most of the churches, cathedrals, schools, and

universities, felt the impact of destruction. Inter-

island commerce was wiped out and diseppeared.

Roads were damaged almost beyond repair, and every-

where communications were and are disrupted.

Pictures of Manila show that the city was ravaged

by the Japanese, and, of necessity, by our own air

bombardments and artillery to an extent far greater

than the damage done to the cities of Germany; and

Manilia is not the worst damaged of the major cities of

the Philippines.

With the laying waste of the cities and of the major

agricultural and industrial enterprises, sources of tax

income to sustain governmental functions, necessarily

broader now than ever, have been dried up.’’

See also, testimony of Frank A. Waring, Chairman,

United States Philippine War Damage Commission, given

before the House Committee on Foreign Affairs, April 24,

1950, on S. 1033 and H. R. 7600, 81st Congress, Hearings,

p. 61-66; Semi-Annual Reports to the Congress by the

Philippine War Damage Commission.

The extent of the devastation to the Philippines, the

chaotic condition of the country and the confusion and con-

flict there, characteristic of a state of war, all make it clear

that although as of September 2, 1945, the guns may have

been silent, as yet the ‘‘peace of Peace’? had not come.

When it would come, when it had come, are matters which

the court below had neither the technical competence nor

official responsibility to determine.

The President, on the other hand, had available to him

information from countless sources, upon which to base

his Proclamation. The court below, nevertheless, and in

the face of the Proclamation, selected its own date as deter-

minative of the issue. That it so seriously erred in its

appraisal of the actualities as to warrant review by this

Court seems patent.

10

Til

Use by the court below of the date set forth in the Presi-

dential Proclamation, we submit, not only would have con-

formed with applicable principles of law, but also would

have had the added merits of certainty and fairness to

claimants.

Selection by a court, after the fact, of its own ‘‘logical’’

date for the lifting of the war-time suspension of limitations,

rather than its use for that purpose of the date established,

at the time suspension ceased, by a Presidential Proclama-

tion of cessation of hostilities results in gross uncertainty

to litigants. It may even have the effect of depriving a

claimant of his day in court, where he fails to divine in

advance that the court will select its own date, or the date

such court will select, however, inconsistent it may be with

the relevant date already proclaimed by the President. On

the other hand the proclaimed date stands as a warning

to all litigants that the period of suspension of the statute

is at an end, and that prospective suits must be brought

within six years from that date.

In this connection, it is significant that the court below

appears to be vacillating from the firm rule which it enun-

ciated in Marcos. There the court clearly recognized the

necessity for the use of a uniform date for all claimants as

providing the only practical and workable rule. However,

the court then adopted (erroneously, we contend) Septem-

ber 2, 1945 as the uniform date. Marcos v. United States,

supra, at p. 178.

More recently, the court seems to realize the harshness

and inequity of a rigid adherence to the September 2, 1945,

date. In both Sese v. United States, supra, and in the

instant case, the court indicates an amenability to consider-

ing a later date, if, in a particular case, it is alleged and

proven that the particular claimant resided in an un-

11

liberated portion of the Philippines on September 2, 1945,

or for some other reason was inhibited from access to the

court on and after that date. See Sese v. United States,

supra, at p. 664; R. 30.

We submit the court below, in Marcos, was right in pre-

ferring a uniform rule, but wrong in its selection of the

particular date. To correct its initial error, it ought not

to abandon the sound principle of a uniform rule, but,

rather, should accept the Proclamation date as fair, uni-

form, practical and workable. The other course would com-

pound the court’s initial error.

Conclusion

The case presents an important question of Federal law

which has not been determined by this Court. We respect-

fully urge that petition for certiorari be granted.

Respectfully submitted,

Joseph P. Tumutry, Jp.,

M. JosepH Maran,

Attorneys for Plaintiff.

Breep, Assotr & Mora@an,

Of Counsel.

12

APPENDIX

Title 28 USC Section 2501, (June 25, 1948, c 646, 62 Stat. -

976), the Statute of Limitations applicable to the Court of

Claims, so far as pertinent, provides as follows: . —

2501. Time for filing suit

_ Every claim of which the Court of Claims has juris-

diction shall be barred unless the petition thereon is

filed, or the claim is referred by the Senate or House

of Representatives, or by the head of an executive de-

partment within six years after such claim first accrues.

The Presidential Proclamation of the cessation of hostili-

ties of World War II (Proclamation No. 2714, 12 F. R. 1,

61 Stat. 1048) is as follows:

‘‘With God’s help this nation and our allies, through

sacrifice and devotion, courage and perseverance,

wrung final and unconditional surrender from our ene-

mies. Thereafter, we, together with the other United

Nations, set about building a world in which justice

shall replace force. With spirit, through faith, with a

determination that there shall be no more wars of ag-

gression calculated to enslave the peoples of the world

and destroy their civilization, and with the guidance of

Almighty Providence great gains have been made in

translating military victory into permanent peace.

Although a state of war still exists, it is at this time

possible to declare, and I find it to be in the public

interest to declare, that hostilities have terminated.

Now, therefore, I, Harry S. Truman, President of the

United States of America, do hereby proclaim the cessa-

tion of hostilities of World War II, effective twelve

o’clock noon, December 31, 1946.

In Witness Whereof, I have hereunto set my hand

and caused the seal of the United States of America to

be affixed.

Done at the City of Washington this 31st day of

December in the year of our Lord nineteen hundred

and forty-six, and of the Independence of the

13

United States of America the one hundred and

(Seal) seventy-first.

Harry S. Truman.

By the President:

James F’. Byrnes,

The Secretary of State.

The August 31, 1946, amendment to Treasury Department

Foreign Funds Control, General Ruling No. 18, as as fol-

lows:

Under Executive Order No. 8389, as Amended, Exec-

utive Order No. 9193, as Amended, Sections 3(a) and

5(b) of the Trading with the Enemy Act, as Amended

by the First War Powers Act, 1941, Relating to Foreign

Funds Control.

General Ruling No. 18 is hereby amended to read as

follows:

Regulations Relating to the Philippines

(1) Status of the Philippines. For the purpose of

administering and complying with the provisions of

Sections 3(a) and 3(c) of the Trading with the Enemy

Act, as amended, Executive Order No. 8389, as amended,

and the regulations, rulings, instructions and licenses

issued by or under the direction of the Secretary of the

Treasury pursuant to Executive Orders No. 8389 and

9095, as amended, the Philippines shall not be included

within the term ‘‘United States’’ but shall be deemed

to be a foreign country not designated in Executive

Order No. 8389, as amended, and to be included in the

‘‘generally licensed trade area’’ as defined in General

License No. 53.

(2) Effect of previous status. No person shall be

deemed a national of a blocked country solely by reason

of the fact that at any time on or since the effective

date of the Order of the Philippines were regarded as a

blocked country.

(3) Waiver of General Ruling No. 5 on importations

of securities and currency from the Philippines. The

provisions of General Ruling No. 5 shall not apply to

14

securities or currency sent, mailed, imported or other-”

wise brought into the United States from the Philip--

pines, unless there is reasonable cause to believe that

such securities or currency are being brought into the”

United States via the Philippines from any other for--

eign country. 4

E. H. Fotey, Jr., q

Acting Secretary of the Treasury. —

(905)

By.

4 ~. INDEX

4 Page

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i Spueetion presented . 2... 6.6 ce cece esertnenesbeie 2

NY SUNN os ok Sok ones 04 aw ds Mc aa kes Rieamee aus 2

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a CITATIONS

- Cases:

3 Aguirre v. United States, 123 C. Cls. 767............ .. 7

a Angeles v. United States, 113 F. Supp. 665............. 7

‘4 Anno v. United States, 113 F. Supp. 673.............. 7

Re Arribas v. United States, 124 C.Cls. 553.............. 7

q Braun v. Sauerwein, 10 Wall. 218.................... 8

Cabebe v. Acheson, 183 F. 2d 795..................... 9

Chuchuru v. Chutchurru, 185 F. 2d 62................ 9

Colonna, Ex Parte, 314 U.S. 510...................... 8

De Guia v. United States, 122 C. Cls. 665, certiorari de-

a MDT, WAG TA. WOO vig cvs cose kbc che tania Giga ak 6,7

a De Rubin v. United States, 113 F. Supp. 668........... 7

a Drewry v. Onassis, 188 Mise. (N.Y.) 912, affirmed, 272

App. Div. 870, leave to appeal denied, 272 App. Div.

g ES Gs 5a ec O8E oo Gnd CTD AASE ORI ae ha La 9

a Hanger v. Abbott, 6 Wall. 532....................... 8

z Hodges v. United States, 111 F. Supp. 268............ 7

3 Levy v. Stewart, 11 Wall. 244 ...............0....00.. 8

4 Lindayag v. United States, 113 F. Supp. 671.......... 7

a Lorenzo v. United States, 122 C.Cls. 667, certiorari de-

0d, O06 Ui. OG 2. on Gee 6, 7

% Ludecke v. Watkins, 335 U.S. 160..................... ll

a Marcos v. United States, 122 C. Cls. 641................ 6, 8

4 Martin v. United States, 113 F. Supp. 669.............. 7

a Navarro v. United States, 122 C.Cls. 669, certiorari de-

4 Ss ee I OG ec ame eute ret sia oeas 7

q Porras v. United States, 113 F. Supp. 664.............. 7

¥ Purino v. United States, 123 C.Cls. 739................ 7

q Ramear, Inc. v. United States, 113 F. Supp. 672........ 7

q Rodriguez v. United States, 124 C. Cls. 551............. 7

Z Sese v. United States, 113 F. Supp. 658................ 5,7,9

q Silva v. United States, 113 F. Supp. 670.............. 7

4 Standard Vacuum Oil Co. v. United States, 112 C.Cls.

4g por, Weenies, 00 US. 160 6. 8

4 (1)

Cases—Continued

Page

Stewart v. Kahn, 11 Wall. 493............... 260-0005: 8

Tabacug v. United States, 113 F. Supp. 666............

Tan v. United States, 122 C.Cls. 662, certiorari denied,

RE ic chs es eek Ree eh bes Gans 5, 6,7

United States v. Berdan Fire-Arms Co., 156 U.S. 552. ... 6

United States v. Caltex, Inc., 344 U.S. 149............. 6

United States v. Dickinson, 331 U.S. 745............... 6

United States v. Hayward, 2 Gall. 483, 26 Fed. Cas. 240

FEIEEER. SMD hi ink cy cian chaps chasek secede ns sey 9

United States v. North American Co., 253 U.S. 330...... 6

United States v. Rice, 4 Wheat. 246................+.. 9

United States v. Smith, 342 U.S. 225... ..........-..5.

Statutes and Proclamations:

Act of March 24, 1934, Sees. 2, 10, 48 Stat. 456, 463... .. 8

Nationality Act of 1940, Sec. 204(a), 54 Stat. 1137, 1139,

8 U.S.C. (1946 ed.) G04(a) ...............0. 0 eee 9

Trading with the Enemy Act:

See. 2(a), 40 Stat. 411, 50 U.S.C. App. 2(a)...... 2,9

See. 7(b), par. 3, 40 Stat. 417, 50 U.S.C. App.

EG Re eee eg ie Ce ae Ser eee ae 8

I ea dae eck Sew ee ees veda eae eds 5

TEE SN cee ey Gee mad ca bm boro Ob 8 Ce ae 2,7

Proclamation No. 2695, 60 Stat. 1352.................. 6

Proclamation No. 2714, December 31, 1946, 61 Stat. 1048,

J) RICAN EE Ree Set Siar Sot MOON ae ERG paren g iota 3

Miscellaneous :

H. Doe. 282, 79th Cong., Ist Sess., pp. 107-114.......... 10

Hudson, The Duration of the War Between the United

States and Germany, 39 Harv. L.R. 1020, 1030....... 10

Note, Judicial Determination of the End of the War, 47

RN Di MIE SG, 5 aia so cae oebace des ee eewese ees 10

vee Department, General Ruling No. 18, 10 F.R.

Inthe Supreme Gourt of the United States

OcToBER TERM, 1953

No. 399

LAND SETTLEMENT AND DEVELOPMENT CORPORATION,

PETITIONER

Vv.

Unitep STATES

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Claims (R. 29-31) is

reported at 113 F. Supp. 666.

JURISDICTION

The judgment of the Court of Claims was entered

on July 13, 1953 (R. 29). The petition for a writ

of certiorari was filed on October 9, 1953. The

jurisdiction of this Court is invoked under 28

U.S.C. 1255(1).

(1)

2

QUESTION PRESENTED

Whether a complaint filed on July 23, 1952, by a

corporation owned or controlled by the Philippine

Government, to recover compensation for prop-

erty allegedly taken between December 8, 1941, and

May 31, 1942, was barred by the six-year statute of

limitations of 28 U.S.C. 2501, infra, the Philivpine

Islands having been occupied by the Japanese

armed forces during a portion of that time.

STATUTES INVOLVED

1. 28 U.S.C. 2501, pars. 1 and 3, provides:

Every claim of which the Court of Claims

has jurisdiction shall be barred unless the peti-

tion thereon is filed, or the claim is referred by

the Senate or House of Representatives, or by

the head of an executive department within six

years after such claim first accrues.

* * * * *

A petition on the claim of a person under

legal disability or beyond the seas at the time

the claim accrues may be filed within three

years after the disability ceases.

* * * * *

2. Section 2(a) of the Trading with the Enemy

Act, 40 Stat. 411, 50 U.S.C. App. 2(a), provides:

Sec. 2. That the word ‘‘enemy,’’ as used

herein, shall be deemed to mean, for the pur-

poses of such trading and of this Act—

tenes

3

(a) Any individual, partnership, or other

body of individuals, of any nationality, resident

within the territory (including that occupied

by the military and naval forces) of any na-

tion with which the United States is at war,

or resident outside the United States and doing

business within such territory, and any corpo-

ration incorporated within such territory of

any nation with which the United States is at

war or incorporated within any country other

than the United States and doing business

within such territory.

3. Proclamation No. 2714 of December 31, 1946,

61 Stat. 1048, 12 F.R. 1, provides as follows:

With God’s help this nation and our allies,

through sacrifice and devotion, courage and

perseverance, wrung final and unconditional

surrender from our enemies. Thereafter, we,

together with the other United Nations, set

about building a world in which justice shall

replace force. With spirit, through faith, with

a determination that there shall be no more

wars of aggression calculated to enslave the

peoples of the world and destroy their civiliza-

tion, and with the guidance of Almighty Prov-

idence great gains have been made in translat-

ing military victory into permanent peace.

Although a state of war still exists, it is at this

time possible to declare, and I find it to be in

the public interest to declare, that hostilities

have terminated.

Now, THEREFORE, I, Harry S. TRUMAN, Pres-

ident of the United States of America, do

4

hereby proclaim the cessation of hostilities of

World War II, effective twelve o "clock noon,

December 31, 1946.

STATEMENT

This case was decided by the Court of Claims

upon the petition (R. 1-4) and a motion to dismiss

for lack of jurisdiction based on 28 U.S.C. 2501

(R. 28). The salient facts, as alleged in the peti-

tion, may be summarized as follows:

Petitioner is a corporation incorporated under

the laws of the Republic of the Philippines (R. 1,

5-11). Itis the successor in interest to the National

Land Settlement Administration (R. 1), a corpora-

tion incorporated by an act of the Legislature of

the Commonwealth of the Philippines, which was

owned and controlled by the Philippine Govern-

ment (R. 1, 13-17). National Land Settlement Ad-

ministration was dissolved and its assets were trans-

ferred to petitioner (R. 1, 2, 10) by virtue of the

exercise of reorganization powers conferred upon

the President of the Philippines (R. 1, 12-13).

Between December 8, 1941, and May 31, 1942, the

United States forces in the Far East ‘‘by the exi-

gencies of the war, commandeered or otherwise de-

stroyed to keep from falling into the hands of the

enemy’’ a considerable number of automobiles,

trucks, tractors, and other property belonging to

the National Land Settlement Administration in

the total amount of Pesos 230,088.35 or $115,044.17

(R. 3-4, 20-28). A request for compensation sub-

mitted to the Army Claims Service, Philippines-

5

Ryukyus Command, on February 11, 1948 (R. 1,

17-19), was denied on April 12, 1948, on the ground

that the Claims Service did not have any authority

to pay claims submitted by the former Common-

wealth of the Philippines or any public corporation

owned in whole or in part by it (R. 2, 20).

On July 23, 1952, petitioner filed its petition in

the Court of Claims seeking compensation for the

property ‘‘commandeered or otherwise destroyed.”’

The Government moved to dismiss the claim for

lack of jurisdiction, on the ground that the claim

was barred by the statute of limitations, 28 U.S.C.

2501 (R. 28). Petitioner in reply contended that

the statute of limitations was suspended until De-

cember 31, 1946, the date of the cessation of hostili-

ties as proclaimed by the President. The Court of

Claims, adhering to its decision in Tan v. United

States, 122 C. Cls. 662, certiorari denied, 344 U.S.

895,’ held that the suspension of the six-year stat-

ute of limitations resulting from the occupation of

the Philippine Islands by the enemy was lifted on

September 2, 1945, the date of the Japanese sur-

render (59 Stat. 1733), and dismissed the com-

plaint.

ARGUMENT

This complaint, based upon the taking of prop-

erty of a Philippine Government ¢orporation be-

tween December 8, 1941 and May 31, 1942 (R. 3),?

1 While the opinion below did not mention expressly tlie Tan

case, it referred to its reasoning in Sese v. Umted States, 113

F. Supp. 658, 660, 664, decided the same day (R. 30), which in

turn expressly adhered to the decision in Tan v. United States.

2 It will be noted that the complaint does not allege that the

United States used petitioner’s property or that it took it for the

6

was filed on July 23, 1953 (R. 1), i.e., more than ten

years after the alleged taking occurred,* more than

7 years after the return to the Philippines of

President Osmena’s government, more than seven

years after the restoration on April 16, 1945, of

commercial mail service between the United States

and Manila as well as after General MacArthur’s

and President Osmena’s Proclamations of July 5,

1945, announcing the complete liberation of the

Philippine Islands,‘ and more than six years after

July 4, 1946, the date on which the Philippines be-

came fully independent. Proclamation No. 2695,

60 Stat. 1352.

1, The Court of Claims held that the suspension

of the statute of limitations caused by petitioner’s

temporary enemy status was lifted on September

2, 1945, and dismissed the complaint. In so doing it

adhered to its decision in Tan v. United States, 122

C. Cls. 662, certiorari denied, 344 U.S. 895, and to

the large number of cases following the Tan

opinion.’ The decision below reaches the correct

purpose of using it, but that the United States “by the exigen-

cies of the war, commandeered or otherwise destroyed to keep

from falling into the hands of the enemy” certain motor ve-

hicles. Under the recent decision of this Court in United

States v. Caltex, Ins., 344 U.S. 149, decided after the motion

to dismiss had been filed in this case, it may well be that these

aw fail to state a cause of action against the United

tates.

* The cause of action Bem 7 in this complaint accrued at

the time of the taking. United States v. Berdan Fire-Arms Co.,

156 U.S.552, 570-572; United States v. North American Co.,

253 U.S. 330; United States v. Dickinson, 331 U.S. 745; Tan v.

United States, 122 C. Cls. 662, 663, certiorari denied, 344 U.S.

895.

* Cf. Marcos v. United States, 122 C. Cls. 641, 646, 657-659.

® De Guia v. United States, 122 C. Cls. 665, certiorari denied,

344 U.S. 895; Lorenzo v. United States, 122 C. Cls. 667, certi-

orari denied, 344 U.S. 895; Navarro v. United States, 122

7

result,’ there is no conflict, and the petition does not

raise any issues which had not been submitted for

the consideration of this Court in Tan v. United

States, No. 382, Oct. T., 1952, certiorari denied, 344

U.S. 895, and De Guia and Palmares v. United

States, Lorenzo v. United States, and Navarro v.

United States, No. 386, Oct. T. 1952, certiorari

- denied, 344 U.S. 895. We submit, accordingly, that

further review is unwarranted.”

2. Petitioner contends that its complaint filed

on July 23, 1952 (R.1) for property destroyed more

than ten years earlier was timely because the six-

year statute of limitations of 28 U.S.C. 2501 did not

C. Cls. 669, certiorari denied, 344 U.S. 895; Purino v. United

States, 123 C. Cls. 739; Aguirre v. United States, 123 C. Cls. 767:

Rodriguez v. United States, 124 C. Cls. 551; Arribas v. Uni

States, 124 C. Cis. 553; Hodges v. United States, 111 F. Supp.

268; Sese v. United States, 113 F. < 658; Porras v. United

States, 113 F. Supp. 664; Angeles v. United States, 113 F. Supp.

665; Tabacug v. United States, 113 F. Supp. 666; De Rubin v.

United States, 113 F. Supp. 668; Martin v. United States, 113

F. Supp. 669; Silva v. United States, 113 F. Supp. 670; Lin-

dayag v. United States, 113 F. Supp. 671; Ramcar, Inc. v.

United States, 113 F. Supp. 672; Anno v. United States, 113 F.

Supp. 673. On October 5, 1953, the Court of Claims dismissed

16 petitions containing some 71 claims in open court for the

same reason.

®The United States takes the position that the court be-

low reached the correct result. We submit, however, that the

series porn mi ng too gen am of 28 Pees > be i

only on the of express ry ; that,

oa event, assuming the prescriptive period of 28 USC:

2501 was suspended by virtue of petitioner’s enemy status, the

statute began to run earlier than ber 2, 1945; and finally

that, following the end of the em qray period, petitioner

had merely three years within which to file its complaint (28

US.C. 2501, par. 3, supra, p. 2).

* As far as known to us, the Court of Claims has by now

dismissed all complaints filed after September 2, 1951, based

upon requisitions in the Philippine Island ry bg Japanese

occupation. Cf. fn. 5, supra. _ Accor dingly, importance

of the question presented by this petition is severely limited.

8

begin to run until December 31, 1946, the date of

the cessation of hostilities, and that the Court of

Claims usurped executive or legislative functions

when it selected the surrender day of September 2,

1945, as the date on which the six-year statute of

limitations began to run. It seems to infer that it

acquired an ‘‘enemy”’ status as a result of the occu-

pation of the Philippines and that that enemy

status did not terminate until the Presidential proc-

lamation of December 31, 1946. We submit that the

existence or termination of hostilities had no bear-

ing on petitioner’s enemy status, and the Proc-

lamation of December 31, 1946, did not, and was

not intended to, have any effect upon the suspen-

sion of the statute of limitations in the instant case.

(a). Petitioner’s inability to resort to the United

States courts, which is the asserted basis for the

suspension of the statute of limitations,’ was

brought about not by the mere existence of hostili-

ties or the circumstance that petitioner was a resi-

dent or citizen of a country with which the United

States was at war. No state of war ever existed

between the United States and the Philippine

Islands.” Petitioner was denied access to the courts

8 Hanger v. Abbott, 6 Wall. 532; Braun v. Sauerwein, 10

Wall. 218; Levy v. Stewart, 11 Wall. 244; Stewart v. Kahn,

11 Wall. 493; Standard Vacuum Oil Co. v. United States, 112

C. Cls. 137, vacated on other grounds, 339 U.S. 157; Marcos v.

United States, 122 C. Cls. 641, 645-646, 654; cf. Ex parte

Colonna, 314 U.S. 510, 511; Trading with the Enemy Act,

Section 7(b), par. 3, 40 Stat. 417, 50 U.S.C. App. 7(b), par. 3.

9 To the contrary, until July 14, 1946, the Philippine Islands

were subject to the sovereignty of the United States. Act of

March 24, 1934, Sees. 2, 10, 48 Stat. 456, 463. Similarly, prior

to July 4, 1946, a person born in the Philippine Islands was a

9

of the United States only by virtue of the seizure

of the Philippine Islands by the Japanese which

made it a corporation incorporated in territory oc-

cupied by the military forces of a nation with which

the United States was at war (Trading with the

Enemy Act, Section 2(a), supra, pp. 2-3) and

brought it within the statutory definition of an

enemy. This technical status as an enemy, however,

lasted only during the period of enemy occupation

and came to an end when the Japanese vacated the

Philippines; its termination did not require the

conclusion of a formal peace treaty.” Drewry v.

Onassis, 188 Mise. (N.Y.) 912, 913-914, affirmed, 272

App. Div. 870, leave to appeal denied, 272 App. Div.

960; Chuchuru v. Chutchurru, 185 F. 2d 62 (C.A.

10) ;* ef. United States v. Rice, 4 Wheat. 246, 254,

and United States v. Hayward, 2 Gall. 483, 501,

26 Fed. Cas. 240, 246 (C.C.D. Mass.), discussing

analogous problems arising from the occupation

of Castine, Maine, during the War of 1812.

(b). As to the claim that the court below usurped

a function of the political branch of the Government

national of the United States. Nationality Act of 1940, Section

204(a), 54 Stat. 1137, 1139, 8 U.S.C. (1946 ed.) 604(a). Cf.

Cabebe v. Acheson, 183 F. 2d 795 (C.A. 9).

10 The Court of Claims properly pointed out in Sese v. United

States, 113 F. Supp. 658, 664, that no contemplates the

conclusion of a peace treaty with a liberated friendly or neutral

country. Petitioner would have been the first to complain if

anyone had claimed after the spring of 1945 that it remained

subject to the disabilities of an enemy until the Proclamation

of the end of hostilities or the conclusion of a peace treaty.

11See also Treasury Department, General Ruling No. 18,

10 F.R. 6170, removing the stigma of the classification as “en-

emy territory” from any portion of the Philippine Islands con-

trolled or occupied by the military, etc., forces of Japan im-

mediately upon liberation.

10

when it determined that the suspension of the

statute of limitations came to an end on September

2, 1945, we submit that, if the court below committed

error on that score, it did not prejudice petitioner.

The only political determinations of the liberation

of the Philippine Islands of which we are aware are

the statements made by General MacArthur and

President Osmena on July 5, 1945, that the Philip-

pine Islands had been completely liberated (supra,

p. 6). Petitioner cannot complain of the selection

by the court below of a date more favorable to it.

The Proclamation of December 31, 1946, (supra,

pp. 3-4) has no bearing on petitioner’s access to the

courts of the United States or the suspension of the

statute of limitations resulting from a person’s

status as an enemy. Its purpose was to provide for

the expiration of certain statutes enacted ‘‘for the

duration of the hostilities,’’’ considering that by

then the pressing problems of demobilization and

reconversion were for the most part resolved in the

United States.“ Cf. concurring opinion of Mr.

Justice Clark in United States v. Smith, 342 U.S.

225, 230. To the contrary, this Court has pointed

12 Cf. H. Doc. 282, 79th Cong., Ist Sess., pp. 107-114. “Ces-

sation of hostilities” is not a term of art which entails well

defined legal yas pong The clause was rarely used before

World War II, there was no judicial authority as to its

meaning, see Note, Judicial Determination of the End of the

War, 47 Columbia L.R. 255, 262. And there was no express

Proclamation of the End of Hostilities following World War I.

Hudson, The Duration of the War between the United States

and Germany, 39 Harv. L.R. 1020, 1030.

18 We cannot perceive what bearing the Proclamation of

December 31, 1946, could have on conditions in the Philippine

Republic, which by then was an independent country. Cf.

Pet., p. 9.

11

out that since the Proclamation acknowledged the

continued existence of a state of war, it did not ter-

minate the enemy status of an alien. Ludecke v.

Watkins, 335 U.S. 160, 170.

CONCLUSION

The decision below is correct in the result. It is

respectfully submitted that the petition for a writ

of certiorari should be denied.

Rosert L. STERN,

Acting Solicitor General.

WaRREN E. BURGER,

Assistant Attorney General.

Pav A. SWEENEY,

HERMAN MARCUSE,

Attorneys.

NovEMBER, 1953.

WU. 5. GOVERNMENT PRINTING OFFICE: 1983 279762 $78