# Brief for the Respondents in Opposition — Federal Communications Commission v. Broadcasting Service Organization, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0339%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondents in Opposition - **Published:** January 1, 1949 - **Citation:** 337 U.S. 901 ## Text BLEED ‘THR OUGH — POOR « IN THE Supreme Court of the United States October Term, 1948 ee FeperaL ComMunicatTions CoMMISSION, Petitioner, —V.— BroabcastinG Service Orcanization, Inc., Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION —— ee Ben S. Fisuer, Joun P. SourHMayp, 902 Warner Bldg., Washington, D. C., Attorneys for Respondent. Watter M. Bastian, National Press Bldg., Washington, D. C., Of Counsel. ease OPY PAGE I a elcaeadidlialabiinncsieniccietiendéabecnducaoin 1 elas eeitnnpdorasninnees 1 I sels cnarcasentssinnseniesieastesadsnoes 2 RLS 2 GT SE EE 2 Present Organization of Respondent ............ ‘iene 3 RR I ooo cccesoniececaecereascverenesaneveeuees 4 Claims Made Against the Stock 0... 6 pe eB esls on b 8 Reasons for Not Reporting the Acquisition .......... 8 Unauthorized Purchase of Stock in the Name of I 9 Transfer of 60% of Voting Stock Reported in 1938 11 Purchase of Class A Non-Voting Stock ............. 11 Purchase of Remaining Interest in B Stock ........ 12 Final Settlement of Claims 2000000000000... 0ccccccccccecseese. 13 Application for Construction Permit —............ 14 Service Rendered by Station WORL 14 Proceedings Subsequent to Hearing ....00..00000.0......... 15 Reasons for Denying the Writ .00.00..00.00.00.0ccccccccccecceecseeoeee 17 Appendix Conclusion ii CrraTIONs: PAGE Pp UD UD iS SS ees 27(n) Riis: SIRI cacsceshstlccseeshicscirensanishetatenapdeninnpehindenibaldlismemuinadie 20 Bay State Beacon Inc. v. Federal Communications Commission (App. D. C.) No. 9766, Slip Opinion, decided December 20, 1948 _..0.........-.....-cccccecceceeceeneeses 27(n) Black River Valley Broadcasts v. MeNinch, 101 F. TID stieiceecnnstiteinrenittiiniaitaitaines 27(n) Bonwit Teller & Co. v. Coumnr. of internal Revenue, 53 F. 2d. 381; Cert. den. 284 U. S. 690 ...................... 20 Brown Investment Co. v. Warner, Register of Copy- rights, 161 I. 2d. 910; Cert. den. 382 U. 5. 3UL ........ 20 Carlson v. Federal Communications Commission (App. D. C.) No. ¥5«7, Siip Upinion, decided f'eb- ruary i4, ly4y 27(n) Chicago Junction Case, 204 L. dS. 208 . 2U Clark v. Lebersee finanz-iiorporatiou, A. G., 332 U. S. 484 27(n) Consolidated iKdison Co. v. National Labor Kela- FS LS DS ee 20, 28 Crowell v. Benson, 285 U. 8S. 22 ....... 28 Donaldson v. Read Magazine, 333 U.S. 178 .00000....... 25, 26 E. Anthony and Sons, Inc. v. National Labor Rela- tions Board, 163 F. 2d. 22; Cert. den. 332 U. S. errr rrr rrr BLEED ‘THR OUGH — POOR C iii PAGE Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266 .2...2...2-...--cc-eecceeceres 23, 27(n) Fields v. Hannegan, Postmaster, 162 F. 2d. 17; Cert. A I Oi 25 Hannegan v. Esquire, Ine., 327 U. S. 146 2.00... 27(n) Hilton v. Sullivan, 334 U. S. 323 2.002222... eeeeceseeeeeee 27(n) Hurley v. Lowe, Deputy Commr., Bureau of Km- ployees’ Compensation, 168 F. 2d. 553; Cert. den. PRE ie ie Seed CRON een Re NO 25 | Leach v. Carlisle, 258 U. S. 138, 140 ~...002.000 ee 20 Liberty Mutual Insurance Co. v. Cordello, 330 U. 8S. IO sicecisc delsiash ceahieieaneshceiiadk abecb kiatiahlasnttiaabaasaemneialents 26 Mansfield Journal Company v. Federal Commiunica- tions Commission (App. D. C.) No. 9817, decided IE Teas UIE cecstbccindcpidintatnsiasisdsesieilhchiabssttrinantitahaattantahienoaiiba 26(n) National Labor Relations Board v. A. 8. Abeil Co., Be A: OEE cdescasosanatoesguebiealapleshh ninidinhdiasidaabiiumlantsictnguaiens 20 National Labor Relations Board vy. Columbian Enameling and Stamping Co., Inc., 306 U. S. 292, aR RE eens ce eRe me eee 20, 28 National Labor Relations Board y. Pennsylvania Greyhound Lines, 303 U. S. 261, 271 — 20... 20 National Labor Relations Board vy. Sheboygan Chair A EE Re ee en ee 20 National Labor Relations Board v. Waterman Steamship Corporation, 309 U. S. 206 2... 26(n) Norris & Hirshberg, Inc. v. Securities and Exchange Commission, 163 F. 2d. 689; Cert. den. 333 U. 8. PAGE Panhandle Eastern Pipe Line Co. v. Federal Power Commission, 169 F. 2d. 8S1; Cert. den. 332 U. S. UO ech ciesctehiedacadetebibecdacibilsaidebsnidtdaihanetninoe 25 Saginaw Broadeasting Co. v. Federal Communica- tions Commission, 96 F. 2d. 554; Cert. den. 305 RESINS RRS an RET AEG ee ae ae 23 S. E. C. v. Chenery Corp., 318 U. S. 80, 94 00000... 23 Simmons v. Federal Communications Commission (App. D. C.) No. 9607, decided May 24, 1948, PUT Ne SF ie MN I cicemveconsreciousvooeremennesivapintttinononieas 26(n) WOKO, Ine. v. Federal Communications Commis- RG RAAR SOR OR 2, 16, 17, 21, 24, 28 Yankee Network, Inc. v. Federal Communications AS | Se . . eee 28 Sratutes Cirep Communications Act of 1934, 48 Stat. 1064, 50 Stat., BO Ge Oe a OE IIE erecsarcccacdchecenceccersbnc 2 TOOTIITE TOO) ccccevecnecenrocsscccvoserenene TEMAS 2, 17, 24(n) Ne ube lial 9, 15, 16, 22 28 U.S. C. 1254(1) BLEED ‘THR OUGH — POOR | IN THE Supreme Court of the United States October Term, 1948 No. 584 > FEDERAL COMMUNICATIONS COMMISSION, Petitioner, —vV.— BroapcastinG SERVICE Organization, INnc., Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT —$—~»—_ BRIEF FOR THE RESPONDENT IN OPPOSITION Opinions Below The Decision and Order of the Federal Communications Commission (R. 539-568, 600-601) have not yet been re- ported. The opinion of the United States Court of Appeals for the District of Columbia Circuit (R. 608-620) has not yet been reported. Jurisdiction The judgment of the Court of Appeals was entered on November 24, 1948 (R. 620-621). The jurisdiction of this Court is invoked under 28 U. S. C. 1254 (1). a Ory 2 Question Presented Whether the Court below erred in holding that, as a matter of law, the Federal Communications Commission is not empowered by the provisions of the Communications Act of 1934, as amended, and the Decision of this Court in the WOKO case (329 U. S. 223) to deny the application for renewal of license of Station WORL on the ground that respondent does not possess the character to be en- trusted with the responsibilities of a licensee, there being no substantial evidence to support the findings and conclu- sions of the Commission with respect thereto. Statute Involved The pertinent provisions of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S. C. 151, et seq. are set forth in the appendix to the Government Petition for Writ of Certiorari, pages 23-26. Statement of Case Because of certain inaccuracies and inadequacies in peti- tioner’s statement of the case, respondent finds it necessary to review in detail the facts established by the record. Broadeasting Service Organization, Inc. has been the licensee of Station WORL, which operates in Boston, Massachusetts, on 950 Ke., with 1 KW, daytime only, since November 20, 1931. That it has been and is rendering a meritorious program service in the public interest, con- venience or necessity is established by the record and not questioned by the Commission (R. 288-296). On May 27, 1944, respondent filed an application pursuant to Section 309 (a) of The Communications Act of 1934, as BLEED ‘THR OUGH — POOR 3 amended, for renewal of its station license. Thereafter, this application was designated for hearing. The hearing was held in the fall of 1944 before an Examiner designated by the Commission. Present Organization of Respondent. Broadcasting Service Organization, Inc. is a Massachu- setts corporation with outstanding capital stock consisting of 1000 shares of non-voting Class A preferred and 1000 shares of voting common designated as Class B. Since November 1943 the officers, directors and stockholders have been : B Stock Name Office A Stock (Votirg) Harold A. Lafount Director-President 1000 400 Sanford H. Cohen Director — 400 George Cohen Treasurer a 200 Robert E. Davison Director-Clerk — — Secretary (R. 235, 355, 391) All are citizens of the United States and possess the qual- ifications required of officers, directors, and stockholders of a licensee corporation. In 1927, after a successful business career, Harold A. Lafount was appointed a member of the Federal Radio Commission. He left the Commission in 1934 and since then has been employed as General Manager of ali the radio interests of Mr. Arde Bulova (R. 21-23, 305). Sanford H. Cohen, a former Assistant United States Attor- ney, and George Cohen are brothers who have been asso- ciated in the practice of law in New York City since 1920. Robert H. Davison of Boston is an attorney-at-law of high- est reputation (R. 26, 27, 83, 225-27, 279, 305-6). The 1937 Agreements. Prior to March 25, 1937 the stock of the licensee was distributed as follows: Name A Stock B Stock George A. Crockwell 400 200 James K. Phelan 300 150 William H. Eynon 300 150 Robert C. Nordblom —_ 500 (R. 354, 386) Station WORL had been steadily losing money and the stockholders decided to sell the stock (R. 62, 322). Negotia- tions were held with Crockwell. Nordblom, Crockwell, Phelan and Eynon entered into an agreement between them- selves of their intended sale of 700 shares of the stock owned by them in the corporation owning and operating Radio Station WORL (R. 382). Lafount had nothing to do with this agreement and was not even aware of its existence (R. 57-8, 67, 71). On March 16, 1937, Crockwell, Nordblom and Lafount entered into an agreement for the transfer of 400 shares of B Stock (300 to be supplied by Crockwell and 100 by Nord- blom) to Lafount for a consideration of $48,000.00. Crock- well and Nordblom undertook to pay all the debts of the corporation existing on March 25, 1937 (with certain excep- tions) from the proceeds of the sale, to reduce the liquidat- ing value and the annual dividends of the preferred stock, and to cause certain changes in the by-laws of the corpora- tion. The closing was set for March 25, 1937 (R. 385). On March 25, Crockwell, Nordblom, Phelan, Eynon, Lafount and Ben 8. .Fisher (attorney for Lafount and the Cohens) met at the office of Robert H. Davison, attorney BLEED ‘THROUGH — POOR 5) for the licensee and its stockholders. An escrow agreement was entered into between Crockwell, Nordblom, Lafount and Davison providing tat $48,000 was to be paid to Davison as escrow agent to pay off the debts of the corpo- ration, the balance to be distributed 6214% to Crockwell and 3714,% to Nordblom (R, 74, 75, 80, 81, 593). The Cohens not being present at the closing, Ben 8. Fisher, as Agent, entered into a separate agreement with Nordblom whereby he (as such agent) agreed to purchase 200 shares of Class B stock for $4,500 (R. 396). A cashier’s check in the amount of $52,500 was delivered by Lafount to Davison in payment for the 400 shares purchased by Lafount and the 3U0 shares purchased by the Cohens (R. 82-85). Temporary certificates were issued, one to Lafount for 400 shares and one to Nord- blom for 300 shares. The latter was endorsed by Nordblom in blank and delivered to Lafount. The temporary certifi- eate for 300 shares was issued in Nordblom’s name because Lafount did not know at that time how the Cohens wanted their 300 shares apportioned between them (R. 106, 109, 115, 116). No arrangement was made at the closing as to how the permanent certificates were to be issued (R. 104). Though all the agreements were closed simultaneously, Lafount at all times considered his purchase of the 400 shares and the Cohens’ purchase of 300 shares as separate transactions. They were two distinet purchases negotiated separately and based on separate contracts (R. 62-3, 76, 77, 83, 120, 172-3, 333). Lafount’s acquisition of 400 shares of Class B stock was reported to the Commission on Mareh 31, 1937 (R. 399). Of the $48,000 Lafount paid for his 400 shares of B stock, $38,000 was used to pay off the existing debts of the eorpo- ration. The Cohens had agreed with Lafoun. that they would pay their share of the debts and that the cost of the 700 shares should be divided ov a per share basis to equalize 6 the purchase price, Lafount’s cost being $30,000 and the Cohens’ $22,500 (R. 27, 76, 150, 151, 228, 243). For this reason the “Amount Actually Paid for Stock” by Lafount was reported as $20,000 (R. 112, 399). The consideration for the 600 shares of Class A stock acquired by Crockwell was reported as $26,400, the par value of $44 per share. The report of March 31, 1937 was prepared by Davison, Crockwell’s attorney. At the time it was filed Lafount had no detailed knowledge of the arrangements among Crock- well, Nordblom, Eynon and Phelan for the setilement of the value of the A stock among themselves (R. 56, 66, 74, 399). Claims Made Against the Stock, Shortly after the closing date Crockwell started com- plaining to Lafount about the deal. He called frequently on Lafount, telling him that he wished to get the station back. He stated that Nordblom was dissatisfied too and something had to be done about it (R. 30-31, 103, 117, 155- 157). Crockwell discussed his dissatisfaction with Nerd- blom and with many others. The subject was also con- sidered at a number of directors’ meetings (R. 332-333, 335- 336, 339, 340). Though Crockwell was telling Lafount that Nordblom was dissatisfied, the latter never made any com- plaints or claims and testified that he never was dissatisfied with the transaction (R. 110, 327). The evidence is con- flicting as to whether Nordblom ever expressed any dis- satisfaction to Lafount. However, there is no question that Crockwell led Lafount to believe that both he and Nordblom were very displeased with the whole deal. Furthermore, it is clear that shortly after the March 1937 closing a dispute had arisen between Crockwell and Nordblom which con- tinued over a considerabie period of time (R, 110, 117-118, 155-158, 362). As all the negotiations leading up to the BLEED ‘THR OUGH — POOF 7 March 25, 1937 closing had been conducted with Crockwell, and as he had made all the complaints, Lafount attempted to straighten things out with him rather than with Nord- blom whom he hardly knew (R. 30-31, 57-58, 117). These complaints were received before Lafount had ascer- tained how the Cohens wished to have their 300 shares divided. When Lafount advised the Cohens of Crockwell’s complaints, they refused to permit the permanent certifi- cates for the 300 shares to be issued in their names until all dissatisfaction had been ironed out and no further claims against the stock were outstanding (R. 34-35, 109, 121, 143, 175-176, 228-229, 250). Pending the settlement of the differ- ences a permanent certificate was issued in the same form as the temporary one. Nordbiom endorsed it in blank, and on April 30, 1937 it was sent to Lafount. Nordblom testified that he did not recall why he permitted the stock to remain in his name but believed it was a matter of convenience to the buyers. He was glad, however, to remain a voting stock- holder with 400 shares because the station was a tenant of the hotel he ran and it was good business for him to watch its progress (R. 32, 340, 342). Early in 1939, before any settlement had been reached with Crockwell, both Davison and Crockwell advised Lafount that a Miss Natalie Whitwell claimed to own all the stock of the corporation (R. 31, 176, 222, 252, 333, 339-340, 359- 360). On July 21, 1941 Hines, counsel for Miss Whitwell, wrote Lafount demanding that all the outstanding stock of the corporation be turned over to his client (R. 261-262, 361). In January 1942 Miss Whitwell brought a suit at law | against the corporation in Massachusetts. The court held for the defendants (R. 31, 177-178, 228-230, 261-263). Hines wrote the Commission a series of letters beginning in June 1939 and ending in September 1941 i which he advised the F. C. C. of the Whitwell claims and complained about the COPY 8 ownership of WORL. As late as December 15, 1943, Hines, in testimony before a Congressional Committee, asserted claims against the Corporation on behalf of Miss Whitwell (R. 254). Acts of Ownership. The permanent stock certificate for 300 shares, endorsed in blank by Nordblom, was turned over to Sanford H. Cohen by Lafount immediately upon its receipt and remained in the Cohens’ possession thereafter (R. 30, 121, 228, 280). The Cohens could have sold the stock or had it put in their names because the certificate was negotiable (R. 248, 250). However, the Cohens never voted the 300 shares of B stock. While it stood in Nordblom’s name they never attended directors’ meetings or stockholders’ meetings. No dividends were ever paid on the stock (R. 263). Nordblom voted the stock at all times. In fact, he voted 400 shares of B stock at ten stockholders’ and directors’ meetings from March 5, 1937 up to and ineluding April 16, 1943. There existed no arrangement or understanding governing the stock or the manner in which it should be voted (R. 123-126, 219, 265, 329, 335, 342, 364-373). Reasons for Not Reporting the Acquisition. Thus the B stock continued to be owned of record, 400 shares by Lafount, 400 by Nordblom and 200 by Crockwell (R. 33). Both Lafount and the Cohens believed that as there had been no transfer on the books of the Corporation, and as Nordblom remained the record holder of the 300 shares, it was proper for the applicant to report Nordbiom as the holder of the stock. They did not think that the status of the stock had changed in any way as the certificates were still in Nordblom’s name. They felt that any transfer BLEED THR OL'GH — POOR CO 9 to their names would be unwise at that time for they might wish to rescind the sale and ask for the return of their money. Jn their minds the sale remained unconsummated and the deal had not been closed. The evidence is clear that although the principals might have exercised poor judgment in this respect, if they made a mistake they did not make it in had faith (R. 34, 112, 115-116, 117, 120, 223, 143, 175-176, 228-229, 250-252, 254, 280, 284). Similarly, Lafount and the Cohens believed that in view of the circum- stances and the uncertainty concerning the final transfer of the 300 shares of B stock to the Cohens it was unnecessary under Section 310(b) of the Act to apply for a transfer of control of the corporation. They did not think there had been a transfer of control within the meaning of the law (R. 119, 120, 173-174, 254-255). Sanford Cohen was not admitted to practice before the Commission in 1937—his admission occurred in 1940. Commission records show that George Cohen has never been admitted to practice before the Commission. There is no evidence indicating that in 1937 either of the Cohens was familiar with the Rules and Regulations of the Commission. It is fair to infer—as was in fact the case—that in failing to report the transfer the Cohens were relying upon the advice of the attorneys handling the deal—Ben S. Fisher (radio attorney) and Robert H. Davison (R. 236-237). Unauthorized Purchase of Stock in the Name of Arde Bulova. On July 12, 1937 at Lafount’s request Arde Bulova loaned Crockwell $5,000 on a six months’ note underwritten by Lafount and received 200 shares of B stock as security. Six months after the note fell due Bulova foreclosed, and the 200 shares of B stock were sold at auction for $100. In July 1938 Sanford Cohen left on a vacation. Knowing a sale was going to be held, he told Lafount that he would buy the 10 stock. Lafount instructed Davison to purchase the stock for Sanford Cohen. Because of some legal technicality which Davison though would delay the transfer if the stock were sold to one other than the pledgee, Davison purchased the stock in Bulova’s name on July 28, 1938. When Sanford Cohen returned from California in Septem- ber, he found the stock had been bought in Bulova’s name. The cleanest way to clear title was to have Bulova make a simple assignment of the stock to Cohen so as to show the actual facts. Lafount had advanced the $100 for the pur- chase and was repaid by Sanford Cohen. Cohen was at all times the owner of the stock (R. 35-36, 137-139, 230- 231, 267-270, 402). The purchase in Bulova’s name was a mistake; Bulova was greatly annoyed when he discovered that the stock had been bought in his name, because he was not the purchaser and was not interested in the station. Bulova never considered that he had an investment in WORL (R. 203-204, 317, 319-320). This transfer of 200 shares of B stock from Crockwell to Sanford Cohen for a consideration of $100 was reported to the Commission on November 22, 1938. The date of acquisition was given as September 30, 1938, the date when it was assigned by Bulova and issued in Cohen’s name (R. 141-142, 204-205, 357, 436). At the time the report was made out Cohen had paid only $100 for the stock. The $100 was credited to Crockwell. After the assignment, Cohen advised Bulova that he would attempt to collect the deficiency from Crockwell and that if he did not succeed he would make good to Bulova. No payment was made to Bulova until it became evident that there was no chance to collect from Crockwell. Then Cohen paid Bulova $5,000, the amount of the debt. However, at the time the report was made to the Commission, $100 reflected the actual consideration paid. Sanford Cohen testified that the failure to report the $5,000 might have been an error BLEED ‘THROUGH — POOR C ll in judgment but the report had been made in good faith (R. 231-232, 268, 270, 319-320). Transfer of 60% of Voting Stock Reported in 1938. In report filed with the Commission on November 22, 1938, Harold Lafount was shown as the owner of 400 shares of Class B voting stock, Sanford Cohen the owner of 200 shares, and Robert Nordblom the owner of the remaining 400,—thus indicating that Lafount and Cohen together owned 60% of the voting stock. Although the Commission by this report acquired knowledge that Lafount and Cohen together owned 60% of the voting stock, it did not require that an application for transfer of control of the Corpora- tion be filed (R. 207, 232, 255, 354, 391). Purchase of Class A Non-Voting Stock. In March 1939, on the advice of Davison, Lafount bought 900 shares of Class A non-voting preferred stock at auction for $2,450. Through oversight this acquisition was not re- ported to the Commission on a stock ownership report form until about a year later. Lafount was under the im- pression that the acquisition had been reported immedi- ately but later found out that it had not. He was shocked when he discovered the omission. As proof of his belief that the acquisition of this stock had been reported, the record shows that, upon an application for construction permit, Lafount’s ownership of said 900 shares of Class A stock was set forth (R. 37-38, 98-99, 210-212). In September 1940, Lafount purchased the remaining 100 shares of A stock from one Endlar for $3,100. This pur- chase was not reported until April 1941, again through oversight, Lafount being under the impression that it had been reported immediately, The purchase price of the 12 stock was reported as $3,500., which included $400 legal fees incurred in connection with the purchase (R. 38-39, 208). Lafount’s present ownership of all the A stock has been a matter of record with the Commission since April 1941 (R. 354, 391). On July 7, 1942 the Commission granted an application for renewal of license to Station WORL for the period ending August 1, 1944, having full knowledge of this and other reports filed prior thereto. Purchase of Remaining Interest in B Stock. In September 1940, besides purchasing Endlar’s remain- ing 100 shares of A stock, Lafount purchased Nordblom’s remaining 100 shares of B stock for $1,500. This stock was acquired because there existed a possibility that the corporation would be sold to new interests and in order to do so it was necessary to have possession of all the outstanding stock (R. 140-141). The 100 shares of B stock were purchased from Nordblom for George Cohen at the latter’s request. The stock was endorsed in blank by Nord- blom and given to George Cohen. The $1,500 paid by Lafount was repaid him almost immediately (R. 245, 280, 285). Shortly after the sale Nordblom expressed dissatis- faction with the deal and stated that he did not want it to go through. He was dissatisfied as to the price and because he understood that the station was to be sold and no sale had taken place. Again George Cohen refused to permit the transfer of the stock in his name and Norblom remained the holder of record. For this reason the transfer was not reported (R. 144, 160-161, 280, 285, 336, 391, 403-404). Nordblom centinued to vote the 100 shares as well as the 300 involved in the 1937 transaction. He continued to take an interest in the Corporation, discussed its problems, and attended its meetings. He was glad to remain a stockholder because the station was a tenant of the hotel he ran and it BLEED ‘THR OUGH — POOR ¢ 13 was good business for him to watch the progress of the station. He was alse glad to remain because he was dis- satisfied with the sale (R. 335, 340, 342). Final Settlement of Claims. The final settlement oceurred in November 1943, when Lafount, after consultation with Sanford Cohen, paid Nordblom $750 and received a receipt and general release from “all claims not only on account of the purchase of 100 shares of the Class B stock of Broadcasting Ser- vice Organization, Inc., but from all other claims aris- ing out of your purchase from me of both Class A and Class B common shares * * * ” The $750 was paid by the Cohens but the release ran to Lafount because he had handled all the negotiations (R. 33- 34, 172-173, 350). Though letters written by Nordblom and Davison prior to the execulion of the release refer to the $750 as being “in full payment for 100 shares,” Lafount and Cohen testified that the $750 was to clear up all claims against the 400 shares of B Stock (R. 33-34, 280-281, 406) which is supported by the receipt and general release signed by Nordblom referred to above. The 400 shares of B stock were owned of record by Nordblom until the final settlement of $750 was paid him in November 1943 in final adjustment of all claims (R. 33, 165-166, 281). By this time the Whitwell and other claims had also cleared up. On November 9, 1943 the 100 shares were issued to George Cohen. This was reported on Novem- ber 15, 1943 (R. 36-37, 146, 429). On November 27, 1943 the remaining 300 shares of B stock standing in Nordblom’s name were transferred, 200 shares to Sanford Cohen and 14 100 shares to George Cohen and a report of this was filed with the Commission on December 2, 1943. Though $4,500 had been specified as the contract price, $5,000 was reported as the consideration. This was the actual cost to the Cohens at the time the report was made after the various adjust- ments (R. 34-35, 146, 215-216, 354, 357, 391, 440). Application for Construction Permit. In 1937 the licensee filed an application for full time operation of WORL. The application was denied solely on technical grounds of objectionable interference during night time hours. In connection with this proceeding Lafount submitted a balance sheet of the licensee as of April 30, 1937 listing “Cash in Banks $25,362.11.” At that time the actual cash in the corporation’s bank account was $362.11. Lafount explained that the stockholders actually had the cash available and if the permit had been granted they would have placed the $25,000 in the Corporation’s account to pay the cost of construction of the full time operation. The balance sheet was a proposed balance sheet and it should have been so designated. Lafount considered it ex- tremely unfortunate that the accountant who prepared the statement had not included the $25,000 as a liability. He had not intended to infer that the cash stood to the actual credit of the corporation (Docket 4206, 7 F’. C. C. Reports 242, 246; R. 298-299, 303, 345-348, 401). Service Rendered by Station WORL. When Lafount became President of Broadcasting Service Organization, Inc. in March 1937, the corporation was in bad shape financially. The debts paid off at the closing amounted to $38,000. The station as a whole, including programming, equipment, and accounts receivable, was in very bad shape. As soon as Lafount became President a BLEED ‘THROUGH — POOR ¢ 15 new station manager was hired. Together they succeeded in putting the station on its feet and in furnishing the public with good service. in 1938 the station showed a loss of $11,424, on total receipts of $54,754. In 1943 there was a profit of $25,101 with receipts amounting to $240,468. The Hooper rating rose progressively, putting WORL in a tie for first place during the daytime hours among Boston listeners. All profits were spent to build up the station. Time was regularly donated to at least seventy outstanding national or local organizations as well as to numerous gov- ernmental agencies; and the station received the MeNinch Award for its outstanding weekly public service programs (R. 351, 353, 374-381, 41, 43-4, 135, 288-296). Proceedings Subsequent to Hearing. On October 24, 1945 the Commission adopted a Proposed Decision denying the WORL renewal application. The Pro- posed Decision held that a transfer of control of respondent had occurred March 25, 1937 without Commission consent, as required by Section 310 of The Communications Act and the Rules adopted pursuant thereto, and also found that respondent had submitted false reports and testimony to the Commission concerning this transfer of control and other matters. The Proposed Decision concluded that the WORL renewal application should be denied because re- spondent could not be entrusted with the responsibilities of a licensee (R. 475-502). On November 26, 1945, respondent filed Exceptions to the Proposed Decision accompanied by a Memorandum Brief (R. 503-538). On January 24, 1946, the Commission heard oral argument on its Proposed Decision. On August 26, 1946, respondent and Bitner Broadcasting Company, a corporation having no present broadcast inter- ests or connection with respondent, filed joint application ——_ 16 requestion Commission consent under Section 310(b) of The Communications Act for transfer of control of respon- dent from its present stockholders to Bitner Broadcasting Company for a total consideration of $200,000 (R. 606-607). On April 23, 1947, the Commission released its Decision adopted April 21, 1947, denying the application for renewal of license of Station WORL and dismissing as moot the pending application for transfer of control of respondent from its present stockholders to Bitner Broadcasting Com- pany. A dissenting opinion was simultaneously issued by E. K. Jett, Commissioner. The dissenting opinion points out that on its facts this case differs from that in WOAO, Inc. v. Federal Communications Commission (329 U. 8. 223), and concludes that since the parties are not guilty of having made false statements and concealments designed | to mislead the Commission, the pending applications for renewal of license and for transfer of control of respondent should be granted (R. 565-568). On May 13, 1947, respondent filed a petition for rehearing pursuant to Section 405 of The Communications Act (R. 569-597). On July 28, 1947, the Commission issued an order setting the petition for rehearing for oral argument which was held October 8, 1947 (R. 598-599). On October 15, 1947, the Commission adopted a Memorandum Opinion and Order simply stating that “After careful consideration of our Decision and Order of April 21, 1947 and the record on which they are based, we have concluded that no sufficient reason has been advanced for departure therefrom * * * ”. Ne decision was made on respondent’s request in its peti- tion for rehearing for an opportunity at a further hearing to present testimony on the character and integrity of its principals and no decision was made on respondent’s con- tention that dismissal as moot without hearing of the application for transfer of control to Bitner Broadcasting BLEED THROUGH - POO — 17 Company contravenes Section 309(a) of the Act (R. 600- 601). E. K. Jett, Commissioner, simultaneously issued an opinion dissenting from the October 15, 1947 Opinion and Order, in substantially the same language as his dissenting opinion on the April 21, 1947 Decision (R. 602-605). Respondent has continued to operate Station WORL since the expiration of its last regular license August 1, | 1944, by virtue of extensions of temporary license granted | by the Commission from time to time. Reasons for Denying the Writ 1. The petitioner urges that the WORL case raises legal issues identical to those decided in Federal Communications Commission v. WOKO, Inc., 329 U. S. 223, and therefore “the supervisory jurisdiction of this Court must be exer- cised in order to vindicate the precedential effect” of this Court’s rulings. Respondent’s position is that the legal issues in this case are completely different from the issues decided in the WOK O case; that the decision of the court below is in conformity with established principles of admin- istrative law; that no new or novel question of importance is presented ; and, therefore, there are no special and impor- tant reasons for grant of the writ. As hereinafter shown, there is not the slightest justification for any assertion of need to invoke the supervisory jurisdiction of this Court over the court below because of the decision. It is apparent from a study of the WOKO decision that the question presented was whether admitted concealment from the Commission of stock ownership for purposes of deception supports a conclusion that the licensee cannot be entrusted to continue its operations in the pubiic interest, convenience, and necessity. In the instant case, the question presented is quite different—to wit, whether there is sub- COPY 18 stantial evidence to support findings of fact of misrepre- sentation and concealment of stock ownership, expressly denied by the licensee and its principals, and not contro- verted by other witnesses, which will support a conclusion that the licensee cannot be entrusted to continue its opera- tion in the public interest, convenience, and necessity. The distinction between the cases is far from putative—it is fundamental, as the decision of the court below points out in detail (R. 615-617). Only the most superficial comparison could result in the erroneous conclusion that the cases in- volve “slightly variant factual patterns” but “raise legal issues identical to those already authoritatively decided”. Pages 15-19 of the petition cite a list of authorities to support the proposition that a “course of admitted falsifica- tions and concealments, either entirely unexplained or explained by testimony demonstrably unworthy of belief”, is sufficient basis from which to draw an inference of wilfulness. Respondent does not take issue with this propo- sition or with the authorities cited in support thereof. Respondent does, however, take sharp issue with any con- tention that in this case the record reflects a “course of admitted falsifications and concealments, entirely unex- plained or explained by testimony demonstrably unworthy of belief”. As indicated above, nowhere in the record is there admission of falsifications and concealments. On the contrary, the record is replete with uncontradicted evidence of good faith on the part of the respondent and its principals, professional men of high standing and good reputation. Any omissions or deficiencies which occurred are fully explained. As the court below points out, one of the fundamental defects of the Cominission decision is that it bases in- ference upon inference (I. G18). It finds that there have been certain omissions by the licensee from which BLEED THROUGH — POC 19 it infers (without evidence) that these omissions were deliberate misrepresentations and concealments, from which it concludes that respondent does not possess the character to continue as the licensee. The fallacy of this reasoning is the complete absence of evidence of wilful misrepresenta- tion or concealment. Bad character cannot reasonably and logically be concluded from failure or delay in the filing of certain reports, particularly when all of the witnesses specifically disavow any intention to conceal or misrepre- sent and nothing in the record indicates a purpose or object in misrepresentation or concealment. The opinion of the majority of the Commission (R. 561) admits that “the purpose which may have led the principals in this case to conceal the full extent of the various stock transactions is not entirely clear”, and then attempts to justify the Commission’s action on the ground that the alleged misrepresentations were willful, of which there is not a scintilla of proof. Commissioner Jett in his dissent correctly stated that the record does not support the finding that any of the parties are guilty of having made willful misrepresentations (R. 566-567). Evidently, the Court of Appeals likewise concluded—as its opinion shows—that the record does not support the finding on which is based the decision to deny t'1e respondent’s application for renewal of license, and to deprive the owners of the Corporation of an investment valued at, at least, $200,000.00. The Labor Board and other cases cited on pages 15 and 17 of the petition establish (1) that administrative orders supported by substantial evidence are conclusive on appeal and (2) that administrative agencies may draw reasoned inferences from such findings of fact. The authorities cited do not, however, hold that where, as here, the findings of fact are not supported by substantial evidence, they shall be conclusive on appeal, nor do they hold that unreasonable 2@s.* 6-8. ert COPY inferences or inference upon inference may be drawn from the facts of record. Substantial evidence is evidence of quality; it must have rational probative force and be ade- quate to support a conclusion in the mind of a reasonable man. Consolidated Edison Co, v. National Labor Relations Board, 305 U. 8. 197; National Labor Relations Board v. A. S. Abell Co., 97 F. 2d 951. Substantial evidence is “more than a scintilla and must do more than create a suspicion of the existence of a fact to be established”. National Labor Relations Board v, Columbian Enameling And Stamping Co., Inc., 306 U. 8. 292, 300. Under the system of law guar- anteed by the Constitution, the subsidiary facts must be reached from the evidence and the ultimate facts from the subsidiary facts, not arbitrarily or by assumption or con- jecture or by a process contrary to reason, but according to reason. Although inferences are to be drawn by the agency and not by the court, the inferences must necessarily be reasoned inferences. National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271. To make an essential finding without supporting evidence is arbitrary action, since a hearing implies both the privilege of intro- ducing evidence and the duty of deciding in accordance with it. Chicago Junction case, 264 U.S. 258. See also Baltimore & Ohio Railroad Company v. U. S., 5 F. Supp. 929; Bonwit Teller & Co. v. Commissioner of Internal Revenue, 53 F. 2d 381 cert. den. 284 U, 8. 690; National Labor Relations Board v. Sheboygan Chair Co., 125 F. 2d 436. In short, there must be a reasonable exercise of administrative discretion having a logical relationship to the facts, which is not the case here. The conclusions of the Commission as to wilfulness and intent to mislead, not having been fairly arrived at, and not being supported by substantial evidence, can “justly be said to be palpably wrong and therefore arbitrary.” Leach vy. Carlisle, 258 U.S. 138, 140. BLEED THROUGH —- PO 21 2. Petitionc» complains that the decision of the court below recognizes the good public service record and in- creased financial stability of WORL, whereas this Court in the WOKO case rejected the contention that the Commis- sion must take cognizance of the public service record of a station notwithstanding that concealment and misrepresen- tation had been admitted. The fact is that the court below recognized the ruling of the WOKO case that if there is con- cealment, materiality of such concealment is irrelevant (R. 614, 616). What the court below said on the public service record of WORL is as follows (R. 617-618): “In the view of the majority of this court, the record amply supports appellant’s protestations of good faith. True, the record is replete with evidence that appel- lant’s agents were careless and inaccurate and, perhaps, lacking in good judgment as to the reports required by the Commission, but none of these characteristics in themselves imply bad faith and it is equally certain and of record that none of these characteristics were projected over to and affected the management and conduct of appellant’s business as a radio broadcasting licensee. In fact, appellant’s outstanding public servic record and its progressively increasing financial stabil- ity—both matters of record in this case—expressly negative any such projection.” In petitioner’s effort to establish that the court below ignored the decision of this Court in the WOKO ease, it has distorted the language of the opinion. The statement in that opinion that there are no harmful consequences to the Commission or to the public interest because of respon dent’s improper reports, is made only in connection with: disproval of the poor analogy between this ease and criminal R COPY 22 or tort cases in which intent may be imputed upon a show ing of heedlessness of the foreseeable harmful consequences (R. 618). In Paragraph 13 of the conclusions of its decision denyiny the WORL renewal of license, the Commission made specific findings on alleged violation of Section 310(b) of the Act by respondent, although the denial is predicated upon alleged misrepresentations and concealments rather than violation of Section 310(b) (R. 563). In view of the con- clusions of Paragraph 13, it was entirely proper for the court below to advert to the Commission action of July 7 1942, granting an application for renewal of the WORI. license with full knowledge that Lafount and Sanford Cohen had acquired control of the licensee corporation (R. 618- 619). This action by the Commission is cited by the court not as a bar to denial of the pending renewal application but rather as an indication of the arbitrariness of the Com- mission’s refusal to renew. The court below specifically held ' as follows (R. 619): i “We wish it clearly understood that we are not rul- ing that, once forgiven, a licensee should always there- after be forgiven for irregularity in compliance wit) statute or with rule or regulation. The fallacy of suc: P a rule is obvious. Nor are we ruling that a licensee can with impunity disregard or disobey statute, rule, or regulation. Further, we do not question the power of the Commission, within statutory bounds, to adopt and administer a stricter policy of enforcement of its rules and regulations with regard to revocation or renewal of broadcasting licenses. But the Conunission, and this court on review, must constantly be guided by the pre- vailing purpose of the Communications Act in ascer- taining the result in each case which will best serve tlic eee ee BLEED ‘THR OUGH — POOR C< 23 public interest. In such a determination there is no place for the arbitrary application of pointless tech- nicality unsupported by substantial evidence. We hold, therefore, that, as to this particular case, taking into consideration all of the circumstances discussed abov: the Commission’s decision of April 21, 1947, was im- proper as a matter of law and lacked the support of substantial evidence and was the result of arbitrary and capricious action by the Commission. Accordingly, pursuant to Section 402 (e) of the Act, the decision of the Commission is reversed and the case remanded to the Commission to carry out the judgment of this court.” (Emphasis supplied.) In reversing the Commission, the court below properly used its judgment on the questions of law raised in the appeal. S, E. C. v. Chenery Corp., 318 U. S. 80, 94. It did not substitute its own findings of fact for those of the Commission but held that the findings of the Commission do not rationally support its conclusions as to wilfulness. The court stated that upon independent search, it was unable to find “any single specific portion of the voluminous record before us which would justify the Commission’s conclusion of wilfulness” (R. 616). There can be no doubt that deter- mination by the court below under Section 402(e) of the sufficiency of the findings of fact to support the conclusions of law is a proper exercise of the judicial function. Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266; Saginaw Broadcasting Co. v. Federal Com- munications Commission, 96 F. 2d 554 cert. den. 305 U. S. 613. The Court’s decision is not concerned with the wisdom or the expediency of the Commission action, but is directed entirely to consideration whether substantial evidence sup- ports the findings and conclusions drawn, and considera- 24 tion of the improper application by the majority of the Commission of the rule of law in the WOKO case to the facts of record in this case.’ 3. Apparently recognizing the necessity of strengthen- ing his doubtful contentions on the similarity of the WOKO and WORL cases, the petitioner urges as a further ground for grant of certiorari that the court below, which plays “so vital a role in the review of administrative action” is in need of “supervision by this Court” because of its persis- tent departure from accepted legal principles and substitu- tion of its views for those of administrative agencies. This unwarranted and unjustified attack on the court below, a court long and widely recognized for its competence and experience in administrative law, requires some comment. Table I of the Appendix to this Brief shows that in the | two year period from January 1, 1947, to January 1, 1949, | there have been eighty-five petitions filed for writs of cer- tiorari to the court below. Sixty-eight of these petitions have been denied, and one dismissed. At least twenty-six of the sixty-eight petitions denied involved review by the court below of administrative action. In the sixteen cases in which certiorari was granted, six have been affirmed, six have been reversed, and four await decision. Of the twelve cases decided by this Court, six involve review of administrative action, three being affirmed and three re- versed. Thus, a total of thirty-two cases involving review of administrative action on which petitions for certiorari 1 Respondent urged on the court below that the Commission violated Section 309 (a) of the Communications Act in denying a hearing on its application for transfer of control of the licensee corporation to Bitner Broadeasting Company. The court held that in view of its reversal of the decision on other grounds, “it is unnecessary to make 4 decision at this time” on this contention (R. 619). BLEED ‘THR OUGH — POOF — 25 to the court below have been filed, only three resulted in reversal of the decision of the Court of Appeals. Moreover, only one of the three cases of reversal on review of administrative action involves a determination whether substantial evidence supports administrative find- ings of fact. Donaldson v. Read Magazine, 333 U. S. 178, Justices Burton and Douglas, dissenting. The court below has repeatedly given full recognition to the well established rule of law that administrative findings of fact, if based on substantial evidence, are binding on appeal. For instance, in granting enforcement of an order of the National Labor Relations Board, the court recognized that the Board’s findings were supported by substantial evidence and fur- ther recognized that the court cannot weigh evidence or resolve contradictions in it, if that evidence supporting each conclusion is substantial. EL, Anthony and Sons, Inc. v. National Labor Relations Board, 163 F., 2d 22, cert. den. 332 U. 8. 773. In a recent case in which question as to completeness of an administrative record on appeal was raised, the court below carefully enunciated its duties and responsibilities in reviewing orders of administrative agencies and said that “thus restricted and simplified, the function of the court is simply to see if the Commission’s factual findings are supported by substantial evidence”. Norris & Hirshberg, Inc. v. Securities and Exchange Com- mission, 163 F. 2d 689, cert. den. 333 U. S. 867. See also Panhandle Eastern Pipe Line Co. v. Federal Power Com- mission, 169 F, 2d 881, cert. den. 332 U. S. 762, 93 L. Ed. 39; Hurley v. Lowe, Deputy Commr., Bureau of Employees’ Compensation, 168 F. 2d 553, cert. den. 334 U.S. 828; Fields v. Hannegan, Postmaster, 162 F. 2d 17, cert. den, 332 U.S. 773; Brown Investment Co. v. Warner, Registe, of Copy- rights, 161 F. 2d 910, cert. den. 332 U. S. 801. COPY 26 Of the six cases of reversal of the court below cited on Page 21 of the petition, all pose difficult questions of ad- ministrative law in the main without precedent. It must be remembered that because of its location at the seat of government, the court below is frequently called upon to decide administrative issues of first impression. Of the six cases cited, only Donaldson v. Read Magazine, supra, and Liberty Mutual Insurance Co. +. Cardillo, 330 U. 8. 469 raised issues of support by substantial evidence of admin- istrative determinations. These two cases must be com- pared with the several more recent cases above reaffirming the principle of finality of administrative action when based on substantial evidence. It seems clear from the foregoing analysis and cases that, nothwithstanding the ill-advised protestations to the con- trary in the Brief of the Petitioner, there is no persistent “trend in the court below” to depart from accepted princi- ples of judicial review and substitute its views for those of administrative agencies.* On the contrary, the recent rec- ord of the court below on review of the actions of adminis- 2 In National Labor Relations Board vy. Waterman Steamship Corp., 309 US 206, cited on page 21 of petitioner’s brief, this Court said that “we do not ordinarily grant certiorari to review judgments based solely on questions of fact”. This Court also pointed out that it granted certiorari because of the earnest contention of the Board that this was one of a series of decisions in which the court below (CCA Fifth) had unwarrantedly interfered with the exclusive jurisdiction granted the Board by Congress. The Court of Appeals for the District of Columbia Cireuit has evidenced no such trend toward unwarranted interference with the exclusive jurisdiction granted the Commission by Congress. Besides the cases cited in footnote 4, broadcast decisions of the Commission which have recently been affirmed by the court below include Simmons v. Federal Communications Commission (App. D. C.) No. 9607, decided May 24, 1948, cert. den. 93 L. Ed. 35, and Mansfield Journal Company v. Federal Communications Commission (App. D. C.) No. 9817, decided March 7, 1949. BLEED ‘THR OUGH — POOR ¢ 27 trative agencies is an enviable one by any cbjective stand- ard.’ The petitioner does not amplify the very general asser- tion of his petition that “the rationale of the decision be- low is such that, if allowed to stand, the exercise by adminis- trative agencies generally of powers virtually identical to that here claimed by the Commission will be brought into serious question”. It is difficult to see how the instant deci- sion, confined as it is to the particular facts of record, can undermine the well established principle as to conclusive- ness Of administrative findings of fact when supported by substantial evidence.* The decision specifically recognizes the prior ruling of the court that it is immaterial that evi- dence before the Commission is susceptible of other conclu- sions than those drawn by the Commission and that, assum- ing the presence of substantial evidence, the court will not 3 Recent eases determining varied questions of administrative law m which decisions of the court below have been affirmed by this Court include Hannegan v. Esquire, Inc., 327 US 146; Clark v. Uebersee Finanz-Korporation, A. G. 332 US 484; Hilton v. Sullivan, 334 US 323; Ahrens v. Clark, 335 US 188. 4 It is to be noted that less than a month after its WORL decision, the court below, in affirming a Commission decision preferring one appli- eant for a new station over another, reaffirmed the ruling of Black River Valley Broadcasts vy. McNinch, 101 F. 2d 235, citing Federal Radio Commission v. Nelson Bros. Bond ¢: Mortgage Co., 289 US 266 that the Commission’s “findings, under the law, must be maintained if they are not arbitrary and capricious or erroneous in law, and are based upon substantial evidence”. Bay State Beacon, Inc. vy. Federal Com- munications Commission (App. D. C.), No. 9766, decided December 20, 1948. Moreover, on February 14, 1949, the court below rendered a per curiam opinion in a case argued February 11, 1949 affirming an order of the Commission denying renewal of license of Station WJBW, New Orleans, La. because of violations by the licensee Carlson of the Rules and Regulations. The opinion reads in whole as follows: “We tind no error in the record. The decision of the Federal Commu ications Com- mission is therefore affirmed”. Carlson vy. Federal Communications Commission (App. 1D). C.), No. 9987, February 14, 1949. A petition for writ of certiorari in the Carlson case is being filed April 1, 1949, 28 substitute its judgment for that of the Commission. Yankee Network, Inc. v. Federal Communications Commission, 107 F. 2d 212 (R. 612). Likewise, the decision concedes that where concealment is involved, the question of materiality vel non of the facts concealed has been put to rest by the decision of the Supreme Court in the WOO case (R. 616). In effect, the rationale of the decision below is simply that administrative findings of fact and conclusions which are not supported by substantial evidence are arbitrary and capricious and, therefore subject to reversal. This principle of law is as sound and well established as the principle that findings of fact and conclusions when supported by substan- tial evidence are conclusive. Crowell v. Benson, 285 U.S. 22; Consolidated Edison Co. v. National Labor Relations Board, 305 U. 8. 197; National Labor Relations Board v. Columbian Enameling And Stamping Co., Inc., 306 U. S. 292. 4. From the foregoing it is manifest that the decision below does not overstep the legitimate bounds of the judi- cial function. It does not limit the Commission’s power to deny broadcast applications, either for renewal of license or for construction permits, when such denial conforms to the requirement of Section 402(e) of the Communications Act that the findings of fact and conclusions be supported by substantial evidence. The decision does not announce any new or novel standard to determine whether conclusions of law reached by the Commission are arbitrary and capri- cious, but simply reaffirms settled principles governing judicial review of administrative action. In deciding that, on the facts of this case, the rule of the WOKO decision is inapplicable, and that the Commission acted arbitrarily, capriciously, and unreasonably in refusing to renew the WORL license where there was not substantial evidence to BLEED THR OUGH — PO 29 support its findings of fact of wilful misrepresentation, concealment, and deception, the court below did not render a decision of such importance or of such general effect as to require or justify issuance of a writ of certiorari. CONCLUSION The petition for a writ of certiorari should be de- nied. Respectfully submitted, ; Ben 8. FisHer, Joun P, Sournmayn, 902 Warner Bldg., Washington, D. C., Attorneys for Respondent. i Water M., Bastian, Pe National Press Bldg., i Washington, D. C., j Of Counsel. March 31, 1949. ° COPY 31 APPENDIX Taste I Petitions for Writ of Certiorari to The United States Court of Appeals For District of Columbia Circuit Filed January 1, 1947 to January 1, 1949 (Nore: Cases marked with asterisks involve administrative agencies A. Petitions Dentep Date Case No. Filed Denied Buckner et al v. Tweed 910 1/18/47 330 US 825 Friedman v. Swellenbach 990 2/6/47 330 US 838 DMW Contracting v. Stolz 1002 2/10/47 330US 839 Pepeo v. P. U. C. D.C. 1038 2/17/47 331 US 816 Kinnison v. U.S. 899 1/17/47 330 US 834 Hasson v. U.S. 1013 2/10/47 331 US 808 Garrett v. D. C. 1014 2/11/47 330 US 835 Thomas v. U.S. 1034 2/15/47 331 US 822 T. Higgins v. U. 8. 1079 2/28/47 331 US 822 Hawkins et al v. U.S. 1097 3/4/47 331 US 830 *U.8.v. P. U. C. 1135 3/17/47 331 US 816 Hensley v. U.S. 1138 3/18/47 331 US 817 B. Higgins v. U.S. 1177 3/28/47 331 US 840 *Young v. Anderson 1194 4/3/47 331 US 824 Curley v. U.S. 1211 4/5/47 331 US 837 Smith v. U. 8. 1235 4/11/47 331 US 837 *Jones & Laughlin v. United Mine Workers 1236 4/12/47 331 US 828 - Case v. Government 1250 4/15/47 331 US 826 Mellen v. Hirsch 1322 5/5/47 = 331 US 845 Giddings v. Zellan 1490 6/1/47 332 US 759 *D. C. v. Johnson & Wimsatt 1504 6/18/47 332 US 760 *D.C. v. H. D. Lee Co. 1505 6/18/47 332 US 760 R COPY COPY BOUND CLOSE IN CENTER Case v. F. P. C. Boone v. Boone *Fields v. Hannegan *Brown Instrument Co. v. Warner Burns v. Spiller Pelley v. Matthews *Beckham v. D, C. Field v. U.S. *Young Spring & Wire v. N. L. R. B. *Philadelphia Co. v. 8. E. C. Gately v. Hariton Fook v. U.S. Wheeler v. U.S. Capital Transit v. Grimes Patton v. U.S. Griffin v. U. 8. Spruill v. Campbell Edgerton v. Ooms *Hurley v. Lowe Ritchie v. Drier Gray v. U.S. Solis v. Clemmer U.S. v. Davis Holloway v. U.S. et al Hall v. U.S. Romney v. U.S. Barsky v. U.S. *Panhandle Eastern Pipe Lines *Anthony & Sons v. N. L. R. B. *Norris & Hirshberg v. S. E. C. 519 300 mise. 573 327 misc. 276 mise, 304 mise. 305 751 466 mise. 554 mise, 511 mise, 420 mise. 536 misc. 553 mise. 753 766 Date Filed 6/24/47 7/10/47 8/20/47 8/27/47 8/21/47 8/29/47 9/16/47 10/27/47 11/26/47 12/29/47 1/12/48 12/17/47 12/22/47 1/7/48 1/12/48 2/4/48 1/26/48 1/6/48 1/15/48 8/29/47 4/19/48 4/22/48 6/3/48 5/13/48 4/24/48 5/24/48 6/3/48 4/20/48 4/27/48 Denied 332 US 762 332 US 766 332 US 773 332 US 801 = 332 US 773 332 US 792 332 US 811 332 US 825 332 US 851 333 US 837 333 US 867 333 US 828 333 US 838 333 US 838 333 US 829 333 US 845 333 US 830 | 333 US 857 333 US 864 333 US 874 334 US 828 334 US 860 334 US 853 334 US 860 334 US 849 334 US 852 334 US 853 334 US 847 334 US 843 ‘BLEED /THR'OUGH — PO: | Case Airline Pilots Association v. C. A. B. Kingsland v. Carter Carburetor Corp. Billings et al v. Hill et al Boye et al v. United Services Life Ins. Felton v. U.S. Kirkland et al v. Atlantic Coast Line Simmons v. Federal Com- munications Commission Panhandle Eastern Pipe Line v. F. P.C. McCaffrey v. U.S. Lawson v. U.S. Brotherhood Locomotive Enginemen v. U. 8. Claxton v. Schaff Harris v, U.S. Fulton Iron Co. v. Larson Pollard v. Hawfield Meyers v. U.S. Knowles v. War Damage Corp. 33 No. 858 123 158 215 27 mise. 254 78 mise, 438 450 467 492 Date Filed 6/10/48 6/25/48 7/16/48 8/11/48 6/29/48 7/12/48 8/18/48 8/30/48 9/21/48 10/2/48 9/14/48 10/15/48 8/12/48 11/29/48 12/6/48 12/16/48 12/31/48 B. Petitions DisMissep Case Fleming v. Moberly Milk Producers Co. ° COPY No. 1095 COPY BOUND CLOSE Date Filed 3/4/47 IN CENTER Denied 93 L.Ed. 93 L.Ed. 93 L.Ed. 93 L.Ed. 93 L.Ed. 93 L.Ed. 33 93 L.Ed. 93 L.Ed. 93 L.Ed. 93 L.Ed. 93 L.Ed. 93 L.Ed. 93 L.Ed. 93 L.Ed. 426 93 L.Ed. 478 93 L.Ed. 480 93 L.Ed. 480 Case Clark v. Uebersee Finanz-Korporation Donaldson v. Read Magazine Eecles v. People’s Bank Mitchell v. Cohen Bakery Sales Union v. Wagshal Hurd et al v. Hodge et al Ahrens v. Clark Frazier v. U. 8. Hilton v. Sullivan MeDonald et al v. U.S. Marzani v. U. 8. Upshaw v. U.S. Domestic & Foreign Commerce v. Little- C. Petitions Grantep No. 934 1108 1414 1487-8 225 290-1 446 213 mise. 560 678 816 524 mise. 34 Action Affirmed Reversed Reversed Reversed Affirmed Reversed Affirmed Affirmed Affirmed Reversed Affirmed Reversed Date of Action 12/8/47 3/8/48 3/15/48 3/8/48 3/15/48 5/3/48 6/21/48 12/20/48 6/1/48 12/13/48 6/21/48 12/13/48 Argued Citation 332 US 4 333 USI 333 US 4 333 US4 333 US 4% 334 US 335 US 335 US 334 US 32 335 US 451 335 US§ 335 US john 31 Pending Decision 11/12/48 = Griffin v. U.S. 417 © “ Argued 12/15/48 — T. W. A. v.C. A. B. 387 e “ Argued 2/8/49 — Eisler v. U.S. 255 Pending Argument ao = --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_0339%3A1. Public record. Not legal advice.