Opposition Brief — Z. & F. Assets Realization Corp. v. Hull

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4 ya CLERK

| Supreme Churt nf the United States

so eee ‘ OCTOBER TERM, 190 °° */

Nos, 381 and 3820 -

J

Z. & F. Assets REALAZATION CORPORATION, a elaware

eorporation; . Amertcan-Haw arian ST MSHIP

-Co a sional Intervener, ba gta i

aa Si Petitioners,

ae “ _ s Ks ¥. ree ‘

_. CorpELL Huy, Secretary of State and Henry Mor-

GENTHAU, - Secretary of‘ the Treasury; Lenton

VALLEY RaILROAD CoMPANy, Intervener,

e : i esc seat

nn ae 7 are Bigs e. ‘ F | . ; cS

. INPeRi NER eepoNDENT ’S BRIEF IN: OPPOSI-. °

3 TION TO TH ANTING OF WRITS.

‘ OF CERTIORARI | . ey

_

os

a eats es J Wurm D. Mrrcwris,

Fy foe .. | Attorney for Respondent,

« Eebigh Valle, Railroad i Company

bs . 4 % - A ae

. Py 8 . ‘

. ad

ge . fs ‘ ef oe “fe ,¢

ie ‘ *

. . . ° ° ‘

INDEX.

PAGE

Opinions Below ...... wccveveccbsoseResecocees Ee

Statement of the Case ....... Phos cheusskuevauseey 2

Questions Presented :........... ietépasaweewenaue ea

Treaties and Statutes SSS Be BERD eye 8 )

The Knox-Porter Resolution (42 Stat. 105, 106).. 0 5

Treaty of Berlin (42 Stat: 1939)..........:... 6

; Executive Agreement of August 10, 1922 (42 Stat.

ES Ph ol Core ay es Sere ecaaveeune 6

Settlement of War Claims Act of 1928 (45 Stat.

| SS ere Re ey Tem Penta an mee oe 7

Debt Finding Agreement of June 93, 1930 (46

Stat, a00) veveveweneeen ca céhce cee coerce eeere es

The eee ee aoe otvereens sepeteeneces q-

. The Proceeditigs Before the Commission “from

fe Boer eee aiededaan’ eee

The 1939 Decisions and Awards of the Commis-

UN cise hehe bacseeuyenesceteu es Regeosecwes Y

Nationality of One of the Awardholders..... oa

‘Petitioners’ Attacks on the Awards Were Con-

sidered and Rejected by Boih the-State De-

partment and the Mixed Claims Commission. . ae

Reasons W hy the Writs Should Not Be Granted... 14

Argument, Nee Bye ees RS ESOS ivi ans cebae adh einen 16

Pomt I—The validity of the awards of.the Mixed

Claims Commission is not subject to judicial

ok onde seas bb teas eeeeens pene Kerb eee 16

Porst [1i—The awards were valid and the Mixed

Claims Commission acted within its powers... 21

1. The Commission had power to reopen the

cases after its prior. decision ‘ejecting the

eee eee ree ese tes saness yy, ae

Pein eateries ranean ae

7 fae Oa ES > 5 ’ “f

- rss

ii

PAGE

2. The withdrawgl of the German Commis- ~—

sioner did not deprive the Umpire and

' American Comnféssioner of power to dis-

pose of the Cases ..... peuie eee Pawies ee:

Petitioners’ Attacks ‘on Commission Pro-

cedure ..... eikiavseieok elas vue kue oasis ' ia

- 3. Ageney of Canadian Car &‘Foundry Com- -

‘ pany is an American national within the .. .

meaning of tlie Executive Agreement of

' August 10,, SEN ueeeitien lature a ae

Pornr I11—The Commission’ Ss decisions on these’

questions are binding on petitioners ........ 37

Comite 6c viviecdswens Se ae OES ra aD 39

Ps u \

- Cases Crrep: og ary

A. A. Arango v. Spain, No. 95 Spanish Commission of

1871, MSS Records, Départment of State...... 26

_ American Eagle Fire Ins. Co. v. New Jersey Ins. Co., —

.« DON, ¥. 398, 148.N. B.:5€ (1925)......5..4..° 2

Atchison, Topeka & Santa Fe Ry. Co. v. Brotherhood,

' 96 F. (2d) 418: (C. C. A. Tth, 1928): ..0..55..... 2

Betsey, The, 4 Moore Int’ bifee (193 1) 81, 85, 182,

SP! past aoe Ree eee Car iene ake hanueksae oe BO

Botiller v. Dominguez, 13017. S. 238, 247 (1889) ..2.. 16

Bouillotte’s Case, French Commission of 1880, 3

Moore, Int’! Arb., pp. 2650-52 and MSS Records,

Department eer er rr +, 25-26

Boynton v. Blaine, 139 U. S. 306 bi) ee ee 18

Burtlet. v. Smith, 94 Eng. Rep. 587 (King’s Bench, |

SUMO. Seevteisies aweetes Macirentees pavecees ees

C. H. Campbell, No. 94 Spanish Commission of 1871,

"MSS Records, Dep’t of State..........0...0.. 6 :

Cerruti Case, 5 Moore, Int’l Arb. p. 4699..... vaxves COD

iii

- ; | ; Les es _ PAGE

~ Charlton v. Kelly, 229 U.S. 447 (1913)... RE a 16 -

sion of 1871, 3 Moore, Int'l Arb., pp. 2187-88. and ©

MSS Records, tT ge Se erry aren 26

Coleman v. Miller, 307 U. S. 433 (1939) . sates seas 17

upped Republic of, v. Cauca Company, 190 - mm ¢

Se MED fy SG ap etlys an bp kd eces tecadcnnehene ‘| B4

Conicays v. Vasse, 1 Peters 193 (1828) SPE IE Pee « 19

- Dalling v. Matchett, 125 Eng. — 1138 (Common —

| ESRI eae ee ny DCpine ame Sunt aces a

Doerschuck v. Mellon and Z & F. “Ades Realization:

Corp., 55 F. (2d) 741 (App. D. C., 1931).. = ae

Flutie Cases, Ralston, Report of DES Arbi-

6: trations of 1903 (Wash. 1904), pp. 38, 41....... 37-8

_ Prelinghuysen v. Key,M10 U. S. 63 (1884). :.....6.. 18

Frevall v. Bache, 14 Peters 95 (1840)..........:... 19

Grand Rapids Ry. Co. v. Jaqua, 1 N. E. 73 (Ind., ;

q 1917) biden sdewaevekeed Lied Peer rere 27 -

~ Hargous' (U. 9) v. Mexico (1839), 2 Moore, Int'l =

SS APs reer ee ate eee PES SRE 38.

Houston v. Ormes, 252 U. 8. 469 (1920)...... POND:

| _dudson v. Corcoran, 17 How. Old GARG) oso civics 19

La Abra Silver Mining Co. v. U. S., 175 U. Ss. boas ee

(1899) Cadee SDE RREAS Ce aoe ene bee a we 18 —

_ Chicot County Drainage District v. Baxter State

Bank, 60 S. Ct. 317 (1940)..... led nats heebe nei 37

Claim of Manuel de Cala, 2 Moore, Int’! Arb., p. 1273 24

Claim of Benjamin Weil, 2 Moore, Int’l Arb., p. 1324. 25

Claim of Henry S. Schreck, 3 Moore, Int’l Ah PP.

" 2184, 2186 and MSS Records, Dep’t of State.. 25

Claim of Young, Smith & Co., 3 Moore, Int’! Arb., on.

'2184-87- and. MSS Records, Dep’t of State wWewd s 25

~ Claim of F. M. de Acosta y Foster, Spanish Commis- —

: Matter of Westbrook, 398 App: Div. 549 (N. Y. 1990), 19

Mellon v. Orinece Iron Co., 266 U. S. 121 (1924). * 19

iv

PAGE.

Orinoco Co, v. Dviaitien: Iron Co., 296 Fed. 965 (App.

D. C. 1924) wWatcues oa bbe 6EOR ERE 04 RAN ERO Ke ee Cs

Republic ‘of Colombia v. Cauca Company, 190 U.S.

524 (1993) PST TO Rs Ye Ter PEO Dy Pea a es

Rudloff (U.S.) v. Pciiecdlac Ralston Report of ii

zuelan Arbitrations of 1903 (Wash. ’ 1904), pp.

eM sin oa phen ks cach come hevuied eeetiae wk:

Rustomjee v. The Queen [1876- 77} 2. 5. D. @....

Standard Marine Insurance Co. v: Westchester Fire

‘ Insurance Co., 19 F. Supp. = (S. D. N.Y: 1937),

aff’d 93 F. (2d) 286 (C. ©. A. 2nd, 19387)....... :

State v. Tucker, 166 N. W. 820 (N. D. 1918)...+....

Stoll v. Gottlieb, 805 U. S..165 (1938)....... ee ie

- Terlinden v. Aude, 184 U. 8. 270 (1902)... aaa ‘ie

Toledo’ S, S. Co, v. Zenith nA Co., 184 Fed. 391

(C0: C.. A. 6th, Sears tik batdne coueuusies

Treinies VY. Sunshine. Mining Co., 808 U.S. 66 (1939).

U. S. v. Bayard, 127 U.S. 251 '(YBBB). cece eas eee

U. S. y. Diekelman; 92 U. 8. 520 (1875)..... 6.6066.

Ww are Y. Hylton, DU, TOS FIO O os iccxeesnasdece

George EL; Warren Corporation v. United States, 94

38

' 16

aT

16

37

F. (2d) 597 (C. C. A. 2d, 1938), cert. den. 304°

WD, B. BFS. nese cecrcvees ee eeceesereceesees

° Washington-Southern Navigation Co. v. Baltimore &

Philadelphia Steamboat Co., 263 U. S. 629 (1924)

West Rand Central Gold Mining Company, Ltd. v

Fhe King [1905] 2 K. B. 391....¢....... eit

Whatney vy. Robertson, 124 U.S. 190 (1888)....:...

—_ v. Heard, 140 U. ‘8S. 529 (1891),

TREATIES AND STaTUTES Crrep:

kantcuiak hekwcen U. S: and Goimand of August 10,

1922 (42 Stat. 2200)......4,6, 12, 14, 18, 30, 34, 3%, =

34

- PAGE

Debt. Fusding deren of: zune 23,°1930 (46. Stat. .

SOD). ccncccccccccccdsccectseeusessscvsesesors 7

Knox- Porter Resolution, J ial 2, 1921 (42 Stat. 105). 5, 30

Settlement. of War ee Act of\1928 (45 Stat.

: SOE av cpavcdeccaces® 2, 3, 7, 14, 18,20, 30, 31, 3d, 38, 39

Treaty of Berlin of 1921 (42 Stat. 1939) . Tohass oes 4, 6, 30

Text AUTHORITIES Crrep:

Malloy, Treaties, Claims Convention of 1868, Art. V.,

M6 ioe kd bedee are eer nwes caktene i 25

scar accaeee Adjudications, Modern Series, :

Wee i MRO Vic eaace IR EE Re ey Pa re ee o . 30:

Sturges, Commercial Arbitrations and Awards (19: 30) 27 3

ARTICLES CITED:

Crandall, Treaties, Their Making and Enforcement —

(Studies in History, Economies and Public Law,

. Columbia ‘Univergity, Vol. 21, No. 1,.1904)....... 17

Potter, The “Political” Question in International Law

in the Courts of the United States,:- VIII South-

~ western Folltey and ‘Social Science Quarterly

6) 8 By . ae ee saeees PR AL Le en ee 17

Miscruia SEOus CrraTIONs:

. American Commissioner, Mixed, Claims Conimission,

Report of, December 30, 1933..:............05:- 34

_ Evarts, Commenfs on American-Spanish Conimission, :

Convention February 1871,’3 Moore, Interna-

tional Arbitrations p. 2599 and MSS Notes of the

United States to the Spanish Legation........ 29, 38

Frelinghuysen, Moore,, VI Digest International Law,

Section 1055, pp. 1015, 1016........... PPO ae

' :

ES °

ae, Vl . é pe

4 & ;

PAGE

Greco-Tar sh Agreement of December 1, 1926, -Per- -

‘manent Court of International’ Justice Advisory

_ Opinion No. 16 (August. 18, i108), Public Ser. B.,

aes | ROS RANE ae Pt wee ee CS:

Searataty of the “‘Delaeuey, Heport. for 1930. Patt 2 a 7

Sendte, Finanvg;Committee, Hearings, 70th. Congress, |:

H. R. 7201, Jan. 23-26, 1928::............06-- 30-31

‘State Department, Opinion of the Holicitor for the om

Depiartmentof State, Alsop Award (1912), . 18

| Webster, Opinion with reference to thé United States.

—Mexican Claims Commission, 2 Moore, Sere.

“tional Arbitrations, PR. a) 1242... ,06. 2065. 38.

ps : 6 ‘ * we

. * «

. : 5 és °

a ee éx

Se , ; e

* eet

: : & -&

oe *

ww

‘Cc

ROAM Ss Saetal IETS Ba NL te LR eR tar OF FOES Lae LFS ae Mtn ae a rast.) tae rinse

: prares EOURSTNEAVUareeceecameermenes ee nna:

©

* Supreine Gonet of i Bnited States.

“OCTOBER TERM, 1940 Se i 9 GN: a

Mos. 381 and $8200” aN en

—' ; a yates ae fu

Y. & F. Assets REALIZATION CoRPORATION, a Delaware Cad oe

corporation ; AmMERICAN-Haw: AHAN SrraMsHIP

CORPORATION, Intervener, . : ee

% - Petitioners, .

| a Oe ag

CorDELL Hutt, Secretary of State and Henry Mor-

-* GENTHAU, Secretary. of the ‘Lreasury; Lenieft

VALLEY ‘RAILROAD Company, ‘Intervener,

* “Respondents . eS .

-_

Ca

INTERVENER-RESPONDENT’S BRIEF IN OPPOSI- =

TION TO THE GRANTING OF WRITS ~ eee

____OF CERTIORAR] | oe

Ae ; ; a . 7 ‘ (re rs - : > so *

| as zs : Opinions Below ne - pes ree ? 7 A

The opinion below of the United - States Court of

- Appeals for the Distriet of Columbia (R. 335) has —

‘not yet been reported: ‘That court unanimously — |

__ affirmed an order of the District Court, (R. ao)

dé. ~ granting the*motion of deféndants* Hull and Mor.

- genthau (here respondents). to dismiss .the conxplaint 7

- and. the \plaintiff-intervener’s bill of intervention,

and also granting the motion of the intervéner-

defendant Lehigh. Valley Railroad Company (here. .

also a respondent)- for summary judgment dismissing

- the complaint and the plaintiff-intervener’ s bill..of

# = intervention.* The opinion of the District Court’ _ ;

(R, 20h). is easliga in 31 F. Supp. 371. Go ek

* This brief is filed in opposition to the petitions in both Wo. ~

381 and No. 382. Both: petitions seek a review of the ‘same- deci-.

. ‘sion. Since the complaint and the plaintiff-intervener’s bill of

‘intervention sought identical relief, they are herein sometimes.

“referred to as *‘the edmplsint as

¢ ‘

3 pe Sot

ele aE es ee ee ra

Lm)

- Statement of the Case Bias

2. . : @

On Gitcbes 30, 1939, the ‘ifixed’ ‘Claims Selirstesians

United States‘ and Germany, granted. awards to the -

fires caused by German sabotage at the Black Tom

terminal in New York Harbor in J uly,- 1916, and at

United States on account of losses suffered by vari-

ous corporations and individuals, by explosions and |

the Kingsland, N.‘J., assembly plant.in January, 1917 |

' (R. 63, 107-08). The awards were filed with the Sec:

retary of State, who certified. them to. the’ Secretary

of the Treasury for payment to the claimants, pur-

suant to Section 2‘of the Settlement of War Cléims

Act of 1928 (45 Stat. 254) as amended {R.-110-11).*,

0

LF

+ The pertinent provisions of Section. 2 of” the Settlement of

War Claims Act of 1928 are as follows:

— “See. 2 (a) The Secretary of State shall, from ites t

. time, certify to the Seeretary of the Treasury the awards 0

‘the Mixed Ciaims Commission, United States and ‘Germany,

-established in* pursuance of the agreement of August 10,

1922, between the United States ‘and Germany (referred to .

in this Act as the ‘Mixed Claims Commissioh’ ).

‘*(b) The Secretary of the Treasii is authorized and

* directed to pay an amount equal to the. principal of. each

. award so certified, plus the interest thereon, in accordance

with the award, aceruing before January’ 1, 1928.

**(e) The Secretary of the Treasury, is authorized and

directed to pay annually (as nearly as may: be) simple inter-.

‘est, at the rate_of 5 per centum per annum, upon the amounts

_ payable under‘ eros (b) and remaining cad 9:

ginning January 1, 1928, until paid. © -

““(d) The payments authorized by? subsection (b) or (e)

shall be, mage, in accordance with such ‘regulations .as’ the

Seeretg the Treasury’ may prescribe, but only gut -of

the German special deposit account created. by section 4 - :

" within the limitations hereinafter prescribed,’ and- in ‘the’ “«

order of eae’ pro rided in subsection (¢) of pectinn,, 4. 4.’ re

. « Oe

rc fy . e ree |

-

He:

wv

awards would be made prior to 1953 (see Report of - Senate

<= Jmance Committee, No. 273, 70th Cong., on ssiecacersai of War —

a pane ee 5}.

a ee a SATAN Sane Dee ot ee No

: :

This action was brought’ by petitioner, Z. & F.. As-

sets Réealizatidn Corporation for a declaratory judg-

5 ment: that the.awards of the Commission were invalid —

~ and to enjoin the Secretary of the Treasury from -

'.., paying the awards. The complaint also sought (too

late) .to énjoin the Secretary of State from certifying

a ‘the awards. Petitioner American-Hawaiian Steam-

is ship Company intervened as a co-plaintiff. s

-¥ Lehigh Valley Railroad Company; one of’ the bene-,.

oF ficiaries of: the Mixed Claims Commission’s awards to

the United States. of October 30, 1939 .(hereinafter

sometimes called the ‘‘sabotage awards’’), intervenéd

oi its own account and on behalf of the 152 other. .

= - sabotage awardholders.

Petitioners hold. awards pean made by the

Bs ‘Mixed Claims Comijssion; ‘on: which payments in ex-: .

' “ess of the principriggput insufficient to cover both |

principal and interest¥have long since been received

(R. 111).° Not enough money is, left in the German |

- Special Deposit Account provided for in the Settle- .

~ ment of War Claims Act of 1928 to pay. interest in:

full oni all awards, unless’ Germany resynies: payments

+ on its bonds held by the: United State’ to secure pay-.

‘ment of all awards.* Petitioners clainr that any pay- —

Jhents, on the sabotage awards would wal ates the

| Aecount to their injury (R. 8). ;

* Both the’ Secretary. of State and the Seebetsiy of

‘the Treasury moved to ot the ground that the

court had no power to in into the validity of

awards made by an international tribunal set. -up by

, two sovereign Governments dealing. with contro- -

yersies between the two Governments (R. 294).

2 . * . : Pasay E

' - ® Congress*did not contemplate" that payment in full of the

; Beto fa ; oe ‘2

wa

Y

q os

4 :

~

Lehigh Valley Railroad, after filing its answer (R:.

33), moved. for summary’ judgment, dismissing the

‘complaint on the grounds raised by the: original de- .

fendants and also on the grownd that, on the uncon-

‘tested facts before. the court, » the awards were valid: :

@. 76).

ones - : . 5 rr a -

NN: ay : <6. —_—

ak

Questions Presented on

The issues s presented, as jihoudy dsectibed fh the:

petitions, are properly ; ‘divisible into two eategori ies:

a

“, As ‘both ‘courts below held, the coinplaint. pre-

sented. a ‘‘political” (dj sienatia) question properly

for the State “Department, which had acted,—a ques- -

tion not justiciable in the courts in that its deterrhin-

ation .would involve interference in the domain of

foreign affairs by a direct determination of rights,

liabilities and status of the United States and Ger-

. -"+-ynanyuhder the Executive Agreemeht. dated - August

10, 1922 between the two countries (42 Stat. 2200),

entered into pursuant’ to the Treaty. of Berlin dated |

August 25, 1921 (42 Stat. 1939).

=

SS

2. The questions which the courts ‘below. held to be -

' not “justiciable and, therefore, did not decide; al=-

though they were argued extensively before both —

courts, qgneerned the validity of the sabotage, awards

of ‘the “Mixed Claims Commission, United States and |

Germany, established pursuant to said : Executive ;

Agreement between the two: countries. Petitioner's’

attacks on the awards of that Commission were based -

ahead: all of which Germany ‘had’ pre--

on three

_. viously urged in diplomatic exchanges with the Secre-

we ere Nee

2 a . - ° My, e ; e

RA pe * gi

BESS tea *3 aoe ts

:4y. of State. and before" the Mixed Claims. Commis- a

ai @

“

bd

Commission rejected those contentions. _ They were:

and ned eeerees of a on 1 the part of Ger-

many ;

(b) that the wilful withdcawai of the Gevnan

sion powerless to render a decision on the <laims

ane Bian .

“ (e) that the Canadian: ownership of the shock

a behalf of that igi toa invali oe

the German Government, and of its nationals, which,

on or after April 6, 1917, had come into the possession

or under control of the United States, should. be re-

“tained “by the United: States .

ment. ** * shall have * *'* niade. ‘suitable’ pro-

vision for the. satisfaction of all: oS 6f

° .

% : *

a

9. OK

_

sion itself, Both the Secretary of State and. ‘the 4

( a) that the Mixed glee Commission could -

not set aside its earlier decision of 1930 on these |

claims, adverse to the United States, even though,

the earlier decision had beet induced by fraud .

member-of the Mixed Claims Cominission, after _

the submission of evidence and briefs and oral

argument and ‘during the deliberations of the

Commission-on the claims, had made the Com is- |

of one of. the awardholders, a New York.corpora- —

~ tion, “made the’ award to. the ited States on -

Treaties ‘and Statutes: Invélved ae 5 fe :

“The Knox Poates Resolution (42. Stat. 105, 106),

- approved July 2, 1921, provided that all property of

ae “until such time as the Imperial’ Fee Govern-

all persons, ‘wheresoéver domiciled, who-owe per-°

manent allegiance.to the United States of America __.

and who have suffered, through the acts of the .

Imperial German ‘Government, or its agents * **

N { = o 2

‘ Gok hehaRcpiaaty aborts Wat at ap On eae o

tea ieeinenlen names enectiameestiterem pps ets cv scarce so Sas mn

Be ae oh Ra nal gh 87

si eae 34 ti onconphaca att ani roe

Reake Wax 2E5 oc Tage

5

Te ee

Se

if

f =

$e :

38

ie

52S ap Se RE a

‘

&

x a, Beepe

. since i uly: 31, 1914, loss, itaves or injury to

omer alae or vroperty Te 79).

That Resolution’ was. incorporated in the Treaty

‘af Berlin of August 25, 1921 (42 Stat. 1939). gSub-

sequently, -an Executive Agre reerrent betw een the

‘United States and Gérmany was signed at Berlin on

August 10, 1922 (42 Stat.: 2200) providing - for the

- thé amount. to be paid by Germany tothe United

States in satisfaction of Germany’s financial obliga-

“tions under the Treaty to the United States on behalf

of her nationals and on her own, behalf: (R.. 15-18).

- cregtion of: a Mixed: Claims Commission to: determine |

The Cémmission was to consist of ‘three members, one 2:

commissioner to be appointed by’ each Government

and an umpire to be'selected by agreement of the.two

Governnents- ¢ Art. sete ca was Heoyied that the x

“Umpire. should : |

ae

‘‘decide upon" any cases concerning whieh the ©

-eotnmissionérs may disagree, or upon any points —

“of difference that may arisé in the: ‘course of their -

“proceedings” (Art, »). ee See ter

- and that.

- “The decisions of the commission. aor tliose of

the umpire (in case there may be any, shall be.

aceepted as final and binding | aint a two Gov-; :

\ e ernments”’. (Art. VI).

o e

81-2). All claims presented. to the Commission’ Gis

made by the’ United States on its own behalf or.on .

behalf of its, nationals, and the. conduct: and. conttol -

’ of tthe prosecution of ‘such claims rested solely beige

3 ‘The parties before the. Cain inatoas were + e two -

- Governments, United States and: Germany .(R.

4

—

_- The. Settlément of War or Act! of. 1988 C 45 a

_ Stat. 254)

(a) “ereated in: the United States ‘Treasury e 4

‘German Special Deposit Account, composed in.

part, of all stumg,invested or transferred by the

-with the Enemy Act, and of all money’ rgeeived —

by the Untited States in respect of claims against:

_ Germany on account of the awards of the Mixed:

. ‘Claims Commission;‘aid - : SN

?

Mixed Claims Commission by the Secretary of

State and directed the Secretary: of. the Tréasury

to make payment on awards so -eertified.* ee

Germany agreed to replenish the Special Deposit

_ the Treasury of the United States in a-total principal

amount ‘of about $505,000; 000. (at par of exchange)

with maturities spaced over a period of 52 -years

(Debt Funding Agreenient?’ ofsJ une 23, 1930, 46 Stat.

_ 500, Report: of Secretary of Treasury 1930, pp. 341,

" 847, 364, 357). “Germany Has been in default on ma-

-turities of these bonds for a period. of over fixe years

a

ve

.

a

‘The ie: | . 3 9

s. The facts are ‘pet forth in. detail in the affidavit of —

Harold H. Martin, the .répresentative of the United. -

_, States Government before: the Commission (R. 77-

112). ‘Petitioners’ statements of them make it neces- «

sary to outline briefly the backgroand of the case.

* The tolerant language of the ious with. “respect to cer-

, tifieation and — is — spre, p. 2.

Alien. Property. Custodian. under the. Trading © *

(b) provided for certification of awards of the .

-hiecumt by: payments, on bonds whfeh it deposited’ in =. :

ve ~ ' The Proveedinge-tieteri the Commission From 1936 to 1939

‘Ina. decision Rendered. on October 16, 1930, the Com- 4

mission found that, althongh Germany, h a4 arithorized, °

sabotage in this country, the United : Siates had not .

proved Germany’s responsibility. for the destructions -

at Black Tom terminal and° Kirfgsland. (R. 261-264).

_ Immediately after the formal announcement: of that.

' decision;. the Agent of ‘the. United States :sought-a —

_ rehearing of the cases (R. 85) and practiéally® con-_

‘tinuously from that time’ to.the final decisién on Octo-

* ber 30, 1939, the sabotage cases w ere in active oe ae

tion before the’ Commission.

After intermediate petitions for vchensing based | :

_on other grounds ‘had been denied (R.’85-8), a-peti-

’. - tion was filed on May 4, 1933, to reopen the’ cases on

stare ge the ground that the decision of 1930 and a subseqtient’

1% decision of 1932 had been obtained by fraud (R. 115- .

oo , 121). Conflicting opinions as to the right of the Com-

: _ ‘mission to reopen ‘were expressed by the two national

: Commissioners (R. 121-134). . The German ‘Ani-

. bassador informed the State Department -that his

- Government ‘took the position that..the Commission

is had no: power even to consider the question of reoper

° oo ing (R. 123-124), The State Department 4o% he 3

Ep acee ~ «position that the question was one for the Co lon

‘to decide, and should be referred to the Umpire (R.

123), which was done. Under date of D ber’ 15, .

1933, in, a decision rendered by the Honore Owen -

ar $ Roberts as: Umpire, the Commisgion held that it

had power to reopen the cases and ‘either confirm.

_ the decisions heretofore made or alter them as justice

and right may demand” (R. 45-59). In 1934 the two.

‘Governments greed, by formal exchange of notes,

. thatthe sabotage claims were still periding before the °

° f

i filed by. both Governments and, extended argument .

ee its deliberations, during the course of. which the Um-

. Germany (K. 60). The Commission then ‘proceeded,

itis weememenseeeneed

Sg ae eet ee

Gommission - (R. 1135-31). Additional evidence was:

‘was had before the Commission. Ther upon, on

June 3, 1936,)/the Commission unanimously (the Ger-

“man Commissioner participating) set aside its earlier

decision. of December 3,°1932,.also rendered by Mr.

Justice Roberts as Umpire, dismissing an .eartier.

eras for rehearing (R. 138-140).

Pee seers

. The 1939 Decisions and Awards of the Comemiteatats

. ao

4

After an interval of a year ‘pesulting from a request

‘for adjournment: on the part of Germany,* more

witness. were examined and ;additional evidence -.

was’ filed by ‘the Agents of! both Governments |

_ (Rv 95-8, 158). In January, 1939, thé eases* were

again argued at length before the full Commission. peas

CR. 96). In his briéf and again fat the close of the

': hearings in January, 1939, the erican’ Agent: rée-

+ xfinested not only that the cases be reopened but that

‘ the Commission render a final décision on ‘the merits

(R.. 96-8), The. Commission thereupon entered. upon

~ pire and the’ American Commissioner: each expressed

.the view that the’ decision of October .16, 1930, had

- been induced' by fraud inthe evidence presented by

at the specific request of the German Commissioner,

_ to determine whether, in the record as it. then stood,

. there was sufficient proof of. Germany S responsibility a

* The ‘ingerval was consumed in settlement negotiations re- _.

quested by Germany -(R. 141-42) resulting in an agreement

of settlement at Munich eovering the sabotage eases. _The Ger.

‘man Agent, however, declined to effectuate’ that agreement =

"the Commission (R. 96).

ee 149-50). In the course of that-investigation, the Ger- -

. man Commissioner, finding that the Umpire held:

* Personal ngtice was given, . the -Gernian kok

’°- of a. meeting of the Commission: to be-,held on

' - the Umpire announced h is decision setting aside the

~ United States (R. 105- -06). That motion was granted ©

_ to justify setting aki the: 1930 decision (R: 60, 103,

"views contrary. to ‘his off the questions of fraud and of,

_ Germany’s responsibility for the explosions, retired

asa member of ‘the Commission in an attempt to. -

avoid a decision adverse to Germatiy, ‘and thus frus:° |

_ trate the work: of the Commission’ A CR. 445- 52, 159,”

TT Seay BeOeta ES ee gare

and prior to said: meeting, Germany stated through an-,

nouricements mate both by its Agent and by its’ diplo-

- mnatie oo that x would ignore the meeting

At the June 15, 1939, meeting éf the Cecilia

June 15, aan 99). In response io flit notice,

decision of October 16, 1930, reopening the cagds, and “

finding, on the record as it then stood, that the lia-

bility. of Germany for both explosions had been estab- -

‘lished (R. 59-62). -The . Ainerican Agent thereupon

“moved- again for the,entry of awards in favo¥ of the

and the order entered thereon provided that the

awards would be considered at a further meeting to~

be held on notice (R: 106). No request wa® or has

n made by Germany to introduce any. additional

dende: 8. 4

. Pursuant to the order of June 15, 1939, the Com- .

_ inission met on October. 30, 1939, again after personal

, notice to the German’ Agent. (R. -179-80) and after a

thorough study of the records ‘and proof on file, re-

lating to damages. (R. 107).. At that October meet: .

ing, awards boot favor: of the United Siates in each of -

ae

. » the 153 sehebiigs shan growing out of | the two ex-

“plosions were granted by the Commission (id.).

‘At that same October meeting the Commission also

= disposed of the only other case pending before .it by

_ dismissing ‘the claim: With -the disposal of ‘that’

ease and the granting of the sabotage awards, all the

eases’ which the two Governments, by the exchange of

notes‘ dated’ May 7, 1934; had agreed -were the only

re cases pending before the Commission (Re 135- 137 »»

“ “were determined. (R. 2). 5

Nationality ‘Of One of the Avearthelaeys

>

“One of the conedl entered on October 30, 1939,.was

in favor of the United. States on bebalf of Agency of

Canadian Car & Foundry Company, Ltd., a New York

> corporation, whose offices, Iftisiness and property. ¢ Were —

- ~ Joeated in the. United States: The claim on behalf of

* this corporation was based upon ‘the destruction by ~

‘* German sabotage agents of its plant at Kingsland, .-

.New Jersey. All of the stock of the New York ecor- -

~ poration, as had been disclosed to the Department of

Staéé, to the /Commission-and to Germany many years

' “prior to the entry. of the award, was owned by a

Canadien korporation. part of whose stock Was owned

by American natipnals and part by nationals of other.

' vountries (R: 185-86). In 1936 the.German Agent .

. moved to dismiss the. claim on the theory that the

nN éw York corporation was not an American national

Within the meaning Of Executive Agreement of:

August 10, 1922 (R Gah ris to-the retirement of

the German’ Commissioner, th the German Agent

- and the American Agent had’ submittd briefs di-.

- rected to this motion (R. 183). The Umpire in his

Bectsion of ener 30; 1939, held that Agency of -

. . -, 7)

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-Cariadian Car & Foundry: Company, Ltd. was an:

American national within the meaning of the Exeéu-

_ tive Agreement of August 10, 1922, and’ denied- the” ,

~motion of the German Agent (R. iter

Petitioners Attacks on ‘or Awards Were Gaiidinn? and.

Relocten by Both the State Department and the on ae

Mixed Claims Commission. Eva

(a) Germany had contended (and- sctitibncrs take

the same position) that even if the Commission’s’1930

decision in the sabotage cases chad been obtained by

fraud and suppresston, there was nothing that the

Commission ‘or Umpire could do about it. ‘The ‘posi--

tion taken by the Secretary of State on this conten-

tion, stated in his: communication of October 19, 1933,-

was that the Commission had the .power to deter-

mine ‘its,own jurisdiction in this respect.* |The de-

_. eision of the Commission r@jecting the German. con-

tention was rendered. by the Umpire on. December 15,

vir mae nas DPE:

. , (ob) When the German Commissioner, aware. that

the- other two -members intended. to sustain the .

charges of fraud and to reopen the ease and that they

&.

* ‘Tt is the view. “of ‘the- Depertaat that the question

whether the Commission has ‘jurisdiction to entertain peti-

ao tions for rehearing is ore properly to, be decided by the

Commission ‘itself. It is understood that the American

and German Commissioners’ hold divergent views on this.

question and ‘that in a normal course: of pgocedure,’ under ° .

the claims agreenient and the rules of sndhedutna adopted

by the Commission, the matter would be submitted’ ‘to the

-Umpire for decision.

“It is desired that you promptly bring this communica-

tion and its enclosure to the attention of the _American.

* Commissioner or the full Commission, as in your judgment '

may. seem proper, for the purpose.of obtaining the decision ~.

of the Umpire en this disputed point’’ (R. 89-90).

Bae,

"were convinced that Germany. was responsible for the

- explosions, retired for the purpose of: preventing such.:

- decision, the. German Government “claimed that no. :

_ decision could be‘ rendered without him, Prior to

, the €ommission’s decision of October 30, 1939, and

to the Secretary of State’ s certification of the awards.

on October 31, .1 the. Commission and the’

Seeretary hag been repeat apprised of this posi-

tion by. the German Embassy (R. 153-54, 291-94, 195- - -

216) and by ‘one of: petitioners (R. 307-11). Both

the Umpire and the Secretary State rejected such

- -eontentions. The Secretary of State in his letter of

October. 18,. tas to ee German Charge | d’ Affaires —

Said: j

ay ave entiré confidence in the ability and in-

_ tegrity of the Umpire-and‘thé Commissioner ap-

pointed by‘the Gnited States despite. your severe

. and, I believe, entirely unwitranted criticisms, . -

and I am. censtrained to invite your attention to

-- the fact that the remarkable action of the Com-.

_ missioner appointed by Germany was apparently . _

designed to frustrate or postpone indefinitely the:

work of the Commission ata time when, after

. year's of Jabor on the particular cases involved,

it was expected that its’ functions ‘would be

i brought to a conclusion’’ (R. 217 : :

(c) The litigation before the Commission and its

decision on ‘the question of the nationality of Agency —

_ of Canadian Car & Foundry: Company have been .

“described (supra, page 11). The State- Department

fad the facts before it when it originally espoused

the claim (R. .185-86) and Germany and one of peti- © :

_tioners. raised the question before the Department

again in 1939 prior to the Secretary of State’s certi-

, fication OF the awards (R. 207-08, 314- 15).

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Thus, ‘all questions which” ‘petitioners seek fo have.

— the’ domestie courts teview

(i) involve interpretation of the Executive

Agreement. of August 10, 1922, ‘between the

United States and Germany in order to decide ,

__‘g the powers therein granted to the Mixed Claims

Commission which that Agreement established tw.

7 determine ‘questions in dispute between the two

Cae sovereign Governments; © ee a

many, which had agreed that the Commission’s de-

cisions should be ‘‘final.and binding’’; and” —

(iii). have been ‘dealt with by the Secretary of

| State, with ‘full knowledge. of the alleged defects

in the Commission’s decisons, in conducting the’

: relations of this country with Germany.

: Finally, the ‘Secretary of State has acvepted. the

awards of the Commission and, by certifying them to

the Secretary of the Treasury for payment, ‘has com- -

pleted the final act required ofthim under: the Settle-

ment of War Claims Act of 1928. *

. Reasine Why the Writs Should Not Be Granted

sh

- Fhe petitions present neither any conflict of author- :

ity. nor any” “doubtful or important question of gen-

‘eral law. de eigid further decision #f this: Court. ..

= (1) The District Court and the Court. of yen ae

-decided that no justiciable -qyestion ° ‘was presented

by the petitioners. These decisions are in. accord

_ With an unbroken" line of decisions of this Court from.

icons days, followed by the lowef Federal and. :

— Gi) have. been determined by said Scenic

in litigation between the United States and Ger- -

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‘State courts and approved. hy the text writers. No*_

authority for judicial interference with the executiva

department’S conduct of foreign relations (the neces- ‘

sary result of granting the pam) has been cited

“by petitioners. fz charane aioe ae

ee ila Re :

(2) If determination of: the question were within ge

a the- bounds -of proper. jidicial ‘action and this Court | :

were to consider the validity of the sabotage awards, Cones

it would find the précedents overwhelmingly in sup- 2 >

rt of their va ity as against all three grounds

eu \petitioners seek to. raise. “”? | : aren

- (3) All the challenges to the validity of the sabotaife

awards were -placed before the Mixed Claims Com- _ . .&

, Mission‘end the State Department by Germany and —. >

by. one-.of petitioners. Fhe petitionérs ¢laim* only | re

-—~through the United States,:a to the litigation . x

before the. Commission, and the decisions of the Mixed .. i

Claims Commission, accepted by the State Depart> : Le

pent, may not. ‘be collaterally attacked by petitioners. zi as

(e5) Petitioners’ attempts to ‘obtain judicial inter-

‘ference with the Executive Department should not.

be encoubaged by further judicial review. The sabo-

_ tage claims have ‘been in litigation for sixteen years

and only further delay at the experise. of the sabotage

‘ awardholders would result-from granting’ the writs.

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‘Argument eet oe

‘ie 33 INT ONE

The validity SF ie awards, of the Mixed Ciaime e

’ Commission is not subject to ‘judicial review.

Oitr pouits have “consistently refrained_teom to

: quiry jitito the question gpa ‘= ‘treaty has. been’

' violated by the legislative ore

ecutive: branch of the.

Government to the’ damage of. an individual,“where

such inquiry would trespass on the conduct of this ~—

country’ s foreign relations: See Ware v. H ylton,

3 Dall. 199, 260 (1796); Whitney y v. Robertson, 124 >

“U. 8: 190, 193-195:;(1888) ; Botiller v. Dominguez,

: 130 U.S. 238, 247°(1889); George E. Warren. Cor-

_ poration v. United States, 94 F. (2d) 597 (C. C. A.

2d, 1938), cert. den: 304 U. S. 572; and ef. Rustomjee

v. The Queen [1876-77] 2 Q. B. D. 69, 74.

Certain types ‘of treaties, such, for example, as ex-

tradition treaties, ‘directly affect’ or. create rights of:

individuals, and, when they become domestic law under

the Gonstitution, may be interpreted by the courts, at

the suit of individuals, so long as there is no interfer-

ence with the conduct of foreign relatio ous. But this

type. It is

agreement for arbitration is not ‘of that

an international compact to provide: awards to the.

United States. for violation of its neutrality. Only

the Governments are parties before the Commission.

Every claimant derives what rights he has from and

~ under the United States.

Even in extradition cases, courts abate an ofhsider

questions of foreign relations within the State Depart- og

’ . ment’s' domain. Terlinden v. Ames, 184° U. S. 270.

~~ (1902) ; and Charlton v. Kelly, 229 U. Ss. 447 Saat

bf

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2°

on the fact that in. this case “net enly did the Mixed

| ‘powers, but our State Department, in diplomatic. €ON-—-

troversy. with the German Government, has taken a — . os

position on them contrary y to, that which petitioners . “

. 12 to 14). Finally, the- State Department, with all

a petitioners seek to raise, certified the awards to the

460 (1939); West Rand Central Gold Mining Compan ny, Ltd.

king :

- and Enforcement (Studies in ’ History, Economies and Public

Potter; The ‘‘Political’’ Question in International. "Bm in the

“Courts of the United States, VIII Southwestern Political and —

. Social Science ey 127, nr : | &

On

The « opinion of the Court of Appeals for the Dis-.

trict. of Columbia in the instant case is so.complete- . ie

' and its citation of authorities exhaustive . that it - a

leaves little" more to be said’on this point. We. —

have found no ease, and ‘the petitioners cite none, ~

in whieh any—court has even suggested that“it had

power, in the absence of specific legislation, to pass

“upon the: walidity.of an award ofan. international

_ tribunal adjudicating disputes between: nations. i |

Mr. Justice Miller reviews the numerous cases in -

‘this Court holding that the judicial branch will not - . ©@

interfere in political controversies and that questions

|

=

arising between. nations in the conduet of foreign rela- : :

tions ‘are political ‘‘questions’? with Which the courts oe

of both this country and‘ England have. refused to - a.

deal from early times (R. 341-51).* > ° 6)

Likewise, tbe opinion below properly -lays emphasis -

Claims Commission pass on the fuestions ‘as to its

ask this Court judicially té declare (see supra, pages

the objections to, the same awards ‘before it which

Secretary: of tlie sveanary for payment. sha ; Sine :

=

* See also Coleman v. Miller, 307 U. S, 433, at 454-455,! 451, .

v. The King {¥905] 2.K. B. 391; Crandall, Treaties, Their :

Law, ‘Columbia’ University, Vol. 21,“No. 1, 1904) p. 221; and

-@

e

Rom ges. ee

‘The provision of the’ Settlement of War Claigs ee

an of “1928 that awards. ‘shall be paid only -when* cer- >.

tified to the Treasury by thel Secretary of State is a

.- Jegislative recognition“of the fact that the acceptaneé

_ or rejection by the United States of awards is a ques-

“tion for tlé executive braych éntrusted ‘to- fhe Depart-

ment of State. ‘The Secretary of State had full power

"and: authority to reject *the awards if'they had-been _.

* invalid. Frelinghuysen v. Key, T19 U. S. 63 (1884); ~

Boynton v. Blaine, 139 U. 8.,306 (1891) ; and Le gents

Siluer Mining Co. ¥. U,~ S., Ww U, 8, 423 (1899). -

"The Executive Agreement of ‘August 10, 1922, was: *

an international compact to provide the machinery: :

for detérmining claims of the United States: respect-

ing certain acts, committed hy the. German Govern-

?

similar tribunal:

‘ nlent. As a Secretary of State Frelinghuysen :

#

' Co., 19 F..Supp. 334, at p38 (S. D. N. Y.51937),

with referené

| adjudging private rigfts but an internatiena

tribunal adjudging . tional rights” (Moore;

Va Digest Trt. Law, $1055, PP. 1015-6). Meee]

“The ‘Commission i a: suateted “tribunal |

&

Seo gino: (with specifie cakapasine to the ‘Mixed’ Claims Be

_ Commission, United States and Germany) Standard es

. Marine Insurance Uo. Vv. Westchester Fire I nsurance :

-aff’d 93 F. (2d) 286-(C. CA. 2nd, 1937); ef. U.S.

eS Bayard, 127 U. 8. 251, 259 (1888) ; Di, S. v. Die- -

_kelman, 92 U. 8. 520, 524 (1875); Distribution of

Alsop Award by the Secretary of State, Opinion. of.

_ the Solicitor for the: Department of State, J..Reuben

Clark, Jr, Aug. 14, 1912. (Washi, Govt. Printing. -

| Ofie, 1912) p. 14, ‘ oe

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States has established a

“tion involving the executive department’s action: ay

Ls

Petitioniirs, as: a ther did telow: seek sippott in aie

_, line of. cases dealing with. conflicts over asserted rights.

~ to receive payment ‘of an award, arising between. orig-_

jal claimants and‘ thosé claiming whder them, or

' between two or more -persons whiose rights are deriva-

- tive and -who claim through assigniment> or trahs-

fers—disputes as to th® proper person entitled to the ,

thonéey on payment ‘of a successfu!.claim.*

As. both courts below .pointed! ont, no such ques-

| tion ‘is involved in«this litigation (R. 298, 350-51)-

The determination of ‘the }\roper: person. entitled to

>the proceeds of. a partigular award, once fhe United

‘claim, presents no complica-

power in international affairs-and is a -matter 6

- démestic law for the local courts. This case would

be: ‘comparable to’ those ‘cited were petitioners alleging —

that they ‘owned ° Black Tom Island when German

ehotage agents destroyed it in J nly, 1916. °

Y Detitiohnre’ chatacterisation of the instant contro-

afits to share in a fund ereatec by.an act,.of Congress’”.

(No. 381, p. 3) and ts ‘‘a conilict of property yights

under the statutes and treaties of the United States”

(No. 381; p. 16) tends to obscure the real nature of

_ their lain. . enn conceded] y mare an ‘interest.

| * Deindes Co. v. Orinoco Ivon ous 296 Fed. 965 (App. ‘D.C.

- 1924), aff’d- sub nom. Mellon v.° Orinoco’ Tron Co., 266 U. S. Bi

- (1924); Houston ¥: Ormes, 252 U. S. 469 (1920) ; “‘Comegys v.

-. Vasse,'1 Peters 193 “(1828); Frevoll v. Bache, 14..Peters 95°

(1840) ; Judson v. Corcoran, 17 How. 611 (1855) ;. Williams v. . °

Heard, 140 U.<S. 529 cle 3 Matter df Westbréok, 228 App.

Div.® 549 (N. Y. 1930 See also Doerschuck v. ‘Mellon: and

2. & PF. Assets ee Corp., 55 F. (2d) 741 (App. D, C.,

1831). fe

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e versy as ‘‘a contest between adverse Atnerican claim-

in. Ge \ermnr!: Special Popout Account in that, ‘to

_ the egtent that funds may be available;and ‘subject

_to the rights of other : ‘awardholdets | and to the’ eondi-

. tions of the Act relating to priorities among the vari-

ous classes of claims, they are entitled to the payment “sf

of their awards out. of such Acedunt. Without’ sueh

interest, they would hive no standing whatever; for

any reason; to challenge the legality of a proposed

’ disbursement’ from the Account by the Seéretary of

the Treasury. It does not follow, however, that the

existerice of an interest which cou'd properly be‘ae- >

corded judicial protection upon grounds afforded by

the Act, authorizes judicial. inquiry- into all other :

matters which might conceivably -affect that interest.

If the basis of , petitioners’ complaint were that the —

_ Secretary of the “Treasury. was about to make. a ‘pay-

ment from the Account in respect of an ‘award which *

had not been certified by, the Secretary of State and:

thus: accepted by the United States (as required by

the Settlement of War Claims Act), or that the -

_, ‘amount of a proposed payment did not conform to the .

- provisions of the Act prescribing the priorities of

payment, a different question would be’ pregented.

no such complaint is made here.-

- The. matters of which petitioners: do complain re-

at to the validity of the, awards and the proper -

" Autetpeitation of the: Treaty and Agreement pursu-

” ant to which the .Commission, was created. .The |

.° German Spécial Deposit Account. comprises moneys

received by thé United States from Germany to -

_ satisfy. .Germany’ s: financial obligations assumed

-under.the Treaty of: Berlin.. The two Governments

' “egtablished (and Congress recognized) the Mixed

* Claims» Commission -as the tribunal to decide .the

-

_extent of those obligations. These were matters in dis-

pute between. the . two Governments, not between Rie

- American citizens’ and Germany. The propriety of 3

the aeceptanee by the United States ofthe Commis-

be sion’s action is no more ‘judicially reviewable sy ithe

would have been the rejection of the awards By t

United States, or an agreement between the two. Gov-

‘ernments, prior to- the granting of the. awards, that

the claims on which they were based ‘Should & in ae

missed. .

To grant the relief sdughi | b y petitiaiies this Court

- would have to place itself in square conflict: with the.

State Department in an actual,. not, merely a poten-

7 tial, controversy with a, foreign government respect-.

' jng the interpretation and effect : ‘of an ear cauvias

. eiabpmccmans é@ ;

The decision below is not in - conflict with: that of:

any other Circuit, is upon a question already settled ot

by this Court, is: not in conflict with, indeed it fol-

lows, applicable ‘decisions of this “Court, and it

presents none of. the grounds for certiorari specified

‘in Rule 38 ‘of the Supreme sheacie Rules. He :

D , : ARES Pars \\

al fe _ POINT Oo:

The awards were o valid and the Mixed Claims Com- |

mission acted within its powers. ° ‘ :

Although the cout below\rested thei "Sadgmeiite .

on unassailable grounds, it is appropriate to call? —

-/attention to other points raised below and presented ©

by the tecord, which would require an affirmance.

of the-jyudgment if this Court should examine into

the validity of the sabotage awards.

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Those points are as follows: ior %

i. The Commission had power to reopen the cases

e% after its prior decision neat the claims.

The cases were reopened. gsr betenin of oceasional.

perjury of witnesses for Germany, but on proof that

the entiré defense was corrupt and that the perjury —

and suppression of facts. were‘orgavized by responsible .

. Officials of: the brea Gover nment.

Hespectliig the power of the Commission to recon-

sider a decision procured by such means, we refér

to the convincing opinion.of the Umpire. rendered —

. December 15, 1933 (HR? 45-59). That opinion con-

cludes with this Statement:

“The petition, in short, avers the Commission

-has been misled by fraud and collusion on the

_part of witnesses and suppression of evidencé on

the part of some of them. The Commission is not -

- functyts officio. - It still sits as a court. To it in.

that capacity are brought charges that. it has been

defrauded and misled by perjury, collusion, and

Suppression. No. tribunal worthy its’ name or of.

any respect may allow its decision to stand if

a decision induced by fraud. If it may correct

| .its own errars and mistakes, a fortiori it, may,

while it still has jurisdiction of a cause, correct

errors into which ‘it has been led by fraud: and ¢

collusion.

-', gueh allegations are well-founded. Every tri- -

bunal has inherent power to reopen and to revise.

eae. Se opinion, therefore, that. the Commis- 2

- Sion-has power to reopen these ~ases, and should —

do so, in order that it’ may-consider the further

evidence tendered by the American Agent and,

dependent upon its findings from that evidence

‘ : 93 TA ae.

- Boe

and any that may be offer ed in reply on behalf F

of Germany, éither confirm ‘the decisions hereto- ses + -

_ fore made or alter them as. justice and right may

demand.”’

At one time, when a question of reopening these — -

cases. was arguéd, the German-Agent conceded that_

the Commission had power to decide the question of.

its own jurisdiction (R. 87-8).: :

Germany, when she found that the question was to :

hb, be decided against’ her, attempted to’ deny the power . ‘3 3

“of the Commission to settle the question for itself.

She first conceded the point, but her later position Jo. ge

-wis.in substance that the Commission had ‘jurisdic-

tion to decide on its pawer to reopen, provided it was

_ decided in accordance with the German contention,

but not. otherwise. |

Nevertheless, after the law point was settled in

_ 1933, Germany acquiesced (R. 135-37) and continued

for over five years actively to litigate the claims (R.

95-7, 157-58). . :

. The Commission has repeatedly reopened and cor-

‘pected its prior decisions in other cases (R. 93-4)

and by the decision of June 3,, 1936, in thpse cases,

in which the German Commissioner concurred, the .

- Commission set aside its prior “deciaion. ‘of December

3, 1932 (R. 138- 40).-

Petitioner in No. 381 attempts fo distinguish ec

ease from other cases ‘in which, the Commissjon |

reopened and. altered itssearlier. decisions’ on the.

‘ground that in such other cases the Agents of both |

_* Governments consented to the, reopening (Brief in .-

a No. 381,. p. 37). That distinction’ does not, of coiirse,

apply to the decision of June 3, 1936, and does not

constitute a valid distinction i in any ease, The U mpire

aneined. petitioner’ “ argunietit when Germany SO

argued in 1933. He pointed out that additional-power

could .be conferred upon the tribunal only by the -

- parties which called ‘it into -being and, therefore, if a_

ease might be reopened by consent of the national

Agents, the same action could be taken without their:

_-eonsent (R. 56).

We know, of no case—and petitioners have cited

none—where_ it has been, held that a. ‘commission: was _

without jurisdiction to consider a petition for rehear-

ing properly presented to it while it was continuing

to function as ‘a judicial body. The argument that it °

cannot do so; even-to. correct fraud, is unconscionable — °

and would pervert both justice and the. Intention of .

the acho AG Ee

.

8

The eases relied upon by petitioner (Brief i in No. i

381, pp. 34-38) do not support the proposition for

| which they are cited. All such-cases were cited to the

Commision in the brief filed in 1937 on behalf of a

. group of similarly situated awardhdlders, and their :

inapplicability was then pointed out.

Thus the Cerruti ease ( 5 Moore, International Arbi-

trations, p. 4699) involved ‘a & ‘submiasion to Grover o

Cleveland, as President’ of. the United States, of

a claim of Italy against Colombia. _ President Cleve-

land’s award was rendered two days before his

term of office expired and the ‘‘protest’’ by the

Colombian government—which'-was not a -petition

_ for rehearing—was filed with the Secretar y of State

in the McKinley. administration.

In the Claim of Manuel de Cala (2 Moore, Inter- —

‘national - ‘Arbitrations, p. 1273), the application -fer—-

"_review°was made, not to the tribunal which _had ren- |

. dered the decision, an international commissidn, but

: ete i RS Sates paar mer yas ceeee rsp sor ee tae ena eae eee

25.

a

mission had ceased to function. ‘No application ‘was

‘ever made to the international commission to review

its own decisign.

Moore, International Arbitrations, p. 1324),: the

after thé national commissioners had. concluded their

labors and had so announced. ' The application was

presented, not to the two. commissioners, but in the

tion solely for the purpose of deciding cases before

-him in which he had not then rendered opinions. The

terms ef -the submission by the two Governments in

‘ings of the Commission”’ the decision would be ‘‘con-

‘sidered and treated. as finally settled, barred, and:

Convention of 1868 with Mexico, Malloy, Treaties,

‘p. 1131). The sanie commission had| earlier recog-

‘nized its power, while it .still sat, t reopen cases

by reversing its‘former ruling in the Claim of Henr y

S. Behreck ie Edward Thornton, Umpire). nites

- Additional. ‘abtaaien in which commissions have

‘ least as strong as they are in the present case can

. Yeadily be cited. For example, Bouillotie’s case,

_ French Commission of 1880 (3 Mor, Interna-

Young, Smith & Co., 3 Moore, International Arbitrations, pp.

en 2186, as wet as from the MSS Records of the Departnient

of State.

t a separate doinestic commission which had come

fit existence eight years after the international com- -

Similarly, fn ‘the Claim of Benjamin Weil (2

application for a rehearing was made nine months |

~ first instance to the umpire, who eéntinued to fune-.

‘ereating the Commission had specifically provided.

@that “from and after the conclusion ‘of the proceed-

thenceforth inadmissible’? (Art:- V of the Claims: ,

reopened cases where the provisions respecting the.

final and binding character of the decisions were at

Ne This. appears ‘from the reference to this, ie a in . the ease of eG TEST Re

tional Arbitrations, pp. 2650-52. MSS Records, Dep*

of State); Claim of F. M. de Acosta y Foster ©

(Spanish Commission of 1871) (3 Moore, Interna-

" tional Arbitrations, pp. 2187-88, MSS Records, Dep't

of State), where the decision was twice reopened,

once with consent and. once without consent; C. H.

' Campbell, No. 94, and A.A. Arango V. Sonia, No.

95. Spanish Commission of 1871 (MSS “Records, ,

Dep’t of State).

That other commissions—like the Mixed Claims

'Commission—have often refused to grant. rehearings

‘in particular. eases does pot indicate any lack of

power to grant a rehearing under appropriate cir-

cumstances, such as when fraud is shown.

2. The withdrawal. of the Pebiaia Commissioner

did not deprive the Umpire ‘and ‘American Coinmis-

sioner of power to dispose of the cases.

. Or Mareh 8 1939, the Ger n Commissioner, after

having sat during seventeen days of argument in 1936

_and ten days in 1939, and after the case was sub-

mitted and the Commission had been engaged in its

deliberations for. some three weeks, suddenly an-

nounced his retirement.

That he did so after learning the détision was going i

against Germany and in order to frustrate ‘the arbi-

tration, is clear (R. 145-52, 159, 217, 290-91). The

German Commissioner himself stated. that the reason

_ for his retirement was his conviction that the Umpire

had reached a conclusion and = was no longer open- .

_ minded (R, “a5-41)-

~The authorities are iattled that. such_ sitinetde to x

frustrate the arbitration was uhavailing and did not.

‘

; prevent the Umpir’e .and’ the American Commis- :

sioner .from disposing of. the eases. Republic of |

Colombia. v. Cauca Company, 190 U. S. 524 (1903);

American Eagle Fire Ins, Co. v. New Jersey Ins.

- Rapids Ry Co. v. Jaqua; 115 N. £: 73 (Ind. 1917); -

Atchison, Topeka & Santa Fe*Ry: Co. v. Brother-

: pp -26 F. (2d) 413 (C. C. A. Tth,. 1928) ; . State

- Tucker, 166 N. W. 820 (N. D. 1918); Murses;

Comercial Arbitrations and Awards (1930), pp..

427-428, and cases there eited; Burtlet v. Smith,

94 Eng. Rep. 587 (King’s Beieh, 1734); Dalling v

Matchett, 125-Eng. Rep. 1138 (@ommon Pleas, 1740).

the Colombian Commissioner’s attempt to scuttle his

commission in. the Colombia.y. Cauca ease, equally apt

here (106 Fed. 337, at 348-49, aff’d 190 U. S. 924). -

The opinion of the American Commissioner (R. 154-

79), adopted by the Umpire in his decision of June

15, 1939 (KR. 60), reviews syich authorities in détail.

Those ¢ases, concerning private arbitrations, gen-

: ‘erally: deal with situations where the resignation of an —

had ‘been presented. But Toledo S. 8. Co. v. Zenith.

Transp#*'o., 184 Fed. 391 (C. C. A, 6th, 1911), held’

‘that an arbitral tribunal, justified in determining the

merits of a claim despite withdrawal of one of the

arbitrators, may thereafter proceed to determine the

-. question of damages. oe >

In. the instant case the only ‘question which had

not heen argued prior to the ‘Yetirement was the dam-

age question. All the evidence on damages had been

filed years earlier (R..108). The agreenfent of the

~. American Agent eleven years before that briefs then

hat oa | ae ba

— ee ase ay ee 4 on ‘ - —_ , — —— ee ee . . nhs rgaree ss

Bec eG Ant ke tit MERE RE COS. cee Oe RRMA RT EN ESSA ac ctab

° '

: ae yas . .

Co. 240 N. Y.'398,-448-N. KE. 562.1925); Grand |.

Set also Circuit Judge Goff’s apt characterization of —

arbitrator took place after all proofs and arguments. ~ |

aie etn eat ieaeeaeemre acinar (emmea emia maar

e °

° +

¥ a ° ‘

mys * gars 28

. a : . ed

“filed should he restricted solely to the question of

~ Germany ’s~tialility—(R.. 84) has no’ bearing. on the

_ , ease. Between the decision of June15, 1939, and the

'* entry of the awards,on October 30,’ 1939, during _

which. period the Commission considered the ques- —

tion of the amount of damages (R. 107 ) (and indeed

substantially. reduced the claims), Germany had

ample opportunity te argue the question of damages,

Germany’s refusal to participate as a litigant carne

avail the petitioners: ,

The questions presented to the Commission for its

decision. prior to the retirement of the German Com-

missioner included :

(a) the question whether the United States had

proved German fraud sufficient to require a re-

opening of the eases (R. 102); |

; (b) the question whether, on the record | as it

ve _.. then stood, the United States had made out its

is case on the merits: Leite 60-2, 96-8, 103, 158-59,

the question of the See a of yer: |

of Canadian Car & Foundry Company (R. 182-84,

195); and

(d) the question. whether a final decision. on

the merits should be made (R. 97, 98).

When tie Commission (after the German Commis- -

sioner’s resignation ) on June 15, 1939, rendered its

decision reopening. the ease and Setting aside the 2

. former decision, it made a finding, on the xecord as it

7 stood, that Germany had caused’ the explosions. That

_, °°. finding was: in direct response to the insistence of thé

- 2 German Commissioner that the point be examined, as —

= it would é futile to reopen if the are States

LSE BS SES RE eS ZO Ts :

od

° 5

ee a a ee

had not made a case onthe merits: (R. 60, 105-06). ’

-Rrom 1933 to 1939 both Governments had filed volu- °“—

--mnirfous evidence relevant to the. essential merits of — , ae

~ the claims ‘(R. 61, 97), That finding, on the record oa:

as it. stood, left Germany-free to supplement the’ . ~~ }

record with further proof. She refused to appear

further, and on the record. there was nothing for the :

Commission to do but determine damages,. which: it ee

did. a é . “ta : ,

As Secretary of State Evarts stated with respect — .

to the American-Spanish Commission,’ convention of

February 1871,

“rit is] beyond the competence of either govern- ‘-

ment to interfere with, direct or obstruct its de- |

liberations.’’ (3 Moore, International | Arbitra-

tions, p. 2599 and MSS Notes of the United

States to.the Spanish we

Mr. John Bassett Moore, who now is named as.

counsel for one of the petitioners, when™ commenting

—-on the question of the right of withdrawal in connec-

tion with the arbitration which took. place water: the

Jay Treaty of 1794, said:

“eee On the other hand; it ean hardly be °

supposed that the govermnents, in agreeing to -

Articles VI and VII,,had it in mind to create ‘a

device by which either of them, or the commis- —

sioner named by either of them, might by with- .

drawing, readily prevent the majority of a duly

_~ ° eonstituted board from exercising its” constiti

- onal powers. ° |

* * a * ick * %

‘“‘As the claim of a right to withdraw ‘eannot

reasonably be deduced from the terms of the ~.’

ae treaty, sq likewise is it unjustified under. interna- =

3 tiofihl law. ‘Its ‘justification in the present in- ~

stances, whether. at London or at. Philadelphia, .

mist, therefore, be sought in moral rather ‘tltan .

in legal.considerations.’’ (3 Moore, International

Adjudications, Moderr Series, P:. 170.) ar

Under all the authorities, including those siuriins

_ even to private arbitrations, the _ attentfted fr ustrag

tion was ineffective. a ins 3

There is purer ies clear ground for holding hat Ger-

‘ many could not. frustrate thevarbitration by withdraw-

ing her Commissioner. .

ae The Knox- Porter Resolution, aptitived’ July 2, _

1921 (42: Stat. 105-6) provided that all property of

Germany and its hationals.in possession df.the Uniteth -

States should not be returned until such time. as Ger-

many’ had made. “‘suitable provision’’ for satisfac-

tion of claims of American nationals. :

AP The substance of the feaglution was embodied :

in the Treaty of Berlin of August 25, 1921 Be Stat. -

sees?

(iii) The’ Executive. Pi ale 2 of pat 10, 1922

(42 Stat. 2200) establishing the Mixed Claims Com-

“mission, was the ‘‘suitable provision”. referred to in

the Treaty of Berlin.

(iv). The. Seftlements of War: Claims Act of 1928

(45 Stat. 254), which profided for 'the return to Ger-

many of seized property, was enacted in reliance upon

-the fact that the Commission had been established and

ic tet Clormang cinllt not by its own act prevent action

by the. oar ‘The Hearings before. - Senate :

.. Finance Committee, 70th Sa HR 7201, ‘Jen- :

- uary* 23-26, 1928, pp. 134-9,191-5, disclose that a

representative of this same respondent Lehigh Valley:

. Railroad Company. (with remarkable: -foresight ° as

“events: have proved) appeared and objected to the .

_ rettirn of German property, until the Mixed Claims

' Commission had decided the sabotage ‘cases. He

\ feared that, if German property was first- returned,

“Germany would by some device disrupt the Commis-

sion and prevent sabotage awards. impressed by this ©.

argument, the Senate Committee called. in Judge

Parker, then Umpire of .the Commission, and ques-

tioned: him as to what the Commission eould do. if.

Germany. déclined to appear before a decision could ~

_be rendered in the sabdtage claims. J udge- Parker

‘ stoted that the Comthiesiotl could proceed to decide :

the cases even if Germany went so far as‘to refuse

‘ to appear-or submit ‘any testimony (R. 83-4). Fur-

thermore, the record of the hearings contains letters’

~ to.the Committee written by representatives of the

_ German Government, insisting that it was unfhink-—

able that Germany would endéavor to disrupt the

Commission. Satisfied by -these representations, the

bill: was’favorably reported and passed..

(v) Since its passage- more than $175,000,000 ~

of German property has been ‘returned, in reliance on

‘the continued functioning of tlie Commission. Under |

these circumstances, having received—benefits under: ;

the Settlement of War Claims Act, Germany . eould

not at dny stage® thereafter frustrate agers, cd

before the Commission. Wee

, - ern.

6 : ‘ : ‘ \ : e

im? Se . .

° , ° =

See oy

be ee AE ©

Mo pS Pe

‘

LOGE SLEPT OE

E

Bis

et e

H

B?

°° Petitioners’ Attacks on Commission Proced re/

Petitioners: argue ‘(Brief in No. 381, Pt. IV) that ee

‘the question of the merits of ine shnins was not prop-

erly before the Commission . because the original ap-: .

plication filed in 1933 sought only a rehearing. They

therefore assert that Ahe Commission granted the |

awards without. affording adequate opportunity to”

Gerinany to litigate the merits of the claims,

The argument disregards. the facts that the merits of

- the claims had been exhaustively tried and argued Dbe-

fore the Conimission, that both sides had filed: thou-

sands of pages of eviderice dealitig, directly with the.

' merits and that the ‘American Agent had repeatedly.

requested the Commission, tc render a finding on

ithe merits upon. the ground that once a. decision

had been rendered on the issue of fraud, any other »

.» proceedings would -be a mere formality (R. 96-8).

ae In January, 1939, the American: Agent moved. again

for such a ruling just prior to the subniission of —

‘the case to the Commission (R. 97-8). a

‘ Furthermore, as pointed out by, the American. -

Agent, the claimed distinction between fraud and

" merits in this ease was unreal—a fact which had be-

come increasingly evident as the cases proceeded. -The -

same evidence was relevant to both. For example;

-one of the questions in the so-called fraud issue was the —

-authenticity of a certain secret message, which was’

eventually ‘found to be genuine. But the Commission *

in 1932 had stated that the message, if. authentic,

Was conclusive on the question of. liability. (R. 120),

Petitionérs’ attempt to create the impression that

_ the remaining ‘members of the’ Commission acted

hastily and without adequate consideration is wholly

Bo ys

presumably rade it unnecessary to notify the Ger-

man Agent of further meetings,,(R. 99, 100, 195-216,

— 991-94), iti fact the Commission gave him personal

notice both of the meeting of June 15, 1939 and of the

meeting of October 30, 1939. The » German Agent

Germany was well aware of the fact that awards in

(RB. 196). | af

‘Both-the Umpire and the Ameri¢an Commissioner

proceeded with the utmost care and] consideration :for

the rights of Germany after the retirement of the

German Comzissioner. At the meeting of June 15,

1939, although the circumstances amply justified the

decision finally disposing of the cases, the decision

handed down by the Umpire at the opening of the

meetingas confined to the granting of the petition

for a rehearing and the finding of fact (requested by

9 then stood, the United States had made out. its

case on the merits (R. 59-60). It was only after the

tention not to file further evidence had become ap-

parent, that the Umpire granted the motion of ‘the

“American Agent to direct the entry of awards in

favor of the United States (R. 105-06). The order

entered on June .15, 1939, provided, in part, as fol-

- lows: Gis ' |

pare and submit tothe Commission for its

favor of the United States were under consideration —

the German Commissioner) whether, on the.record-as —

Commission had, so found and after Germany’s in- ~

| 66. * * the -American, Agent is directed to pre- |

approval awards in eaen of the pending sabotage |

claims. These awards will be considered at a -

_ further. meeting of the Commission to be called .

. ° .

. @ a

Me hy dai at GoaLah hie REST eCPM ET TT CDCR Ce Meee Ne cated sock Mate ane hae ee oe MoT

. . . e

unjustified. _ Although the blunt letters. from the - ~

German Agent and the German Charge d’Affaires °

failed to appear at either meeting, hotwithstanding —

Uh

34

on ‘notice, and appropriate tien thereon. will

then_be taken” (R. 106).

Betitioners’ other argument that the German Com-

‘issioner’s attempted frustration was effective is |

based on the premise that-the national Commissioners

. were not in disagreement or ‘‘at a point of difference” —

‘in their deliberations.* The Umpire himself, who

was present at all hearings, found. that such a disa- -

greemént existed (R..59-60). . >

With regard to the argument based on the fact that

- the German Commissioner did not sign the certificate

of. disagreement, petitioners rely upon a rule adopted

by the Connnission for the convenience of the Umpire.

It is clear that no rile of procedure adopted: .by a

tribunal can enlarge or restrict‘ the jurisdiction of —

that tribunal. Washin gton-Southern Navigation Co.

v. Baltimore & Philadelphia Steamboat Co., 263 U. 8.

629 (1924).

It should also be noted that the Sa he of | the

Commission were substantially modified by the special

rules for: the conduct of the sabotage-cases and the

_unbroken practice of the Commission in sitting and

‘deliberating as a three-man body in all proceedings

, connected with all important cases of the Commission

- (R. 84, 85-6). See also Report of Aimerican Com-'

‘missioner, Mixed Claims Commission, December 30,

1933, U. S. Gov’t Printing Office (1934), pages 7-8. .

The Umpire’s power to proceed without a certifi-

cate of disagreement : signed .by both Commissioners

has been settled since Umpire Robert’s decision of -

December 15, 1933, which dealt w ith the point and °

-* The. Executive Agreement of. August 10, 1922 provides:

‘‘The two Governments shall by. agreement select. an ‘umpire to

decide upon any cases. concerning which the commissioners may

‘, disagree, or upon any points of difference that may arise in the

course of their sexe: ail (R. 16-7).

ti ¢ -

a

_ “

€ : “a

35

was never questioned by either Government (R. 50-

52). Plaintiffs’ contention would lead to the absurd

result that the Umpire, even though ‘he was present

and Witnessed the disagreement (as he did here),

could never decide a point ‘in. dispute unless the:

+. German Commissioner COMNOTLEN, in- 1 writing that he

should.

Furthermore (see pages. 30 hak 31 of. this brief)

Germany, having had property returned ‘to her or her

tionals under the Settlement of War Claims <Act —

passed in reliance on her continued participation in

this arbitration, could not -frustrate the arbitration

by refusing or failing to sign a eertificate of dis-

agreement . or: by withdrawing her ‘Commissioner So.

that a disagreement could not oceur.

3. Agency of Canadian Car & Foundry Company |

is an American national within the meaning of the .

Erecutive. Agreement of August 10, 1922. °

That concern isa New York corporation... Its

_ Offices always have been in New ‘York. City. Prac- —

* tically all- its business was done in the United: States.

‘Its plant, which was destroyed, was located at Kings-

land, New Jersey, where it employed two thousand

~~ men (R. 185). The petitioners assail the award to the

United States on behalf of. that claimant as void -

and beyond the power of the Commission on the

theory that the corporation was not an American

national within the meaning of the agreement estab-

lishing the Commission. All of the stock’ of the’ New

- York corporation was owned by a Canadian corpora-

tion, and the portion of the Canadian corporation’s

stock held’ by citizens ofthe United States. varied

from 30% to 45% (R. 185-86).

*The question shales its losses were the proper

Merlot. vg an award involved. questions of fact and

- also interpretation of the Executive Agreement and —

came before the. Commission for deeision in the regular. -

course of its duties. ‘In every claim the Commission

was required to determine the nationality of the

claimant. — :

- The argument that the Commission did not have

power to decide questions of fact and law respecting ~

nationality by decisions ‘‘binding on the two gevern-

.ments’” would result in leaving the question of

w, nationality to be settled in every case by “separate

diplomatic agreement and then to be = in ‘the

courts. “

The full facts affecting nationality were disclosed

: to the State Department and to Germany many years.

ago (R. 185-86). The State Department espoused the

claim (R. 186),- Not’ until December ‘7, 1936, nine

years after the United States filed the claim with the

Commission, and after thausands of pages of evidence |

shad been taken respecting its merits, did Germany

raise the question of nationality. On December,7,- _

1936 ¢aftér the first argument on the fraud petitionfor

rehearing) Germany filed a motion raising the p8int;

on March 18, 1937, the German Agent withdrew his

motion; on April 27, 1937, he renewed it. (R. 183).

. After both Agents had\ filed briefs on the point, the

-Commission denied: the motion (R. 195).

The, propriety of the ‘award is so amply supported

by the authorities cited and discussed in the opinion

of the Anierican Commissioner of October 30, 198%. .

(R. 182-94), which was concurred in by the Umpire 7

(R. 195), that no useful purpose,js served in review-

ing those authorities -here.—. I

: Petitioners’ ‘brief merely recites the same “eases

cited befdre the Commission and discarded by the

Umpire and/the American Commissioner as: inap--

plicable to the situation presented by the claim.

37°

- |. POINT THREE |

The Commission’s decisions on these questions are |

binding on petitioners.

In years sie there was a ‘oleae to examine eol-

Jatérally the jurisdiction. of a judicial tribunal, even

though it had: considered the jurisdi¢tional point and

‘itself decided the question. That stibject has recently - -

heen clarified. ‘Stoll v. Gottlieb, 305 U. 8 366

(1938); Treinies v: Sunshine Mining Co., 308 U.S. 66°

(1939) ; Chicot County Drainage District v. Baxter

State Bank, 60 St. Ct. 317 (1940).

~~ In Stoll ‘v. Gottlieb, after a District Court “on vane

erroneously held, in a decision on the question, that \.

it had juri isdiction over the subject matter of a case

before it,”this. Court refused -to allow its judgment F :

to be attacked neeeety. This situation is ana- i

- Jogous. g

Se, ; ‘ ,

That, the Chuiiadesion had the power to pass_ on

questions of interpretation of the Executive Agree-: ,

ment of August 10, 1922 to determine its own powers

cannot be doubted and was conceded by.the German *

_ Agent. (R. 88). Not only did the Commission have

. that power, but decision of the questions was solely

. for it. ‘With reference to a determination of the citi- —

-zenship of a claimant in. the American-Venezuelan —

arbitration of 1903, the Américan-Venezuelan Com-

thission stated : ? : .

“Hence, the Commissiqn, as the sole judge ‘of

its jurisdiction: must in each ease determine for

itself, the question of: such citizenship upon, the

evidence. re in. that behalf. ” . (Flutie

38° é

s te be \

eases—Ralston, Report of Venezuelan Arbitre

‘tions of 1903 (Wash. ., 1904), pp. 38, 41.)

See also The Betsey, 4 Moore, International Adjudica-

tions (1931) 81, 85, 182, 186; Hargous (U. S.)‘y,.

-Merico (1839), 2 Moore, International Arbitrations

“p. 1267; Rudloff (U. S.) v. Venezuela, Ralston, Report

of Venez: Arb., pp: 182; 185; Greco-Turkish Agree-

ment of December 1, 192¢¢ Pasiienent Court of Inter-

national Justice Advisory Opinion | No. 16 (August

18, 1928), Public. Ser. B., No. 16, pp. 20, °21. 3

The Commission’s decisions inter preting the Execu-

_ tive, Agreement, like its decisions on the validity and ».

amount of ‘claims, are decisions which e¢ach Govern-

ment is bound to accept as’ final and binding under -

the provisions of Article VI.of the Executive Agree-

ment (R. 18). Secretary of State Evarts came to the.

same conclusion with respect to the powers of the’

American-Spanish Commission .under the Convention

of February, 1871. In refeféyce to the validity. of

‘judgments of naturalization, of certain American -

claimants, the Secretary of State pointed out that ~

the Commission’s decisions on the “reach of the juris- _

diction accorded by the convention of 1871’’ were final

‘ and conclusive on both Governments (3 Moore, Inter- :

national Arbitrations, 2599-2600). See also the opit-

ion of) Secretary of- State Webster with reference to

the United States-Mexican Claims Commission estab-

lished pursuant to the. Convention of 1839 @ id., pp.

1241,. 1242).

The Mixed Claims Commission 5 isa < cleiia triburfal

established by the United States and Germany, pur- .

suaut to a treaty, and its creation was. ratified and

confirmed, by the Settlement of War Clatms Act.

Its decisions on these questions raised before it are

——_—

a

* ie 39 Fy at St Ree

binding onthe two Governments, and vonsequently on

private persons whose only claims are © through one of

said Governments. pedi ae v ;

Cc onclusion .

The decisioni below was _ iously right, The rea-

sons assigned for it are invulnerable. There. is no

ease to, the contrary and no conflict. The decision

could not have been otherwise, without disregarding

a long line of. decisions wf~this Court. The law_is i

settled. In ad@ition to the grounds assigned by the a

_ courts below, the petitioners’ case could not possibly«

have sueceeded even if the courts had formed. their

own judgment as to the propriety of these awards.

It is not out of place go note that this litigations — :

and the resultant delay 6 n payment of these awards, ~ <—

are causing the beneficiayies of these awards (unless 4

\ Germany resumes payments on her‘ bonds) approxi- 4

~-mately three thousand dollars per day in loss of use |

of the money, coriputed at the rate prescribed in the — &£&

‘Settlement of War Claims Act, a total to date of over -

F, three-quarters of a million dollars. The respondent,

acting on behalf of all the sabotage awardholders, has —

done its best to expedite the final decision, with ne: .

help from the petitioners... Its motions for leave to. ' ee

intervene, and for summary judgment, were both pai

met with attempts at postponement.. When the

appeal from .the District Court was taken, it was

the respondent who arranged for immediate cer-

tification and printing of the reeord and moved to

- advance in the Court of Appeals. To stay the man-

_ date in that court. (which has gone down), these peti- :

tioners should have’ filed. their petitions for certiorari

ys . ; o ¥ a .

Q o

e : 2 ‘ a

m ys OF r . ae

. 4 \ ‘ ‘ fF;

' i e oO

* : . , ; e : 40 . : : :

* in thirty days ¢by July 3rd). They were filed Augiist

29th. There has been no evidence of any desire on

f . the part of the petitioners to expedite a fipal decision.

, _ They have relied on the reluctance of the Treasury

to pay the awards in the face of litigation, and never

applied. for a temporary injunction, for which a bond’

would have been required, It is but natural that the

is . sabotage awardholders protest at having this litiga-

* "tion, whieh they are convinced is. wholly without merit;

carried further at their expense.

¢

: The —. for certiorari should be denied.

"Reespettall submitted,

. se * Wiruzam 5. we Sua

[ i aa | Attorney for. Respondent,

|) a ae saad V wee Ratlroad C ‘om pany

| _ ;

4 . 2 ; _

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