(47 S.Ct.).

upon the power of sale. It stated that the war. The determination of the terms of sales other powers given were "in addition" to of enemy properties in the light of facts and those of a common-law trustee. And it au- conditions from time to time arising in the thorized the Custodian under the President progress of war was not the making of a to dispose of such properties by sale or other-law; it was the application of the general wise "in like manner as though he were the rule laid down by the act. When the plenary absolute owner thereof."

[4, 5] There is no support for a construction that would restrain the force of the broad language used. Congress was untrammeled and free to authorize the seizure, use or appropriation of such properties without any compensation to the owners. There is no constitutional prohibition against confiscation of enemy properties. Brown v. United States, 8 Cranch, 110, 122, 3 L. Ed. 504; Miller v. United States, 11 Wall. 268, 305, et seq., 20 L. Ed. 135; Kirk v. Lynd, 106 U. S. 315, 316, 1 S. Ct. 296, 27 L. Ed. 193; Stoehr v. Wallace, 255 U. S. 239, 245, 41 S. Ct. 293, 65 L. Ed. 604; White v. Mechanics Securities Corp., 269 U. S. 283, 300, 46 S. Ct. 116, 70 L. Ed. 275. And the act makes no provision for compensation. The former enemy owners have no claim against the patents or It the proceeds derived from the sales. makes no difference to them whether the consideration paid by the Foundation was adequate or inadequate. The provision that after the war enemy claims shall be settled as Congress shall direct conferred no rights upon such owners. Moreover the Treaty of Berlin prevents the enforcement of any claim by Germany or its nationals against the United States or its nationals on account of the seizures and sales in question.1

[6] While not denying the power to confiscate enemy properties, the United States

12

power of Congress and the general rule so established are regarded, it is manifest that a limitation upon the excepted class is not a delegation of legislative power. Field v. Clark, 143 U. S. 649, 692, 12 S. Ct. 495, 36 L. Ed. 294; Buttfield v. Stranahan, 192 U. S. 470, 496, 24 S. Ct. 349, 48 L. Ed. 525; Union Bridge Co. v. United States, 204 U. S. 364, 377, 27 S. Ct. 367, 51 L. Ed. 523; United States v. Grimaud, 220 U. S. 506, 516, 31 S. Ct. 480, 55 L. Ed. 563.

The language of the statute is too plain to be misunderstood. Except as affected by the proviso, the Custodian's dominion over the property and power to dispose of it-acting under the President as provided-were as unlimited as are the powers of an absolute owner, and the power of the President to de

*13

termine terms and conditions of sales or other disposition was not restricted. He was authorized, stating the reasons therefor in the public interest, to dispense with any or all requirements specified in the proviso and to substitute others for them. Cf. Levinson v. United States, 258 U. S. 198, 42 S. Ct. 275, 66 L. Ed. 563.

When the amended section

is read in comparison with the original enactment and regard is had to the chemical warfare and other conditions existing at the time of the amendment, March 28, 1918, the inevitable conclusion is that it empowered

the President to authorize, and the Custodian acting under him to consummate, the sales in question.

[7] The United States argues that the Executive Order of December 3, 1918 was void, and that the one of February 13, 1920 did not authorize or ratify the transactions.

Section 5 (a) of the act provides that: "The President may exercise any power or authority conferred by this act through such officer or officers as he shall direct." Comp. St. 8 31152c.

The language of the executive order is:

argues that as construed below *the provision in question is unconstitutional because it attempts to delegate legislative power to the executive. But the act gave the Custodian acting under the President, full power of disposition. No restriction was put upon dispositions other than by sales. And sales to the United States were not regulated. The general rule laid down was that all dispositions by sale or otherwise should be made in accordance with the determinations of the President; the proviso made an exception including a class of sales; and, upon the failure of the President otherwise to determine stating the reasons therefore in the public interest, it required that such sales should be made as there specified. It was not necessary for Congress to ascertain the facts of Obviously all the functions of his great or to deal with each case. The act went office cannot be exercised by the President in as far as was reasonably practicable under person. The contention that power to deterthe circumstances existing. It was peculiar-mine how enemy property should be sold ly within the province of the Commanderin-Chief to know the facts and to determine what disposition should be made of enemy properties in order effectively to carry on the

1 Part X, section IV, article 297, and annex paragraphs 1 and 3, Treaty of Versailles, adopted by article II(1), Treaty of Berlin, 42 Stat. 1939, 1943.

"I hereby vest in Frank L. Polk all power and authority conferred upon the President by the provisions of section 12.

*

could not be delegated to another is not sustained. This court has had occasion to consider a like question in Central Trust Co. v. Garvan, 254 U. S. 554, 567, 41 S. Ct. 214, 65 L. Ed. 403; Stoehr v. Wallace, 255 U. S. 244, 41 S. Ct. 293, 65 L. Ed. 604, supra, and Commercial Trust Co. v. Miller, 262 U. S. 51, 53,

43 S. Ct. 486, 67 L. Ed. 858. These decisions, United States v. Nix, 189 U. S. 199, 205, 23 sustain the delegation here involved.

[8-10] It is argued that the order was not made in conformity with the statute because to "vest" power in another is not to "act through" him, and because the order did not show that Mr. Polk was an officer. But, if two constructions are possible, and one of them would render the order useless and the other give it validity, the latter is to be adopted. Cf. Panama R. R. Co. v. Johnson,

*14

264 U. S. *375, 390, 44 S. Ct. 391, 68 L. Ed. 748; United States v. Coombs, 12 Pet. 72, 75-76, 9 L. Ed. 1004. The intention to exert the power conferred under section 5 is plain. Meticulous precision of language was not necessary. Russell Co. v. United States, 261 U. S. 514, 523, 43 S. Ct. 428, 67 L. Ed. 778. While the use of the word "vest" was not accurate, it must be deemed sufficient when the context and circumstances are considered. Mr. Polk was an officer through whom the President was authorized to act. He was counselor for the Department of State, appointed by the President and confirmed by the Senate. United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482. No particular form of designation was required. It would be unreasonable to read the order otherwise than as meaning that, in respect of the matters covered by section 12, the President determined to act through Frank L. Polk, counselor for the Department of State.

S. Ct. 495, 47 L. Ed. 775. Under that presumption, it will be taken that Mr. Polk acted upon knowledge of the material facts. The validity of the reasons stated in the orders, or the basis of fact on which they rest will not be reviewed by the court's. Dakota Cent. Tel. Co. v. South Dakota, 250 U. S. 163, 184, 39 S. Ct. 507, 63 L. Ed. 910, 4 A. L. R. 1623; Monongahela Bridge v. United States, 216 U. S. 177, 195, 30 S. Ct. 356, 54 L. Ed. 435; Martin v. Mott, 12 Wheat. 19, 30, 6 L. Ed. 537. Cf. Levinson v. United States, 258 U. S. 201, 42 S. Ct. 275, 66 L. Ed. 563,

supra.

[14] We agree with the lower courts that. the sales and transfers of the patents were ratified and confirmed by the President's order of February 13, 1920. It is urged that there was no ratification because it is not shown that the President had knowledge of the material facts; that he did not intend to ratify the sales of patents, and that the language used in the order is not broad enough to include the patents, trade-marks, and copyrights in question.

The Polk order of February 26, 1919, described the property covered as "all of the letters patent, trade-marks and rights under letters patent and trade-marks, including all profits and damages for the past infringement thereof which the Alien Property Custodian may seize or may have seized and which he from time to time

*

[11-13] And the validity of each of the orders made by Mr. Polk is attacked by the shall determine relate to the objects and purUnited States on the ground that it was too poses" of the Chemical Foundation. The broad and constituted an attempt to give President's order of confirmation recites that to the Custodian the very power granted to the Polk orders authorized the Custodian the President by the act; that is, the power to sell "certain choses in action and rights, to determine that enemy properties should interests and benefits heretofore determined be disposed of otherwise than as specified in to belong to, or to be held for, by, or on acthe proviso. But the contention cannot pre- count of, or for the benefit of persons herevail. Each of the orders sufficiently de- tofore determined to be enemies." The lanscribed the patents seized and authorized | guage last quoted was used to define the a private sale to the Foundation without advertisement. This was enough to indicate a determination to take these sales out of

the class covered by the proviso. And it is insisted that the orders were induced by misrepresentation and were made without knowledge of the material facts. But both courts found that the United States failed to establish any conspiracy, fraud or deception alleged. Findings of fact concurred in by two lower courts will not be disturbed, unless clearly erroneous. Washington Sec. Co. v. United States, 234 U. S. 76, 78, 34 S. Ct. 725, 58 L. Ed. 1220. Under this rule the findings must be accepted. The presumption of regularity supports the official acts of public officers, and, in the absence of clear evi

*15

dence to the *contrary, courts presume that they have properly discharged their official duties. Confiscation Cases, 20 Wall. 92, 108, 22 L. Ed. 320; United States v. Page, 137 U. S. 673, 679-680, 11 S. Ct. 219, 34 L. Ed. 828;

include "letters

same properties that were covered by the
Polk orders; that is, “choses in action and
16
rights," etc., were used to
The President's
patent, trade-marks," etc.
order also states that it was the intention of
the Polk orders to authorize the Custodian
to sell "all choses in action, rights, interests
and benefits under agreements and rights and
claims of every character and description
including rights to receive moneys by way of
royalties or otherwise as compensation for
the use of patents, trade-marks or trade-
names which the Alien Property Custodian
may
determined to relate to the objects and pur-
poses" of the Foundation. It recites that
doubt had arisen as to the authority of the
Custodian to sell and convey to the Founda-
tion "certain of the said choses in action,"
etc., "including rights to receive moneys by
way of royalties or otherwise." And the
President expressly authorized the Custodian

have seized

and

(47 S.Ct.)

*18

to sell at private sale without public or other control. Before the transfers were made, advertisement to the Foundation upon such Mr. Choate became the general counsel and terms and conditions as to the Custodian | Mr. Hoguet the patent attorney of the Founmight seem proper "all choses in action, dation. Mr. Bannard and the other voting rights, interests and benefits under agree- trustees were members of the Advisory Sales ments and rights and claims of every char- Committee-appointed by the President to acter and description which the Alien Prop- see that sales of enemy properties were fairerty Custodian may seize or may have seized" ly made to qualified buyers. Without further under the act. The President further authorized the Custodian by a suitable instrument to conform and ratify sales theretofore made by him of any property as to which his authority under the Polk orders might be deemed doubtful. And he stated that his reasons for the determination and order were given in the Polk orders and in addition specified other reasons which need not be

quoted.

reference to the facts relied on to sup*port its contention, we assume in favor of the United States that those who acted for it in the transactions complained of were at the same time directors and officers of the corporation; that the members of the Advisory Sales Committee, while they were voting trustees, participated in the fixing of the prices paid for the patents by the Foundation, and that such prices were much less than the value of the properties and would have been inadequate to constitute just compensation if the patents belonged to nonenemy owners and were taken for public use under the power of eminent domain.

This order authorizes sales of the patents to be made and ratifies and confirms those theretofore made by the Custodian. The President will be presumed to have known the material facts and to have acted in the light of them. His intention to ratify the [16, 17] Section 41 was enacted when there sales is plain. The comprehensive language used is broad enough to include the patents. was no war, and long before the Trading Moreover the statement that his reasons for with the Enemy Act. It lays down a general rule for the protection of the United the determination are given in the Polk orStates in transactions between it and cor17 ders shows the intention to cover the prop-porations and to prevent its action from beerties there referred to. As the transactions ing influenced by any one interested adin question were ratified, it is unnecessary to consider the objections made by the United States to the procedure of the Custodian under the Polk orders.

[15] The United States contends that the sales were void because made in violation of section 41 of the Criminal Code, 35 Stat. 1088, 1097 (Comp. St. § 10205), and the rule of law forbidding sales by a public officer or fiduciary of trust property in his custody to himself or to a corporation of which he is the head.

Section 41 provides: "No officer or agent of any corporation, and no person directly or indirectly interested in the pecuniary profits or contracts of such corporation, * shall be employed or shall act as an officer or agent of the United States for the transaction of business with such corporation,

*

versely to it. It is a penal statute and is not to be extended to cases not clearly within its terms or to those exceptional to its spirit and purpose. United States v. Noveck, 46 S. Ct. 476, 70 L. Ed. 904;1 Baender v. Barnett, 255 U. S. 224, 226, 41 S. Ct. 271, 65 L. Ed. 597; Hawaii v. Mankichi, 190 U. S. 197, 212, 23 S. Ct. 787, 47 L. Ed. 1016; United States v. Kirby, 7 Wall. 482, 486, 19 L. Ed. 278; Bishop on Statutory Crimes (3d Ed.) § 235. At the time of the enactment, there were no enemy properties to be dealt with; and, save the generality of the language used, there is nothing to indicate a legislative purpose to deal with that subject. The Trading with the Enemy Act is a war measure covering specifically, fully and exclusively the seizure and disposition of enemy propperties. The authority of the President to authorize sales and to determine terms and Violators are made punishable by fine and conditions in lieu of those specified in the imprisonment. The United States lays much proviso undoubtedly included the power to stress on these facts: Mr. Garvan, while cause the Chemical Foundation to be indirector of the Bureau of Investigation, corporated to purchase and hold the patents Joseph H. Choate, Jr., chief of the chemical as specified and to direct the selection of division of that bureau, and Ramsey Hoguet, the directors, officers and voting trustees. patent attorney for the Custodian, conferred The President, and under him the Custodian, with the representatives of the chemical in- acting for the United States, the seller of the dustries to arrange to make the seizures and patents, caused the Foundation to be created sales of the patents. Later, Mr. Garvan, to buy and hold them and caused it to be then Custodian, acted for the United States controlled by officers or representatives of in making the transfers to the Chemical the United States acting exclusively in its Foundation, of which he was the President. interest. Neither Mr. Garvan nor any of Mr. McKay and Mr. Corbett were directors the others who acted for the United States and officers appointed by the Custodian of various corporations of which he had taken

"

1 271 U. S. 201.

19

By another

[19] The general rule is that, in the absence of a statute directly authorizing it, courts will not give judgment against the United States for costs or expenses. United States v. Hooe, 3 Cranch, 73, 91, 92, 2 L. Ed. 370; Shewan & Sons v. United States, 267 U. S. 86, 45 S. Ct. 238, 69 L. Ed. 527; United States v. Davis, 54 F. 147, 152, et seq., 4 C. C. A. 251. But the Foundation insists that under equity rule 50, taken with the consent of counsel and the orders, the court was authorized to direct that these items be taxed as costs and to give judgment against the United States therefor.

had any financial interest in the Foundation, I taxed as a part of the costs. its profits or its contracts. All the corporate order, counsel consenting, the court directed shares were subscribed and paid for by that the expense of printing 100 copies of others those interested in the chemical the transcript, to be available for use in that industries. They furnished the money to court and on appeal, be advanced from time carry out the plan formulated by or under to time and borne in equal amounts by the the direction of Mr. Palmer while he was parties and form a part of the taxable costs. Custodian. Under the voting trust agree- The decree directs that the Chemical Foundament, shareholders were divested of all voice tion recover from the United States the monin the control, business or affairs of the cor- ey advanced by the Foundation on account poration. All shares are to be held by the of such fees and expenses, and orders the voting trustee for 17 years, within which all amount to be taxed as costs in the case. The patents will expire, And by charter provi- government insists that this is erroneous. sions dividends were limited to 6 per centum per annum. Transferable certificates of beneficial interest were issued by the trustees to the shareholders, but these cannot be used to control the corporation. The arrangement was intended to amount to a public trust for those whom the patents will benefit and for the promotion of American industries, and to give to them the right to have on equal and reasonable terms licenses to make, use and sell the inventions covered by the patents. The Foundation is properly to be considered an instrumentality created under the direction of the President to effect that disposition and subsequent control of the patents which he determined to be in the public interest. The transactions complained of did not involve any of the evils aimed at by section 41. The act will be construed and applied as not qualified or affected by that provision of the Criminal Code. Utah Power & Light Co. v. United States, 243 U. S. 389, 406, 37 S. Ct. 387, 61 L. Ed. 791; Kepner v. United States, 195 U. S. 100, 125, 24 S. Ct. 797, 49 L. Ed. 114, 1 Ann. Cas. 655; Townsend v. Little, 109 U. S. 504, 512, 3 S. Ct. 357, 27 L. Ed. 1012; In re Rouse, Hazard & Co., 91 F. 96, 100, 33 C. C. A. 356. And.

⭑20 as the power to dispose of the properties *by sales on the terms and conditions specified was included in the grant made by the statute, it follows that the rule in respect of sales of trust properties by fiduciaries does not apply.

[18] Before the commencement of the trial, the District Court found that it was necessary that the testimony be taken down in shorthand and transcribed, and appointed an official stenographer for that purpose; and it was ordered that his fees be ultimately

21

Equity rule 50 in general terms provides that stenographers' fees shall be fixed by the court and taxed as costs, but it does not specify costs or judgment for money against the United States, The rule does not mention the United States and does not affect the sovereign prerogative not to pay costs. Congress alone has power to waive or qualify that immunity. But no statute author*izes the giving of judgment against the United States for these items or authorizes the Attorney General or other counsel in the case to consent to such a judgment. No such authority is necessary for the proper conduct of litigation on behalf of the United States, and there is no ground for implying that authority. It follows that the direction for judgment against the United States for costs cannot be sustained. That part of the decree will be eliminated; and the decree, so modified, will be affirmed.

Decree modified, and affirmed, as modified.

Mr. Justice SUTHERLAND, and Mr. Justice STONE took no part in the consideration or decision of this case.

(47 S. Ct.)

Mr. S. P. Freeling, of Oklahoma City, Okl., the strip in dispute. (3) Texas on the other for the State of Oklahoma.

*Messrs. Thomas W. Gregory and R. H. boundary.

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