Brief for the Respondent in Opposition — California v. United States

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Jurisdiction... __ then died dela et fee ee 2

Question presented...___ Mein bile tala Ae, 2

Statutes involved. ______ PERO E RR ebeia bse wid se eo 3

Statement... Re Teer hh ehtian waned eh wie ces i 3

Argument_____ sre Abts tat sin HSS eee bnde ences oy ee HY 8

Seneiuaon. SSSR OU AM ba i ibae wendy 17

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CITATIONS

Cases:

Abbott vy. Morgenthau, 93 F. 2d 242, cert iorari denied, 303

Se cone SEREROHAER Ripe hewn poked, 1% 10, 15

Anderson vy. Abbott, 321 U. 8, 349. a ee es pas 12

Becker Co. vy, Cummings, 296 U. §. Leg EE ee Re 12

Booth v. Oakland Bank, 122 Cal. neha dao: 2. Fe ee 14

Brown v. United States, 65 F. 2d 55 ne Seg Z 12

Brownlee vy. Board of Directors of Veterans’ Home of Cali-

fornia, 133 Pac. Snag eT PPS AREEN ewe dC 16

Childers vy, Beaver, 270 U. o 655. 5... cet a eT oor ROSEN 10

Fennell v. United States, 67 F. 2d cing CO sek dik 12

Firet National Bank vy. California, 262 U. 8. 366___ 12

Haley v. United States, 46 F Supp. 4 mobs mnceneecn. 12

Interstate Commerce Commission y. Oregon-Washington R.

Co., 288 U. ght sn TE ee Pte es iets 12

In re Dumont’s Will, 257 N. Y. App. Diy. 952, affirmed,

282 N. Y. 606__. : ; whe bee aie c oe 12

Irvine y, Marshall, 20 How. 558___. : Se re 14

Lawrence y. Shaw, 300 U, 8. 245__. er ere werecarik 10

Miller y. Little, 47 Cal. 348 : tienes 10

Monsen vy. Monsen, 174 Cal. 97 - : ; 14

Nichols y, Emery, 109 Cal. 323___ a 14

Ruddy vy. Rossi, 248 U. 8. 104__ , ese bwin 10

Russell y. Lowth, 21 Minn. 167 ; <a hs sisi de Bisa 10

Russian Fleet Vv. United States, 282 U. Pe Ge ; 12

State y. Bank of Rrietal, 165 Tenn, 461.__. . Ramee 11

Tax Commiasio,, of Unio ¥. Rife, 119 Ohio St. 63..... . 10

Treadway vy, Board of Directors of Veterans’ Home of Cali-

fornia, 14 Cal. App. 75___. i Beaune 14

United States Vv. Allegheny County, 322 U. 8.174... 14

(1)

84230245.

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PER ELE RIS I EERE =

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II

Cases—Continued. Page

United States v. Hall, 98 U. 8, 343....------------------ 10

United States v. Klein, 303 U. 8. 276....---------------- 13

United States v. Stevens, 302 U. S. 623. .---------------- ‘10, 13

Walton v. Cotton, 19 How. 355-_------------------------ 10

Statutes:

Act of July 1, 1902, ¢, 1351, 32 Stat, 552 (24 U. 8. C, 139). 12

Act of June 25, 1910, ¢. 384, 36 Stat. 703 (24 U. 8. C. 136) - 12

Act of July 3, 1930, c. 849, 46 Stat. 991.....-.---------- 5

California Probate Code:

7.) nn ee Teer 13, 20

§ 1020__.....------------------------ +2 2---- =e 20

§ 1027......--------------------------+--------- 8, 21

Maryland Code, Article 93, § 140. --.------------------- 13

World War Veterans’ Act of 1924, § 21, as amended by

the Act of August 12, 1935, c. 510, 49 Stat. 607 (38

UB COO on eck cred cid cncuccncewecndccnsivee 2, 5, 8, 18

Inthe Supreme Gourt of the Hnited States

OcroBeR Term, 1944

No. 1092

STATE OF CaLiroarnta (IN THE Marter or Estare

or Cart A, Linpquist, ALso CALLED Car Linp-

QUIST), PETITIONER

v.

Unirep States or AMERICA

No. 1093

STATE OF CALIFORNIA (IN THE Marrer or Estate

OF Patrick Wa.keEr, Atso KNown as Patrick

J. WALKER), PETITIONER

Vv.

Unirep States or AMERICA

ON PETITIONS FOR WRI TS OF CERTIORARI TO THE SUPREME

COURT OF THE STATE OF CALIFORNIA

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the California Supreme Court

In the Matter of the Estate of Carl A. Lindquist,

(1)

MERRION ec ie ts

2

etc. (L. R. 24-44)" is reported in 25 Adv. Cal.

693; 154 Pac. 2d 879. Its opinion Jn the Matter

of the Estate of Patrick Walker, etc. (W. R. 49-

50) is reported in 25 Adv. Cal. 714; 154 Pac. 2d

891. The opinion of the California District Court

of Appeals, First Appellate District, In the Mat-

ter of Lindquist, not contained in the record, is re-

ported in 144 Pac. 2d 438. The memorandum

opinion of the Superior Court of San Diego

County, California, In the Matter of Walker

(W. R. 21-22) is not officially reported.

JURISDICTION

The judgments of the California Supreme Court

in Nos, 1092-1093 were entered on December 30,

1944 (L. R. 46-47; W. R. 50-51). The petitions

for writs of certiorari were filed on March 30,

1945. The jurisdiction of this Court is invoked

under Section’ 237 (b) of the Judicial Code, as

amended by the Act of February 13, 1925.

QUESTION PRESENTED A

Section 21 (3) of the World War Veterans’

Act, as amended by the Act of August 12, 1935,

provides inter alia that proceeds of pension pay-

ments remaining unexpended in the estate of an

In this consolidated brief in opposition, references to the

transcript of record in No. 1092, /n the Matter of Lindquist,

are designated by the symbol L. R.; those to the transcript of

record in No. 1093, Jn the Matter of Walker, by the symbol |

W. R.

3

incompetent veteran “shall escheat’? and ‘shall

be returned’? to the United States where such

proceeds would otherwise escheat to the state of

the veteran’s last legal residence. The sole ques-

tion presented in each ease is whether the Act is

unconstitutional as contravening the Tenth

Amendment. :

STATUTES INVOLVED

The applicable provisions of the Act of August

12, 1935, e. 510, 49 Stat. 607 (38 U. S. C. 450

(3)), and of the California Probate Code are set

forth in the Appendix, infra, pp. 18-21.

STATEMENT

The facts in Nos. 1092-1093 may be viewed as

identical insofar as the question here presented is

concerned.

In No.- 1092, Lindquist, an incompetent World

War veteran of the United States Navy, residing

in San Francisco, California, died intestate and

without known heirs on October 24, 1939 (L. R. 11,

15,17). He left an estate consisting entirely of un-

expended pension moneys paid to his guardian

under a pension award by the United States Vet-

erans Administration, dated December 11, 1935

(L. R. 18). Letters of administration of Lind-

quist’s estate were issued following his death to

the Public Administrator for San Francisco

(L. R. 445), and on April 16, 1940, the guardian

rendered a final accounting and paid over the un-

4

expended balance of the estate, consisting as afore-

said entirely of unexpended pension moneys, to

the Public Administrator (L. R. 8).

On November 7, 1940, the Public Administrator

filed a petition for settlement of final account and

for final distribution of the estate in the Superior

Court of the County of San Francisco, California,

praying that an order be made ‘“‘determining who

are entitled to the estate of said deceased, and

directing that all the * * * remainder of the

estate of said deceased be distributed to the per-

sons who by law are entitled thereto’? (L. R.

11-12). Thereafter, on December 3, 1940, the

United States filed claim with the Administrator

seeking payment to the United States under the

provisions of 38 U. S.C. 450 (8) (Appendix,

infra, pp. 18-20) of all funds in the hands of the

Administrator derived from the deceased’s pen-

sion, in the event such funds would otherwise

escheat to the State of California for want of

heirs (L. R. 14-16).

On July 10, 1942, the Superior Court entered a

decree of settlement of final account and final

distribution (L. R .16-19). The court therein

found that the deceased died intestate and with-

out heirs or next of kin entitled to share in the

estate, and that the estate consisted entirely of

moneys received under the pension award by the

Veterans Administration (L. R. 17-18). The

court denied the claim of the United States for dis-

5

tribution of the estate under the provisions of

38 U. S. C. 450 (3) and instead ordered that the

estate be distributed to the State of California as

escheated property under certain provisions of the

California Probate Code (L. R. 18-19).

In No, 1093, Walker, a veteran of the Spanish

American War and a resident of California, re-

ceived pension payments from the Federal Gov-

ernment commencing June 27, 1899 (W. R. 21,

49). He was subsequently declared incompetent

on October 7, 1938, and thereafter, until his death

on December 11, 1940 (W. R. 1), the pension

payments due him were made to a guardian

(W. R. 22). Following Walker’s death, intestate,

his guardian rendered a final accounting and paid

over the unexpended balance of his estate to the

Public Administrator for the County of San

Diego, California, Walker’s last legal residence,

It is conceded that, as in the Lindquist case, the

funds so paid over consisted entirely of unex-

pended pension moneys paid after the enactment

of the present provisions of 38 U. S. C. 450 (3).

* As noted above, Walker received pension payments as a

veteran of the Spanish American War prior to the Act. of

August 12, 1935, ¢. 510, 49 Stat. 607 (38 U. S. C. 450 (3)).

Before the 1935 amendment, the applicable Section applied

solely to compensation paid to veterans of the World War,

but was otherwise substantially identical with the present

provisions. (See Act of July 3, 1930, ¢. 849, 46 Stat. 991,

993). As stated in the opinion of the Supreme Court of

California (W. R. 49), the petitioner conceded that Walker's

estate consisted entirely of unexpended pension payments

made after the 1935 enactment, and petitioner does not con-

—_—+

6

On October 26, 1942, the Public Administrator

filed a petition for distribution. (W. R. 9-12) in

the Superior Court of San Diego County, praying

that a decree be made “distributing the remaining

assets of said estate, less costs of closing, to the

persons entitled thereto * * *’? (W. R. 10).

Thereafter, on November 27, 1942, the ‘United

States, relying on the provisions of 38 U. S. C. 450

(3), filed a petition in the Superior Court praying

distribution to the United States of the net estate

upon the ground that the deceased did not leave

surviving him any person capable of succeeding

to the estate under the laws of California (W. R.

15-17). On the same date, the State of Cali-

fornia filed claim in the matter for distribution

of the estate to it on the ground that the estate

property had ‘“‘escheated to the State of Cali-

fornia’? (W. R, 17-19).

On January 29, 1943, in conformity with a

memorandum opinion earlier entered (W. R. 21-

22), the Superior Court entered an ‘“‘order and

decree * * * of distribution” (W. R. 22-24),

in which it was found that there were no known

heirs of the deceased and that the entire estate

subject to -distribution consisted of ‘‘accumula-.

tions from beneficial payments to deceased by the

United States Government,” but which neverthe-

less denied the claim of the United States and

tend otherwise in its petition (cf. W. Pet. 5). Consequently,

no question is involved as to the retroactive effect of the 1935

enactment.

7

instead decreed that the estate should escheat to

the State of California.

The United States appealed from this decree

and that rendered by the Superior Court in the

Lindquist case to the Supreme Court of California

(L. R. 19; W. R. 24-25). The court trans-

ferred the Lindquist case to the District Court of

Appeals for the First Appellate District which re-

versed the holding of the Superior Court and

sustained the claim of the United States for dis-

tribution of Lindquist’s estate to it under the

provisions of 38 U. 8. C. 450 (3). Thereafter, the

Lindquist case and the Walker case were consid-

ered by the Supreme Court of California en bane.

The decision of the California Supreme Court,

entered on December 30, 1944, affirmed, one judge

dissenting, that of the District Court of Appeals

for the First District In the Matter of Lindquist,

thereby sustaining the claim of the United States

for distribution of the Lindquist estate to it. On

the same date, the Supreme Court of California

reversed the decree of the Superior Court of San

Diego County, in the Walker case, adopting its

opinion Jn the Matter of Lindquist.*

‘Although these opinions sustained the constitutionality

of the federal statute involved and affirmed the right of the

United States to receive back unexpended pension moneys

left in the estates of deceased incompetent veterans dying

intestate and without heirs, the court held that the estate

moneys in both cases must be deposited in the state treasury

for a period of five years following the termination of the

642302452

8

ARGUMENT

Section 21 (3) of the World War Veterans’

Act of 1924, as amended (Appendix, infra,

pp. 18-20), provides that funds left in

the hands of guardians of deceased in-

competent veterans ‘‘derived from com-

pensation * * * or pension, payable under

said [pension and compensation] Acts, which

under the law of the State wherein the beneficiary

had his last legal residence would escheat to the

State, shall escheat to the United States and shall

be returned by * * * [the veteran’s] guar-

dian, curator, conservator, or person legally vested

with the care of the beneficiary or his estate, or by

the personal representative of the deceased bene-

ficiary, less legal expenses of any administration

necessary to determine that an escheat is in order,

to the Veterans’ Administration, and shall be de-

posited to the credit of the current appropriations

provided for payment of compensation, insurance,

or pension’’ (38 U.S. C. 450 (3)).

Relying upon the use of the word ‘‘escheat”’ to

characterize the contingent right to the return of

the pension moneys provided _an the statute, peti-

probate proceedings under the provisions of Section 1027 of

the California Probate Code. The United States is filing

conditional cross-petitions for writs of certiorari in these

cases praying a review of this aspect of the court’s opinion

and judgment in each case in the event this Court grants

the petitions here involved. Discussion of the provisions of

Section 1027 of the Probate Code and of cheir possible effect

upon the federal statute here involved is contained therein.

9

tioner contends that the statute is an invasion of

the reserved rights of the states under the Tenth

Amendment to regulate the distribution of prop-

erty in the estates of its citizens dying intestate.

To support this position, petitioner urges (1) that

“the money having been paid to the deceased

without reservation, the United States can no

longer assert control over it’’ (L. Pet. 8; W.

Pet. 8); and (2) that “a state * * *

* * * sole and exclusive pow 7)? 9

over the disposition of the property of its

residents’’ (L. Pet. 9; W. Pet. 8). The Supreme

Court of California correctly, we maintain, re-

jected these contentions in the instant context,

holding that the United States had imposed a

permissible condition on the grant of a federal

bounty and that, in any event, the payment and

acceptance of the pension money under the terms

prescribed by the statute created a valid contrac-

tual obligation to return the money upon the

occurrence of the condition.

1. As clearly appears from the Act here in-

volved, the pension payments were not, as peti-

tioner contends, “paid without reservation. ”’

Here, the United States affixed to its grant of

pension moneys the definite condition that the

wnexpended portion thereof should revert to the

United States in circumstances wherein the money

otherwise would escheat to the state. The validity

of conditions attached to federal grants has con-

sistently been upheld, notwithstanding the fact

10

that they operate in a field ordinarily reserved to

the states.“ Thus, in Ruddy v. Rossi, 248 U.S. 104,

a provision attached to the grant of homestead

lands that such lands should not be subject to levy

or attachment in satisfaction of debts contracted

by the grantee prior to the grant was sustained.

See also Miller v. Little, 47 Cal. 348; Russell y.

Lowth, 21 Minn. 167, 169-170. Similar provisions

with respect to pension payments were approved

in Walton v. Cotton, 19 How. 399, 358; ef. United

States v. Hall, 98 U. S. 343, 354-355, and a statu-

tory exemption of such payments from local taxa-

tion was specifically upheld in Lawrence v. Shaw,

300 U. S, 245. Nor is the federal condition in-

valid because it affects state laws relating to

descent and distribution of decedents’ estates.

United States v. Stevens, 302 U. 8. 623; Childers

v. Beaver, 270 U. S. 555; Tax Commission of Ohio

v. Rife, 119 Ohio St. 83; Abbott vy. Morgenthau,

93 F. 2d 242 (App. D. C.), certiorari denied, 303

U. S. 638.° Accordingly, it is submitted that the

* The essential reasonableness of the condition was recog-

nized by the court below. It stated: “That unexpended pen-

sion money, under the conditions enumerated in the statute,

should be returned to its source and be used in further aid

of veterans, is eminently just and equitable” (L. R. 30;

W. R. 34).

°In Abbott v. Morgenthau, the court said (93 F. 2d at

p. 245):

“° © Felley * * © had no vested legal right to

& pension at all, for, as has been said time and time again,

pensions are bounties which Congress has the right to give,

to withhold, to distribute, or to recall, at its discretion.

11

United States may validly prescribe that where

the bounty granted for the relief of a veteran is

not entirely utilized for that purpose prior to

death, the unexpended residue shall revert to the

donor. This provision for reversion, conse-

quently, despite the legislative use of the word

“escheat,’’ is in no sense the technical type of

escheat which alone might lend color to peti-

tioner’s arguments. The legislative intent is

clear and a technical connotation should not be

given the word in such cireumstances.° Under

familiar canons of construction, the statute

When, therefore, it is considered that Congress could annex

whatever conditions it pleased whenever it pleased to the

grant or the gratuity, it seems to us clear that it was

competent for Congress to say, as it did say, that, if anyone

enjoyed the benefits of the home [for veterans] and was still

a member of the home at the time of his death, his accumu-

lated pension money should be distributed in a particular

manner. * * 2%»

°Cf. State v. Bank of Bristol, 165 Tenn. 461, 468-469,

Where the Tennessee Supreme Court said of this quasi-con-

tractual right of reversion or “escheat” under the provisions

of 38 U.S. C. 450 (3) as then applicable:

“It seems a mistake to us to say that the government

retained any title to or interest in this fund after it was paid

to the guardian. The government retained control of the

administration of the fund. to a limited extent, and made a

provision with reference to escheat. Such provisions are

sustained because the guardian was not bound to accept the

fund, and if he did accept, he took on the terms prescribed

by the Act of Congress.”

Compare also, the numerous cases arising under Sections

451, 512 and 514 of Title 38 of the Code, where the courts

have invariably, without discussion, assumed the validity

12

should be construed in such manner as to render

it constitutional. Becker Co. v. Cummings, 297

U. S. 74, 80; Interstate Commerce Commission v.

Oregon-Washington R. Co., 288 U. S. 14, 40;

Russian Fleet v. United States, 282 U.S. 481, 492.

The contention of California that it possesses

an absolute power of escheat merely because the

funds in question were possessed by her residents

or present in her territory at the time of death

is untenable. The state may not frustrate the

purposes of national legislation by the declaration

of an escheat. First National Bank v. California,

262 U. S. 366, 369-370; ef. Anderson v. Abbott,

321 U. S. 349, 365. Nor does the fact that the

funds have been involved in state probate pro-

ceedings for a determination of the nonexistence

of heirs establish any right of escheat,’ it having

of provisions relating to war risk insurance policies that

payments not yet made shall “escheat” to the Federal Gov-

ernment. Brown vy. United States, 65 F. 2d 65, 67 (C. C. A.

9); Fennell vy. United States, 67 F. 2d 768 (C. C. A. 5);

Haley v. United States, 46 F. Supp. 4, 7 (D. Mont.) ; /% re

Dumont’s Wil N. Y. App. Div. 952, 953, affirmed, 282

N. Y. 606.

7 While Congress could have limited the inheritance of

pension moneys to the widow, dependent children or de-

pendent mother or father as was done in the Act of July 1,

1902, c. 1351, 32 Stat. 552, 564 (24 U.S. C. 139) or could have

provided that all the decedent’s personal property would

pass to the home for veterans, subject to reclamation by the

heirs within five years (Act of June 25, 1910, c. 384, 36 Stat.

703, 736 (24 U. S. C. 136) ), it is to be observed that the fed-

eral statute here involved follows the state law in respect of

ee BRO LS Nee IEE RE _—

13

been held in United States v. Klein, 303 U. §.

276, that the custody of funds by a court does not

enable its sovereign to prevent the disposition of

the funds under the law otherwise applicable to

them. As the court below remarked (L. R. 35;

W. R. 40): ‘‘A state escheat statute is based upon

state sovereignty and is a direction for the devolu-

tion of property. It may not prevail over the

United States Constitution or over a congres-

sional act which does not deprive one of property

interests without due process of law.”’

2. The statutory provision in question also is

enforceable as a contract. In United States v.

Stevens, 302 U. 8. 623. an ex-soldier executed an

agreement in order to obtain admission into the

national veterans’ home that upon the death of

the veteran while a member of the home, all his

personal property should pass to the home sub-

descent and distribution and that it is only at the point where

the escheat to the state would otherwise occur that the federal

statute operates. This course was made necessary by the

varying laws of the states as to the degree of consanguinity

necessary to qualify next-of-kin as heirs in cases of intestacy.

Compare, e. g., the restricted right of escheat given by Sec-

tion 231 of the California Probate Code (Appendix, infra,

p. 20), that “If the decedent leaves no one to take his estate

or any portion thereof, under the laws of this state, the same

escheats to the state * * *,” with the broader right of

escheat provided by the Maryland Code, Art. 93, Sec. 140,

that “If there be no widow or relations of the intestate

Within the fifth degree, which shall be reckoned by counting

down from the common ancestor to the more remote, the

whole surplus shall belong to the State * * *”

14

ject to reclamation within five years by legatees

or persons entitled to receive the property by

inheritance. The Court held the Government

could enforce the agreement on death as a con-

tractual obligation and reversed the circuit court

of appeals which had judged the federal statute

authorizing the contract invalid as an invasion

of the rights of the state of the veteran’s domi-

cile to regulate testamentary dispositions. It

is noted (lL. Pet. 16; W. Pet. 18) that

in the course of the decision in the Stevens case,

the Court remarked that the contract there upheld

was in conformity with and enforceable under

the laws of Massachusetts, the veteran’s domicile.

It is believed that the Court pointed to this fact

for the purpose of demonstrating that it was

unnecessary to decide whether federal or state

law governed such contract. It is submitted that

here federal law is solely applicable. FZ. g., Irvine

v. Marshall, 20 How. 558; United States v. Alle-

gheny County, 322 U. 8S. 174. In any event, it

is clear that contracts to transfer such property

as a veteran may possess at death also are valid

under California law, both as to publie contracts

of the nature here involved (Treadway v. Board

of Directors of Veterans’ Home of California, 14

Cal. App. 75) and as to private contracts (Nichols

v. Emery, 109 Cal. 323; Booth v. Oakland Bank,

122 Cal. 19; Monsen v. Monsen, 174 Cal. 97).

15

It is settled, moreover, under federal and Cali-

fornia holdings alike, that formal consent by the

veteran to a statutory provision of the nature here

involved is not requisite to its enforcement. In

Abbott v. Morgenthau, 93 F. 2d 242 (App. D. C.),

certiorari denied, 303 U. S. 638, the veteran in-

volved had signed an application for admission

to the National Veterans’ Home, one proviso of

which stipulated for the distribution of certain

unexpended pension payments on deposit with the

treasurer of the home without probate proceed-

ings, in a manner prescribed by statute. The

veteran having been incompetent and under

guardianship at the time of signing, the conten-

tion was made that the statutory provision was

inoperative because the veteran lacked capacity to

contract and th’ -wardianship court had not signi-

fied its approv. of his admission. The court en-

forced the condition, stating in part (93 F. 2d

at p. 245): ;

But the inclusion of this [statutory]

language in the application form added

nothing to the effectiveness of the statute,

nor was there any necessity for an agree-

ment on Felley’s part to make it binding

upon him as a member of the home; and

this is true because there is nothing in the

statute which requires consent to its terms

on the part of the applicant for admission

to the home. It is a self-executing act—

complete in itself and requiring neither

consent or agreement to become operative.

16

It was not, therefore, Felley’s consent that

transferred the pension money to the home

fund, but his presence inthehome * * *,

Similarly, in Brownlee v. Board of Directors of

Veterans’ Home of California, 133 Pac. 1158 (Cal,

D. C. A.), hearing denied by the Supreme Court

of California, the court held enforceable the pro-

visions of a California statute enacted after the

admission of a veteran to the state veterans’ home

that ‘‘any moneys belonging to the members of

the Home”’ should, ‘‘upon their death, be held as

a trust fund, to be paid by the board, directly and

without probate,” to those entitled to the veteran's

estate, provided claim was made within five years.

The veteran died intestate. The court held, de

spite the fact that the veteran had not expressly

consented to the operation of the statute enacted

subsequent to his admission to the home, that the

veteran’s enjoyment of the benefits of the home,

and his failure to make a will otherwise disposing

of his property, resulted in an implied agreement,

It is thus plain that both federal and California

courts uphold the imposition of conditions of this

nature when incorporated into statutes providing

for the grant of benefits and gratuities, irrespec

tive of whether the consent of the veteran is

formally expressed as in the Stevens case or il

plied by the acceptance of the gratuity to which

the condition attached.

17

CONCLUSION

The decision below is correct and no conflict

exists. It is therefore respectfully submitted that

the petitions for writs of certiorar’ should be

denied.

Hueu B. Cox,

Acting Solicitor General.

Francis M. Sura,

Assistant Attorney General.

Pau A. SWEENEY,

BonNELL PHILLIPS,

WALTER J. CumMMINGS, Jr.,

Attorneys.

Aprin 1945,