Smith v. American Asiatic Underwriters, Federal, Inc.

Following our decision (9 Cir., 127 F.2d 754 ), appellant and appellee filed petitions for rehearing, and the Secretary of Commerce filed a motion for leave to file an appearance in this court. A rehearing was granted and has been had, and the Secretary’s motion has been submitted. Appellant and appellee have consented to and joined in the motion, each expressing the view that, if the motion were granted, the controversy between appellee and the Secretary could be determined on this appeal. Recognizing as we do that such a determination should be had if possible, we now consider whether it is possible, or would be possible if the motion were granted.

In our former decision, we left the controversy between appellee and the Secretary undetermined because the Secretary was not a party to this suit or to the judgment therein or to this appeal. The Secretary does not claim to have been a party to this suit. Instead, he states in his motion that he waived joinder of himself as a party, thus emphasizing the fact that he was not a party and never sought to be made a party. It appears from the motion that the Secretary consented that the controversy between appellee and himself be…

(concurring).

I concur.

I desire to add a comment in regard to a theory that has been advanced but has not been specifically treated in the main opinion. It is argued that even conceding the correctness of the points covered in the main opinion that the Registrar, in herself praying for declaratory relief, in effect appeared in court as a litigant in her own right. That is to say, since she has the right to institute proceedings for the revocation of petitioner’s charter and a different opinion exists between her and petitioner as to whether or not certain facts are valid ground for revocation, she has the right under the declaratory relief statute to go into court and have that difference adjudicated prior to suing for revocation.

I think we need not affirm or deny this contention because the pleadings do not support the premise. It appears from the pleadings that petitioner has applied to the Secretary to be allowed to amend its certificate of incorporation, but that the Secretary has refused to give his consent to amending the certificate until the controversy between him and petitioner has been adjudicated. This suit is brought in order that this impasse shall be overcome.…

(dissenting).

A. The holding of the majority has decided a federal question in conflict with the decision of the Supreme Court in Morgan v. United States, 298 U.S. 468, 475 , 56 S.Ct. 906 , 80 L.Ed. 1288 . That case holds that when a function is created in a federal officer, there of adjudication in the Secretary of Agriculture, as here in the Registrar resident in China, of litigating in his own name an actual controversy with the corporation in the United States Court for China, the whole function must be exercised by the officer in whom it is vested.

Such conflict of decisions transcends any mere interpretation of the China Trade Act. It concerns the power of all federal officers to whom Congress has delegated the performance of specific functions.

The majority holds that, although the Congress has specifically created the Registrar the litigating agent of the government in China, first to determine that “he is satisfied” there is a justification for litigating, and then to sue the China Trade corporation to revoke its corporate license, the corporation has no “actual controversy” with the Registrar. To me it seems obvious that Congress makes the controversy between these…