Brief Amicus Curiae — Anniston Mfg. Co. v. Davis

sat 3th 1937

PHARLES ELMORE COPPLEY

ii

Supreme Court of the United States

(CM TORER tte TEhEM

Nao G67

—E

\NNISTOON WANT EACTIU RINGS cooMPee ANY corpo

beet

/*;

percaa

HARWELL DAVIS Colleetor af Internal Revenne,

he j

BRIEF FILED BY THE UNDERSIGNED AS AMICUS

CURIAE IN SUPPORT OF APPEAL.

, BENNETT EO SIRGELSTEIN,

ia levicunx ¢

INDEX.

PAGE

Pont I—Tithe VIET of the Revenne Aet of 1936 is as

vague, uncertain and indefinite a& its predecessar,

Section 21¢dh (1) of the Agricultural Adjustment

Act of August 24, 1935. in that it attempts to de

prive the taxpayer of an adequate remedy at law... l

TABLE OF CASES CIrEep

A. POW. Paper Co. vy. Riley, 12 Ped. Suppo 73s . 3

Baltic Mills Co. v. Bifqood, 12 Ped. Supp. 132... nik ae

Danahey Patking Co. vo MeGoiwan, V2 Ped. Supp. 457. 3.4

Ediein Cigar Co. Vv. Higgs, VA Fed. Supp. S17... I

Gold Medal Faods Tuc. vo Landy. 12 Fed Supp 206. 4

G. RR. Smith Milluiag Co. vo. Thomas, Vi Fed Supp

ys

~

~~

John A. Gebelein lne. vo Milbourne, 12 Fed Supp 105 3

Marshall Field & Co. Vv. Lnited States, Treasury Deei

xions, Volume TO, Now 26. sued December Lath,

1936, decision No. gS72L, pages 3b pee erEee ()

Rickert Rice Mills Ine. vo Fontenot. 297 U.S. 110 ; >

Shenandoah Milling @Co. vy. Barly (District Court,

Western District of Virginia, decided September

a, 1935, opinion by Paul, J) 7.) es OP eta ae

United States of America v mtier, 2o:. %. 8. i..... 3

Wilkes Barre Lace Uta Co Vo Mundy. 18 Fed Supp.

_. Satie oa ae Fnaticth ea caine }

QYTHER AT TITORITIES Cibep

Agricultural Adjustment Net of Auenst 24th, Logs

Section 2ledi clo.

Revenne Net of 1936

Tithe VI

Section YO]

Tale 26 US. CL AL CRevised Statutes, Section

Section 156

>

wiles ia

Supreme Court of the United States

OcronEer 1936 Tern.

No. HO7.

-

>

ANNISTON MANUFACTURING COMPANY, a corporation,’

Petitioner,

agaist

Harwenr G. Davis, Collector of Internal Revenue,

Re sponde nf.

>.

>

BRIEF FILED BY THE UNDERSIGNED AS AMICUS

CURIAE IN SUPPORT OF APPEAL.

As amicus curiae, the undersigned urges that the

judgment of the court below ought to he reversed

and 4 ontends:

POINT I.

Title VII of the Revenue Act of 1936 is as vague,

uncertain and indefinite as its predecessor, Section -

21(d) (1) of the Agricultural Adjustment Act of

August 24, 1935, in that it attempts to deprive the

‘taxpayer of an adequate remedy at law.

Recognizing the vulnerability of Section 21(d) (1)

of the Agricultural Adjustment Act of August 24th,

1935, and the futility of attempting to enforce its

provisions after the decision in EBdiwin Cigar Co. Vv.

Higgins, 14 Fed. Supp. 817, declaring said section to

he unconstitutional, the law-makers created a substi-

tute by enacting Title VIL of the Revenne Act of

®

1936. By this latest enactment, said Section 21(d)

(1) was repealed (see Section 901, 1936 Revenue Act),

Tithe VII c€ said Revenue Act is a similar endeavor

to erect a barrier to the recovery (as in Secvion 21(4)

(1) A. A. A.) of * * * “any tax * * * which accrued

before, on or after the date of the adoption of this

ainendment * * *" (Ttalies ours. )

We contend that Tithe VIT of said Revenue Act,

relating to the refund of taxes collected under the

A. A. A. is as“uneconstitutional as the provisions of

its predecessors, for it) ikewise—

L. Attempts to place a restraint on the bringing

of an : oe at law to recover taxes illegally assessed

and coflected ;

2. Attempts to summarily withdraw and deprive

taxpavers of adequate remedies at law afforded. to

them by statutes which have been im effect for sey-

enty (70) vears past;

4. Attempts to prevent taxpayers from freely ap-

plying to the coiyts for redress ;

4. Attempts to force taxpayers to resort to bur

densome, technical, indefinite and inadequate proceed-

Ings of a prejudicial character in place of a simple

avtion at law;

>. oAttempts to force taxpayers to apply for rehef

to an administrativg officer and if aggrieved by his

decision to a Board in the same department as the

Commissioner, Which may act just as summarily,

arbitrarily and with-sas much possible bias as the

Commissioner would ;

6. Attempts to deprive taxpayers of their inher-

ent right to litigate their claims for refund in the

form of a qudieial proceeding hefore an rm partial

}

jndyge and disinterested jury;

-7. Attempts to place taxpavers in a position which

would, leave them shorn of a remedy at law which

the Federal Courts have for many vears uniformly

held to be available to an. aggrieved party, under

circumstances as are outlined im the complaint;

S. Attempts to manonever taxpayers into a posi-

jon whieh can only result in improper determination,

inadequate results and the suffering of definite dam-

ages Without restitution;

9, Attempts to defeat the purposes of well recog-

nized principles of law.

Numerous decisions upholding the argument here

advanced, have been written in the lower courts

stamping Seetion 2i(d) (1) with disapproval,

namely :

United States of America Vv. Butler, 297

U. S. I;

Rickert Rice Mills Ine. vo Fontenot, 297

uU. & 20;

Danahey Packing Co. \ Velfownn, 12 Fed.

Supp. 457;

Giold Medal Foods lic. vo Landy, 12. Fed.

Supp. 406;

Baltie Mills Co. v. Bitgood, 12. Fed. Supp.

$34).

Daw ¢

G@. B. R. Smith Milling Co. v. Thomas, 11

Fed. Supp. 833;

John A. Gebelein lie. ve Milbourne, 12 Fea.

Supp. 105;

A. P. W. Paper Co, vy. Riley, 12 Fed. Supp.

4

Shenandoah Milling Co. v. Early (District

Court, Western District of Virginia. de-

eided September 25, 1955, opinion by Pan,

D. J.);

Wilkes Barre Lace Mfg. Co. v. Mundy, 13

Fed. Supp. S70.

In Denahey Packing Co. v. MeGowan, supra, Judge

Knight said of Section 21(¢d) (1) at page 458:

ch a It seoms to me that there is grave ques-

tion whether the restrictions in this amendmeut

do not rrolate the property rights of these plarn--

tiffs. At the least, it must be said that any rea-

sonable interpretation of the procedure sought

to be laid down by this amendment is so vague

and indefinite as to leave uncertain the remedy

obtainable.” (Ttalies ours.)

In Gold Medal Foods Ine. v. Landy, supra, Judges

Molyneaux, Nordbye and Joyee in part said of said

Section, at page 411:

“Tt is reasonable to believe that Congress. in

passing Section 21(a) presumed that every tar-

payer was afforded an adequate and complete

remedy at law. The history of our tax legisla-

tion justified the conclusion that Section 21(a)

is bottomed on that assumption. Thg tarpaycr's

right to have the legality of a tar and his right

to refund determined ina court of.law has always

been recognized as inviolate. It is repugnant to

one’s sense of justice and fairness that a tar-

payer should be required to pay a tar, which he

in good faith urges is unconstitutional, and then

by reason of legislation, be prevented from ob-

turning a determination as to its constitutional-

ify.’ (Italies ours.)

In G. B. RR. Smith Milling Co. v. Thomas, supra,

Judge Atwell 1) eorne nting on Section 21(d)

said In part at page S55:

(1)

‘This amendment seeks to give the taxpayer

who may think himself wronged an opportunity

to task for a refund of that which he,thinks has

heen illegally exacted, before the Commissioner

of Internal Revenue. But it does not stop by

merely giving such a remedy in so many whole-

some words, but proceeds to define what that--

hearing shall inelude, and the result thereof. It

may be that the tread to salvation is narrow’

but, hkewise, it is well marked and there is no

doubt about it; but if this ‘remedy’ is well marked

and bevond doubt, the court has been unable to

discover it. /f is cloude d in a number of words

and pltasts, and impediments, and I think, one

would be rather bold.to call it a plain, adequate,

complete remedy.” (italics sours.)

F urther in said opinion at page 856, Judge Atwell

“As | said, during argument, we do have suits

where a transeript of the proceedings before an

executive department may be filed in the court

Which finally hears the controversy and it has

certain probative force and weight, but it is never

free from attack; nor from being overcome bv

other evidence, or other witnesses, that may be

offered at the trial by the respective litigants.

ln other words, we cannot have a trial any way,

eccept the orderlp legal way that is known as

the American way incan American court.” (Ital-

es Ours. )

—_—_

In Shenandoah Milling Co. v. Early, supra, Judge

Paul in a portion of his opinion (apparently not

ported) disapproving of Section 21(d) (1) said:

re-

“TL do not agree with the view that an adequate

‘complying with its provisions, a taxpayer heretofore

6

remedy exrists. LT need not go into the questions

of the power given to the Commissioner of Rey-

enue and the deprivation of the right of a jury

trial, but the remedy provided in the amended

act is no remedy at all. The conditions imposed

are practically impossthle to perform and I 'sup-

pose Congress in a large meesure realized that.’

(Italics ours.) p

Surely, the right to sne for the recovery of illegal

taxes is clearly defined by Section 156 of Title 26

U.S. CL. AL (Revised Statutes, Section 3226) and Vine

for many years was clothed with a definite right to

sue at law in the District Court on such a cause of

action. That privilege may not in our humble opin- —

ion be barred by. the present Legislation, which ap-

parently was hastily devised to circumvent this time

honored remedy.

Only recently (on December 16th, 1936) the U.S.

Customs Court, Second Division, in the case of Mar--

shall Field & Co. vy. United States, Treasury Decisions,

volume 70, No. 26, issued December 24th, 1936, de-

cision No. 48722, pages 93-115, held that Title VII

of the Revenue Act of 1936 is unconstitutional. Judge

Kincheloe, writing the prevailing opinion for the

court, said at page 102: |

“We have considered: said Revenue Act of

1936, and especially Title VII of same, carefully

and studiously, and all the briefs filed by the

attorneys on both sides in this case. After a

thorough deliberation we are of the opinion that

there is no legal difference between Section 21(d)

supra, of the agricultural act of August 24, 1935,

and Title VII of the Revenue Act of June 22,

1936. Both undertake to amend an unconstitu-

tional act and the samecuct.- Said Title VII sim-

-

‘

ply provides, in our judgment, for a somewhat

different procedure but for the same purpose.

If, as the Supreme Court says in the Rice Mills

case, supra, that the changes made in the said

amended agricultural act of August 24, 1935, ‘do

not eure the infirmities of the original act’ and

‘the exaction still lacks the quality of a true tax’,

and. that $It remains a means for effectuating

the regulation of agricultural production, a mat-

ter not within the powers of Congress’, then, by

the same reasoning, does not said Title VIL of

the tax act seek in principle to do the same thing ?

We think so. Therefore, in our judgment, it

does not cure the *infirmities of the original act

and this exaction still lacks the quality of a true

fac, and remains a means for effectuating the

regulation of agricultural production, a matter

not within the powers of Congress.’ (Italies

Ours. )

.And at page 104 in said opinion, the court said:

“We therefore hold that the whole of said

Title VII is unconstitutional, null, and void be-

cause, first, if does not cure the infirmities of the

original Agricultural Adjustment Act, whieh was

the basis of the decision in the Butler ease, supra;

second, because said Title VII of said tax. act

does ‘not affect the rights of the’ plaintiff here-

in; third, because said Title VII is an effort to

effectuate a proceeding under adaw already held

unconstitutional, and affords plaintiff no ade-

quate remedy at law; fourth, it violates the Fifth

Amendment to the Constitution of the United

States in that, in our judgment, it deprives this

plaintiff of his property (the compensating tax

the subject of this controversy), without due

process of law; and fifth, that: it does not and

cannot ratify or confirm an unconstitutional act

of Congress * * *."’ (Italies ours. )

,

Pd

“a

my

&

In a coneurring opinion in that case, Judge Dal-

linger said at page 114:

Therefore, while it is true as a gendgal propo-

sition that t. cre is no vested right in #partien-

lar mode of procedure, and that each Congress

may establish a different one (Backus vo Fort

Street Union De pot (‘o., 169 U.S. 557: Cam phell

L lron-Nilve r Min. ('o., x3 Fed. 643), neverthe-

less, where the Government, as in the instant CUSE,

has collected ineport dutics under au unconstitu-

fional and void statute, and a suit to recover the

same has been commenced by the plaintiff in good

feith ina court specially established by law for

the trial of such cases, the tuking away by a

subsequent act of Congress—in this case by the

Revenue Act of 1936—of such judicial re medy, .

and the substitution therefor of -an inadequate ©

remedy at law for the recovery of the duty thus

legally exacted, is a repuduition of an implied

contract on the part of the Government to refund

moncys unlawfully collected, and does deprive the

plaintiff of a vested right without due process

of law. Such, subsequent legislation, in this case

Title VII of the Revenue Act of 1936, is there-

fore unconstitutional and void. — (Citing vases)

***”* (Italices ours.)

We therefore join in the prayer that\ the decree of

affirmance of the Court below should be reversed.

Respectfully submitted,

Bennett E. Sieceistein,

As Amicus Curiae.

In the Supreme Court of the United States

OcroBper Term, 1936,

ANNISTON MANUFACTURING COMPANY

|

; v.

Harnwett G. Davis.

Collector of Internal Revenue.

ON WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT

| BRIEF FILED BY MALCOLM DONALD AS AMICUS

CURIAE ON BEHALF OF PACIFIC MILLS

Marcoum DONALD,

Amicus Curiae.

Kpwarp BF. ELper,

Herrick, Smivu, Donatp & Farney.

Boston, Massachusetts.

Of counse /.

CONTENTS

Petition for Leave to File Brief as Amicvs Curiae

pe er er re

heesssstcsge tthe, jms, anna TREE Ee ee

I. The issue to be discussed is whether the destruc- .

tion of the personal liability of public officers was

within the power of Congress as applied to collectors

of internal revenue

fee cet ee ee eee ee es 2 ee a oe oh ee

II. The destruction of the personal liability of a

pubhe officer, as applied to a Collector of Internal

Revenue in the case of an unconstitutional exaction

in the guise of a tax, is not within the power of

al Ni Ein Mn Bel ht a ee a oe Oe le OY ae te Gs We Pe

A. Not comprised within the power dele-

gated to Congress to collect taxes

oe ee

B. Is repugnant to the due process clause of

Fifth Amendment

(1) Because it is outside the scope of Fed-

eral power ...........

(2). Because it -is violation of the funda-

mental principle of right and justice

that there should be a remedy for

every wrong

(3) Importance should be attached in case

unconstitutional taxation to the his-

torical background of the Fifth

' Amendment

SOS De OO SEs CES Oe oS Se 6S

C. Because it effectuates an unlawful inva-

sion of the reserved powers‘of States.

III. The consequences of permitting the destruc-

tion of personal liability of public officers would be to

permit the confiscation of private rights in property

in the whole field of power wherein the sovereign,

through its officers, is brought into conflict with the

PE Tins ca bea e70 600400265 4,05 600605 60060605608

Iv. A person injured by the enforcement of an

unconstitutional statute is not bound to rely on the

legislative body maintaining in good faith a remedy

i rn sas oon 6 on) 0b 660000080 6%

V. The doctrine of the personal liability of public

officers is fundamental in our system of constitutional

jurisprudence, and essential to the efficacy of constitu-

tional guarantees of security in property ........ bs

VI. Danger to private rights is also inherent in the

doctrine of ‘‘apparent validity’’ favored by the Court

SE 506 6 6 6060060.0 6.566.004 6600004460066560%

VII. The destruction of the personal liability of

Federal public officers would restrict judicial review

to a field defined by Congress and thus imperil the

integrity of our constitutional system

TEED ree PS Pe tw meee =--- " - ee ee eee

38

53

CITATIONS.

CASES. wean

American School of Magnetic Healing v. McAnnulty, 187

EE ob¥cteenesecvsheed sebdeseeehbebacesaneadest 35

Atchison &c. Ry. Co. v. O’Connor, 223 U.S. 280.......... 51

STD, BOR, Te a Ns 6 ok can cenccandacceskevasece 39

ey @, Ceeeets MO PS, Os oc cb ns oe sc écnaccieesse 39

ey ix Sts. WP SE TIN o's ons oon 0c hds'ee caccciccws 33

‘Briggs Vv. Laght-Boats, 11 Allen, 157.................... 40n.

Brown 9. Mager, BE TieW., BOB. 6 occ cn cccccccccscccscs. 34, 47

Bull v. United States, 295 U.S. 247, 260............,. 7

Burrill vy. Locomobile Co., 258 U.S. 34,39................ 23

Buttfield 0. Stranahan, 192 U.S: 470.................... 20

Cary v. Curtes, 3 How., 236, 245..... 0... ccc ccc cccccces 20

Chicago &c. Railway Co. v. Wellmann, 143 U.S. 399, 344,

Me scushabuhentsas6eakebenvuneeciessscbcedeen 55

Chicago, Indianapolis & Louisville Railway Co. v. Hack,

Se SN bods W headend phe b emer acisvaseacs 50

Chisholm v. Georgia, 2 Dail., 419...................... 40n, 41

Christian v. Atlantic & N.C. R.R., 133 U.S. 233.......... 39

Cunningham v. Macon & Brunswick R.R. Co., 109 U.S. 446 39

Cunningham et als. v. Monroe, Administrator, 15 Gray 471 51

Dennison Manufacturing Co. v. Wright, 156 Ga. 789...... 51

Elliott v. Swartwout, 10 Peters 137, 154................ 6, 33

Evens v. Gore, 253 U.S. 245, 251-2... 2... ccc cw cence 54

First National Bank of Sturgis v. Watkins, 21 Mich. 453. . 51

Fong Yue Ting v. United States, 149 U.S. 698, 714-715. ... 21

Frick v. Pennsylvania, 268 U.S. 473,.488................ 6

Gelston v. Hoyt, 3 Wheat. 246..............00.0..02... 33

thbbons v. Ogden, 9 Wheat. 1, 191.................... 20

Gerla ©. Wooley GPO ELS. GO6. ... oo. cen cccncccccccccce - 35

Greene v. Louisville & Interurban R.R. Co., 244 U.S. 499.. 35

Grisar v. McDowell, 6 Wall., 363:..................... 34, 47

iv

PAGE

Hagood v. Southern, 117 U.S. 52,.............. errr re 39

Harrison v. St. L. & San Francisco R.R.. 232 U.S. 318.... 36

Hopkins v. Clemson College, 221 U.S. 636, 642-4.......... 6

Hurtado v. California, 110 U.S. 516, 535... ........2.... 22

Johnson v. Lankford, 245 U,S. 541................0085- 35

_Kawananakoa v. Polyblank, 205 U.S. 349, 353........... 40n.

Little v. Barreme, 2 Cranch, 170 AR PE POR an 33

a ae 8S | eer rer 38, 42

Lynch v. United States, 292 U.S. 571, 581................ 7, 13

Marbury v. Madison, 1 Cranch, 137, 163, 164-165......... 25, 44

Meigs v. McClung’s-Lessee, 9 Cranch, 11....... ice Sane a 34, 47

Minnesota v. Hitchcock, 185 U.S. 373............0..... ~ 39

Mostyn v. Fabrigas, Cowper, 161..................0.05. 33

Noble v. Union River Logging Railroad, 147 U.S. 165..... 35

Norton v. Shelby County, 118 U.S. 425, 442.............. 6, 50

Oceanic Navigation Co. v. Stranahan, 214 U.S. 320...... 21

O’ Donoghue v. United States, 289 U.S. 516, 533-4........ 55

Osborn v. Bank of United States, 9 Wheat. 738.......... 34

Payne v. Central Pacific Railway Co., 255 U.S. 228...... 35

Pennoyer -v. McConnaughy, 140 U.S. 1................. 35

People v. State Treasurer, 23 Mich. 499, 502............ 6

Philadelphia Co. v. Stimson, 223 U.S. 605..... AEE eee 35

Poinderzter v. Greenhow, 114 U.S. 270, 288-290, 291...... 34, 47

eee ©, i Be Te, Oe kc bb dnc tcccnaccecs Sena 34

Reagan v. Farmers” Loan & Trust Co., 154 U.S. 362...... 34

Rickert Rice Mills v. Fontenot, 297 U.S. 110, 113........ 6

Slocum v.:Mayberry, 2°Wheat. 1...................... 34

Smyth v. Ames, 169 U.S. 466. ...........0. 0.00 cece eeee 34

State of Colorado v. Toll, 268 U.S. 228................. 36

State of Maine v. Poulin, 105 Me. 224.................. 61

Teal v. Felton, 12,How. 284........ 0. 000cccccccceeeeee 33

The Abby Dodge, 223 U.S. 166............... 00. ceee 20

Tracy v. Swartwout, 10 Peters, 80, 98-99................ 6, 33

Truaz v. Corrigan, 257 U.8. 312, 328-329-330............ 22

Vv

\

. PAGE

United States v. Butler] 297 U.S. 1............-. eee eee 5)

United States v. Lee, 106 U.S. 196, 220, 221. .10, 12, 34, 40n., 45, 47

United States v. Marigold, 9 How. 560, 566.............. 20

Westerr. Unton Telegraph Co. v. Andrews, 216 U.S. 165.. 35

Wilcoz v. Jackson, 13 Peters, 498....... ra ara ee Ne aor 34, 47

Wye. Withers, 3 Cranch 331-337................ CPE

be wy SO SD revere rere errr rere 34

Worgs.

BLACKSTONE, Commentarics, Vol. III, pp. 23, 109, quoted.

in Marbury v. Madison, 1 Cranch, 137, 163.......... 25.

‘‘Centinel,’’ Letters, Printed in McMaster & Stone, Penn-

sylvania and the Federal Constitution, p. 610........ 27 .

Federalist, No. 81, Ford’s Edition, p. 545............... 41

Freunp, Administrative Powers over Persons and Prop-

ree freer” EUW EASE Raa es ee 33

Hai, Customs Revenue, Vol.“2, p. 42...... a aiecineateae 32

Martin, LuTHER; Printed in Farrand, Records of the Fed-

eral Convention, Vol. III, pp. 151, 159.............. 27

Mort, Due Process of Law, pp. 142, 186................ Se

Warren, Supreme Court in United States History

Vol. 1, page 99 ..... ig 45nd eae dee ekeknkeshsend ss 42

I sc nk ca ceca havenSad eeakncensas . 42

ee 8 errr ee Perry ere ree 45

ee cad suaaedcs hte kas Magnes lee 47

Witson, Wooprow, Constitutional Government of the

e ff, ee ATT PP ere errr rer ree. 54

CONSTITUTIONS AND STATUTES.

BRCM BRINN BOE ooo sacs cere ccccccseses 6

Constitution of the United States,

CCC TPCT CLE CET ECC TETE 8, 10, 22,.45

UL. a Gu wi wa cae weute wae eae 27

MOTE AIR 8 o.n ee kee cen cnsesnasensces a 2 |

Fourteenth Amendment ........ See ee er ee 22

Explanatory Act of 1845, 5 Stat. 727................... 21

Massachusetts Declaration of Rights, Art. XI .......... 25

Revised Statutes, sec. 3224 ....... 2... .2500.00 0005. nae 19

In The

Supreme Court of the Anited States

/ OctoBeR TERM, 1936.

j

Sf

No. 667.

a 4

ANNISTON MANUFACTURING CoMPANY

Vv.

Harweii ©. Davis,

Collector of Internal Revenue

ON WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE

The undersigned respectfully petitions this Honor-

able Court for leave to file this brief as amicus curiae

in the above-entitled suit.

Your petitioner gsks to file said brief on behalf of

Pacific Mills, a corporation organized under the laws

of the Commonwealth of Massachusetts, which is en-

gaged in the processing of cotton on an extensive

seale. It has paid, under protest, to the Government

a very large sum of money as processing taxes, with

respect to which it has filed petitions for refund.

i CR Oa I ee PS Er OD Re