# Respondents Brief in Opposition to Petition for a Writ of Certiorari — Kolovrat v. Oregon > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0355%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief in Opposition to Petition for a Writ of Certiorari - **Published:** January 1, 1961 - **Citation:** 366 U.S. 187 ## Text vr —— ty ° Fe H r e ‘. , . Ie}? 640 ; « i head ' oo Tn the Supreme Court . of the United States OCTOBER TERM EONS 1960 ANDJA KOLOVRAT, DRAGO STOJIC, DRAGICA SUNJIC, NEDA TURK, JOSIP BULGAN, JURE ZIVANOVIC, 'MARA TOLIC and MILAN STOJIC, and also BRANKO KARADZOLE, Consul General of Yugoslavia at San Fran- om California, : : en v. STATE oF oF OREGON, acting by and isda the State Land Board, a Respondent. LUTVO Se HABIBA TURKOVIC, DZEDJA POPQVAC, SEFKO MURADBASIC, DIKA MU- RADBASIC, TA BRKIC, MILKA ZEKIC, JASMINA ZEKIC and KA ZEKIC, and also BRANKO KARAD- a ng Consul eral of Yugoslavia at San Francisco, Cali- ornia, : Petitioners, Vv. : ai bd OREGON, vitae by and through the State Land Respondent. RESPONDENT'S BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI - ROBERT Y. THORNTON _. Attorney General of Oregon’ ARTHUR GARFIELD HIGGS Assistant Attorney General CATHERINE ZORN Assistant Attorney General Counsel for Respondent Supreme Court Building Salem, Oregon a a | SUBJ ECT: INDEX ° Statement of the Case Questions ' Argument ‘1—The cneatrustion of Article U of the Trey of Commerce between the United States. of America and Serbia concludéd in 1881 (22 Stat. 63) is gov- ‘aud related cases. The. treaty provision covers both disposition and acquisition of property by citizens of one country’in thé terriiory of the other but does not apply to the nationals of either within their own country i I1—The application of a treaty and its construction are the peculiar province of the judiciary _ 11I—The construction and application ‘of Article II court’s construction.of Article IV of the German treaty in Clark v. Allen, 331 U,S. 503 IV—The Bretton Woods Agreément (60 Stat. 1401) . United States by becoming a member of the In- ternational Monetary Fund gave acceptance to the Yugoslavian foreign exchange control laws and that a state law requiring reciprocal rights foreign affairs | ‘Summary of Argument .-» Conclusion . Appendix A of. the ‘Yugoslavian treaty is governed by this erned by the case of Clark v: Allen, 331 U.S. 503. ° 10-11 14 17 does not ‘support petitioners’ thesis that the - of inheritance is a forbidden entry in matters of - CITATIONS | CASES | iP ;° ‘Pasc. Arbulich v. Arbulich, 346 U.S. 897, 98 L. Ed. 398, 74 S. Ct. | “219; 247 U.S. 908, 98 £. Ed. 1066, 74S. Ct. 426 a Charlton, Ex parte, 185 F. 880, 886 (aff'd. in* 229 U.S. “447) 16 Clark v. Allen, 331 US. 503, 91 L. Ed. 1633 ~ 4, 10, 11, 12, 13, 14, 16, 17, 19, 20 Duus v. Sieiet, 245 U.S. 176 — scaauaracien 8 Stat. 60. (232, 346) 1] Frederickson v. Louisiana, 23 How. (US) 445 naa tion between the United States ree Stat. 588) a. 11 . Foster v. Neilson, 2 Pet. (U.S.) 253, 308-309 — - 17 Ginn’s Estate, — Mont. —, 347 P. (2d) 467 Ww Hamilton v. Erie R.R. Co., 219 N.Y. 343, 114 N.E. 399, — 402. : 15 Jones v. Meehan, 175 U.S. 1, 32 : oe * Lukich v. Department of Labor and Industries, 176 Wash. | 221, 29 P. (2d) 388, 390) © 14 Petersen v. Iowa, 245 U.S.-170 (Treaty between United States and Denmark, 8 Stat. 340, 11 Stat. 719) . li Rocca v. Thompson, 223 U.S. 317, 332 - 14 Skarderud v. Tax Commission, 245 U. S. 633 —— i Treaty, 8 Stat. 60, 346) . 11 Spoya’s Estate, 129 Mont. 83, 282 P. (2d) 452... ee In re Stoich’s Estate, on, — Or. —, 349 P. (2d) 255, 365, 267, 268 riser; yy O, 18 Succession of Vlaho, decided ‘~ District Court for Parish of Orleans (unreported) Sik a: 2 18 | STATUTES ° | | ORS 111.070 me Sa ee: ii TREATIES, ETC. - Article II of the Treaty of Cena between the United States of America and Serbia eoncludec. in October 2/14, 1881 (22 Stat: 963) 3, 4, 10, 12, 13. 14, 16. 17,-18, 19. 20 Article IV of the Treaty of Friendship, Commer¢e and Consular Rights between the United States and Ger- many of December 1923 (44 Stat. 2132) 4,11, 12, 13, 14, 17, 18, 20- Bretton Woods hateie national Monetary Fund Agreement a Stat. 1401) 3, 8, 10; 18, 20 MISCELLANEOUS 3 Bouvier’s Law Dictionary (Rawle's Third Edition) - 13 V Hackworth, Digest of International Law, 399 15 ¢ ili cl No. 958 In the ‘Supreme Court. of the United States OCTOBER — 1959 %s -ANDJA KOLOVRAT, DRAGO STOJIC, DRAGICA SUNJIC, NEDA TURK, JOSIP BULGAN, JURE ZIVANOVIC, MARA TOLIC and MILAN STOJIC, and also BRANKO - KARADZOLE, Consul General of Yugoslavia at San Fran- cisco, California, Petitioners, v. ; ? LUTVO “‘ZEKIC, IBRO ZEKIC, HABIBA TURKOVIC, DZEDJA POPOVAC, SEFKO MURADBASIC, DIKA MU- RADBASIC, MURTA RKIC, MILKA: ZEKIC, JASMINA ZEKIC and RAJKA ZEKIC, and also BRANKO KARAD- — Consul General of Yugoslavia at San Francisco, Cali- ornia, N. STATE OF OREGON, ‘acting by and through the State Land Board, Respondent. ‘ e RESPONDENT’S BRIEF IN OPPOSITION TO PETITION: FOR A WRIT OF CERTIORARI. . STATEMENT ‘OF THE CASE - The decedents Joe Stoich and Muharem Zekich died intestate in the State of-Oregon in December 1953, leav- ing estates consisting entirely of personal . property. - OF OREGON, acting by and through the State Land Respondent. , Petitioners, co 7 vs ‘ a 2 These -decedents were residents of Oregon and their American citizenship is not questioned. Their sole sur- | viving relatives were residents and nationals of Yugo- slavia. These relatives,.together with the Consul Gen- _- eral of Yugoslavia at San Francisco, their attorney in fact, are the petitioners here. There being .v other rela- tives of the decedents Jegally qualified to inherit, the State of Oregon filed petitions in the Circuit Court of the State of Oregon for Multnomah County for ‘the escheat of the estates of the decedents under the’provi- sions of ORS 111.070. App. A, p. 21, infra. The peti- tions for escheat were. opposed by answer of the peti- tioners here. Because the basic facts and questions were substaritially the same, the escheat proceedings in. the ) two estates were consolidated for trial. The trial court \ found against the State of Oregon on its petitions for | escheat, agd the State of Oregon appealed to the Oregon Supreme Court. iad | Upon hearing’ the consolidated appeals, the Qregon Supreme Court reversed the decrees of the circuit court and held that the provisions of ORS 111.070, requiring that American citizens receive payment of their foreign inheritances by delivery within the United States, did not infringe upon the treaty between’ this country and . Yugoslavia and that the Yugoslavian Foreign Exchange Law and Regulations denied Y\merican citizens an u qualified and enforceable’ @éght to receive delivery. & their Yugoslavian inheritances. The court further held that failure to-prove the legal existence of the rights | required by ORS 111.070 defeated claims of succession | | i aes 3: to the Oregon inheritances. In re Stoich’s Estate, (1960) — Or. —, 349 P.(2d) 255, 268. In reaching its decision, the Oregon Su supreme Court gave full éonsideration to Article II of the Treaty of Commerce between the United States of America and Serbia concluded in October 2/14, 1881 (22 Stat. 963,«. Treaty Series 319), as well as the Bretton Wodds Inter- national Monetary Fund Agreement (60 Stat. 1401). Both were cited in petitioners’ Oregon Supreme Court brief and woth were argued by petitioners’ counsel in oral argument: Notwithstanding implications in oetitioners’ petition for writ of certiorari; oi Oregon Supreme Court in’ its opinion quoted in fultArticle II of the United States- Serbian Treaty of 1881, as follows: | “In all that concerns the right of acquiring, pos- sessing or disposing of every kind of property, real or personal, citizens of the United States in Serbia and Serbian subjects in the United States, shall en- joy the rights which the respective laws grant or shall grant in each of these states to -™ subjects of the most favored nation. : ) _“Within these limits, and ade the same condi- tions as the subjects of the most favored nation, they shall be at liberty to acquire and dispose of such property, whether by purchase, sale, donation, ex- change, marriage contract, testament, inheritance, or in any other manner whatever, withput being sub- . ‘ ject to any taxes, imposts or charges whatever, other or*higher than those which are or shall be levied on natives or on the subjects of the most aii State. “They shall likewise be at liberty to export Seedy the proceeds of the sale of their property, and their 4 4 ~ goods i in general, without being subjected to pay any other or higher duties than those payable under sim- ilar circumstances by natives or by the subjects of the most favored state.” In re Stoich’s Estate, supra, oe OR, toon, 349 'P. (2d)" 255, 263. In construing the treaty, the Oregon court referred to Clark v. Allen, 331 U.S. 503, 91 L. Ed. 1633, recog- ' nized by petitioners as “the cornerstone of the entire reciprocal inheritance rights structure” (Resp. Br., p. 16, Or. Sup. Ct.),-in which ‘the United States Supreme Court reviewed the comparable inheritance provisions of Article IV of the Treaty, of Friendship, Commerce . and Consular Rights between the United States and Germany of December 1923 (44 Stat. 2132). Finding - theManguage of Article II of the Yugoslavian treaty to have the same import and meaning as that of Article IV of the German treaty construed in Clark v. Allen, _ the Oregon court-applied the principles of that case and : held that the Yugoslavian treaty did not cover succession - of property from an American citizen in the United States ‘toa Yugoslavian citizen in Yugoslayia. ' To dispel any doubt that the Oregon court may have given eer consideration to the case of Clark v. Allen, supra, or. Article IV of the German treaty in con- struing the Yugoslavian treaty, we quote at length from 349 P.-(2d) 255, 265): ee s “In Clark v. Allen, supra, the court was called upon to construe Article IV of the Treaty of Friend- ship, Commerce and Consular Rights made with Ger- many December 8, 1923 (44 Stat. 2132). It -had dif- _ % tt : oo ” the opinion as follows (In re Stoich’s Estate, — Or. —,*° 4) ferent provisions relating to the testamentary dis- position of realty and personalty. Article IV of the ’ Treaty, which is the provision of our interest, con- tained the following provisions as to the diSposition of personalty: : ‘Nationa ls of either High Contracting Party | may have full power to dispose of their per- sonal property of every kind within the terri- tories of the other, by testament, donation, or otherwise, and their heirs, legatees_ ‘and donees, of whatsoever nationality; whether resident or non- resident, shall succeed to such personal property, and-may take possession thereof, either by them- selves or by others acting for them, and retain: or dispose of the same at their pleasure subject to the payment of such duties or charges only as the nationals of the High Contracting Party within whose territories such property may be or belong shall be“liable to pay in like cases.’ (Em- phasis ours.) (331 U.S. at page 514, 67 S. Ct. at page 1437, 91 L. Ed. at page 1644) “We are of the opinion that the following words - and phrases found in the German Treaty of 1923: _ ‘Nationals of.either High Contracting Party * * * within the territories of the other’ are of the same’ import and meaning as the. words and phrases found in Article II of the Treaty of 1881; that is, ‘citizens . . of the United States in Serbia and Serbian subjects | . inthe United.States,’ a phrasing which the defendants. ascribe to Victorian English. “In the Clark case, it. was held that the a of Article IV of the German Treaty applied only to nationals of either of the party nations who were within the territory of the other. Mr. Justice Douglas, speaking for the court, says at’ page 515 of 331 U:S., at page 1438 of 67 S. Ct:, at page 1644 of 91 L. Ed.: . “«* * * Tn case of personalty, the provision governs the right of “nationals” of either contract- a 2 ing party to dispose of their property within the territory of the “other” contracting party; and it is “such personal property” that the “heirs, legatees and donees” are entitled to take. “ ‘Petitioner, however, ‘presents a detailed ac- count of the history of the flause which was not before the Court in Frederickson v. State of Louisi- . ana, 23 How. (US) 445, -16L. Ed. 577, supra, and- which bears out the construction that it grants the foreign heir the right. to succeed to his in- heritance or the proceeds thereof. But we do not stop to review that history. For the consistent ju- dicial construction of the language since 1860 has given it a character. which the treaty-making agencies have not seen fit to alter: And that con- struction is entirely consistent with the plain lan- guage of the treaty. We therefore do not deem it appropriate to change that construction at this. late date, even though as an original matter the other view might have much to commend it. “We accordingly hold that Article IV. of the treaty does not cover personalty located in this country and which an American citizen undertakes to leave to German nationals. * * * “The Supreme Court of California also had be- fore it the provisions of Article II of the Treaty of 1881 in the Arbulich case, supra, which were there urged, as here, as applicable and controlling in favor of the appellant brother. Concerning this, Mr. Justice Schauer, who spoke for the cour’, stated: “ ‘Appellant contends, nevertheless, that the provisions of Article II ofa treaty entered into in 1881 between the United States and the Kingdom of Serbia, 22 Stat. 964, (of which the present Re- public of Yugoslavia is the successor government) ° ard certified by the Secretary of State of the United States as remaining in full forcé and ef- fect between this country and Yugoslavia, are ap- 7 % plicable and controlling in appellant's favor on the issue of reciprocity. It may be noted that the first paragraph of Article II seemingly treats only of “citizens of the United States in Serbia | Yugoslavia] and Serbian | Yugoslav| subjects in — the United States,” rather than, as is the situation in the present case, of a United States citizen- ’ who dies in the United States and leaves property - to a Yugoslav subject who is in Yugoslavia, and therefore is not here applicable. Even if we as- - sume its applicability in that respect, however, the rights granted are only those given by each of the contracting nations “to the subjects of the most favoured nation,” and do not purport to. equal the rights given or guaranteed by each of the contracting nations to its own citizens. Con- sequently the treaty provisions do not establish the reciprocal rights required by the Probate Code.’ 257 P. 2d at page 437. ‘In that holding, we find the California court, and we think rightly, following the pattern of inter- pretation accorded the German treaty before the United States ‘Supreme Court six years before in Clark v. Allen, supra. We take notice that a writ | of certiorari in Arbulich was denied by the Supreme. Court of the United States (Arbulich v. Arbulich, | 346 U.S. 897, 74 S. Ct. 219, 98 L. Ed. 398) and later _ a petition for leave to file a petition for rehearing was also denied (347 U.S. 908, 74 S. Ct. 426, 98 L. Ed. 1066). (a ; “If we correctly appraise the position of defend- ants, they would, notwithstanding the doctrine of Clark v. Allen, supra, have us interpret the words ‘in Serbia’ and ‘in the United States,’ as they appear in Article II of the Treaty of 1881, as referring to the place where property rights are granted rather than to the geographical location of the person claiming them. If thus construedthe provision would accord to the nationals of either party wherever resident rights ° , 8 similar to those enjoyed by nationals of the most favored nation wherever resident. But this we de- cline to do, being impressed that the construction given to the German Treaty in the Clark casé applies with. equal force to the Serbian Treaty of aaet, and | as also held in Arbulich’s» Estate.” rene to eliminate.any doubt that the Oregon court may have failed to give full consideration to the Bret-., ton Woods International Monetary Agreement, we again quote from In re Stoich’s Estate, — Or. —, 349 P.(2d) 255, 267, as follows: . “The protective solicitude by our legislature dem- onstrated by the provisions of ORS 111.070 in behalf of Oregon citizens is exténded to alien heirs residing in foreign countries who inherit in Oregon In short, the net result when observed, at least on the part of “the state of Oregon, brings ORS 111.070 more in har- mony. with the spirit of the international agreements as. contended for by defendants than their interpre- tation of those treaties demand. In effect, subsections (b) and (c) of $ (1) of that statute place local heirs and alien heirs on a parity by insuring to each the full measure of their respective inheritances. We deem both of these conditions a reasonable exercise , of legislative power, and‘in no sense trespassing upon any international treaty or agreement brought to'our attention, but to the contrary implementing the spirit, if not the letter, of such accords. “In arriving at our conclusions, we have given +. attention to the terms of what is commonly known as the Bretton Woods Agreement of 1944, cited by the defendants. Yugoslavia was one of the 44 participat- ing governments at the United Nations Monetary and Financial Conference of that year. Later, it became one of the signatories to the Articles of Agreement formulated. as the final act of the conference. The ° . ee ee 9 major features of the final document serie for establishment of the International Monetary Fund and of the International ‘Bank for Reconstruction and Development. It is common knowledge that the con- ference was‘ motivated by the then prevailing inter- . national apprehension world economy would suffer seriously as an aftermath of World War II unless:some devices -to stabilize it were quickly | undertaken by the world powers. This thought is clearly affirmed , by Article I of that agreement, wherein its con- — trolling purposes and objectives are stated. “The defendants, however, point to its.Art. XIV, $4 and Art. XI § 2, which provide sanctions against any member nation which imposes foreign exchange restrictions contrary to.the provisions of the agree- ment. Although not fully developed by defendants’ argument, the inference is that.a foreign exchange system of controls ahd‘regulations was established thereby which would nullify the restrictive character . - of.the Yugoslav Foreign: Exchange Law and imple- menting Regulations. The contrary is clearly evident from a reading of the entire agreement. It is replete with expressions recognizing the want of economic parity between the signing nations and the relative difficulties of some of the lesser natiOns in maintain- ing a sound monetary system, and definitely places them in an exceptional class. We turn for the mo- ment to one.of the very articles to which they. point. It is significantly captioned ‘Transitional Period.’ Secticn 2 of that article #8 subcaptioned ‘Exchange Restrictions.’ Its provisions. are spread in marginal note. “Article VIL, § 3(b) of the agreement is also to _the same tenor in recognizing that some nations will ‘find the need to ‘impose limitations on the freedom of exchange operations.’ “The Bretton Woods Agreement gives no support . _ to the thesis of defendants and, to the contrary, is _ in a large sense an international recognition that ? 10. some countries, rightly or wrongly, ‘would impose strictures such as are exemplified by the foreign ex- _ change laws of Yugoslavia and Bulgaria (see State Land Board v. Rogers, supra).” QUESTIONS In substance the questions presented by the petition for writ of certiorari appear to be: ae (1) Whether Article II of the Treaty of Commerce between the United States of America and Serbia con- cluded in 1881 applies to succession of property where a. ~ national of one country dies within the country of which le is a citizen and leaves property to a resident and national of the other country; and (2) Whether foreign exchange control laws imposed ot maintained by a foreign country consistently with the . International Monetary Fund Agreement preclude a state of the United States from giving effect to its law making the right of succession of nonresident alien heirs de- pendent upon the.right of American heirs to receive pay- ment within the United States of their foreign inherit- ances, ARGUMENT I : The construction of Article II of the Treaty of Com- merce between the United States-of America and Serbia eoncluded.in 1881 (22 Stat. 63) is governed by the case of Clark v. Allen, 331 U.S. 503, and related.cases. The treaty provision applies only to. citizens of the United a) \ ' States in Yugoslavia, or citizens of iene in the United States. It covers both the disposition and acquisi- tion of property by citizens of one country in the terri- tory of the other, but it does not apply to the nationals of either within their own country. Substantially the same question as the first was pre- ' sented to this court by the petition for writ of certiorari in Arbulich -v. Arbulich, 346 U.S. 897, 98 L. Ed. 398, 74S. Ct. 219; 247 U.S. 908, 98 L. Ed. 1066, 74 S. Ct. 426, in which one of counsel for petitioners here was 11 ~~, also of counsel for petitioner in that case. Both the writ. of certiorari and the later petition for leave to file a petition for rehearing were denied... | The case of Clark v. Allen, supra (331 U.S. 503), con- struing Article IV of the treaty’ between the United States and Germany (44 Stat. 2132), and such cases as Frederickson v. Louisiana, 23 How. (U.S.) 445 (Conyen- tion between the United States and Wurttemberg, 8 Stat. 588): Petersen v. Iowa, 245 U.S. 170 (Treaty between United States and Denmark, 8 Stat. 340, 11 Stat. 719); Duus v. Brown, 245 U.S. 176 (Swedish Treaty, 8 Stat. 60. 232, 346); and: Skarderud v. Tax Commission, 245 US. 633 (N xrwegian Treaty, 8 Stat. 66; 346), control the construction of the language used in ‘Article II of the - Yugoslavian. treaty. ' In Clark v:; Allen, supra (331 U.S. 503, 515-517), similarly as in the other cases — the court held the , treaty did not cover a situation where a citizen of one country residing at home disposes of his personal prop- erty there in favor of a citizen or subject of the other. 12 The court pointed out that rights of succession to prop- erty are governed by local law, except where there may | be some overriding federal policy such as a treaty, but that there was no treaty provision covering the right of succession to personal property. ———- a The text of. Article IV of the German treaty (44 Stat. _ 2132) construed in Clark v. ‘Allen, ee (331 U.S. 503) reads: “Nationals of either High Custiamian Petts may have full power to dispose ‘of their personal property _ of every kind within the territories of the other, by testament, donation, or otherwise, and their heirs, legatees and .donees, of whatsoever nationality, whether resident or non-resident, shall succeed to such personal property, and may take possession ._ thereof, either by themselves or by others acting for them,.and retain or dispose of the same at their pleasure subject to the payment of such duties or . charges only -as the nationals of the High Contract-': ing Party within whose territories such property may be or belong shall be liable to pay in like cases.’ (Emphasis supplied) Article II of the ————— treaty (22 Stat. 963) reads: “In all that concerns the right of ‘acquiring, pos- - sessing or disposing of every kind of property, real or personal, citizens of the United States in Serbia | Serbian subjects in the United States, shall en- joy the rights which the respective laws grant or shall grant in each of these states to the- ers of — the most-favored nation. ' “Within these limits, and under the same condi- tions as the subjects of the most favored nation, they - shall..be..at liberty to acquire and dispose. of such | property, whether by purchase, sale, donation, ex- a 13 . change, marriage contract, testament, inher itance, or in. any other manner whatever, without being sub- ' ject to any taxes, imposts or charges whatever, other or higher than those which-are or shall-be levied on natives or on the subjects of the most favored state. “They shall likewise be at liberty to export freely the proceeds of the sale. of their property, and their goods. in general, without being subjected to pay any other or higher duties than those payable under sirr- ilar circumstances by natives or by the subjects of the most favored state.” (Emphasis supplied) The word “national” (used in Article IV of the Ger- man treaty) has been defined as “A word commonly used in diplomatic language and in treaties to indicate a citizen or subject of a given country. a Bouvier's Law Dictionary (Rawle’s Third Revision). In this. sense the language “citizens of the United States in Serbia and _ Serbian subjects in the United States” used in the Ameri- can-Serbian treaty and “Nationals of either. High Con- tracting Party * * * within the territories of the other” in the German treaty considered in Clark v Allen, supra (331 U. S. 503), are indistinguishable in ‘meaning. The above emphasized language of the Yugoslavian. - treaty specifically designates and limits the class of. per- sons to whom the treaty applies. It covers both dis- position and acquisition of property by a citizen of the United States who may be in Yugoslavia or a citizen of . Yugoslavia whg may be in the United States, but it does not apply to nationals of either country within their | own territory. The word “they” in the second and third paragraphs of Article II can have no other antecedent 7 14 . ‘y : \ than thé’ words “citizens of-the United States in Serbia and Serbian subjects in the-United States.” Only “withii” these limits” may they (citizens of the United States iny ; Serbia | Yugoslavia] and Serbian | Yugoslavian| sub- jects in the United States) enjoy the privileges of ‘the - most favored nation ) \ * Language ofthis kind: has taken ¢ on a ined character and well established meaning. Clark ‘vy. Allen, supra (331 U.S. 503, 516). As shown by the above cited cases, a distinction in treaties between citizens and noncitizens within a country is normal and not uncommon. Treaties ~ are the subject of careful consideration before they are entered into and are drawn by persons. competent to ‘choose, apt words to express their meaning: Rocca v. -Thompson, 223 -U.S. 3]7, 332. A “most favored nation” clause is limited to such matters as are within the sub- ject matter of the particular treaty jin which it is con- tained: Lukich v. Department of Leber and Industries, 176 Wash. 221, 29 P. (2d) 388, 390. "hey . Siace the meaning of the language defining the class to whom Article II of ‘the Yugoslavian treaty and Ar- tic le IV of the German treaty apply is identical, Clark v. Allen governs the interpretation of Article II of the Yugoslavian treaty. | or r } The application of a treaty and its construction are : ' . the peculiar province of the judiciary and not matters of executive or, legislative determination. " The question whether a treaty of the United States is tobe construed. by. the ®xecutive branch of goverr-. - - « 15 ~ & “ment or otherwise has long since been answered by this court. In Jones v. Meehan,’ 175 US. 1, 32, this court said: > “x * \* The construction of treaties is the peculiar province of the judiciary; and, except in — cases purely political, Co ss ha¥ no cofistitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself. Wilson v> ‘Wall, 6 Wall. 83, 89, 18 L. ed. 727, 729; Reichart v. Felps, 6 Wall. 160, 18 L. ed. 849; Smith v. Stevens, ' 10 Wall. 321, 327, 19 L. ed. 983, 935; Holden v. Joy, 17 Wall. 211, 247, 21 L. ed. 523, 535.” (Emphasis © supplied) Q The application of ‘a treaty to a given case and its - construction are, as any other law, queStions for the courts: Hamilton. 0. Erie R2R-Co., 219 N.Y. 343, 114 N.E. 399,402. This principle in. relation ‘to the interpretation of a- a-treaty by the Stata Department and a representative of a ioreign country is expounded by Secretary of State . ‘Knox upon the request of the Mexicah Government for an aa of notes interpreting a provision of the ex- tradition treaty (V Hackworth, Digest of International" Law, 399) as follows: “The department regrets to say that. it deems it in- advisable to exchange notes in the sense proposed in your note, since even if the department did ex- change notes setting forth an understanding as sug- gested by you, such notes would not, so far‘ as the internal . affairs of this Government are concerned. have the ‘status either of a treaty or of a law, but ’ would be merely an executive interpretation of the ~~ and of the Federal statutes.. This would not be binding ‘ upon the courts of this. country, which t 16° might at any time disregard the agreement incor- porated in the notes, in which-case it would not be _ possible for the department to control their decision. * * KP « “The note of the. State tinainset of. April 24, 1958, interpreting Article II of the Yugoslavian treaty, re- ' ferred to at page 18 of the petition for certiorari (App. G, pp. 49a-53a of .Petition) is centrary to the interpre- tation of this court of similar language in the German treaty considered in Clarkv. Allen, supra (331 U.S. 503). However, the note itself concludes by recognizing that dit “is not to be considered as having the sharacter of an international agreement or as effecting any modifica- tion of the treaty.” aon | Whethér the construction placed upon the treaty by the executive. branch of government of a foreign country is binding is aptly discussed | in Ex parte Charlton, 185 - F. 880, 886 (aff’ . in 229.S. 447), in which it was said: ee ~ Undoubtedly, in view that treaties are made a o of the supreme law of the land by the Constitution which authorizes them, the courts are bound to construe such treaties as they are bound _ to construe any other law of the land when properly presented for interpretation, and, while the courts will give due consideration to the constriction placed upon a treaty by the executive or diplomatic branches _ of the government, yet upon the courts is placed the duty of acting independently, and to accept full re- . sponsibility in determining the construction that is to be-given to the treaties. And further,:ihasmuch as the treaty is by: the Constitution made. a law of the land, the construction placed upon some of its provisions by the departments of the foreign courftry + with wiom the treaty is made, executive, legislative, me ¢ ” = 17 | ss or judg. ‘is not contr lling. The fact that our courts’ interpr@fation of the true meaning of such provisians inay not be acquiesced in by the foreign government ‘is of no consequence when the question~is one of en- forcing such treaty provisions in this. country, and athe a person who is within its jurisdiction.” ~~ a. ‘Like ally other law or contract, a treaty must =“ construed atcording to its terms. Language contained in a treaty canfiot be rejected as surplusage nor can it be said to have been. inserted carelessly or inadvisedly. Foster v. Neilson, 2 Pet. (U.S.) 253, 308-309. The lan- . guage of Article II of the Yugoslavian treaty ‘becomes “stilted” only when the construction urged by petitioners is attempted to be applied. ae wosoe am. @ The construction and application of Article II of the Yugoslavian treaty is governed by this court’s construc- tion of Article I'V of the German treaty i in Clark v. Allen, ° 331 U.S. 503. nae : ae ‘ Because of cae similarity of language and identity of meaning of the language used in Article II of the Yugo- - slavian treaty and Article IV of the German.treaty con- strued in Clark v. Allen, supra (331 U.S. 503), the con- #. . struction placed on Article IV of the German treaty is likewise applicable to Article II -of the Yugoslavian treaty. tae Neither Spoya’s Estate, 129 Mont. 83, 282 P. (2d) 452, nor ,Ginn’s Estate, — Mont.-—, 347 P. (2d) 467 (Pet. for Cert., -p. 25), mention the treaty as the basis of. deci- § siop, and the unreported ‘case of Succession of Vlaho tee, ber _* (Pet. for Cert., p..25) was decided by the District Court for the Parish of Orleans (Pet. for Cert., App. H, p, 69a) . én the mistaken premise that the interpretation. of treaties was a political and not a judicial question. | Since a determination has already been made that language of similar import and meaning used in Article, IV of the German treaty applies only to nationals of one country, in the territory of the other and not to nationals of the respective countries living at home, such. pro- © ". “nouncement by this court is equally binding with re- "spect to Article ° II of the Yugoslavian treaty, and the. courts and executive and legislative branches of the states and the United States are bound accordingly. . IV ¥ The Bretton Woods Agreement (60 Stat..1401) does not support petitioners’ thesis that the United States by “becoming a member of the International Monetary Fund gave. acceptance to the Yugoslavian forei2n exchange control laws and that a state law requiring reciprocal rights of inheritance. is a forbidden entry -in matters of foreign affairs. The first point was answered by Justice Warner in In re Stoich’s. Estate, supra (— Or. —, 349 P- (2d) 255, 267-268), as follows: — - “The Bretton Woods atin gives no support “to the thesis of, defendants and; to the contrary, is in a large sense an international recognition ‘that some countries, rightly or wrongly, would impose strictures such as are exemplified by the foreign exchange laws of Yugoslavia and Bulgaria 1 ed *. : 19 The second point was answered by this court in Clark v. Allen, supra (331 U.S. 503, 516-517): ‘ “* * * The challenge to the statute is that it - is an extension of state power into the field of for- eign affairs, which is exclusively reserved by the Constitution to the Federal Government. That argu+ ment is based on the fact that under the statute the _ right of nonresident aliens to take by succession or istence of a reciprocal right on the part of citizens ° of the United States to take.personalty on the same terms and conditions as residents and citizens of the other nation. * * #* - “In Blythe v. Hinckley, 1 180 US 333, 45 Led 557, > 21 S Ct 390, California had granted aliens an un- a qualified right to inherit property within its. borders. The alien claimant was a citizen of Great Britain _with whom the United States had no treaty providing for inheritarfce. by aliens in this country. The argu- ment was that a grant of.rights to aliens by a State was, in absence of a treaty, a forbidden entry into * foreign affairs. The court rejected the argument as being an extraordinary one. The objection to the .present statute is: equally far fetched.” This issue raised by petitioners having already been ? authoritatively answered presents no new question for - review. . SUMMARY OF ARGUMENT The construction of Article I. of the Treaty of Com-_- merce between the United States of America and Serbia (22 Stat..963) is governed by this court’s interpretation of the similar provision in the German treaty construed in Clark v. Allen, 331 U.S. 503. It has long since been . o - ro _ testamentary disposition is dependent upon the ex- 20 ‘ laid down by this court that the construétion and appli- cation of treaties are matters for judicial and not execu- tive or legislative determination. Because of the similar- ity of language and import of meaning of Article II of the Yugoslavian treaty and Article IV of the German treaty, the courts of this country and the executive and _ legislative branches of government in their construction ° of this article of the Yugoslavian treaty are bound by the decision in Clark v. Allen, supra. Similarly also as decided in Clark v. Allen, statutes such as ORS 111.070. are not by reason of the Bretton Woods Agreement an invasion of the Federal Government’s authority in mat- ters of foreign policy and foreign affairs. CONCLUSION jus - For the reasons advanced the respondent oibuite that the petition for certiorari be denied. Respectfully submitted, ROBERT Y. THORNTON . Attorney General for Oregon ARTHUR GARFIELD HIGGS © * Assistant Attorney General Nie CATHERINE ZORN Agsistant Attorney Gina Attorneys for Respondent 21 APPENDIX A Oregon Revised Statutes 111.070 “(1) The right of an alien not residing within the. United States or its territories to take either real or per- ‘sonal property or the proceeds thereof. in this.state by “succession \or’ testamen disposition, upon the same terms and conditions as iphabitants and citizens of the United States, is depender\t in each case: “(a) Upon the existence of a reciprocal right upon the — part of citizens of the United States to take real and per- sonal property and the proceeds thereof upon the same terms and conditions as inhabitants and.citizens of the | country of which such alien is an inhabitant or citizen; “(b) Upon the rights of citizens of the United States - to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign country; and “(c) Upon proof that such foreign heirs, distributees, _ devisees or. legatees may receive the benefit use or control of money or property from estates of persons dying in this state without confiscation, in whole or in “part, by the governments.of:such foreign countries. “(2) The burden is upon such nonresident alien to establish the fact of existence of the reciprocal rights set forth in subsection (1) of this section. “(3) If.such reciprocal rights are not found to exist .and if no heir, devisee or legatee other than such alien is found eligible to take such property, the property shall be disposed of as escheated property.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0355%3A03. Public record. Not legal advice.