State v. Reardon

• Decision Date: 10 April 1926
• Docket Number: 26,501
• Citation: 120 Kan. 614,245 P. 158
• Parties: THE STATE OF KANSAS, ex rel. GEORGE D. MINER, County Attorney of Ellsworth County, Appellee, v. JAMES REARDON, as Administrator, etc., et al., Appellants
• Court: Kansas Supreme Court

245 P. 158

120 Kan. 614

THE STATE OF KANSAS, ex rel. GEORGE D. MINER, County Attorney of Ellsworth County, Appellee, v. JAMES REARDON, as Administrator, etc., et al., Appellants

No. 26,501

Supreme Court of Kansas

April 10, 1926

Decided January, 1926.

Appeal from Ellsworth district court; DALLAS GROVER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TREATIES--Suspension or Annulment by Declaration of War--Provision Permitting Inheritance. A declaration of war between the parties to a treaty does not of itself suspend or annul a provision therein permitting land in one country to be inherited by a citizen of the other.

2. SAME--Notification of Revival--Provisions Affected. A treaty concerning a reciprocal privilege of inheritance made between this country and a German state, being of a character compatible with war and therefore not affected by it, was not abrogated by the omission of the United States to give notification of its revival in accordance with the procedure outlined in the treaty of Versailles and adopted in the treaty between the United States and Germany signed August 25, 1921, and proclaimed November 14, 1921.

Ira E Lloyd, Norris F. Nourse, both of Ellsworth, and G. Detjen, of St. Louis, Mo., for the appellants.

Charles B. Griffith, attorney-general, Roland Boynton, assistant attorney-general, George D. Miner, county attorney, and Samuel E. Bartlett, of Ellsworth, for the appellee.

OPINION

MASON, J.:

Adam Leitzbach, a citizen of the United States residing in Ellsworth county, died intestate October 15, 1924, owning land in that county, and leaving no relations except such as were aliens, being citizens of Germany residing in Prussia. The state brought this action against these relations asking to be adjudged the owner of the land for the benefit of the school fund, on the ground that being aliens they were incapable of inheriting it, there being no statute qualifying them. (Johnson v. Olson, 92 Kan. 819, 142 P. 256.) The relations answered alleging in substance that they were entitled to sell the land and withdraw the proceeds within a reasonable time under the provisions of article 14 of the treaty between the United States and Prussia negotiated in 1828 and proclaimed March 14, 1829. A demurrer to the answer was sustained and this appeal is taken from that ruling.

The state contends that the treaty referred to ceased to be effective by reason of the war between the United States and Germany, or if not, then that consequence resulted from the omission of the United States to take affirmative steps to revive it or keep it in force after the ratification of the treaty with Germany proclaimed November 14, 1921.

1. In upholding the right of a subject of Austria-Hungary to inherit (that is, to sell within a limited time) land of an intestate who died December 7, 1917, twenty days after war was declared between the United States and that country, the court of appeals of New York held without dissent (although one judge limited his concurrence to the result) that the portion of a treaty permitting the inheritance (or its equivalent) by a citizen of one of the nations of land in the other is not annulled by war between them. (Techt v. Hughes, 229 N.Y. 222, 128 N.E. 185.) The federal supreme court denied a petition for a writ of certiorari. (254 U.S. 643.) The treaty there involved was that of 1848, which extended privileges granted by and was to that extent supplementary to that of 1829, which described itself as one of commerce and navigation. In the opinion, written by Judge Cardozo, it was said:

"The effect of war upon the existing treaties of belligerents is one of the unsettled problems of the law. . . . This does not mean, of course, that there are not some classes of treaties about which there is general agreement. Treaties of alliance fall. Treaties of boundary or cession, 'dispositive' or 'transitory' conventions, survive. . . . So, of course, do treaties which regulate the conduct of hostilities. . . . Intention in such circumstances is clear. These instances do not represent distinct and final principles. They are illustrations of the same principle. They are applications of a standard. When I ask what that principle or standard is, and endeavor to extract it from the long chapters in the books, I get this, and nothing more, that provisions compatible with a state of hostilities, unless expressly terminated, will be enforced, and those incompatible rejected.

. . . .

"I do not overlook the statements which may be found here and there in the works of authors of distinction . . . that treaties of commerce and navigation are to be ranked in the class of treaties which war abrogates or at least suspends. Commerce is friendly intercourse. Friendly intercourse between nations is impossible in war. Therefore, treaties regulating such intercourse are not operative in war. But stipulations do not touch commerce because they happen to be embodied in a treaty which is styled one to regulate or encourage commerce. . . . There is a line of division, fundamental in importance, which separates stipulations touching commerce between nations from those touching the tenure of land within the territories of nations. . . . Restrictions upon ownership of land by aliens have a history all their own, unrelated altogether to restrictions upon trade. . . . When removed, they cease to exist for enemies as well as friends, unless the statute removing them enforces a distinction. . . . More than that, the removal, when effected by treaty, gives reciprocal privileges to the subjects of each state, and is thus of value to one side as much as to the other. For this reason, the inference is a strong one, as was pointed out by the master of the rolls in Sutton v. Sutton (1 Russ. & M. 664, 675) that the privileges, unless expressly revoked, are intended to endure. . . .

"No one can study the vague and wavering statements of treaties and decisions in this field of international law with any feeling of assurance at the end that he has chosen the right path. One looks in vain either for uniformity of doctrine or for scientific accuracy of exposition. There are wise cautions for the statesman. There are few precepts for the judge. All the more, in this uncertainty, I am impelled to the belief that until the political departments have acted, the courts, in refusing to give effect to treaties, should limit their refusal to the needs of the occasion; that they are not bound by any rigid formula to nullify the whole or nothing; and that in determining whether this treaty survived the coming of war, they are free to make choice of the conclusion which shall seem the most in keeping with the traditions of the law, the policy of the statutes, the dictates of fair dealing, and the honor of the nation." (pp. 240-247.)

In a note to the case quoted from (11 A. L. R. 180) considerations are suggested tending to support the contrary view, but the editor adds (p. 182) that the tendency appears to be toward a limitation of the general principle that treaties are annulled by a war arising between the contracting parties.

It is too clear for controversy that not all treaties are annulled by a state of war. A treaty which establishes a permanent status--such, for instance, as one fixing a boundary--plainly is not intended to be affected, and is not affected by war. Neither will a property right of an individual already vested under the terms of an existing treaty be disturbed by it. ( Society, etc., v. New-Haven, 21 U.S. 464, 494, 5 L.Ed. 662.) But the same reasoning does not apply to a treaty provision that aliens may inherit, for that is prospective in its operation, and if it is to survive a declaration of war it must be upon other grounds--that is, an inference that it is intended to be enforced notwithstanding the parties are at war must be based upon different considerations. Upon the grounds indicated in the opinion in the Techt-Hughes case we regard the reciprocal...