113 U. S. 293, 28 L. ed. 976, 5 Sup. Ct.,
Rep. 487; Risley v. Phenix Bank, 83 N.
Y. 318, 38 Am. Rep. 421, affirmed in 111
U. S. 125, 28 L. ed. 374, 4 Sup. Ct. Rep.
322; Re Ruben [1915] 2 Ch. 313, [1915]
W. N. 294, 84 L. J. Ch. N. S. 789, 113
L. T. N. S. 647, 31 Times L. R. 563, 59
Sol. Jo. 704.

Mr. Walter F. Taylor argued the cause and filed a brief for plaintiff in error in

No. 396:

To entitle the libellant, who is here the defendant in error, to a decree on the pleadings, awarding him possession of the property against which his libel was filed, the pleadings would have to show that the property in fact belonged to or was held for account of an enemy or an ally of an enemy.

Clinkenbeard

V. United States, 21 Wall. 65, 22 L. ed. 477; Gonzales v. Williams, 192 U. S. 1, 48 L. ed. 317, 24 Sup. Ct. Rep. 177; DeLima v. Bidwell, 182 U. S. 1, 45 L. ed. 1041, 21 Sup. Ct. Rep. 743, Re Fassett, 142 U. S. 479, 35 L. ed. 1086, 12 Sup. Ct. Rep. 295.

The trust instrument creates a trust

for the benefit primarily of the creditors and policyholders of the Mannheim Insurance Company in the United States. Cooke v. Warner, 56 Conn. 234, 14 Atl. 798; Brackett v. Middlesex Bkg. Co. 89 Conn. 645, 95 Atl. 12; Lancashire Ins. Co. v. Maxwell, 131 N. Y. 286, 30 N. E. 192; Re Home Provident Safety Fund Asso. 129 N. Y. 288, 29 N. E. 323; Ruggles v. Chapman, 59 N. Y. 163; People ex rel. Ruggles v. Chapman, 64 N. Y. 557; Vandiver v. Poe, 119 Md. 348, 46 L.R.A (N.S.) 187, 87 Atl. 410, Ann. Cas. 1914D, 435; Vandiver v. Fidelity Sav. Bank, 120 Md. 619, 87 Atl. 1086; Imperial L. Ins. Co. v. Hambitzer, 95 Mich. 513, 55 N. W. 365; Falkenbach v. Patterson, 43 Ohio St. 359, 1 N. E. 757.

The Alien Property Custodian is not obliged to come into court to assert his right of possession; but, if he does come into court, he must establish his right to the property upon the merits as against the claim of a citizen who is in

possession of it.

instituting proceedings for the judicial determination of their rights, and of providing that certain specified remedies shall be exclusive, is well sanctioned by legislation in the past which has been sustained as valid.

Treat v. Staples, Holmes, 1 Fed. Cas. No. 14,162; Brice v. Elliott, 2 W. N. C. 560, Fed. Cas. No. 1,854; DeLima v. Bidwell, 182 U. S. 1, 180, 45 L. ed. 1041, 21 Sup. Ct. Rep. 743; Carey v. Curtis, 3 How. 236, 11 L. ed. 576; Bartlett v. Kane, 16 How. 263, 14 L. ed. 931; Arnson v. Murphy, 109 U. S. 238, 240, 27 L. ed. 920, 922, 3 Sup. Ct. Rep. 184; 18 How. 272, 15 L. ed. 372; Springer v. Murray v. Hoboken Land & Improv. Co. United States, 102 U. S. 586, 26 L. ed. 253; Dodge v. Osborn, 240 U. S. 118, 60 L. ed. 557, 36 Sup. Ct. Rep. 275; HayL. ed. 738; Barker v. Harvey, 181 U. S. craft v. United States, 22 Wall. 81, 22 481, 45 L. ed. 963, 21 Sup. Ct. Rep. 690; Bostiller v. Dominquez, 130 U. S. 238, 250, 32 L. ed. 926, 931, 9 Sup. Ct. Rep. 525; Mitchell v. Furman, 180 U. S. 402, 45 L. ed. 596, 21 Sup. Ct. Rep. 430; Moyer v. Peabody, 212 U. S. 78, 53 L. ed. 410, 29 Sup. Ct. Rep. 235; Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 60 L.

ed. 1084, 36 Sup. Ct. Rep. 637.

The determination of enemy ownership, made pursuant to the provisions of § 7(e), is conclusive in so far as the Custodian's right to possession is conof property, made by the Custodian purcerned; and demands for the possession

suant to this section of the act, must be complied with, and thereafter judicial of ownership, as provided by § 9. determination had with respect to claims

Salamandra Ins. Co. v. New York L.

Ins. & T. Co. 254 Fed. 852; Keppelmann
Garvan v. $25,000 Bonds, Decided Nov.
v. Palmer, N. J. —, 108 Atl. 432;
1920, not yet reported; Garvan v. $100-
000 Bonds,
481, 477; Biesantz v. Supreme Council R.
C. C. A., 265 Fed.
A. 106 Misc. 545, 175 N. Y. Supp. 46,

Kahn v. Garvan, 263 Fed. 909, 264 Fed.
253; Garvan v. Deposit Account of New
York Funchal Hand Embroidery Co.
not yet reported.

Clinkenbeard v. United States, supra. Special Assistant to the Attorney General Boggs and Assistant Attorney General Spellacy argued the cause, and, with Solicitor General Frierson and Special Assistant to the Attorney General Stan-pany with the trustees. ley, filed a brief for defendant in error: The practice on the part of the government, in proper cases, of taking possession of property and then requiring ad verse claimants to take the initiative in

Neither the statutes of Connecticut in question, nor the terms of the socalled deed of trust, contemplated or effected any change in ownership of the securities deposited by the Munich Com

Security Co. v. Hartford, 61 Conn. 89, 23 Atl. 699; Re Home Provident Safety Fund Asso. 129 N. Y. 295, 29 N. E. 323.

The Federal courts, even without the backing of such express statutory au

libellant moved for decrees for possession upon the pleadings, which were granted by the district court. The decrees were affirmed by the circuit court of appeals. - C. C. A., 265 Fed. 477; — C. C. A.

thority as the Trading with the Enemy, Act gives in this case, have refused to follow the rule of the state courts, and have transferred possession of securities from a state official to the receiver appointed by the Federai courts for the, 265 Fed. 481. As the decision of the insolvent corporation.

Morrill v. American Reserve Bond Co. 151 Fed. 305; Robinson v. Mutual Reserve L. Ins. Co. 162 Fed. 794.

It is clearly within the power of Congress to deprive the mortgagee, pledgee, or other holder of a right in the nature of security, of the possession of the property involved, and to place such possession in the Alien Property Custodian, provided there is given another reasonably effective remedy by which this right of security may be realized upon.

latter court is not made final by the statute, the cases have been brought on writ of error to this court.

As is obvious from the statement of the pleadings, the libels are brought upon the theory that these are purely possessory actions, and that, for the purposes of immediate possession, the determination. of the Enemy Property Custodian is conclusive, whether right or wrong. The claimants, on the other hand, set up substantive rights, and seek to have it decided in these suits whether the funds are enemy property in fact, and whether they have not the right to detain them. Strictly possessory actions still survive in the laws of some states, and have been upheld, leaving the party claiming title to a subse

Bernheimer v. Converse, 206 U. S. 516, 51 L. ed. 1163, 27 Sup. Ct. Rep. 755. Statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, such as will avoid an unjust or an ab-quent suit. Grant Timber & Mfg. Co. v. surd conclusion.

Lau Ow Bew v. United States, 144 U. S. 47, 59, 36 L. ed. 340, 344, 12 Sup. Ct. Rep. 517.

Mr. Justice Holmes delivered the opinion of the court:

Gray, 236 U. S. 133, 59 L. ed. 501, 35 Sup. Ct. Rep. 279. There can be no doubt that Congress has power to provide for an immediate seizure in war times of property supposed to belong to the enemy, as it could provide for an attachment or distraint, if adequate provision is made for a return in case of mistake. As it can authorize a seizure in pais, it can authorize one through the help of a court. The only questions are whether it has done so, as supposed by the libellant, and, if so, whether the conditions imposed by the act have been performed.

These are libels brought by the Alien Property Custodian under the Trading with the Enemy Act, October 6, 1917, chap. 106, § 17, 40 Stat. at L. 411, 425, Comp. Stat. §§ 3115a, 3115i, Fed. Stat. Anno. Supp. 1918, pp. 847, 865, to obtain possession of securities in the hands of the plaintiffs in error respectively as If the Custodian was entitled to detrustees. The libel in each case alleges mand the delivery of the property in questhat the Alien Property Custodian, after tion, it does not seem to need argument investigation, determined that a German to show that the demand could be eninsurance company named was an enemy, forced by the district courts under § 17 not holding a license from the President, of the act, giving to those courts jurisdicetc.; that certain specified securities be- tion to make all such orders and decrees longed to it or were held for its benefit by as may [567] be necessary and proper to the party now appearing as a plaintiff enforce the provisions of the act. The in error in that case; and that a demand first question, then, is whether the Cusfor the property had been made, but not todian had the right to make the demand. complied with. The libellant prayed an By § 5 the President may exercise any order directing the marshal to seize the power or authority conferred by the act, property, and citing claimants of a right through such officers as he may direct. to possession to show cause why the same It is admitted that he has exercised the should not be delivered to him. The plaintiffs in error appeared as claimants in powers material to these cases through their several cases, denied that the funds the Enemy Property Custodian, and by were held for the benefit of an enemy, and set up the trust under which they held [566] them, as required by the laws of Massachusetts or Connecticut, for the security of American policyholders and creditors, with reasons for their right to retain the funds alleged in detail. The

the Act of November 4, 1918, chap. 201, 40 Stat. at L. 1020, the Custodian is given the right to seize. By § 7 (c), as originally enacted, "If the President shall so require, any money or other property owing or belonging to or held for, by, on account of, or on

and all property thus acquired shall be held, administered and disposed of as elsewhere provided in this act." This shows clearly enough the peremptory character of this first step. It cannot be

behalf of, or for the benefit of an enemy or ally of enemy not holding a license granted by the President hereunder, which the President after investigation shall determine is so owing or so belongs, or is so held, shall be conveyed, supposed that a resort to the courts is transferred, assigned, delivered or paid over to the Alien Property Custodian." We are to take it, therefore, that the President has "so required," and that a case is made out under § 17, unless we are to consider the defenses interposed.

to be less immediately effective than a taking with the strong hand. Clinkenbeard v. United States, 21 Wall. 65, 22 L. ed. 477, has no application. That was debt on a bond for a tax, and turned on the right of the government to the tax, not on possession. By a later paragraph "the sole relief and remedy of any person having any claim to any property" transferred to the Custodian "or required so to be or seized by him shall be that provided by the terms of this act." The natural interpretation of this clause

provided, in this case by § 9; that property required to be transferred and property seized stand on the same footing; not that the resort by the Custodian [569] to the courts instead of to force opens to the person who has declined to obey the order of the statute, or who has prevented a seizure, a right by implication to delay what the statute evidently means to accomplish at once.

To the conclusion that we reach it is objected that the Custodian gets a good deal more than bare possession,-that the property is to be conveyed to him; and that, by the Act of March 28, 1918, chap. 28, 40 Stat. at L. 459, 460, enlarging S 12, the Custodian "shall be vested with all of the powers of a common-law trustee in respect of all property, other than money, which has been or shall be, or which has been or shall be required to be, conveyed," etc., to him, and is given the power to

If we look no further than § 7 (c), it is plain that obedience to the statute requires an immediate transfer in any case within its terms, without awaiting a resort to the courts. The occasion of the duty is a demand after a determination by the President, and it is hard to give much meaning to the words "which the Presi- is that it refers to the remedies expressly dent after investigation shall determine is so ... held" unless the determination and demand call the duty into being. The condition "after investigation" additionally points to the intent to make his act decisive upon the point, as it is in other cases mentioned in § 7 (a). But it is said that the subject of the section is enemy property only, and therefore that the determination cannot be final in its effect. Day v. Micou, 18 Wall. 156, 21 L. ed. 860. And it is true that it is not final against the claimant's rights. Upon surrender the claimant may at once file a claim under § 9; if he satisfies the representative [568] of the President may obtain a return; and, if he does not obtain it in sixty days after filing his application, or forthwith if he has given the required notice, but filed no application to the President, may bring a suit to establish his rights in the district court, in which case the property is to be re-sell and manage the same as though he tained by the Custodian until final decree. These provisions explain the initial words of § 7 (c) as saving the ultimate rights of the claimant, while the determination of the President still may be given effect to carry out an immediate seizure for the security of the government until the final decision upon the right. The reservation implies that mistakes may be made, and assumes that the transfer will take place, whether right or wrong. The argument on the original words of the act, in view of the manifest purpose, seems to us to be strong; but it appears to us to be much strengthened by the amendments of later date. By the Act of November 4, 1918, chap. 201, 40 Stat. at L. 1020, § 7 (c) was amended, among other things, by adding after the requirements of transfer, "or the same may be seized by the Alien Property Custodian;

were absolute owner. All this may be conceded if no claim is filed. But this act did not repeal § 9, which is amended by the later Acts of July 11, 1919, chap. 6, 41 Stat. at L. 35, and of June 5, 1920, chap. 241, 41 Stat. at L. 977, and, as we have said, provides for immediate claim and suit, and requires the property in cases of suit to be retained in the custody of the Alien Property Custodian or in the Treasury of the United States to abide the result. The present proceeding gives nothing but the preliminary custody, such as would have been gained by seizure. It attaches the property to make sure that it is forthcoming if finally condemned, and does no more.

Decree affirmed.

The CHIEF JUSTICE took no part in the consideration or decision of these causes.

[570] GEORGE G. LA MOTTE et al.,, Interior, strengthened by the qualification

lands

extent of relief.

Injunction against lessee of Indian, were divided under its provisions among the members of the tribe, as were also the tribal funds. Each member received 160 acres, designated as a homestead, and applus lands. The tribal funds were divided by placing a pro rata share to the credit of each member or his heirs in the United States Treasury. Except as otherwise provided, the homestead is to be "intwenty-five years, or during the life of the alienable and nontaxable for a period of homestead allottee," the surplus lands are to be "inalienable for twenty-five years" and nontaxable for three years, and the funds as distributed are to be held in trust by the United States for twenty-five years.

9. Injunctive relief against the use of control by lessees of unrestricted, undivided interests in Indian lands, to the exclusion of the Indian owners, of the remaining reproximately 500 acres, designated as surstricted interests, should not include a prohibition against the sale of the unrestricted interests, but, in that particular, should be confined to prohibiting the dealing with the restricted undivided interests of the Indian

owners.

[For other cases, see Injunction, II. b, in Digest

Sup. Ct. 1908.]

[No. 121.]

Submitted December 10, 1920. Decided
January 24, 1921.

APPEAL from the United States Cir-
cuit Court of Appeals for the Eighth
Circuit to review a decree which modi-
fied, and, as modified, affirmed, a decree
of the District Court for the Western
District of Oklahoma, enjoining the as-
sertion or exercise of rights under leases
from Osage Indians. Modified, and, as
modified, affirmed.

See same case below, 167 C. C. A. 277,

256 Fed. 5.

The facts are stated in the opinion. Messrs. T. J. Leahy and C. S. Macdonald submitted the cause for appel

lants.

Assistant Attorney General Nebeker and Special Assistant to the Attorney General Underwood submitted the cause for appellee.

Mr. Justice Van Devanter delivered the opinion of the court:

This is a suit by the United States to enjoin the defendants (appellants here) from asserting or exercising any [572] right under certain leases obtained from individual Osage Indians without the approval of the Secretary of the Interior, and from negotiating or obtaining other leases of the same class without conform ing to statutory provisions and administrative regulations alleged to be applicable. The district court granted the major part of the relief sought, and denied the rest. On cross appeals the circuit court of appeals enlarged the relief granted, but refused a part of what was denied by the district court. 167 C. C. A. 277, 256 Fed. 5. The United States then acquiesced and the defendants took a further appeal to this court.

These periods do not all have a common point of beginning, but nothing turns on that here. The act contains express provision (§ 2, seventh) that the Secretary of the Interior, in his discretion, upon the petition of any adult member, may issue to such member "a certificate of competency," authorizing him to sell and convey any of his surplus lands, if, upon investigation, he is found fully competent and capable of transacting his own business and caring for his own affairs, and that, upon the issue of such certificate, the surplus lands shall become subject to taxation, and the member [573] shall have "the right to manage, control and dispose of his or her lands [other than the homestead] the same as any citizen of the United States." The interest on the funds held in trust and also certain revenues and moneys from other sources (§ 4, first and second) are to be paid quarterly to the members, except that, in the case of minors, payments are to be made to the parents, so long as the moneys are not misused or squandered, and, where the parents are dead, payments are to be made to legal guardians. Upon the death of a member his lands, moneys, and interests "descend" to his "legal heirs according to the laws of Oklahoma," with an exception not material here (§ 6). The leasing of allotted lands is specially dealt with as follows:

"Sec. 7. That the lands herein provided for are set aside for the sole use and benefit of the individual members of the tribe entitled thereto, or to their heirs, as herein provided; and said members, or their heirs, shall have the right to use and to lease said lands for farming, grazing, or any other purpose not otherwise Prior to the Act of June 28, 1906, specifically provided for herein, and said chap. 3572, 34 Stat. at L. 539, the lands members shall have full control of the to which the suit relates were tribal lands same, including the proceeds thereof; of the Osage Indians, and after that act Provided, That parents of minor mem