|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. JUSTICE DOUGLAS delivered the opinion of the Court.
This action was brought by the United States to recover the assets of the New York branch of the First Russian Insurance Co. which remained in the hands of respondent after the payment of all domestic creditors. The material allegations of the complaint were, in brief, as follows:
The First Russian Insurance Co., organized under the laws of the former Empire of Russia, established a New York branch in 1907. It deposited with the Superintendent of Insurance, pursuant to the laws of New York, certain assets to secure payment of claims resulting from transactions of its New York branch. By certain laws, decrees, enactments and orders, in 1918 and 1919, the Russian Government nationalized the business of insurance and all of the property, wherever situated, of all Russian insurance companies (including the First Russian [p211] Insurance Co.), and discharged and cancelled all the debts of such companies and the rights of all shareholders in all such property. The New York branch of the First Russian Insurance Co. continued to do business in New York until 1925. At that time, respondent, pursuant to an order of the Supreme Court of New York, took possession of its assets for a determination and report upon the claims of the policyholders and creditors in the United States. Thereafter, all claims of domestic creditors, i.e., all claims arising out of the business of the New York branch, were paid by respondent, leaving a balance in his hands of more than $1,000,000. In 1931, the New York Court of Appeals (255 N.Y. 415, 175 N.E. 114) directed respondent to dispose of that balance as follows: first, to pay claims of foreign creditors who had filed attachment prior to the commencement of the liquidation proceeding, and also such claims as were filed prior to the entry of the order on remittitur of that court, and second, to pay any surplus to a quorum of the board of directors of the company. Pursuant to that mandate, respondent proceeded with the liquidation of the claims of the foreign creditors. Some payments were made thereon. The major portion of the allowed claims, however, were not paid, a stay having been granted pending disposition of the claim of the United States. On November 16, 1933, the United States recognized the Union of Soviet Socialist Republics as the de jure Government of Russia, and, as an incident to that recognition, accepted an assignment (known as the Litvinov Assignment) of certain claims. [n1] The Litvinov Assignment was in the form of a letter, dated November 16, 1933, to the President of the United States from Maxim Litvinov, People's Commissar for Foreign Affairs, reading as follows: [p212]
Following our conversations, I have the honor to inform you that the Government of the Union of Soviet Socialist Republics agrees that, preparatory to a final settlement of the claims and counterclaims between the Governments of the Union of Soviet Socialist Republics and the United States of America and the claims of their nationals, the Government of the Union of Soviet Socialist Republics will not take any steps to enforce any decisions of courts or initiate any new litigations for the amounts admitted to be due or that may be found to be due it, as the successor of prior Governments of Russia, or otherwise, from American nationals, including corporations, companies, partnerships, or associations, and also the claim against the United States of the Russian Volunteer Fleet, now in litigation in the United States Court of Claims, and will not object to such amounts being assigned, and does hereby release and assign all such amounts to the Government of the United States, the Government of the Union of Soviet Socialist Republics to be duly notified in each case of any amount realized by the Government of the United States from such release and assignment.
The Government of the Union of Soviet Socialist Republics further agrees, preparatory to the settlement referred to above, not to make any claims with respect to:
(a) judgments rendered or that may be rendered by American courts insofar as they relate to property, or rights, or interests therein, in which the Union of Soviet Socialist Republics or its nationals may have had or may claim to have an interest; or,
(b) acts done or settlements made by or with the Government of the United States, or public officials in the United States, or its nationals, relating to property, credits, or obligations of any Government of Russia or nationals thereof.
This was acknowledged by the President on the same date. The acknowledgment, after setting forth the terms of the assignment, concluded: [p213]
I am glad to have these undertakings by your Government, and I shall be pleased to notify your Government in each case of any amount realized by the Government of the United States from the release and assignment to it of the amounts admitted to be due, or that may be found to be due, the Government of the Union of Soviet Socialist Republics, and of the amount that may be found to be due on the claim of the Russian Volunteer Fleet.
On November 14, 1934, the United States brought an action in the federal District Court for the Southern District of New York, seeking to recover the assets in the hands of respondent. This Court held, in United States v. Bank of New York & Trust Co., 296 U.S. 463, that the well settled "principles governing the convenient and orderly administration of justice require that the jurisdiction of the state court should be respected" (p. 480), and that, whatever might be "the effect of recognition" of the Russian Government, it did not terminate the state proceedings. P. 479. The United States was remitted to the state court for determination of its claim, no opinion being intimated on the merits. P. 481. The United States then moved for leave to intervene in the liquidation proceedings. Its motion was denied "without prejudice to the institution of the time-honored form of action." That order was affirmed on appeal.
Thereafter, the present suit was instituted in the Supreme Court of New York. The defendants, other than respondent, were certain designated policyholders and other creditors who had presented in the liquidation proceedings claims against the corporation. The complaint prayed, inter alia, that the United States be adjudged to be the sole and exclusive owner entitled to immediate possession of the entire surplus fund in the hands of the respondent.
Respondent's answer denied the allegations of the complaint that title to the funds in question passed to the [p214] United States and that the Russian decrees had the effect claimed. It also set forth various affirmative defenses -- that the order of distribution pursuant to the decree in 255 N.Y. 415, 175 N.E. 114, could not be affected by the Litvinov Assignment; that the Litvinov Assignment was unenforceable because it was conditioned upon a final settlement of claims and counterclaims which had not been accomplished; that, under Russian law, the nationalization decrees in question had no effect on property not factually taken into possession by the Russian Government prior to May 22, 1922; that the Russian decrees had no extraterritorial effect, according to Russian law; that, if the decrees were given extraterritorial effect, they were confiscatory, and their recognition would be unconstitutional and contrary to the public policy of the United States and of the State of New York, and that the United States, under the Litvinov Assignment, acted merely as a collection agency for the Russian Government, and hence was foreclosed from asserting any title to the property in question.
The answer was filed in March, 1938. In April, 1939, the New York Court of Appeals decided Moscow Fire Ins. Co. v. Banc of New York & Trust Co., 280 N.Y. 286, 20 N.E.2d 758. In May, 1939, respondent (but not the other defendants) moved, pursuant to Rule 113 of the Rules of the New York Civil Practice Act and § 476 of that Act, for an order dismissing the complaint and awarding summary judgment in favor of respondent "on the ground that there is no merit to the action, and that it is insufficient in law." The affidavit in support of the motion stated that there was "no dispute as to the facts"; that the separate defenses to the complaint "need not now be considered, for the complaint, standing alone, is insufficient in law"; that the facts in the Moscow case and the instant one, so far as material, were "parallel" and the Russian decrees [p215] the same, and that the Moscow case authoritatively settled the principles of law governing the instant one. The affidavit read in opposition to the motion stated that a petition for certiorari in the Moscow case was about to be filed in this Court; that the motion was premature, and should be denied, or decision thereon withheld pending the final decision of this Court. On June 29, 1939, the Supreme Court of New York granted the motion and dismissed the complaint "on the merits," citing only the Moscow case in support of its action. On September 2, 1939, a petition for certiorari in the Moscow case was filed in this Court. The judgment in that case was affirmed here by an equally divided Court. 309 U.S. 624. Subsequently, the Appellate Division of the Supreme Court of New York affirmed, without opinion, the order of dismissal in the instant case. The Court of Appeals affirmed with a per curiam opinion (284 N.Y. 555, 32 N.E.2d 552) which, after noting that the decision below was "in accord with the decision" in the Moscow case, stated:
Three of the judges of this court concurred in a forceful opinion dissenting from the court's decision in that case, but the decision left open no question which has been argued upon this appeal. We are agreed that, without again considering such questions, this court should, in determining title to assets of First Russian Insurance Company, deposited in this State, apply in this case the same rules of law which the court applied in the earlier case in determining title to the assets of Moscow Fire Insurance Company deposited here.
We granted the petition for certiorari because of the nature and public importance of the questions raised.
First. Respondent insists that the complaint in this action was identical in substance and sought the same relief as the petition of the United States in the Moscow case, and that his answer set up the same defenses as were successfully [p216] sustained against the United States by the defendants in that case. He also maintains that both parties agreed, on the motion for summary judgment, that the decision in the Moscow case governed this cause, leaving no issues to be tried. We agree with those contentions. It is in accord not only with the motion papers, but also with the ruling of the New York Court of Appeals that the Moscow case "left open no question which has been argued upon this appeal." In view of that ruling, we are not free to inquire, as petitioner suggests, into the propriety under New York practice of grounding the motion for summary judgment on the record in the Moscow case. That is distinctly a question of state law, on which New York has the last word.
But it does not follow, as respondent urges, that the writ should be dismissed as improvidently granted. The Moscow case is not res judicata, since respondent was not a party to that suit. Stone v. Farmers' Bank of Kentucky, 174 U.S. 409; Rudd v. Cornell, 171 N.Y. 114, 127-128, 63 N.E.2d 823; St. John v. Fowler, 229 N.Y. 270, 274, 128 N.E.199. Nor was our affirmance of the judgment in that case by an equally divided court an authoritative precedent. While it was conclusive and binding upon the parties as respects that controversy (Durant v. Essex Company, 7 Wall. 107), the lack of an agreement by a majority of the Court on the principles of law involved prevents it from being an authoritative determination for other cases. Hertz v. Woodman, 218 U.S. 205, 213-214.
The upshot of the matter is that we now reach the issues in the Moscow case insofar as they are embraced in the pleadings in this case. And there is no reason why we cannot take judicial notice of the record in this Court of the Moscow case. Bienville Water Supply Co. v. Mobile, 186 U.S. 212, 217; Dimmick v. Tompkins, 194 U.S. 540, 548; Freshman v. Atkins, 269 U.S. 121, 124. [p217]
Second. The New York Court of Appeals held in the Moscow case that the Russian decrees [n2] in question had no extraterritorial effect. If that is true, it is decisive of the present controversy. For the United States acquired, under the Litvinov Assignment, only such rights as Russia had. Guaranty Trust Co. v. United States, 304 U.S. 126, 143. If the Russian decrees left the New York assets of the Russian insurance companies unaffected, then Russia had nothing here to assign. But that question of foreign law is not to be determined exclusively by the state court. The claim of the United States based on the Litvinov Assignment raises a federal question. United States v. Belmont, 301 U.S. 324. This Court will review or independently determine all questions on which a federal right is necessarily dependent. United States v. Ansonia Brass & [p218] Copper Co., 218 U.S. 452, 462-463, 471; Ancient Egyptian Order v. Michaux, 279 U.S. 737, 744-745; Broad River Power Co. v. South Carolina, 281 U.S. 537, 540; Pierre v. Louisiana, 306 U.S. 354, 35. Here, title obtained under the Litvinov Assignment depends on a correct interpretation of Russian law. As in cases arising under the full faith and credit clause (Huntington v. Attrill, 146 U.S. 657, 684; Adam v. Saenger, 303 U.S. 59, 64), these questions of foreign law on which the asserted federal right is based are not peculiarly within the cognizance of the local courts. While deference will be given to the determination of the state court, its conclusion is not accepted as final.
We do not stop to review all the evidence in the voluminous record of the Moscow case bearing on the question of the extraterritorial effect of the Russian decrees of nationalization, except to note that the expert testimony tendered by the United States gave great credence to its position. Subsequently to the hearings in that case, however, the United States, through diplomatic channels, requested the Commissariat for Foreign Affairs of the Russian Government to obtain an official declaration by the Commissariat for Justice of the R.S.F.S.R. which would make clear, as a matter of Russian law, the intended effect of the Russian decrees [n3] nationalizing insurance companies [p219] upon the funds of such companies outside of Russia. The official declaration, dated November 28, 1937, reads as follows:
The People's Commissariat for Justice of the R.S.F.S.R. certifies that, by virtue of the laws of the organs of the Soviet Government all nationalized funds and property of [p220] former private enterprises and companies, in particular by virtue of the decree of November 28, 1918 (Collection of Laws of the R.S.F.S.R., 1918, No. 86, Article 904), the funds and property of former insurance companies, constitute the property of the State, irrespective of the nature of the property and irrespective of whether it was situated within the territorial limits of the R.S.F.S.R. or abroad.
The referee in the Moscow case found, and the evidence supported his finding, that the Commissariat for Justice has power to interpret existing Russian law. That being true, this official declaration is conclusive so far as the intended extraterritorial effect of the Russian decree is concerned. This official declaration was before the court below, though it was not a part of the record. It was tendered pursuant to § 391 of the New York Civil Practice Act, as amended by L.1933, c. 690. [n4] In New York, it would seem that foreign law must be found by the court (or in case of a jury trial, binding instructions must be [p221] given), though procedural considerations require it to be presented as a question of fact. Fitzpatrick v. International Railway Co., 252 N.Y. 127, 169 N.E. 112; Petroradsky M. K. Bank v. National City Bank, 253 N.Y. 23, 170 N.E. 479. And under § 391, as amended, it is clear that the New York appellate court has authority to consider appropriate decisions interpreting foreign law even though they are rendered subsequently to the trial. Los Angeles Investment Securities Corp. v. Joslyn, 282 N.Y. 438, 26 N.E.2d 968. We can take such notice of the foreign law as the New York court could have taken. [n5] Adam v. Saenger, supra. We conclude that this official declaration of Russian law was not only properly before the court on appeal, but also that it was embraced within those "written authorities" which § 391 authorizes the court to consider, even though not introduced in evidence on the trial. For, while it was not "printed," it would seem to be "other written law" of unquestioned authenticity and authority, within the meaning of § 391.
We hold that, so far as its intended effect [n6] is concerned, the Russian decree embraced the New York assets of the First Russian Insurance Co.
Third. The question of whether the decree should be given extraterritorial effect is, of course, a distinct matter. One primary issue raised in that connection is whether, under our constitutional system, New York law can be allowed to stand in the way.
The decision of the New York Court of Appeals in the Moscow case is unequivocal. It held that, "under the law of this State, such confiscatory decrees do not affect the property claimed here" (280 N.Y. 314, 20 N.E.2d 769); [p222] that the property of the New York branch acquired a "character of its own" which was "dependent" on the law of New York (p. 310); that no
rule of comity and no act of the United States government constrains this State to abandon any part of its control or to share it with a foreign State
(p. 310); that, although the Russian decree effected the death of the parent company, the situs of the property of the New York branch was in New York, and that no principle of law forces New York to forsake the method of distribution authorized in the earlier appeal (255 N.Y. 415, 175 N.E. 114) and to hold that
the method which in 1931 conformed to the exactions of justice and equity must be rejected because retroactively it has become unlawful
It is one thing to hold, as was done in Guaranty Trust Co. v. United States, supra, 304 U.S. at p. 142, that, under the Litvinov Assignment, the United States did not acquire "a right free of a preexisting infirmity," such as the running of the statute of limitations against the Russian Government, its assignor. Unlike the problem presented here and in the Moscow case, that holding in no way sanctions the asserted power of New York to deny enforcement of a claim under the Litvinov Assignment because of an overriding policy of the State which denies validity in New York of the Russian decrees on which the assigned claims rest. That power was denied New York in United States v. Belmont, supra, 301 U.S. 324. With one qualification, to be noted, the Belmont case is determinative of the present controversy.
That case involved the right of the United States under the Litvinov Assignment to recover, from a custodian or stakeholder in New York, funds which had been nationalized and appropriated by the Russian decrees.
This Court, speaking through Mr. Justice Sutherland, held that the conduct of foreign relations is committed by the Constitution to the political departments of the Federal [p223] Government; that the propriety of the exercise of that power is not open to judicial inquiry, and that recognition of a foreign sovereign conclusively binds the courts and "is retroactive, and validates all actions and conduct of the government so recognized from the commencement of its existence." 301 U.S. at p. 328. It further held (p. 330) that recognition of the Soviet Government, the establishment of diplomatic relations with it, and the Litvinov Assignment were "all parts of one transaction, resulting in an international compact between the two governments." After stating that, "in respect of what was done here, the Executive had authority to speak as the sole organ" of the national government, it added (p. 330):
The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty making clause of the Constitution (Art. II, § 2), require the advice and consent of the Senate.
It held (p. 331) that the
external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning.
And it added that "all international compacts and agreements" are to be treated with similar dignity, for the reason that
complete power over international affairs is in the national government, and is not and cannot be subject to any curtailment or interference on the part of the several states.
P. 331. This Court did not stop to inquire whether, in fact, there was any policy of New York which enforcement of the Litvinov Assignment would infringe, since "no state policy can prevail against the international compact here involved." P. 327.
The New York Court of Appeals, in the Moscow case (280 N.Y. 309, 20 N.E.2d 758), distinguished the Belmont case on the ground that it was decided on the sufficiency of the pleadings, the demurrer to the complaint admitting that, under the Russian decree, the property was confiscated by the Russian Government and then transferred [p224] to the United States under the Litvinov Assignment. But, as we have seen, the Russian decree in question was intended to have an extraterritorial effect, and to embrace funds of the kind which are here involved. Nor can there be any serious doubt that claims of the kind here in question were included in the Litvinov Assignment. [n7] It is broad and inclusive. It should be interpreted [p225] consonantly with the purpose of the compact to eliminate all possible sources of friction between these two great nations. See Tucker v. Alexandroff, 183 U.S. 424, 437; Jordan v. Tashiro, 278 U.S. 123, 127. Strict construction would run counter to that national policy. For, as we shall see, the existence of unpaid claims against Russia and its nationals, which were held in this country and which the Litvinov Assignment was intended to secure, had long been one impediment to resumption of friendly relations between these two great powers. [p226]
The holding in the Belmont case is therefore determinative of the present controversy unless the stake of the foreign creditors in this liquidation proceeding and the provision which New York has provided for their protection call for a different result.
Fourth. The Belmont case forecloses any relief to the Russian corporation. For this Court held in that case (301 U.S. at p. 332):
. . . our Constitution, laws and policies have no extraterritorial operation, unless in respect of our own citizens. . . . What another country has done in the way of taking over property of its nationals, and especially of its corporations, is not a matter for judicial consideration here. Such nationals must look to their own government for any redress to which they may be entitled.
But it is urged that different considerations apply in case of the foreign creditors [n8] to whom the New York Court of Appeals (255 N.Y. 415, 175 N.E. 114) ordered distribution of these funds. The argument is that their rights in these funds have vested by virtue of the New York decree; that to deprive them of the property would violate the Fifth Amendment, which extends its protection to aliens as well as to citizens, and that the Litvinov Assignment cannot deprive New York of its power to administer the balance of the fund in accordance with its laws for the benefit of these creditors.
At the outset, it should be noted that, so far as appears, all creditors whose claims arose out of dealings with the New York branch have been paid. Thus, we are not faced with the question whether New York's policy of protecting [p227] the so-called local creditors by giving them priority in the assets deposited with the State (Matter of People, 242 N.Y. 148, 15159, 151 N.E. 159) should be recognized within the rule of Clark v. Williard, 294 U.S. 211, or should yield to the Federal policy expressed in the international compact or agreement. Santovincenzo v. Egan, 284 U.S. 30, 40; United States v. Belmont, supra. We intimate no opinion on that question. The contest here is between the United States and creditors of the Russian corporation who, we assume, are not citizens of this country and whose claims did not arise out of transactions with the New York branch. The United States is seeking to protect not only claims which it holds, but also claims of its nationals. H.Rep. No. 865, 76th Cong., 1st Sess. Such claims did not arise out of transactions with this Russian corporation; they are, however, claims against Russia or its nationals. The existence of such claims and their nonpayment had for years been one of the barriers to recognition of the Soviet regime by the Executive Department. Graham, Russian-American Relations, 1917-1933: An Interpretation, 28 Am.Pol.Sci.Rev. 387; 1 Hackworth, Digest of International Law (1940), pp. 302-304. The purpose of the discussions leading to the policy of recognition was to resolve "all questions outstanding" between the two nations. Establishment of Diplomatic Relations with the Union of Soviet Socialist Republics, Dept. of State, Eastern European Series, No. 1 (1933), p. 1. Settlement of all American claims against Russia was one method of removing some of the prior objections to recognition based on the Soviet policy of nationalization. The Litvinov Assignment was not only part and parcel of the new policy of recognition (id., p. 13), it was also the method adopted by the Executive Department for alleviating in this country the rigors of nationalization. Congress tacitly recognized that policy. Acting in anti [p228] Assignment (H.Rep. No. 865, 76th Cong., 1st Sess.), it authorized the appointment of a Commissioner to determine the claims of American nationals against the Soviet Government. Joint Resolution of August 4, 1939, 53 Stat. 1199.
If the President had the power to determine the policy which was to govern the question of recognition, then the Fifth Amendment does not stand in the way of giving full force and effect to the Litvinov Assignment. To be sure, aliens as well as citizens are entitled to the protection of the Fifth Amendment. Russian Volunteer Fleet v. United States, 282 U.S. 481. A State is not precluded, however, by the Fourteenth Amendment from according priority to local creditors as against creditors who are nationals of foreign countries and whose claims arose abroad. Disconto Gesellschaft v. Umbreit, 208 U.S. 570. By the same token, the Federal Government is not barred by the Fifth Amendment from securing for itself and our nationals priority against such creditors. And it matters not that the procedure adopted by the Federal Government is globular, and involves a regrouping of assets. There is no Constitutional reason why this Government need act as the collection agent for nationals of other countries when it takes steps to protect itself or its own nationals on external debts. There is no reason why it may not, through such devices as the Litvinov Assignment, make itself and its nationals whole from assets here before it permits such assets to go abroad in satisfaction of claims of aliens made elsewhere and not incurred in connection with business conducted in this country. The fact that New York has marshaled the claims of the foreign creditors here involved and authorized their payment does not give them immunity from that general rule.
If the priority had been accorded American claims by treaty with Russia, there would be no doubt as to its validity. Cf. Santovincenzo v. Egan, supra. The same result [p229] obtains here. The powers of the President in the conduct of foreign relations included the power, without consent of the Senate, to determine the public policy of the United States with respect to the Russian nationalization decrees.
What government is to be regarded here as representative of a foreign sovereign state is a political, rather than a judicial, question, and is to be determined by the political department of the government.
Guaranty Trust Co. v. United States, supra, 304 U.S. at p. 137. That authority is not limited to a determination of the government to be recognized. It includes the power to determine the policy which is to govern the question of recognition. Objections to the underlying policy, as well as objections to recognition, are to be addressed to the political department, and not to the courts. See Guaranty Trust Co. v. United States, supra, p. 138; Kennett v. Chambers, 14 How. 38, 50-51. As we have noted, this Court in the Belmont case recognized that the Litvinov Assignment was an international compact which did not require the participation of the Senate. It stated (301 U.S. pp. 330-331):
There are many such compacts, of which a protocol, a modus vivendi, & postal convention, and agreements like that now under consideration are illustrations.
And see Monaco v. Mississippi, 292 U.S. 313, 331; United States v. Curtiss-Wright Corp., 299 U.S. 304, 318. Recognition is not always absolute; it is sometimes conditional. 1 Moore, International Law Digest (1906), pp. 73-74; 1 Hackworth, Digest of International Law (1940), pp. 192-195. Power to remove such obstacles to full recognition as settlement of claims of our nationals (Levitan, Executive Agreements, 35 Ill.L.Rev. 365, 382-385) certainly is a modest implied power of the President, who is the "sole organ of the federal government in the field of international relations." United States v. Curtiss-Wright Corp., supra, p. 320. Effectiveness in handling the delicate problems of foreign relations requires no less. Unless [p230] such a power exists, the power of recognition might be thwarted or seriously diluted. No such obstacle can be placed in the way of rehabilitation of relations between this country and another nation unless the historic conception of the powers and responsibilities of the President in the conduct of foreign affairs (see Moore, Treaties and Executive Agreements, 20 Pol.Sci.Q. 385, 403-417) is to be drastically revised. It was the judgment of the political department that full recognition of the Soviet Government required the settlement of all outstanding problems, including the claims of our nationals. Recognition and the Litvinov Assignment were interdependent. We would usurp the executive function if we held that that decision was not final and conclusive in the courts.
All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature, . . .
The Federalist, No. 64. A treaty is a "Law of the Land" under the supremacy clause (Art. VI, Cl. 2) of the Constitution. Such international compacts and agreements as the Litvinov Assignment have a similar dignity. United States v. Belmont, supra, 301 U.S. at p. 331. See Corwin, The President, Office & Powers (1940), pp. 228-240.
It is, of course, true that even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States of this nation unless clearly necessary to effectuate the national policy. Guaranty Trust Co. v. United States, supra, p. 143 and cases cited. For example, in Todok v. Union State Bank, 281 U.S. 449, this Court took pains in its construction of a treaty, relating to the power of an alien to dispose of property in this country, not to invalidate the provisions of state law governing such dispositions. Frequently, the obligation of a treaty will be dependent on state law. Prevost v. Greneaux, 19 How. 1. But state [p231] law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement. See Nielsen v. Johnson, 279 U.S. 47. Then, the power of a State to refuse enforcement of rights based on foreign law which runs counter to the public policy of the forum (Griffin v. McCoach, 313 U.S. 498, 506) must give way before the superior Federal policy evidenced by a treaty or international compact or agreement. Santovincenzo v. Egan, supra, 284 U.S. 30; United States v. Belmont, supra.
Enforcement of New York's policy as formulated by the Moscow case would collide with and subtract from the Federal policy whether it was premised on the absence of extraterritorial effect of the Russian decrees, the conception of the New York branch as a distinct juristic personality, or disapproval by New York of the Russian program of nationalization. [n9] For the Moscow case refuses to give effect or recognition in New York to acts of the Soviet Government which the United States, by its policy of recognition, agreed no longer to question. Enforcement of such state policies would indeed tend to restore some of the precise impediments to friendly relations which the President intended to remove on inauguration of the policy of recognition of the Soviet Government. In the [p232] first place, such action by New York, no matter what gloss be given it, amounts to official disapproval or nonrecognition of the nationalization program of the Soviet Government. That disapproval or nonrecognition is in the face of a disavowal by the United States of any official concern with that program. It is in the face of the underlying policy adopted by the United States when it recognized the Soviet Government. In the second place, to the extent that the action of the State in refusing enforcement of the Litvinov Assignment results in reduction or nonpayment of claims of our nationals, it helps keep alive one source of friction which the policy of recognition intended to remove. Thus, the action of New York tends to restore some of the precise irritants which had long affected the relations between these two great nations and which the policy of recognition was designed to eliminate.
We recently stated in Hines v. Davidowitz, 312 U.S. 52, 68, that the field which affects international relations is
the one aspect of our government that, from the first, has been most generally conceded imperatively to demand broad national authority,
and that any state power which may exist "is restricted to the narrowest of limits." There, we were dealing with the question as to whether a state statute regulating aliens survived a similar federal statute. We held that it did not. Here, we are dealing with an exclusive federal function. If state laws and policies did not yield before the exercise of the external powers of the United States, then our foreign policy might be thwarted. These are delicate matters. If state action could defeat or alter our foreign policy, serious consequences might ensue. The nation as a whole would be held to answer if a State created difficulties with a foreign power. Cf. Chy Lung v. Freeman, 92 U.S. 275, 279-280. Certainly, the conditions for "enduring friendship" between the nations, which the policy of recognition in this instance was designed [p233] to effectuate, [n10] are not likely to flourish where, contrary to national policy, a lingering atmosphere of hostility is created by state action.
Such considerations underlie the principle of Oetjen v. Central Leather Co., 246 U.S. 297, 302-303, that, when a revolutionary government is recognized as a de jure government,
such recognition is retroactive in effect, and validates all the actions and conduct of the government so recognized from the commencement of its existence.
They also explain the rule expressed in Underhill v. Hernandez, 168 U.S. 250, 252, that "the courts of one country will not sit in judgment on the acts of the government of another done within its own territory."
The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would "imperil the amicable relations between governments and vex the peace of nations." Oetjen v. Central Leather Co., supra, p. 304. It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government had diligently endeavored to establish.
We repeat that there are limitations on the sovereignty of the States. No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to state laws or state policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting [p234] within its constitutional sphere, seeks enforcement of its foreign policy in the courts. For such reasons, Mr. Justice Sutherland stated in United States v. Belmont, supra, 301 U.S. at p. 331,
In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear. As to such purposes, the State of New York does not exist.
We hold that the right to the funds or property in question became vested in the Soviet Government as the successor to the First Russian Insurance Co.; that this right has passed to the United States under the Litvinov Assignment, and that the United States is entitled to the property as against the corporation and the foreign creditors.
The judgment is reversed, and the cause is remanded to the Supreme Court of New York for proceedings not inconsistent with this opinion.
MR. JUSTICE REED and MR. JUSTICE JACKSON did not participate in the consideration or decision of this case.
1. See Establishment of Diplomatic Relations with the Union of Soviet Socialist Republics, Dept. of State, Eastern European Series, No. 1 (1933) for the various documents pertaining to recognition.
2. The three decrees on which the United States placed primary emphasis (apart from the one set forth in note 3, infra) were described in the findings of the referee in the Moscow case as follows:
88. The decree of November 18, 1919, on the annulment of life insurance contracts abolished insurance of life in all its forms in the Republic and annulled all contracts with insurance companies and savings banks with respect to the insurance of life, capital and income.
89. The decree of the Soviet of People's Commissars dated March 4, 1919, on the liquidation of obligations of State enterprises, provided that stock certificates and shares of joint stock companies, whose enterprises have been either nationalized or sequestered, are annulled and also provided that such enterprises are free from the payment of all debts to private persons and enterprises which have arisen prior to the nationalization of these enterprises, including payments on bond loans with the exception only of wages due to workers and employees.
90. The decree of the Soviet of People's Commissars dated June 28, 1918, provides in Article I that the commercial and industrial enterprises enumerated therein, which are located within the boundaries of the Soviet Republic, together with all their capital and property, regardless of what the latter may consist, are declared the property of the Republic.
3. Relevant portions of the Insurance Decree dated November 28, 1918, translated in accordance with the findings of the referee in the Moscow case, are:
603. On the organization of the insurance business in the Russian Republic.
(1) Insurance in all its forms, such as: fire insurance, insurance on shipments, life insurance, accident insurance, hail insurance, livestock insurance, insurance against failure of crops, etc. is hereby proclaimed as a State monopoly.
Note. Mutual insurance of movable goods and merchandise by the cooperative organizations is conducted on a special basis.
(2) All private insurance companies and organizations (stock and share holding, also mutual) upon issuance of this decree are subject to liquidation; former rural* (People's Soviet) and municipal mutual insurance organizations operating within the boundaries of the Russian Republic are hereby proclaimed the property of the Russian Socialist Federated Soviet Republic.
(3) For the immediate organization of the insurance business and for the liquidation of parts of insurance institutions, which have become the property of the Russian Socialist Federated Soviet Republic, a Commission is established under the Supreme Soviet of National Economy, consisting of representatives of the Supreme Soviet of National Economy, the People's Commissariats of Commerce and Industry, Interior Affairs, the Commissar of Insurance and Fire Prevention, Finances, Labor, and State Control, and of Soviet Insurance Organizations (People's Soviet and Municipal Mutual).
Note. The same commission is charged with the liquidating of private insurance organizations, all property and assets of which, remaining on hand after their liquidation, shall become the property of the Russian Socialist Federated Soviet Republic.
(4) The above-mentioned reorganization and liquidation of existing insurance organizations and institutions shall be accomplished not later than the first day of April, 1919.
* * * *
(8) The present decree comes into force on the day of its publication.
The referee in the Moscow case found that, upon publication of this decree, all Russian insurance companies were prohibited from engaging in the insurance business in Russia; that they became subject to liquidation and were dissolved; that all of their assets in Russia became the property of the State; that, on publication of the decree, the directors of the companies lost all power to act as directors or conservators of the property, or to represent the companies in any way, and that the Russian Government became the statutory successor and domiciliary liquidator of companies whose property was nationalized.
4. That section reads:
A printed copy of a statute, or other written law, of another state, or of a territory, or of a foreign country, or a printed copy of a proclamation, edict, decree or ordinance, by the executive power thereof, contained in a book or publication purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the judicial tribunals thereof, is presumptive evidence of the statute, law, proclamation, edict, decree or ordinance. The unwritten or common law of another state, or of a territory, or of a foreign country, may be proved as a fact by oral evidence. The books of reports of cases adjudged in the courts thereof must also be admitted as presumptive evidence of the unwritten or common law thereof. The law of such state or territory or foreign country is to be determined by the court or referee and included in the findings of the court or referee or charged to the jury, as the case may be. Such finding or charge is subject to review on appeal. In determining such law, neither the trial court nor any appellate court shall be limited to the evidence produced on the trial by the parties, but may consult any of the written authorities above named in this section, with the same force and effect as if the same had been admitted in evidence.
5. Hence, the denial of the motion of the United States to certify the official declaration as part of the record of the Moscow case in this Court (281 N.Y. 818, 24 N.E.2d 487) would seem immaterial to our right to consult it.
6. See also note 7, infra.
7. A clarification of the Litvinov Assignment was made in an exchange of letters between the American Charge d'Affaires and the People's Commissar for Foreign Affairs on January 7, 1937. The letter of the former read:
I have the honor to inform you that it is the understanding of the Government of the United States that the Government of the Union of Soviet Socialist Republics considers that, by and upon the formation of the Union of Soviet Socialist Republics and the adoption of the Constitution of 1923 of the Union of Soviet Socialist Republics, the Union of Soviet Socialist Republics acquired the right to dispose of the property, rights, or interests therein located abroad of all corporations and companies which had theretofore been nationalized by decrees of the constituent republics or their predecessors.
The Government of the United States further understands that it was the purpose and intention of the Government of the Union of Soviet Socialist Republics to assign to the Government of the United States, among other amounts, all the amounts admitted to be due or that may be found to be due not only the Union of Soviet Socialist Republics, but also the constituent republics of the Union of Soviet Socialist Republics or their predecessors from American nationals, including corporations, companies, partnerships, or associations, and also the claim against the United States of the Russian Volunteer Fleet, in litigation in the United States Court of Claims, and that the Government of the Union of Soviet Socialist Republics did release and assign all such amounts to the Government of the United States by virtue of the note addressed by you to the President of the United States on November 16, 1933.
Will you be good enough to confirm the understanding which the Government of the United States has in this matter concerning the law of the Russian Socialist Federated Soviet Republic, the Constitution and laws of the Union of Soviet Socialist Republics, and the intention and purpose of the Government of the Union of Soviet Socialist Republics in the above-mentioned assignment?
The reply of the People's Commissar for Foreign Affairs was:
In reply to your note of January 7, 1937, I have the honor to inform you that the Government of the Union of Soviet Socialist Republics considers that, by and upon the formation of the Union of Soviet Socialist Republics and the adoption of the Constitution of 1923 of the Union of Soviet Socialist Republics, the Union of Soviet Socialist Republics acquired the right to dispose of the property, rights, or interests therein located abroad of all corporations and companies which had theretofore been nationalized by decrees of the constituent republics or their predecessors.
You are further informed that it was the purpose and intention of the Government of the Union of Soviet Socialist Republics to assign to the Government of the United States, among other amounts, all the amounts admitted to be due or that may be found to be due not only the Union of Soviet Socialist Republics, but also the constituent republics of the Union of Soviet Socialist Republics or their predecessors from American nationals, including corporations, companies, partnerships, or associations, and also the claim against the United States of the Russian Volunteer Fleet, in litigation in the United States Court of Claims, and that the Government of the Union of Soviet Socialist Republics did release and assign all such amounts to the Government of the United States by virtue of the note addressed by me to the President of the United States on November 16, 1933.
I have the honor, therefore, to confirm the understanding, as expressed in your note of January 7, 1937, which the Government of the United States has in this matter concerning the law of the Russian Socialist Federated Soviet Republic, the Constitution and laws of the Union of Soviet Socialist Republics, and the intention and purpose of the Government of the Union of Soviet Socialist Republics in the above-mentioned assignment.
8. In view of the disposition which we make of this case, we express no view on whether these creditors would be barred from asserting their claims here by virtue of the ruling in Canada Southern Ry. Co. v. Gebhard, 109 U.S. 527, 538, that
anything done at the legal home of the corporation, under the authority of such laws, which discharges it from liability there, discharges it everywhere.
9. In this connection, it should be noted that § 977(b) of the New York Civil Practice Act provides for the appointment of a receiver to liquidate local assets of a foreign corporation where, inter alia, it has been dissolved, liquidated, or nationalized. Subdivision 19 of that section provides in part:
. . . such liquidation, dissolution, nationalization, expiration of its existence, or repeal, suspension, revocation or annulment of its charter or organic law in the country of its domicile, or any confiscatory law or decree thereof, shall not be deemed to have any extraterritorial effect or validity as to the property, tangible or intangible, debts, demands or choses in action of such corporation within the state or any debts or obligations owing to such corporation from persons, firms or corporations residing, sojourning or doing business in the state.
10. Establishment of Diplomatic Relation with the Union of Soviet Socialist Republic, supra, note 1, p. 20.