District of Columbia v. Pace, 320 U.S. 698 (1944)
Case details
Citation
320 U.S. 698
Full caption
DISTRICT OF COLUMBIA v. PACE.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Jan. 10, 1944
Majority
Jackson (Justice)
DISTRICT OF COLUMBIA v. PACE.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.
No. 117. Argued December 13, 1943.—Decided January 10, 1944.
1. Under the Act creating the Board of Tax Appeals for the District of Columbia, the Court of Appeals for the District of Columbia has power to review decisions of the Board conformably to the equity practice, that is, on both the facts and the law, subject to the rule that findings of fact are treated as presumptively correct and are accepted unless clearly wrong. P. 702.
2. Upon review of a decision of the Board of Tax Appeals for the District of Columbia, the Court of Appeals for the District of Columbia had power to set aside a finding by the Board that the domicile of a decedent was in the District of Columbia, which the court found to be clearly wrong, and to find that the domicile was in Florida. P. 703.
3. The provisions for review in the Act creating the Board of Tax Appeals for the District of Columbia were not superseded by Rule 52 of the Rules of Civil Procedure. P. 702.
77 U. 8. App. D. C. 332,135 F. 2d 249, affirmed.
Mr. Glenn Simmon, with whom Messrs. Richmond B. Keech and Vernon E. West were on the brief, for petitioner.
Mr. Elmer E. Hazard, with whom Messrs. George H. Happ and Martin F. O’Donoghue were on the brief, for respondent.
Mr. Justice Jackson delivered the opinion of the Court.
Charles F. Pace came to the District of Columbia in 1913 from Florida, where he had theretofore been domiciled. His only purpose in coming was to enter the federal service. He became Financial Clerk of the Senate and served continuously until his death in the District in 1940. During these twenty-seven years he lived in boarding houses and in rented apartments and owned no real property in the District. At all times he maintained his registration and qualification to vote in the State of Florida and exercised that right either in person or by absentee ballot. His will, made in 1937, recited that he was “of the City of Washington, D. C.” It was probated in Florida, and ancillary letters were granted in the District to the respondent executrix. District authorities, upon the premise that Pace was domiciled in the District, assessed an inheritance tax upon the transfer of certain jointly owned bank deposits within the District. Respondents paid the tax under protest and then appealed the assessment to the Board of Tax Appeals of the District on the ground that decedent was domiciled in Florida at the time of his death. The Board of Tax Appeals after hearing argument determined that decedent was domiciled in Florida, and ordered refund of the tax paid. The District appealed to the Court of Appeals, but before hearing this Court decided District of Columbia v. Murphy, 314 U. S. 441. The District thereupon moved to remand the p. 700case to the Board of Tax Appeals for reconsideration in the light of the intervening decision. The motion was granted. Upon reconsideration the Board re-adopted the findings theretofore made but concluded that the decedent had not overcome the presumption, arising from maintaining a home in the District, that he was domiciled therein, and reversed its former ruling.
The Court of Appeals for the District of Columbia reversed. It accepted and applied our decision in District of Columbia v. Murphy and, weighing the facts in the light of its principles, concluded that the decedent was domiciled in Florida at the time of his death. The evidence before the Board of Tax Appeals took a wide range, and we do not think it is necessary to recite it in detail. As is usual in cases of contested domicile, it gave rise to conflicting inferences, and a decision either way would be supported by substantial evidence. Whether the Board’s determination or that of the Court of Appeals should be deemed correct would depend upon the weight to be given to many different items of evidence, the credibility to be given to testimony, and the inferences to be drawn from many admitted events. We did not take this case to determine where Mr. Pace was domiciled. But the scope of review of decisions by the Board of Tax Appeals of the District of Columbia is important to the administration of the District’s tax laws, and since that question was not reached or decided in District of Columbia v. Murphy, we granted certiorari in this case.
Congress has seen fit in certain of the District’s tax statutes to make liability dependent upon domicile. In the District, where a large proportion of the population owe their presence to Government service and have the strongest motives for retaining their political connections with and domicile in the enfranchised community from which they came, this test of taxability is bound to give rise to innumerable and difficult conflicts. These the
Board of Tax Appeals is authorized in the first instance to resolve.
The provisions for review of Board of Tax Appeals decisions present complexities almost as baffling as the test of taxability itself. Section 4 (a) of the Act creating the Board of Tax Appeals for the District of Columbia provides that its decisions may be reviewed by the Court of Appeals and that upon such review the court “shall have the power to affirm, or if the decision of the Board is not in accordance with law, to modify or reverse the decision of the Board, with or without remanding the case for hearing, as justice may require.” 52 Stat. 371, D. C. Code (1940) § 47-2404 (a). Had this been all, a strong case would be made for applying the rule of finality applicable to the Federal Board of Tax Appeals, now the Tax Court of the United States. Dobson v. Commissioner, ante, p. 489. However, the same organic act contains another and qualifying provision that is not to be found in the acts creating the Tax Court: “The findings of fact by the Board shall have the same effect as a finding of fact by an equity court or a verdict of a jury.” 52 Stat. 371, D. C. Code (1940) § 47-2404 (a). Since findings of fact by an equity court and the verdict of a jury have from time immemorial been subject to different rules of finality it is puzzling to know what the draftsmen of this section meant by including both in the one rule for reviewing Board of Tax Appeals findings.
This statute was enacted in May, 1938. The law at that time as to the review of findings of fact in equity was, as stated by Mr. Justice Brandeis for the Court, “in equity, matters of fact as well as of law are reviewable . . .” Virginian Ry. Co. v. United States, 272 U. S. 658, 675. Findings of fact by the trial judge of course were presumptively correct and were accepted by reviewing courts unless clearly wrong. Butte & Superior Copper Co. v. Clark-Montana Realty Co., 249 U. S. 12,30. This rule, however,
Opinion of the Court. 320U.S
did not deny power to the Circuit Court of Appeals to review facts, but rather went to the weight to be accorded to the findings of a lower court and had special pertinence where credibility of witnesses was involved. This Court had a well-settled rule that “when two courts have reached the same conclusion on a question of fact, their finding will not be disturbed unless it is clear that their conclusion was erroneous.” Baker v. Schofield, 243 U. S. 114, 118. Such a rule would have no support in reason if the second court could not make its findings as a result of its own judgment.
The statute therefore authorizes review of findings of fact of the Board of Tax Appeals of the District of Columbia, subject to the admonition that they are to be undisturbed unless clearly wrong, if the findings are given the effect of findings of fact by an equity court. If the effect of the jury verdict, provided for in the same sentence, is to prevail, the review is much more restricted. The question as to which of the inconsistent provisions shall govern arises in a local statute confined in its operation to the District of Columbia. “We will not ordinarily review decisions of the United States Court of Appeals, which are based upon statutes so limited or which declare the common law of the District.” Del Vecchio v. Bowers, 296 U. S. 280, 285. Cf. American Security & Trust Co. v. District of Columbia, 224 U. S. 491; United Surety Co. n. American Fruit Product Co., 238 U. S. 140. Where a local statute contains a conflict on its face as patent and as irreconcilable as this, where either choice seems equally supportable, we cannot say that the Court of Appeals commits error in assuming its review of the Board of Tax Appeals decision to be entitled to the scope of a review of an equity court.
After the Board of Tax Appeals statute, Federal Rule of Civil Procedure No. 52 was adopted, effective September 1, 1938. It provided as to all actions tried upon the p. 703facts without a jury: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” This general rule, even if it were thought to modify the previous rule as to review of findings of fact in equity cases, would hardly supersede a special statutory measure of review applicable to a special and local tribunal.
We conclude, therefore, that the Court of Appeals has power to review decisions of the Board of Tax Appeals as under the equity practice in which the whole case, both facts and law, is open for consideration in the appellate court, subject to the long-standing rule that findings of fact are treated as presumptively correct and are accepted unless clearly wrong. The Court of Appeals therefore had power to set aside the determination of the Board of Tax Appeals if convinced, as it was, that the Board was clearly wrong. We are not called upon to separate factual from legal grounds of decision and to determine if reversal of the Board of Tax Appeals by the Court of Appeals could stand on questions of law alone. The judgment therefore is
Affirmed.
Mr. Justice Black and Mr. Justice Rutledge took no part in the consideration or decision of this case.
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DECISIONS PER CURIAM, ETC., FROM OCTOBER 4, 1943, THROUGH JANUARY 10, 1944.*
No. 95. Moody Bible Institute v. Chicago. Appeal from the Supreme Court of Illinois. October 11, 1943. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for the want of jurisdiction. § 237 (a) of the Judicial Code, as amended, 28 U. S. C., § 344 (a). Treating the papers whereon the appeal was allowed as an application for writ of certiorari as required by § 237 (c) of the Judicial Code, as amended, 28 U. S. C., § 344 (c), certiorari is denied. Mr. Howard F. Bishop for appellant. Messrs. Barnet Hodes, Joseph F. Grossman, and J. Herzl Segal for appellee. Reported below: 382 Ill. 70, 46 N. E. 2d 918.
No. 275. Parker et al. v. Miss iss ipp i. Appeal from the Supreme Court of Mississippi. October 11, 1943. Per Curiam: The motion for leave to proceed in forma pauperis is granted. The appeal is dismissed for the want of jurisdiction. § 237 (a) of the Judicial Code, as amended, 28 U. S. C., § 344 (a). Treating the papers whereon the appeal was allowed as an application for writ of certiorari as required by § 237 (c) of the Judicial Code, as amended, 28 U. S. C., § 344 (c), certiorari is denied. Mr. Justice Murphy is of opinion certiorari should be granted. Mr. Forrest B. Jackson for appellants. Reported below: 194 Miss. 895,13 So. 2d 620.
No. 213. Twi sp Mini ng & Smelt ing Co. v. Chelan Mining Co. et al. Appeal from and petition for writ of certiorari to the Supreme Court of Washington. October p. 70611, 1943. Per Curiam: The appeal is dismissed for failure to comply with Rule 12, paragraph 1. The petition for writ of certiorari is denied. Messrs. Clarence C. Dill and E. A. Cornelius for appellant. Reported below: 16 Wash. 2d 264,133 P. 2d 300.
No. 294. Payne v. Kirchwehm. Appeal from the Supreme Court of Ohio. October 11, 1943. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.
(1) Alaska Packers Assn. v. Industrial Commission, 294 U. S. 532,547; Pacific Insurance Co. v. Industrial Commission, 306 U. S. 493, 502; (2) Michigan Insurance Bank v. Eldred, 130 U. S. 693, 696; Platt v. Wilmot, 193 U. S. 602, 610; Guaranty Trust Co. v. United States, 304 U. S. 126, 136. Messrs. Sigmund H. Steinberg and William K. Gardner for appellant. Mr. Wayland K. Sullivan for appellee. Reported below: 141 Ohio St. 384,48 N. E. 2d 224.
No. 308. Hughes et al. v. Gust. Appeal from the Supreme Court of Arizona. October 11, 1943. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a properly presented federal question. Mr. Thomas O. Marlar for appellants. Mr. J. L. Gust for appellee.
No. —. Bentz v. Michigan. October 11, 1943. The petition for appeal is denied for the reason that application therefor was not made within the time provided by law. § 8 (a), Act of February 13, 1925 (43 Stat. 936, 940), 28 U. S. C., §350.
No. 9, original. Kansas v. Missouri. October 11, 1943. The report of the Special Master herein is received and ordered to be filed.
No. 61. Ickes, Secretary of the Interior, et al. v. Ass ociat ed Industries of New York State, Inc. Certiorari, 319 IT. S. 739, to the Circuit Court of Appeals for the Second Circuit. October 18, 1943. Per Curiam: This is a proceeding brought by respondent pursuant to § 6 (b) of the Bituminous Coal Act of 1937,50 Stat. 85,15 U. S. C., § 836 (b), as amended, to review an order of the Bituminous Coal Commission prescribing minimum prices for Minimum Price Area No. 1. We granted certiorari June 14,1943, to review an order of the Circuit Court of Appeals refusing to dismiss the proceeding for want of capacity of respondent to bring it. Both parties now suggest that the cause has become moot by reason of the expiration of the Bituminous Coal Act on August 24, 1943. They disagree as to the proper disposition to be made of the cause. The record does not disclose and we are not informed whether the order of the Commission, which by its terms became effective on October 1, 1942, remained in effect between that date and August 24, 1943, or to what extent rights arose and liabilities and obligations were incurred under the Commission’s order during that period, which survive the expiration of the Act. Accordingly we vacate the order of the Circuit Court of Appeals and remand the cause to that court for such further proceedings as may be appropriate. Solicitor General Fahy and Messrs. Warner W. Gardner and Arnold Levy for petitioners. Mr. Horace R. Lamb for respondent. Reported below: 134 F. 2d 694.
No. 155. Mathews et al. v. West Virginia ex rel. Hamilton, Prosecuting Attorney. On petition for writ of certiorari to the Circuit Court of Calhoun County, West Virginia. October 18, 1943. Per Curiam: The petition for writ of certiorari is granted. Subsequent to the decision of the Supreme Court of Appeals of West Virginia, denying leave to appeal on the ground that the decree of p. 708the Circuit Court of Calhoun County was “plainly right,” this Court in Taylor v. Mississippi, 319 U. S. 583, Benoit v. Mississippi, 319 U. S. 583, Cummings v. Mississippi, 319 U. S. 583, and West Virginia State Board of Education v. Barnette, 319 U. S. 624, considered questions having a bearing on the issues in the present case. Accordingly we vacate the judgment and remand the cause to the Circuit Court of Calhoun County for further consideration in the light of our decisions in those cases. New York ex rel. Whitman v. Wilson, 318 U. S. 688, 690-91, and cases cited. Mr. Hayden C. Covington for petitioners.
No. 278. Grace v. Board of Commissioners of the State Bar of Alabama. Appeal from the Supreme Court of Alabama. October 18, 1943. Per Curiam: The appeal is dismissed for the want of a substantial federal question. Ex parte Burr, 9 Wheat. 528, 530; Ex parte Secombe, 19 How. 9,13; Ex parte Robinson, 19 Wall. 505, 512; Selling v. Radford, 243 U. S. 46, 49. Menza B. Grace, pro se. Mr. Richard T. Rives for appellee. Reported below: 244 Ala. 267,13 So. 2d 178.
No. 2. Unit ed States v. Aluminum Company of America et al. Appeal from the District Court of the United States for the Southern District of New York; and No. 6. North Amer ican Company v. Securities & Exchange Commis si on. Certiorari, 318 U. S. 750, to the Circuit Court of Appeals for the Second Circuit. October 18, 1943. As four Justices have disqualified themselves from participating in the decision in each of these cases, the Court is unable to make final disposition of them because of the absence of a quorum of six Justices as prescribed by 28 U. S. C., § 321. These cases will accordingly be transferred to a special docket and all further proceedings in them postponed in each case until such time as p. 709there is a quorum of Justices qualified to sit in it, when it will be restored to the regular docket for such further proceedings as may be appropriate. Reported below: No. 2, 47 F. Supp. 647; No. 6,133 F. 2d 148.
No. —. Ex parte Earle Golden; and
No. —. Ex parte Ralph Barton Butz. October 18, 1943. Applications denied.
No. —. Ex part e Daisy D. Wils on;
No. —. Ex parte Oliver Gobin;
No. —. Ex parte Robert L. Peyton; and
No. —. Ex par te Forrest Holiday. October 18, 1943. The motions for leave to file petitions for writs of mandamus are denied.
No. 11, original. Illinois v. Indiana et al. October 18, 1943. The motion for leave to file bill of complaint is granted.
No. 360. Callison v. Texas. Appeal from the Court of Civil Appeals, 8th Supreme Judicial District, of Texas. October 25, 1943. Per Curiam: The appeal is dismissed for the want of a substantial federal question. A h Sin v. Wittman, 198 U. S. 500, 505; Marvin v. Trout, 199 U. S. 212, 224, cf. Federal Trade Comm’n v. Keppel & Bro., 291 U. S. 304. Mr. A. S. Baskett for appellant. Reported below: 172 S. W. 2d 772.
No. 368. Riss & Company, Inc. v. United State s et al. Appeal from the District Court of the United States for the Northern District of Oklahoma. October 25,1943. p. 710Per Curiam: The motion to affirm is granted and the judgment is affirmed on the authority of Gregg Cartage Co. v. United States, 316 U. S. 74. Dissenting: Mr. Jus - tice Black and Mr. Justice Douglas. Messrs. H. D. Driscoll and H. Russell Bishop for appellant. Solicitor General Fahy and Mr. Daniel W. Knowlton for appellees.
No.—. Ex part e Arthur Doyle;
No. —. Ex parte Oral S. Evenson;
No.—. Ex parte Louis T. Mc Connell; and No.—. Ex parte Chesteen Mc Connell. October 25, 1943. The motions for leave to file petitions for writs of habeas corpus are denied.
No. —. Ex parte Mars, Incorporated. October 25, 1943. The motion for leave to file the petition for writ of mandamus is denied without consideration of the merits and without prejudice to its presentation to the Circuit Court of Appeals for the Eighth Circuit, as is deemed to be the more appropriate procedure. Ex parte Peru, 318 U. S. 578, 584, and cases cited; Ex parte Fred Benioff Co., 317 U. S. 594. Proceedings before the Special Master will be stayed for ten days to afford petitioner an opportunity to present its petition to the Circuit Court of Appeals.
No. —. James v. Florida. October 25, 1943. Petition for stay of execution denied.
No. 438. Gilmore v. New Mexico. Appeal from the Supreme Court of New Mexico. November 8, 1943. Per Curiam: The appeal is dismissed for the want of a p. 711substantial federal question. Hoke v. United States, 227 U. S. 308, 324; Berger v. United States, 295 U. S. 78, 82. Mr. Edwin Mechem for appellant. Reported below: 47 N. M. 59,134 P. 2d 541.
No. 412. Kramer v. Ohio. Appeal from and petition for writ of certiorari to the Supreme Court of Ohio. November 8, 1943. Per Curiam: The motion for leave to file statement as to jurisdiction is granted. The motion to dismiss is granted and the appeal is dismissed for the want of a substantial federal question. McNaughton v. Johnson, 242 U. S. 344, 348-9; Graves v. Minnesota, 272 U. S. 425, 428; Roschen v. Ward, 279 U. S. 337, 339—40; Semler v. Board of Dental Examiners, 294 U. S. 608, 611. The petition for writ of certiorari is denied. Mr. William J. Corrigan for appellant-petitioner. Mr. Frank T. Cullitan for appellee-respondent. Reported below: 141 Ohio St. 667,49 N. E. 2d 683.
No. 21. Unite d States ex rel. Brensilber et al. v. Bausch & Lomb Optical Co. et al. Certiorari, 319 U. S. 733, to the Circuit Court of Appeals for the Second Circuit. Argued October 13,14,1943. Decided November 8,1943. Per Curiam: Judgment affirmed by an equally divided Court. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. William Stanley, with whom Mr. Homer Cummings was on the brief, for petitioners. Mr. Whitney North Seymour for Bausch & Lomb Optical Co. et al.; and Mr. Raymond M. White for Carl Zeiss, Inc.,—respondents. Solicitor General Fahy, Assistant Attorney General Shea, and Messrs. K. Norman Diamond and Robert L. Stern filed a brief on behalf of the United States, as amicus curiae, urging reversal. Reported below: 131 F. 2d 545.
No. —. Ex parte Albert 0. Hegney;
No. —. Ex part e William Ira Jenki ns; and No. —. Ex parte John 0. Story. November 8,1943. Applications denied.
No. —. Ex parte Mary A. Ruthven; and
No. —. Ex par te Stanley B. Peplo wski. November 8, 1943. The motions for leave to file petitions for writs of habeas corpus are denied.
No. —. Wilson v. Hinman. November 8, 1943. The motion for leave to file petition for writ of mandamus is denied.
No. 10, original. Unite d States v. Louisiana et al. November 8,1943. The transcript of testimony is received and ordered to be filed.
No. 452. Bennett v. City of Dalton. Appeal from the Court of Appeals of Georgia. November 15, 1943. Per Curiam: The appeal is dismissed for the want of a substantial federal question. Cox v. New Hampshire, 312 U. S. 569, 574; Chaplinsky v. New Hampshire, 315 U. S. 568, 571-2. Messrs. Hayden C. Covington and Grover C. Powell for appellant. Reported below: 69 Ga. App. 438, 25 S.E. 2d 726.
No. 60. Marvich v. California et al. Certiorari, 319 U. S. 739, to the Supreme Court of California. November 15, 1943. Per Curiam: The motion of respondent to remand is granted, the judgment is vacated and the cause is remanded to the Supreme Court of California for further proceedings. Mr. Neil Burkinshaw for petitioner.
Messrs. Robert W. Kenny, Attorney General of California, and Eugene M. Elson, Deputy Attorney General, for respondents. Reported below: 44 Cal. App. 2d 858, 113 P. 2d 223.
No. —. Ex parte Kenne th M. Ring;
No. —. Ex parte Paul S. Campbell;
No. —. Ex parte George Diehl;
No. —. Ex parte Jake Hinle y; and
No. —. Ex parte Kenneth L. Hendrix. November 15, 1943. The motions for leave to file petitions for writs of habeas corpus are denied.
No. —. Ex parte Rex Bayless; and
No.—. Ex parte Frank E. Potts. November 15, 1943. The motions for leave to file petitions for writs of mandamus are denied.
No. 112. Davies Warehouse Co. v. Brown, Price Admini strator;
No. 299. Mars, Inc. v. Brown, Price Adminis tra - tor;
No. 305. Taylor v. Brown, Price Adminis trator ; No. 316. Hecht Company v. Brown, Price Admin - ist rator;
No. 396. Vinson, Director of Economic Stabili za - tion, by Brown, Price Admini strat or, v. Washington Gas Light Co. et al. ;
No. 464. Brown, Price Admini strat or, v. Willi ng - ham et al. ; and
No. 481. Safeway Store s, Inc. v. Brown, Price Ad - mini strat or. November 16, 1943. Bowles, present Administrator of the Office of Price Administration, substituted as a party in these cases in the place and stead of Brown, resigned.
No. 437. Wilson v. Louisiana. Appeal from the Supreme Court of Louisiana. November 22, 1943. Per Curiam: The motion to dismiss is granted and the appeal is dismissed, it appearing that the decision is based upon a nonfederal ground adequate to support it. Mr. Max M. Schaumburg er for appellant. Messrs. Eugene Stanley, Attorney General of Louisiana, Alex. W. Swords, and George J. Gulotta for appellee. Reported below: 204 La. 24,14 So. 2d 873.
No. —. Ex parte C. E. Phillips;
No. —. Ex parte John Keating; and
No.—. Ex parte William A. Youell. November 22, 1943. The motions for leave to file petitions for writs of habeas corpus are denied.
Nos. 49 and 50. Ford Motor Co. v. Gordon Form Lathe Co. Certiorari, 319 U. S. 738, to the Circuit Court of Appeals for the Sixth Circuit. Argued November 8, 9, 1943. Decided December 6, 1943. Per Curiam: The judgments are affirmed by an equally divided Court. Mr. Justice Murphy took no part in the consideration or decision of these cases. Mr. I. Joseph Farley, with whom Mr. Drury W. Cooper was on the brief, for petitioner. Messrs. F. 0. Richey and George D. Spohn, with whom Messrs. John W. Michael and B. D. Watts were on the brief, for respondent. Reported below: 133 F. 2d 487.
No. 421. Second Nation al Bank v. Findley, County Treasure r, et al. ; and
No. 422. First National Bank v. Findley, County Treasurer, et al. Appeals from the Supreme Court of Ohio. December 6, 1943. Per Curiam: The judgments p. 715are affirmed on the authority of Aberdeen Bank v. Chehalis County, 166 U. S. 440, 443-6; Citizens National Bank v. Kentucky, 217 U. S. 443, 451; Des Moines National Bank v. Fairweather, 263 U. S. 103, 110-12; and Colorado National Bank v. Bedford, 310 U. S. 41, 52-3. Mr. George Thornburg for appellants. Messrs. Ross Michener, A. G. Lancione, and C. C. Sedgwick for appellees. Reported below: 142 Ohio St. 6, 50 N. E. 2d 157.
No. 435. Broth erho od of Railway & Steam ship Clerks, Freight Handlers, Express & Station Em - pl oyees et al. v. Unite d Trans port Service Employees et al. On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia. December 6, 1943. Per Curiam: The petition for writ of certiorari is granted and the judgment is reversed on the authority of General Committee of Adjustment v. Missouri-Kansas-Texas R. Co., 320 U. S. 323; General Committee of Adjustment v. Southern Pacific Co., 320 U. S. 338; General Grievance Committee v. General Committee of Adjustment, 320 U. S. 338; and Switchmen’s Union v. National Mediation Board, 320 U. S. 297. Messrs. Frank L. Mulholland, Clarence M. Mulholland, and Willard H. McEwen for petitioners. Reported below: 137 F. 2d 817.
No. 487. Kell ey v. California. Appeal from the Supreme Court of California. December 6, 1943. Per Curiam: The appeal is dismissed for want of jurisdiction. § 237 (a), Judicial Code, as amended, 28 U. S. C., § 344 (a). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by § 237 (c) of the Judicial Code, as amended, 28 U. S. C., § 344 (c), certiorari is denied. Mr. Morris Lavine for appellant. Reported below: 22 Cal. 2d 169,137 P. 2d 1.
No. 213. Twi sp Mini ng & Smelt ing Co. v. Chelan Mining Co. et al. Appeal from and petition for writ of certiorari to the Supreme Court of Washington. December 6, 1943. Per Curiam: Appellant having filed a pe- j tition for rehearing and an amended jurisdictional statement which conforms to Rule 12, par. 1, the petition for rehearing is granted and the order of October 11,1943, dismissing the appeal and denying the petition for writ of certiorari, ante, p. 705, is vacated. The appeal is dismissed for want of jurisdiction. § 237 (a) of the Judicial Code, as amended, 28 U. S. C., § 344 (a). The petition for a writ of certiorari is denied. Mr. Justice Douglas took no part in the consideration or decision of this case. Messrs. Clarence C. Dill and E. A. Cornelius for appellant-petitioner. Reported below: 16 Wash. 2d 264,133 P. 2d 300.
No. —. Humes v. United States. December 6,1943. Application denied. Mr. Justice Murphy took no part in the consideration or decision of this application.
No.—. Blaydes v. Ragen, Warden. December 6, 1943. Application denied.
No.—. Reed v. Huff, General Superintendent. December 6, 1943. The motion for leave to file a petition for a writ of certiorari is denied.
No. —. Ex parte Raymond Paul Hile;
No. —. Ex parte Dew ey Gooch;
No. —. Ex parte Paul O’Neil;
No. —. Ex parte Harry Miller; and
No.—. Ex parte Harold Jackson. December 6, 1943. The motions for leave to file petitions for writs of habeas corpus are denied.
No. —. Ex parte Unite d State s ex rel. Tennessee Valley Authority. December 6, 1943. The motion for leave to file a petition for writ of mandamus or writ of prohibition is denied without prejudice to the filing of an application for a writ of certiorari. Mr. Just ice Black, Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice Rutledge think that a rule to show cause should issue. Solicitor General Fahy and Mr. William C. Fitts, Jr. for petitioner.
No. 502. Smith et al., Co -part ners, Trading as Thomson & Mc Kinn on, v. Lummus, Tax Ass ess or, et al. Appeal from the Supreme Court of Florida. December 13, 1943. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for the want of a substantial federal question; Metropolitan Life Ins. Co. v. New Orleans, 205 U. S. 395; Liverpool Ins. Co. v. Board of Assessors, 221 U. S. 346; Curry v. McCanless, 307 U. S. 357, 368. Mr. George H. Salley for appellants. Messrs. J. Tom Watson, Attorney General of Florida, and Lawrence A. Truett, Assistant Attorney General, for appellees. Reported below: 14 So. 2d 897.
No.—. Ex parte Edward Case beer; and
No.—. Ex parte Frank J. Kane. December 13, 1943. The motions for leave to file petitions for writs of habeas corpus are denied.
No. —. Ex parte Wade H. Cooper. December 13, 1943. The motion for leave to file petition for writ of mandamus is denied.
No. 504. Chicago & North Western Railway Co. v. Unite d States et al. Appeal from the District Court of the United States for the Northern District of Illinois. December 20, 1943. Per Curiam: The motions to affirm are granted and the judgment is affirmed. (1) § 77 (e) and (f) of the Bankruptcy Act; Ecker v. Western Pacific R. Corp., 318 U. S. 448, 471-475; Group of Investors v. Chicago, M., St. P. & P. R. Co., 318 U. S. 523, 564. (2) Great Northern Ry. Co. v. United States, 277 U. S. 172, ISO-183; United States v. Griffin, 303 U. S. 226,234-237. Mrs. Helen W. Munsert and Mr. Luther M. Walter for appellant. Solicitor General Fahy and Mr. Daniel W. Knowlton for the United States et al.; and Messrs. Kenneth F. Burgess, Fred N. Oliver, and Douglas F. Smith for the Life Insurance Group Committee et al.,—appellees. Reported below: 52 F. Supp. 65.
No. 266. Harris on, Collector of Internal Reve - nue, v. Durkee Famous Foods, Inc. On petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit. December 20,1943. Per Curiam: The petition for writ of certiorari in this case is granted. The judgment is reversed upon the authority of Colgate-Palm-olive-Peet Co. v. United States, 320 U. S. 422. Solicitor General Fahy for petitioner. Mr. Roger Hinds for respondent. Reported below: 136 F. 2d 303.
No. —. Ex parte Percy Watts. December 20, 1943. The motion for leave to file petition for writ of habeas corpus is denied.
No. —. Ex parte Andrew Barnett; and No. —. Ex par te Jack A. Mc Coy. January 3, 1944. Applications denied.
No. —. Ex parte Alliance Brass & Bronze Co. January 3, 1944. The motion for leave to file petition for writ of prohibition or, in the alternative, mandamus, is denied.
No. —. Ex parte Ralph 0. Lucas;
No. —. Ex parte N. M. Maxwell;
No. —. Ex parte James Sparks;
No.—. Ex parte Bernard Nelson;
No. —. Ex parte Norm an Micha ud; and
No.—. Ex par te H. Ely Goldsmith. January 3, 1944. The motions for leave to file petitions for writs of habeas corpus are denied.
No. 966, October Term, 1941. Jobin v. Arizona. January 3, 1944. Upon consideration of appellant’s motion to compel payment of costs and appellee’s reply, it is ordered that appellant’s motion be denied without prejudice to its renewal in the event that the Attorney General of Arizona does not report the judgment to the Arizona Legislature at its next session and if so reported the Legislature does not make provision for payment. See 319 U. S. 103.
No. 159. Walton, Administratrix, v. Southern Package Corp. January 3, 1944. The motion for additional attorney’s fee is denied without prejudice to an appropriate application to the Supreme Court of Mississippi. See ante, p. 540.
552826—44-----50
Decisions Granting Certiorari. 320 U. S
No. —. Ex parte Ches teen Mc Connell;
No. —. Ex parte Harris on Howard;
No. —. Ex parte Leonard Palmor e; and
No.—. Ex parte Carl Jackson. January 10, 1944. The motions for leave to file petitions for writs of habeas corpus are denied.
DECISIONS GRANTING CERTIORARI, FROM OCTOBER 4, 1943, THROUGH JANUARY 10, 1944.
No. 71. Unite d States v. Laudani. October 11,1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Solicitor General Fahy for the United States. Mr. Harold Simandl for respondent. Reported below: 134 F. 2d 847.
No. 75. United Stat es v. Blair, individually and TO THE USE OF ROANOKE MARBLE & GRANITE Co., INC. October 11, 1943. Petition for writ of certiorari to the Court of Claims granted. Solicitor General Fahy for the United States. Messrs. H. C. Kilpatrick and Richard S. Doyle for respondent. Reported below: 99 Ct. Cis. 71.
No. 84. Dixie Pine Products Co. v. Commi ssione r of Internal Revenue. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. T. J. Wills for petitioner. Solicitor General Fahy, Assistant Attorney General Samuel 0. Clark, Jr., Messrs. Sewall Key and Samuel H. Levy, and Mrs. Maryhelen Wigle for respondent. Reported below: 134 F. 2d 273.
No. 91. Bain Peanut Co. v. Commis sioner of Inter - nal Revenue. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. B. L. Agerton for petitioner. Solicitor General Fahy, Assistant Attorney General Samuel 0. Clark, Jr., and Messrs. Sewall Key, Samuel H. Levy, and . Joseph M. Jones for respondent. Mr. J. Sterling Halstead filed a brief on behalf of the Insular Sugar Refining Corp., as amicus curiae, in support of petitioner. Reported below: 134 F. 2d 853.
No. 94. Tennant, Admini str atrix, v. Peoria & Pekin Union Railway Co. October 11,1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. Mark D. Eagleton and William H. Allen for petitioner. Mr. Eugene E. Horton for respondent. Reported below: 134 F. 2d 860.
No. 99. Illinois Steel Co. v. Baltimore & Ohio Railroad Co. October 11, 1943. Petition for writ of certiorari to the Appellate Court, First District, of Illinois, granted. Mr. Paul R. Conaghan for petitioner. Messrs. George E. Hamilton and Francis R. Cross for respondent. Reported below: 316 Ill. App. 516,46 N. E. 2d 144.
No. 112. Davies Wareh ous e Co. v. Brown, Price Admini strat or. October 11, 1943. Petition for writ of certiorari to the United States Emergency Court of Appeals granted. Mr. Reginald L. Vaughan for petitioner. Assistant Solicitor General Cox and Messrs. Nathaniel L. Nathanson and William R. Ming, Jr. for respondent. Reported below: 137 F. 2d 201.
No. 142. Unite d State s v. Myers; No. 143. United States v. Arble; No. 144. United State s v. Martin; No. 145. Unit ed States v. Plitz; and
No. 146. United States v. Spitz. October 11, 1943. Petition for writs of certiorari to the Court of Claims granted. Solicitor General Fahy for the United States. Mr. Robert M. Drysdale for respondents. Reported below: 99 Ct. Cis. 158.
No. 158. B. F. Goodrich Co. v. United Stat es. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. E. Barrett Pretty man, F. G. Await, and Raymond Sparks for petitioner. Solicitor General Fahy, Assistant Attorney General Samuel 0. Clark, Jr., and Messrs. Sewall Key, J. Louis Monarch, and Warren F. Wattles for the United States. Reported below: 135 F. 2d 456.
No. 183. Brown et al. v. Gerdes et al., Trustees. October 11, 1943. Petition for writ of certiorari to the Court of Appeals of New York granted. Messrs. David Paine and Lawrence Greenbaum for petitioners. Messrs. John Gerdes and James D. Carpenter, Jr., and Mary-Chase Clark for respondents. Reported below: 290 N. Y. 868, 50 N. E. 2d 249.
No. 195. Northwestern Electric Co. et al. v. Federal Power Comm issio n. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. John A. Laing, Henry S. Gray, A. J. G. Priest, and Sidman I. Barber for petitioners. Solicitor General Fahy, Assistant Attorney
General Shea, and Messrs. Paul A. Sweeney, Charles V. Shannon, and Reuben Goldberg for respondent. Reported below: 134 F. 2d 740.
No. 209. Unite d States v. Waterhouse et al. October 11,1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Solicitor General Fahy for the United States. Messrs. Herman Phleger and A. G. M. Robertson for respondents. Reported below: 132 F. 2d 699.
No. 211. Stark et al. v. Wickard, Secretary of Agricultu re. October 11, 1943. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia granted. Mr. Harry Polikoff for petitioners. Solicitor General Fahy, Assistant Attorney General Berge, Messrs. Kenneth L. Kimble, J. Stephen Doyle, Jr., and Robert L. Stern, and Miss Margaret H. Brass for respondent. Reported below: 136 F. 2d 786.
No. 265. Medo Photo Supply Corp. v. National La - bor Relations Board. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. Walter N. Seligsberg and William E. Friedman for petitioner. Solicitor General Fahy, Mr. Robert B. Watts, and Miss Ruth Weyand for respondent. Reported below: 135 F. 2d 279.
No. 267. Unite d States v. Seattle -First National Bank. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit p. 724granted. Solicitor General Fahy for the United States. Mr. B. H. Kizer for respondent. Reported below: 136 F. 2d 676.
No. 276. Security Flour Mills Co. v. Commis - si oner of Internal Revenue. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit granted. Mr. Robert C. Foulston for petitioner. Solicitor General Fahy for respondent. Reported below: 135 F. 2d 165.
No. 291. Union Brokerage Co. v. Jensen et al. October 11, 1943. Petition for writ of certiorari to the Supreme Court of Minnesota granted. Mr. Leonard Eriksson for petitioner. Mr. Ordner T. Bundlie for respondents. Reported below: 215 Minn. 207, 9 N. W. 2d 721.
No. 115. Commi ssi oner of Internal Revenue v. Lane -Wells Company et al. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Solicitor General Fahy for petitioner. Mr. Raphael Dechter for respondents. Reported below: 134 F. 2d 977.
No. 193. Feldman v. United States. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted, limited to the question whether petitioner’s testimony given in the New York supplementary proceedings was properly admitted in evidence at the trial. Mr. Justice Murphy took no part in the consideration or decision of this application. Messrs. James Marshall and Seymour M. Klein for p. 725petitioner. Solicitor General Fahy, Assistant Attorney General Tom C. Clark, and Air. Robert S. Erdahl for the United States. Reported below: 136 F. 2d 394.
No. 200. Mahnich v. Southern Steams hip Co. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Mr. Abraham E. Freedman for petitioner. Mr. Joseph W. Henderson for respondent. Reported below: 135 F. 2d 602.
No. 215. Billings v. Truesdell, Major General, U. S. A. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit granted. Mr. Lee Bond for petitioner. Solicitor General Fahy, Assistant Attorney General Tom C. Clark, and Mr. Robert S. Erdahl for respondent. Reported below: 135 F. 2d 505.
No. 217. Addison et al. v. Holly Hill Fruit Prod - ucts, Inc. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. George Palmer Garrett for petitioners. Messrs. C. O. Andrews and G. L. Reeves for respondent. Solicitor General Fahy and Mr. Douglas B. Maggs filed a memorandum on behalf of the Administrator of the Wage and Hour Division, U. S. Dept, of Labor, as amicus curiae, in support of the petition. Reported below: 136 F. 2d 323.
No. 226. Polish National Alliance of the United States of North America v. National Labor Relations Board. October 11,1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit p. 726granted, limited to the first five questions presented by the petition for the writ. Messrs. Casimir E. Midowicz and Ewart S. Harris for petitioner. Solicitor General Fahy, Mr. Robert B. Watts, and Miss Ruth Weyand for respondent. Reported below: 136 E. 2d 175.
No. 235. Great Northern Life Insurance Co. v. Read, Insur ance Commiss ioner. October 11, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit granted. Mr. Herbert R. Tews for petitioner. Messrs. Mac Q. Williamson, Attorney General of Oklahoma, and Fred Hansen, Assistant Attorney General, for respondent. Reported below: 136 F. 2d 44.
No. 117. Dis trict of Columbia v. Pace. October 11, 1943. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia granted. Mr. Justice Black and Mr. Justice Rutledge took no part in the consideration or decision of this application. Messrs. Richmond B. Keech, Vernon E. West, and Glenn Simmon for petitioner. Mr. Martin F. O’Donoghue for respondent. Reported below: 135 F. 2d 249.
No. 159. Walton, Admini strat rix, v. Southern Package Corp. October 11, 1943. Petition for writ of certiorari to the Supreme Court of Mississippi granted. Mr. Chas. F. Engle for petitioner. Messrs. William H. Watkins and P. H. Eager, Jr. for respondent. Solicitor General Fahy and Messrs. Douglas B. Maggs and Irving J. Levy filed a brief on behalf of the Administrator of the Wage and Hour Division, U. S. Dept, of Labor, as amicus curiae, in support of the petition. Reported below: 194 Miss. 573,11 So. 2d 912.
No. 316. Hecht Company v. Brown, Price Admin - istrator. October 18, 1943. Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia granted. Messrs. Charles A. Horsky and Spencer Gordon for petitioner. Solicitor General Fahy and Messrs. Paul A. Freund, Thomas I. Emerson, and David London for respondent. Reported below: 137 F. 2d 689.
No. 232. Sartor et al. v. Arkansas Natural Gas Corp. October 18, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. Gilbert P. Bullis for petitioners. Reported below: 134 F. 2d 433.
No. 262. Goodyear Tire & Rubber Co., Inc. et al. v. Ray -0-Vac Comp any. October 18, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. William E. Chilton and Albert R. Golrick for petitioners. Messrs. Bernard A. Schroeder, Russell Wiles, and George A. Chritton for respondent. Reported below: 136 F. 2d 159.
No. 343. Order of Rail road Telegr apher s v. Rail - way Express Agency, Inc. October 18, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Messrs. William G. McRae and Leo J. Hassenauer for petitioner. Messrs. A. M. Hartung, Blair Foster, and H. S. Marx for respondent. Reported below: 137 F. 2d 46.