Reply Brief of PlantiffPetitioner — McCormick & Co. v. United States

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JAMES. R BROWNING, Cle

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“pane Court of the Binited States

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No. 900. : j .

McCORMIOKR & COMPANY, INCORPORATED, “:

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UNEPFED STATES,

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ON PRitttoN FOR A WRES OF CRRTIORYEI

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INDEX. *

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Pornt I.—Additional reasons specially applicable to .

judgments of the Court of Claims why the writ

shotld be granted under this Court’s supervisory

powers

PAGE

A.—The lower Court’s misapprehension of the :

real issue and the insufficiency cf its findings

to suppoft its conclusions which produced

conflict with this Court’s decisions and war-

rants granting of the writ

B.—The lower Court’s fundamegtal mistake as

| to the parties intended bygthe statute to

receive the benefit of the drawback which

warrants review by this Court........................

C.—The lower Court’s basic miseo

_ the nature of a drawback which <a

<

its illiberal and erronecus co ction of ~

the statute and. is of general importance

warranting review by this Court....................

D. —The lower Court’s serious errors of statu

E.—The lower Court’s misstatement of plain- .

tiff’s basic theory which cAlls for the exer-

cise of this Court's power of supervision......

F.—Existence of important questions though

' present here is not required for review of

| - Court of Claims’ decisions especially where

there exists a conflict with this Court’s

IE schnisinteioncilieatitmnndion Miscangines

+

Concivsiox PRS. ." A OO ail a cee

11

12

(14

Zk

<-

Nichols v. U. 8; 249 U.S. 34 ienoe ca i : mae

Patton v. U.S., 159 U.S. 500, ETE SNe TOR

Reynolds v. U.8., 292 U. g: 443°... LER USEE SRO es

Russell v. Sebastian, 233 U. | | een Cae

» Seeberger v. Castro, 153 U. = 2 Vanes ie

. Spalding +. Castro, 153 U, 8.38, WE itatiotiat<inkgectniteaatinge

ii

Tanta oF Cases.

re ; a PAGE

_. Allen v. Smith, 173 U. S. 389, 399..........: peasant. ae

Bowers v. N.Y. Albany Co.,273 U.S, BB ares aie 6,10 |

Calin v. U. S297 U.S. 092.2 ctecccsccescessne Sauce ae

~ Chatwin v. U. S., 326 U. 8. 155, SEA eno ce oe

" Cincinnati Soap Co..v. U. S., 301 U. S. 308, 317............ Ҥ

Crooks v. Harrelson, 282 U. S. 59, 61.......:. rhs iis anbbiieien: 6,10 ©

Dies v. New York ape Insurance Co., (No. 58, May

I i ee cs, Se re 12

Downs v. es Aen anne or ene 7

Downs v. U. S:, 187 U.S. 496.......... enildableschenssentebaebacecns 6

‘ Edwards v. Cuba Railroad, 268 U.S. 628 = Manda aa 3

Hoffman Beverage Co. v. U. 8, 119 Ct. Claims 803,.

TA BR, Sapp MATa aac pecncncnepcanncenncnnngectaccconn 4,5

Iowa v. McFarland, 110 U. 8. 471, pS eee $°

Kenicoti v. The Supervisors, 83 U.S. 452, a 5

Latimes v. U. S., 223 U. 8.0501, 503 feeenrcrcneerenenen 9

MacEvoy v. U. S.,322 U.S. 102, 107 seceorennee a

Mass ¢ Waldstein Co. ‘ U. G:, 283 U: S. 583................ 13

McFeely v. Commissioner, 296 U: 82102, 111............... 10

McGoldrick v. st dake seahatiine 309 U. S. 430,

432 iehissiiasi bee slacbniiaciealels desta |

ov gare eo TO a °

Standard Vacuum Oil Co. v. U. 8,, 339 U: 8. 157,

- 160, 161 ees ABEL IE a RINNE Mtr AR TD sacnselacaiaiiead,

‘ ¥

_—

—_

ue ‘ ne eer : PAGE

U.S. v. Anderson, Clayton & Co., 350 U: S. 55, 57... © 12

: USS. v. Causby, 328 U. S. 256, 267.........-.-. OLR

U.S. v. Cook, 257 U. 8. 523, 526. SER ee Se

U.S. v. Merriam, 963 UT, &. 179, 166..........:....0cc0r-o0+s000 | 10

U.S. v Olympic Radio &: Television, 349 U.S. 232, 233. 12

U.S. v. Passavant, 169 U. Bh, Fa icin scsnsansnconpeccsttnss 5, 6

U.S. v. Penn Mfg. Cea, BOG UB. CBT sence osscennirnssees ‘i 3

U S.v. Penn Mfg. Co., 387 U.S. 198......-.---------+-- ais 3

‘- U.S. v. Realty Co., 163 TLS. EF BE, Ba isecsnsnnanticrsces ‘$.6

U. S. v. Standard Rice Co.,; 323 U. S. 106............ ie

U.S. Walker-Hill Co., 79 F. Supp. 482, 480.......------------ 4

Srarores

‘Internal venue Code of 1939, |

\e Section (1313 ..5.........--cececceceseeeseceeeeeeseeseneeeeensneneens oe ae

‘ Geetion QBBO9() C .----Gpeeseeeeeeeteeeeeeeees sich ecdasicintebsnionedi 4,7,8

Section 31 DA (a) (1) caencdeceeeecccsceecereceeerseeneeesenes asavonsecsencsne 4g

Section 3179 ........----- Se ak ANNAN RAEN iesidsat - 7

Section 3250(1) - oer evseecsnneeeneceenenconsesnsessascennsenenac 4, 6, 7,8)

Orner AUTHORITIES. s

‘New International Encyclopedia, Second Edition, -

Article, ‘‘Drawback’?, «2-1 7

‘¢ Jurisdiction of The Supreme Court’’ by Robertson - he

and Kirkham, 1951 eH sonedhseccbessnnsensegeneqeneqpassnnscnasscanenness 12,13

‘Supreme Court Practice; " by Robert LL. Stern and

Eugene Gressman, _ ed. 1954, Be BR aitactnsnieasteionatio 12

yg, :

ces

- IN THE

Supreme Court of the United iste.

_Ocroper Tei, 1958:

4) No. 900. eae

oo

-McCormick & Company, INcorPoRATED,

me | Plaintiff-Petitioner,

| | pe against

: 7 | ‘Unrxep Sratzs, otek :

cé, : Respondegt.

_ REPLY BRIEF OF PLAINTIFF-PETITIONER.

POINT. I.

Additional reasons specially. ‘applicable to judg-

ments of the Court of Claims why the writ should&be

° granted under this Court’s oupatvicery powers. —

The lower ‘Court’s Pale real j issue

_and the insufficiency of its findings to support its conclusions:

wich produced conflict with this Court’s decisions and war-

rants granting,of the writ.

The issue here ig not what ‘constitutes ‘‘distilled

spirits” within .the. statutory: definition. of Chapter 26.

Neither i is the issue what is meant ‘ in common parlance by

‘*distilled spirits” in the broadest generic sense of these

“_ _

of the, particular Statute in which the Phrase ‘‘distilled

”

-

ii ~ oan . |

words apart from statutory definition. Both these exhaust _

the entire content of ‘distilled spirits’ and include sub-.

stancés which are both commercially unusable and also

totally unfit for hnman consumption, |

* Within each of these accepted meanings, however, there

impure ethy] aleghol though for other purposes and in other

contexts that Ble substance might satisfy some one *

of the broad range of meanings of which the words ‘‘dig.

tilled spirits”’ are susceptible, - Necessarily, the context

spirits’? js employed here, in the absence of a definition in

that statute,* that type of ‘distilled spirits’? is meant

* Questions involving this issue may still arise despite the

Prospective amendment of the Statute because the’ statute, even ds

‘amended, stil] contains no definition of distilled spirits,

©

+

forced to use language flatly characterizing that treatment.

.a8 constituting production (App. Finding 8, p. 29).

Fatal to the Court’s conclusion is the fact that it

made no finding that the imported poisonous substance

liad previously been subjected to a distillation process

so as to- make it distilled. spirits even in the statutory

sense of Chapter 26. Nor is there any finding of what |

processes the imported substance had previously under-

gone.* ‘The Defendant’s Brief p. 5 does not assert a previ-

ous distillation. The radical nature of the processes to which.

the substance was, however, domestically.subjected is proof

that the original treatment—whether by distillation or

otherwise—was at yest only partial and fincompleted so

. that no original full distillation resulting in the production

of true distilled spirits had ever taken place.-

These intensive, transformatory processes which took

place here domestically therefore constituted ‘‘production’’

as defined by this Court’s decisions cited in the Petition

*(pp. 4-7). The conflict of the lower Court’s opinion with

the critelfa there laid down is one of the bases on which

review by this Court is sought. The Defendant’s Brief

‘does not seriously dispute Plaintiff’s. statement of those

criteria but only their application.

“ ae

The lower Court's fundamenital mistake as to the parties

intended by the statute to receive the benefit of the draw-

Back which warrants review by this Court.

‘ Defendant’s Brief (p. 7) reliesgon the Court’s mistaken

statement (Opinion, App. 26) concerning ‘‘the statute's

® This’ Court granted certiorari to the Court of Claims in

-U. 8: v. Penn Mfg. Co. 335 U.S. 857 and reversed that Court's

decision in U. S. v. Penn Mfg. Co. 337 U. S. 198 for similar

insufficiency of its findings to support its conclusions, and in

U. S. v. Causby 328 U:-S. 256, 267 held that a deficiency in that

Court's findings could not be rectifiea by statements in its opinion.

7

4.

Da 2

intent to limit drawbacks to domestic producers cinly”” Of

2; a0.

“course t#e drawback is not granted to the domestic pro:

ducer of the distilled spirits; it is allowed by the Section’ s.

terms to the manufacturer using. distilled spirits in the tn

specified non-beverage products whose domestic production.

it is the statute’s objective to enconrage. (Section 3250(1),. ”

App. B and U. 4S. Walker-Hilt Co., 79 F. Supp. 482, 485).

This mistake on the Court’s part is so fundamental and

was so fatal to its proper compreliension and construction —_

of the statute, as of itself alone to requiré review ny this

Court under its supervisory powets.

Problems concerning the party: eligible for the draw back

have arisen in the past (Hoffman Beverage Co. v. U. &.,

119 Court of Claims 803, 71 F. Supp. 147)*and will arise

despite the prospective amendment of the statute in the

; future.. A correct determination of that issue is therefore

important to the administration of the statute.

C.

‘The lower Court’s basic misconception of the nature of

' a drawback -which resulted in its illiberal and erroneous

construction of the statute and is of general importance

warranting review by this Court. -

“In the instant case’’, said the Court, ‘merit can be

ifound in both parties’ definition of the "word “produced’..

However, sbearing in mind the nature of a drawback we

reach: the conclusion contended for by the defendant pri-'

- marily on the. definitions of distilled spirits found. in

' Section 2809(b) (1), quoted supra, and the definition. of .

alcohol in Section 3124(a) (W) °° *’’:: (App. 24) (empha-

- sis added). The Court’s understanding of the nat

drawback is derived from a District Court’s fi:

(cited Opinion App. 24): characterizing a drawback as ‘‘a

: governmental grant of a privilege and benefit’? * * * ‘‘to

& %

of a’

°

5 fo .+

"be construed in favor of the government and against the

‘party claiming the grant”. The*cited case is at variance

with this Court’s. decisions interpreting the. various draw-

- back statutes set forth in the Petition -(pp: 46) which

impose no’such strict canon of construction and with the

decisions of this Court hereafter discussed. The lower .

Court’s rule of construction here is also at variance with

its own decision in Hoffman Beverage Co. v. U. S. 119 Ct.

of Claims 803, 71 F. Supp. 147, in which it held that. this

same drawback statute should be construed in favor of “all

. those who came within its equity’’ (151) and (152): denied a

‘narrow construction’”’ that would result in purpossless

discrimination.

The lower Court, though ‘gpressly conceding the merit

- of Petitioner’s construction of the statute, was misled

into giving. to the statute here—condemned by the legis-—

lature ‘as itself arbitrary and discriminatory—the still

-further strict construction hich it did by a misconcep-

tion of the nature of a drawback so fundamental as in

itself to warrant review by this Court. A drawback

, whethtr denominated as a bounty or a bonus, is not, as the .

- lower Court’s opinion holds, a mere legislative gratuity

or act of grace; Kenicott v. The Supervisors, 83 U. 8. 452,

471; Iowa v. McFarland, 110 U. 8. 471, 479; U. S. v. Realty

Co,, 163 U.S. 427, 435, 440; U. S: v. Cook, 257 U. 8. 523, 526;

- Edwards v. Cuba’ Railroad, 268 U. S. 628, 632; Cincinnati

Soap Co. v. U. 8., 301 U. 8. 308, 317. The object of draw-

back is to encourage certain types of manufacture or pro-

je se by the legislature as important to the

general économy. JU. S. v. Passavant, * 169 U.S. 16, 23, 24,

e In ~~ © Tn that ease this Court, speaking: dint Chief Justice Fuller,

said, in equating the concept of ‘Ysgnification of tax’’ with that of °

a drawback, ‘(Tt is a special advantage extended by government in

aid of: manufacture and trade, having the same effect as a bonus or

” ° . e ‘

* ® é t

x |

6 oy me %

25; Downs v. U. S., 187 U. 8.46 Siok. U. 8., 249 U.S.

| 34. Drawbacks are intended as a stimulus and legislative —

, __teward indueing specific action thought to bé soci: socially bene-

ficial. By. the same token’ Courts should and do protect

action taken in good faith reliance on the statutory reward. “

U. 8. v. Realty Co., 437, supra: As in the case of similar

~ legislative grants, courts may not deny the statute ‘‘a fair

and reasonable interpretation, or. justify the withholding of

that which it satisfactorily appears the grant was intended

to convey”’; Russell v. Sebastian, 233 U. S. 195, 205 _eape-

cially where, as here, the grant flows not from the solicita-

tion of the grantee but from the government’s own motion.

The public and the private manufacturer both have inter-

. ests in seeing that the legislative purpose is accomplished,

which this Court should uphold against a decision of a court

of first instance frustrating that purpose. Tie Srinin

is a part of a taxing statute; and such laws gre inter-

preted liberally in favor of the tax payers’’; Bowers v. N.Y.

é Albatiy Co., 273 U. S. 346, 350; cn v. —— 282

USS. 55, 61.

The statement in the biewes Court’s opinion, (App, 24)

that ‘‘Section 3250(1) is not a provision relating to a refund

of tax assessed and collected by the, Government’’ would

. seem further to be in conflict with this Court’s decision in

U. 8. v. Passavant, supra, p. 23 and with that of the Fourth )

Circuit Court of Appeals in Downs v. U. S., 113 Fed. 144, p

p. 148, affirmed by this Court in Downs v. U. S., supra, and

sep McGoldrick v. Compagnie Generale, 309 6U. 8. 430,

drawback. To use one.of the definitions of drawback, it is a device

resorted to for enabling a commodity affected by taxes to be-exported / d

and sold in the foreign market on the same terms as if it had not ~

been taxed’’ (p. 23). There are, of course, many other kinds of

drawback. This Court’s 8 opinions in this case and in the Downs and

Nichols cases, supra, appear to emphasize the compensatory nature

_of the grant as a oper to industry or commerce. »

\

\ :

432 characterizing. the export drawback on oil under 19

' U.S.C. Seetion 1313 as **e fefund dr drawback”.

: all events drawbacks are infportant and of wide-

spread occurrence® with an historic background of absorbing

_ interest.°* ir nature and function are deserving of pre-

cise definition by'this Court if such a definition is not already

~ supplied with sufficient clarity by this Court’s previous deci-

_ sions. ‘ Praa:

Settlement of the nature of a drawback 4nd of the rules

of construction applicable thereto remai ntiai. under.

the statute in its amended as well as in its prejent form and

“also for the purposes of the export drawback on distilled

spirits pnder Section 3179, 26 U. S. $ Internal Revenue |

Code of 1939 as amended, '

_* The lower Court’s serious errors of statutory construc-

tion which are of general public consequence.

The lower Court was thus driven by its misconception of

.° {he function and nature of a drawback to place its decision,

by a strict and erroneous. construction of the statute, -on

plainly untenable grounds. Its decision was predicated

squarely on the definition (quoted Opinion p. 24) of distilled

spirits contained in Section 2809(b) (1) of a different statute,

Chapter 2¢ of the’Internal Revenue. Act of 1939, and on .

its application of that definition, by an inépt process of

translation, to Section 3250(1).of Chapter 27. For the

reasons advanced in the Petition the provisions of Sec-

tion 3250(1) of Chapter 2/ are neither. ambiguous nor is

® See The Ney International Encyclopedia, Second Edition,

Article, ‘‘Drawback’’, and Index to U. 8. C.-** Drawbacks’’ listing

drawback statutes applyifg to an enormous range of manufactured

articles principally for export. A ae

-®® See opinion: in Downs v. U. S., 113.Fed. 144 (4th cf), affd.

‘by this Court, 187 U. 8. 496. P >

J

ms; : Kk

Re oS Te

_ Chapter 26 to which the Court below resorted in pari

materia. See specifically the decision of this Court in See- :

. berger v, Castro, 153 U. 8. 32, 36. In fact the Government

. in its brief below conceded that the language of the Section

°2j is plain and unambiguous (Defendant’s Brief in Coat of

Claims p. 22). For both, these reasons resort | to such. defini-

tion is. re illegitimate. ,

In addition to these errors of statutory construction

. the definition on which the Opinion relies* is by its express.

_terms limited to Chapter 26, the statate in which it is

an found—*‘within the true intent and meaning of this chap- ,

ter’. Emphasis added. (Section ee. quot | at p.

eS *. of the Opinion.) ~ sire

‘The definition, further, on which the Cent relied i is con--

tained in Chapter 26 which is a general statute. Chapter

27 in@hich the applicable Section 3250(1): is. found is, on

the other hand, a special statute limited to specific, nar-

rowly restricted uses of distilled spirits-and dealing with |

its special subject matter in a more detailed way» Undet ;

well recognized rules of statutory construction the provi-

sions of such a general act are under such circumstances

not controlling i in interpreting those’ of such a special act.

MacEvoy v. U. S., 322 U.S. 102, 107. Such is particularly the

case where, as‘here, other parts of the special statute (in

contrast with the part. in which the secticn here in question |

- is contained) ‘embod¥ specific provisions reading into such _

_viher parts the provisions of the noon taxing statutes ,

(Petition p. 11). ese -

‘Farther, what is in fact a mere definition of a. -partieu- :

-lar material thing contained in, and expressly restricted

_. ©The other défipition on which the: Court relied, Section 3124

(a) (1), quoted on the same page.of its Opinion, is merely tauto-

logieal awd refers one Back to the previous definition which is~-

expressly limited to Chapter 26. ;

:

;

As

to, a different and a general statute is surreptitiously

employed by the decision below to interpret the meaning

in another and a special: statate; not only: of: the thing

itself, but ‘of “an operation performed upon it, ie., pro- |

.° duction of that thing.. This error is the’ more fatal because

-- neither statute contains ‘any definition af production; nor .

* do the Regulations. ©. -

Since the undisputed -testimoriy was (Tr. 70, 71, 102):

‘that the imported material had no commercial use except as .

feed stock for the production of ethyl alcohol, it. was raw,

; ., unmanafactured material within the express criteria laid

down by this Court in Seeberger v. Castro, 153 U- S. 32, 35, +.

until it was subjected to the domestic’ processes of produc- °

tion heres There this Court held that imported material not

fit. for use in the condition imported, was unmanufactured *

‘materials that the meaning of, that word, whieh is.synony- .

_ mous with “produced”? (Allen v. Smith, 173 U. 8. 389, 399),

was ‘‘a thing made which is useful for its own sake and.

vendable as stich’’, and that ‘‘To speak of it as ‘partly

is manufactured’ and deduce a contention theref rom,.ig simply

to assume the question at issue’’, p. 36. With the principle

of this-Court’s decision in'that case (followed bg this Court

| in Spalding v. Castro, 153 U. S. 38, 39; Patton v. U. S., 159

-U: S. 500, 509; Latimer v. U. S.,.223 U. S. 501, 503-4), the

decision of the Court below is in direct conflict. The. See-

- berger case and the decisions of this Court cited in the Peti-

specifically refute the Defendant’s assertion in

apphelya ay rticle to adapt it to a particular use consti-

tutes ‘p aval

must be ‘“‘useful-for its own sake and vendable as such’’

(Seeberger v.. Castro, 35, supra). The d illed spirits,

here domestically.

imported, impure, “poisonous substance, fit only for feed

6) that it is error fo ‘Casgume’’ ‘‘that a process.

on’ ’’. Production requires that the article

produced, possessed thi property; the .

we

rd

ar

as 10

stock for production of ethyl alcohol (Tr. 70, 71, 102), did

not. That there have been ane transformation (Defend-

ant’s Brief: 5) does not preclude another from constituting”

new produetion (decisions of this Court, cited Petition pp.

4-6). It is conflict with the principles, not the specific facts,

| involved in ‘those decisions which furnishes ground for

certiorari. '

’ Finally the Court below refused: to give the words dis-

tilled spirits the meaning which their context‘in Chapter 27

impelled, failed to acedrd the word “*produced”’ the mean-

‘ing due it under the rule of -this Court’s decision in West-

ern Union v. Lenroot. (Petition, p. 4) and which the prior

decisions of this Court (Petition, pp @-6) have established,

and violated the established r t a taxing statute is to .

be strictly construed against the Government (Bowers and

Crooks cases st supra). Where & taxing statute is suscepti- -

ble, as the lower Court. conceded here, of two construc-

tions, that construction must be adopted which is most |

favorable to the tax payer. McFeely v: Commissioner, 296

. U.S. 102; 111; U. 8. v. Merriam, 263 U. 8. 179, 188.

Regarded as a precedent; the lower Court’s decision, at

variance with the Commissioner’s in the same case,, rep-

resents a subtle erosion breaking down fundamental rules

of statutory ‘construction of general public consequence

beyond. the particular injury it inflicts on the. Petitioner.

It introduces confusion regarding the meaning of domesti-

cally ‘‘produced’’ not alone under the present statute but |

with respect to the meaning of that same word concerning

export drawbacks on distilled spirits under Section 8179,

26 U. 8. C,, Internal Revenue Code of 1939 as amended.

*)

U.S. 157, 160, 161.

. . e e ; et,

eee ' ‘a of

) E:- :

The lower Court’s misstatement of : plaintiff's basic

theory. which calls for the exercise of this Court’s power

of supervision. te ; ;

The Court’s opinion below contains the following sup-

posititious ‘statement :*. ‘A slight amount of poisonous or

noxious.material could be induced into pure ethyl alcohol

prior to importation which would only require a simple dis-

tillation process to remove. Under plaintiff ’s basic theory, |

the process of removing the undesirable material would be

‘a production anda drawback would be allowgble’’.

‘ (Opinion, App. 25) (emphasis added) This statement is

wrong as wellas uncalled for because the Court found that

the imported substance was not ‘‘pure’’; that the amounts —

of the poisénous substance, methanol, were not ‘‘slight’’

but ‘‘excessive’’; and that the additional distillation proc-

ess, which supplemented ‘Yhe chemical process, removing the

.- poisonous substance and impurities was not ‘‘simple’’ but

.4¢ynusually complicated’ in nature’? (Finding 7, App. 28,

99). Thus the\Court has made a furidamental misstatement

of Petitioner’s basic _—— By so doing and by the implica- ©

ent

tions of its other statements in its Qpinion (at Appendix

?p. 95-96) the lower Court has furnished further ground for

: allowance of the writ because it ‘thas so far departed from

- the accepted ‘and usual course of judicial proceedings’’

‘Sas to call for the exercise of this Court’s power of super- .

vision’? under the express terms of Rule 19 which includes

these considerations among those governing review on

certiorari. |

———_————$— .

®t thus seems to have considered facts not in the record, ,

warranting reversal under Standard Vacuum Oil Co. v. U. 8. 339

e ‘ a

~

me b | .

ae ‘ oon is

: F. : j ag ‘. > - ‘

Existence of important questions, though present here, |

&

is not required for review of Court of Claims’ decisions,

especially where there exists a seamaate: with this Court’s

. decisions.

This Court observes in n the « case of initipioeai of the.

‘Court of Claims ; a special and more liberal rule for review ’

by paeue Where a decision of. the. Court of Claims is

in conflict with that of a Court of Appeals, thia in itself has

been traditionally sufficient ground for certiorari irrespec- _ ,

tive of the importance of the question. involved. Cahn v. ,

U. §.,.297 U. S. 691: (See statement of this case, Robertson .

and Kirkham, ‘‘Junsdiction of the Supreme Court of ‘the

United States”, 1951, p. 721, footnote 1. Compare. this

Court’s thirteen decisions cited in footnote 2, loc. :

granting. certiorari on the basis of. conflict ‘alone, and |

U. SL y.. Olympic Radio ¢ Television, M9 U.S. 232, 233 ine

—™S. v. Anderson, Clayton & Co., 350 U. S. 55, 57). Such,

a fortiori, must also be the case where: as here the deci-

sion sought to be reviewed i3 in conflict, with this Court’s

own decisions: In U. Sav. Standard Rice Co., 323 U. S.

106, 108, this Court ee certiorari to review a Court

of Claims’ decision for just such ground, namely’ conflict © )

with this Court’ 8 decision: i in another case. This ' Court

granted certiorari in Reynabils v. U. &., 292 U. 8. 443 to:

correct patent errors of the Court of Claims comparable

to those committed by it in this -case; and recently in

Dies v. New York Life Insurance Co.- (No. 58, May- 18,

1959, not yet officially report rte) to review similar errors »

by.a Circuit Court of Appeal als. { Certiorafi i is also granted :

because of this Court’ 8 tibts hs to edrrectness of the deci-

sion below. Chatwin: ¥, es 826 U. 8. 455, 459.

Bee also ‘Supreme. Court Practice,’? by Robert L._

Stern and Eugene oe 2nd ed. 1954, p. td and

a

a Ae ee ee

18

| Supreme Court decisions cited. At pp. 137-138 it is stated

with regard to review by this Court of the Court of ail ;

decisions that ‘The issues arising. in this type of litigation |

frequently have a unique importance which warrants review

- by the Supreme Court, inasmuch as so many of the legal.

responsibilities of the Government are determined solely

in the Court of Claims. The possibility of conflict with

decisions of other courts is minimized andthe decisions of

the Court of Claims alone would often settle the law in

the absence of Supreme Court review. Certain issues thus

acquire. an. importance justifying review, an importance -

- which they would not otherwise have in the context of

- private litigation’. The Court of Claims, a court of first -

instance, would otherwise be automatically converted into’.

a court also of last resort whose decisions would not be

subjected to review." Ceo ie

It has also been the practice of this Court to grant the .

writ where the. Government though maintaining the cor-

- yectness of the result, believes that the reasoning of the —

_.Court of Claims cannot be sustained and is likely. to intro-

“duce confusion into the law. Robertson. and Kirkhar§y

© supra, pp.’ 722-723 and foojnote 4, citing Mass & Wald-

stein Co. v..U. 8. 283.U. 8. 583. A fortiori, the writ should

"be granted where, regardless of the Government’s belief,

the decision is, as here, in fact wrong because in conflict

with the principles.of.’this Court’s decisions and in fact

likely to introduce confusion in the law.

. © With regard to decisions of a Court of Appeals, it is ‘there

stated (p. 114) that where such a decision ‘‘elearly fails to apply

prior Supreme Court decisions because of error or oversight, the

=

Court usually grants certiorari.’’

: \ : ‘

¥ a as

| ( 14 paras

oi” i a se

e ae Conclusion.

Because of all. these qftrorg committed by the lower

Court and for these additional Teasons, as yell as fof those

presented in the Petition, it is subiniitted that, in order to

prevent a gross miscarriage of justice, the — for a

Writ of Certiorari, Should ‘be —

+ | Dated Suns 9, 1950.

_ Respeétfully submited,

‘SUMNER For, , £33:

. ; Attorney, -for Plaintiff-Petitioner, Q.

. *. . Office and Post Office Address : “

hy tee cat “15 Broad Street,

ee eee age Borough of Manhattan, ,

| ie hoo New York § N.Y. \

hentai Assorr & Moraax, }

Pav Pryror, :

-"Sropparp B. Cozsy, 4 eee

Tomyton vie, 3 . wee | a

* Joux Cemanigay ER, JR., Pre.

Of Counsel.

(lx

"Oe