|United States v. Pink
284 N.Y. 555, 32 N.E.2d 552, reversed.
[ Douglas ]
[ Frankfurter ]
[ Stone ]
United States v. Pink
CERTIORARI TO THE SUPREME COURT OF NEW YORK
MR. CHIEF JUSTICE STONE, dissenting:
I think the judgment should be affirmed.
As my brethren are content to rest their decision on the authority of the dictum in United States v. Belmont, 301 U.S. 324, without the aid of any pertinent decision of this Court, I think a word should be said of the authority and reasoning of the Belmont case and of the principles which I think are controlling here.
In the Belmont case, the United States brought suit in the federal court to recover a debt alleged to be due upon a deposit account of a Russian national with a New York banker. The complaint set up the confiscation of the account by decrees of the Soviet Government and the transfer of the debt to the United States by the Litvinov assignment, concurrently with our diplomatic recognition of that Government. It was not alleged, nor did it appear, that the New York courts had, subsequent to recognition, refused to give effect to the Soviet decrees as operating to transfer the title of Russian nationals to property located in New York. No such national or any adverse claimant was a party to the suit. In sustaining the complaint against demurrer, this Court said (p. 332):
In so holding, [p243] we deal only with the case as now presented and with the parties now before us. We do not consider the status of adverse claims, if there be any, of others not parties to this action. And nothing we have said is to be construed as foreclosing the assertion of any such claim to the fund involved, by intervention or other appropriate proceeding. We decide only that the complaint alleges facts sufficient to constitute a cause of action against the respondents.
The questions thus explicitly reserved are presented by the case now before us. The courts of New York, in the exercise of the constitutional authority ordinarily possessed by state courts to declare the rules of law applicable to property located within their territorial limits, have refused to recognize the Soviet decrees as depriving creditors and other claimants representing the interests of the insurance company of their rights under New York law. Numerous individual creditors and other claimants, and the New York Superintendent of Insurance, who represents all claimants, are parties to the present suit and assert their claims to the exclusion of the United States.
It is true that this Court, in the Belmont case, indulged in some remarks as to the effect on New York law of our diplomatic recognition of the Soviet Government and of the assignment of all its claims against American nationals to the United States. Upon the basis of these observations, it thought that the New York courts were bound to recognize and apply the Soviet decrees to property which was located in New York when the decrees were promulgated. But all this was predicated upon the mistaken assumption that, by disregarding the decrees, the New York courts would be giving an extraterritorial effect to New York law. These observations were irrelevant to the decision there announced, and, for reasons shortly to be given, I think plainly inapplicable here. They were but obiter dicta which, so far as they have not been discredited by [p244] our decision in Guaranty Trust Co. v. United States, 304 U.S. 126, and so far as they now merit it "may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision." Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 399; Mr. Justice Sutherland, in Williams v. United States, 289 U.S. 553, 568.
We have no concern here with the wisdom of the rules of law which the New York courts have adopted in this case or their consonance with the most enlightened principles of jurisprudence. State questions do not become federal questions because they are difficult or because we may think that the state courts have given wrong answers to them. The only questions before us are whether New York has constitutional authority to adopt its own rules of law defining rights in property located in the state, and, if so, whether that authority has been curtailed by the exercise of a superior federal power by recognition of the Soviet Government and acceptance of its assignment to the United States of claims against American nationals, including the New York property.
I shall state my grounds for thinking that the pronouncements in the Belmont case, on which the Court relies for the answer to these questions, are without the support of reason or accepted principles of law. No one doubts that the Soviet decrees are the acts of the government of the Russian state, which is sovereign in its own territory, and that, in consequence of our recognition of that government, they will be so treated by our State Department. As such, when they affect property which was located in Russia at the time of their promulgation, they are subject to inquiry, if at all, only through our State Department, and not in our courts. Underhill v. Hernandez, 168 U.S. 250; Oetjen v. Central Leather Co., 246 U.S. 297; Ricaud v. American Metal Co., 246 U.S. 304, 3010; Salimoff & Co. v. Standard Oil Co., 262 N.Y. 220, [p245] 186 N.E. 679. But the property to which the New York judgment relates has at all relevant times been in New York in the custody of the Superintendent of Insurance as security for the policies of the insurance company, and is now in the Superintendent's custody as Liquidator acting under the direction of the New York courts. United States v. Bank of New York Co., 296 U.S. 463, 478-479. In administering and distributing the property thus within their control, the New York courts are free to apply their own rules of law, including their own doctrines of conflict of laws, see Erie R. Co. v. Tompkins, 304 U.S. 64, 78; Griffin v. McCoach, 313 U.S. 498; Kryger v. Wilson, 242 U.S. 171, 176, except insofar as they are subject to the requirements of the full faith and credit clause -- a clause applicable only to the judgments and public acts of states of the Union, and not those of foreign states. Aetna Life Insurance Co. v. Tremblay, 223 U.S. 185; cf. Bank of Augusta v. Earle, 13 Pet. 519, 589-590; Bond v. Hume, 243 U.S. 15, 21-22.
This Court has repeatedly decided that the extent to which a state court will follow the rules of law of a recognized foreign country in preference to its own is wholly a matter of comity, and that, in the absence of relevant treaty obligations, the application in the courts of a state of its own rules of law, rather than those of a foreign country, raises no federal question. Rose v. Himely, 4 Cranch 241; Harrison v. Sterry, 5 Cranch 289; United States v. Crosby, 7 Cranch 115; Oakey v. Bennett, 11 How. 33, 43-46; Hilton v. Guyot, 159 U.S. 113, 165-66; Disconto Gesellschaft v. Umbreit, 208 U.S. 570; cf. Baglin v. Cusenier Co., 221 U.S. 580, 594-597; United States v. Guaranty Trust Co., 293 U.S. 340, 345-347. This is equally the case when a state of the Union refuses to apply the law of a sister state, if there is no question of full faith and credit, Kryger v. Wilson, supra; Finney v. Guy, 189 U.S. 335, 340, 346; Alropa Corp. v. Kirchwehm, 313 U.S. 549; see Milwaukee County [p246] v. White Co., 296 U.S. 268, 272-273, or due process, Home Ins. Co. v. Dick, 281 U.S. 397. So clearly was this thought to be an appropriate exercise of the power of a forum over property within its territorial jurisdiction that this Court, in Ingenohl v. Olsen & Co., 273 U.S. 541, 544-545, accepted as beyond all doubt the right of the British courts in Hong Kong to refuse recognition to the American alien property custodian's transfer of exclusive rights to the use of a trademark in Hong Kong, and the Court gave effect here to the Hong Kong judgment.
In the application of this doctrine, this Court has often held that a state, following its own law and policy, may refuse to give effect to a transfer made elsewhere of property which is within its own territorial limits. Green v. Van Buskirk, 5 Wall. 307, 311-312; Hervey v. Rhode Island Locomotive Works, 93 U.S. 664; Security Trust Co. v. Dodd, Mead & Co., 173 U.S. 624; Clark v. Williard, 292 U.S. 112, 122; Clark v. Williard, 294 U.S. 211. So far is a state free in this respect that the full faith and credit clause does not preclude the attachment by local creditors of the property within the state of a foreign corporation, all of whose property has been previously transferred in the state of its incorporation to a statutory successor for the benefit of creditors. Clark v. Williard, supra; Fischer v. American United Life Ins. Co., 314 U.S. 549. Due process under the Fifth Amendment, the benefits of which extend to alien friends as well as to citizens, Russian Volunteer Fleet v. United States, 282 U.S. 481, does not call for any different conclusion. Disconto Gesellschaft v. Umbreit, supra, 579-580.
At least since 1797, Barclay v. Russell, 3 Vesey, Jr., 424, 428, 433, the English courts have consistently held that foreign confiscatory decrees do not operate to transfer title to property located in England, even if the decrees were so intended, whether the foreign government has or has not been recognized by the British Government. Lecouturier [p247] v. Rey,  A.C. 262, 265. Cf. also Folliott v. Oden, 1 H. Black. 123, 135-36, affirmed 3 T. R. 726, affirmed, 4 Brown's Cases in Parl., 111, and Wolff v. Oxholm, 6 M. & S. 92, both of which may have carried the doctrine of nonrecognition of foreign confiscatory decrees even further. See Holdsworth, The History of Acts of State in English Law, 41 Columbia L.Rev. 1313, 1325-1326. The English courts have applied this rule in litigation arising out of the Russian decrees, holding that they are not effectual to transfer title to property situated in Great Britain. Sedgwick Collins & Co. v. Rossia Insurance Co.,  1 K.B. 1, 15, affirmed,  A.C. 95; The Jupiter (No. 3),  P. 122, 144-46, affirmed,  P. 250, 253-55; In re Russian Bank for Foreign Trade,  1 Ch. 745, 767-768. The same doctrine has prevailed in the case of the Spanish confiscatory decrees, Banco de Vizcaya v. Don Alfonso,  1 K.B. 140, 144-145, as well as with respect to seizures by the American alien property custodian. Sutherland v. Administrator of German Property,  1 K.B. 423, and see the decision of the British court for Hong Kong discussed in Ingenohl v. Olsen & Co., supra, and the Privy Council's decision in Ingenohl v. Wing On & Co., 44 Patents Journal 343, 359-360. In no case in which there was occasion to decide the question has recognition been thought to have subordinated the law of the forum, with respect to property situated within its territorial jurisdiction, to that of the recognized state. Never has the forum's refusal to follow foreign transfers of title to such property been considered inconsistent with the most friendly relations with the recognized foreign government, or even with an active military alliance at the time of the transfer.
It is plain that, under New York law, the claimants in this case, both creditors and those asserting rights of the insurance company, have enforceable rights, with respect to the property located there, which have been recognized [p248] though not created by the judgments of its courts. The conclusion is inescapable that, had there been no assignment and this suit had been maintained by the Soviet Government subsequent to recognition, or by a private individual claiming under an assignment from it, the decision of the New York court would have presented no question reviewable here.
The only question remaining is whether the circumstances in the present case, that the Russian decrees preceded recognition and that the assignment was to the United States, which here appears in the role of plaintiff, call for any different result. If they do, then recognition and the assignment have operated to give to the United States rights which its assignor did not have. They have compelled the state to surrender its own rules of law applicable to property within its limits, and to substitute rules of Russian law for them. A potency would thus be attributed to the recognition and assignment which is lacking to the full faith and credit clause of the Constitution. See Clark v. Williard, supra; Fischer v. American United Life Ins. Co., supra.
In deciding any federal question involved, it can make no difference to us whether New York has chosen to express its public policy by statute or merely by the common law determinations of its courts. Erie R. Co. v. Tompkins, supra, 304 U.S. 64; Skiriotes v. Florida, 313 U.S. 69, 79; Hebert v. Louisiana, 272 U.S. 312, 316. The state court's repeated declaration of a policy of treating the New York branch of the insurance company as a "complete and separate organization" would permit satisfaction of whatever claims of foreign creditors, as well as those of sister states, that New York deems provable against the local fund. But if my brethren are correct in concluding that all foreign creditors must be deprived of access to the fund, it would seem to follow -- since the Soviet decrees have exempted no class of creditors -- that the rights of [p249] creditors in New York or in sister states, or any other rights in the property recognized by New York law, must equally be ousted by virtue of the extraterritorial effect given to the decrees by the present decision. For statutory priorities of New York policyholders or New York lienholders, and the common law priorities and system of distribution which the judgment below endeavored to effectuate and preserve intact, must alike yield to the superior force said to have been imparted to the Soviet decrees by the recognition and assignment. Nothing in the Litvinov assignment or in the negotiations for recognition suggests an intention to impose upon the states discriminations between New York and other creditors which would sustain the former's liens while obliterating those of the latter. If the Litvinov assignment overrides state policies which protect foreign creditors, it can hardly be thought to do less to domestic creditors, whether of New York or a sister state.
I assume for present purposes that these sweeping alterations of the rights of states and of persons could be achieved by treaty or even executive agreement, although we are referred to no authority which would sustain such an exercise of power as is said to have been exerted here by mere assignment unratified by the Senate. It is true that, in according recognition and in establishing friendly relations with a foreign country, this Government speaks for all the forty-eight states. But it was never true that recognition alters the substantive law of any state or prescribes uniform state law for the nationals of the recognized country. On the contrary, it does not even secure for them equality of treatment in the several states, or equal treatment with citizens in any state, save as the Constitution demands it. Patsone v. Pennsylvania, 232 U.S. 138; Terrace v. Thompson, 263 U.S. 197; Clarke v. Deckebach, 274 U.S. 392, and cases cited. Those are ends which can be achieved only by the assumption of some [p250] form of obligation expressed or fairly to be inferred from its words.
Recognition, like treaty making, is a political act, and both may be upon terms and conditions. But that fact no more forecloses this Court, where it is called upon to adjudicate private rights, from inquiry as to what those terms and conditions are than it precludes, in like circumstances, a court's ascertaining the true scope and meaning of a treaty. Of course, the national power may, by appropriate constitutional means, override the power of states and the rights of individuals. But, without collision between them, there is no such loss of power or impairment of rights, and it cannot be known whether state law and private rights collide with political acts expressed in treaties or executive agreements until their respective boundaries are defined.
It would seem, therefore, that in deciding this case, some inquiry should have been made to ascertain what public policy or binding rule of conduct with respect to state power and individual rights has been proclaimed by the recognition of the Soviet Government and the assignment of its claims to the United States. The mere act of recognition and the bare transfer of the claims of the Soviet Government to the United States can, of themselves, hardly be taken to have any such effect, and they can be regarded as intended to do so only if that purpose is made evident by their terms, read in the light of diplomatic exchanges between the two countries and of the surrounding circumstances. Even when courts deal with the language of diplomacy, some foundation must be laid for inferring an obligation where previously there was none, and some expression must be found in the conduct of foreign relations which fairly indicates an intention to assume it. Otherwise, courts, rather than the executive, may shape and define foreign policy which the executive has not adopted. [p251]
We are not pointed to anything on the face of the documents or in the diplomatic correspondence which even suggests that the United States was to be placed in a better position, with respect to the claim which it now asserts, than was the Soviet Government and nationals. Nor is there any intimation in them that recognition was to give to prior public acts of the Soviet Government any greater extraterritorial effect than attaches to such acts occurring after recognition -- acts which, by the common understanding of English and American courts, are ordinarily deemed to be without extraterritorial force, and which, in any event, have never before been considered to restrict the power of the states to apply their own rules of law to foreign-owned property within their territory. As we decided in Guaranty Trust Co. v. United States, supra, 304 U.S. at 143, and as the opinion of the Court now appears to concede, there is nothing in any of the relevant documents
to suggest that the United States was to acquire or exert any greater rights than its transferor or that the President, by mere executive action, purported or intended to alter or diminish the rights of the [New York] debtor with respect to any assigned claims, or that the United States, as assignee, is to do more than the Soviet Government could have done after diplomatic recognition -- that is, collect the claims in conformity to local law.
Recognition opens our courts to the recognized government and its nationals, see Guaranty Trust Co. v. United States, supra, 140. It accepts the acts of that government within its own territory as the acts of the sovereign, including its acts as a de facto government before recognition, see Underhill v. Hernandez, supra, 168 U.S. 250; Oetjen v. Central Leather Co., supra, 246 U.S. 297; Ricaud v. American Metal Co., supra, 246 U.S. 304. But, until now, recognition of a foreign government by this Government has never been thought to serve as a full faith and [p252] credit clause compelling obedience here to the laws and public acts of the recognized government with respect to property and transactions in this country. One could as well argue that, by the Soviet Government's recognition of our own Government, which accompanied the transactions now under consideration, it had undertaken to apply in Russia the New York law applicable to Russian property in New York. Cf. Ingenohl v. Olsen & Co., supra, 273 U.S. 541; Pacific Ins. Co. v. Industrial Comm'n, 306 U.S. 493, 501-502.
In Guaranty Trust Co. v. United States, supra, this Court unanimously rejected the contention that the recognition of the Soviet Government operated to curtail or impair rights derived from the application of state laws and policy within the state's own territory. It was argued by the Government that recognition operated retroactively, for the period of the de facto government, to set aside rights acquired in the United States in consequence of this Government's prior recognition of the Russian Provisional Government. This argument, we said, p. 140,
ignores the distinction between the effect of our recognition of a foreign government with respect to its acts within its own territory prior to recognition, and the effect upon previous transactions consummated here between its predecessor and our own nationals. The one operates only to validate to a limited extent acts of a de facto government which, by virtue of the recognition, has become a government de jure. But it does not follow that recognition renders of no effect transactions here with a prior recognized government in conformity to the declared policy of our own Government.
Even though the two governments might have stipulated for alteration by this Government of its municipal law, and the consequent surrender of the rights of individuals, the substance of the Court's decision was that such an abdication of domestic law and policy is not a necessary or customary incident [p253] of recognition, or fairly to be inferred from it. No more can recognition be said to imply a deprivation of the constitutional rights of states of the Union, and of individuals arising out of their laws and policy, which are binding on the Federal Government except as the act of recognition is accompanied by some affirmative exercise of federal power which purports to set them aside.
Nor can I find in the surrounding circumstances or in the history of the diplomatic relations of the two countries any basis for saying that there was any policy of either to give a different or larger effect to recognition and the assignment than would ordinarily attach to them. It is significant that the account of the negotiations published by the State Department (Establishment of Diplomatic Relations with the Union of Soviet Socialist Republics, Eastern European Series No. 1), and the report of subsequent negotiations for adjustment of the claims of the two countries submitted to Congress by the Secretary of State (H.Rep. No. 865, 76th Cong., 1st Sess.) give no intimation of such a policy. Even the diplomatic correspondence between the two countries, of January 7, 1937, to which the opinion of the Court refers, and which occurred long after the United States had entered the Moscow Fire Insurance Company litigation, merely repeated the language of the assignment without suggesting that its purpose had been to override applicable state law.
That the assignment after recognition had wide scope for application without reading into it any attempt to set aside our local laws and rights accruing under them is evident. It was not limited in its application to property alleged to be confiscated under the Soviet decrees. Included in the assignment, by its terms, were all
amounts admitted to be due or that may be found to be due it [the Soviet Government], as the successor of prior Governments of Russia, or otherwise, from American nationals.
It included claims of the prior governments of [p254] Russia, not arising out of confiscatory decrees, and also claims like that of the Russian Volunteer Fleet, growing out of our own expropriation during the war of the property of Russian nationals. The assignment was far from an idle ceremony if treated as transferring only the rights which it purports to assign. Large sums of money have already been collected under it, and other amounts are in process of collection, without overturning the law of the states where the claims have been asserted. [*]
At the time of the assignment, it was not known what position the courts of this country would take with respect to property here claimed to have been confiscated by the Soviet decrees. But it must have been known to the two governments that the English courts, notwithstanding British recognition of the Soviet Government, had refused to apply the Soviet decrees as affecting property located in England. Sedgwick Collins & Co. v. Rossia Insurance Co., supra; The Jupiter (No. 3), supra; In re Russian Bank for Foreign Trade, supra. It must also have been known that the similar views expressed by the New York courts before recognition with respect to property situated in New York raised at least a strong possibility that mere recognition would not alter the result in that state. Sokoloff v. National City Bank, 239 N.Y. 158, .167-69, 145 N.E. 917; James & Co. v. Second Russian Ins. Co., 239 N.Y. 248, 257, 146 N.E. 369; Joint Stock Co. v. National City Bank, 240 N.Y. 368, 148 N.E. 552; Petrogradsky M. K. Bank v. National City Bank, 253 N.Y. 23, 29, 170 N.E. 479. The assignment plainly contemplated that this, like every other question affecting liability, was to be litigated in the courts of this country, since the [p255] assignment only purported to assign amounts admitted to be due or "that may be found to be due." It was only in the courts where the debtor or the property was located that the amounts assigned would normally be "found to be due." Cf. United States v. Bank of New York Co., supra, 296 U.S. 463.
By transferring claims of every kind, against American nationals, to the United States and leaving to it their collection, the parties necessarily remitted to the courts of this country the determination of the amounts due upon this Government's undertaking to report the amounts collected as "preparatory to a final settlement of the claims and counterclaims" asserted by the two governments. They thus ended the necessity of diplomatic discussion of the validity of the claims, and so removed a probable source of friction between the two countries. In all this, I can find no hint that the rule of decision in American courts were not to be those afforded by the law customarily applied in those courts. But if it was the purpose of either government to override local law and policy of the states and to prescribe a different rule of decision from that hitherto recognized by any court, it would seem to have been both natural and needful to have expressed it in some form of undertaking indicating such an intention. The only obligation to be found in the assignment and its acknowledgment by the President is that of the United States, already mentioned, to report the amounts collected. This can hardly be said to be an undertaking to strike down valid defenses to the assigned claims. Treaties, to say nothing of executive agreements and assignments which are mere transfers of rights, have hitherto been construed not to override state law or policy unless it is reasonably evident from their language that such was the intention. Guaranty Trust Co. v. United States, supra, 304 U.S. at 143; Todok v. Union State Bank, 281 U.S. 449, 454; Rocca v. Thompson, 223 U.S. 317, 329-334; Disconto [p256] Gesellschaft v. Umbreit, supra, 208 U.S. at 582; Pearl Assurance Co. v. Harrington, 38 F.Supp. 411, 413-14; affirmed, 313 U.S. 549; Patsone v. Pennsylvania, 232 U.S. 138, 145-146; cf. Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, 568, 576-577. The practical consequences of the present decision would seem to be, in every case of recognition of a foreign government, to foist upon the executive the responsibility for subordinating domestic to foreign law in conflicts cases, whether intended or not, unless such a purpose is affirmatively disclaimed.
Under our dual system of government, there are many circumstances in which the legislative and executive branches of the national government may, by affirmative action expressing its policy, enlarge the exercise of federal authority, and thus diminish the power which otherwise might be exercised by the states. It is indispensable to the orderly administration of the system that such alteration of powers and the consequent impairment of state and private rights should not turn on conceptions of policy which, if ever entertained by the only branch of the government authorized to adopt it, has been left unexpressed. It is not for this Court to adopt policy the making of which has been by the Constitution committed to other branches of the government. It is not its function to supply a policy where none has been declared or defined, and none can be inferred.
MR. JUSTICE ROBERTS joins in this opinion.
* By June 30, 1938, the sums collected by virtue of the Litvinov assignment amounted to $1,706,443. Report of the Attorney General for 1938, p. 122. Other claims are apparently still in litigation. See the Report for 1939, p. 99; also H.Rep. No. 865, 76th Cong., 1st Sess., p. 2.