# Petition for a Writ of Certiorari — Coffman v. Federal Laboratories, Inc.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1964%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1949
- **Citation:** 336 U.S. 913

## Text

———————)
es |

—

. ;

3D

IN THE CHARLES ELMUAL ¢

Supreme Court of the United State

Octoser Term, 1948

No. <4. Z. Q

Roscor A. CorrMan,
Petitioner,
v.

FreperaL Laxsorarorigs, Inc.,
Respondent,

Unirep States or AMERICA,
Intervenor.

DEL 23 1948

vPLEY

CLERK

PETITION FOR WRIT OF CERTIORARI AND
BRIEF IN SUPPORT THEREOF

Joun G. BucHaNnan,
\ James D. Carpenter, Jr.,
4 Jonn G. Bucuanan, Jr,
, Sauget M. Coomss, JR.,

v Attorneys for Petitioner.

307 BAR PRESS INO., 54 LAFAYETTE 8T., NEW YORK 13— wa. 5 3432-3

a —_— "3

i ——

TABLE OF CONTENTS

PAGE
Petition for Writ of Certiorari:

I Ga i cat rlecn sacs scrvsoresnckaaishanihciesteinitineniniten 2

ES RRR aie R g pO rlr TS aS RUTI 2

I 6 hc cacconuscaapiclaanleentudaunim Neapionell cain ens 3

SS ER ie ERE ne eo ee 4

I ola rcasannasintapanécansobannnnnisinanelan 10
Reasons Relied on for the Allowance of the Writ—

RE Rr in Gee ROE RARE Tre ee OR Oe ORR ll

pe AROS AE an RT RO Ne UTI 12

EEN RR I AR or FSC Ea FPR ere aR 14

ae aos hit aa ree haha late Ankenes aammiicannen 17

Brief in Support of Petition:

RE ST IE ae IN Sw OE OI 21
1. The Court of Appeals, in holding that the Roy-
alty Adjustment Act does not violate the just
compensation and due process clauses of the
Fifth Amendment, has decided incorrectly an
important question of federal law which should

be settled by this Court ................ fae OAS FREON 21

2. The decision of the Court of Appeals, in holding
that the Royalty Adjustment Act should be re-
troactively applied, is in conflict with a deci-
sion of the Court of Appeals for the Sixth Cir-
GRE GG BD GETOOOUD onc. ccececees.cccescccccrennscenciicceccciss 27

ii Index

PAGE
3. The decision of the Court of Appeals that the

petitioner should not be permitted to question

the constitutionality of the Royalty Adjustment

Act until he has sued the United States in the

Court of Claims conflicts with applicable deci-

sions of this Court and should be reversed .. 31

4. The decision of the Court of Appeals that the
summary judgment obtained by petitioner was
not final and cannot be given the force of res
judicata conflicts with decisions in other cir-
cuits, is probably in conflict with decisions of
this Court and presents an important question
which should be settled by this Court ................ . &

i SPI

ee RP BAR Meee SANT PUPS CUAL UCN EERO ERNE 40

TABLE OF CITATIONS |

CasEs: }

Adams v. Burke, 17 Wall. 453 oe 23
Aircraft & Diesel Equipment Corp. v. Hirsch, 331

U. S. 752 STN ce LIRR AN VON eRe Aa PORTS 15, 33
Alma Motor Co. v. Timken- Detroit Axle Ce., 329

U. S. 129; 65 S. Ct. 1190 11, 15, 24, 27, 31, 33
American Express Co. v. Mullins, 212 U. S. 311 ...... 19, 39
American Surety Co. v. Baldwin, 287 U. S. 156 .......
Angel v. Bullington, 330 U. S. 183
Arnson v. Murphy, 109 U. S. 238

Baldwin v. Iowa State Traveling Men’s Ass’n., 283
U. S. 522

Baltimore & Ohio R. R. v. United States, 298 U. S.
349 |

Banco Mexicano de Commercio e Industria v.
Deutsche Bank, 263 U. S. 591

Index ili

PAGE

Barclay & Co. v. Edwards, 267 U. S. 442 . 24
Biggins v. Oltmer Iron Works, 154 F. (2a) 214

yn ee ee i eee 17, 18, 36
Blodgett v. Holden, 275 U. S. 142 2000000000000... 24, 30
Brooks-Scanlon Corp. v. United States, 265 U. S.

ERROR EERE NIN RENE re ce ee 24, 26
Buckingham v. Smith, 10 Ohio 288 (1840) ..... 23
Burnett v. Mayor &e. of Sacramento, 12 Cal. 76

RSS LRA PIES Oke 2 ESI ER SP Ry Pee ee 23
Cary Library v. Bliss, 151 Mass. 364 (1890) 0.0... 28
Chicago &. R. R. Co. v. Chicago, 166 U. S. 226 .. 24
Chicot Co. Drainage Dist. v. Baxter State Bank, 308

21MIN PTE eri Op Renner erat ee 19, 37
Claridge Apartments Co. v. Comm’r of Internal Rev-

enue, 323 U. S. 141 . ad Jabaianies sfc

Coffman v. Breeze Corporations, 323 U. Ss. 316

5, 6, 11, 15, 33
Coffman v. Federal Laboratories, 323 U. S. 325 ..11, 15, 32
Cold Metal Process Co. v. MeLouth Steel Corp., 79

ke ee RIED. ORE enn ORAS SANE ROB 12, 27
Comm’r of Internal Revenue v. Sunnen, 333 U. S

RRR ERE BS, TORR aI, NO hd OOM oa Sas ae
Coolidge v. Long, 282 U. S. 582 ........ icin cae . &
Coombes v. Getz, 285 U. S. 434 000s 14
Danzer & Co. v. Gulf & Ship Island R. R. Co., 268

RU MITE asc fete ier ene coat lyse coubtincase 14
Davis v. Donovan, 265 U. S. 257 2.0.0.0... eccceececeeeeeeeee 34
Davis v. Newton Coal Co., 267 U. S. 292 ............ ian
DeGroot v. United States, 5 Wall. 419 ..................... 16, 34
Electric Co. v. Dow, 166 U. S. 489 4
Elgee Cotton Cases, 22 Wall. 180 202000000000. ccccceecccccceeeee 34

Emery v. San Francisco Gas Co., 28 Cal. 345 (1865) 23
Ettor v. City of Tacoma, 228 U. S. 148 ...................... .

———

iv Index
PAGE
Fishgold v. Sullivan Drydock & Repair Corp., 328

ns Se ea aan incase nentas 19, 40
Forbes Pioneer Boat Line v. Board of Commission-

I el Os HI ics seyesa cess chinmndincanns corctnnmoregapens penesee 14
Graham v. Goodeell, 282 U. S. 409 ......... ees 14
Great Falls Mfg. Co. v. Attorney General, 124 U. S.

RED ae ae ge Ae ae EE Kh Se Reh eee ee 16, 34
Great Northern Ry. Co. v. Weeks, 297 U. 8S. 138 ...... 26
Hammett v. Philadelphia, 65 Pa. 146 (1870) ......... an
Hauck v. Little River Drainage Dist., 239 U.S. 254... 28
Heiner v. Donnan, 285 U. S. 312 ..................... eee 24
Helvering v. City Bank Farmers Trust Co., 296 U. S.

ne es sae ie i zisea dBase cb pasebaitad sioedemesinaichndtinasethle seni 24
Helvering v. Helmholz, 296 U. 8. 93 000.000. 30
Hurley v. Comm’n. of Fisheries, 257 U. S. 223 .......... 34
Jacobs v. United States, 290 U. S. 13 20. 26
Juragua Iron Co. v. United States, 212 U. S. 297 ...... 34
Kasishke v. Baker, 144 F. (2d) 384; cert. den. 325

a TERS sere aeipen gee cmeeot niece. me penat em er moet 18
Koshkonong v. Burton, 104 U. S. 668 00. 14
Levy v. Wardell, 258 U.S. 542 «0.0.0... 30
Lichter v. United States, 334 U. S. 742 .......... eda eae 26, 29
Liggett & Myers Tobacco Co. v. United States, 274

I a Ne Oe aaah 26
Luckenbach S. 8. Co. v. United States, 272 U. 8. 533.. 34
McElrath v. United States, 102 U. S. 426.000.0000... 34
Mitchell v. Harmony, 13 How. 115 (1851) ................... 23
Monongahela Navigation Co. v. United States, 148

EE Ra ce Te Rept SE Tee ee eae RC 25, 26
Munro v. United States, 303 U. S. 36 RF ten eRe 34
Murray v. Gibson, 15 How. 421 0.02... ees 29

Nassau Smelting & Refining Works v. United States,
I ln cated elec ta cana inc nasionisepeaeee 34

Index v

PAGE

Nichols v. Coolidge, 274 U. S. 531 o00o0..o cee. 24, 30

Nichols v. United States, 7 Wall. 122 200000.c. 34

Olson v. United States, 292 U. S. 246 0... 26

Osborn v. Nicholson, 13 Wall. 654 20000000. 14

People v. Mayor &. of Brooklyn, 4 N. Y. 419 (1851) 23

Phelps v. United States, 274 U. S. 3412 on... 26

Price v. United States, 174 U. S. 373 2000... 16, 34
Railroad Retirement Board v. Alton R. R. Co., 295

NE a aR een eet de ear eR 14
Reid v. United States, 211 U. S. 529 ooo... 16, 34
Reynolds v. McArthur, 2 Pet. 417 2000000... 29
Richmond Screw Anchor Co. v. United States, 275

Ne "Oh sa RE tre ELROD Pty 2A Ar Le ORO Nee OS 22, 26
Russian Volunteer Fleet v. United States, 282 U. S.

a RR CN reat nO NAY Srey Ape Ne a ee Ae 26
Schillinger v. United States, 155 U. S. 163 16, 33
Schlesinger v. Wisconsin, 270 U. S. 230.0...
Schwab v. Doyle, 258 U. S. 529 ........... Ser etn ron 13, 29
Seaboard Air Line Ry. Co. v. United States, 261

he A ila tea sh cd ee PR A 26
Sherrer v. Sherrer, 334 U. S. 343 20000. occcccccceeseee 19, 38
South Carolina v. Gaillard, 101 U. S. 483 20000. 34
Southwestern Coal Co. v. McBride, 185 U.S.499 29
Steamship Co. v. Joliffe, 2 Wall. 450 00. 14
Stoll v. Gottlieb, 305 U. S. 165 ooo. 19, 38
Tioga R. R. v. eouscna & Corning R. R., 20 Wall.

ap MATE 5, PANN AR RCE! Set x eA OOM NS pe NN TR 19, 39
United States v. Babcock, 250 U. 8. 328 .......... “sassssew 6, 84

United States v. Chandler-Dunbar Co., 229 U.S.53... 25

United States v. Congress of Industrial Organiza-
_ «¢ << 5) FAR rel 14, 30

United States v. Cress, 243 U.S. 316 0... 26

~—

vi Index

PAGE

United States v. John J. Felin & Co., 334 U. S. 624... 27
United States v. General Motors Corp., 323 U. 8. 373 26

United States v. Heth, 3 Cranch 399 2000000. 13, 28
United States v. Klamath & Moadoc Tribes, 304 U. S.

B.S oscedc katte canta ane eeei ee daidekeabhes oddoedon ekki 26
United States v. Lee, 106 U. S. 196 |... ee. 34
United States v. Lynah, 188 U.S. 445 2000... 26
United States v. Masonite Corp., 316 U.S. 265 ............ 23
United States v. Miller, 317 U. S. 369 000000... 26
United States v. Moser, 266 U. S. 236 00.0. 19, 40
United States v. New River Collieries Co., 262 U. 8.

ESN tee Sap IE SS Wat DR PE 26
United States v. Rogers, 255 U. S. 163.000.0000... 25
United States v. Sherwood, 312 U. S. 584 .................... 16, 34
United States v. Univis Lens Co., 316 U. S. 241 ........ 23
Untermyer v. Anderson, 276 U. S. 440 0. 24, 30
Waite v. United States, 282 U. S. 508 ooo. 26
Wall v. Parrot Silver & Copper Co., 244 U. S. 407...... 34
Se ie es Te a I beh chesasntleeevakdcissctareernsnnernne 30

Sratutes, TExTs, ETC.
Act of 1910 (36 Stat. 851, as amended 40 Stat. 705, 35

A Es ee eras Cin aie eee Ean a Ame: 21, 22
Congressional Record, Vol. 88, pp. 8215 &e. ............... 24
CI TAG Ta TF seks ccc a sscecinatn arn cdo rsnvas 24
Cooley, Constitutional Limitations, 8th Ed., Vol. 2,

i I ont otc a Sah Licatict ctl la ke nares gona ttase bis 23
Internal Revenue Acts Beginning 1940, p. 499 (26

is i RNG oe ha htd arisigh ci lsenaat teed le deca ene suinobccatins dha 29
Judicial Code, Title 28, U. S. C. See. 347 000... 2

Royalty Adjustment Act of 1942 (56 Stat. 1013, 35
U. 8. C. Sees. 89-96) ..............0000...... 3, 4, 22, 28, 29, 32, 33

_

IN THE

Supreme Court of the United States
Ocroser Term, 1948

Roscoz A. CorFMAN,
Petitioner,
Vv.

FeperaL Laporatorigs, Inc.,
Respondent,

Unitep States or AMERICA,
Intervenor.

Petition for a Writ of Certiorari to the Court
of Appeals for the Third Circuit

To the Honorable the Chief Justice and the Associate
Justices of the Supreme Court of the United States:

The petitioner, Roscoe A. Coffman, by his attorneys,
respectfully prays that a writ of certiorari issue to review
a judgment of the Court of Appeals for the Third Circuit
entered on November 9, 1948, at No. 9545, affirming a
judgment of the District Court for the Western District
of Pennsylvania entered on October 10, 1947 in favor of
the defendant.

This judgment denied plaintiff the right to recover
royalties from his Licensee under a contract made in 1932
earned on plaintiff’s inventions (a) before the Royalty
Adjustment Act of 1942 was passed; (b) between the date
of the passage of the Act and the issuance of Royalty
Adjustment Notices; (c) in the period between the issu-
ance of the Royalty Adjustment Notices and Royalty Ad-
justment Orders; and, finally, (d) after the Royalty Ad-
justment Orders were issued, on the ground that the
Royalty Adjustment Act was constitutional under which
plaintiff’s royalties were taken by the United States, with-
out, it is alleged, giving him just compensation therefor
and without due process, in violation of the 5th Amend-
ment.

Opinions Below

The findings of fact (except for Finding 14), conclu-
sions of law and opinion of the District Court for the West-
ern District of Pennsylvania are reported at 73 F. Supp.
409 and are printed in the record (R. 110a-12la*), where
the unreported Finding 14 is also printed (R. 121a-122a).
The opinion of the Court of Appeals for the Third Circuit
is reported at—— F.(2d) —— and is printed in the record.

Jurisdiction

The jurisdiction of your Honorable Court is invoked
under the Judicial Code, Title 28, Uuited States Code

§347, mene . £As¥ (+).

*Unless otherwise noted, all record references are to the pages of
the appendix for appellant in the Court of Appeals.

Statute Involved

The statute involved is the Royalty Adjustment Act of
October 31, 1942, 56 Stat. 1013, 35 U. S. C. §§89-96. The
full text of the Act is printed in the record (R. 130a-134a).

Section 1 of the Royalty Adjustment Act provides that
‘‘whenever an invention, whether patented or unpatented,
shall be manufactured, used, sold, or otherwise disposed
of for the United States, with license from the owner there-
of or anyone having the right to grant licenses there-
under,’’ the amounts of royalties payable to the licensor
shall by order be fixed at such a figure as shall be deter-
mined by a government officer to be ‘‘fair and just, taking
into account the conditions of wartime production.”’ It
further provides that the licensor of the invention ‘‘shall
not have any remedy by way of suit, set-off, or other legal
action against the licensee for the payment of any addi-
tional royalty remaining unpaid, or damages for breach
of contract or otherwise.’’ The licensee, who is thus re-
lieved of liability under the license contract, is directed
thereafter to charge to the United States no greater royal-
ty than that which is allowed by the order, and Section 4
specifically adds that any reduction in royalties effected
by order ‘‘shall inure to the benefit of the government by
way of a corresponding reduction in the contract price
* * * or by way of refund if already paid to the licensee.”’

Section 2 of the Act provides:

**Any licensor aggrieved by any order issued pur-
suant to section 1 hereof, fixing and specifying the
maximum rates or amounts of royalties under a
license issued by him, may institute suit against the
United States in the Court of Claims, or in the Dis-
trict Courts of the United States insofar as such

) a

courts may have concurrent jurisdiction with the
Court of Claims, to recover such sum, if any, as, when
added to the royalties fixed and specified in such order,
shall constitute fair and just compensation to the
licensor for the manufacture, use, sale, or other dispo- [
sition of the licensed invention for the United States,
taking into account the conditions of wartime produc-

tion. In any such suit the United States may avail
itself of any and all defenses, general or special, that
might be pleaded by a defendant in an action for in-
fringement as set forth in title sixth of the Revised
Statutes, or otherwise.”’

Si. TREO:

Section 7 of the Act provides in part: g

‘*This Act shall apply to all royalties directly or §
indirectly charged or chargeable to the United States :
for any supplies, equipment, or materials to be de-
livered to or for the Government from and after the
effective date of the notice provided for in section 1
hereof. This Act shall also apply to all royalties
charged or chargeable directly or indirectly to the
United States for supplies, equipment, or materials
already delivered to or fo» the Government which
royalties have not been paid to the licensor prior to
the effective date of the notice provided for in section 1
hereof.’’

Statement

The petitioner is the inventor and patentee of the Coff-
man Starter, used for starting internal combustion en-
gines, and of cartridges or shells to be used in such starters.
On December 8, 1932, he entered into an agreement with
the respondent, Federal Laboratories, Inc., granting it a

non-assignable and exclusive license to make, use and sell
devices and shells embodying the inventions set forth in
his patents, respondent agreeing to pay him the sum of
$5,000 on the first 200 devices made and a license fee or

EE

5

royalty equal to 6% of respondent’s net selling price on
all devices, parts thereof and shells sold (R. 24a-34a).

The petitioner, on June 14, 1944, filed a complaint in
the District Court for the Western District of Penn-
sylvania to recover royalties accrued and owing to him
under the license agreement for each year from 1937
through December 31, 1943 (R. 12a-45a). On April 24,
1945, plaintiff filed a second complaint based on royalties
acerued and unpaid during the period from January 1,
1943, through December 31, 1944 (R. 78a-8la). When
the two actions came on for trial they were consolidated
by order of the trial judge (R. 6a, 9a, 108a).

Before either of these cases was started plaintiff filed
in the District Court of the United States, for the Dis-
trict of New Jersey, a suit against Breeze Corporations,
Inc. (which had bought all of the stock of plaintiff's
licensee, Federal Laboratories, Ine.), for an injunction
to restrain it from paying any of plaintiff’s royalties to
the United States on the ground that the Royalty Adjust-
ment Act was unconstitutional. The United States inter-
vened and contended that there was no justiciable con-
troversy as to the constitutionality of the Royalty Ad-
justment Act. A three-judge court held that plaintiff
had an adequate remedy at law to sue his licensee for a
money judgment for royalties, in which action the con-
stitutionality of the Royalty Adjustment Act would be
properly raised, and it denied plaintiff an injunction.
This court affirmed the judgment of the three- judge
court, and in an opinion by Chief Justice Stone (323
U. S. 316, 324) said:

“In the circumstances disclosed by the record and
for the purposes of the present suit, the constitu-
tionality ot the Act is without legal significance and
can involve no justiciable question unless and until

ey

6

appellant seeks recovery of the royalties, and then
only if appellee relies on the Act as a defense.’’

In its answer filed in the court below the defendant
interposed as a defense the Royalty Adjustment Act |
and, more specifically, Royalty Adjustment Orders W-9
(R. 35a) and N-7 (R. 40a), issued by the War Depart-
ment and Navy Department respectively pursuant to
that Act. These Orders directed the respondent to pay
no more than $8 per starter on starters manufactured |
for the United States and no royalties whatever on car-
tridges manufactured for the United States, ‘‘but not to |
exceed the sum of Fifty Thousand ($50,000) Dollars to |
be paid to Licensor in each calendar year commencing |
January 1, 1943 in respect of starters sold to or for the
War Department and the Navy Department, added to- )
gether’? (R. 36a-37a, 41a-42a). |

The respondent also disputed parts of the amounts |
due on other grounds not involving the Act or Orders
or the validity of the patents. These non-constitutional
defenses, however, went to a portion of the claim only,
and the District Court below found as a fact that (R.
121a-122a)

“If the Royalty Adjustment Act had not been
passed, there would presently be due and owing to
the plaintiff from the defendant, under the contract
between the parties, royalties on starters which ac-
crued during each of the following periods: the period
from January 1, 1937, through October 30, 1942, the
day previous to the day of enactment of the Royalty
Adjustment Act; the period from the date of enact-
ment of said Act through December 31, 1942; as to
Navy business, the period from January 1, 1943,
through February 23, 1943, the day previous to the
date of receipt by plaintiff of the Navy Department

—~"""

7

Royalty Adjustment Notice; as to Army business,
the period from January 1, 1943, through March 2,
1943, the day previous to the date of receipt by plain-
tiff of the War Department Royalty Adjustment
Notice; as to Navy business, the period from the date
of receipt of the aforesaid Navy Department Notice
through December 22, 1943, the day previous to the
date of issuance of Navy Royalty Adjustment Order
N-7; as to Army business, the period from the date of
receipt of the aforesaid War Department Notice
through December 17, 1947, the day previous to the
issuance of War Department Royalty Adjustment
Order W-9; as to Navy business, the period from the
date of issuance of the aforesaid Navy Department
Order N-7 through December 31, 1943; as to Army
business, the period from the date of issuance of the
aforesaid War Department Order W-9 through De-
cember 31, 1943; and the period from January 1,
1944, through December 31, 1944. Assuming the de-
fendant’s contention to be valid, that a commission
of 25% was payable to Breeze Corporations, more
than $8 per starter would nevertheless be due to
plaintiff under the terms of the license agreement
between plaintiff and defendant, except for the in-
terposition of the Royalty Adjustment Act and the
Orders made thereunder. As to this amount in excess
of $8 per starter, which plaintiff claims for each of
the above detailed periods, no defense has been in-
terposed in this case except that which is based upon
the Royalty Adjustment Act and Royalty Adjustment
Orders N-7 and W-9.”’

As a result, the District Court found itself unable, by
any disposition which it might make of the non-constitu-
tional questions, to avoid the necessity for passing upon
the constitutionality of the Royalty Adjustment Act
and the Orders made thereunder. With one exception,
hereafter to be noted, this inevitability of the constitu-

8

tional question occurred in the application of the Royalty
Adjustment Act to royalties accrued (1) before the date
of passage of the Act; (2) to royalties accrued between
that date and the dates of Royalty Adjustment Notices
issued pursuant to the Act; (3) to royalties accrued after
the dates of the notices but before the dates of the Roy-
alty Adjustment Orders, and (4) to royalties accrued
after dates of the Orders.

The exception just referred to involved royalties due
before January 1, 1943, being some of the royalties ac-
crued before the dates of the Notices and all of the
royalties accrued before the date of enactment of the
Act. Petitioner contended that such royalties were not
covered by the terms of the Royalty Adjustment Orders
and, further, that respondent was estopped under prin-
ciples of res judicata from contending otherwise. Among
the royalties due and unpaid at the agreed rate of 6%
prior to January 1, 1943, were certain royalties on car-
tridges manufactured to fill a particular Navy contract.
Respondent claimed that by a supplemental agreement the
petitioner had cut in half his royalties arising from this
contract, but as to the remaining royalties of 3% on this
particular contract respondent asserted no defense except
that of the Royalty Adjustment Act and Orders. The peti-
tioner, on October 31, 1944, moved for summary judgment
for, inter alia, the amount of the 3% royalties as to which
the respondent had raised only the defense under the Act
and Orders (R. 66). On this motion affidavits were filed by
both parties (R. 67a, 69a, 74a) and a hearing was had be-
fore two district judges (neither of them being the judge
who ultimately presided at the trial) (R. 4a). On Decem-
ber 15, 1944, judgment was ordered to be entered in
favor of the petitioner, the court reciting that there was

9

‘‘no genuine issue as to any material fact that the defend-
ant Federal Laboratories, Inc., is indebted to the plain-
tiff on account of royalties under the license agreement
between them at least to the extent of $10,510.46 for the
year 1942 * * * and that Royalty Adjustment Orders
W-9 and N-7 allow said amounts to be paid to the plain-
tiff by said defendant, and that plaintiff is entitled to a
judgment as a matter of law for that portion of his
claim’? (R. 76a). This ‘‘order for judgment’? was
amended on January 23, 1945, in a respect not presently
material, pursuant to stipulation of the parties (R. 77a).
On the same day judgment was entered pursuant to the
order as amended, and on the following day the judgment
was satisfied in full and so marked of record (R. 5a).
No appeal was taken from this judgment.

The trial judge refused to accord the force of res
judicata to the order for judgment which had been en-
tered in the case more than two and one-half years before.
He concluded that the Royalty Adjustment Orders were
broad enough to cover royalties accrued prior to J anuary
1, 1943. Having made this disposition of this non-
constitutional issue, he found himself presented with a
situation where he would be required to pass upon the
constitutionality of the Royalty Adjustment Act and
Orders in respect to every part of the case. He decided
that the Royalty Adjustment Act was constitutional, and
accordingly ordered judgment to be entered for the de-
fendant (R. 123a). This judgment of the District Court
was affirmed on appeal by the Court of Appeals, Novem-
ber 9, 1948.

10

Questions Presented

1. Do the Royalty Adjustment Act and the Orders
made thereunder violate the Fifth Amendment by taking
plaintiff’s property without just compensation and by
depriving plaintiff of property without due process of law?

2. Should the Royalty Adjustment Act be construed
retroactively to apply to royalties due before the enact-
ment of the Act?

3. Is the Royalty Adjustment Act constitutional if
applied to royalties due before its enactment?

4. Is the Royalty Adjustment Act constitutional if
applied to royalties due before the Royalty Adjustment
Notices are given?

5. Is the Royalty Adjustment Act constitutional if
applied to royalties due before the promulgation of
Royalty Adjustment Orders?

6. In a suit brought under the Royalty Adjustment
Act in the Court of Claims, could that court award to an
aggrieved licensor the just compensation guaranteed by
the Fifth Amendment?

7. Do Royalty Adjustment Orders W-9 and N-7 apply
to royalties due before January 1, 1943?

8. Is an order for summary judgment in favor of
a plaintiff, on which judgment has been entered, paid and
satisfied of record and from which no appeal has been
taken, res judicata in later proceedings in the same case
and between the same parties, as to all questions of law
expressly or necessarily involved therein, including any
question as to the propriety of entering the summary
judgment itself?

11

Reasons Relied on for the Allowance of the Writ

The Court of Appeals has decided an important ques-
tion of federal law which has not been, but should be,
settled by this Court. In Coffman v. Breeze Corporations,
323 U. S. 316, and Coffman v. Federal Laboratories, 323
U. 8. 325, the latter an appeal in an earlier aspect of the
present case, the question of the constitutionality of the
Royalty Adjustment Act and the Royalty Adjustment
Orders W-9 and N-7 was argued before the Court but not
passed upon for jurisdictional reasons. In Alma Motor
Co. v. Timken-Detroit Azle Co., 329 U. S. 129, the issue
as to the constitutionality of the Act was once more
presented to and twice argued before the Court. See
order for reargument at 65 S. Ct. 1190. But the cause
was remanded to the court below because of its failure
to pass upon a preliminary non-constitutional issue whose
decision might obviate consideration of the constitutional
question.

This Court, from its previous experience with cases
involving the question of the constitutionality of the
Royalty Adjustment Act, must appreciate the importance
of the questions involved. The constitutional validity of
the Royalty Adjustment Act is at last squarely raised in
a justiciable controversy in which decision of the consti-
tutional question is unavoidable. Litigation under the
Royalty Adjustment Act involves large sums of money
and important considerations of constitutional law arising
under the just compensation and due process clauses
of the Fifth Amendment. These constitutional considera-
tions are set forth in concise form in the brief attached
to. this petition.

12

The Court of Appeals for the Third Cireuit decided
that the Royalty Adjustment Act was constitutionally
applied to royalties accrued but unpaid at the time of
the giving of notice to the patentee. This decision is in
. conflict with a decision on the same matter rendered five
days earlier, on October 4, 1948, by the Court of Appeals
for the Sixth Cireuit in Cold Metal Process Co. v. Mc-
Louth Steel Corp., 79 U. S. P. Q. 222.

In the McLouth case the Court of Appeals for the
Sixth Cireuit reversed a ruling by the district judge dis-
allowing interest on royalties during the period of opera-
tion of a royalty adjustment notice. The royalties had
accrued before the date of enactment of the Royalty Ad-
justment Act and were ultimately found to be due and
owing to the Cold Metal Process Company. The Mc-
Louth Corporation denied liability for interest accruing
on these royalties after August 19, 1943, the date of the
royalty adjustment notice, directing it to pay no greater
amounts to Cold Metal than those to be determined in
a future royalty adjustment order. Chief Judge Hicks,
delivering the opinion of the court, said (79 U. S. P. Q.
222, 231):

‘‘Nor do we see any reason, under the Royalty
Adjustment Act, 35 U. S. C., See. 89 et seq., for sus-
pending interest on the royalties between the dates
indicated. There is nothing in the Act to show that
its effect was retroactive, and there is no apparent
reason for suspending interest on royalties which by
the formula we have indicated were fixed, or became
due, prior to the operation of the Act on August 19,
1943.’’

w&

e.g" tases,
OS PURE TEA, bela a Le oe rs

13

It has thus been expressly held in the Sixth Cireuit, con-
trary to the decision of the Court of Appeals for the
Third Cireuit, that the Royalty Adjustment Act is inap-
plicable to sums which became due prior to the date of
notice,

The Third Cireuit’s decision in this respect is, more-
over, probably in conflict with applicable decisions of
this Court. Section 1 of the Royalty Adjustment Act
states that royalties may be adjusted only ‘‘whenever an
invention, whether patented or unpatented, shall be manu-
factured, used, sold, or otherwise disposed of for the
United States, with license from the owner thereof or
anyone having the right to grant licenses thereunder.’’
Section 7 makes the Act applicable to all royalties charged
or chargeable to the United States for materials already
delivered, ‘‘which royalties have not been paid to the
licensor prior to the effective date of the notice.’’ These
two sections of the Act, when construed together, may
properly be interpreted to limit the Act’s retrospective
effect, if the Act be in any part constitutional, to royal-
ties accruing between the date of enactment of the Act
and the date of a royalty adjustment notice. Any other
interpretation conflicts with the unshaken theory of deci-
sions of this Court beginning with United States v. Heth,
3 Cranch 399, 413, and most recently applied in Claridge
Apartments Co. v. Commissioner of Internal Revenue, 323
U. S. 141, in which the Court said, in a unanimous
opinion by Mr. Justice Rutledge, at page 164: ‘‘Retro-
activity, even where permissible, is not favored, except
upon the clearest mandate.’’ For an example of how
clear such a mandate must be to permit retroactive ap-
plication of a statute, see Shwab v. Doyle, 258 U. S.
529, 534.

14

The retroactive application given to the Royalty Ad-
justment Act by the Court of Appeals for the Third
Cireuit is also probably in conflict with applicable deci-
sions such as Steamship Co. v. Joliffe, 2 Wall. 450, 457-
458; Osborn v. Nicholson, 13 Wall. 654, 662; Koshkonong
v. Burton, 104 U. S. 668; 678-679; Ettor v. City of Tacoma,
228 U. S. 148, 156; Forbes Pioneer Boat Line v. Board
of Commissioners, 258 U. S. 338, 339; Danzer & Co. v.
Gulf € Ship Island R. R. Co., 268 U. S. 633, 637; Coombes
v. Getz, 285 U. S. 484; Railroad Retirement Board v.
Alton R. R. Co., 295 U. S. 330, 349-350, 354. These cases
hold it to be a violation of the due process clause ‘‘to take
away from a private party the right to recover the
amount that is due when the act is passed’’: Graham v.
Goodcell, 282 U. S. 409, 426.

A Court of Appeals decision which unnecessarily
interprets the Royalty Adjustment Act in such a way as
to give it a retroactive effect conflicts also with this
Court’s principle of adopting that construction of a stat-
ute which will avoid constitutional doubts: United States
v. Congress of Industrial Organizations, 335 U. S. 106,
120-121, and cases cited in note 26, and concurring opin-
ion at page 129.

The Court of Appeals for the Third Circuit decided
that the decision of the District Court could properly be
affirmed on the ground that ‘‘Until the patentee sees what
the Court of Claims is going to give him, we do not see
how he is in a position to say that his wings are un-

constitutionally clipped’’. This decision of the Court of
Appeals conflicts with applicable decisions of this Court,
particularly with the earlier decision in this case: Coff-

——=—“¥""

15

man v. Federal Laboratories, 323 U. S. 325. This Court
held that petitioner could not obtain an injunction against
compliance with the Royalty Adjustment Act because an
adequate remedy at law existed. But it noted that, though
the prayer for an injunction had properly been denied,
the answer subsequently filed by the defendant had set
up the royalty adjustment orders as a defense. A unani-
mous Court, in the opinion by Chief Justice Stone at 323
U. S. 325, 327, said:

**Since the allegations were stricken, appellee Fed-
eral has answered setting up as a separate defense
the royalty adjustment orders prohibiting payment
of the royalties to appellant [Coffman]. Upon that
issue appellant will be free to contest the constitutional
validity of the orders.’’ (Emphasis added.)

Thus in this very case the Court has specifically said
that petitioner is entitled, under the circumstances now
present, to a decision on the constitutional validity of the
orders. Similarly, in the companion case, Coffman v.
Breeze Corporations, Inc., 323 U. S. 316, the Court said,
at p. 322, that when a licensee has set up the Royalty
Adjustment Act as a defense, constitutional validity
“would be a justiciable issue in the case, since upon its
adjudication would depend appellant’s (the present peti-
tioner’s) right of recovery.’’ Similar applicable rulings
are to be found in Alma Motor Co. v. Timken-Detroit Azle
Co., 329 U. S. 129, at 138, and Aircraft € Diesel Equipment
Corp. v. Hirsch, 331 U. 8. 752, at 754-755, 775-776, 777 (foot-
note 41).

The Court of Appeals’ decision further conflicts with
a long line of applicable decisions of this Court which
hold that suits against the Government can succeed only
subject to the restrictions and limitations imposed by the
Act of Congress which permits the particular remedy in

—

16

derogation of sovereign immunity. Under such cases as
DeGroot v. United States, 5 Wall. 419, 431-433; Schillinger
vy. United States, 155 U. 8S. 163, 166, 168; Price v. United
States, 174 U.S. 3738, 375-376; Reid v. United States, 211
U.S. 529, 588; United States v. Babcock, 250 U. 8. 328,
331; and United States v. Sherwood, 312 U.S. 584, 586, it
is clear that if the petitioner were to sue in the Court of
Claims under the Royalty Adjustment Act, that court
could grant him not just compensation for the royalties
taken but only ‘‘fair and just compensation * * * taking
into account the conditions of war-time production’? and
would be required to deny to the petitioner the benefit of
his licensee's contractual obligation not to contest validity.
The eases, and in particular Great Falls Mfg. Co. v. Attor-
ney General, 124 U.S. 581, 600, further make clear that the
petitioner, by the very act of suing in the Court of Claims
under the Royalty Adjustment Act, would voluntarily ac-
cept the provisions of the Act and the offer of the Govern-
ment to have the amount of compensation fixed by that
court, and would thus lose his right to contest the Act’s
constitutionality.

Before the passage of the Royalty Adjustment Act the
petitioner had no claim against the United States. Since
the passage of the Act, if it is constitutional, he has no
claim against his licensee on his contract for the royalties
reserved. He has no right left, if the Act is constitutional,
except that given to him by the Act. The right to sue in
the Court of Claims given by the Act is limited. If the
limitation is unconstitutional, still he cannot sue the sov-
ereign for a greater amount than that for which he is per-
mitted to sue by the Act. If the Act is unconstitutional in
limiting the compensation payable to him, the Court of
Claims nevertheless cannot give him any greater compen-
sation for that which is taken from him. His only right to
sue the United States is derived from the Act, and the

—

17

recovery allowed in such a suit can rise no higher than its
source. Since that recovery does not reach the constitu-
tional requirement of just compensation, if the Court of
Claims is free to hold and should hold ‘that his property
was not constitutionally taken from him, the best that it
could do for him would be to remit him to the very action
against his licensee in which he is now petitioning for a
writ of certiorari. And if he had voluntarily sued in the
Court of Claims without a decision as to the Act’s uncon-
stitutionality, he would have accepted the benefit of the
Act cum onere.

IV

Basing its view on an interpretation of Rules of Civil
Procedure 54 and 56, the Court of Appeals decided that
the summary judgment obtained by the petitioner in this
case did not at the time of its entry become final for the
purposes of appeal and did not have the effect of a final
judgment, and therefore was not to be given the force
of res judicata as to its interpretation that the royalty
adjustment orders were not retroactive. This decision by
the Court of Appeals for the Third Circuit is in conflict
with decisions of other Courts of Appeals on the same mat-
ter, and presents an important question as to the inter-
pretation of the Federal Rules which has not been, but
should be, settled by this Court.

In Biggins v. Oltmer Iron Works, 154 F. (2d) 214, the
Court of Appeals for the Seventh Circuit, on Mareh 1,
1946, denied a motion to dismiss a defendant’s appeal from
a partial summary judgment which had been entered as
to two out of five items of a claim for compensation for
services rendered as a sales representative during a period
of sixteen months. In that case, as in the case at bar, the
court was of the opinion that Rules 54 and 56 did not

oe

permit the entry of such a summary judgment. In the case
at bar the Court of Appeals concluded that the judgment
was not fina’, but in the case in the Seventh Circuit the
court decided that a judgment rendered in contravention
of, and not in conformity with, the Rules should be held
final and appealable. 154 F. (2d) 214, 217-218. In the lat-
ter case execution had not been effected under the summary
judgment, while in the case at bar payment of the judg-
ment had been obtained and satisfaction noted of record.

A similar conflict exists between the Third Circuit’s
decision and that of the Court of Appeals for the Tenth
Circuit in Kasishke v. Baker, 144 F. (2d) 384, which was
decided in 1944 and in which certiorari was denied by this
Court at 325 U. S. 856. In that case the court denied a mo-
tion to dismiss an appeal from a partial judgment decree-
ing that the plaintiff should recover a ten per cent interest
in all properties acquired by the defendants during a cer-
tain period, but deferring to a later date the entry of ‘‘an
order for an accounting for the purpose of determining the
amount of money judgment to be entered for plaintiff, if
any, and for the purpose of ascertaining what additional
properties, if any, are covered by such ten per cent in-
terest’’ (144 F. (2d) 384, 385).

The decision of the Court of Appeals in the case at
bar was based on its conclusion that in the circumstances
‘*a judgment could not be entered junder Rule 54(b)”’.
But since the summary judgment actually was entered,
and since no appeal therefrom was taken, even if the
District Court had entered its final judgment on the rest
of the case, the decision is probably in conflict with deci-
sions of this Court in which it has been established that
a judgment is res judicata not only as to ordinary issues
of fact and of law but also as to the procedural and juris-
dictional issues of law necessarily involved therein, re-
gardless of whether the court which entered the judgment

2
‘
i

See A
4

Me ne RA ty) ee eT eee na Os | aa

EE

19

properly interpreted the law: Baldwin v. [owa State
Traveling Men’s Assn., 283 U. S. 522, 524-526; American
Surety Co. v. Baldwin, 287 U. 8S. 156, 166-167; Stoll v.
Gottleb, 305 U. S. 165, 171-177; Chicot County Drainage
District v. Baxter State Bank, 308 U. S. 371, 376-378;
Angel v. Bullington, 330 U. S. 183, 192-193; Sherrer v.
Sherrer, 334 U. S. 348, 349-350.

Whether a summary judgment should have any dif-
ferent effect as res judicata in the case in which it was
entered than would a judgment in an independent suit
between the same parties is an important question of
federal law which has not been squarely ruled on by this
Court but should be settled by it. Since there is no con-
trolling difference of quality or dignity between a sum-
mary judgment which is both payable and paid and the
final judgment in a suit, the Court of Appeals’ decision
is probably in conflict with decisions of this Court which
give a judgment the force of res judicata as to issues of
law involved: Tioga R. R. v. Blossburg and Corning R. R.,
20 Wall. 137, 142-143; American Express Co. v. Mullins,
212 U. S. 311, 314; United States v. Moser, 266 U. S. 236,
240-241; Fishgold v. Sullivan Drydock & Repair Corp., 328
U. S. 275, 282-283.

Wuererore, the petitioner prays that a writ of cer-
tiorari issue to review the judgment of the Court - of
Appeals for the Third Circuit, that the said judgment be
reversed, and that such other and further relief be granted
as May seem proper.

Joun G. BucHanan,.”
James D. Carpenter, JR.,
Joun G. Bucuanan, JR.,
Samvet M. Coomps, Jr.,
Attorneys for Petitioner.

December 23, 1948.

—————

IN THER

Supreme Court of the United States

Ocroper Trem, 1948

No.

LF > ee

Roscoe A, CorrmMan,

a ee

Petitioner,
v. .
<
{2
:
Fevrrat Lasoratonrtes, [Nc., :
Respondent, }
Unrrep Srarrs or AMRRICA,
Intervenor.

BRIEF IN SUPPORT OF PETITION
FOR WRIT OF CERTIORARI

There are set forth in the foregoing petition and in-
corporated at this point by reference statements as to
the opinions of the courts below (p. 2), the grounds
upon which the jurisdiction of this Court is invoked
(p. 2), the statute involved (p. 3), and the material facts.

20

21

ARGUMENT

1. The Court of Appeals, in holding that the
Royalty Adjustment Act does not violate the just
compensation and due process clauses of the Fifth
Amendment, has decided incorrectly an important
question of federal law which should be settled by
this Court.

In its opinion the Court of Appeals for the Third Cir-
cuit took the position that the United States, under the
Royalty Adjustment Act, could constitutionally appro-
priate a licensor’s rights and give him in exchange only
such compensation as the Court of Claims might award
him, ‘‘taking into account the conditions of wartime pro-
duction’’; recovery in the Court of Claims was thus to
be reduced in the light of increased wartime requirements
and might further be reduced to absolutely nothing if
the Government could successfully persuade that court
of the invalidity of the patent, a defense which the peti-
tioner’s licensee was contractually estopped from inter-
posing. It is submitted that in reaching its conclusion
the Court of Appeals failed properly to apply the due
process clause and also the uncompromising requirements
of the just compensation clause of the Fifth Amendment.
This important decision as to the construction and appli-
cation of the Constitution of the United States should be
reviewed and reversed by this Court.

The decision of the Court of Appeals recognizes that
the effect of the Royalty Adjustment Act is to take private
property for public use. What is the property taken?
The Court of Appeals seeks to analogize the Royalty
Adjustment Act to the Act of 1910, 36 Stat. 851, as

; a

amended in 1918, 40 Stat. 705, 35 U. S. C. §68, which
permitted unlicensed manufacture of patented articles for ;
the United States but gave the patentee a right to recover y
reasonable and entire compensation, without diminution

or qualification of any kind, in the Court of Claims. The
Court of Appeals says that the fact that the Royalty
Adjustment Act is applicable to licensed inventions (pat- :
ented or unpatented) does not change the picture. We f
submit that the picture is changed, and that, whereas the Ip
Act of 1910, as amended, was designed to give just com-
pensation, the Royalty Adjustment Act gives something
less than just compensation.
Before the enactment of the Royalty Adjustment Act g
the petitioner was entitled to royalties from the respon-
dent on a fixed scale. The Act purports to take away
petitioner's right to recover part or all of these royalties
from respondent (Section 1) and to have them covered
into the Treasury of the United States (Section 4). In
return the Act allows the petitioner to get back a de-
signedly smaller amount than that to which he is entitled
by his contract (Section 2). Such was not the purpose
of the Act of 1910, as amended, supra. In Richmond
Screw Anchor Co. vy. United States, 275 U. S. 331, 345-346, |
it was made abundantly clear that the latter Act was con-
stitutional only because it gave to a patentee the exact
monetary equivalent of what he was entitled to before
the enactment of the Act, including the valuable right to
assign to a third party his claim for money. The Royalty
Adjustment Act is by the same test unconstitutional,
because it deprives petitioner of the full and perfect
equivalent in money of that which was taken from him.
Under the Royalty Adjustment Act the Government
attempts to place itself not in the position of a compul-
sory licensee under petitioner’s patent but in the shoes

a ————

23

of the petitioner himself as the respondent’s licensor. If
the Government were making itself a licensee, the Act
could not, as it purports to do, cover into its own treasury
royalties under the royalty agreement which were due
and unpaid at the time when a royalty adjustment notice
was issued: for the use of the devices sold before the
royalty adjustment notice was issued no license was
needed, because they had already passed beyond the
monopoly of the patent. Adams v. Burke, 17 Wall. 453,
456; United States v. Univis Lens Co., 316 U. S. 241, 250;
United States v. Masonite Corp., 316 U. S. 265, 277-278.
The Royalty Adjustment Act unequivocally seeks to put
the United States in the position of the licensor at the
royalty-receiving end of the subsisting license agree-
ment, and then, after taking the royalties under that
agreement, seeks to give the licensor something less than
that which it has taken.

When the Act attempts to take money by eminent
domain, solely for the purpose of revenue to the Gov-
ernment, it violates the due process clause of the Fifth
Amendment. The authorities are clear to the effect that
money and rights to money cannot be taken under emi-
nent domain except in a case of extreme peril which did
not here exist. Cooley, Constitutional Limitations, 8th
ed., Vol. 2, pp. 1113, 1118 note; Buckingham v. Smith,
10 Ohio 288, 296-297 (1840); People v. Mayor, dc. of
Brooklyn, 4 N. Y. 419, 424-425 (1851) (cited with approval
in Houck v. Little River Drainage District, 239 U. 8. 254,
265); Burnett v. Mayor, etc. of the City of Sacramento,
12 Cal. 76, 83 (1859); Emery v. San Francisco Gas Co.,
28 Cal. 345, 350 (1865); Hammett v. Philadelphia, 65 Pa.
146, 152-153 (1870) ; Cary Library v. Bliss, 151 Mass. 364,
379 (1890; cf. Mitchell v. Harmony, 13 How. 115, 134
(1851).

—
24

ven if the attempt were made to justify the Act as
an exereise of the taxing power, despite the faet that if
originated not in the House of Representatives but in
the Senate (Congressional Record, Vol 88, pp. 8215, 8546,
SGE2, STOR: ef, Constitution, Art. 1, See. 7), the due proe
oss chinse would nonetheless be violated, sinee the alleged
‘tax’? would be so arbitrary and eapricious as to amount
to confiseation, Niehols vo Coolidge, 274 UL S. 581;
Rlodaett vo Holden, 275 U.S. 142; Untermyer vo Ander.
son, DO US. dd0, Memer yo Donnan, 286 UL S. 812. See
also Chicago, elc., RK. RR. Ca v. Chicago, 166 UL S, 226,
M41, 240; Barclay & Co. vo Rdwards, 267 U.S. 442, 450;
Nehlcsmmace vo Wisconsin, 270 U.S. 230, 280-240; Melver-
mov City Bank Farmers Trust Co, 296 UL S. 85, 92.

A fuller exposition of our arguinent as to the un.
constitutionality of taking money by eminent domain and
as fo the impropriety of cousidering the Royalty Adjust-
mont Aet as a taxing act ie to be found? pp. 33-46 of
our brief as amice curiae tiled at the first argument, at
No, S06 October Term, 1944, of Alma Motor Co. v. Tim-
Ren Detroit Aale Co, 829 UL S. 129 Why the Royalty
Adjustment: Act vielates the due process clause insofar
as it is retroactively applied is discussed in the second
section of this brief.

The Royalty Adjustment Act not only violates the due
process clause of the Fifth Amendment; it also violates
the just compensation clause of that amendment, because
it tenders in return for the money and right to money
which it takes, a right to recover a lesser amount of
money. When the United States takes a contract right
to reyalties by eminent domain, it must pay as just com-
pensation ‘*the sum which * * * probably could have been
obtained for the assignment of the contract’’: Brooks-
Scanlon Corp. v. United States, 265 U. S. 106, 123-124. In

25

the leading case under the just compensation clause,
Monongahela Navigation Co, vy. United States, 148 U. 8S.
312, Mr. Justice Brewer, delivering the opinion of the
Court, said (pp. 325-326) :

“The language used in the Fifth Amendment. in
respect to this matter is happily chosen. The entire
amendment is a series of negations, denials of right
or power in the government, the last, the one in point
here, being, ‘Nor shall private property be taken for
public use without just compensation.’ The noun
‘compensation’, standing by itself, carries the idea
of an equivalent. Thus we speak of damages by way
of compensation, or compensatory damages, as dis-
tinguished from punitive or exemplary damages, the
former being the equivalent for the injury done, and
the latter imposed by way of punishment. So that
if the adjective ‘just’ had been omitted, and the pro-
vision was simply that property should not be taken
without compensation, the natural import of the
language would be that the compensation should be
the equivalent of the property. And this is made
emphatie by the adjective ‘just’. There can, in view
of the combination of those two words, be no doubt
that the compensation must be a full and perfect
equivalent for the property taken.”

What is the ‘full and perfect equivalent’? of the plain-
tiff’s moneys due and contract rights in the case at bar?
It is nothing less than the monetary value of his con-
tract. Because the Royalty Adjustment Act seeks to
give him less than this “full and perfect equivalent,’’ it
is unconstitutional as a denial of just compensation.

The Monongahela Navigation Co. case is just one of
a long line of cases to a like effect. See, e.g., United
States v. Chandler-Dunbar Co., 229 U. S. 53; United
States v. Rogers, 255 U. 9. 163; Seaboard Air Line Ry.

iy
26

Co. v. United States, 261 U. S. 299, 304; Brooks-Scanlon
Corp. v. United States, 265 U. S. 106, 121, 123-124, 125-
126; United States v. New River Collieries Co., 262 U.S.
341; Davis v. Newton Coal Co., 267 U. S. 292; Liggett &
Myers Tobacco Co. v. United States, 274 U. S. 215; Phelps
v. United States, 274 U. S. 341; Richmond Screw Anchor
Co. v. United States, 275 U. S. 331; Waite v. United
States, 282 U. 8. 508; Russian Volunteer Fleet v. United
States, 282 U. 8. 481; Jacobs v. United States, 290 U. S.
13, 16-17; Olson v. United States, 292 U. S. 246; Great
Northern Ry. Co. v. Weeks, 297 U. S. 135; Baltimore €
Ohio R. R. Co. v. United States, 298 U. S. 349, 365;
United States v. Klamath & Moadoc Tribes, 304 U. S.
119; United States v. Miller, 317 U. 8S. 369, 373-374;
United States v. General Motors Corp., 323 U. 8. 373,
377-379.

The cases cited show conclusively that when there is
a taking by the Government, the just compensation to
which the owner is entitled cannot constitutionally be
‘‘adjusted’’, i.e., taken away in whole or in part. It is
respectfully submitted that contract rights taken for
public use must be compensated for by their full and
perfect equivalent in money, and that no power of the
Government can override this clear requirement of the
Fifth Amendment. All the other powers of Congress,
including the war power, are subject to the restrictions
of this Amendment. Monongahela Navigation Co. v.
United States, 148 U. 8S. 312, 336; United States v.
Lynah, 188 U. S. 445, 465; United States v. Cress, 243
U. S. 316, 320. The Renegotiation Cases may be dis-
tinguished from the case at bar, which the Court of
Appeals itself admits involves a taking, because the
Renegotiation Act involved no taking of private property
for public use. Lichter v. United States, 334 U. 8. 742,

are a eS

27

787-788. The opinions in a case, United States v. John
J. Felin & Co., 334 U. 8. 624, decided the same day as
the Renegotiation Cases persuasively show that the Gov-
ernment cannot take private property for public use
without paying for it the full and perfect equivalent
in money, preferably measured by the market price of
what is taken (see pp. 629-630, 644-646, 651-652). When
money or the right to take money is taken, its full and
just equivalent, its ‘‘market price,’’ is an equivalent
amount of money.

In our brief as amici curiae in the Alma Motor case,
supra, at No. 806 October Term, 1944, we have set forth
at greater length (pp. 4-32) our argument as to why
the Court of Appeals, both in that case and in this, has
ignored the requirements of the Fifth Amendment. Its
decision should be reversed.

2. The decision of the Court of Appeals, in hold-
ing that the Royalty Adjustment Act should be retro-
actively applied, is in conflict with a decision of the
Court of Appeals for the Sixth Circuit and is erro-
neous.

The Court of Appeals for the Third Circuit unquali-
fiedly sustained ‘‘the constitutionality of applying the
Act to royalties accrued but unpaid at the time of giving
of notice to the patentee.’’ As has already been ex-
plained in the foregoing petition for certiorari (p. 12),
this conflicts with the view of the Court of Appeals for
the Sixth Circuit in Cold Metal Process Co. v. McLouth
Steel Corp., 79 U. S. P. Q. 222, 231, where it was said
that ‘‘There is nothing in the Act to show that its effect
was retroactive’ so as to affect royalties accrued prior
to the date of a royalty adjustment notice. The con-

2a

Hliet between the cireuita has been sufficiently demonatrated
in the petition for certiorari, It ia submitted that the
view taken in the Sixth Cireuit is correct and that the
decision in the case at bar is erroneous,

The language of Neetion 1 of the Royalty Adjustment
Act ia clearly prospective: The Act permits royalties to
be adjusted only “whenever the invention, whether pat.
ented or unpatented, shall be manufactured, used, sold,
or otherwise disposed of for the United States, with
livonse from the owner thereef or anyone having the
right to grant licenses thereunder.’ Though Seetion 7
purports to make the Act applicable to such royalties
as “have not been paid to the lieenser prior to the effec:
tive date of the notice provided for in Section 1 hereof,”
its language does not necessarily cover anything other
than rovalties aceruing between the date of enactment
of the Aet and the date of a royalty adjustment notice,
It is only by ignoring the prospective language of the
Act that it ean be considered to cover royalties acerued
before the date of its enactment.

“Words in a statute ought not to have a_retrospec-
tive operation, unless they are so clear, strong and im-
perative, that no other meaning ean be annexed to them,
or unless the intention of the legislature cannot be other-
wise satisfied. This rule ought especially to be adhered
to, when such a construction will alter the pre-existing
situation of parties, or will affect or interfere with their
antecedent rights, services and remuneration; which
is so obviously improper, that nothing ought to up-
hold and vindicate the interpretation, but the unequivocal
and inflexible import of the terms, and the manifest in-
tention of the legislature.’’ United States v. Heth, 3
Cranch 399, 4138. This rule of statutory construction, so
forcefully expressed as early as 1806, has been con-

=S>_"

20

sistently adhered to ever since in the decisions of this
Court: outstanding instances may be found in Reynolds
v. McArthur, 2 Vet, 417, 434; Murray v. Gibson, 15 How.
421, 423; Southwestern Coal Co. v. McBride, 185 U.S.
499, 503-504; Shwab v, Doyle, 298 U.S. 520, 534; and
Claridge Apartments Co. v. Commissioner of Internal
Revenue, 823 U.S. 141, 164,

The opinion of the Court of Appeals seeks to justify
the retroactive application of the Royalty Adjustment
Act by reference to Lichter v. United States, 334 U. 8.
742. The language of the Renegotiation Acts, however,
is entirely different from the language of the Royalty
Adjustment Act. In the Royalty Adjustment Aet the
language, as we have seen (Section 7), makes the Act
applicable to royalties which “have not been paid to the
licensor prior to the effective date of the notice provided
for in Section 1,°° and Section 1 uses language clearly
prospective. The renegotiation provisions are clearly
retrospective, They are set forth in the appendix to the
opinion in the Lichter ease. Section 402(c) of the Act
of April 28, 1942 (334 U. S. 794), is made ‘applicable
to all contracts and subcontracts hereafter made and to
all contracts and subcontracts heretofore made,”’ that is.
made before the enactment of the Act. Section 801 of
the Revenue Act of 1942, amending this provision, con-
tains exactly the same language (334 U. S. 797-798).
Section 701(b) of the Revenue Act of 1943. further*
amending the renegotiation provisions, is made ‘‘appli-
cable to all contracts and subcontracts, to the extent of
amounts received or accrued thereunder in any fiscal year
ending after June 30, 1943, whether such contracts or
subcontracts were made on, prior to, or after the date
of the enactment of the Revenue Act of 1943" (26 TU. S.
C. A., Internal Revenue Acts Beginning 1940. p. 499).

30

If the Royalty Adjustment Act had been applied to
royalties which had accrued before the date of its enact-
ment and to royalties accrued before the dates of royalty
adjustment notices and royalty adjustment orders, we
submit that it would be unconstitutional under a long line
of cases which hold that a statute violates the due process
clause if it divests vested property rights, acting directly
to that end and not as an incident of some broader general
policy. Several of these cases are cited in the foregoing
petition for certiorari at p. 14. We may add that
though taxation, which is imposed in return for protec-
tion afforded by the sovereign, may frequently be retro-
active, even in this field due process has been held to be
violated by taxes retroactively imposed on transactions
as to which taxpayers could not foresee that by engag-
ing in them they would become liable for tax. Nichols
v. Coolidge, 274 U.S.531; Blodgett v. Holden, 275 U. S.
142; Untermyer v. Anderson, 276 U. S. 440; Coolidge v.
Long, 282 U. S. 582. See also Levy v. Wardell, 258 U. 8.
542, 544-545; Helvering v. Helmholz, 296 U. S. 93, 97-98;
White v. Poor, 296 U. S. 98, 102.

If it were possible under sound principles of statutory
construction to give a retroactive interpretation to the
Royalty Adjustment Act, and if it were not clear that such
an application of the Act would violate the due process
clause of the Fifth Amendment, the Court should adopt
that reasonable construction of the Act which would avoid
constitutional doubts. ‘‘The obligation rests also upon
this Court in constiuing congressional enactments to take
care to interpret them so as to avoid a danger of unconsti-
tutionality’’: United States v. Congress of Industrial Or-
ganizations, 335 U. S. 106, 120-121; and see cases cited in
Note 20, and concurring opinion at p. 129.

—e—_—_™

31

Fuller exposition of the propositions of law which have
been set forth in this section of this brief is to be found
at pp. 8-38 of the supplemental brief of amici curiae filed
at No. 11 October Term, 1946, on the reargument of Alma
Motor Co. v. Timken-Detroit Aale Co., 329 U. S. 129. On
the basis of the arguments made there and here it is sub-
mitted that the decision of the Court of Appeals in this
case should be reversed.

3. The decision of the Court of Appeals that the
petitioner should not be permitted to question the
constitutionality of the Royalty Adjustment Act until
he has sued the United States in the Court of Claims
conflicts with applicable decisions of this Court and

should be reve~sed.
The Court of Appeals said in its opinion

‘c# * * we have no way of knowing ahead of time
what disposition the Court of Claims will make in
Coffman’s case or any other. We can conceive a case
where conditions of wartime production might, in
fairness, require adherence to the original license
terms. Possibly a case may exist where conditions
of wartime production might call for more than the
price stipulated in the license agreement. Until the
patentee sees what the Court of Claims is going to
give him, we do not see how he is in a position to
say that his wings are unconstitutionally clipped.’’

On this basis it was said that the decision of the District
Court might properly be affirmed. It is submitted that a
consideration of the Royalty Adjustment Act itself and
of controlling decisions in this Court demonstrate this
view to be erroneous and reversible.

w2

The purpose of the Royalty Adjustment Aet is to re.
dee the royalties fo be paid under petitioner's contract
and fo require that the amount by whieh they are reduced
be paid to the United States, Tn a suit in the Court of
Claims, that court is required by the Aet, in’ fixing the
amount oof rovaltios, fo fake into account the conditions
of wartime production, and also to consider, if auch oa
defense be interposed, the invalidity ef the lieensor's
patent (Neetion 2). ‘Phese limits imposed by the Aet are
clearly designed to prevent collection of the full contract
Povallies, Congress did not intend the Aet to be a nullity,
Tf the Conrt of Claims could ignore the special limitations
on reeavery whieh Congress attempted to impose, it
should give the petitioner, as we have shown, simply the
amount oof revalties whieh the contract ealled for: the
amount of rovalty adjustment would be paid to the United
States by the lieensee, aud the same amount of money
would be recovered by the licensor in the Court of Claims,
Sueh wunecessary eivenity ceuld not have been intended
by any reasonable legishiture, The obvious purpose and
effect of the Net, if constitutional, is to give a licensor far
less than that to which his license agreement entitles hin,
lr is for this reason that we insist that the Royalty Ad-
yustment Act is uneonstitutional,

if the Act should be stricken down as unconstitutional,
the petitioner would have no standing to sue the United
States in the Court ef Claims. His sole means of recover-
img his contract royalties would necessarily be by a. suit
against his licensor; the United States would not be in
the pieture at all. Recognizing this situation, this Court
in this very ease has already ruled that petitioner may
contest the constitutional validity of the royalty adjust-
ment orders: Coffman v. Federal Laboratories, 323 U. S.

™ > >)"

S23, S2y. When a licensor sues his licensee, and the

33

latter interposes the Royalty Adjustment Act as a de
fense, the licensor may demur to the validity of that
defense. If the Act be constitutional and applicable, sueh
demurrer could not be sustained; but if the Aet be un
constitutional, the licensor is naturally entitled to recover
as thongh the Aet had never been enacted. When the
provisions of the Royalty Adjustment Aet are set up as
a defense, “the constitutional validity of these provisions
of the Act would be a justicinble isane in the case, since
upon its adjudication would depend appellant's (the
licensor’s) right of recovery’: Coffman vy. Breeze Cor-
porations, 323 U.S. 316, 322. See alao Alma Motor Co.
v. Timken-Detroit: Arle Co., 329 U.S. 129, 138, and Air-
eraft & Diesel Equipment Corp. v. Hirsch, 351 U. 8. 752,
194-755, 775-776, 777 (footnote 41),

The decision of the Court of Appeals is based on an
assumption that if the petitioner sued in the Court of
Claims, the latter court would be free to ignore the limi-
tations on recovery specified in Section 2 of the Royalty
Adjustment Act. But it clearly appears from a long line
of decisions in this Court that the Court of Claims could
allow recovery to the petitioner only subject to the re-
strictions and limitations imposed by the Act of Congress
permitting a remedy against the sovereign. ‘The United
States cannot be sued in their courts without their con-
sent, and in granting such consent Congress has an abso-
lute discretion to specify the cases and contingencies in
which the liability of the Government is submitted to the
courts for judicial determination. Beyond the letter of
such consent, the courts may not go, no matter how bene-
ficial they may deem or in fact might be their possession
of a larger jurisdiction over the liabilities of the Govern-
ment.’’ Schillinger v. United States, 155 U. S. 163, 166.
When Congress in a statute creates a right against the

34

United States and provides a special remedy, that remedy
is exclusive and can be granted only within the specific
limits prescribed by the statute. DeGroot v. United States,
5 Wall. 419, 431-433; Nichols v. United States, 7 Wall. 122,
126; Elgee Cotton Cases, 22 Wall. 180, 185-186; McElrath
v. United States, 102 U. S. 426, 440; United States v. Lee,
106 U. S. 196, 205; Arnson v. Murphy, 109 U. S. 238, 243;
Great Falls Mfg. Co. v. Attorney General, 124 U. S. 581,
598-600; Price v. United States, 174 U. S. 373, 375-376;
Reid v. United States, 211 U. S. 529, 538; Juragua Iron
Co. v. United States, 212 U. S. 297, 302-303, 309; United
States v. Babcock, 250 U. S. 328, 331; Banco Mewicano de
Commercio e Industria v. Deutsche Bank, 263 U. S. 591,
602-603; Davis v. Donovan, 265 U. S. 257, 263; Nassau
Smelting & Refining Works v. United States, 266 U. S.
101, 107-108; Luckenbach S. S. Co. v. United States, 272
U. S. 533, 536; Munro v. United States, 303 U. S. 36, 41;
United States v. Sherwood, 312 U. S. 584, 586.

As we have further shown in the petition for certio-
rari, if petitioner were to pursue the statutory remedy
against the United States which is tendered to him by the
Royalty Adjustment Act, he would bar himself from con-
testing the constitutionality of the Act either in the Court
of Claims or anywhere else, since he could then be charged
with having chosen ‘‘to accept the offer of the Govern-
ment to have the amount of compensation fixed by the
Court of Claims, according to its peculiar modes of pro-
cedure’’ and subject to the limitations placed on the Court
of Claims by the Act: Great Falls Mfg. Co. v. Attorney
General, 124 U. S. 581, 600; South Carolina v. Gaillard,
101 U. S. 433, 436; Electric Co. v. Dow, 166 U. S. 489, 492;
Wall v. Parrot Silver & Copper Co., 244 U. S. 407, 411-
412; Hurley v. Comm’n of Fisheries, 257 U. S. 223, 225.

—————

Since this Court, on the first appeal in this case, un-
equivocally held that the petitioner had chosen the proper
forum in which to contest the constitutionality of the
Royalty Adjustment Act, and since this ruling is in accord
with a long line of undisputed precedents, the Third Cir-
cuit’s decision to the contrary is erroneous. It should be
reversed.

4. The decision of the Court of Appeals that the
summary judgment obtained by petitioner was not
final and cannot be given the force of res judicata
conflicts with decisions in other circuits, is probably
in conflict with decisions of this Court and presents
an important question which should be settled by
this Court.

Except in the case at bar, neither this Court nor any
other appears ever to have been presented with the
question whether a partial summary judgment, which has
been paid and satisfied of record, can have the effect of
collateral estoppel as to a question of law involved in the
final judgment in the same case. The summary judgment*

*ORDER FOR JUDGMENT

And now, to wit, December 15, 1944, the plaintiff’s motion for sum-
mary judgment for a portion of his claim having regularly come on for
argument, after hearing all parties and due consideration, it appearing
from the pleadings, admissions and affidavits on file that there is no
genuine issue as to any material fact that the defendant Federal Labo-
ratories, Inc., is indebted to the plaintiff on account of royalties under the
license agreement between them at least to the extent of $10,510.46 for
the year 1942 and at least $28,236.10 for the year 1943, and that Royalty
Adjustment Orders W-9 and N-7 allow said amounts to be paid to the
plaintiff by said defendant, and that plaintiff is entitled to a judgment as
a matter of law for that portion of his claim, it is hereby ORDERED,
ADJUDGED AND DECREED that judgment be and it hereby is
entered in favor of the plaintiff and against the defendant Federal
Laboratories, Inc. for $38,746.56, with interest on the sum of $10,510.46
from December 31, 1942, and on the sum of $28,236.10 from December
31, 1943, without prejudice to the plaintiff’s right to proceed for the
balance of his claim.

By the Court

G
(Emphasis added.)

(Ap. Ap. 76a)

36

in the case at bar gave plaintiff judgment for certain roy-
alties earned in 1941 and 1942, the effect of which was to
determine that the Act and royalty orders were not retro-
active. The Third Circuit held that this summary judg-
ment was not final, and therefore denied it the force of
res judicata. This decision as to its finality is in conflict
with decisions in other Circuits. It also conflicts, we sub-
mit, with applicable decisions of this Court. When prop-
erly given effect as a final judgment, the summary judg-
ment’s interpretation of the royalty adjustment orders
requires under the controlling precedents in this Court a
reversal of the decision of the Court of Appeals for the
Third Circuit.

The Court of Appeals considered that Rules of Civil
Procedure 54 and 56 required a holding that the summary
judgment was not final. This view has been shown, at
p. 17, of the foregoing petition for certiorari, to run
counter to the opinions of other Courts of Appeals, par-
ticularly that in Biggins v. Oltmer Iron Works, 154 F.
(2d) 214, 217-218 (C. A. 7, 1946).

The District Court, when it entered the summary
judgment, necessarily decided that under the law, includ-
ing the Rules of Civil Procedure, it had jurisdiction to
enter a partial summary judgment which was final and
appealable. If the District Court’s decision as to its
jurisdiction was wrong, the respondent should have ap-
pealed from it. The respondent did not appeal, but,
rather, by paying the judgment, acquiesced in the District
Court’s disposition of this jurisdictional question. The
judgment became res judicata not only as to issues in-
volved on the merits but also as to the issue of law
involved in its jurisdictional basis. The Court of Appeals,
in passing on the case, should not therefore have inquired
into what the District Court ought to have done but only

—7—~¥""

into what the District Court did do, since the finality of
the summary judgment below was already established.
The Court of Appeals’ failure to accord to the sum-
mary judgment the force of res judicata on the issue of
law involved in its jurisdictional basis conflicts with care-
fully reasoned decisions of this Court. In Chicot County
Drainage District v. Baxter State Bank, 308 U. 8S. 371,
the petitioner had pleaded a prior decree as res judicata,
but the respondents contended that such effect could not
be given to the decree because it had been entered under
a jurisdictional statute which was later declared to be
invalid. The respondents had not raised the jurisdic-
tional point as to the validity of the statute in the earlier
proceeding. The respondents’ contention was disposed
of in the opinion of the Court by Mr. Chief Justice
Hughes, at pp. 377-378, in the following language:

37

“‘There can be no doubt that if the question of the
constitutionality of the statute had actually been
raised and decided by the District Court in the pro-
ceeding to effect a plan of debt readjustment in
accordance with the statute, that determination would
have been final save as it was open to direct review
upon appeal. * * *

“‘The remaining question is simply whether re-
spondents, having failed to raise the question in the
proceeding to which ther were parties and in which
they could have raisea it and had it finally defer-
mined, were privileged to remain quiet and raise it
in a subsequent suit. Such a view is contrary to the
well-settled principle that res judicata may be pleaded
as a bar, not only as respects matters actually
presented to sustain or defeat the right asserted in
the earlier proceeding, ‘but also as respects any
other available matter which might have been pre-
sented to that end’.’’

38

Similar views as to the impropriety of subsequent re-
opening of jurisdictional issues are to be found in Baldwin
v. Iowa State Traveling Men’s Assn., 283 U. S. 522, 524-
526; American Surety Co. v. Baldwin, 287 U. S. 156, 166-
167; Stoll v. Gottlieb, 305 U. S. 165, 171-177; Angel v.
Bullington, 330 U. S. 183, 192-193; and Sherrer v. Sherrer,
334 U. S. 343, 349-350.

In the case at bar the District Court entered a par-
tial summary judgment, which both the court and the
parties considered as final under the Rules of Civil Pro-
cedure. The Court of Appeals now takes a different view
as to the requirements of the Rules. But even if the
Rules of Civil Procedure should now be declared totally
void, the summary judgment which was entered there-
under would still stand as a final and binding adjudication
of the issues involved therein. It was made by the court
in the form of a final judgment, no appeal was taken, and
as a matter of fact it was paid and satisfied of record.
It is too late now for any party to raise the jurisdictional
issue as to the propriety of its entry, an issue which has
irrevocably passed in rem judicatum.

The finality of the summary judgment being thus
established, there is no reason why issues on the merits
involved in that judgment should not be finally settled
thereby. A partial summary judgment of a District
Cotrt, when it is final, unappealed from and satisfied,
disposes of issues between the parties no less completely
or unequivocally than would a disposition of the issues
under a final judgment in this Court.

The doctrine of res judicata would seem, if anything,
to be a fortiori applicable to a summary judgment such
as that in the case at bar. The parties are unquestionably
the same. An examination of the complaint and answer
(R. 12a, 46a, 58a), of the papers filed in particular con-

__——

39

nection with the summary judgment itself, including affi-
davits of the parties (R. 66a-77a), and of the respondent’s
clear admissions on the record (R. 86a, 107a, 109a) shows
that the question raised in the summary judgment pro-
ceeding was whether any valid defense had been inter-
posed to the petitioner’s claim for royalties arising out
of certain Navy contracts: as to half of these royalties,
issues of fact were involved, but as to the other half, the
only defense interposed was the language of the royalty
adjustment orders. The interpretation of these orders
being simply a question of law, the court entered judg-
ment for the petitioner after resolving the question of
law in petitioner’s favor. Petitioner contends that the
decision of the legal question, as to whether the orders
are applicable by their terms to royalties accrued before
January 1, 1943, should be given the force of res judicata
in the disposition of the remainder of the case. The peti-
tioner obtained his summary judgment and payment
thereof on the basis of a holding that the royalty adjust-
ment orders were inapplicable to royalties accrued before
January 1, 1943. The respondent cannot reopen that
legal issue in subsequent proceedings involving the other
royalties accrued before that date.

Though the situation might be different where in-
tervening clarification and growth of legal principles
make an earlier determination obsolete and potentially
discriminatory (cf. Commissioner of Internal Revenue v.
Sunnen, 333 U. S. 591, 599-600), there can be no doubt,
under the applicable rulings of this Court, that a deter-
mination of an issue of law passed on in arriving at the
first judgment must be given the force of res judicata
in the subsequent proceedings: Tioga R. R. v. Blossburg
and Corning R. R., 20 Wall. 137, 142-143; American Ex-
press Co. v. Mullins, 212 U. S. 311, 314; United States v.

40

Moser, 266 U. S. 236, 240-242; Fishgold v. Sullivan Dry-
dock & Repair Corp., 328 U. S. 275, 282-283.

The Court of Appeals has failed to give the summary
judgment in the case at bar the effect to which it is
entitled, and its judgment in this particular should be
reversed.

Conclusion

Because the Court of Appeals has rendered a decision
in conflict with the decisions of other Courts of Appeals,
has esssmeseeér decided important questions of federal
law which have not been, but should be, settled by this
Court, and has decided federal questions in a way prob-
ably in conflict with applicable decisions of this Court,
the writ of certiorari prayed for in this case should be
granted. Because the decision is erroneous, it should be
reversed.

Respectfully submitted,

Joun G. BucHANAN,

James D. CarPENTER, JR.,

Joun G. BucHanan, JR.,

SamuE. M. Coops, JR.,
Attorneys for Petitioner.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1964%3A1. Public record. Not legal advice.