Kolovrat v. Oregon

PETITIONER: Kolovrat
RESPONDENT: Oregon
LOCATION: Annette Islands, Alaska

DOCKET NO.: 102
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 366 US 187 (1961)
ARGUED: Mar 30, 1961
DECIDED: May 01, 1961

Facts of the case

Question

Media for Kolovrat v. Oregon

Audio Transcription for Oral Argument - March 30, 1961 in Kolovrat v. Oregon

Earl Warren:

Number 102, Andja Kolovrat et al., Petitioners, versus Oregon.

Mr. Lesser --

Lawrence S. Lesser:

Mr. Chief Justice, may it please it the Court.

This matter is here on certiorari to the Supreme Court of Oregon.

Notwithstanding the provisions of Article II of an 1881 convention for facilitating and developing commercial relations between the United States and Serbia, which the court below recognized as being in effect between the United States and Yugoslavia, the court below declared a decree to intestate estates as (Inaudible) on the ground that the decedents' next of kin, the petitioners here, being citizens and residents of Yugoslavia were not entitled to inherit under Section 1 (b) of Oregon's reciprocity statute so called, for the reason that the court found, and erroneously we would suggest, that remittances to the United States of the distributive shares of American beneficiaries of Yugoslavia States was subject to the foreign exchange controls that Yugoslavia maintains under the International Monetary Fund Agreement to which the United States and Yugoslavia and some 66 other nations are parties.

Now, Article II of the 1881 convention, reciprocally grants to citizens of each country, most favored nation rights to acquire, to possess and to dispose of real and personal property, situated in the other country and specifically to acquire and dispose of such of property whether by purchase, sale, testament, inheritance or in any other manner whatever.

Now in consequence of an 1853 Treaty between the United States and the Argentine and a 1923 Treaty between Yugoslavia and Poland, these most favored nation rights have become national rights, that is that the citizens of each country are entitled in these respects to the rights of the citizens of the other.

Now, the court below recognized that if the petitioners were entitled to the rights granted by Article II of the Convention, the Oregon reciprocity statute under which they were held, disqualified to inherit would be inapplicable.

However, the court below construed Article II of the Convention as granting rights only to Yugoslavs who are within the United States and by necessary implication only to Americans who are in Yugoslavia.

Now, so far as concerns, the specific language of the convention, we think that the Secretary of State in construing this provision, put it succinctly when he said that the question is whether the words, in Serbia and in the United States as used in the convention, are to be treated as adjectival, that is as modifying citizens of the United States and Serbian subjects respectively or whether they are to be treated as advertent, that is as modifying (Inaudible).

Now on the face of it, the language of the convention is --

William O. Douglas:

Is that -- is that in Article II?

Lawrence S. Lesser:

That's Article II, Your Honor.

Now on the face it, the language of the convention is susceptible to the interpretation that the court below put upon it, but only on the face of it and only if the convention's express purpose of facilitating and developing commercial relations between the two countries is completely disregarded.

The inescapable consequence of the interpretation of the court below would be to defeat every objective of the Treaty, necessary to the achievement of its ultimate purpose and to defeat that purpose itself.

For example, under the construction of the court below, if a merchant in one country wanted to buy or sell goods in the other, he would have no treaty right to acquire, to possess or to dispose of such goods or indeed of the money and credits that would be involved in such a sale.

Nor if such a merchant engaged in a transaction of that kind, would he have any treaty guarantee that in the event of his death, the funds and credits and goods that he accumulated in the other country, would descend to his next of kin, who remained at home.

Furthermore, merchants in one country would have no treaty right to the -- to access to the courts of the other, in the event of dispute, nor would there be any treaty protection, whatsoever, against discriminatory practices in relation to the taxation, customs or any other of the multitude of matters affecting trade and commerce and with respect to which the convention purports to think.

And what's more, the goods and credits of the merchants of one country that were in the other would not be exempted from forced loans or military exactions or requisitions as the convention provides.

Now, when -- bear in mind that commerce between countries is and has been typically conducted by merchants (Inaudible), who stay at home themselves and do business abroad by mail and cable or by traveling salesmen or traveling buyers.

The construction of the court below would leave the convention a slim read, if read at all, for facilitating the -- and developing commercial relations between the two countries, but the court below took no such considerations into account and it expressly refused to give any weight whatsoever, to the Secretary of State's carefully considered construction of the convention communicated to and concurred in by Yugoslavia that Article II grants to the citizens of each of country whatever they might be, the right to acquire by inheritance or otherwise, property located in the other and the right freely to possess and dispose of property located in the other.

Nor did the court below give any weight whatsoever to what we consider the most compelling circumstance that the United States had fully relied on the convention so construed to protect all American property rights in Yugoslavia when it negotiated and concluded the Yugoslav Claims Settlement Agreement in 1948, that Yugoslavia had acquiesced in that construction and that the construction adopted by the court below would necessarily result in American property and American property rights in Yugoslavia being wholly without treaty protection except for such property and property rights as belonging to the few Americans that can be found in Yugoslavia.

Felix Frankfurter:

But where is -- where is the exchange between Yugoslavia and the United States in the settlement in 1948?

Lawrence S. Lesser:

The -- the exchange sir, I --

Felix Frankfurter:

What the -- I understood from you, there was an exchange whereby the 1883 was interpreted in the settlement made by the 1948 --

Lawrence S. Lesser:

Well, it's in the -- it's in the treaty -- it's -- it's in the agreement of 1948 itself, Your Honor.

Felix Frankfurter:

Alright, well, just point directly please.

Lawrence S. Lesser:

That is set out on page 32 --

Felix Frankfurter:

Of your brief?

Lawrence S. Lesser:

-- of -- of my brief, the provision.