Memorandum — Kenney v. Wabash Railroad

INDEX

Reasons Writ Should Not Be Granted... l

Statement of the WO Scccstren cei ae 2

PIII resins cnacryerpienicyestni as cea cece. 5

1) No Special and Important Reasons for Grant-

ing Certiorari are Presented by this Applica-

sa ane en eR I aired 5

a) The Issues Involved are Factual and Non-

POTTS ienceis Ssinscsiciren he are 5

b) Errors Alleged are Unfounded 6

c) Reasons for Granting Writ are not Appli-

cable to This Case 8

2) The Decisions of the Lower Courts are Un-

questionably Correct 000 9

a) Applicable Statutes 9

b) 1946 Act Not Retroactive, and if so, Un-

NE Wisisiimilinanutiu 13

¢) Congressional Intent 16

“le cts ee 17

iii

TABLE OF AUTHORITIES

Cases

Pages

Bernhardt v. Atlantic Finance Corporation, (1942) 4

N.E. 2d 713, 311 Mass. NE iene —

Carder Realty Corporation v. State, 23 N.Y.S. 2d 395,

260 App. Div. 459, affd., 35 N.E. 2d 194, 285 N.Y.

DO ceohiner eerste we ct 14

Duff v. Black Diamond Collieries (1930) 33 S.W. 2d

es Se OO MI cree Oe en re 14

Duke Power Co. v. South Carolina Tax Comm. (1936)

oe cc ee re 15

Ettor v. City of Tacoma, (1913) 228 U.S. 148, 156, 57

WO FO sions Seo ee et 15

Forbes Pioneer Boat Line v. Bourd of Commissioners

of Everglades Draining District, (1922) 258 U.S.

cscs el tc ici ins ae

Hassett v. Welch, (1938) 303 U.S. 303, 82 L. ed. 585,

ROE ace ne er ee 14

Lynch v. United States (1934) 292 U.S. 571, 580, 78

ye UM on OKC LI See rey eee 15

Mulligan v. Hilton ( 1940) 24 N.E. 2d. 676, 679, 133

A.L.R. 376 ........ Repos lndnaiebsSaneehecesiaiepimeted nase 14

Seese v. Bethleham Steel Co. (1947) 74 F, Supp. 412,

OP aeelinicrnye sais icc Se 15

United States v. Heth (1806) 3 Cranch, 399, 413, 2

Pe ee een ur re eee 14

U. S. v. Hughes, D.C., N.Y. (1875) 8 Ben. 29, 26 Fed.

RN Re nec eer ners 15

ee Oe eee ee, . ee i

iv

Table of Authorities—(Continued )

Statutes

Pages

Constitution of the United States, Article 1, Section 9... 15

Constitution of the United States, Amendment V ........ 14

Federal Reemployment Act of June 23, 1943, c. 142,

& BS ah Oe 3, 4, 5, 9, 10, 11, 16

Federal Reemployment Act of August 8, 1946, c. 867,

60 Stat. 905 (Public Law No. 660, 79th Congress—

50 U.S.C. Supp. V., App. Sections

1471-1475)........ 3, 4, 5, 6, 7, 11, 12, 13, 14, 15, 16, 17

NALA alee ine BN 8

U. S. Supreme Court Rules—Rule 39 (5) ....0000.00........... 5

Texts

11 American Jurisprudence 1193, Section 365 .............. 14

50 American Jurisprudence 492, Section 475 ................ 14

16 Corpus Juris Secundum, 862, Section 417 ................ 14

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1952

No. 432

ROBERT H. KENNEY

Petitioner

versus

WABASH RAILROAD COMPANY

Respondent

MEMORANDUM IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

MAY IT PLEASE THE COURT:

I. REASONS WRIT SHOULD NOT BE GRANTED

It is respectfully suggested that the petition for a

writ of certiorari filed herein should be denied in this case

for the following reasons:

1) No special and important reasons, or issues of

general significance, are presented by this applica-

tion, as required by Rule 38 (5) of the United

States Supreme Court.

»

—

2) The decisions of the District Court and of the

Circuit Court of Appeals for the Fifth Circuit turn

entirely on questions of the particular facts in this

cease, which are highly unusual and individual.

3) The “Specifications of Errors” asserted by peti-

tioner (Petition p. 5-6) patently do not constitute

error, while the “Reasons for Granting the Writ"

(Petition p. 6-7) bear no relationship to the issues

presented by the record of this case.

4) The unanimous opinions of both Courts below are

obviously correct.

I. STATEMENT OF THE CASE

The statement of this case as given in the petition for

the writ is largely without foundation because it joes

outside of the Record to present matter as facts for which

there is no support in the Record. All of the facts in this

case were stipulated,' and the petitioner is not entitled to

xo outside of the Record and to bring extraneous unsup-

ported matter before this Court. It is therefore necessary

to restate the facts.

The facts of the case as stipulated below,’ and as

found both by the Trial Court and by the Court of Appeals

’ for the Fifth Circuit, are as follows:

Mr. Kenney was employed by the Wabash Railroad

Company from November 1, 1940, to November 30, 1943,

* Transcupt, pp. 18 and following.

* thd

3

when he terminated his employment with the Railroad

Company “solely for the purpose of accepting civilan em-

ployment in the United States War Department, Army

Transportation Corp.” He did not become an officer or

member of the crew of any vessel until January 1, 1944,

when he commenced Serving as a steward yoeman on the

USA HLS. ALGONQUIN: and he thereafter served as a

civilian officer and crew member on various vessels owned

by, chartered to, or operated by or for the account or use

of the War Department.! He Was never an enrollee in the

United States Maritime Service, nor was he ever employed

either by the War Shipping Administration or by the

United States Maritime Service.’

Mr. Kenney left the Federal Service on or about

February 12, 1945, and by letter of March 17, 1945, made

application to Wabash Railroad Company for reinstatement

to his prior position. The Federal Reemployment Act. in

effect at that time—the Act of June 23, 1943'—unquestion-

ably did not give Mr. Kenney any reemployment rights with

Wabash Railroad Company, and the Railroad refused to

reinstate or reemploy Mr. Kenney by letter dated March

28, 1945.

The Reemployment Act was amended on August 8,

‘Supalanon Now 16, Vranscrept ptt

* Stipulanon No. 1, Transenpt pots

*Supulanon Ne to, Transeapt pte

© Supulatwon Noo 17, Tiaasxnpt pot

Fe. U42, 87 Stas. 16S. Sow discursion pees PP OY. 10, aod Opinions below. Than

wut pp It le

*Supulaton No 4, Transernpt pot

SS Bee HEE ta POR ARO ET

4

1946,° under the terms of which, if applicable to the facts

of this case, Mr. Kenney may conceivably have been entitled

to reemployment. However, even then, he did not again

apply for reemployment until March 26, 1948, some nineteen

months after he conceivably became eligible for reemploy-

ment, and almost three years after his first application

was denied.” However, on the date of his second applica-

tion, Mr. Kenney had not received and did not possess a

Certificate of Substantially Continuous Service in the

United States Merchant Marine,"' required to be received

by an applicant for reemployment under both the 1943 and

the 1946 Acts ;’* nor had he received such Certificate on the

dates of his subsequent applications of April 13 and April

27 of 1948. All of the applications for reemployment were

refused by Wabash Railroad Company."

It was not until June 10, 1948, that Mr. Kenney

received and possessed a Certificate of Substantially Con-

tinuous Service,“ and under date of June 17, 1948, he

again made application for reemployment for the first time

advising Wabash Railroad Company that he possessed a

Certificate of Substantially Continuous Service in the

United States Merchant Marine. Again his application for

reinstatement was refused.

On the basis of the above facts, the District Court

*¢. 867, 60 Stat. 905.

1° Stipulation No. 5, Transcript p. 14.

"' Stipulation No. 2, Transcript p. 14.

1? Acts Supra Notes 7 and 9, Section 2 (a) (1).

1 Stipulation Nos. 4, 7, 8, Transcript pp. 14. 15.

14 [bid Note 11.

5

held that Mr. Kenney was not entitled to reinstatement

at any time prior to the Act of August 8, 1946; that the

1946 Act is not retroactive to the extent of affecting the

reemployment rights of Mr. Kenney and the correlative

reemployment obligations of the Railroad Company, which

became fixed pursuant to the 1943 Act, and further held

that Mr. Kenney was not entitled to reemployment even

under the 1946 Act because of his neglect and failure to

secure a Certificate of Substantially Continuous Service

and apply for reinstatement within 90 days after the adop-

tion of that Act on August 8, 1946—his application of

June 17, 1948, coming too late.'* The United States Circuit

Court of Appeals for the Fifth Circuit unanimously af-

firmed the holding of the District Court in an opinion

stating :'"

“an unexplained delay of over twenty two months in

obtaining the Certificate is clearly unreasonable”.

Ill. ARGUMENT

1) No Special and Important Reasons for Granting

Certiorari are Presented by this Application

a) The Issues Involved are F actual

and Nonrecurring

Rule 39 (5) of this Court makes it clear that certiorari

will be granted only where special and important reasons

exist, usually involving issues of general significance. It

™ Conclusions of Law, Transcript pp. 21, 22.

Transcript. p. 20

6

is plain that no such circumstances are presented by this

application. The above recitation of the facts in this case,

and the decisions of both of the lower Courts, show that

this case turned entirely upon a most unusual fact setting

not likely to be repeated. In the first place, he statute

upon which the petitioner bases his case was amended a

year and a half after his first application for reemployment,

and his claim is based on the retroactive applicability of

that amendment to reemployment rights and obligations

which were non-existant under the original statute, at the

time of his original application for reemployment. Further-

more, the statute itself requires that an application for

reemployment be made within 90 days after the applicant

leaves the maritime service. This is a condition impossible

of fulfillment by petitioner because the statute was passed

a year and a quarter after the 90 day period had expired.

Again, the statute makes it a condition of reemployment

that the applicant receive a Certificate of Substantially

Continuous Service. Mr. Kenney did not receive such a

Certificate until June 10, 1948, some three and one half

years after he left the maritime service, and twenty two

months after the 1946 amendment granting him reemploy-

ment rights was enacted. Certainly such an unusual set of

circumstances will rarely be repeated and do not constitute

the “special and important reasons” for the issuance of a

writ of certiorari by this Court.

b) Errors Alleged are Unfounded

In this connection, it must be pointed out that the

alleged “Specification of Errors to be Urged” as reproduced

7

on Pages 5 and 6 of petitioner's brief, are patently not

error. In the Ist and 2nd alleged errors, the holding of the

lower Court is not in conflict with any law of Congress, but

is based upon the facts expressly stipulated in the Record

in this case."

As to specification No. 3. the Reemployment Acts

themselves require an applicant for reemployment to “re-

ceive such certificate” as a condition of his eligibility for

reemployment, and any regulation of the United States

Maritime Commission to the contrary (and no specific

regulation is referred to), would be in violation of the

Reemployment Acts of Congress.

As to specification No. 4, both of the Courts below

recognized that Mr. Kenney may have been entitled to a

Certificate of Substantially Continuous Service under the

1946 Act, but held that his unreasonable delay of over

twenty-two months in receiving it defeated his right to

reemployment in view of the 90 day provision of the statute.

As to the 5th and 6th specifications of error, in view

of the fact that the Acts allow only 90 days within which

to apply for reemployment, it: would certainly seem that

the lower Courts’ holding that a delay of almost two years

from the date of the amended statute, and almost three

years from his eligibility date for reemployment, was un-

‘TAs to Spovitication of Eror Noo t, See Face Stupulanons Nos, 16 Transenpr

PP. TOIT. As ty Specificanon of Frror No 2, see Stipulation of Fact

Nos, 10, 18, 16, and 17, Transeopt pp. tot?

8

reasonable and barred Mr. Kenney’s right to reemployment.

As to the 7th specification of error, again the Maritime

Commission regulations cannot repeal the requirement of

the reemployment statute that an applicant for reemploy-

ment must “receive such certificate” of substantially con-

tinuous service as a condition of his eligibility.

c) “Reasons for Granting Writ” are Not

Applicable to this Case

Finally, the “Reasons for Granting the Writ” set out

on Pages 6 and 7 of petitioner’s brief, bear no relation

whatsoever to the case at bar, as a mere reading of such

alleged “Reasons” will show. The decision of the Court

below has nothing to do with the registry or enrollment of

vessels as alleged in the first “Reason”. Neither does the

decision have any bearing on the rights and privileges of

“seamen”, as alleged in the second “Reason”. It involves

only reemployment rights of persons who left their civilian

employ to serve in the Merchant Marine—a right not ac-

corded to “seamen” as such. The same may be said for the

3rd and 4th alleged “Reasons”, with the additional comment

that no “rules of common law” whatsoever are applied in

this case, Mr. Kenney’s rights being entirely statutory,

and based on the reemployment acts of Congress.

The 5th alleged “Reason”—that the Circuit Court’s

decision “would create chaos of such magnitude as to nul-

lify the Merchant Marine Acts and supporting statutes”—

besides being so vague and indefinite as to be meaningless,

9

just is not accurate; because as repeatedly pointed out, the

only acts involved in this entire controversy are the Reem-

ployment Acts, which are special wartime statutes, having

nothing to do with any of the general features of the Mer-

chant Marine Acts or the Maritime law.

2) The Decisions of the Lower Courts are

Unquestionably Correct

It is impossible to see how the lower Courts could have

arrived at any conclusion other than that at which they

did arrive. Petitioner cannot possibly be entitled to re-

employment under the terms of either of the Reemploy-

ment Statutes for the following reasons:

(a). Applicable Statutes

The only statute in existence affecting this suit during

all the time of Mr. Kenney’s actual employment by the War

Department is the Act of June 23, 1943, c. 142, 57 Stat. 162,

reading as follows:

“Sec. 1. When used in this Act the term “service in

the merchant marine” means service as an officer

or member of the crew on or in connection with a ves-

sel documented under the laws of the United States

or a vessel owned by, chartered to, or operated by or

for the account or use of the Administrator, as an

enrollee in the United States Maritime Service on ac-

tive duty, and, to such extent as the administrator

shall prescribe, any period awaiting assignment to

such service and any period of education or training

for such service in any school or institution under the

10

jurisdiction of the Administrator. Any person enter-

ing service in the merchant marine after May 1, 1940

. . . who, in accordance with rules and regulations

prescribed by the Administrator, War Shipping Ad-

ministration, completes a period of substantially con-

tinuous service in the merchant marine, shall be en-

titled to a Certificate to that effect from the Admin-

istrator upon completion of such period, which shall

include a record of any special proficiency or merit

obtained

Sec. 2 (a).In the case of any such person who, in

order to perform service in the merchant marine, has

left or leaves a position ... in the employ of any em-

ployer and who (1) receives such Certificate, (2) is

still qualified to perform the duties of such position,

and (3) makes application for re-employment within

40 days after completion of such service—

(B) If such position was in the employ of a private

employer, such employer shall restore such person to

such position or to a position of like seniority, status,

and pay unless the employer’s circumstances have so

changed as to make it impossible or unreasonable to

do so.”

It will be observed that appellant cannot possibly be

entitled to reinstatement under the terms of the above pro-

vision for the following reasons:

1. Mr. Kenney did not leave his employment with

Wabash “in order to perform service in the merchant ma-

rine’, as required by the Statute, but simply and “solely

for the purpose of accepting civilian employment in the

11

United States War Department Army Transportation

Corps, and for no other purpose’, as above stipulated and

found by the District Judge.

2. He was not an enrollee in the United States Mari-

time Service as required by the Statute, but a civilian em-

ployee of the United States War Department.

3. He could not satisfy the requirements of Section

2 (a), (1) and (3) of the above Statute, because he did

not possess, and indeed was not entitled to receive a Cer-

tificate of Substantially Continuous Service. Hence he

could not make the proper application for re-employment

within 40 days after completion of his services.

It seems very plain, then, that as of the date of Mr.

Kenney’s first application for re-employment—March 17,

1945—he was not entitled to re-employment under the Act

then in existence. Indeed, Mr. Kenney does not rely on the

above Statute, but rather relies on the amendment thereof

which became effective August 8, 1946, for his re-employ-

ment rights. At this time it is proper to say that it would

certainly appear that the rights both of Mr. Kenney and

of the Wabash Railroad Company became vested completely

in 1945, and that it was not the intention of Congress by

passing the Act of 1946 to make it retroactive to a case

such as this.

But even independently of the constiutional objec-

tions, Mr. Kenney cannot meet the requirements of the

12

August 8, 1946, amendment. That amendment reads as

follows.'>

That effective as of June 23, 1943, the Act entitled

“An Act to provide reemployment rights for persons

who leave their positions to serve in the merchant

marine, and for other purposes”, approved June 23,

1943 (57 Stat. 162) is amended to read as follows:

(a) When used in this Act the term “service in the

merchant marine” means... (2) service as a civilian

officer or member of the crew on or in connection with

a vessel owned by, chartered to, or operated by or for

the account or use of the War Department.

(b) Any person entering service in the merchant ma-

rine after May 1, 1940, and before the termination of

the unlimited national emergency declared by the

President on May 27, 1941, who, in accordance with

rules and regulations prescribed by the Administrator,

War Shipping Administration, completes a period of

substantially continuous service in the merchant ma-

rine, shall be entitled to a certificate to that effect

from the Administrator upon completion of such

period, which shall include a record of any special

proficiency or merit obtained.”

Section 2 of the amended Act is identical to the quoted

portions of the original Act above except that it extends

the period for application for re-employment to 90 days

after completion of such service instead of the 40 days as

provided in the original act.

ts Public Law No. 660, 79th Congress (So U.S. C. Supp. Vy app. Sees. ba 71-

tats)

13

Mr. Kenney cannot meet the requirements of the 1946

amendment to the Act for at least two reasons:

1. Again, because Mr. Kenney did not leave his em-

ployment with Wabash “in order to perform service in the

merchant marine”, as required by Section 2 of the Statute,

but simply and “solely for the purpose of accepting civilian

employment in the United States War Department Army

Transportation Corps, and for no other purpose”, as stip-

ulated and found by the District Judge. The 1946 amend-

ment made no change in this requirement. Indeed, Mr.

Kenney did not serve as a civilian officer or member of the

crew of any vessel until more than a month after he left

the employ of the Railroad..

2. It will be observed from the Stipulation and the

facts found by the District Judge that Mr. Kenney did not

even make an application for re-instatement under the

amended Act within 90 days after the passage of such Act

—which would have been November 8, 1946. Indeed, he

made no effort at re-instatement under the 1946 Act until

March 26, 1948. Obviously by that time there is no way

to say, by any stretch of the imagination, that he complied

with the requirements for making application for re-in-

statement “within 90 days after completion of such serv-

ice”, And even then, Mr. Kenney did not “receive such

Certificate”, and indeed did not receive a Certificate until

June 10, 1948.

(b). 1946 Act Not Retroactive, and if so, Unconstitutional

It is a well established rule of statutory construction

that legislatures are presumed to intend statutes to operate

14

prospectively only and not retroactively.'" Sections 1471-

1475, enacted August 8, 1946, are presumed, therefore, to

operate prospectively only, and not retroactively, with re-

spect to persons not covered by the original act.

Amendment V of the Constitution of the United States

provides that “No person shall * * * be deprived of life,

liberty, or property, without due process of law; * * *.”

To give to Sections 1471-1475, enacted August 8, 1946,

retroactive effect so as to clothe petitioner with a reem-

ployment right on March 17, 1945, when no such right

existed, and to compel defendant in 1949 to reemploy peti-

tioner on the basis of an application for reemployment in

1945, would deprive the defendant of property without due

process of law, in violation of the 5th Amendment.

A statute cannot constitutionally impose an obligation

with respect to a transaction that at the time it took place

gave rise to no obligation. A statute cannot constitutionally

be construed so as to give a petitioner a cause of action

that did not exist at the time of the transaction upon which

said cause is founded.*"

'" Hassett rv. Welch (1938) 303 U.S. 303, 82 L. ed. 585, 867, 58 S. Cr. 559;

United States v. Heth (1806) 3 Cranch 399, 413, 2 L. ed. 479, 483.

"16 C. J. S. 862, Section 417; 11 Am. Jur. 1193, Section 365; 50 Am. Jur.

492, Section 475; Forbes Pioneer Boat Line 1. Board of Commissioners of

Everglades Draining District (1922) 258 U. S. 338, 66 L. ed. 617; Bern-

hardt t. Atlantic Finance Corporation (1942) 40 N. E. 2d 713, 311 Mass.

185; Mulligan vr, Hilton (1940) 24 N. E. 2d 676, 679, 133 A. L. R. 376:

Duff +. Black Diamond Collieries (1930) 33 S. W. 24 63, 161 Tenn.

486; Carder Realty Corporation 1. State, 23 N. Y. S. 2d 395, 260 App.

Div. 459, affd., 35 N. EF. 2d 194, 285 N. Y. 803.

15

“Retrospective legislation is generally not favored by

the courts and where there is an open question of construc-

tion of a statute with respect to whether it should be ap-

plied retrospectively, it will only be so applied where it

clearly does not impinge upon constitutional protection.””"

Retroactive legislation generally will not be allowed to im-

pair vested or property rights.”?

Article 1, Section 9, of the Constitution of the United

States provides that “No Bill of Attainder or ex post facto

Law shall be passed”.

Section 1473, authorizes district courts of the United

States “to specifically require such employer to comply

with such provisions, and, as an incident thereto, to com-

pensate such person for any loss of wages or benefits suf-

fered by reason of such employer’s unlawful action”.

Hence, Section 1473 provides for penalties which, if

here imposed by reason of a retrospective application of

the statute, is violative of Article 1, Section 9 of the United

States Constitution.

The Constitutional clause applies to cases for recovery

of penalties and forfeitures, and not merely to criminal

laws and cases.**

2" Seese v. Bethlehem Steel Co. (1947) 74 F. Supp. 412, 417; Duke Power Co.

v. South Carolina Tax Comm. (1936) 81 F. 2d 513, 516.

“2 Linch v, United States (1934) 292 U. S. 571. 580, “® L. ed. 1434, 1441;

Ettor v. City of Tacoma (1913) 228 U. S. 148, 156, 57 L. ed. 773,

23.U. S. v. Hughes, D. C., N. Y. (1875), 8 Ben. 29. 26 Fed. Cas. No. 15,416.

16

(c). Congressional Intent

The reemployment statute, although entirely proper

under its emergency circumstances, is one which places

xreat administrative burdens on employers. Congress cer-

tainly recognized that fact as evidenced by the restrictions

and limitations that Congress placed in the law. Para-

mount are the requirements that the employee seeking re-

instatement must possess a Certificate of Substantially

Continuous Service, and act diligently and promptly in

notifying his employer of his desire for reinstatement.

Also, obviously, the employer must have some protection

and security against unreasonable and unseasonable de-

mands for reemployment else an employer would never

know when a demand would be made on him for reemploy-

ment, and he would not be able to hold his organization

together. Congress has stated that such demand, accom-

panied by such a certificate, must be made within not more

than 90 days “after completion of such service”. Here the

service was completed February 12, 1945, yet no proper

demand in compliance with the procedure set forth in the

statute Was made on defendant until June 17, 1948—more

than three years later; and this even though such a Cer-

tifieate could have been procured by Mr. Kenney immedi-

ately after August 8, 1946.

It is clear that Congress never intended for the statute

to be applied retroactively so as to force reemployment of

a person not entitled thereto at the time such person left

federal employment; and certainly Congress never intended

the Act to require reinstatement more than three (3) vears

17

thereafter when the statute specifically requires a proper

application therefore to be made “within 40 (90) days

after completion of such service”. It is apparent that the

rights of all of the parties hereto—both Mr. Kenney's right

to reemployment, and Wabash’s right to refuse reemploy-

ment—vested in the parties within 40 days after February

12, 1945 under the express terms of the statute then in

force. An interpretation of the subsequent Reemploy ment

Act of August 8, 1946, in such a way as to change a year

and a half later the correlative rights vested in the parties

40 days after February 12, 1945, would certainly render

such Act unconstitutional in its application to such vested

rights under the Fifth Amendment to the United States

Constitution,

Even if plaintiff ever had any reemployment rights,

he has certainly slept on them, and, according to the very

terms of the statute on which he relies, they have lapsed.

Indeed, Mr. Kenney is asking this court to re-write the

statute to suit his own convenience, and in so doing to run

afoul of the guaranties of the United States Constitution.

IV. CONCLUSION

It is respectfully submitted, therefore, that no special

or important reasons are presented by the applicant for

the granting of a writ of certiorari by this Court, and that

indeed, the issues involved in this case are mainly factual

und certainly of a non-recurring nature. Moreover, it is

apparent on the face of them, both that the errors alleged

to have been committed by the lower Court are totally

18

unfounded, and that the reasons for the granting of this

writ are not applicable to this case.

Finally, it is fully apparent that not only is the decision

of the lower Court correct, but that no other decision

could possibly be arrived at without doing violence to the

reemployment statutes in question, and running afoul of

constitutional guarantees. The petition for a writ of cer-

tiorari in this case should therefore be denied.

ae a

Respectfuxly submitted, rd i:

JAMES J. MOR

1014 Pere Marquette Building

New Orléans, Louisiana

Counsel for Respondent

Wabash Railroad Company

Of Counsel:

ALBERT E. SCHOENBECK

General Attorney

Wabash Railroad Company

Railway Exchange Building

St. Louis, Missouri

19

CERTIFICATE

I hereby certify that a copy of this memorandum was

mailed to Robert Ash, counsel for petitioner, 550 Munsey

ay of

James/J. Morrison

Counsey for Respondent