Brief in Opposition to Petition for Writ of Certiorari — United States v. Townsley

No. 134

IN THE

Supreme Court of the Anited States

Ocroper Term, 1944.

Unirep States, Petitioner

We

Lovis Towns .ey.

BRIEF OPPOSING THE GRANTING OF PETITION.

oe

lienmMan J. Gatuoway.,

) “rep W. Surerps,

Attorne ys for Re sponds ne.

INDEX.

Page

OO eh Sey eee © hee re I

i OO eer. ir heey sxuasaa sane e ede 1

ee” Ge ae ee eee 1

Nr eh ee sabia g Salle Wp ecack ee 2

Statement .. 7.2.22... cece ccc eee c cee c cw eee cence 2

Summary of reasons for denying the writ ........... 2

I ie eg re Sy ahead Vievwtanw a's 0.4. #9. 0. <>» 14

CITATIONS.

Alaska S. S. Co. v. United States, 290 U.S. 256.2... 7

Boudinot (Cherokee Tobacco v. United States, 11 Wall

(REE ORL ES Sa SSH gaa geo ar EP 3

Caminetti v. United States, 242 U.S. 470 ............ 3

Helvering v. New York Trust Co., 292 U.S. 455 ...... 9

Iselin v. United States, 270 U.S. 245 ................ 10

Levy Court of Washington v. Ringgold, 5 Pet. 451.... 05

Missel v. Overnight Motor Transportation Co., 216

PE a, os aoc kode keane nace Peale ae winks 13

Post v. United States, 148 U.S. 124 ................. D

United States v. California, 297 U.S. 175 ............ 7

United States v. Lexington Mill Co., 232 U.S. 399....0 3

United States v. Raynor, 302 U.S. 540 .............. 9

Wright v. United States, 402 U.S. 573 .............. 1)

White v. Winchester Club, 315 U.S. 32 ............. 9

STATUTES.

Act of March 3, 1883, c. 128, 22 Stat. 531 ............. 6

Act of May 24, 288s, c. 308, 25 Stat. 157 .............. 4)

Act of March 15, 1898, c. 68, 30 Stat. 277 ............. 6

Act of June 6, 1906, ¢. 3914, 34 Stat. 763 .............. 4

Act of March 28, 1934, ¢. 102, 48 Stat. 509, 522, See. 23° 2

il “s Index Continued.

Page

Act of June “, te 37, ¢. 470, 50 Stat. 486 2000000000 s

Act of June 2 1940, c. 440, 04 Stat.676 ............_. 1?

Act of Oc mec or 21, 1940, C. WS, oe cent $905 10)

Act of June 25, 19: 8. O76, 52 2 Stat. ran, MRED ER einen 12

MISCELLANEOUS.

H. R. 6663, 73rd ( one» ight a REE OR TE °

Sth Cong. Ree. Part: DP. 2977, 73d Cong. 2a Sess... 6

Se Comp. Men. MS ois. cp ee 7

14 Comp. en SG LCC Whe Bed ater Berea Mees 7

ie Bens, RET OP MPP ERR UTE eee

IN THE

Supreme Court of the Qnited States

OcroBeR Term, 1944.

No. 1534.

Uxivrev Srares, Petitioner

v.

Louis TOWNSLEY.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI TO THE COURT OF CLAIMS.

OPINION BELOW.

The opinion of the Court of Claims (R. 14-29) has not

yet been officially reported.

J YRISDICTION.

The judgment of the Court of Clainis was entered on

March 6, 1944 (R. 29). The petition for Writ of Cer-

tiurari was filed on June 6, 1944. The jurisdiction of

this Court is invoked under Section 3 (b) of the Act

of February 13, 1925, as amended.

QUESTIONS PRESENTED.

(1) Whether Section 23 of the Act of Mareh 28, 1934.

providing for overtime compensation for services per-

formed in excess of 40 hours per week, applies to Govern-

ment employees whose compensation is fixed by ‘*Wage

2

boards or other wage-fixing authorities’? on a monthly

basis.

(2) If the foregoing question is answered in the affirma-

tive, whether the Court of Claims employed the proper

method of determining the daily rate upon which overtime

compensation is to be calculated.

STATUTES INVOLVED.

The pertinent portion of the statute involved is set forth

in the Petition for Writ of Certiorari., (pages 2, 3), to

which reference is hereby made.

STATEMENT.

The statement of facts contained in the Petition for

Writ of Certiorari, (pages 4-6), fairly sets forth the facts

in the case,

SUMMARY OF REASONS FOR DENYING THE WRIT. .

The Writ of Certiorari should be denied because:

1. The decision by the Court of Claims is correet and

sound.

2. The case does not involve questions of sufficient pubiic

importance to justify its consideration by this Court.

ARGUMENT.

1. It is respondent's position that Section 23 of the Act

of March 28, 1934, c. 102, 48 Stat. 522 (5 U.S. C. 673c).

limits the regular hours of labor of those Government em

plovees whose wages or compensation is fixed by wage

boards or other wage fixing authorities to forty hours per

week, and provides overtime compensation for all work in

excess of forty hours per week performed by such em

plovees.

The ianguage of Section 23 is elear and unambiguous.

and the Court below, in upholding respondent’s claim, gave

“4

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2 FON CIE eee RNa wo AOE RE Seat

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3

the language of the Section its obvious meaning In accord

with the intent of the Congress as expressed by the words

employed in the Statute. Therefore, under the well estab-

lished rules of statutory construction, there is no reason to

seek outside aid to determine the meaning and effect of

Section pa Boudinot (Che rokee Tobae co) a United States,

11 Wall. 616, 620; United States v. Lexigton Mill Co., 232

U.S. 399, 409-410: Cammettir v. United States, 242 U.S. 470

48).

Petitioner does not contend that the language of Section

23 is not clear or ambiguous, ner does it dispute directly

the statement of the Court below that the Act, on its face, is

just as applicable to monthly employees as to any other em-

plovees. It does, however, ask this Court to re-

fuse to vive full effect to the Section because it contends,

(a) the use of the words ** weekly compensation’’ in the

Section indicates that the Congress did not intend for the

Section to appiy to employees whose wages or compensa-

tion was fixed on a monthly basis, (b) the legislative history

of the Section indicates that the Congress did not intend it

to apply to monthly or annual employees, (¢) the adminis-

trative practice is in accord with the construction for which

it contends, and {d) the administrative practice was open

and well known, and hence presumably was known to the

Congress. Each of petitioner’s contentions wil! be dis-

cussed separately.

a. Use of the words, “weekly compensation”.

It is asserted by petitioner that the use of the words,

‘weekly compensation’? in Section 23 indicates that the

(onugress did net intend the Section to apply to any em-

ployees other than those whose wages or compensation was

fixed on an hourly or a daily basis. The weekly compensa-

tion of hourly and per diem employees, it is stated, is read-

ily ascertainable, while the compensation of monthly and

annual employees is not calculated on a weekly basis, and

there is no statutory authority to do so.

4

°

The use of the words, ‘*weekly compensation”’ is not sig-

nificant. The purpose of Section 25 is to limit the hours

of work and at the same time reestablish and maintain the

same total compensation paid to employees in 1932. To ae-

complish this result beth bours of labor and total compensa-

tion had to be expressed in some period of time. The period

used was the week; it could as well have been the month.

Had this latter period been used it could not seriously be

contended that hourly and per diem employees were thereby

excluded from the benefits of the Act.

Actually there are no ‘‘weekly’’ employees of the Govern-

ment. To ascertain the weekly compensation of a per diem

or an hourly employee a simple problem in multiplication is

involved. To ascertain the weekly compensation of a

monthly or annual employee a simple problem in division is

. . _r

involved. The use of the words. ‘*weekly compensation”? if

indicative of anything, wotld seein to be that the Congress

intended the Section to apply to all employées regardless of

the basis upen which they received their compensation, for

some mathematical computation is necessary, in order to as-

certain the weekly compensation of hourly, per diem and

nonthly employees.

The contention that there is no statutory authority for

determining the weekly compensation of an employee paid

by the month seems to conflict with petitioner’s later argu-

ment to the effect that Section 6 of the Act of June 30, 1906,

«, 8914, 54 Stat. 697 (5 U.S. C. 84), provides a method for

determining the daily pay of such employees (p. 19 of peti

tion for Certiorari).

Petitioner also urges that the discrimination between

hourly and per diem employees on the one hand, and

monthly or annual emplovees on the other, which it asserts

the Congress intended to make in Section 23, is a reasonable

one, for hourly and per diem workers do customarily receive

overtiine cenipensation while monthly and. annual em-

plovees do not. :

This contention is likewise refuted by its later argument

that Section 6 of the Act of June 30, 1906, supra, provides

2

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5

‘

a method for computing the amount of overtime compensa-

tion for monthly and apnual employees. If the Congress

has, as pgtitioner contends, enacted a statute providing a

method fbr computing the overtime compensation of

monthly and annual employees, the practice of paying over-

time to such employees can scarcely ba@said to be so unusual

as to justify this Court saving that the Congress intended a

discrimination on that aeeount. In any event the question

for the Court is not whether there is any good reason for

king a discrimination between one class and others to

ich an act unquestionably applies, but whether, in fact,

discrimination was wa & Levy Court of Washinaton

iqaold. 5 Pet. 453-455.

AtteirNen_is a}<o directed to the fact that. the Congress,

as early as ISS8S provided overtime compensation to certain

emplovees paid on an annual basis. The Act of May 24,

1888. ©. 3O8, 25 Stat. 157, previded overtime compensation

for letter carriers, paid on an annual basis. This Court up-

held the claims of the letter éarriers for the overtime com-

pensation as provided by that Act. Post v. United States.

148 U.S. 124, affirming 27 C. Cls. 244.

From the foregoing it is obvious that there is nothing in

the lanenage of Section 23 which in any wavy indicates that

the Congress intended to make the discrimination between

honriy and per diem employees, on the one hand, and

monthly or annual employees on the other, which petitioner

contends should be made.

b. Legislative history of Section 23.

Petitioner next eoutends that the legislative history of

Section 23 indieates that the Congress did not intend it to

apply to monthly or to annual employees.

The only portien of the alleged legislative history relied

upon by petitioner in support of this contention is that com-

prising a statement made by one N. P. Alifas, who ap-

peared before a Senate Subcommittee of the Senate Com-

mittee which was considering the Bill which became the 1954

Act (HL. R. 6663, 73rd Cong. 2d Sess., pp..59, 61). Mr. Ali-

is

6 a

a4

es

fas’ statement appears in Appendix A to the petition for 5

Certiorari. €

Mr. Alifas purported to speak for some of the hourly and :

per diem employees of the Government. He proposed an i

anendment to the Bill which was intended to alleviate cer-

tain alleged injustices to such employees. His proposed pS

amendment while similar in some respects to Section 23 as |

fina:ly enacted, did not contain the proviso limiting the work

week to forty hours and providing for overtime compensa-

tion. Moreover, it was not adopted by the Senate Com-

mittee.

Section 23 as finally enacted was offered as an amendment

to the 1934 Bill by Senator Thomas (Cong. Ree., Vol. 78

Part 3, p. 2977, 73rd Cong., 2d Sess.). It was adopted and

ultimately enacted by the Congress in the precise form in

which he offered it. So far as appears the proviso to Sec-

tion 23, originated with him, and there is absolutely noth.

ing in any of the legislative history which indicates that 3

he did not intend the prorise to apply to all employees

whose wages or compensation was fixed by wage-boards or

other wage fixing authorities.

c. The alleged well established administrative practice. |

Retitioner, in this connection first asserts that the Act of 7

March 3 ISS83, ¢. P28, 22 Stat. 531, 563, as continued by See ;

on the Act of Mareh 15, 1898, ¢. 68, 30 Stat. 277, 316, {

(9 U.S. f°. 29) prohibits the payment of overtime compensa-

tion toymployees of the executive departiuents of the Gov- f

er a services in excess of the hours fixed by Statute.

Again this contention is in conflict witb its later argument

that Section 6 of the Act of June 30, 1906, sug"a provides

a method for computing the overtime compensation of

monthiy and annual employees of the Government.

Or, if petitioner's contention be sound it would seem that

the 1883 and 1898 Acts, would prohibit the payment of over-

time compensation to those hourly and pér diem employees

to whom Section 23 admittedly does and has been applied.

es ec ce ee

Sais" VERNA NEG as vi Gp

7

The complete answer to this part of petitioner’s argu-

ment is that Section 23 of the 1934 Act, specifically providing

for overtime compensation to a certain class of Government

eniployees, repeals, supersedes, or renders nugatory ‘any

earlier general legislation prohibiting the pavment of over-

time compensation to emplovees of the executive ete

ments. ef, United States v. California, 2 297 U. S. 17: , TS8,

Manifestly Congress ean and does Hine eee Nee

from time to time to fit changing conditions,

Turning to the alleged administrative practice since 1934:

There is no showing made that the Governor of the Pana-

ma Canal ever determined whether Section 25 was or was

not applicable to monthly employees. Such determinations

as were made were made by the Comptroller General.> This

Court has held that it will not look to such rulings for aid

in the judicial interpretation of a statute. Alaska S.S. Co,

v. United States, 290 U.S. 256, 264. ~

However, even if the opiniens of the Comptroller Gen

eral do constitute proper administrative practice, they do

not support petitioner's contention. The Comptroller Gen-

eral has consistently held that Section 23 does not apply to

monthly employees, and that such emplovees may not reg-

ularly be emploved in excess of forty hours per week. 14

Comp. Gen. 156-165.

It is true that the Comptroller General has’ held that

monthly and pér annum employees, to whom Section 33 ap-

plies, are not entitled to overtime compensation, but he has

‘consistently held that such employees must be placed on a

forty hour week. Thus, in a decision addressed to the Public

Printer, 13 Comp. Gen. 265, he states, p. 268 °

soe * * the regular hours of work of per anni em-

plovees within the terms of Section 23 of the Act of

March 28, 1934, are required to be fixed at not to-ex-

ceed 40 per week, * * *"".

In the samme decision, p. 270, he states In passing on the

right of such employees to overtime compensation :

eee ae

\

Ss —

‘*Question 6 Is answered in the jegative. The term

‘overtime’ has never been applicable to employees

vail On an annual basis and there is no purpose or in

‘tent shown by Section 25 of the Act of March 2s, 1954.

to extend the right to overtime compensation to em-

ployees paid on an annual basis who may be required

to work more than their regular tour of duty of 40 hours

per week.”’ ;

It is difficult to understand how Section 23 could*he ap

.

plicable to monthly and per annum employees so as to re-,

quire them to be placed on a forty hour week, but inappli-

cable insofar as their right to overtime compensation for

work performed in excess of 40 hours per week. The Sec

tion, it would seem, either was applicable to such employees,

or it was not. If applicable at all then all of it, and not

merely a part of it was applicable.

d. Congress’ knowledge of the alleged administrative

practice.

The allegedly well-known administrative practice bere

involved consists of a decision announced by the Comp

troller General on April 12, 1934, ard subsequently re

affirmed on Anguat 25, 1934. The decisions in question are

published in t4 Comp. Gen, 156. There is not one word in

the record to show that the Congress knew of these de-

cisions, or knew hew Section 23 had been applied. to em-

ployees of the Panama Canal.

Petitioner refers to the fact that in 1937 the Congres-

enacted the Act of June 9, 19387, ¢. 470, 50 Stat. 486, re

affirming the President’s authority to fix salary, hours of

labor and other conditions of employment of employees of

the Panama Canal, and that while the legislation was pend-

|

ing. the Canal authorities objected to the inclusion of *See-

tion 23 of the Act of March 28, 1934, in the proposed Bill.

In this connection they wrote to the Senate Committee con.

sidering the legislation, and noted that Section 23 affected 2

‘special group of employees*’, only ‘‘some 900 out of about

7

i we

9

3,000 Amer‘can employees of Canal’’. The letters in ques-

tion are printed as Appendix C to the, petition for Cer-

tiorari, pp. 32-37.

It is from these letters that the Congress is presumed by

- petitioner to have knowledge of the manner in which Sec-

tion 23 had been administratively applied on the Canal

Zone, and its subsequent enactment of the Act of June 9,

1937, supra, containing Section 23 of the Act of March 28,

1934, petitioner contends, operates as a legislative ratifiea-

tion of that administrative application.

These letters actually inform the Congress of nothing

whatsoever. The Canal authorities poinfedly fail to state

the classes of employees affected by Section 23, and so far

as Congress knew all 900 of the emplovees Wffected could

have been monthly or annual employees. Ut is likewtse sig-

nificant that the Canal authorities fail to mention the fact

that it had continued to work its monthly employees on a

$8 hour week, although the Comptroller General had

specifically stated that such employees were to be placed

ona 40 hour week. Re-enactment of Section 23 as a par: of

the Aet of July 9, 1937, supra, manifestly can operate as

Congressional approval of the administrative practice only

if snch administrative practice was known to the Congress.

Helvering +. New York Trust Co., 292 U.S. 455, 468. Here

there is no affirmative showing that the Congress knew of

the administrative practice, and circumstances indicate

that it was actually misled with respect to such administra-

tive practice.

It is doubtful whether the single decision of the Comp-

troller General, subsequently reaffirmed, can be said to es-

tablish a consistent, long continued administrative interpre-

tation, in any event. This Court has indicated that it will

not. White v. Winchester Club, 315 U. S. 32, 40. It has

likewise held that a single decision by the Cirenit Court of

Appeals, follawed by the codification of the laws does not

engraft that interpretation of the law into the Code. United

States v. Raynor, 302 U.S. 540, 551. And finally when the

10

A

law is clear and unambiguous the subsequent re-enactment

of a statute does not censtitute adoption of its administra.

tive construction. Iselin v5 United States, 270 U. S. 245),

Zol; Wright v. United States, 302 U.S. 573, 582.

Petitioner also calls attention to the fact that the Can

vress, during the present War Kmergency, has enacted a

number of Acts extending the payment of overtime cor:

pensation to Government employees. Petitioner contends

that these Acts, and their legislative historie® indicate that

the Congress in such Acts provided relief for monthly and

per annum employees on the assumption that they did not

receive overtime compensation under Section 23 of the Aet

of March 28, 1934.

The Acts in question are*set forth in Appendix D to the

petition for Certiorari, pp. 38-45. They need not here be

discussed in detail. An examination of them will show that

they contain overlapping provisions; many groups. or

classes of employees are entitled to overtime compensation:

under more than one of the Acts in question. Overtime

compensation is provided in others for groups or classes

already entitled to overtime compensation. For instance the

Act of October 21, 1940, 54 Stat. 1205, provides overtime

compensation to per diem and hourly employees, whose

Wages or compensation is fixed by wage boards or other

wage fixing authorities, despite the fact that such employees

admittedly are entitled to such overtime compensation

under Section 23 of the Act of March 28, 1934. About all

that the enactment of such legislation indicates is that. ;

Congregs, confronted with a grave emergency, intended to

extend the payment of overtime compensation to ail kinds

and all classes of Government employees. The legislation

_Was obviously enacted hurriedly, and in the face of a grave

emergency. If indicative of anything it is only that- the

Congress was not too well aware as to what was the situ a

ation with respect to the payment of overtime’ compen-

sation. The need for haste was apparent as it was essential

that) the services of Government employees be retained,

11

and without such legislation many would have left the

Government 40 work in private; industry under more

~tavorable conditions of employment.

a

y a

2. Method employed in computing respondent’s overtime

compensation.

— To determine the amount of overtime compensation due

the respondent the Court below multiplied his monthly

compensation by 12 and divided the product by 52 to deter-

mine his compensation for a 40 hour week. His weekly

compensation was then divided by 5 to ascertain his daily

pay for an 8 hour day. One and one-half times this daily

rate then represented one day’s overtime compensation.

This method, petitioner contends, is erroneous. Its prin-

cipal argument is based upon the fact that the Act of

October 21, 1940, supra, whieh admittedly is broad enough

to cover the respondent’s employment, as well as that of

humereus Other classes of enployees, provided for the pay-

ment of overtime compensation; which in the case of

monthly employees was to be computed on a different basis

from that employed by the Court below.

The Court below properly rejected this argument on the

eround that a statutory method of computing overtime

enacted in 1940 should not control compensation under a

i834 statute. As respondent’s claim covers a period from

1954 to 19380 it is difficult to understand how the Court

below could have ruled otherwise. Respondent’s right to

overtime compensation first accrued in 1934. Had his right

tnen been recognized he would have received either the

benefit of a 40 hour work week, or overtime compensation

during the period from 1934 to 1939, and the 1940 Act, not

having been enacted, manifestly could not control the com-

.putation of such overtime ceinpensation.

The petitioner further contends that the method em-

pleved by the Court below does not follow settled admin-

istrative practice, nor Goes it give effect to the Act of

June 30, 1906, supra.

12

The short answer to this coeutention is that petitioner has :

consistently, and even now urges that the settled admin-

istrative practice has been to deny overtime compensation

to employees paid on a monthly basis. If the settled admin-

istrative practice has been to deny overtime compensation

‘fo such employees it is not understood just how there can

he any settled practice with respect to the computation of

overtime compensation for such employees. So far as the

application of the Act of June 30, 1906, supra, is concerned

it only provides a method for computing pay for fractional

parts of a month for employees paid on a monthly or an

annual basis. It makes no provision for the payment of “

overtime compensation to such employees, and it nowhere

is suggested that it was intended to provide a method of

computing overtime compensation.

This Court may also take judicial notice of the fact that,

at the time the Act of June 30, 1906, supra, was enacted the

work week for Government employees was 48 hours or

more, Section 26 of the Act of March 28, 1934, shortened

the work week for those employees whose compensation is

fixed by wage boards or other wage fixing authorittes to

40 hours. To that extent it certainly superseded the Act of

June 30, 1906, and re.dered it obsolete. It may bere be sug.

vested that the Comptroller General has held that, for the

purpose of computing overtime compensation under the

Act of June 28, 1940, c. 440, 54 Stat. 676, 678, a per annum

employee receives his salary on the basis of a 5 day, 40 hour

work week, and that such an employee is entitled to over-

time compensation for work on Saturdays. 26 Comp. Gen.

39, 41. This ruling tacitly concedes that the Act of June 30,

1906, supra is no longer applicable once the Government

has established a regular 40 hour work week. ra

The method employed by the Court below in computing

—

™~

the amount of respondent's overtime compensation is simi-

lar to the method employed in computing overtime compen- :

sation for monthly employees under the Fair Labor Stan- ;

dards Act of 1938 (Act of June 25, 1938, ec. 676, 52 Stat.

-

13

1WO0), Missel v. Overnight Motor Transportation Company

(C.C. A. 4th Cir.), 126 Fed. 2d 98, 109. See also 20 Comp.

Gen. 39.

3. The importance of the question here presented.

Petitioner contends that the decision of the Court below,

if allowed to stand will impose a considerable financial

and litigation burden upon the Government. It refers to

the fact that almost an hundred similar cases have already

Men filed with the Court below, seeking a recovery totaling

approximately one million dollars. It speaks of more than

a thousand additional claims which may be filed by Panama

Canal eniployees, and intitiates that the implications of

the decision will extend to employees of the War and Navy

Departments, the Bureau of Engraving and Printing and

the Government rrinting Office.

It, of course, is a matter of record that approximately 80

similar clainis have been filed in the Court below. The total

amount claimed in such cases probably amounts to close to

one million dollars. However, the amount claimed in such

cases Is always generously estimated, and the actual amount

recoverable in those cases is probably not more than three

or four hundred thousand dollars.

Respondent's counsel can assert wif considerable assur-

ance that there ace not one thousand or mere potential

claims to be filed by employees of the Panama Carpal. Vir-

tually the entire class of Canal employees who are affected

by the decision of the Court below have already filed their

claims, and it is believed that at most there are not more

than fifty additional potential claims upon which there can

be any recovery. The Court is well aware of the fact that,

unless such claims have already been filed in Court, claim

for compensation accruing prior to 1938 is already barred

hy the Statute of Limitations.

There has been no showing made that any appreciable

uumber of monthly employees of the War and Navy De-

partments, the Bureau of Engraving and Printing and the

14

Government Printing Office have regularly been employed

on a work week exceeding forty hours. Unless they have

been so employed claims of such employees are not apt to

be prosecuted in the Court of Claims. Further the War

Department admits that Section 23 does not apply to its

employees. See Appendix B to petition for Certiorari.

pp. 29-31.

The decision of the Court below will obviously affect the

disposition of cases already filed. There is no real likeli-

hoo of any substantial number of additional claims being

filed. While the claims already filed do amount to a sub.

stantial sum of money, the decision below is so manifestly

sound and correct that it does not require review by this

Court. Certainly the mere fact that a substantial sum of

money is involved does not make this question one of such

public importance as will justify review by this Court.

CONCLUSION.

or the-reasons stated, it is respectfully submitted that

the petition for Certiorari should be denied.

Herman J. Gattoway,

rep W. Suievps,

Attorneys for Re spondent,

July, 1944.

f