# Opposition Brief — Z. & F. Assets Realization Corp. v. Hull > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0317%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1941 - **Citation:** 311 U.S. 470 ## Text 3 = x > a eis : iu ae i ae en 6h Office ~ Syrseere Surt, U, $,. a ee a a Rag ES De ie St ee oe | ca oe ee 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 “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) *® Oe * " he ‘ e . : Pi . oe ‘ ; . et, Sa as pus $5 = vs SO es Di Re PS Sy at op Oe a hn ee te Nat Soe ere soe — Brae & = — = tt ee ees FINS YS ABFA OL SELES AON Re RE SE Ie EL BEF OT IIE TE ° ; ” Loe oe fe ; & ; ; a -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). - bs # ri x i en ah ‘ : - SEAR TAL oe MP CLIN ITS EN SP Pesigad Disk tice eee ee REDE ani eet > y S SEW Sreties 3 tar SE eo Eee St mage pues Nae Niece Coen Se os A plied : Sn . eles gt 8 gece eesyereniver Rees, FAS Pe vis TROP So Sips Aisa aw bk os tet oe ae 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- - 4 , a ea Fee OT CR RE Te Oe ERG E TREN A TPM CORE 7 Oe mo oD 4 sag . ’ . . ; ee ’ - . > ; ae 3 e- . . : Ls , “s %,'5 ey be ‘ 9 ee bee on \ A a . ‘ bd § . 7 3 : é ’ ‘ 2 . \ 3 & pk oF ‘ > x . > . Carat . . . 5 . , & ‘ “ ° : : - pe ‘ 7 . M © ¢ : > . a . ° ‘ . : é . . . ° . ‘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. ¥ ty ? ‘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 ae a 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 * . ; \ e * 6 i : \ . -\ . =e *- 2 o f I ‘. ee > x ‘ en. 2 : - ‘ ° > : : o x \ 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. 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. . , ’ ' ° . > ’ . be *. ~! - i % . ge ‘ e 3 . e : \ é \ : ° ‘ * | . ; r ty 5 \ e . PR f 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