Writ of Certiorari Granted October 14, 1940. See 61 S.Ct. 51, 85 L.Ed. ___.
MILLER, Associate Justice.
The war between the United States and Germany was ended by a Joint Resolution of Congress on July 2, 1921;
On March 10, 1928, Congress enacted the Settlement of War Claims Act,
Pursuant to the executive agreement, the Commission was created, and an American Commissioner, a German Commissioner, and an Umpire were appointed. In 1927, there were filed with the Commission, by the agent for the United States, claims arising out of the destruction of property by reason of explosions, in 1916, at Black Tom, in New York Harbor, and at Kingsland, New Jersey, in 1917. On October 16, 1930, the Commission found that Germany was not responsible for the explosions and refused to allow the claims.
Petitions for rehearing of the Commission's order dismissing the claims were denied on March 30, 1931. On July 1st of that year a supplemental petition in the two cases was filed, together with new evidence; this was dismissed on December 3, 1932. A new petition was filed on May 4, 1933, to reopen the cases, for the reason, then for the first time alleged, that the decisions of 1930 and 1932 had been obtained by fraud and collusion. Conflicting opinions were expressed by the two
After an interval of a year, occasioned by Germany's request for postponement, witnesses were examined; additional evidence was filed by the agents of both governments; and, in January 1939, the cases were again argued at length before the full Commission. The American agent again requested that the cases be reopened and that the Commission render a final decision on the merits in favor of the United States. On January 27th, the hearings and arguments being concluded, the Commission took the case under advisement. In the deliberations of the Commission which followed, the Umpire and the American Commissioner each expressed the view that the Commission's decision of October 16, 1930, had been induced by fraud in the evidence presented by Germany. Thereupon, at the specific request of the German Commissioner, the Commission proceeded to determine whether, upon the whole record, there was sufficient proof of Germany's responsibility to justify setting aside the prior decision. On March 1, 1939, and during the course of the Commission's deliberation upon that question, the German Commissioner retired as a member of the Commission.
Thereafter, personal notice was given to the German agent of a further meeting of the Commission to be held on June 15, 1939. Following this notice, and prior to the date of the meeting, Germany stated, through announcements made both by its agent and its diplomatic representative, that it would ignore the meeting called. These representations and announcements were made a part of the record. On the day of the meeting, the Commission rendered a decision, setting aside its earlier decision of October 16, 1930, and reopening the cases. The American agent again moved that awards be granted in favor of the United States. The motion was granted and the Commission found that the liability of Germany, in both the Black Tom and Kingsland cases, had been established. It was ordered that awards be prepared and submitted to the Commission for its consideration at a further meeting to be held on notice.
Prior to October 30, 1939, personal notice was given to the German agent of a meeting of the Commission to be held on that date. At that time a thorough study was made by the Commission — absent the German Commissioner — of the records and proofs on file, and awards were made in favor of the United States in each of the 153 claims which are involved in this case.
Appellants, who were plaintiff and intervener-plaintiff in the court below, are beneficiaries under prior awards made by the Commission. They sought identical relief, i. e., for a judgment declaring:
(a) That the decision of the Mixed Claims Commission of October 16, 1930, is final and binding and that all proceedings purported to be had by said Commission or the aforesaid alleged Commission thereafter are null and void;
(b) That the said awards granted to the said Lehigh Valley Railroad Company, Agency of Canadian Car & Foundry Company, Limited, Bethlehem Steel Company, and others, be declared null and void;
(c) That the defendant, Cordell Hull, Secretary of State of the United States, be enjoined and restrained from certifying to the Secretary of the Treasury any and all alleged awards to claimants, Lehigh Valley Railroad Company, Agency of Canadian Car & Foundry Company, Limited, Bethlehem Steel Company, and others;
(d) That the Secretary of the Treasury be restrained and enjoined from paying the amount of any awards to the said claimants, Lehigh Valley Railroad Company, Agency of Canadian Car & Foundry Company, Limited, Bethlehem Steel Company, and others;
(e) That the said Cordell Hull and the said Henry Morgenthau be restrained therefrom during the pendency of this action.
(f) That the Secretary of the Treasury be directed to pay to the plaintiff and other holders of awards of the Mixed Claims Commission, other than the said sabotage claimants, the balance remaining in the German Special Deposit Account to the
(g) That the plaintiff be awarded the costs and disbursements of this action and such other and further relief in the premises as to the Court may seem proper.
The appellees, Hull and Morgenthau, moved to dismiss both the complaint and the bill of intervention upon the grounds that the lower court was without jurisdiction to review the action of the Mixed Claims Commission; to determine whether or not the Commission had jurisdiction to enter the awards of October 30, 1939; or to restrain and enjoin appellees Hull and Morgenthau from certifying and paying such awards. Appellee Lehigh Valley Railroad Company filed an answer, and also filed a motion for summary judgment dismissing the complaint and the bill of intervention. The court granted both the motion to dismiss the complaint, and the motion for summary judgment, and on January 6, 1940, entered judgment thereon. This appeal is from the order and judgment.
Appellants contend here, as they contended below, that (1) the Mixed Claims Commission was without jurisdiction to make the awards of October 30, 1939; (2) if payment is made, by the Secretary of the Treasury, of the amounts specified in the awards of October 30, 1939, it will exhaust the Special Deposit Fund, which is held by the Secretary of the Treasury for the payment of awards made by the Mixed Claims Commission;
Whatever may be the merits of the second and third contentions, the lower court was barred from giving consideration to them; for they, in turn, depend upon the first contention and, as it involves a political and not a judicial question, the court was without jurisdiction to hear or decide it.
It would be difficult to draw a clear line of demarcation between political and non-political questions,
Plaintiff-appellant, in attempting to maintain the jurisdiction of this court, and of the lower court, to determine the validity of the awards made by the Commission, relies upon Article III, Section 2, Clause 1 of the Constitution, which provides: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." But this argument fails to take account of the rule just stated, concerning political questions. It is of course elementary that treaties, together with the Constitution and laws made in pursuance thereof, constitute the supreme law of the land.
Thus, when the alleged controversies arising out of treaty relationships are political in nature they are not cases within the meaning of Article III of the Constitution and, consequently, are not subject to judicial determination. The distinction was clearly stated by the Supreme Court in the Head Money Cases:
A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that "this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land." A treaty,
And in Foster v. Neilson,
Since the case of Ware v. Hylton,
The situation is the same as it relates to executive agreements.
This is none the less true when the treaty or executive agreement provides, as was done in the present case, for a commission to settle the amounts of claims of citizens of the United States against the government of another nation. The compact is between the two governments; the citizens are not parties thereto;
Although an individual claimant may have a moral right to participate in an award, as a matter of strict legal or equitable right he has none, and Congress is under no legal or equitable obligation to pay any claim.
The present case, clearly, is not one of a domestic, non-political character. Appellants challenge the power and authority of the international Commission, attack the validity of its awards and seek to deny them effect. This is clearly revealed by the allegations of the complaint, as well as by the prayers for relief. While in paragraphs 8 and 9 it is alleged that "the said Commission thereupon duly granted five awards in favor of the said plaintiff," and, further, that other "numerous claimants * * * were duly granted awards by the said Commission * * *;" the rest of the complaint (paragraphs 11 to 31, inclusive) is devoted to challenging the existence, authority and actions of the Commission, the validity of the later awards, and the legality of the procedure which was followed.
In fact, the situation of the present case is clearly one of a continuing controversy between the United States and Germany although, paradoxically, neither government is a party to the present suit. Germany bound herself to pay to the United States, in full, awards made by the Mixed Claims Commission here involved. The fund established in the Treasury, and which is sought to be controlled in the present case, was set up for the purpose of paying awards thereafter to be made. To it Germany made substantial contributions. Into it were deposited amounts seized from German nationals, as well as property belonging to the German Government. If the amount of the fund shall be found insufficient to pay all awards, the German Government is solemnly bound to supply additional funds necessary for that purpose, and has provided bonds to guarantee such payment. In consideration of Germany's obligation above recited, the United States returned to German nationals eighty per cent of the funds and property seized by the government and originally held for the purpose of satisfying these claims.
The continuing interest of Germany in the controversy cannot well be denied. (1) If appellants are correct in their contention that the retirement of the German Commissioner blocked further action by the Mixed Claims Commission,
If there were any doubt as to the continuing
To these protests and accusations the Secretary of State replied: "I have entire confidence in the ability and integrity of the Umpire and the Commissioner appointed by the United States despite your severe and, I believe, entirely unwarranted criticisms, and I am constrained to invite your attention to the fact that the remarkable action of the Commissioner appointed by Germany was apparently designed to frustrate or postpone indefinitely the work of the Commission at a time when, after years of labor on the particular cases involved, it was expected that its functions would be brought to a conclusion." It requires no more than a recital of these exchanges between the governments of Germany and the United States to show that they bring the case clearly within the realm of political as distinguished from judicial questions.
The present case is clearly distinguishable, also, from the case of Republic of Colombia v. Cauca Co.,
In view of our determination, as set forth above, it is not necessary to consider any of the other assignments or questions presented.
"The President of the United States is intrusted with the right of conducting all negotiations with foreign governments and is the judge of the expediency of instituting, conducting, or terminating such negotiations in respect to claims against foreign governments." Russia v. National City Bank of New York, 2 Cir., 69 F.2d 44, 48. See United States ex rel. Holzendorf v. Hay, 20 App.D.C. 576, writ of error dismissed, 194 U.S. 373, 24 S.Ct. 681, 48 L.Ed. 1025. This was established at an early date in our constitutional history. In 1800, Marshall, addressing the House of Representatives, said: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." 10 Annals of Congress, 6th Cong., 1st sess. col. 613. In 1803, as Chief Justice of the United States, he said: "By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political: they respect the nation, not individual rights, and, being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived, by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president: he is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts." Marbury v. Madison, 1 Cranch 137, 165, 2 L.Ed. 60. See United States ex rel. Holzendorf v. Hay, supra, 20 App.D.C. at page 580.
In 1816, the Senate Committee on Foreign Relations reported: "The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospects of success. For his conduct he is responsible to the Constitution." Sen.Doc. No. 231, 56th Cong., 2d Sess. (1901) 24. And even though the Senate must ratify treaties in the field of negotiation that body cannot intrude, and Congress itself is powerless to invade it. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319, 57 S.Ct. 216, 81 L.Ed. 255.
For a discussion of rationalizations of the "political" question doctrine, see Clulow et al., Constitutional Objections to the Appointment of a Member of a Legislature to Judicial Office, 6 Geo. Wash.L.Rev. 46, at 59 et seq., particularly notes 67-69.
It is significant that questions arising under treaties and agreements have been submitted, from an early date, to the political branch of the government. Thus, Crandall, in his work on Treaties: Their Making and Enforcement (2d Ed. 1916) 369, 370, cites the following instances: "Under the Articles of Confederation, the Secretary for Foreign Affairs found it advisable to submit questions arising in the construction of treaties to the Congress. Under the Constitution, the Senate, a co-ordinate branch of the treaty-making power, has been consulted by the President upon such questions only in exceptional instances. On representations by the French government that certain acts of Congress, which imposed extra tonnage dues on foreign vessels and made no exception in favor of French vessels, contravened the fifth article of the treaty of 1778, President Washington submitted the question to the Senate for its consideration. The Senate advised as to the meaning of the article in a resolution adopted February 26, 1791. The Executive likewise submitted for the consideration of the Senate the question that arose in 1868 between this government and the Ottoman Porte as to the correct version of Article IV of the treaty of May 7, 1830, concerning the territorial exemption to be enjoyed by American citizens in Turkey. Instances are also to be found of the submission by the President to the Senate of awards of international commissions for its advice as to whether the commissioners have acted within their powers, i, e, interpreted correctly the convention under which they were appointed. The award of the commissioners, under the claims convention with Paraguay of February 4, 1859, was, for instance, communicated to the Senate for this purpose by President Buchanan, February 12, 1861. In the case of the recommendatory award of the King of the Netherlands, as arbitrator under the convention with Great Britain of September 29, 1927, for the determination of the northeastern boundary, the Senate, to which the question was submitted by President Jackson, advised that the award was not obligatory; and it was not so considered."