# Petition for Writ of Certiorari — International Union, United Automobile, Aerospace & Agricultural Implement Workers v. Fafnir Bearing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0392%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1965 - **Citation:** 380 U.S. 950 ## Text Ottice- Supreme Court, U.S. 4 FILED PND hake Oh Sn! oo nor mt wore i ; ae ! IN THE JOHN F. DAVIS. CLe?K f Supreme Court of the United States October Term, 1964 non B25 EBER BROS. WINE & LIQUOR CORPORATION, Petitioner, v. THE UNITED STATES, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF CLAIMS -—— = Justin N. FetpMAn Attorney for Petitioner 777 Third Avenue i ew York, New York 10017 Of Counsel: HERBERT PRASHKER Rosert B. SHarro and Pouettri Frempin PRASHKER FELDMAN & GARTNER of New York City TAPLE OF CONTENTS PAGE IN ete here en 2 Moanash copianesanies 1 ST RAT a EEN LOE ROOT TOT SEIT TT 2 Coermmpnces: TPO IN anna e cick ctenecansentereeenes 2 CoNSTITUTIONAL PROVISION INVOLVED ................0.0000:0.065. 2 I are face rts ps dineaias Antetiieamneeans 3 Reasons For GRANTING THE WRIT ........................5:6600000 11 The Importance of the Question 0... 11 The Rationale of the Decision Below: The Presi- dent’s Qualified Right Unilaterally to Demand Personal PreeemGatiem .........:....6...6...0.06.....0...... aie 15 Delivery of Bills to the President’s Office at the Seat of the Goxernment Constitutes Adequate RII oot. aratss os~ arp oeceeremmlnaa Hersatsasee 18 The Constitutional Scheme Envisioned by the Decision Below is Uncertain and Unworkable 23 The ‘‘Ground’’ of Congressional ‘‘Acquiescence’’ 28 RN Foie oe RA nee Le ea eaa hiatade ice 29 Se SRR LEE I! PAGE TABLE OF AUTHORITIES Cases: Edwards v. United States, 286 U. S. 482 (1932) .... 13, 14 La Abra Silver Mining Co. v. United States, 175 U. S. 423 (1899) a AERP AERA CRANE SEL Seen Be Tatts tees 13 Missouri P. Ry. Co. v. Kansas, 248 U. S. 276 (1919) 1 The Pocket Veto Case, 279 U. S. 655 (1929) .........13, 27-28 Wright v. United States, 302 U. S. 583 (1938) ..... ..18,15 21-23, 27-28 Constitutions and Statutes: United States Constitution: (NT EGAROCD, ale Beara tier Slepenare ar erat perriee rare 6, 19 I co esans cexteaigosersd wersessnseeessnnenaconenneesd passim I rad ccanesvtcsipraenscpainonicaninssstcssoniny aanies 2, 25 pe ae ere Lib Sea Raps Sen ROR SP Pr 18 at. 5h, 3 ....... dace Ngiaceernicecavccsounancren 19 Massachusetts Constitution (1780) 000.000. 12 New York Constitution (52h Mpeiinaderd Sia ete aeagcaee 12 0 To Sadao ccaphan passesscesaca rgsseeoeorannn 2 dea 5 cos aa cli casa ivesnencaeednoaanswnsern 3 et ak aseresnrayysesnias ivvasieesakioo essed 3 Books and Articles: ees Baker, The Fundamental Law of American Constitu- tions (1916) ............ FS Syren slag NE at Aa Bd tc IRM te ae 12 Beard, ‘‘ Veto Power, ’* Cyclopedia of American Gov- ee Bellanca a civewrs ye vanachanslascinbsins 12 Ii! Black, Handbook of American Constitutional Law RO NS nsec hadi csencpnessaacuamsmenbeceeentrons Bryce, The American Commonwealth (3d ed. 1907) Dougherty, Constitutional History of the State f Be es BIE hein ese tes Elliott, Debates in the Several State Conventions on the Adoption of the Federal Constitution (1836) Farrand, Records of the Federal Convention (Rev. Bg RRR UDR aie Rs ina atled vita o acne oro Farrand, The Framing of the Constitution (1913) Fisher, The Evolution of the Constitution of the United States (2d ed. 1910) .................c cece: Frothingham, A Brief History of the Constitution and Government of Massachusetts (1916) Lincoln, The Constitutional History of New York SERRE NaS oe pede = NC Oe ary I CNC DOE MO Norton, The Constitution of the United States (1940) Pierce, Notes, in The Formation of the Union (House Doc. No. 398, 69th Cong., Ist Sess.) (1927) ........ Story, Commentaries on the Constitution of the United I I MII oss Featesases insane trirmcretintcens ie .) Se we | ene Coenen ee ee Warren, The Making of the Constitution (1928) .... Zinn. The Veto Power of the President, 12 F. R. D. 207 (1951) PAGE 19 12 12 12 12 14 av Miscellaneous: PAGE The Federalist, Nos. 69, 73 (Hamilton) 0... 12 105 Congressional Record (1959) .........._..4, 6, 7, 14. 26 Journai of the House of Representatives (Aug. 31, Reet SL ene ABR a et in Oe DOE TOT 6, 9, 10, 26, 27 H. Rep. No. 118 (86th Cong., Ist Sess.) (1959) ......... § S. Rep. No. 758 (86th Cong., Ist Sess.) (1959)... .. 5) S. 994 (86th Cong., Ist Sess.) (1959)... ale S. 2539 (86th Cong., Ist Sess.) (1959) 0 H.R. 6596 (86th Cong., Ist Sess.) (1959) ete H.R. 2717 (86th Cong., Ist Sess.} (1959) ..0............passim H. J. Res. 510 (86th Cong., 1st Sess.) (1959) one eee 11 Memorandum of Attorney General Brownell (July 5, NS ein ata saree ty wmlouneenaneniies reaches 7-8, 14, 22 1943) ........ Memorandum of President Roosevelt (Nov. 10, 1943) 26 N. Y. Sunday Times (Oct. 25, 1964) .....0.0000 | 6d IN THE Supreme Court of the United States October Term, 1964 is eet St a Eser Bros. Wine & Liquor CoRPORATION, Petitioner, v. Tue Unitep States, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF CLAIMS To the Honorable Earl Warren, Chief Justice of the United States, and to the Honorable Associate Justices of the Supreme Court of the United States: Petitioner respectfully prays that a writ of eertiorarl issue to review the judgment of the United States Court of Claims entered in the above-entitled case on October 16, 1964. Opinion Below The opinion of the Court of Claims (Appendix B, infra, p. 3a) is reported in 337 F. 2d 624. st Jurisdicti The judgment of the Court of Claims (see Appendix B, infra) was entered on October 16, 1964. The jurisdic- tion of this Court is invoked under 28 U. S. C. §1255(1). Question Presented Whether a bill, passed by both houses of Congress, and physically delivered by Congress, in accordance with estab- lished practice, to the Office of the President at the Seat of the Government,’ was, by such delivery, ** presented”’ to the President within the meaning of Article I, Section 7, Clause 2 of the Constitution, and so became law when not returned by the President to the Congress within ten days of such delivery (Sundays excepted), Congress not having previ- ously adjourned, when the President had been abroad at the time of the delivery of the bill to his Office and there- after returned the bill to Congress with a message of dis- approval within ten days of his arrival in the United States. Constitutional Provision Involved ‘‘Every Bill which shall have passed the House of Representatives and ‘he Senate, shall, before it be- comes a Law, be presented to the President of the United States; If he approves ke shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall 1. U.S. Const. art I, §8, cl. 17. a 3 , enter the Objections at large on their Journal, and proceed to reconsider it. If atter such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House. by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bul shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournmeni prevent its Return, in which Case it shall not be a Law.’’ U.S. Const. art. I, 7, el. 2 (italies supplied). The text of the bill in question, H.R. 2717, 86th Cong., 1st Sess. (1959), is set forth in Appendix A, infra. , Statement (This suit was brought by petitioner in the Court of Claims under 28 U. S. C. $1346 and §1491° for the refund of income taxes overpaid by petitioner. The respondent asserted the Statute of Limitations as its only defense. (See Answer, Record, pp. 24-25.) That defense had been expressly barred by the terms of H.R. 2717, 86th Cong., 1st Sess. (1959) (see Appendix A, infra), passed by both Houses of Congress and delivered to the Office of the President at the White House on August 31, 1959. From 2. Additional statutory bases for the claim are set forth in the Petition below, Paragraph 12 (Record, p. 4). 4 August 26 to September 7, 1959 the President was out of the country. On September 14, he returned H.R. 2717 to the House of Representatives with a message of disap- proval. Congress adjourning at 6:22 a.m. on September 15, the bill was not reconsidered.® Upon these facts the court below found that, if H.R. 2717 was ‘‘presented’’ to the President on August 21, 1959 and consequently became law upon the expiration of ten days (Sundays excepted), ‘‘ plaintiff is entitled to a refund for the overpayment of income taxes in a total amount of $150,634.18”’ plus interest (Finding of Fact 4). The court concluded, however, that H.R. 2717 was not ‘*presented”’, within the meaning of Article I, Section 7, Clause 2 of the Constitution® until September 7, 1959, the date of the President’s arrival in the United States, and that his re- turn of the bill to the House of Representatives on Septem- ber 14, 1959 with his disapproval accordingly constituted an effective veto thereof. The court thereupon dismissed plaintiff’s suit as barred by the Statute of Limitations. The sole issue in the case was whether H.R. 2717 was ‘‘preserted’’ to the President within the meaning of Sec- tion 7 wher it was delivered to his Office on August 31, 1959. 1. The Passage of H.R. 2717. ‘‘A Bill for the Relief of Eber Brothers Wine and Liquor Corporation’’, H.R. 2717, 86th Cong., 1st Sess. (1959), waiving the Statute of Limita- 3. 105 Cong. Rec. 19688, 19749 (Sept. 14, 19595. 4. The parties have so stipulated. Record, p. 29. The Findings of Fact by the Court of Claims are set forth in Appendix B, infra, p. 3a at pp. 21-42, and are cited herein as “Finding fe 5. Hereinafter referred to as “Section 7”. 4) tions as to petitioner’s claim for the refund of an over- payment of income taxes for its fiscal years 1947 and 1948, was introduced in the House of Representatives on January 15, 1959 (Finding 2). The pill was duly referred to the cognizant House Committee, which, having considered a Ty asury Department report opposing passage of an iden- tical bill previously introduced (see Record, pp. 16-17), unanimously recommended passage (H. Rep. No. 118, 86th Cong., Ist Sess. (4959)). The House passed the bill on March 17, 1959 (Finding 2). The cognizant Senate Com- mittee likewise unanimously recommended passage (S. Rep. No. 758, 86th Cong., 1st Sess. (1959), reprinted at Record, p. 13), and the Senate passed the bill on August 97, 1959 (Finding 2). The pill was duly enrolled, signed by the presiding officer of the Senate and by the Speaker of the House and sent to the Committee on House Administra- tion for presentation to the President (ibid.). 2. Delivery of H.R. 2717 to the Office of the President. On August 31, 1959, H.R. 9717, with twelve other bills, was physically delivered to the White House by a clerk of the Committee on House Administration (Finding 6). All thirteen bills were accepted by Mr. Tom Jones, a legis- lative clerk on the White House staff, who signed receipts therefor in the customary form: WHITE HOUSE Washington, D. C. Recervep from the Committee on House Administra- tion of the House of Representatives the following enrolied House Bills: * * * 6 (See Findings 5, 6). The procedure thus followed for the delivery and receipt of enrolled bills by Congress to the President—by an agent of the Congress to a legislative clerk of the White House, rather than personal delivery to the President himself—has obtained ‘‘at least since 1931, and for some period of time prior thereto, the dura tion of which is uncertain’? (Finding 5). Accordingly, upon the reiurn to the House of Representatives of the White House receipt for H.R. 2717, a notation was made in the House Journal for August 31, 1959 in accordance with the usual practice®: ‘“Mr. Burueson, from the Committee on House Administration, reported that that Committee did on this day present to the President for his ay proval a bill of the House of the following title: e * td “TLR. 2717 * * * A bill for the relief of Eber Brother Wine and Liquor Corporation * * *.”’ (italics supplied ).’ a The Journal for August 31, 1959, couitaining this notation, was read and formally approved by the House the following day: See 105 Cong. Rec. 17539 (Sept. 1, 1959). 3. The Expiration of Ten Days (Sundays Excepted) without Presidential Action. Upon delivery of H.R. 2717 and the twelve other bills to the White House on August 31, they were immediately referred by the President’s staff to the Bureau of the Budget and were processed in the normal 6. The House is required to keep a Journal under the Constitu- tion. U.S. Const. art. I, §5, cl. 3. 7. A similar notation appeared in the Congressional Record for August 31, 1959 (Finding 6: 105 Cong. Rec. 16022 (Aug. 31, 1959) ). 7 manner in which bills are processed foliowing presentation (Finding 7). H.R. 2717 was returned to the White House with the recommendations of the Bureau of the Budget and the Treasury Department on September 9 (ibid.). The other twelve bills were approved by the President on Sep- tember 8 and September 9, all within ten days following their eclivery to the White House. The President, however, took re action on ELR. 2717 until September 14, twelve days (Sunday excepted) after its delivery. At that time he returned Bi. 2717 with a message of disapproval to the House of Representatives (Finding 2), which was then in recess awaiting adjournment. The Senate being notified later that day that a ‘*veto”’ message had been received, Senator Keating of New York inquired on the floor of the Senate whether H.R. 9717 had uot automatically become law upon the expi- ration of ten days (Sundays excepted) following its de- livery to the office of the President on August 31, 1959. The Presiding Officer of the Senate stated that the ques- tion was ‘‘for the courts to decide:’’ 105 Cong. Ree. 19553 (Sept. 14, 1959). This colloquy on the Senate floor is set forth in Appendix C, infra, pp. 6a-8a. 4. The President’s Absence. On August 26, 1959, five days before the delivery of H.R. 2717 to the White House, President Dwight D. Eisenhower left the United States for Europe; he was to return on September 7 (Finding 8). On the occasion of an earlier trip abroad to Geneva in 1955, the Attorney General had suggested to the Presid« it: ‘‘that you confer with leaders in Congress so that arrangements can be made under the law for enrolled EE ean aes ee Rae ane ee te SOS en SES 8 bills or joint resolutions to be held in Congress until your return. ‘‘In this way, your attention to the important mat- ters raised in Summit Talks will not be diverted by consideration of bills which may safely await your return. “Tf Congressional leadership believes that the mat- ter is serious enough to warrant your immediate atten- tion, it should be advised to forward the bill te the White House with this understanding: 1. That the entries on the House and Senate Jour- nals will carry the statement: ‘Delivery to the White House for forwarding to the President.’’’ Memoran- dum of Attorney-General Brownell, July 5, 1955, Plain- tiff’s Exhibit 3, reprinted in Appendix C, infra, page 5a (italics supplied). Prior to his departure for the trip here in question in August 1959, the President had ‘‘indicated his desire’’ to some unidentified person or persons on his staff that ‘‘so far as possible, he wanted Congressional bills to be held in Washington until his return’’* (Finding 17) (italics sup- plied). The President’s ‘‘desire’’, however, was not imple- mented in the case of H.R. 2717 by either of the alternative methods proposed by the Attorney General ‘in 1955: it was not held in Congress until the President’s return, nor 8. The President’s “desire”, as thus found by the court, is am- biguous as to the manner in which he desired bills to be held in Washington, or as to what was understood by “‘so far as possible.” Presumably, he meant ‘“‘so far as possible” under the Constitution. The President might have meant (in accordance with the 1955 memo- randum of Attorney-General Brownell (see text immediately supra) ) that he wished his staff to arrange, “so far as possible’, that Con- gress delay delivering bills to the White House until his return, and thus clearly delay their “presentation” to him. 9 did the House Journal reflect that its delivery to the Office of the President was ‘‘for forwarding’’ to him.* Instead, two of the President’s aides, Mr. Gerald Morgan” and Mr. William Hopkins" ‘‘decided that * * * the bills re- ceived [by the President’s Office] during [the President’ s] absence should be stamped ‘Held for presentation to the President upon his return to the United States’ ’’ (Finding 17), ‘language never before used on prior occasions of Presidential absence from the country’’ (Finding 8). The legislative clerks on the President’s staff were instructed to place this stamp on all bills received at the White House after the President’s departure and on all receipts for such bills (ibid.). Prior to the President’s departure on August 26, 1959, the President’s Deputy Assistant for Congressional Af- fairs, Mr. Bryce N. Harlow, ‘‘dis enss[ed] * * * the matter”’ with ‘Congressional leaders’’. The record, however, ‘‘does not disclose what was said in these discussions’’, or even which ‘‘Congressiona! leaders’? were present, “since, as the President’s agent, Mr. Harlew did not deem it proper at the trial to disclose the detail of the conversation’’ (Finding 8); nor is there any indication in the Record of any congressional aciion whatsoever taken pursuant to this ‘‘diseussion.”’ Despite the instructions given by the President’s aides to the White House staff as te the ‘‘Held for presentation * * **) stamp, the normal ‘‘Received’’ stamp was applied 9. On the cortrary, it recited that the bill had been * ‘presented to the President” on August 31, 1959 (Finding 6). P 10. Deputy Assistant ty the President. 11. White House Executive Clerk. 10 to H.R. 2717 on August 31, 1959. Upon discovering his error, the White House clerk who had receipted for the bill asked the cognizant House clerk to return the original receipt for restamping. When informed that the receipt had already been placed in the files of the Committee on House Administration, the White House clerk then asked that a piece of paper bearing the new stamp be attached to the original receipt; upon the advice of the Parliamen- tarian of the House, this was not done (Finding 9). And, as already noted, the House Journal states that H.R. 2717 Was ‘on this day [August 31, 1959] presented to the Presi- dent for his approval’’ (Finding 6).” 5. Treatment of Other Bills During the President’s Absence.