author: PHILLIPS, Circuit Judge.

text:
    In the Matter of PUBLIC LEASING CORPORATION (two cases). COMMUNITY NATIONAL BANK OF WARR ACRES, Appellant, v. C. C. VICTORY, Receiver of Public Leasing Corporation, Appellee. HOBBS DIVISION OF FRUEHAUF CORPORATION, Appellant, v. C. C. VICTORY, Receiver of Public Leasing Corporation, Appellee.
    No. 73-1324.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 14, 1973.
    Decided Dec. 14, 1973.
    See also, D.C., 344 F.Supp. 754.

      Charles W. Mooney, Jr., Oklahoma City, Okl. (Monty L. Bratcher and Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., on the briefs), for appellant, Fruehauf Corp.
    James R. Eagleton, Oklahoma City, Okl. (Don R. Nicholson II and Eagleton, Nicholson & Pate, Oklahoma City, Okl., on the briefs), for appellant, Community Nat. Bank.
    Hal D. Learning, Oklahoma City, Okl. (Smith, Learning & Swan, Oklahoma City, Okl., on the briefs), for appellee.
    Before PHILLIPS, HILL and DOYLE, Circuit Judges.
   PHILLIPS, Circuit Judge.

While bearing the same number, appeals from two separate judgments against two different parties, and presenting different issues, are involved in this case. Such judgments were entered in the United States District Court for the Western District of Oklahoma, in a bankruptcy proceeding entitled, “In the Matter of Public Leasing Corporation, Bankrupt (In Bankruptcy No. 72-286).”

One appeal is from a judgment entered against Hobbs Division of Frue-hauf Corporation, and the other is from a judgment asserted to have been entered against Community National Bank of Warr Acres.

There was filed in the Court of Appeals a “Record on Appeal” as Volume I. It embraces a duly authenticated copy of an agreed statement on appeal, entered into between counsel for Fruehauf-Hobbs and counsel for the Receiver of Public Leasing. Such agreed statement was approved by such District Court on May 11, 1973, and filed in the office of the Clerk of such District Court on that day. To it are attached Exhibits “A” to “K”, inclusive, and a duly certified copy of the docket entries in such District Court in No. 72-286. Exhibit “K” is a duly authenticated copy of the judgment against Fruehauf-Hobbs, entered in the office of the Clerk of such District Court on April 4, 1973, and from which Fruehauf-Hobbs has appealed.

There was also filed in the Court of Appeals Volume II of the Record on Appeal, which is a duly authenticated transcript of the “Hearing and Decision of the Court in the Matter of the Report of Secured Creditors: Hobbs Division of Fruehauf Trailer Corporation; Community National Bank, * * At the close of the hearing, the court stated: “[I]t will be the order and judgment of the Court that the Receiver have and receive judgment as against Hobbs for the amount of $12,400.50, * * * (and) that the Receiver have judgment against the Bank in the amount * The court did not state the amount, but the parties agreed it was $2,057.64.

The record does not contain a copy of a judgment against the Bank. However, the certified copy of such District Court docket entries recites the following:

“4-4-73 Filed and entered Order and Judgment — THAT judg. is ent’d against Community National Bank and in favor of debtor corp for $2,057.64 * •» *
“4-6-73 Filed Fruehauf Corp’s and Community Ntl Bk of Warr Acres Noti[c]e of Appeal from final order & judg. ent’d 4-4-73, granting judg. against Community Ntl Bk of Warr Acres in favor of Debtor Corp. for $2,050 w/int at 10% from 3-30-73 * * * ”

The record is entirely adequate for the court to determine the issues presented by the appeal of Fruehauf-Hobbs. But the record does not reflect sufficient facts for us to decide all the issues presented by the Bank’s appeal, as we will hereinafter show when we consider the Bank’s appeal.

On March 2, 1972, Public Leasing filed in the United States District Court for the Western District of Oklahoma its petition for reorganization under Chapter 10 of the Bankruptcy Act, and on that date an order was entered in such District Court approving the petition and appointing a trustee. Thereafter, and prior to August 7, 1972, Frue-hauf-Hobbs, the Bank, and other secured creditors each filed a petition for reclamation, seeking the return to it of property described in an agreement or agreements securing an unpaid indebtedness owing from Public Leasing to it. On May 19, 1972, the court entered an order denying all of such petitions for reclamation.

Fruehauf-Hobbs, the Bank, and other secured creditors each filed a motion in the reorganization proceeding that the court adjudge Public Leasing a bankrupt, pursuant to 11 U.S.C.A. § 636(2). On August 3, 1972, there came on “for continued hearing * * * certain petitions for reclamation, * * * and motions to adjudicate the debtor corporation (Public Leasing) a bankrupt, * * *.” From the evidence adduced at such hearing on such petitions and motions, such District Court found Public Leasing was “hopelessly insolvent”; that its reorganization was impossible; and concluded that it should be “adjudged a bankrupt” and that each of the applications for reclamation of Frue-hauf-Hobbs, the Bank, and other secured creditors, theretofore denied, should be granted; that the property described in the agreement or agreements securing an indebtedness from Public Leasing should be returned to the petitioner to whom such agreement or agreements ran from Public Leasing and to whom such indebtedness was owing by it; that C. C. Victory should be appointed Receiver of Public Leasing, and that it should be his duty “to gain possession of all equipment and property” of Public Leasing, “including encumbered and unencumbered assets and to distribute to the reclaiming creditors the equipment and property covered by their respective reclamation petitions on file herein, * * * .” The order concluded: “It is therefore ordered, adjudged and decreed that the above findings of the Court * * * be and the same are hereby made the order and judgment of the Court.”

On August 18, 1972, the court entered a, clarifying order, in pertinent part reading:

“[1] Certain petitioners for reclamation have heretofore, and will be hereafter reclaiming certain equipment and collateral, * * * of a value greater than the balances of the notes and security agreements securing same, * * *. All reclaiming secured creditors should, therefore, account for their sale, disposal, or value of such reclaimed equipment and . collateral, listing the amounts of money received from, or value of each separate item of equipment and the note and security agreement balance due on August 7, 1972, and applicable thereto. Such accountings should be filed with the Court Clerk * * * .”

The judgments from which Fruehauf-Hobbs and the Bank appealed were entered after Public Leasing was adjudged a bankrupt.

I

The Bank’s Appeal

The brief of the Bank states:

That on January 23, 1970, Public Leasing, as maker, executed and delivered to the Bank, as payee, a note for $14,763.60; that on the same date Public Leasing, to secure the payment of such note, entered into a security agreement with the Bank, by which it gave the Bank a lien on “Five (5) — 1970 Ford Econoline Vans,” the serial numbers of which were set out in such agreement ; that such note provided that Public Leasing “further agrees to pay (10%) of principal and twenty-five dollars ($25.00) in addition to the amount due as attorneys fees if collected by an attorney with or without suit”; and that the surety agreement provided: “Expenses of retaking, holding, preparing for sale, selling and the like shall include Bank’s reasonable attorneys fees and legal expenses.”

Neither the note nor the security agreement nor the substance thereof are set out in the record on appeal filed in this court.

Such brief further states that the Receiver, appointed when Public Leasing was adjudged a bankrupt, took possession of the property described in such agreement, and that pursuant to the order of the District Court, the Bank reclaimed such property and received it from the Receiver; that thereafter the Bank sold such property and made a report and accounting to the court, in accordance with the court’s orders, setting forth the amount received for such property at the sale and the amount due it on the note, and asserted a claim for attorney’s fees in the sum of $2,050, as provided for in the note and security agreement; that the excess of the amount received by it from the sale of such property over the amount due on the note and the amount claimed as attorney’s fees was $7.64; that it tendered such excess to the Receiver; and that the court denied the claim for attorney’s fees and awarded the Receiver judgment against the Bank for $2,057.64.

The only question presented by the Bank’s appeal is whether the Bank was entitled to deduct attorney’s fees from the amount received by it at the sale.

Counsel for the Receiver in his brief states: “Appellee-Receiver takes no issue with the Bank’s statement that attorney fees were provided in the notes and security agreements, nor that the amount of $2,050.00 is reasonable, if allowable.” But, counsel for the Receiver asserts that while a creditor has a provable claim for legal services rendered prior to the filing of the petition in bankruptcy, he has not for those rendered thereafter, and cites in support of that contention the decision of this court in American National Bank v. Bartlett, 10 Cir., 40 F.2d 21. We agree that such is the established law of this circuit. But, counsel for the Receiver also contends that an application of that rule in the instant case precludes the allowance of attorney’s fees for legal services rendered after the filing of the petition for reorganization of Public Leasing under Chapter 10 of the Bankruptcy Act. With that contention we disagree.

Bankruptcy contemplates the taking of possession by the trustee of the property of the bankrupt actually or constructively in his possession at the time of the filing of the petition in bankruptcy; the distribution of the proceeds received from such property, ratably, among the creditors of the bankrupt whose claims have been filed and allowed; and the discharge of the bankrupt from liability for the unpaid balance of such claims.

Reorganization contemplates the very opposite. Reorganization of a corporation under Chapter 10 contemplates the preparation of a plan of reorganization by the trustee, the submission thereof to the court, and after a hearing, the determination of the feasibility of such plan by the court and the approval thereof by the court if it finds such plan is feasible and proper. And if the plan is then accepted by the stockholders and creditors, as provided in 11 U.S.C.A. § 579, the court, after a hearing, may confirm the plan. Such plan, to be feasible, must eliminate or reduce the rights of stockholders, and reduce or extend the claims of the creditors to a degree that will place the corporation in a financial position where it can continue in business and meet the claims of its creditors.

We hold that a proceeding to reorganize a corporation under Chapter 10 is not a “bankruptcy,” though such chapter was enacted as an amendment to the Bankruptcy Act and creates and regulates the remedy of reorganization. See Lowden v. Northwestern National Bank & Trust Co., 298 U.S. 160, 165, 56 S.Ct. 696, 698, 80 L.Ed. 1114, 1116.

11 U.S.C.A. § 1, in part provides:

“The words and phrases used in this title and in proceedings pursuant hereto shall, unless the same be inconsistent with the context, be construed as follows:
* -X- -X- * * *
“(12) ‘Date of adjudication’ shall mean the date of the filing of any petition which operates as an adjudication, or the date of entry of a decree of adjudication * * * ” (Italics ours.)

11 U.S.C.A. § 41(g), in part provides:

“Upon the filing of a voluntary petition, * * * the judge shall hear the petition and make the adjudication or dismiss the petition. * * * ”

11 U.S.C.A. § 530, prescribing what the petition of a corporation for reorganization under Chapter 10 shall state, in part reads:

“Every petition shall state—
* * * * * * “(7) the specific facts showing the need for relief under this chapter and why adequate relief cannot be obtained under chapter 11 of this title; and
“(8) the desire of the petitioner or petitioners that a plan be effected.”

The petition for reorganization in the instant case was filed under 11 U.S.C.A. § 528.

11 U.S.C.A. § 636, in part provides: “If no plan is proposed within the time fixed or extended by the judge, or if no plan proposed is approved by the judge and no further time is granted for the proposal of a plan, or if no plan approved by the judge is accepted within the time fixed or extended by the judge, or if confirmation of the plan is refused, or if a confirmed plan is not consummated, the judge shall- — ■
* -X- -X- -x- * *
“(2) where the petition was filed under section 528 of this title, after hearing upon notice to the debtor, stockholders, creditors, indenture trustees, and such other persons as the judge may designate, enter an order either adjudging the debtor a bankrupt and directing that bankruptcy be proceeded with pursuant to the provisions of this title, or dismissing the proceeding under this chapter, as in the opinion of the judge may be in the interests of the creditors and stockholders.”

The reorganization petition was not a petition in bankruptcy in the ordinary sense of that term. It did not contemplate collection and distribution of the assets of Public Leasing ratably to creditors and the discharge of Public Leasing from its debts. On the contrary, it contemplated an arrangement by which Public Leasing could continue in business and pay its debts to the extent and in the manner provided by the confirmed plan.

The adjudging of the debtor to be bankrupt was not pursuant to the petition for reorganization, but was pursuant to the provisions of 11 U.S.C.A. § 636(2), and the “date of the adjudication” falls within the second clause of 11 U.S.C.A. § 1(12) quoted supra, viz; “the date of entry of a decree of adjudication.”

Here, the Bank, in its efforts to reclaim from the trustee the property in his possession which was covered by its security agreement, properly and necessarily employed attorneys and became liable to pay them reasonable fees for their services.

We hold that the Bank was entitled to retain a reasonable amount for the services rendered by its attorneys prior to the adjudication in bankruptcy. Since we cannot determine that amount on the record before us, the judgment appealed from is REVERSED, and .the District Court is directed to determine that amount and allow it as a deduction from $2,057.64, which the Bank received from the sale of the property in excess of the amount of principal and accrued interest on the note, and render judgment against the Bank accordingly.

It is so ordered.

II

Fruehauf-Hobbs’ Appeal

From time to time Fruehauf-Hobbs sold to Public Leasing and others trailers and other trucking equipment, and took security agreements from the purchasers to secure the balance owing on such trailers and equipment and all other indebtedness owing by the purchasers to Fruehauf-Hobbs.

Fruehauf-Hobbs held such security agreements on all of the property reclaimed by it from the trustee of Public Leasing, and delivered to Fruehauf-Hobbs by the Receiver under the clarifying order of August 18, 1972. Each of such security agreements specifically described the property purchased, stated the total unpaid balance of the purchase price, and stated that such balance should be paid in monthly installments in the amount stipulated in such security agreement.

In such security agreements, Frue-hauf-Hobbs is referred to as the “Seller” and the purchaser as the “Buyer.”

Each of such agreements provided: “Buyer agrees that ‘Seller’ retains title to equipment purchased hereunder and is granted a security interest in any additional security collateral described herein, as well as any accessions or accessories added thereto, all of which is hereafter referred to as the collateral, as security for the payment of said time balance, and also for any and all liabilities of Buyer to ‘Seller’ now existing or hereafter incurred.”

The security agreements each further provided:

“Buyer shall be in default upon the happening of any one or more of the following events.
“1. Default in the performance of any obligation secured hereby.
*■*•** * *
“4. * * * insolvency, appointment of a receiver or commencement of any proceeding under any bankruptcy laws of, by, or against Buyer any partner or principal shareholder of Buyer, * * *
“Upon the occurrence of any event of default, ‘Seller’ may declare any and all obligations secured hereby to be immediately due and payable and shall have all of the remedies of a secured party under the Uniform Commercial Code. * * *.
* * * * * *
«2 * * * This instrument and any such Sales Order constitute the entire agreement between the parties with respect to this sale, and in the event of any conflict, this instrument shall control.
* * * * * * '
“4. It is agreed that the law applicable to this agreement is the law of the State shown as ‘Sellers’ local address set forth above.”

Each of the security agreements here involved set forth Oklahoma City as the “local address” of the seller.

In accordance with the clarifying order of August 18, 1972, the Receiver delivered to Fruehauf-Hobbs the trailers and other equipment covered by its reclamation filed in the reorganization proceeding. On January 11, 1973, in accordance with such order of August 18, 1972, Fruehauf-Hobbs filed a detailed report and accounting of the sale, disposal or value of the property reclaimed by it and listed therein the amounts of money received from the sale of, or value of each separate item of such reclaimed property, and the note and security agreement balance due thereon on August 7, 1972. In its report and accounting, Fruehauf-Hobbs, in accordance with the order of August 18, 1972, also showed the amount it received from the reclaimed property sold by it, and the value of the reclaimed property which it had not sold. The report and accounting stated the equity, if any, which Frue-hauf-Hobbs asserted Public Leasing had in each of the items of property reclaimed.

The Receiver filed objections to the report, in which he asserted that the amount Fruehauf-Hobbs received for the reclaimed property which it sold plus the value of the reclaimed property, which it had not sold but retained, exceeded the amount owing by Public Leasing to Frue-hauf-Hobbs on the purchase of such property by $12,400.50. In his testimony, he stated he raised no question with respect to the property sold by Fruehauf-Hobbs, but he did question the value placed by Fruehauf-Hobbs on the property it did not sell. He stated his valuations on the unsold property were based on what Fruehauf-Hobbs received for like reclaimed property which it sold, as set forth in its report, and what American Trailers received for like property which it sold, as set forth in the report filed by American Trailers, and that his valuation reflected an equity of Public Leasing in such unsold property of $12,400.50, and the amount of such equity Fruehauf-Hobbs reflected in its report was $7,307.63.

In its report to the court, in accordance with the orders of August 7 and August 18, 1972, Fruehauf-Hobbs stated it sustained a loss on all the vehicles it reclaimed, listed on Exhibit “A”, and a loss on all the vehicles it reclaimed as shown on Exhibit “B”, attached to such report.

On March 30, 1973, a hearing was held on such report and the Receiver’s objections thereto; and on April 4, 1972, an order was entered awarding “the debtor corporation and its representatives” a judgment against Frue-hauf-Hobbs for $12,400.50.

In its brief Fruehauf-Hobbs asserts that by virtue of the cross-collateralization clause, set out, supra, each of the security agreements given by Public Leasing to Fruehauf-Hobbs secured not only the unpaid purchase price of the trailer described in such security agreement, but also any other indebtedness owing by Public Leasing to Fruehauf-Hobbs. Fruehauf-Hobbs- must sustain that contention in order to show the loss it asserted in its report.

Fruehauf-Hobbs also asserts that because of the insolvency and the adjudication of bankruptcy of Public Leasing, it had the right to declare all the indebtedness secured by the several security agreements from Public Leasing due and payable, and that the amount of such other indebtedness secured by such security agreements more than equaled the excess equity claimed by the Receiver.

Fruehauf-Hobbs further asserts that the Receiver’s report and analysis of the report and accounting filed by Frue-hauf-Hobbs shows that the latest security agreement in which he found the value of the vehicle sold exceeded the amount owing on the purchase price, and therefore an equity in favor of Public Leasing, was dated December 6, 1969, and that the value of every vehicle sold after that date was less than the unpaid purchase price, and that such deficits were greater than the aggregate of the equities found by the Receiver in the security agreements entered into before December 6, 1969.

The Receiver further testified that prior to March 2, 1972, when Public Leasing wanted to sell a trailer or other piece of equipment purchased by it from Fruehauf-Hobbs, and on which it had given a security agreement to secure the unpaid balance of the purchase price, it paid off such unpaid balance, and that Fruehauf-Hobbs never at any time after such payment asserted any claim that such trailer or other piece of equipment, by reason of the cross-collateralization clause in the security agreement, remained subject to a lien for any other indebtedness owed by Public Leasing to Fruehauf-Hobbs.

The Receiver further testified that after March 2, 1972, and during the reorganization proceedings, the trustee had in his possession trucks on which International Harvester Company held a “mortgage” to secure to it the unpaid purchase price, and bodies on such trucks on which Fruehauf-Hobbs held a “mortgage” to secure to it the unpaid purchase price; that the trustee sold such trucks and bodies, paid the balance of the unpaid purchase price to International Harvester and to Fruehauf-Hobbs, and retained the balance he received from the sale of such trucks and bodies; and that Fruehauf-Hobbs never asserted any claims on such balance.

He further testified that there came into his possession as such Receiver 11 trailers purchased by Public Leasing from Fruehauf-Hobbs, and for which Public Leasing had paid Fruehauf-Hobbs the unpaid balance of the purchase price; that he sold such 11 trucks as unencumbered property at auction; and that Fruehauf-Hobbs, knowing he was going to sell such trucks as unencumbered property, made no objection thereto.

John R. Jones, called as a witness by Fruehauf-Hobbs at the hearing on its report and accounting, testified to the following:

He is the Controller and Finance Manager of the Hobbs Division of Frue-hauf; that the value of all the vehicles reclaimed was arrived at by actual appraisals; that those over which there was a controversy as to value had been reconditioned; and that thereafter all of them were listed at the estimated selling price. After being reconditioned, they were put up for sale, and none of them had been sold for as much as the asking price.

Jones further testified that a separate security agreement was entered into for each vehicle sold; and that before the petition for reorganization was filed, when Public Leasing wanted to sell a vehicle, it paid the balance due on the purchase price thereof, and thereupon Frue-hauf-Hobbs released such vehicle from the lien of the security agreement.

The court held that the mutual dealings between Fruehauf-Hobbs and Public Leasing prior to March 2, 1972 (and of Fruehauf-Hobbs and the trustees and Receiver after that date) indicated that each security agreement be treated as separate from and independent of the others, and as securing only the balance of the purchase price of the property described therein, and not as securing an unpaid balance of the purchase pricé of property described in any other security agreement; and the court rendered judgment against Fruehauf-Hobbs for $12,400.50, with interest at 10 per cent per annum from March 30,1973.

Fruehauf-Hobbs and Public Leasing agreed in each security agreement “that the law applicable to this agreement is the law of the State shown” as the seller’s local address set forth in such agreement. In all of the security agreements herein involved, that address was Oklahoma City, Oklahoma. Hence, the applicable law is the law of Oklahoma.

The Uniform Commercial Code was adopted in Oklahoma on July 21, 1961, and became effective on January 1, 1963, as provided in 12A O.S.1971 § § 1— 101 to 10-104, inclusive.

It provides:

“Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment.” 12A O.S.1971 § 9-204(5).

It also provides:

“Except as otherwise provided by this Act a security agreement is effective according to its terms between the parties, against purchasers of the collateral and against creditors. * * * ” 12A O.S.1971 § 9-201.

Although the Supreme Court of Oklahoma has not directly passed on the validity of a cross-collateralization clause under § 9-204(5), supra, the courts of states which have adopted the Uniform Commercial Code, and which have passed on such question, have uniformly sustained the validity of such a provision.

Moreover, counsel for the Receiver in his brief concedes that the validity of cross-collateralization clauses has been generally sustained by the courts.

The cross-collateralization clause in the security agreements was clear and free from .ambiguity, its meaning was free from doubt, and it was not contradictory of or in conflict with any other provisions of such agreements. Hence, there was no reason to resort to parol evidence to ascertain what the parties intended thereby.

The decisions of the Oklahoma Supreme Court are in accord with the general rule that where the terms of a contract are clear and unambiguous there is no reason to resort to rules of construction. In National Fire Ins. Co. of Hartford v. McCoy, 205 Okl. 511, 239 P.2d 428, the court, in Syllabus 2, which is the law of the case in Oklahoma, said:

“A contract in writing, if its terms are free from doubt or ambiguity, must be permitted to speak for itself, and cannot by the courts, at the instance of one of the parties, be altered or contradicted by parol evidence, * * *

Moreover, here the construction placed on the contract by the court entirely wiped out a clear and unambiguous provision of the security agreement.

In Frankfort Oil Company v. Snakard, 10 Cir., 279 F.2d 436, 441, this court held that it was the law of Oklahoma that the intention of the parties to a contract ■ must be deduced from the entire contract, and if possible that construction should be adopted which will give effect to every provision of the contract.

Moreover, we are of the opinion that the evidence as to the conduct of the parties, particularly the releasing by Fruehauf-Hobbs of the security agreement on certain vehicles which Public Leasing desired to sell, did not justify the conclusion that Fruehauf-Hobbs mutually agreed with Public Leasing that the cross-collateralization clause should be eliminated from all such agreements with Public Leasing and given no force or effect.

It may well be that Fruehauf-Hobbs, when it released the lien of the security agreements on vehicles which Public Leasing desired to sell on receipt of payment of the balance of the purchase price owing thereon, felt all of its other indebtedness from Public Leasing was adequately secured, and it could well accommodate a valuable customer. But it does not follow that it would do so as to all other security agreements, especially in cases when, as here, there were other vehicles, sold to Public Leasing by Frue-hauf-Hobbs, where the value of the vehicles was insufficient to secure the unpaid purchase price of the vehicles.

Accordingly, we hold that the cross-collateralization clause of the security agreements was valid; that it was clear and unambiguous; that it did not conflict with or contradict the other provisions of such agreements, which were also clear and free from doubt or ambiguity ; and that the court erred in eliminating the cross-collateralization clause from such agreements.

The judgment of the Receiver against Fruehauf-Hobbs is reversed, and the cause is remanded to the' District Court with instructions to hold a further hearing and, giving full effect to the cross-collateralization clause in the security agreements given by Public Leasing to Fruehauf-Hobbs, except süch security agreements that were expressly released by Fruehauf-Hobbs, determine the amount of any liability of Fruehauf-Hobbs to the Receiver on account of the property reclaimed by it from the trustee.

      . Hereinafter referred to as Public Leasing.

      . Hereinafter referred to as Fruehauf-Hobbs.

      . Hereinafter referred to as the Bank.

      . In Re Riss Tanning Corporation, 2 Cir., 468 F.2d 1211, 1213; Kenneally v. Standard Electronics Corporation, 8 Cir., 364 F.2d 642, 646; State Finance Co. v. Laugharn, 9 Cir., 113 F.2d 59, 60-61; See also South County Sand & Gravel Co. v. Bituminous Pavers Co., 106 R.I. 178, 256 A.2d 514, 517, 518.

      . To the same effect see Garrett v. Pollock, Okl., 299 P.2d 516, 519, and Coker v. Hudspeth, Okl., 308 P.2d 291, 294.


source: Caselaw Access Project

author: McWILLIAMS, Circuit Judge. LEWIS, Chief Judge

license: Public Domain

text:
    Roxanne REYNOLDS, Plaintiff-Appellant, v. William McNICHOLS, Mayor of the City and County of Denver, et al., Defendants-Appellees.
    No. 73-1407.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 16, 1973.
    Decided Dec. 13, 1973.

      John G. Bock, Englewood, Colo. (Peter H. Ney, Englewood, Colo., on the brief), for plaintiff-appellant.
    Richard L. Dally, Denver, Colo. (Wesley H. Doan, Max P. Zall, Gerald Himel-grin, Marshall Fogel and J. Bayard Young, Denver, Colo., on the brief), for defendants-appellees.
    Before LEWIS, Chief Judge, and JONES and McWILLIAMS, Circuit Judges.

       Honorable Warren L. Jones, Senior Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation.

   McWILLIAMS, Circuit Judge.

This is a civil rights case brought by one Roxanne Reynolds under 42 U.S.C. §§ 1983 and 1985 against the City and County of Denver, its Mayor, the Honorable William McNichols, and certain of the city’s officials and policemen. The gravamen of the complaint is that several of the constitutional rights of Roxanne Reynolds, hereinafter referred to as the plaintiff, were violated by the city and its officials in their enforcement of Denver’s so-called “hold and treat” ordinance. This ordinance, among other things, purports to authorize under prescribed conditions the detention of one reasonably suspected of having a venereal disease, the examination of such person, and the treatment of such disease if it be determined that the person thus detained and examined does in fact have a venereal disease. The ordinance in question, Section 735 of the Revised Municipal Code of the City and County of Denver, is set out as Appendix I to this opinion.

It is the plaintiff’s belief that the aforesaid ordinance is unconstitutional on its face, and, alternatively, that it has been unconstitutionally applied as to her. Upon trial to the court, the trial judge concluded that, contrary to the assertions of the plaintiff, the ordinance is constitutional on its face and that it has not been in anywise unconstitutionally applied as to her. Accordingly, the trial court entered judgment in favor of the city and its officials, and the plaintiff now appeals the judgment thus entered. We affirm.

Before examining the ordinance, we shall first summarize the evidence adduced upon trial of the matter to the end that the constitutional issues may be viewed in their factual context. The trial court heard testimony from the plaintiff, as well as from a policeman and from two medical doctors, one of whom was employed by the city as the head of its venereal disease clinic. Accordingly, there was considerable of an evidentiary nature before the trial court, all of which is significant in our consideration of the claim that the ordinance was unconstitutionally applied to the plaintiff.

The plaintiff, a twenty-seven year old female, who described herself as a model and prostitute, moved to Denver in the fall of 1970, and she first came to the attention of the Denver Police Department on November 29, 1970. On this latter date, she was arrested in a hotel room where she was in the company of a male person not her husband. At the trial of the instant civil rights case, the plaintiff testified that on this particular occasion she had agreed to have sexual relations with her male companion for a fee of $100, which fee had been paid. She denied, however, that at the time of her arrest she was in bed, and stated that on the contrary she was fully clothed and having a drink when the officers knocked at the door. So, whether this was a quid pro quo transaction is not disclosed by the record. In any event, the plaintiff was arrested and placed in the city jail and charged with violating city ordinances relating to solicitation and prostitution. In connection with these ordinance violations, the plaintiff was permitted a so-called “deferred prosecution,” whereby she was not required to plead either guilty or not guilty, and the charges, after a passage of time, were dismissed. Although the record is not too clear, it appears that while in the city jail, plaintiff was given a blood test' and an injection of penicillin and released on bond.

On May 21, 1971, and July 8, 1971, the plaintiff was issued a so-called “walk-in” order by the Denver police after complaints that plaintiff had been soliciting for acts of prostitution at a local Denver hotel bar. On neither of these occasions was the plaintiff placed in jail, but on the contrary she was simply ordered to report to the Department of Health and Hospitals for examination and possible treatment. On the first of these two occasions, the examination revealed that plaintiff had gonorrhea and drugs were administered therefor. On the second of these two occasions, the results of the examination were apparently negative to the end that no treatment was given.

On May 1, 1972, the plaintiff was given another “walk-in” order as she was alighting from her automobile preparatory to entering another Denver motel. On this occasion the plaintiff reported to the Department of Health and Hospitals with her attorney and refused to submit to any examination.

The plaintiff’s final contact with the Denver Police Department occurred on June 19, 1972 when she was again arrested in a hotel room with a male person not her husband. On this occasion, according to the plaintiff, she and her male companion were “talking about an act of prostitution,” but she added that any agreement had not been finalized. In any event, on this particular occasion plaintiff was again arrested and placed in the city jail, and charged with solicitation and prostitution. Thereafter, she was given the choice of being detained in the jail for forty-eight hours during which period of time she should be examined for venereal disease and treated therefor, if necessary, or simply taking penicillin, without an examination, in which event she would be immediately eligible for release. Plaintiff chose the latter alternative, and was orally given certain drugs, and released from custody. It is on this sequence of events that the plaintiff bases her civil rights action under 42 U.S.C. § 1983 and § 1985, claiming that the city and its officials acting pursuant to Ordinance 735 violated her rights under the Fourth and Fourteenth Amendments. By way of the relief prayed for, she sought monetary damages as well as injunctive relief. Let us now examine the ordinance in question as its various provisions relate to the facts of this case.

The legislative intent behind enactment of Ordinance 735 was to attempt to bring under control, and lessen, the incidence of venereal disease in Denver by determining and treating the source of such infection. The evidence before the trial court showed, incidentally, that the incidence of venereal disease had reached' virtually epidemic proportions. To that end, the police were empowered under prescribed conditions to detain in jail certains persons “reasonably suspected” of being infected with a venereal disease, examine them for the presence of a venereal disease, and treat them for the same, if necessary. Such persons thus detained were ineligible for release on bond until the examining process was completed, which, according to the evidence, took forty-eight hours.

As an alternative to detention in jail for examination and treatment, the ordinance also provides that the police may “order in” certain other persons, “reasonably suspected” of having a venereal disease to the Department of Health and Hospitals for examination and treatment of venereal disease on either an in-patient or out-patient basis. As to whether one would be detained in jail for examination and treatment, or simply ordered to report to the Department of Health and Hospitals for examination and treatment, the ordinance further provided that the only persons who could be detained in jail for examination and treatment were those who were “reasonably suspected” of being infected with venereal disease by virtue of the fact that they had been arrested and charged with a violation of certain enumerated offenses, including, for example, the solicitation and prostitution ordinances of the City and County of Denver. A person who was “reasonably suspected” of having a venereal disease, but who nonetheless had not been thus arrested and charged, could only be served with a “walk-in” order to be examined and treated at the Department of Health and Hospitals. Although the ordinance has other provisions and is indeed quite comprehensive, the foregoing constitute what we deem to be the pertinent portions of Ordinance 735 relating to the plaintiff and her claims for relief.

As indicated, the plaintiff contends that the aforesaid ordinance is unconstitutional on its face, and, alternatively, that if it be constitutional on its face, then it has been unconstitutionally applied. In thus contending, plaintiff relies on the Fourth and Fourteenth Amendments. And her constitutional attack is aimed both at the provisions of Ordinance 735 which authorize the issuance of a walk-in order, as well as the provisions which purport to authorize under certain circumstances detention in jail for the purpose, of examination and possible treatment.

Plaintiff’s constitutional argument is summarized as follows: (1) The ordinance authorizes involuntary detention, without bond, involuntary examination and involuntary treatment, all in violation of her Fourth Amendment right to be secure in her person; (2) the ordinance does not spell out adequate guidelines as to the class of persons who can be compelled to submit to examination and treatment; (3) the current practice whereby a person, though initially detained in jail, is nonetheless eligible for immediate release if he or she submits to the injection of penicillin, even though there be no examination to indicate the presence of gonorrhea, results in an unconstitutional coercion of the person thus detained whereby one submits to an invasion of her right to be secure in her person in exchange for immediate release; (4) the injection of penicillin without first determining the presence of gonorrhea is contrary to accepted medical practice; and (5) the ordinance is applied only to females and not to males. In our view, none of these arguments stands up under scrutiny.

The principal thrust of the ordinance is aimed at bringing under control the source of communicable venereal disease. To that end, the city authorities are empowered to examine and treat those reasonably suspected of having an infectious venereal disease. It is not illogical or unreasonable, and on the contrary it is reasonable, to suspect that known prostitutes are a prime source of infectious venereal disease. Prostitution and venereal disease are no strangers.

In the instant case, the plaintiff freely admits, and the record amply supports her admission, that for some two and one-half years she was a prostitute operating in the Denver area and the fact that she was a prostitute was known to the local police. And in our view the fact that the plaintiff was a prostitute is of crucial significance. Finally, on at least one occasion, plaintiff was found to be infected with gonorrhea. Let us now examine the authorities.

Involuntary detention, for a limited period of time, of a person reasonably suspected of having a venereal disease for the purpose of permitting an examination of the person thus detained to determine the presence of a venereal disease and providing further for the treatment of such disease, if present, has been upheld by numerous state courts when challenged on a wide variety of constitutional grounds as a valid exercise of the police power designed to protect the public health. Cases involving state statutes or municipal ordinances similar to, though not necessarily the same as, the ordinance here in question, are: Welch v. Shepherd, 165 Kan. 394, 196 P.2d 235 (1948); Ex Parte Fowler, 85 Okl.Cr. 64, 184 P.2d 814 (1947); People v. Strautz, 386 Ill. 360, 54 N.E.2d 441 (1944) ; Varholy v. Sweat, 153 Fla. 571, 15 So.2d 267 (1943); City of Little Rock v. Smith, 204 Ark. 692, 163 S.W. 2d 705 (1942); and Ex Parte Arata, 52 Cal.App. 380, 198 P. 814 (1921).

The aforesaid proposition would also appear to be in accord with the rationale of such eases as Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), and Compagnie Francaise v. State Board of Health, 186 U.S. 380, 22 S.Ct. 811, 46 L.Ed. 1209 (1902), the former being concerned with compulsory smallpox vaccinations and the latter with a statute quarantining persons suspected of having infectious disease and precluding others from entry into the quarantined area. These two cases were concerned with, among other things, the interaction between the police power and the Fourteenth Amendment. Nor in our view is the proposition set forth above foreclosed by Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). It is true that in Camara the Supreme Court struck down on Fourth Amendment grounds a municipal ordinance of San Francisco which authorized under certain conditions a warrantless inspection of an apartment building under the city’s housing code. At the same time, however, the Court stated that nothing in the opinion was intended to foreclose “prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations,” and cited with approval both Jacobson v. Massachusetts, supra, and Compagnie Francaise v. Board of Health, supra.

Under the authorities above cited, we conclude, as did the trial court, that the provisions of Ordinance No. 735 authorizing limited detention in jail without bond for the purpose of examination and treatment for a venereal disease of one reasonably suspected of having a venereal disease by virtue of the fact that she has been arrested and charged with solicitation and prostitution is a valid exercise of the police power. It would seem to follow that the milder provisions of the ordinance providing for a walk-in order of one reasonably suspected of having a venereal disease for the purpose of involuntary examination and treatment are also valid under the police power, and we so hold.

We now turn to the plaintiff’s contention that the ordinance has been unconstitutionally applied to her. As above indicated, the evidence was that as a matter of practice a person detained in jail under the provisions of Ordinance 735 was given a choice between staying in jail while the examination was being conducted, or submitting to an immediate injection of penicillin, without examination, in which latter event the person would be eligible for immediate release. According to the record, there was no particular risk involved in the taking of a penicillin shot, nor was there any injurious effect from the injection of one who did not in fact have gonorrhea. On this state of the record, we find no unconstitutional coercion of the plaintiff. The provisions of the ordinance permitting limited detention for involuntary examination and treatment of a venereal disease being in themselves constitutional, the fact that the city provides a less onerous alternative, which the plaintiff in this case elected to follow, does not violate any constitutional right of the plaintiff.

Similarly, the claim that the ordinance was enforced only against females, and not males, is, under the circumstances of this case, insufficient to invoke the equal protection provision of the Fourteenth Amendment. The trial court indicated that it was of the view that the equal protection argument was not properly within the issues raised by the pleadings in the case and accordingly did not consider it. In any event, in our view plaintiff’s suggestion that she was unconstitutionally dealt with by the city authorities is under the circumstances unavailing.

In regard to her equal protection argument, the fact that on the two occasions when plaintiff was arrested in a hotel room the plaintiff’s customer was not himself arrested and detained for examination is not significant. From the record before us, there is nothing to indicate that plaintiff did in fact have sex relations with either of her male companions, though evidence of solicitation was obvious. Such being the case, there was no reason to examine plaintiff’s male companions.

Be that as it may, as above indicated, the ordinance is aimed at the primary source of venereal disease and the plaintiff, being the prostitute, was the potential source, not her would-be customer. Plaintiff’s argument in this regard would perhaps carry more weight if she had shown that male prostitutes were dealt with differently than female prostitutes. There is nothing in the record to show that such is the case. In fact, there is nothing in the record to indicate that male prostitution is as yet the vogue in Denver.

Judgment affirmed.

APPENDIX

I.

735 — VENEREAL DISEASES

.1. Protection of Public Health. In order to protect persons in the City and County of Denver from the spread of communicable venereal disease the department of health and hospitals is empowered and authorized and the manager of health and hospitals is directed to use every available means to ascertain the existence of and to investigate immediately all suspected cases of communicable venereal disease and to determine the sources of such infections. Certain persons reasonably suspected to be infected with a communicable venereal disease may be detained in jail, examined, and if determined to be so infected, treated, in accordance with the provisions of this section. The manager of health and hospitals or his authorized representative shall order other persons reasonably suspected to be infected with a communicable venereal disease to be examined at the department of health and hospitals on an in-patient or out-patient basis, or, with the consent of the manager or his representative, by a person licensed to practice medicine, and to be treated medically for such disease, if necessary. (See. 1, Ord. 423, Series 1955)

.1-1. Categories of Suspected Persons. A person in any of the following categories may be reasonably suspected to have venereal disease: (See. 1, Ord. 423, Series 1955)

.1-1(1). Any person who is arrested and charged in the municipal court of the city and county or any other court in the city and county with an offense in the nature of' or involving vagrancy, prostitution, rape, a violation of this article, or another offense related to sex and any person convicted of any such offense in the city and county. (Sec. 1, Ord. 423, Series 1955)

.1-1(2). Any person reasonably suspected to have had a contact with another individual reasonably believed to have had a communicable venereal disease at the time of such contact and any person who is reasonably believed to have transmitted any such disease to another individual. Any person who has had any such disease or who has been convicted of any offense of the kinds herein specified within twelve months next past, and who is reasonably believed to be engaged in any activity which might have occasioned exposure to a communicable venereal disease. (Sec. 1, Ord. 423, Series 1955)

.1-2. Detention in Jail. Suspected persons in the categories enumerated in Section 735.1-1(1) may be detained in jail. When any person so detained is determined not to have venereal disease in communicable form the manager shall release the individual from detention for health purposes. The detention of any person in jail under the provisions hereof shall continue only for such time as is reasonably necessary to examine such person and render treatment if such person is found to have a venereal disease in a communicable form. The provisions hereof shall not be utilized as, nor construed to be, a penalty or punishment. No person detained for health under the provisions hereof shall be released from such detention even if he or she is otherwise eligible for release on bond or by reason of payment of fine, or termination of sentence imposed. (Sec. 1, Ord. 423, Series 1955)

.1-3. Examination in Jail. Every suspected person detained in jail under the provisions of Section 735.1-2 shall be examined by the department of health and hospitals for the purpose of determining whether or not such person is, in fact, infected with a communicable venereal disease. Every such person shall submit to such examinations as are necessary and permit specimens to be taken for laboratory analyses. The detention of each suspected person shall continue until the results of such examinations are known and the person found to be free from any such disease, or, if infected, until the disease is no longer communicable. (Sec. 1, Ord. 423, Series 1955)

.1-4. Treatment in Jail. The department of health and hospitals shall treat every person suspected to have venereal disease who has been detained and examined in jail and found to have any such disease. The treatment shall continue until the disease is no longer communicable. (See. 1, Ord. 423, Series 1955)

.1-5. Examination and Treatment at Department or by Private Physician. Every suspected person in the categories enumerated in Section 735.1-1(2), and in the categories enumerated in' Section 735.1-1(1) who is not detained in jail shall be examined at the department of health and hospitals on an in-patient or out-patient basis as determined in individual instances by the manager of health and hospitals of his authorized representative. Each such person shall submit to examinations as necessary and permit specimens to be taken for labora- , tory analyses and shall comply with the directions of the manager or his authorized representative with relation to hospitalization on an in-patient basis or attendance at clinic on an out-patient basis, as the case may be. Each such person shall continue to follow these directions until the results of his or her examination are known and the person determined to be free from any such disease, or, if infected, until the disease is no longer communicable. With the consent of the manager or his authorized representative a suspected person may be at his or her expense examined by a doctor licensed to practice medicine and treated medically for such disease, if necessary. In these latter instances, the manager or his authorized representative shall receive reports of examinations and treatment and other information relative to the problems involved from the medical doctor selected. (Sec. 1, Ord. 423, Series 1955)

.1-6. Violations. It shall be unlawful to refuse to submit to examination or treatment provisions hereof or to violate any order of detention. It shall be unlawful to refuse to obey any order of the manager of health and hospitals or his authorized representative requiring examinations and treatment, if necessary, for such disease, or any other order issued hereunder. (Sec. 1, Ord. 423, Series 1955)

.2. Duties of Manager of Safety and Excise and Police Officers. The manager of safety and excise and the officers of the police department of the city and county are hereby authorized, empowered, and directed to implement the purposes of Section 735.1 in accordance with the provisions of this section. (Sec. 2, Ord. 423, Series 1955)

.2-1. Manager of Safety and Excise. The manager of safety and excise shall cause to be furnished to the department of health and hospitals information pertinent to the enforcement of Section 735.1 with relation to persons who are arrested and charged or otherwise imprisoned in any jail administered by the department of safety and excise. The manager of safety and excise is directed to make available in such jails an area, room, or place which may be used as a detention for health facility and for examinations. The manager of safety and excise, officers of the police department, and employees of the department of safety and excise shall co-operate in the execution of such detention procedures as may be necessary, and shall assume custodial supervision of persons detained under the provisions of Section 735.1-2 and shall supply such personal restraints as may be necessary to effectuate the purposes thereof. (Sec. 2, Ord. 423, Series 1955)

.2-2. Police Department. Officers of the police department of the city and county shall furnish to the department of health and hospitals information pertinent to the enforcement of the provisions of Section 735.1. Police officers shall have authority to detain suspected persons in the categories enumerated in Section 735.1-1(1) for health purposes in jail in accordance with the procedure set forth in Section 735.1-2 for examination and treatment by the department of health and hospitals under the provisions of Sections 735.1-3 and .1-4. Police officers shall have authority to order suspected persons in the categories enumerated in Section 735.1-1(2) and in the categories enumerated in Section 735.1-1(1) who are not detained in jail to report to the department of health and hospitals for examination and treatment at the direction of the manager of health and hospitals or his authorized representative in accordance with the provisions of Section 735.1-5. They shall also have authority to order persons to report to the department of health and hospitals for examination and treatment, as aforesaid, who have been held for investigation of offenses of the types enumerated in Section 735.1-1(1) and who have been released without charges having been filed and similarly persons who have been acquitted of any such charges and other suspected persons who have been released on bond. (Sec. 2, Ord. 423, Series 1955)

.2-3. Violations. It shall be unlawful to refuse to submit to examination or treatment under an order as herein-above provided or to violate any order of detention or to refuse to obey any order requiring submittal to examination and treatment at the department of health and hospitals. (Sec. 2, Ord. 423, Series 1955)

LEWIS, Chief Judge

(concurring):

I concur but consider it appropriate to emphasize or reemphasize the limited posture of the case within which the issues are both presented to the court and determined by our decision.

This is not a medical practice case. As a consequence we do not consider and certainly do not determine that the giving of a curative drug for a venereal disease not diagnosed as existent is acceptable medical practice. Nor do we, in holding that the subject ordinance is neither unconstitutional on its face nor unconstitutionally applied to appellant, hold that the ordinance is constitutional in toto. A statute is not unconstitutional on its face if objectionable features are clearly severable or if its contained language can be reasonably interpreted to project a constitutionally accepted standard.

In the case at bar we are concerned • only with the self-imposed plight of a prostitute and the admitted occupational hazard of venereal disease to her and through her to the community. We do not hold that a vagrant is similarly situated nor are we required, at this time, to spell out the limitations, if any, that the word “suspicion” may have as a legal standard. Sufficient cause existed in this case for the authorities to consider appellant to be a probable health hazard to the community. ■


author: MULLIGAN, Circuit Judge:

text:
    Martin E. FERRAND, Petitioner-Appellant, v. Robert C. SEAMANS, Jr., Secretary of the Air Force, and Col. Lewis R. Barrett, Jr., Commanding Officer, Headquarters Air Reserve Personnel Center, Denver, Colorado, Respondents-Appellees.
    No. 95, Docket 73-1546.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 19, 1973.
    Decided Dec. 13, 1973.

      Joan Goldberg, New York City (Rabi-nowitz, Boudin & Standard, New York City), for petitioner-appellant.
    Joseph P. Marro, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the Southern District of New York, David P. Land, Asst. U. S. Atty., of counsel), for respondents-appellees.
    Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

The petitioner-appellant, Martin E. Ferrand, is a doctor of medicine and a Captain in the United States Air Force Reserve. His undergraduate work was at Spring Hill College, a Jesuit institution, in Mobile, Alabama, where he enrolled for a time in the Reserve Officer Training Corps (ROTC). He then attended Louisiana State University Graduate School for one year before entering its Medical School, from which he graduated in 1967. In November, 1967, he received a Commission as a First Lieutenant in United States Air Force Reserve pursuant to the Berry Plan. The Plan permitted Ferrand both exemption from the draft and postponement of active military duty until his medical studies were completed. Thus he was able to serve as a resident in psychiatry at Mt. Sinai Hospital from 1968 to 1970, and as a resident in child psychiatry from 1970 to 1972.

Ferrand, who had been promoted to Captain on June 3, 1970, was advised by the Air Force in September, 1971 that he would be called to active duty in 1972. In October, 1971, he wrote to the Air Force requesting information permitting him to apply for the status of conscientious objector. On December 2, 1971, Ferrand tendered his resignation by reason of conscientious objection and, on December 10, 1971, he made formal application for C.O. status. As will be more fully developed hereafter, Ferrand proceeded through the appropriate administrative channels until ultimately, on April 17, 1972, the Secretary of the Air Force declined to classify him as a conscientious objector within the meaning of A.F.R. 35-24, 32 C.F.R. § 888e. On August 11, 1972, a petition for a writ of habeas corpus, as well as a motion for a preliminary injunction staying petitioner’s orders, was filed .in the United States District Court, Southern District of New York. The matter was argued on October 12, 1972 before Hon. Sylvester J. Ryan, who rendered his decision on October 17, 1972, upholding the denial of the petitioner’s application for discharge as a conscientious objector. This appeal followed from the order entered in the Southern District Court on April 10,1973.

I

In his decision below, Judge Ryan found that Ferrand’s application for discharge as a conscientious objector after a deferment of four years put his sincerity in issue, and, further, that his approval of a police force for the protection of society created a basis in fact for the denial of the application.

The regulation which provides for the discharge of in-service conscientious objectors who are members of the Air Force is A.F.R. 35-24, 32 C.F.R. § 888e, which, in the pertinent section 2(a), requires that the applicant establish that he has “[a] firm, fixed, and sincere objection to participation in war in any form or the bearing of arms by reason of religious training and belief.”

Ferrand’s application for discharge sets forth in considerable detail his conscientious objection to war based, initially at least, upon his Roman Catholic educational background, but eventually upon his own individual religious and ethical tenets. He asserted that his conscientious objector beliefs did not finally crystallize until he was faced with the reality of active service. While he recognized that as a psychiatrist he would probably not be put in the position of having to kill a fellow human being, he stated that he could not in conscience treat a soldier attempting to carry out goals which he considered to be morally wrong. His application was supported by letters from his mother, his cousin who is a Roman Catholic priest, two doctors who are personal friends, as well as a psychiatrist, all of whom attested to the sincerity of his convictions as a conscientious objector to war.

Pursuant to regulation, Ferrand was interviewed by a Chaplain, Lt. H. I. Rat-cliffe, Jr., of the Naval Hospital at St. Albans, New York. The purpose of the interview was to determine his sincerity and the depth of his convictions. Chaplain Ratcliffe concluded:

Overall, I feel that Dr. Ferrand is quite sincere in his convictions and that he is indeed a conscientious objector to war and service in any organization that participates in the same.

He also considered that Ferrand would be an excellent candidate for alternate service in a public child care agency. Although Ferrand preferred to remain in the New York area, he expressed willingness to serve any place in the country, which the chaplain believed to be indicative of his integrity.

Ferrand was also interviewed by Lt. Col. J. Derascavage, who was the investigating officer. His findings were that Ferrand was opposed to all wars, and that he did not believe there was such a thing as a just war, particularly in the nuclear age. He stated that Ferrand’s “behavior and comments during the entire interview reflected deep sincerity in his beliefs that war and killing cannot be justified.” Based on Ferrand’s written statement and the personal interview, Col. Derascavage

highly recommend [ed] that his application for conscientious objector be approved. His replies to all questions reflected profound sincerity in his beliefs that war or killing cannot be justified, and I am convinced that it would be an injustice to force someone to serve a cause which he feels is completely wrong.

On February 14, 1972, Col. Mack E. Schwing, Staff Judge Advocate, also recommended that the application be approved since a prima facie case of sincerity was supported by the record and those persons who personally interviewed him. He found there was “no ‘basis in fact’ upon which to base denial.” Thereafter, on February 22, 1972, the Deputy Director of the Directorate of Personnel Actions also recommended approval. However, on February 25, 1972, the Surgeon General’s office recommended disapproval. Col. John R. Green, who made the recommendation, did not doubt Ferrand’s sincerity, noting that he had had a belief in non-violence since high school. He further found that his decision to apply for conscientious objector status was not crystallized until he was informed in September, 1971 that he was being called to active duty. His concluding paragraph is perhaps instructive:

He received the benefits of the Berry Plan in completing his residency training without fear of being drafted; therefore, under the contract he signed, he should be called to active duty to complete his obligation.

Despite this unfavorable recommendation, both the Command Chaplain, on March 1, 1972, and the Directorate of Personnel Program Actions, on March 15, 1972, recommended approval. The Command Chaplain, while commenting that a person who obtains a deferred status in order to pursue postgraduate studies is always suspect of insincerity, 'was nonetheless persuaded by the fact that the chaplain and the hearing officer who had interviewed Ferrand had found that he was sincere, and he felt compelled to concur in their judgment. The Directorate of Personnel Program Actions concluded:

Based on a thorough review of the file, it appears that his asserted beliefs are honestly and genuinely held. The officer’s personal history reveals views and actions strong enough to demonstrate that expediency or avoidance of military service is not the basis of his claim. We believe he meets the criteria for classification as a conscientious objector and recommend approval of his resignation.

The final administrative review within A.F.R. 35-24 consisted of the decision of the Secretary of the Air Force denying Ferrand C.O. status on April 17, 1972, based upon an adverse recommendation of the Air Force Personnel Board submitted on March 31, 1972. The concluding paragraph of that recommendation states:

[I]t is our considered opinion, notwithstanding the fact that of all the forwarding agencies and individuals only the Surgeon General has seen fit to recommend disapproval, that Captain Ferrand has not reasonably established that he is opposed to participation in war in any form or that his limited opposition, which can be properly viewed as resting on considerations of expediency, is held with the strength and devotion of traditional religious convictions. Accordingly, we recommend disapproval of his claim to CO status.

II

There is no question but that the standard of review to apply here is the narrow “no basis in fact” standard used on judicial review of Selective Service classifications. United States ex rel. Donham v. Resor, 436 F.2d 751, 753 (2d Cir. 1971); Hammond v. Lenfest, 398 F.2d 705, 716 (2d Cir. 1968). With respect to the question of expediency, even under this limited review, “[w]here the applicant has stated his beliefs with apparent sincerity and no adverse demeanor evidence has been introduced, the Conscientious Objection Review Board must predicate any finding of insincerity upon objective evidence affording a rational basis for the Board’s refusal to accept the validity of the applicant’s claims.” LoVallo v. Resor, 443 F.2d 1262, 1264 (2d Cir. 1971).

The principal basis here for the conclusion that Ferrand was insincere was the fact that he did not apply for C.O. status until he had completed his residency and had avoided Selective Service for a four-year period. While Ferrand’s late application may be the basis for some surmise or suspicion of his sincerity, this alone does not provide a basis in fact for the action taken. Dietrich v. Tarleton, 154 U.S.App.D.C. 47, 473 F.2d 177, 179 (1972); Arlen v. Laird, 345 F.Supp. 181, 185 (S.D.N.Y. 1972); see United States v. Gearey, 368 F.2d 144, 149-150 (2d Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L. Ed.2d 368 (1967). Moreover, great weight must be accorded to favorable observations and recommendations of sincerity submitted by officers who have, pursuant to regulation, personally interviewed a conscientious objector applicant. See United States ex rel. Donham v. Resor, supra, 436 F.2d at 754. It is most significant here that every officer who interviewed Ferrand attested to his sincerity, and all were obviously familiar with the timing of his application for C.O. status. We of course cannot subscribe to the position of the Surgeon General that a beneficiary of the Berry Plan who succeeds in escaping the draft should merely on that account be called to active duty under the terms of his contract. This would leave no room at all for in-service conscientious objection. The evidence in Ferrand’s record overwhelmingly displays his sincerity, and we find no basis in fact at ail to support the proposition that his application was provoked by expediency.

The finding below that a basis in fact exists because of Ferrand’s approval of the use of force in some limited circumstances is erroneous as a matter of law. Ferrand stated:

I am not opposed to a police force or a proper use of force by these men. Their function is to restrain the guilty; the army’s is to kill the “enemy.”

It is clear that the use of force to restrain wrongdoing does not preclude a conscientious objection toward war. United States v. Purvis, 403 F.2d 555, 563 (2d Cir. 1963). A fortiori, the Air Force determination that Ferrand is not conscientiously opposed to participation in war because he believes in the application of chemical and physical restraints upon patients must be rejected as a basis in fact. Ferrand admitted his willingness to restrain someone “who is to [sic] confused or irrational to talk with me,” and he explained that this “does not threaten lives, or make them or me less than human.” It is beyond cavil that his willingness to exert protective force is not at all tantamount to an admission that he could participate in some wars. United States v. St. Clair, 293 F.Supp. 337, 343-344 (E.D.N.Y. 1968).

In its discussion of Ferrand’s opposition to war, the Air Force Personnel Board referred to Ferrand’s purported belief in the concept of a just war. A reading of his statement in fact indicates his personal repudiation of that doctrine. He states:

I know that since the time of St. Augustine the Catholic Church has recognized the concept of a “just war.” But today many theologians now feel that such a concept is impossible, for in modern times the outcome would negate any value war may have for man.

He further cited Pope John XXIII’s encyclical letter Pacem in Terris, in which he stated that it was irrational today to believe that war is an apt means of vindicating violated rights. Obviously, whether or not Ferrand’s views are in accord with traditional religious tenets of the Roman Catholic Church is not germane. “If an individual deeply and sincerely holds beliefs that are purely ethical and moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, . such an individual is as much entitled to a ‘religious’ conscientious objector exemption under § 6(j) as someone who derives his conscientious opposition to war from traditional religious convictions.” Welsh v. United States, 398 U.S. 333, 340, 90 S.Ct. 1792, 1796, 26 L.Ed.2d 308 (1970).

We find the argument that petitioner’s objection is limited to nuclear encounters without basis in the record. While he does make reference to Pope John XXIII’s abhorrence of thermonuclear war, his own objection is not so limited. In his application for discharge Ferrand stated:

I believe that war is wrong. . . .
I believe that everyone should have the right to his own life. War deprives man of this fundamental right. It does this in many ways. I feel that it puts a man into a position that forces him to kill another person against his will.

A careful reading of the record here persuades us that the conclusion that Ferrand lacked sincerity was at least in part motivated by the reluctance of the Air Force to lose an officer who had received the obvious benefits of the Berry Plan. While this is understandable, it provides no “basis in fact” in view of the repeated findings of officers who had interviewed him, and most of those who reviewed his file, that he was entirely sincere. There is no basis in fact whatsoever for the finding that his objection to war was selective, and the statements relied upon evidencing his willingness to use force to restrain disturbed patients or his approval of police to protect society are legally unacceptable bases for the denial of C.O. status.

We therefore reverse and remand the ease to the district court with instructions to issue the writ.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert L. PARKMAN, Jr., Defendant-Appellant.
    No. 72-2139.
    United States Court of Appeals, Fifth Circuit.
    Nov. 15, 1973.
    Rehearing Denied Jan. 4, 1974.
    George M. Leppert, Hilary J. Gaudin, New Orleans, La., for defendant-appellant.
    Donald E. Walter, U. S. Atty., R. Perry Pringle, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before JONES, GODBOLD and INGRAHAM, Circuit Judges.
   PER CURIAM:

Robert L. Parkman was convicted by a jury of violating the mail fraud statute, 18 U.S.C. § 1341, in connection with a plan to defraud various insurance companies. “The Louisiana-wide get-rich-quick scheme involved the staging of fraudulent automobile accidents for the purpose of creating false personal injury claims. These claims would be submitted to the insurance carriers for the respective vehicles involved in the wrecks with the aid and contrivance of certain physicians and lawyers.” Parkman was one of the physicians. His violation of the statute stems from the use of the mails to transmit fraudulent medical bills to the insurance companies.

We have examined each of the specifications of error raised by the defendant, and none provide a basis for’ reversing his conviction. The judgment is accordingly affirmed.

      . This statute provides:
      “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

      . United States v. Perez, 489 F.2d 51, at 55 (5th Cir., 1973). In Perez Chief Judge Brown explained in some detail the inner workings of this scheme, and we refer the reader to that opinion for additional information. The defendants in Perez were indicted and tried in the Eastern District of Louisiana, while Parkman was indicted and tried in the Western District. Although the scheme was statewide, Parkman’s activities were confined to the Bossier City-Shreveport area.

      . See Local Rule 21: NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966.


text:
    NATIONAL INSURANCE UNDERWRITERS, INC., Plaintiff-Appellant, v. KING CRAFT CUSTOM PRODUCTS, INC., et al., Defendants-Appellees, Carolyn A. Johnson, as Executrix of the Estate of Jay Taylor Johnson, Deceased, Defendant-Appellee.
    No. 73-2670
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 8, 1974.
    Rehearing Denied March 13, 1974.
    Gary P. Smith, Birmingham, Ala., Paul W. Engstrom, Gary W. Wester-berg, Chicago, 111., for plaintiff-appellant.
    Morris K. Sirote, Birmingham, Ala., for Carolyn Johnson.
    Stanley D. Bynum, Birmingham, Ala., for King Craft and Nancy L. King.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y. et al., 5th Cir. 1970, 431 F.2d 409, Part. I.

   PER CURIAM:

National Insurance Underwriters brought this declaratory judgment action against the estate of its insured on a policy of aircraft liability and hull insurance. The parties submitted certain issues of policy interpretation to the court below on a limited stipulation of facts, reserving all other fact conflicts for jury resolution. Finding the issues submitted to be controlling, the court entered judgment declaring the insurer liable under both the liability and hull coverage portions of the policy. We affirm on the basis of the analysis and reasoning set out in the memorandum opinion of the district court published at 368 F. Supp. 476 (N.D.Ala.1973).

Affirmed.