Soriano v. United States

RESPONDENT:United States
LOCATION:Railroad Crossing

DECIDED BY: Warren Court (1956-1957)

CITATION: 352 US 270 (1957)
ARGUED: Dec 05, 1956
DECIDED: Jan 14, 1957

Facts of the case


  • Oral Argument – December 05, 1956 (Part 2)
  • Audio Transcription for Oral Argument – December 05, 1956 (Part 2) in Soriano v. United States

    Audio Transcription for Oral Argument – December 05, 1956 (Part 1) in Soriano v. United States

    Earl Warren:

    Number 49, Jose Soriano, Petitioner, versus The United States.

    Prew Savoy:

    Prew Savoy, for the petitioner.

    Earl Warren:

    You may — you may proceed Mr. Savoy.

    Prew Savoy:

    I would like to take this opportunity to thank the Court for its consideration.

    After the situation arose in November, a reason of the Maritima case below which was there involved, we were to present the original issue in the Soriano case.

    This case comes to this Court by certiorari to the Court of Claims.

    Now, the decision in the Soriano case was based upon Logronio versus United States in which that Court held that the guerrilla activities involved in the Philippines did not produce attack of the United States, so that the Court of Claims had no jurisdiction.

    My argument will be devoted to that question urging that a debt of the United State was created by reason of the guerrilla activities during the period January 1942 to January 1945 and that the United States being liable, it is a matter of which the Court of Claims has jurisdiction.

    The second part of the case will be on the question involved in the Maritima case which will be argued by Mr. George Foley where the court below which had held for some five years that the six-year limiting statute was applicable to all these claims, no longer applied but more — did not suspend the operation of the statute of limitations, but it had been suspended by the training with the Enemy Act and that that created a new legal disability, so that it fell within the saving provision and there was only a three-year statute of limitation.

    If petitioner is correct, the simplest file in the Court of Claims more than three years after, the claim accrued but less then six years.

    If the Maritima case is correct, then since it was filed more than three year, thereafter, the Court does not have jurisdiction.

    The two cases are thus interdependent.

    The specific question arising on open grant in the Logronio is this, a Filipino civilian furnish supplies and equipments to organize and recognize Filipino guerrillas on the Island of Negros who were acting under orders of General MacArthur and who had been recognized by it.

    The requisitions were — we allege by U.S. Army Forces officers and distinguished from U.S. Army, the regular Army is defined in Section II.

    They gave receipts, promising that the U.S. Army would repay upon its promise return by MacArthur, which were relied upon.

    It was a meaning of demands but that created a contract.

    When MacArthur returned in 1944, the same guerrillas who had been recognized during that interim period, which I will discuss it right after my statement but we’re again recognized first by Osmeńa, Commander in Chief of the Philippine Army, as elements of that Army, and then while the sixth and eighth United States Army under General Sutherland, Krueger and Dunkel, as elements of United States Army Forces in the Far East under command of General MacArthur.

    The Government in its statement for question has left out reference to the second recognition which does become important.

    Now, the facts are simply these, and there — there is no general disagreement because there are mainly statutes events of which the Court takes judicial notice and military orders which are in the appendices to the extent we have found applicable.

    From 1898 to 1946, the Philippines were a territorial possession of the United States.

    Petitioner, during the pertinent dates from the time — the first date we will use will be July 26, 1941, he was a national of the United States, a citizen of the Philippines, residing in the Philippine Islands.

    On — in March 1934, the United States Congress has a — a — an Independence Act containing 12 obligatory provisions to be contained in the Constitution of the Commonwealth of the Philippines until they became independent which would be approximately 1946.

    Two of these provisions are very important, and one, this is for allegiance to the United States.

    Second, it provides that the United State had the right to maintain armed forces in the Philippines and the right to order into such armed forces all organized military forces of the Government of the Commonwealth of the Philippines.

    A Constitution was adopted in 1935 and the first Act of the Commonwealth was to create a Philippine Army.

    As Japan stated to surround the Philippines towards the middle of July 1941, President Roosevelt, on the recommendation of General MacArthur, from with that time was military adviser to the Philippines, issued a military order as Commander and Chief of the Army and Navy of the United States and which he called an order into the service of the armed forces of the United States, all the organized forces of the Commonwealth of the Philippines.

    On the same date, he created through the War Department what we call USAFFE, United States Army Forces in the Far East.

    MacArthur resigned as adviser, he was made a brigadier general, he was placed in Commanding — as Commanding Officer of USAFFE.

    In October, the Philippine constabulary was — by orders of the War Department, induction into the U.S. Army Forces in the Far East, December 18, the Philippine Army was so inducted.

    They were the predominant troops when Japan landed in the Island of Luzon, Mindanao and started its entry into the Philippines.

    Prew Savoy:

    In December, very obviously, Luzon and the other islands could no longer be held, and our troops, on their way right immediately moved to Bataan and to Corregidor.

    MacArthur stayed until March, left for Australia but not without further giving orders with respect to guerrilla warfare.

    It was this group, MacArthur had under him, U.S. Army, Naval Units, Marines, and the Philippine Army, all of these are part of USAFFE, no foreign troops, all in our army forces.

    True, they were not in the army as defined but neither were the Marines or the Naval Units, they’re all part of our army forces, nonetheless, fought this battle there.

    In — on April 9, King surrendered Bataan.

    On May 7, Wainright surrendered Corregidor.

    Col refused to accept the surrender because Wainright would not surrender all U.S. Army Forces in the Far East.

    In the meantime, Wallace arms and ammunitions had been destroyed at Corregidor and he had to do it and he proceeded to try to get other generals and colonels to surrender.

    You will find in appendix as attached to the main brief — the typically and — and what few troops he got to surrender.

    In fact, in one unit, four officers and men surrendered.

    In another, 90% of one battalion and none of three others.

    They all turned in the hills to form guerrilla bands which they did with great success.

    He — a part of surrender of Corregidor and finally, on June 9th, a date not — not often in used, Wainright surrendered what he had left and could surrender of General Sharp’s troops, Colonel Pugh’s troops and others.

    But he had great difficulty, and as I say, in the appendices as I have taken from three army publications, published by the Department of the Army since the war, one is Morton’s Fall of the Philippines, second is Cannon’s or Smith’s, The Approach to the Philippines and the third is Leyte, the return to the Philippines by Cannon.

    And they’re from historical documents — support everything which we have found in these miscellaneous orders.

    They support the fact — and the Philippine Army did not serve (Inaudible), they were inducted into it and was part of our army forces.

    On page 2c of the reply brief, I reproduced an order which shows that certainly, contemporaneously —

    Earl Warren:

    At page 3 Mr. —

    Prew Savoy:

    Page 2c sir.

    Earl Warren:

    — 2.

    Prew Savoy:

    — 2c.

    Earl Warren:

    Thank you.

    Prew Savoy:

    On the first paragraph, and it’s dated May 15, 1942, brought us the term when Wainright was trying to get his men to surrender.

    Beyond his trying here — by — assumes the responsibility of commanding officer of all the west guerilla quarters in the honor that was in, and that a personal representative of General Douglas MacArthur for the conduct of guerrilla operations and incident affairs, this is in accordance with verbal instructions from General MacArthur on January 20, 1942.

    Though there are three periods, the first period I have covered goes to this date of May 1942.

    That is a period when the Philippine Army was part of the U.S. Army Forces as such and before they surrendered.

    The second period starts right at that moment with the organization of guerrillas.

    The first order I was able to find was this one and it’s covered the middle parts of Luzon (Inaudible).

    In paragraph 3, he says any person or person operating as guerrilla in the name of the U.S.A. without the required authority, in paragraph 2, will be considered as enemy of the U.S. Government.

    As time went on, and if you continue, you’ll find telegrams to (Inaudible), others all mentioned in one’s history, and these tie in with what he says particularly with the letter of February 13 1943 which starts at page 6c.

    Prew Savoy:

    Lieutenant Commander (Inaudible) of the U.S. Navy was apparently very well trusted by MacArthur and set in the submarine to appoint Lieutenant Colonel Peralta as Commanding Officer of the 6th Military District with intelligent next to be spread in the 10th, and appointing Colonel Fertig as commander of the 10th Military District with other — I have it long — Peralta having 6th, 7th and 8th and Fertig the 9th and 10th.

    During all of this period, getting messages through to Australia was extremely difficult.

    Most of it was by word amount with this, plus what — I’ve called it rather informal order, a directive but it was followed because in all 10 districts, colonels, others were brought up in rank to held those as commanding officers to conduct guerrilla warfare.

    That guerrilla nomination gave these commanders three things, the right to communicate with headquarters, the right to put out script to pay debts with, and the right to get supplies if they could be furnished at any time because getting supplies to them was extremely difficult.

    Since they couldn’t get the supplies, they had the right to forge and take it, which I did, but of course cooperation from the next.

    This period went on until October 1944, that is the second period.

    The third period, President Osmeńa returned in October with General MacArthur.

    They landed on the Island of Leyte.

    There, the first headquarters were setup and the return promise by MacArthur started.

    It eventually ended and surrender on September 2, 1945.

    Upon arrival, Osmeńa, Commander and Chief of the Philippine Army, issued an order Number 21 which called into the Philippine Army as elements of the Philippine Army, the various troops which had been previously recognized in that second period, and immediately, now this was done on approval and after screening by the 6th and 8th Armies of the United States, it wasn’t done for Filipinos for Philippines.

    Immediately, they were reactivated and redrafted, reinducted into the U.S. Army Forces in the Far East.

    The most important order on the subject is at pages 63 and 64 of the main — the appendix to the main page where on August 23, 1945, in order to the Commanding General U.S. Army Forces —

    Earl Warren:

    What was that page Mr. Savoy?

    Prew Savoy:


    Earl Warren:


    Thank you.

    Prew Savoy:

    And you’ll find there that Fertig was recognized as head of the 10th Military District from February 13, 1943, the date of that letter which I’ve read from the reply appendix.

    Peralta was 6th Military District.

    Peralta had given over the Leyte command to Congleton who was decorated by MacArthur according in this history upon the return of MacArthur.

    And on the Island of Negros, Colonel Salvador Abcede, that was the 7th Military District, was recognized as of July 8, 1943.

    So that from 1943, until the termination of the war, all these men had in mind, as to me, expressed recognition by MacArthur, as well as implied recognition to which I’ll shall come in a moment.

    During the second and third periods, no question that there was absolute recognition of organized guerillas, there were odd lot parents not recognized.

    There were many not mentioned in that order recognized and but it — they had to be an organized band under a leader and the leader had to be recognized and was by MacArthur and retroactively to the day in which the guerrilla operations commenced.

    Now, the Government has maintained that these men were not in the army.

    My argument in substance, is this that for the first period, they were inducted in our army and were no different than a marine.

    But as the requisitions weren’t made in that period, I’ll recite that to show their status before they became guerrillas.

    It does not become a focal issue, although, I do think it is important to ascertain that they were or were not in our army when they became guerrillas for application and their paid conventions, the Rules to Land Warfare and the Requisition Act of 1941.

    Now, during the second period, I maintained that under the Hague conventions, which I’ve recited in my main brief, and the Rules of Land Warfare, any American officer in occupied territory under the existing emergencies in the Philippines and the absolute right recognized by all the signatory nations today that to requisition properly, and if they wouldn’t give it to him against receipts to take it away and carry on the military operations.

    I maintain that the Rules of Land Warfare merely quote The Hague conventions, 52 and 53, and make them part of the rules of land warfare.

    Prew Savoy:

    And he tell his boys, when they were in occupied territory in military operations under emergency conditions where you can’t cable Washington or MacArthur in Australia or get any other authority, you’re entitled to requisition.

    And if they won’t give it you to take, try to pay for it if you can, if you can’t, give them a receipt which promises just compensation and that’s it.

    The Requisition Act of 1941 is nothing but a reiteration of that.

    It is quoted and as an appendix and it merely gives the President of United States the absolute right and power to requisition under emergency conditions during World War II.

    Now, the Government took — as four points, I might say that the Government in that reply to this argument on the Hague conventions, the Rules of Land Warfare or the Requisition Act, whatsoever, it was relegated to a footnote at pages 46 to 47, and in lieu of that, the Government spilled out its theory.

    The first theory is that no one can bind the United States upon a contract of procurement unless authorized to do so.

    I cannot disagree with that.

    That says nothing about time of war emergency conditions on occupied territory and the case is cited are just as far from war as peace can be.

    The second, that there is no allegation that authorized the officers who made the requisitions were expressly authorized to make the requisitions, well I can’t disagree with that.

    MacArthur, who was their chief, didn’t authorize them, he didn’t have to.

    In the presence of the Hague conventions, rules of warfare, they had the right, I didn’t have to say he as now organize guerillas and troops of the U.S. Army, you may go get food that I agreed, the were no one expressly authorize.

    And then the third argument goes on to the question of the arrangements so-called between the United States and the Philippines Army that go to show that the Philippine Army was an individual unit, a part of what from the U.S. Army Forces.

    Well, I won’t go into it at length because my brief covers it quite totally.

    I will point out that in HH, appendix HH, I have paralleled the sovereign powers returned — retained by the United States against those we gave to the Philippines for the period until it became an offense.

    We retained all sovereign rights impart except the right to name a president, legislature to pay duties to the United States or excesses, over quotas and the right to became aliens.

    That’s all.

    We’ll retain every other sovereign rights including the one that call their army into our forces.

    Now, they enlighten that situation to our situation in Europe, no difference than the French.

    Well, I can just see the United States ordering the French Army into the Armed Forces of the United States, and further naming their president because this is what actually happened, while the Constitution first permitted the six-year term election by the Filipinos, this was amended to make it 8 years.

    But as the 8 years approached, Manuel Quezon and Osmeńa were in the United States.

    Their term had two years to run so our Congress in a — a joint resolution saying not withstanding the Constitution of Philippines, we name new President and the Vice President until you have an election back home so that, that made Osmeńa when Quezon died the next year, Commander in Chief of the Philippine Army through us so he was our Commander in Chief.

    I can’t see this argument of the great sovereignty we gave them.

    A second one, a point that should be noted is that the benefits we gave under the National Life Insurance Act and the Missing Persons Act did not change the status of the Philippine Army, these are the — the American act, of course not.

    It was a recognition of their status.

    Those two laws were applicable only to persons who served in the land and naval forces of the United States.

    The Filipinos did so they were entitled to those benefits.

    That is changing their status.

    It’s recognized that they’re in our land and naval forces in our troop.

    Congress didn’t give them all the school privileges and home privileges.

    But remember, when the — these privilege were given for National Life Insurance Act, it was just a lot of months before they became independent and when the Missing Persons Act which had been overlooked was brought in, it was after they were aliens.

    Prew Savoy:

    Well, I think we were quire generous and it was by reason of the reorganization of their status that we did.

    Now the fourth point is the most extraordinary of all because it is recognized in — is recognized in the Government system, a brief involving the statute of limitations that we are preceding how the violation of just compensation, well, violation of the Fifth Amendment of the Government Constitution.

    And yet, in the light of that, this Court has asked to go slow in deporting from the view of the Executive Department and to leave this matter to a decision by the Executive Department because at this high level of diplomatic relations, they can settle these cases beautifully without the help of the Court, that’s the fundamental.

    There’s a group of case decided with which I can’t disagree that if a ship comes into port, there is a certificate from the Department of State that the ship is owned and operated by a foreign government, our courts will not take jurisdiction, they’re immune from suits.

    I don’t what that has to do with a contract claim against the United States.

    Not one case that is cited has anything but a politically flavor as so clearly on a surface, there can be no doubt.

    Anyway, it is my concept that it has always been a recognized due of executive as well as the judicial branch that question of just compensation is one for judicial determination and a judicial function and this Court should not be as abdicated.

    Second this is the first time that I have seen a new record there, the Government taking the position that you proceed in a political claim or any claim against a foreign country without first exhausting your judicial remedy.

    If it claim is presented by the United States that they have American national, one fundamental is that, if we established that that claim was pushed to the final end for a judicial determination.

    If the judicial remedies have not been under exhausted argument — (Inaudible) nor will that listens to a claim from any other foreign — from any foreign country unless the judicial remedy have been exhausted.

    Now, I think we have invoked here a very simple matter.We have a dollar bill which is worth a dollar only because of the integrity of the United States.

    It is no difficulty as an IOU then a script which these guerillas gave the Filipinos who supplied them.

    It was a promise that the United States would pay like authorized officers.

    The United States has not paid and I think the integrity of the United States is a fully involved as though they refused to furnish a dollar worth of silver for this certificate.

    The second question — I should spend a very little time on, the respondent has taken and suggested that counsel for petitioner has acted with impropriety in presenting the first argument.

    The first argument is that the claim accrued June 21, 1948, that that question was not argued or presented in the — in Maritima case and that I had no right to present it here.

    Now, if that is true, I apologize to the Court and hope that you will ignore the argument.

    I don’t conceive that and I will state very simply why.

    I believe that before you can determine when the statute is running, you must determine when it began to run when the claim accrued.

    That is why I put that in because I thought this kind of a claim is not the ordinary kind of a claim.

    When guerilla requisition claim promised to pay at a very indefinite date in the future on MacArthur’s return, I thought that the old rule applied by the Court of Claims, you must first present your claim to the Army and have it denied before you can sue in the Court of Claims.

    Now, if I am right, then I — I have not raised an issue that is in property range.

    The question is so simple and fully covered that I will not argue, submit it and I hope that I am right, but if I am not, I apologize to the Court for my misjudgment.

    Earl Warren:

    Mr Foley.

    Mr. Fisher.

    George W. Foley:

    Oh, Your Honor, I’m — I’m Mr. Foley.

    Earl Warren:

    Mr. Foley appearing —

    George W. Foley:

    (Voice Overlap) also on behalf of petitioner to argue as Mr. Savoy pointed out the question of the statute of limitations which this Court has permitted us to brief and argue after the decision of the Court of Claims in the Maritima case about a month ago, just before this case was due to be argued then.

    The statute of limitations that’s involved in the Court of Claims is relatively simple.

    We set it out on — on page 2 of our brief.

    George W. Foley:

    In a fact, it’s in two parts.

    It says, first of all, a limiting provision and it says that every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after the claim first accrues.

    Hugo L. Black:

    What part is that printed?

    George W. Foley:

    That’s printed at page 2 Mr. Justice Black on our brief on the statute of limitations part two.

    It’s also printed in the Government’s —

    Hugo L. Black:

    (Voice Overlap)

    George W. Foley:

    Not that one, it’s the white one Your Honor.

    It says brief for petitioner part two, statute of limitations.

    Now, as you will see the first clause which I have just paraphrased is the limiting clause of the statute, and there follows a second clause which is the savings clause or the clause that adds a period of grace to the statute.

    That clause says that a petition on the claim of a person under a legal disability or beyond the seize, at the time the claim accrues may be filed within three years after the disability seizes.

    Now, about four years ago in the Marcos case, Marcos against the United States.

    The Court of Claims by a four-to-one decision held that the limiting clause of this statute was suspended when the Japanese occupied the Philippine Islands and it remained suspended until the formal surrender of Japan on September 2, 1945.

    Therefore, under the Marcos decision, the Filipino claimants, in our position, whose causes of action arose during the war, have six years thereafter within which to commence a suit.

    Now, except for the accrual point which Mr. Savoy has mentioned, our facts are just the same as the Maritima case which came up just shortly.

    Our petition was filed more than three years, but less than six years after September 2nd, 1945, after the formal surrender of Japan.

    Now, in Maritima, by a three-to-two decision, the Court of Claims reversed their position that may have taken in the Marcos case.

    And they now hold that the limiting clause of the statute, the first clause that I mentioned, is suspended by war only as to citizens of belligerence, but is not suspended as to citizens and residence of the Philippine, even though the Philippines were completely occupied by the Japanese and under the domination and control of the Japanese.

    Now, the Court of Claims reached this anomalous result after reviewing this Court’s holding in several cases involving statutes of limitations in the Civil War.

    Those cases the Court of Claims felt were based on prohibitions of international law against trade and communication with citizens of belligerence.

    The Court of Claims didn’t feel that under international law, there was the same prohibition against trade and communication with citizens and residence of enemy occupied territory.

    And so they said Hanger against Abbott, the key case of this Court and the other cases following does not apply and the limiting section of this statute is not suspended.

    True, the Court of Claims said, people here in the United States were prohibited from dealing with people in the Philippines but that was only because of the trading with the Enemy Act and that’s a local statute and it doesn’t give rise to any rights under this Court’s decision in the Hanger against Abbott but merely puts them under a disability by infancy or incompetency and the Court said, they then come within the saving clause of the statute, the second clause of the statute and may have the protection of the three-year provision of that clause.

    Of course, the company, Maritima, and in our case here that observation of the Court of Claims about coming under the saving clause gives us very small conferences.

    These were filed more than three years after that date.

    Now, I’ve mentioned that in my opinion, the decision of the Court of Claims in Maritima — Maritima isn’t reached as an anomalous result.

    Now, I think it’d be clear from just two examples, under that decision of the Court of Claims in Maritima, a citizen of Japan who fought against us in the Philippine jungles and who had a claim against the United States has the benefit of the war time suspension of the limiting clause of the statute of limitations.

    And his suit filed within six years after the war ends prevails whereas our friend in the Philippines who he overran are out of court after three years.

    Now, one other illustration of where this decision of the Court of Claims reaches an unjust result.

    This decision also means that our friends in enemy occupied territory, if they had a cause of action which arose one day before the occupation started, lose their rights completely because it’s always been held if the occupation last more than six years.

    Because it’s always been held that a disability which arises after the cause of action accrues doesn’t stop the running of the statute and doesn’t come within this saving clause of the Court of Claims statute.

    George W. Foley:

    Now, a citizen of Japan in the same situation would have six years within which to bring his action unless of course anytime that had expired before the war.

    Now, this decision of the Court of Claims in the Maritima case is contrary to three Circuit Court decisions in World War II.

    It’s contrary to a decision on the Tenth Circuit, the Turturro case which we cite where the plaintiff was a citizen and a resident of France, and her cause of action arose before United States ended the war.

    Now, despite the fact that she was not a citizen of belligerence, the Tenth Circuit held that the limiting clause of the statute was suspended during the time France was occupied by the Germans and people here were forbidden from trading and communicating with her by virtue of the trading with the Enemy Act.

    The same thing in the district — in the Circuit Court for the District of Columbia, there, we had a citizen of the United States residing in Italy doing World War II.

    He made a motion to revive and extend the money judgment which he had gotten in the District of Columbia.

    This motion was denied because the District court of — the District of Columbia said that District of Columbia statute contain no exception in regard to a limitation, in regard to the limitation period.

    The Circuit Court held that it was suspended by implication during the period of trade and communication were prohibited, during the period of time that the Court was closed to this man.

    The name of that case Your Honor is Salvoni v. Pilson, I believe, S-A-L-V-O-N-I.

    And in the Second Circuit with a decision by Judge Frank and the two hands, we have the Osbourne case where we have an American citizen who was intern by the Japanese.He sued the United States under the Suit in Admiralty Act and under the Jones Act.

    And the Second Circuit held that although neither one of those statutes contain any provision regarding their suspension by war that despite that fact, they were suspended because our courts were close to this plaintiff.

    Hugo L. Black:

    I didn’t — I didn’t get that case.

    George W. Foley:

    That case, Your Honor, is the Osborne case, Osborne against the United States, O-S-B-O-U-R-N-E.

    Hugo L. Black:

    I misunderstood your first name.

    Did the Court of Claims deals with those three cases in Maritima?

    George W. Foley:

    In the Maritima case, Your Honor, the dissent did —

    That was majority.

    George W. Foley:

    The — the majority as I recall it didn’t speak of them.

    And I gather that the dissent position was that the majority view is irreconcilable with those?

    George W. Foley:

    That’s right Your Honor, that’s was exactly the dissent position.

    And as a matter of fact, the majority view is irreconcilable with the decisions of this Court, with the decisions of this Court starting back at the Civil War, Hanger against Abbott which was a northern plaintiff against the southern defendant.

    Brown against Hyatt which was case of a southern defendant against a northern plaintiff.

    And United States against Wiley which was case of the — United States against a — I believe it was a southern defendant.

    Now in each of those cases and in the other cases we cite following this Court in those cases, this Court have before statutes of limitations that contains no — no limiting clause in regard to war.

    And in each case, they held that that statute of limitation was suspended because of the Civil War.

    Now, true, they said it was suspended because of principles of international law closing our courts.

    But actually, this Court that the underlying fact was not that international law was involved, that wasn’t the thing that led this Court to its conclusion, but the fact that trade and communication were forbidden and the courts were closed.

    Now this Court said, I am just paraphrasing some of those decisions, those decisions, they said that, statutes of limitations are enacted with the underlying presumption that the courts are open and that if they are open, a plaintiff with the a good cause of action is not going to unduly delay bringing his suite.

    Now they say, this Court has said, where a superior power closes the courts to him, he is deprived a proportion of time which the legislature contemplated that he should have.

    And therefore, they say the statute is suspended.

    George W. Foley:

    Now, the same reasoning is applicable as far as I can see, whether the courts are closed by international law or by local law to this particular plaintiff such as the trading with the Enemy Act.

    In fact I would say, the trading with the Enemy Act is — is merely a declaration of what the international law would hold under these circumstances.

    I would certainly say that that international law would say that it’s inconsistent with the state of war for residence of enemy occupied territory to communicate with other belligerence, even though they were friendly to them.

    It means there is the same danger of communication of information of political and military value, there is the same effective commercial transaction on the resources of the other enemy, as there is one citizen of belligerence are involved, I can’t see any distinction between a talk.

    Now, the Government apparently recognizes the illogic of the Court of Claims position because they don’t go on the same ground in their brief as the Court of Claims do.

    They don’t try to support the Court of Claims holding, they take a much broader position.

    And they say that the statutes of — the statute of limitation here involved is a consent statute, that’s the magic word that runs through their brief, a consent statute.

    And it must be strictly construed and that unless in a consent statute, the exception for war is specified, you cannot read one in or imply one.

    Now, there is no reason to construe a consent statute differently from an ordinary statute of limitations or a statute of limitations that create and limits new rights.

    This Court has always read the limitation in, in cases where — in the cases where the trade and communication was forbidden and those — when those — when that fact situation came for — came before this Court has read this — limits this suspension into the statute and into the limiting clause of the statute.

    And some of the cases of state statute was involved in Brown against Hyatt and Hanger against Abbott in the U.S. against Wiley the United States statute was involved when passed by Congress.

    Now, in the Osbourne case which is the second circuit case, Osbourne against the United States that I mentioned to Your Honors earlier, there, the second circuit had before a consent statute what the Government would call a consent statute.

    They had before the Suits in Admiralty Act and the Jones Act and they found no difficulty in holding that those Acts were suspended because of the prohibition against trade and communication with the plaintiff because that prohibition close the Court’s to the plaintiff.

    Now, the Government cites Kendall vs United States, the holding of this Court as in support of this argument that the particular statute before the court cannot be construed so as to import this suspension because of war.

    Now, Kendall against the United States we point out in our reply brief at length why it isn’t in point and why it doesn’t hold what the Government says it holds.

    That was a case where a rebel brought suite more than six years after the war had ended.

    He claimed that because of the loyalty provisions of the statute, which required him to swear that he hadn’t born arms against United States, he was forbidden from suing and then this disability was not removed until the presidential proclamation of 25 December 1868.

    Now, the answer to the case is that the war ended six years before and that even before the end of the war Kendall could have taken advantage of a presidential proclamation of amnesty in May, 1865 and brought his action in the Court within the time, within six years after the war.

    Earl Warren:

    We’ll recess now Mr. Foley.