author: BOREMAN, Senior Circuit Judge:

text:
    Halcy R. MAYNARD and Muriel Maynard, Appellants, v. GENERAL ELECTRIC COMPANY, a corporation, Appellee.
    No. 73-1010.
    United States Court of Appeals, Fourth Circuit.
    Argued May 7, 1973.
    Decided Oct. 30, 1973.
    James D. Nash, Jr., Fairmont, W. Va. (Greene, Ketchum & Baker, Huntington, W. Va., W. Dale Greene and Preiser & Wilson, Charleston, W. Va., on brief), for appellants.
    Richard J. Bolen, Huntington, W. Va. (William C. Beatty and Huddleston, Bolen, Beatty, Porter & Copen, Huntington, W. Va., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges.
   BOREMAN, Senior Circuit Judge:

In 1967, McNally Pittsburgh Manufacturing Company purchased from defendant below, General Electric Company, a “motor control center” for use in connection with the operation of a coal mine. The parties arranged with the O. K. Trucking Company to ship the motor control center from Cincinnati, Ohio, to Hamilton, Virginia, via O. K.’s Huntington, West Virginia, terminal.

On February 1, 1968, plaintiff below, Haley Maynard (hereafter appellant or Maynard), who was then employed by the O. K. Trucking Company at its Huntington, West Virginia, terminal, was assisting in moving the motor control center by means of a forklift truck. During this maneuver the control center fell from the forklift, severely injuring appellant. It is alleged that the shipping carton containing the control center, which was designed and constructed by General Electric, was not suitable for shipping and that the faulty design caused it to become overbalanced and slip from the forklift truck.

On November 9, 1970, Maynard instituted a civil action against General Electric Company in the Southern District of New York, the corporate residence of General Electric. Pursuant to 28 U.S.C. § 1404(a), the action was transferred to the Southern District of West Virginia. The parties are in full agreement that West Virginia law governs with respect to the question of liability and the appropriate statutes of limitation to be applied to the theories of liability asserted in the complaint.

The complaint alleged that General Electric was liable to Maynard for the injuries sustained in the accident related above under the theories of (a) negligence, (b) strict liability in tort, (c) express warranty, and (d) implied warranty. It has been conceded before both the district court and this court that any cause of action arising under the theories of (a) negligence or (b) strict liability in tort, are barred by West Virginia’s two-year statute of limitations applicable to actions for damages for personal injuries.

General Electric moved for a summary judgment with respect to the two remaining theories of liability, interposing the defenses of lack of privity, the statute of limitations, and disclaimer of warranty. The district court, citing Uniform Commercial Code § 2-318 [W. Va. Code, ch. 46, art. 2, § 318 (Michie 1966)], in a very thorough and well-reasoned opinion, D.C., 350 F.Supp. 949, held that the lack of privity between Maynard and General Electric would defeat any breach of warranty claim and entered summary judgment in favor of General Electric. The court noted that “the question of whether or not lack of privity will defeat a breach of warranty claim under West Virginia law has not yet been decided by West Virginia’s highest court,” but “predicted” West Virginia would adopt a conservative approach with respect to warranty-based products liability law and would require a showing of privity as an element of an action for breach of warranty.

On appeal Maynard seeks to have the summary judgment set aside. He contends that the district court’s conclusion that recovery was barred by a lack of privity between himself and General Electric is erroneous. He alleges that his employer, O. K. Trucking Company, acted as the bailee of General Electric and that General Electric impliedly warranted that the shipping carton containing the motor control center was safe for the purpose of shipping the goods. We note the fact that this theory of privity was not specifically argued before the district judge; the elements of this relationship do, however, appear on the face of the complaint. The Federal Rules of Civil Procedure have abolished the technical forms of pleading, Fed.R.Civ.P. 8(e)(1), and the pleadings must be construed to do substantial justice, Fed.R.Civ.P. 8(f). Hence, in reviewing the entry of a summáry judgment, we must consider the record in the light most favorable to the party opposing the motion, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), and draw all possible inferences favorable to the party opposing the motion, Van Horn v. Gulf Atlantic Towing Corp., 388 F.2d 636, 637 (4 Cir. 1968). While we will not consider new causes of action raised for the first time on appeal, any theory “plainly encompassed by the pleadings and . . . clearly a ‘discernible circumstance’ from the record before the court” should be considered on appeal. Semaan v. Mumford, 118 U.S.App.D.C. 282, 335 F.2d 704, 706, n. 7 (1964). We further note that “it is proper for this court to affirm a summary judgment on any ground that appears from the record, whether or not the trial court relied on it.” Helena Rubinstein, Inc. v. Bau, 433 F.2d 1021, 1023 (9 Cir. 1970).

Maynard asserts that by basing his action on an implied contract theory he avoids the Uniform Commercial Code privity question that concerned the district court and also avoids the two-year personal injury statute of limitations which would bar his action. He contends that General Electric impliedly warranted that the shipping crate was fit for its intended use. “An implied warranty is an implied contract.” Hoge v. Ward, 109 W.Va. 515, 522, 155 S.E. 644, 647 (1930). West Virginia Code ch. 55, art. 2, § 6 (Michie 1966), provides a five-year statute of limitations for breach of an implied contract.

The question is, as we view this case on appeal, what statute of limitations governs a cause of action for personal injuries when the action is based on a breach of implied warranty. The view of .the majority of the courts which have considered the question appears to be that an action to recover for personal injuries is, in essence, a personal injury action and, regardless of whether it is based upon an alleged breach of implied warranty or is based upon an alleged tort, the limitations statute applicable to actions for personal injuries is controlling. See Annot., 37 A.L.R.2d 703 (1954). The issue raised here by appellant relieves us of the burden of “predicting” what another court would do; the West Virginia Supreme Court of Appeals follows the majority view as we demonstrate below.

The first West Virginia ease dealing with the application of the personal action statute of limitations and the implied contract statute of limitations was Kuhn v. Brownfield, 34 W.Va. 252, 12 S.E. 519 (1890). The court stated that where, from a given state of facts, the law raises a legal obligation, and there is a breach of that obligation with consequential damages, though assumpsit may be maintainable upon a promise implied by law, still an action on the case is the more proper form of action. In conclusion the court held that:

“The action, though connected with an implied contract, is for a tort or wrong resulting in bodily suffering and injury, . . . and is thus limited to one year.” [The then existing statute of limitations for actions for personal injuries.] 34 W.Va. at 260, 12 S.E. at 522 (emphasis added).

Probably the most definitive statement by the West Virginia court as to which statute of limitations is applicable was made in Jones v. Jones, 133 W.Va. 306, 308, 58 S.E.2d 857, 858 (1949).

“There are certain uniform principles applied to statutes of limitation that should guide their application. Outstanding among these is that periods vary according to the nature of the right of action, in this jurisdiction, as in most, distinguishing between property rights and purely personal rights such as slander, alienation of affections, personal injury, et cetera.” (Emphasis added.)

The court went on to cite Birmingham v. Chesapeake & Ohio Railway Co., 98 Va. 548, 37 S.E. 17 (1900), as a case that would clarify the distinction between property and personal rights and what statute of limitations was applicable. In Birmingham the court characterized the distinction in succinct language.

“The limitation is not determined by the form of action, but by its object. If the thing complained of is an injury to the person, the limitation in as-sumpsit is the same as if the action were in form ex delicto. ‘Whenever the injury is merely personal, whether resulting from breach of contract [breach of warranty as asserted in this case] or from tort, the maxim, “Actio personalis moritur cum persona,” prevails.’
“The object of the suit at bar being to recover damages for personal injuries alleged to have been sustained by the plaintiff, the limitation in tort actions is applicable.” 98 Va. at 551, 37 S.E. at 17 (citation omitted).

It is clear that the West Virginia court has distinguished property rights from purely personal rights such as personal injuries. West Virginia Code ch. 55, art. 2, § 12 (Michie 1966), the present statute of limitation applicable to personal actions, is not limited to actions in tort but rather applies to all actions seeking damages for personal injuries:

“Every personal action for which no limitation is otherwise prescribed shall be brought . . . within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries . . ."

See 75 W.Va.L.Rev. 201 (1972); 64 W. Va.L.Rev. 412 (1962).

Appellant insists that the two-year statute of limitations does not apply and that his cause of action is not barred. He cites, Howard v. United Fuel Gas Company, 248 F.Supp. 527 (S.D.W.Va. 1965) (applying West Virginia law) in support of that claim. There it was alleged that a gas pipe was improperly installed between 1953 and 1955 which resulted in an explosion and personal injuries to the plaintiff in 1963. The court noted, in passing, that the statute of limitations would bar any recovery on a warranty theory since the limitations period ran from the time of the breach. The court indicated that the five-year limitation period pertaining to actions on contract would be applicable rather than the two-year limitation period pertaining to actions for personal injuries but that statement was mere dictum. The ease relied on by the court in Howard was Hoge v. Ward, 109 W.Va. 515, 155 S.E. 644 (1930). Hoge involved a suit in assumpsit on a note for breach of an implied warranty. The court there held that an implied warranty is an implied contract and that a suit must proceed in assumpsit rather than tort. Id. at 647. We find no authority in Hoge for the proposition that an action for personal injuries may be excluded from the two-year statute of limitations pertaining to “damages for personal injuries” merely because those injuries arise from a wrong that also breaches an implied warranty.

West Virginia’s two-year statute of limitations of personal injury actions is applicable to appellant’s breach of implied warranty or contract theory. His cause of action accrued on February 1, 1968. This action was commenced on November 9, 1970, more than two and one-half years later. West Virginia law compels us to conclude that appellant’s claim for personal injuries, even under an implied warranty or contract theory, is barred by the two-year statute of limitations.

Maynard did not pursue his express warranty theory on appeal. We note, however, that actions based upon breach of express warranties or contracts are limited by West Virginia Code ch. 55, art. 2, § 6 (Michie 1966), the same statute of limitation of actions claiming breach of implied warranties. The eases and statutes cited above would be equally applicable and the result reached would be the same if Maynard had relied upon the breach of express warranty theory.

The judgment below will be

Affirmed.


source: Caselaw Access Project

author: DONALD RUSSELL, Circuit Judge:

license: Public Domain

text:
    Irene ALVARADO, Reg. 17513-170, et al., Appellants, v. Virginia McLAUGHLIN, Warden, Federal Reformatory for Women, Alderson, West Virginia, et al., Appellees.
    No. 73-1111.
    United States Court of Appeals, Fourth Circuit.
    Argued July 18, 1973.
    Decided Oct. 23, 1973.

      Wilfred J. Ritz, Lexington, Va. (Richard J. Bolen, Noel P. Copen, Huddles-ton, Bolen, Beatty, Porter & Copen, Huntington, W. Va., and Fred M. Vinson, Jr., Washington, D. C., on brief), for appellants.
    John A. Field, III, U. S. Atty., for ap-pellees.
    Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

Section 7237(d), 26 U.S.C., provided, inter alia, that a convicted narcotic law offender was ineligible for parole consideration. That section, however, was repealed as a part of the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, effective May 1, 1971. Under this Act, persons convicted of, narcotic law violations were entitled to the same parole consideration as other offenders had under the general parole provision set forth in Section 4202, 18 U.S.C. The Act included, though, a “savings” provision to the effect that, “[P]rosecutions for any violation of law occurring prior to the effective date of section 1101 * * * * shall not be affected by the repeals or amendments made by such section * * * or abated by reason thereof.” The Board of Parole takes the position that, by virtue of this “savings” provision in the Act as well as the general “savings” statute, any federal prisoner convicted of a narcotic law offense committed prior to May 1, 1971, does not qualify for administrative parole consideration under the terms of the general parole statute. The petitioners, all federal prisoners convicted and sentenced on account of a narcotic law offense committed prior to May 1, 1971, filed this declaratory action to establish their eligibility for administrative parole consideration under Section 4202. The District Court, 355 F.Supp. 404, found that they did not qualify and dismissed their claim for relief. The petitioners have appealed. We reverse.

The contention of the Board, if sustained, would mean that federal prisoners, convicted of the same offense, would, as a matter of law, be treated differently in connection with the service of their sentences dependent upon whether their offense occurred before or after May 1, 1971. This contention is predicated on what the Board conceived to have been Congressional intent in enacting the new Act. Congressional intent to achieve such an irrational and manifest discrimination in treatment between prisoners convicted of the same offense, so inconsistent with fundamental fairness, should not be assumed, unless compelled by clearly expressed legislative purpose. We find no such expression of legislative intent in the Act. To the contrary, we are of the opinion that the language of the two “savings” provisions, relied on by the Board for its ruling, is plainly inapplicable as a bar to the rights of the petitioners under Section 4202 and that the position taken by the Board is at variance with the broad rehabilitative purposes of the Act itself.

The “savings” provision incorporated in the Comprehensive Drug Abuse Prevention and Control Act of 1970 [i. e., Section 1103(a)] was intended merely to preserve the right of the Government to prosecute offenders whose offense occurred before the effective date of the new Act but had not been theretofore prosecuted. The key word in the “savings” provision is “prosecution”. That term fixed the reach of the provision. The grant of parole, as authorized under Section 4202 is a part of an administrative proceeding, conducted not by the Court but by an administrative body, and conducted “long after sentence has been entered and the prosecution terminated.” Bradley v. United States (1973) 410 U.S. 605, 611, n. 6, 93 S.Ct. 1151, 1156, 35 L.Ed.2d 528. It “in no way affects the prosecution of the case,” United States v. Stephens (9th Cir. 1971) 449 F.2d 103, 105, and is in no respect a part of the “prosecution”. Section 1103(a), confined as it is specifically to the concept of “prosecution”, presents thus no bar to the right of the petitioners to qualify for consideration for parole under Section 4202 and cannot justify the arrant discrimination inherent in the position taken by the Board.

Neither does the general “savings” statute, Section 109, 1 U.S.C., foreclose the petitioners from a right to be considered for parole. That statute, “intended to obviate the common law’s technical abatement of a prosecution by the repeal of the statute under which it proceeded,” provides that, “[T]he repeal of any statute shall not have the effect to release or extinguish any penalty * * incurred under such statute, unless the repealing Act shall so expressly provide * * *.” It seems clear that the term “penalty” as used in this statute was intended to cover the same concept as the term “prosecution” in Section 1103(a) and is to be given no broader meaning. See United States v. McGarr (7th Cir. 1972) 461 F.2d 1, 4-5. “Penalty” in the statute refers to and embraces simply the sentence imposed by the Court. That sentence is in no way voided or “abated” by the subsequent grant of administrative parole. Parole is not “a suspension of sentence”, Jenkins v. Madigan (7th Cir. 1954) 211 F.2d 904, 906, cert, denied 348 U.S. 842, 75 S.Ct. 63, 99 L.Ed. 664; it does not remove or make invalid the sentence imposed, Marrero v. Warden, supra; it is still “a form of custody”, Padilla v. Lynch (9th Cir. 1968) 398 F.2d 481, 482, and “is in legal effect imprisonment”, Anderson v. Corall (1923) 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247; in summary, it “is not a release of the prisoner from all disciplinary restraint but is rather merely ‘an extension of the prison walls’; and the prisoner while on parole remains ‘in the legal custody and under the control of’ the Parole Board,” United States v. Nicholson (4th Cir. 1935) 78 F.2d 468, 469-470, cert, denied 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405. So regarded, administrative parole does “not have the effect to release or extinguish any penalty” imposed by the sentence of the Court and is accordingly not within the terms of Section 109.

“The granting and revocation of parole are matters traditionally handled by administrative officers.”

Not only is there nothing in the law relied on by the Board to sustain this denial of eligibility for parole consideration to the petitioners but also, the Congressional intent in enacting the Comprehensive Act that repealed Section 7237(d) shows, to our mind, an unmistakable legislative purpose contrary to that contended for by the Board. It is obvious that Congress, in removing the ban on administrative parole for narcotic law offenders in the Comprehensive Act of 1970, was expressing a legislative judgment that an intelligent program of rehabilitation, in which administrative parole should be an available tool, was the preferred method of dealing with such offenders. If that was the Congressional purpose, it is difficult to find any basis in that Act, much less in reason or in fairness, for treating differently prisoners whose narcotic law offenses took place before May 1, 1971 from those whose offenses occurred after that date. We will not assume that Congress intended any such irrational purpose or intent.

Compounding the discrimination that the Board has made between offenders sentenced before and after May 1, 1971 is the incongruous position taken by the Board in eases arising in the Ninth and Seventh Circuits, where the Courts have found that the Board does have parole authority, and those arising in other Circuits where the Courts have not passed on the issue. In the case of any prisoner in the Ninth and Seventh Circuits the Board finds parole eligibility; in all other Circuits it denies eligibility. Such a disparity in treatment is intolerable. If the Board acquiesces in the decisions made by the Ninth and Seventh Circuits, it should in common justice extend the rights thus acquiesced in to all prisoners under its control. Our decision, so far as prisoners in this Circuit are concerned, assures to them equality of treatment with prisoners in the Ninth and Seventh Circuits. We assume the Board will extend the same rights to prisoners from the Third and District of . Columbia Circuits in view of the decisions in United States v. Marshal, 13 Cr.L. 2547 and Marrero v. Warden, supra, 483 F.2d 656.

We recognize, as the able District Judge observed, that there are decisions indicating a contrary conclusion to that expressed by us. A majority of the Courts that have examined the question have, however, decided as we have and we find their reasoning convincing.

This proceeding is accordingly remanded to the District Court with direction to enter a declaratory judgment that the petitioners are eligible for consideration for parole on the terms and subject to the conditions set forth in Section 4202,18 U.S.C.

      . 21 U.S.C. 801 et seq.

      . This is the section of the Act which repealed Section 7237(d).

      . Note under Section 171, 21 U.S.C.

      . Section 109, 1 U.S.C.

      . Pub.L. 91-513, 84 Stat. 1236, 21 U.S.C. 801 et seq.

      . See, also, Morrissey v. Brewer (1972) 408 U.S. 471, 486, 92 S.Ct. 2593, 2603, 33 L.Ed. 2d 484:

      . Marrero v. Warden (3d Cir. 1973) 483 F. 2d 656.

      . The right of the judge to provide for parole as a part of his sentence is quite different from the “availability of parole under the general parole statute”; the reason is that one is a part of the sentence or “penalty”, the other is an administrative action “made long after sentence has been entered and the prosecution terminated.” See, United States v. Huguet (2d Cir. 1973) 481 F.2d 888, 891.

      . Many of these cases dealt specifically with the power to sentence under the old Act, not to the subsequent, administrative effectuation of that sentence later. See United States v. Fiore (2d Cir. 1972) 467 F.2d 86, 88-89, cert. den. 410 U.S. 984, 93 S.Ct. 1510, 36 L.Ed.2d 181; United States v. De Simone (2d Cir. 1972) 468 F.2d 1196, 1198-1199, cert. den. 406 U.S. 959, 93 S.Ct. 1499, 36 L. Ed.2d 188; Page v. United States (10th Cir. 1972) 459 F.2d 467, 468, cert. den. 410 U.S. 989, 93 S.Ct. 1506, 36 D.Ed.2d 187. Whether Fiore and De Simone remain the law of the Second Circuit is doubtful in view of the decision of that Circuit in United States v. Huguet (2d Cir. decided July 9, 1973), 481 F.2d 888.

      . See United States v. Marshal, supra; Marrero v. Warden, supra; United States v. McGarr, supra; United States v. Stephens, supra; United States v. Robinson (7th Cir. 1972) 466 F.2d 780, 782; United States v. Pratter (7th Cir. 1972) 465 F.2d 227, 233.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Olga VALDIVIESO and Oscar Valdes, Defendants-Appellants.
    No. 73-2359
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 2, 1973.

      Albert Carricarte, Miguel A. Suarez, Miami, Fla., for defendants-appellants.
    Robert W. Rust, U. S. Atty., Samuel Shines, U. S. Dept, of Justice, Miami, Fla., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part. I.

   PER CURIAM:

Oscar Valdes and his daughter, Olga Valdivieso, appeal their jury verdicts of conviction on four counts of conspiring to violate federal narcotics laws and committing overt acts of knowingly and intentionally possessing and distributing 20 grams of cocaine in violation of 21 U.S.C.A. § 841(a)(1). Appeal is based on claims of insufficiency of the evidence, improper admittance of the cocaine into evidence, and denial of due process based on Mr. Valdes’ inability to speak English. We find no merit to these claims and affirm.

The appellants were convicted with Olga’s husband, Ismael Valdivieso, and a fourth co-defendant, Hermes Ramierez-Medina. The convictions were based on sales of cocaine to an undercover federal narcotics agent, Gerado Vasquez. Ismael Valdivieso was separately charged and found guilty of selling Agent Gera-do 103.5 grams of cocaine on January 3, 1973. Agent Gerado testified that he thereafter went to the Valdivieso apartment five times in the months of January and February to arrange for additional sales. During his visits to the Valdivieso apartment, Gerado met both appellants and on February 13, 1973 he negotiated with and received from the appellants 20 grams of cocaine. The cocaine was entered into, evidence as Government-Exhibit No. 2 without any objection on the part of the appellants.

The jury accepted the testimony of Agent Gerado and determined that there was sufficient evidence on which to find the appellants guilty as charged. In reviewing a jury finding on appeal, we must consider the evidence in a light most favorable to the Government, and in this case we conclude that there was sufficient evidence to support the jury verdict. Glasser v. United States, 1940, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680.

As to the admission of the cocaine as Government-Exhibit No. 2, the appellants’ failure to raise a timely objection proves fatal to their challenge. When no objection is made at trial, we may only reverse on a finding of plain error, Rule 52(b) Fed.R.Crim.Pro., which the record does not show to exist. Pinkney v. United States, 5 Cir., 1967, 380 F.2d 882, 885-886, cert, denied, 1968, 390 U.S. 908, 88 S.Ct. 831, 19 L.Ed.2d 876; Sykes v. United States, 5 Cir., 1966, 373 F.2d 607, cert, denied, 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138.

We find no denial of due process in Mr. Valdes’ claim that he could not understand the proceedings or assist his attorney due to his inability to speak English. Mr. Valdes had the aid of an interpreter prior to and during the trial. It seems evident that Mr. Valdes was properly provided with means through which he could adequately understand and participate in the proceedings.

Affirmed.


text:
    Juanita WILLIAMS, Plaintiff-Appellee, v. Police Officer GOULD and City of Los Angeles, Defendants-Appellants.
    No. 71-1077.
    United States Court of Appeals, Ninth Circuit.
    Oct. 17, 1973.
    Rehearing and Rehearing In Banc Denied Dec. 11, 1973.

      Burk M. Wiedner, Deputy City Atty. (appeared), Roger Arnebergh, City Atty., George J. Franscell, Asst. City Atty., Thomas J. Feeley, Dennis M. O’Rourke, Deputy City Attys., Los An-geles, Cal., for defendants-appellants.
    David A. Binder (appeared), Boyd S. Lemon, Los Angeles, Cal., for plaintiff-appellee.
    Before BROWNING and GOODWIN, Circuit Judges, and JAMESON, District Judge.

       Honorable William J. Jameson, United States District Judge, District of Montana, sitting by designation.

   PER CURIAM:

Juanita Williams sued a Los Angeles police officer, Ronald Gould, for damages under 42 U.S.C. § 1983, alleging an unconstitutional invasion of her apartment. Officer Gould defended on the ground that he had entered the apartment in the good-faith execution of his duties as a police officer to arrest a felon reasonably believed to be within. The trial court directed a verdict against Officer Gould. The court reasoned as follows: (1) If the entry violated Miss Williams’ constitutional rights, good faith was not a defense under this court’s ruling in Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962); and (2) the entry did violate Miss Williams’ constitutional rights because Officer Gould should have secured a warrant before entering.

Good faith is a defense to liability for damages in a suit under section 1983 — at least if, and to the extent that, it would be a defense “[u]nder the prevailing view in this country” in common-law actions based on the parallel tort. Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967); see Handverger v. Harvill, 479 F.2d 513, 516 (9th Cir. 1973); Dodd v. Spokane County, Washington, 393 F.2d 330, 335 (9th Cir. 1968); Notaras v. Ramon, 383 F.2d 403 (9th Cir. 1967). See also Joseph v. Rowlen, 402 F.2d 367, 370 (7th Cir. 1968); Whirl v. Kern, 407 F.2d 781, 788-791 (5th Cir. 1968) ; Eslinger v. Thomas, 476 F.2d 225, 229 (4th Cir. 1973). If Cohen v. Norris were to the contrary, its authority could not have survived Pierson v. Ray; but, in any event, it is not. As the Supreme Court pointed out in Pierson v. Ray, a holding that specific intent is not an essential element of a cause of action under section 1983 does not negate the availability of a “good faith” defense, 386 U.S. at 556-557, 87 S.Ct. 1213.

In common-law actions for warrantless entry to effect an arrest, the prevailing tort law view in this country recognizes as a defense a good faith and reasonable belief that there is a felon on the premises. Restatement (Second) of Torts § 204 (1965); 1 F. Harper & F. James, The Law of Torts § 1.19, at 54-56 (1956). Such a defense is therefore available in the corresponding damage action under section 1983. Rodriquez v. Jones, 473 F.2d 599, 605 (5th Cir. 1973).

We comment on the merits of the defense in only one respect. Because the defense rests on good faith and reasonable belief, Officer Gould need not, in order to establish the defense, prevail on the legal position that a warrant is not required to enter a home to arrest a felon. Whether a warrant is required in such a situation is an open constitutional issue. It divides the Supreme Court. See Coolidge v. New Hampshire, 403 U.S. 443, 476-482, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1972). Either view as to its ultimate resolution might be entertained reasonably and in good faith. Moreover, warrantless entry of a dwelling by a police officer to effect an arrest is apparently authorized under certain circumstances by a California statute (Cal.Penal Code § 844), upon which Officer Gould may well have relied reasonably and in good faith. See Pierson v. Ray, supra, 386 U.S. at 557, 87 S.Ct. 1213.

Reversed and remanded for further proceedings.

      . The trial court’s premise that if plaintiff’s constitutional rights have been violated, the “good faith” defense is not available deprives this defense of any significance, since if plaintiff’s constitutional rights have not been violated, she has no cause of action under the Civil Rights Act.


text:
    James DENENEA, Plaintiff-Appellant, v. SHIPPING ENTERPRISE CORPORATION et al., Defendants-Appellees.
    No. 73-2177
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 31, 1973.
    James A. Wysocki, J. Stuart Douglass, New Orleans, La., for plaintiff-appellant.
    John R. Peters, Jr., New Orleans, La., for Todd Shipyards, Con. Mariner Inc. and Travelers Ins.
    Paul A. Nalty, New Orleans, La., for Pacific Steamship and S/S Viking.
    Before BELL, GODBOLD and GEE, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   PER CURIAM:

At the time of his accident, appellant was chief electrician for a ship repairer. He was injured when steps providing access to the S.S. Wingless Victory collapsed under his weight. The district court held that the defective steps rendered the ship unseaworthy, and assessed appellant’s damages for lost earnings and pain and suffering at $3,500. See Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. This sum was reduced by 60 per cent to an award of $1,400, by application of the admiralty doctrine of comparative fault. Appellant here objects to the assessment of damages and to the 60 per cent reduction for his fault.

Appellant’s principal contention is that because the accident resulted from violation of a safety regulation, Safety and Health Regulations for Ship Repairing, 29 C.F.R. 1508.44(a)(9), it is inappropriate to apply the comparative fault doctrine. This contention is in clear conflict with Fifth Circuit decisions. See Denny v. Jugoslavenska Oceanska Plov., Kator Yugoslavia, 1972, 455 F.2d 1277, 1278; Phipps v. S.S. Santa Maria, 1969, 418 F.2d 615; Manning v. M/V Sea Road, 1969, 417 F.2d 603, 612. Cf. Neal v. Saga Shipping Co., 1969, 407 F.2d 481, 485-486. Further, appellant did not raise this issue in the court below.

As for the assessment of damages at $3,500, we conclude that the findings of the district court are not clearly erroneous. Appellant continued to work normally for two weeks after the accident, although he was experiencing some pain. He was then diagnosed as having suffered a hernia, and missed about six weeks of work for surgical repair and normal post operative recovery. A year later he developed a hydrocele which required simple surgery and a short period of recuperation. The district court’s conclusion that the accident did not cause the hydrocele is amply supported by medical evidence.

Likewise, we find that the district court was not clearly erroneous in determining that appellant was 60 per cent at fault. While appellant did not place the steps at the end of the ship’s gangplank, he was aware that they were there and that they were defective. Further, there is evidence which supports the conclusion that appellant had negligently breached his duty as an acting foreman to assure that the defective steps were replaced.

The judgment is therefore affirmed.


author: PER CURIAM.

text:
    Rudolph Melvin CRUZ, Appellant, v. Lyman CARDWELL, Sheriff of Taney County, Missouri, Appellee.
    No. 73-1790.
    United States Court of Appeals, Eighth Circuit.
    Oct. 31, 1973.

      Rudolph Melvin Cruz filed motion for leave to proceed on appeal in forma pau-peris and affidavit pro se.
    Appellee was not represented by counsel in this Court.
    Before MATTHES, Senior Circuit Judge and STEPHENSON and WEBSTER, Circuit Judges.
   PER CURIAM.

This matter was originally assigned to an Administrative Panel of this court to consider appellant’s motion for leave to proceed on appeal in forma pauperis from the order of the district court dismissing his civil rights complaint, and for appointment of counsel. Seeking monetary damages and injunctive relief pursuant to 42 U.S.C. § 1983, appellant alleged in his complaint that respondent as Sheriff of Taney County, Missouri seized $206.00 from the person of the appellant in connection with his arrest and subsequently failed and refused to return the money to appellant upon his transfer to the Missouri Department of Corrections on or about June 14, 1971.

Respondent had previously filed a similar complaint which was dismissed April 16, 1973. Rudolph M. Cruz v. Lyman Cardwell, Sheriff of Taney County, Missouri, W.D.Mo., So.Div., No. 73-CV-165-S. In dismissing that complaint, the trial judge held that plaintiff had failed to allege facts showing a deprivation of a right, privilege or immunity secured to him by the Constitution and laws of the United States, citing Pugliano v. Staziak, 231 F.Supp. 347, 349 (W.D.Pa.1964). That case simply held that allegations in a civil rights complaint must allege highly specific facts and must not state bare conclusory allegations without support in facts alleged. In his complaint, Cruz had incorporated copies of correspondence with respondent in which respondent in effect stated that he had not found a means to pay appellant his money. The trial court suggested that there were adequate statutory procedures in Missouri to care for the estates of convicts. 25 V.A.M.S. §§ 460.010 to 460.240 (1956). The court further held that since respondent was willing to return the money, no constitutional right was seen to have been violated.

In this case, appellant has realleged in greater detail the facts upon which his action is based, including an allegation that respondent failed to follow customary procedures in not transferring the personal property of appellant at the time he was transferred to the state correctional institution. In his order dismissing the Complaint on August 16, 1973, the trial judge reasserted his lack of jurisdiction for reasons stated in his earlier order.

We conclude from our examination of the complaint in this case that it states a claim for relief under 42 U. S.C. § 1983. See Wilwording v. Swen-son, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed. 2d 418 (1971). It is now settled law that jurisdiction in civil rights actions does not depend upon the presence of personal as distinguished from property rights. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L. Ed.2d 424 (1972); Rosen v. Hursh, 464 F.2d 731, 734 (8th Cir. 1972).

A complaint alleging violations of civil rights should not be dismissed unless it appears to a certainty that the plaintiff is entitled to no relief under any state of the facts which could be proved in support of his claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957). Pro se complaints are held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Jones v. Lockhart, 484 F.2d 1192 (8th Cir. 1973). In this case, we do not view the correspondence from Sheriff Cardwell, incorporated in the complaint, as facially rebutting other factual allegations that the sheriff, under color of state law, deprived the appellant of his property in violation of his constitutional rights. It may be that upon the development of a more complete record, there will be a basis for a summary determination. See Lewis v. Chrysler Motors Corp., 456 F.2d 605 (8th Cir. 1972). Dismissal on the pleadings, however, was premature.

Appellant’s motion for leave to appeal in forma pauperis is granted. Appellant’s motion for appointment of counsel is denied at this time. The order of the District Court dismissing the complaint is reversed, and the cause is remanded for further proceedings.


author: BRIGHT, Circuit Judge.

text:
    Harry LIKE et al., Appellants, v. Proctor CARTER et al., Appellees.
    No. 73-1091.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1973.
    Decided Nov. 1, 1973.
    Harold A. Sarner, St. Louis, Mo., for appellants.
    William J. Raack, St. Louis, Mo., for appellees, Carter, Hill & Lynes.
    Kermit W. Almstedt, Asst. Atty. Gen., Jefferson City, Mo., for appellees, Robinson and Vaughn.

      Before GIBSON and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       Eastern District of Michigan, sitting by designation.

   BRIGHT, Circuit Judge.

In this sequel to the remand which we originally ordered in Like v. Carter, 448 F.2d 798 (8th Cir. 1971), Harry Like, for himself and similarly situated public assistance applicants, seeks the payment of welfare benefits on a retroactive basis to qualified applicants whose applications had not been promptly processed and paid as provided by law. He also requested injunctive relief against Missouri state officials who allegedly failed to process welfare claims within 30 days of filing as required by provisions and regulations of the Social Security Act. District Court Judge Meredith declined to afford appellant these forms of relief for reasons set out in an opinion reported as Like v. Carter, 353 F.Supp. 405 (E,D.Mo.1973). This appeal followed.

The underlying facts and circumstances of this litigation are related in our original decision and need not be repeated. In remanding for further proceedings in the district court, we said:

We are satisfied that the plaintiffs as a minimum are entitled to a declaratory judgment determining that the applications of members of the classes here involved for welfare benefits must be acted upon and the first payment made to eligible applicants within thirty days of the filing of the application and that eligible applicants whose claims have not been passed upon within thirty days are entitled' to have retroactive benefits from the thirty-first day following the filing of their applications, subject however to a provision that the foregoing shall not apply to instances where the state establishes that the delay is excused or justified by the provisions of Handbook Part IV, § 2300(b) (6).
Whether the injunction prayed for should be granted should be left to the sound discretion of the trial court for determining after such further hearing as he may deem appropriate on remand. By reason of the dismissal the court did not reach the injunction issue. Defendants have expressed a desire to comply with the thirty-day requirement and have indicated that they are taking steps to meet the requirement. The HEW pending investigation mentioned in footnote 1 may also aid in bringing about conformity with the federal laws and regulations.
By way of caveat, we state that the issue of the bar of the Eleventh Amendment to a suit against the state for accrued past due benefits was not reached by the trial court and is not reached by us. Similarly, the issue of whether the state has waived immunity from suit by accepting the federal grant is not determined. These issues are separate and distinct from our holding that jurisdiction exists under Ex parte Young [209 U.S. 123, 28 S. Ct. 441, 52 L.Ed. 714], supra. [Like v. Carter, 448 F.2d at 805.]

Judge Meredith in further considering the case on remand granted a declaratory judgment:

[T]o the effect that applications of members of the classes here involved for welfare benefits, must be acted upon and the first payment made to eligible applicants within thirty days of the filing of the application and that eligible applicants whose claims have not been passed upon within thirty days are entitled to have retroactive benefits from the thirty-first day following the filing of their applications, subject, however, to a provision that the foregoing shall not apply to instances where the state establishes that the delay is excused or justified by the provisions of the Handbook of Public Assistance Administration, and particularly Part IV, § 2300(b)(6). [Like v. Carter, 353 F. Supp. at 405-406.].

However, on remand the court denied any injunctive relief on the grounds that the appellees were then in compliance with requirements of law and refused to award retroactive (or past due) benefits to those applicants who had earlier been denied prompt payment of their welfare claims. The district court construed this demand for monetary relief as constituting a suit against the State of Missouri in federal court and declined to exercise jurisdiction on Eleventh Amendment grounds. The appellants claim that the trial court erred on both issues.

Our independent review of the record discloses no abuse of the trial court’s discretion in denying injunctive relief to plaintiffs. See United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 429 (8th Cir. 1970). We agree with the district court’s view that on jurisdictional grounds, the Eleventh Amendment bars any award for lost welfare benefits because of the failure of the state to pay claims within the prescribed time period of 30 days. Accordingly, we affirm on the basis of Judge Meredith’s opinion.

      . In denying any award for payment of past due welfare benefits, the district court relied on Rothstein v. Wyman, 467 F.2d 226 (2d Cir. 1972), cert, denied, 411 U.S. 921, 93 S. Ct. 1552, 36 L.Ed.2d 315 (1973). The Seventh Circuit has come to a contrary conclusion, Jordan v. Weaver, 472 F.2d 985 (1973). The Seventh Circuit decision is now before the Supreme Court as Edelman v. Jordan, No. 72-1410, cert, granted, 412 U.S. 937, 93 S.Ct. 2776, 37 L.Ed.2d 398 (1973).


text:
    Timothy CAMPBELL, Plaintiff-Appellant, v. E. B. MASUR et al., Defendants-Appellees.
    No. 72-1837.
    United States Court of Appeals, Fifth Circuit.
    Oct. 29, 1973.
    Rehearing Denied Dec. 17, 1973.
    John G. Abbott, Houston, Tex., Michael H. Gottesman, Washington, D. C., Larry Watts, Houston, Tex., for plaintiff-appellant.
    James P. Ryan, Corpus Christi, Tex., for defendants-appellees.

      Before JONES, GODBOLD and IN-GRAHAM, Circuit Judges.
   PER CURIAM:

The appellant, Timothy Campbell, brought an action in the District Court for the Southern District of Texas against “E. B. Masur, in his official capacity as former Superintendent of Mathis Independent School District; Antonio Rivera and V. M. Thyssen, in their official capacities as members of the Board of Trustees of Mathis Independent School District; Larry Stapp, Bennie Curtiss, L. C. Hennig, Joe Beard, and Wilson Rackley, in their official capacities as former members of the Board of Trustees of Mathis Independent School District; and Mathis' Independent School District, a political subdivision of the State of Texas, and its officers, administrators, and successors in office.”

The nature of Campbell’s claim and references to the statutes which he asserted gave Federal jurisdiction over his claim are set forth in the first paragraph of his complaint, which reads as follows:

“This action is brought pursuant to the Civil Rights Act of 1871, United States Code Title 42, Section 1983. This Court has original jurisdiction of the action under the provisions of the United States Code Title 28, Section 1343(3) and 1343(4), and under United States Code Title 28, Section 1331, based upon the violation of rights secured by and arising under the Constitution and laws of the United States of America. Relief is also sought pursuant to the Federal Declaratory Judgment Act, United States Code Title 28, Sections 2201 and 2202. The amount in controversy exceeds the sum or value of $10,000.00, exclusive of interest and costs.”

Campbell had been a teacher in a high school of the Mathis Independent School District. He was discharged by the board of trustees of the school district. He was subsequently given a hearing before the board at which Campbell and his counsel were present. At the conclusion of this hearing the board reaffirmed its prior decision. This action for damages and for declaratory relief followed with Campbell asserting that his discharge violated his First, Fifth, and Fourteenth Amendment constitutional rights. The district court held that Campbell should recover the amount of his salary to the date of the board meeting at which he was present. He was denied any other relief.

On appeal Campbell states the issue presented to this Court in this language:

“This is an action brought by a public high school teacher under 42 U.S.C. § 1983, alleging that he was dismissed during the term of his contract in violation of the First Amendment and without procedural due process. Following an extensive trial, Judge Owen D. Cox held that the discharge did not violate the First Amendment; that the failure to provide a pretermination hearing violated due process; but that the violation was cured by the provision of a hearing two weeks after the termination. In this appeal, the teacher contends that his discharge violated the First Amendment, and that the post-termination hearing did not cure the due process violation.”

While this appeal was pending before this Court, the Supreme Court rendered its decision in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109, involving municipal corporations. A Texas school district, as is involved in this ease, is “in the nature of” a municipality. Harkless v. Sweeny Independent School District, 5th Cir. 1970, 427 F.2d 319. That which was said in the City of Kenosha opinion requires a reconsideration of the jurisdictional questions which are present in the case before us. Without giving consideration to the merits of the appeal, we vacate the judgment of the district court and remand the cause to it for reexamination and further consideration in the light of City of Kenosha v. Bruno, supra.

Vacated and remanded.


author: MERRILL, Circuit Judge:

text:
    UNITED PACIFIC INSURANCE COMPANY, a corporation, Plaintiff-Appellee, v. Harold M. STANFORD, Defendant-Appellant.
    No. 72-1487.
    United States Court of Appeals, Ninth Circuit.
    Oct. 19, 1973.
    Patrick M. Smith (argued), Robert S. Ball, Richard M. Sandvik, of Smith, Todd & Ball, Portland, Ore., for defendant-appellant.
    Daniel J. Seifer (argued), Paul R. Meyer, of Kobin & Meyer, Portland, Ore., for plaintiff-appellee.
    Lee Johnson, Atty. Gen., Dale T. Crabtree, Asst. Atty. Gen., Salem, Ore., for the amicus curiae.
    Before MERRILL and TRASK, Circuit Judges, and JAMESON, District Judge.

       Honorable William J. Jameson, United States District Judge for the District of Montana, sitting by designation.

   MERRILL, Circuit Judge:

This diversity case presents the question: Which statute of limitations applies to the liability of a surety to a third party for the tortious act of its principal? Is it the statute applying to the tort of the principal, or is it the statute applying to the surety’s contract with the principal? We hold it to be the latter.

Oregon securities laws, ORS § 59.005, et seq., require dealers in securities to secure an indemnity agreement or “blue-sky bond” in form satisfactory to the Commissioner of Corporations. Pacific Industrial Underwriters (“Principal”), secured one from appellee. The bond covered both statutory securities fraud as defined by Oregon securities law and common-law fraud. Appellant brought suit in state court against Principal charging fraud. One count was for securities fraud, which, by Oregon securities law, has a three-year statute of limitations applicable to recovery against either a principal or a surety. A second count was for common-law fraud which, under Oregon law, has a two-year statute of limitations. Appellant secured judgment against Principal on both counts and demanded payment from appellee. Appellee brought this suit in interpleader to determine its liability on its bond. By the time of suit the three-year statute of limitations had run on the statutory securities fraud and it is conceded that appellee’s liability as surety for the statutory securities fraud of Principal was barred. The question remains as to liability for Principal’s common-law fraud. The District Court held recovery barred by Oregon’s two-year statute. Appellant contends that Oregon’s six-year statute, applicable to contract liability (which had not run), should apply. We agree.

. It is the contract that the bond constitutes that is the source of appellee’s liability. Its contract obligation is to respond when liability of the principal is duly established. It makes little sense to hold that the surety’s obligation for a principal’s tort is barfed by the statute applicable to the principal’s liability when that liability has already been reduced to judgment and continues to exist. The authorities on which appellant relies are distinguishable. In each of those cases the statute had run on the principal’s obligation and precluded the securing of judgment against him. Under these circumstances the surety’s freedom from liability is due not to the running of the statute against the surety’s obligation but to the fact that with the principal free from liability, the obligation of the surety was discharged.

Reversed and remanded for vacating of judgment and further proceedings.

      . The remedy provided by Oregon securities laws is a cumulative and not exclusive remedy for fraud related to securities. ORS § 59.305; Hartford Accident and Indemnity Company v. Ankeny, 199 Or. 310, 261 P.2d 387, 393 (1953).

      . State v. Davis, 42 Or. 34, 71 P. 68, 72 P. 317 (1903) ; Barnes v. Massachusetts Bonding and Insurance Company, 89 Or. 141, 172 P. 95 (1918) ; Ryus v. Gruble, 31 Kan. 767, 3 P. 518 (1884).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. George Francis SCHOOLS, Defendant-Appellant.
    No. 73-2541
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 18, 1973.

      Paul L. Cummings, Pensacola, Fla., for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., J. Worth Owen, Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

We conclude there is no merit in this appeal from a conviction for knowing possession of marijuana under 21 U.S. C.A. § 844(a). On July 22, 1972, at which time appellant was incarcerated at a federal prison camp at Eglin Airforce Base, Florida a packet containing marijuana was found in his possession during a security search following a visit with his wife. Appellant was placed in solitary confinement for three days during which time prison officials interrogated him concerning his possession of the marijuana. A laboratory analysis of the substance found on appellant was completed on September 27, 1972. A fingerprint examination was completed on October 5, 1972. An FBI agent interviewed appellant on December 5, 1972 after unsuccessfully attempting to locate him during October and November. The investigation was completed and submitted to the United States Attorney on February 5, 1973. An indictment was returned by the Grand Jury on February 7, 1973. Appellant went to trial on April 4, 1973. The jury returned a verdict of guilty on April 19, 1973 and appellant was sentenced on May 3, 1973. Apparently under the mistaken impression that the statute provided for a maximum sentence of two year imprisonment, the District Judge imposed a sentence of a year and one-half but immediately reduced the sentence to one year on being informed that the statute provided for a maximum of only one year.

Appellant contends that the seven month delay between the commission of the offense and the indictment resulted in a denial of his right to a speedy trial under the Sixth Amendment. We need not determine whether the interrogation and segregation of appellant by prison officials following the discovery of the marijuana constituted an “arrest” rendering appellant an “accused” within the meaning of the Sixth Amendment, thereby activating the speedy trial provision, since even assuming that the speedy trial countdown was triggered at this earliest possible moment, the delay preceding indictment is of no consequence where the indictment is returned within the statute of limitations period, there is no showing of actual prejudice or that the delay was an intentional device used by the prosecution to gain tactical advantage over the defendant. See United States v. Marion, 1971, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468, 481. The delay in issue was attributable to the government’s reasonably expeditious but necessary investigation. See Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; United States v. Dyson, 5 Cir., 1972, 469 F.2d 735.

Nor is there any merit in appellant’s contention that the District Court could only impose a sentence of nine months — three quarters of the one year maximum — since the Court had originally thought that the maximum sentence was two years and had only imposed a sentence of one and one-half years— three quarters of the mistaken maximum. The District Court is certainly not precluded from imposing the actual maximum sentence simply because it would not have imposed the maximum sentence if that maximum were twice as severe. In the exercise of its wide discretion the sentencing court could reasonably conclude that the facts of this case warranted a sentence of at least one year regardless of whether the maximum permissible sentence was one or two years.

Affirmed.


text:
    Roy JOHNSON, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary, United States Department of Health, Education and Welfare, Defendant-Appellee.
    No. 73-2576
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 17, 1973
    Daniel E. Broussard, Jr., Alexandria, La., for plaintiff-appellant.
    Donald E. Walter, U. S. Atty., R. Perry Pringle, R. H. Shemwell, Asst. U. S. Attys., Shreveport, La., John M. Stokes, Jr., Charles B. Rose, Dept, of H. E. W., Dallas, Tex., for defendant-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Roy Johnson appeals from the district court’s dismissal of his complaint seeking review of the Secretary of HEW’s final decision denying him disability insurance benefits under 42 U.S.C. 416 (i) and 426. Johnson contends (1) that the Secretary’s determination is not supported by the evidence and (2) that the second hearing examiner’s incorporation by reference of the first examiner’s findings was a denial of Johnson’s due process rights. We affirm.

Johnson’s request for disability benefits was initially rejected by the Bureau of Disability Insurance of the Social Security Administration. He was then accorded a hearing before a hearing examiner who found upon considerable medical evidence that Johnson was not disabled within the meaning of the statute and thus was not entitled to the benefits provided. On its review, the Appeals Council found the evidence insufficient to support this determination and vacated and remanded with directions to obtain the testimony of a vocational expert and to permit development of additional evidence as to what types of work Johnson was capable of doing in view of his physical limitations. A second hearing examiner, after considering testimony of a vocational expert, and additional testimony presented by Johnson again found that he was not entitled to disability benefits. This became the final decision of the Secretary.

We affirm the district court’s determination that the Secretary's decision is supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L.Ed.2d 842 (1971). Johnson’s due process contention asserts that the second hearing examiner did not independently consider the transcript of the first hearing but merely recited that those proceedings were incorporated by reference and really relied solely on the findings made by the first hearing examiner. It is asserted that this action was a denial of Johnson’s due process rights. In the context of this case the contention is without merit. The Appeals Council’s remand was a limited one —limited to the taking of additional testimony which was to be cumulative to the testimony presented at the first hearing. Pursuant to the Council’s directions and in accordance with 20 C. F.R. 404.950 the second hearing examiner heard additional testimony, incorporated the findings of the first hearing and rendered his decision. In light of the Council’s circumscribing directions and considering the supplementary nature of the evidence taken on remand, the second hearing examiner could properly rely on the findings of the first hearing examiner who heard- the conflicting medical testimony adduced at the first hearing and was in a better position to determine the credibility of those witnesses.

Affirmed.

      . 42 U.S.C. § 405(g) provides in pertinent part:
      (g) Any individual, after final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of business ....


author: PER CURIAM: SCHWARTZ, Trial Judge:

text:
    Jessie SHORT et al. v. The UNITED STATES.
    No. 102-63.
    United States Court of Claims.
    Oct. 17, 1973.
    Harold C. Faulkner, San Francisco, Cal., attorney of record, and William C. Wunsch, San Francisco, Cal., for plaintiff. Wallace Sheehan and Faulkner, McComish & Wunsch, San Francisco, Cal., of counsel.
    Herbert Pittle, Washington, D. C., with whom was Asst. Atty. Gen. Har-' lington Wood, Jr., for defendant.
    Jerry C. Straus, Washington, D. C., for Hoopa Valley Tribe, amicus curiae. Wilkinson, Cragun & Barker, Angelo A. Iadarola, Richard A. Baenen and Alan I. Rubinstein, Washington, D. C., of counsel.
    Before COWEN, Chief Judge, LARA-MORE, Senior Judge, and DAVIS, SKELTON, NICHOLS, KUNZIG and BENNETT, Judges.
   OPINION

PER CURIAM:

This case comes before the court on defendant’s exceptions to a recommended decision filed May 22, 1972, by Trial Judge David Schwartz pursuant to Rule 134(h). The court has considered the case on the briefs and oral arguments of counsel for the parties and the amicus curiae. The court agrees with the decision as hereinafter set forth, rejects the objections and exceptions of defendant and amicus, and hereby affirms and adopts the decision as the basis for its judgment in this case. Insofar as defendant and amicus curiae have presented arguments to the court which differ from those presented to the trial judge, the court has considered them but does not deem any change in the trial judge’s opinion or findings is called for. The court has, however, excised from the findings the trial judge’s notes which he indicates were not intended as findings.

Subsequent to the trial judge’s decision and the oral argument before the court, the Supreme Court decided Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973). We consider the trial judge’s opinion and findings, and our decision herein, to be fully consistent with the opinion and decision in that case. Although the ultimate issues in the two cases are different, several aspects of the Supreme Court’s opinion tend substantially toward supporting our holding in the present case.

It is concluded, therefore, that certain of the plaintiffs are entitled to recover in amounts to be determined under Rule 131(c), and the claims of the others are set down for retrial, as provided in findings 217-218. The case is remanded to the trial judge for further proceedings. The motion of the Hoopa Valley Tribe to intervene is granted.

OPINION OF TRIAL JUDGE

SCHWARTZ, Trial Judge:

In 1876, a 12-mile square tract of land in Northern California, on the last reach of the Trinity River before it joins the Klamath River, was set aside by order of President Grant as the Hoo-pa Valley Indian Reservation. Most but not all of the Indians of the tract, called the Square, were and have been Hoopa Indians. In 1891 President Harrison made an order extending the boundaries of the reservation to include an adjoining 1-mile wide strip of land on each side of the Klamath River, from the confluence of the two rivers to the ocean about 45 miles away (in consequence of which the reservation took on the shape of a square skillet with an extraordinarily long handle). Most of the Indians of the added tract, called the Addition, were and have been Yurok Indians, also known as Klamaths.

The Square is heavily timbered and in the last 20 years the timber on its unal-lotted trust-status lands has begun to produce revenues of about $1 million annually. These revenues, administered by the United States as trustee for the Indian beneficial owners, have been divided by the Secretary of the Interior exclusively among the persons on the official roll of the Hoopa Valley Tribe, an organization created in 1950, whose membership rules limit enrollment to al-lottees of land on the Square, non-landholding “true” Hoopas voted upon by the Tribe, and long-time residents of the Square of a prescribed degree of Hoopa blood, descended from natives of the Square.

„ The plaintiffs are 3,323 Indians, in the main Yuroks of the Addition and their descendants, who are ineligible for membership in the Hoopa Valley Tribe and have thus been denied a share in the revenues from the Square. They bring this suit against the United States as their trustee for a money judgment for their alleged share in the timber income, claiming it as all-reservation property. The Hoopa Valley Tribe, in a sense the real party defendant, is present in the case as an amicus curiae aligned with the defendant; the position of the Government and the Tribe are identical and the two have filed joint briefs. (References to defendant or to the Government will therefore mean the Hoopa Valley Tribe as well.)

To simplify the litigation, the cases of 26 plaintiffs believed to be representative of the 3,323 were chosen for trial with the expectation that if the plaintiffs as a group were upheld on the common issue, resolution of the sample cases would develop standards by which the parties could dispose of many or most of the remaining cases. The first order of business is therefore the basic issue of whether the Indians of the Addition may be excluded from sharing in the revenues of the communal lands of the Square.

The history of the reservation may be succinctly stated: It was established in 1864 pursuant to the Act of April 8, 1864, 13 Stat. 39, its boundaries were in 1865 provisionally determined to be what has since been called the Square, formally so defined by an order of President Grant in 1876 and extended to include the Addition by order of President Harrison in 1891. The act of 1864 is the basis of the claims of all parties. No claim is made of any title of right antedating or overriding the statute or the authority exercised thereunder.

The plaintiffs contend that as Indians of the Addition, they are entitled to share in the resources of the entire reservation, including the Square. The enlargement of the reservation in 1891 formed, they maintain, a single, integrated reservation to which all the Indians on both the Square and the Addition got equal rights in common. The contrary position of the Government is that the Square survived the enlargement of the reservation in 1891 as an entity whose resident Indians had vested substantive rights, exclusive as against the Indians of the Addition. The executive order of 1891, the Government says, joined the Square and the Addition for administrative purposes only, not for purposes of substantive rights, and without effect on already vested rights of the Indians of the Square, now organized as the Hoopa Valley Tribe. The controversy is decided here in favor of plaintiffs, for the reasons which follow.

On August 21, 1864, Austin Wiley, the federal Superintendent of Indian Affairs for California, in a public notice “located” a reservation, to be called the “Hoopa Valley Reservation,” “situated” on the Trinity River in Klamath County. A second notice in February of the following year defined the boundaries of the “Hoopa Reservation” as a square tract bisected by the last 12 miles of the Trinity River before its junction with the Klamath and extending 6 miles on each side of the Trinity. Eleven years later, on June 23, 1876, President Grant in an executive order precisely defined the “exterior boundaries” of the “Hoopa Valley Indian Reservation” in accordance with a survey, and declared that the 89572.43 acres embraced therein were “set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in California, by act of Congress approved April 8, 1864.” The circumstances surrounding the establishment and enlargement of the reservation are described in the accompanying findings of fact.

Neither the public notices of 1864 and 1865 nor the executive order of 1876 mentioned any Indian tribe by name, nor intimated which tribes were occupying or were to occupy the reservation. In this they were consistent with the statute whose authority was being exercised, the Act of April 8, 1864, 13 Stat. 39. That act, cited by both public notices and by the executive order, authorized the President in his discretion to locate not more than four Indian reservations in California, at least one of them to be in the northern district of the state, of such extent as he deemed suitable for the accommodation of the Indians of the state, all without mention of any tribe by name.

Section 2 of the act read as follows (13 Stat. 40):

Sec. 2. That there shall be set apart by the President, and at his discretion, not exceeding four tracts of land, within the limits of said state, to be retained by the United States for the purposes of Indian reservations, which shall be of suitable extent for the accommodation of the Indians of said state, and shall be located as remote from white settlements as may be found practicable, having due regard to their adaptation to the purposes for whch they are intended: Provided, That at least one of said tracts shall be located in what has heretofore been known as the northern district: * * * And provided, further, That said tracts to be set apart as aforesaid may, or may not, as in the discretion of the President may be deemed for the best interests of the Indians to be provided for, include any of the Indian reservations heretofore set apart in said state, and that in case any such reservation is so included, the same may be enlarged to such an extent as in the opinion of the President may be necessary, in order to its complete adaptation to the purposes for which it is intended.

The powers conferred by this statute are to be construed in keeping with the broad connotations of the words employed : “at his discretion,’ “suitable extent,” “accommodation of the Indians,” “practicable” and “due regard.” South Puerto Rico Sugar Company Trading Corp. v. United States, 334 F.2d 622, 631-632, 167 Ct.Cl. 236, 260-261 (1964), cert, denied, 379 U.S. 964, 85 S.Ct. 654, 13 L.Ed.2d 558 (1965). It is not disputed that the President had complete discretion as to which tribes were to be located on any of the reservations. The number of the tribes to occupy a reservation was also a matter for Presidential decision. There were many Indian tribes in California; in the north, in the area of the Hoopas and the Yuroks, almost every river and creek had its own tribe. Since there were to be no more than four reservations in the state — less, if the President so decided — it was inevitable that each reservation could and almost certainly would be occupied by more than one tribe. How many tribes was left to the President; the President would in his discretion adjust the size of a reservation to the number of tribes and Indians to be accommodated.

Given such a statutory scheme, faithfully reflected by the omission of reference to any Indian tribe in the notices of 1864-65 and the executive order of 1876, the Hoopa Indians could get no vested or preferential rights to the Square from the fact alone of being the first or among the first to occupy the Square with Presidential authority. The sequence in which tribes were authorized to occupy a reservation gave no rights. Any exercise of the President’s discretion in favor of the Hoopas, in approving their residence on the reservation, gave the Hoopas no vested rights as against such other tribe as might be the beneficiary of a simultaneous or subsequent exercise of the President’s discretion. Hynes v. Grimes. Packing Co., 337 U.S. 86, 103, 69 S.Ct. 968, 93 L. Ed. 1231 (1949); Healing v. Jones, 210 F.Supp. 125, 138, 153, 170 (D.Ariz. 1962), aff’d 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963); Crow Nation v. United States, 81 Ct.Cl. 238, 278 (1935).

It is claimed by defendant, however, that the Hoopas were the sole aboriginal occupants of the Square. The legal consequences were this claim upheld, as against the statute and the President’s authority, need not be gone into, for the claim of fact is unfounded. The accompanying findings recount that the Hoo-pas shared the Square with at least some Yuroks, whose native villages ranged along the Klamath River from the ocean to the Trinity — the area later to become the Addition — to the banks of the Trinity near the Klamath. This conclusion of fact as to the presence of Yuroks on the Square prior to white settlement does not, of course, support the claim of the present plaintiff Yuroks of the Addition, who were not introduced into the reservation until 1891, but it does negate the claim of the defendant insofar as it is based upon original exclusive Hoopa occupancy of the Square.

Another contention is that vested rights in the Square were conferred upon the Hoopas under a treaty made by Wiley at the time he established the reservation in 1864. This treaty, which made peace with the Hoopas and several other tribes then at war with the United States, obligated the United States “to set aside for reservation purposes for the sole use and benefit of the tribes of Indians herein named, or such tribes as may hereafter avail themselves of the benefit of this treaty, the whole of Hoo-pa Valley, to be held and used for the sole benefit of the Indians whose names are hereunto affixed as the representatives of their tribes.” It is conceded that this promise was not a treaty in the constitutional sense. Its making was not authorized, and it was not ratified. Its text is found as an attachment to a report by Wiley printed in the annual report for 1864 of the Superintendent of Indian Affairs; it is there captioned “Treaty of peace and friendship between the United States government and the Hoopas, South Fork, Redwood, and Grouse Creek Indians.”

Putting aside any question of the binding quality of this document, it is not properly to be read as having sought to restrict the President’s discretion under the act of 1864 or to give rights in the reservation to some tribes and withhold them from others. Within the week of the making of the treaty, Wiley in his first public notice locating the “Hoopa Valley Reservation” described the reservation only as an “Indian reservation” without any reference to who should occupy it. In the setting in which the treaty was presented to the Indians who agreed to it, described in the accompanying findings, the treaty is properly to be construed as a promise to devote Hoopa Valley to an Indian reservation for those tribes that would cease their hostilities and live at peace with the United States. So understood, the Klamaths or Yuroks were among its beneficiaries, for they laid down their arms and thenceforth remained at peace with the United States. There is good ground for concluding that though the caption of the treaty did not mention the Klamaths (Yuroks) as original parties, they were entitled to its benefits as among the tribes to whom the treaty was in fact presented and who were thereby persuaded to lay down their arms.

It is perfectly plain that from the outset in 1864 all involved understood that the reservation was intended for an undetermined number of tribes including the Hoopas and the Klamaths, and that the authorities repeatedly acted on this assumption. Some Yuroks already lived in the Square in 1864 and others were soon settled there, according to the best data on the peoples of the reservation. Within a fortnight of his first notice locating the reservation, Wiley reported the precise names of the tribes occupying every reservation in California except the Hoopa Valley Reservation; the Hoopa Valley Reservation, he said, contained “Various tribes.” Soon thereafter Hoopas, Klamaths, and Redwoods appear as residents of the reservation. Saiaz, Wiyot, Wylackie and Sinkyone Indians were moved to the reservation from elsewhere (and apparently did not remain, at least identifiably). In 1869 Wiley’s successor had a plan (not executed, for reasons which do not appear) to move 1800 Klamath Indians to the reservation. The Klamath River Reservation (occupied by Yuroks and constituting the ocean end of what later became the addition to the Hoopa Valley Reservation) had been destroyed by flood in 1861, and efforts to resettle its Indians, Yuroks, had not been successful. The 1800 Klamaths were thus probably the forebears of the present plaintiffs.

The annual report of the Commissioner of Indian Affairs for 1872 stated that the Indians in the care of the agency at Hoopa Valley were the Humboldts (Wi-yots and others), Hoonsoltons, Miscolts, Saiaz and several other bands, numbering 725. The reservation on the Trinity, the Commissioner said, “was set apart per act of April 8, 1864, for these and such other Indians in the northern part of the State as might be induced to settle there.” And in the years between the executive orders of 1876 and 1891 the Commissioner’s annual reports contained a table giving the names of the tribes “occupying or belonging” to the various reservations. For the Hoopa Valley Reservation, the tribal names given were Hunsatang, Hoopa, Klamath River, Redwood, Saiaz, Sermalton, Mis-kut and Tishtanatan. During all these years, therefore, it was well understood that the reservation contained several tribes and was intended for whatever tribes might be settled there by authority of the President.

When, therefore, President Harrison by executive order of October 16, 1891 extended the boundaries of the reservation to include the contiguous strip of land along the Klamath River, there were no vested rights to the Square incapable of divestment, or at least dilution, by a Presidential introduction of additional tribes into the reservation. There could be no such rights in view of the President’s authority under the act of 1864 and the manner of its exercise to that time.

The terms of the executive order (text in the note ) described the reservation as created under the act of 1864, and “extended” its “limits” “so as to include” the tract since called the Addition. No qualification was imposed on the incorporation of the- Addition into the reservation, except that tracts on the Addition privately owned under the land laws were “excluded from the reservation as hereby extended.”

Such words in an executive order, in this respect no different than the statute by whose authority it was made, are “to be read in their natural and ordinary sense, giving them a meaning to their full extent and capacity, unless some strong reason to the contrary appears (Miller v. Robertson, 266 U.S. 243, 250, [45 S.Ct. 73, 69 L.Ed. 265] (1924).” No reason to the contrary appearing, the order is to be given its natural effect of granting to the Indians of the Addition, as Indians of the enlarged reservation, rights in the reservation equally with the Indians of the Square.

The order has been held to be a lawful exercise of the President’s “continuing authority,” under the act of 1864, within his “large discretion” concerning the exercise of that authority, to “alter and enlarge” the reservation “from time to time in the light of experience.” Don-nelly v. United States, 228 U.S. 243, 256-257, 33 S.Ct. 449, 453, 57 L.Ed. 820 (1913). The President had no less power to enlarge a reservation created under the act of 1864 than he had to locate it originally. Five prior Presidents — Presidents Grant, Hayes, Garfield, Arthur and Cleveland — the Supreme Court noted, had made similar orders, with respect to the reservations authorized by the act, “altering and enlarging the bounds of the reservations, restoring portions of their territory to the public domain, and abolishing reservations once made, and establishing others in their stead; and in numerous instances Congress in effect ratified such action.” Donnelly v. United States, supra at 258, 33 S.Ct. at 453.

As already noted, the plain and natural consequence of the order was the creation of an enlarged, single reservation incorporating without distinction its added and original tracts upon which the Indians populating the newly-added lands should reside on an equal footing with the Indians theretofore resident upon it. This the President was as free to do under the reserved powers granted him by the act of 1864 as he had been free in the early years, without enlarging the reservation, to settle Redwoods, Saiaz and others and as he would have been free in 1869 to settle upon the reservation the Yuroks of the Klamath River Reservation. In introducing the Yu-roks of the Addition into the enlarged reservation in 1891, on a basis of equality with their kinsmen and the several other tribes already there, the President was merely continuing to accommodate the tribes of the area in the Indian reservation in Northern California he had established under the act of 1864. Compare Halbert v. United States, 283 U.S. 753, 51 S.Ct. 615, 75 L.Ed. 1389 (1931) and Quinaielt Tribe v. United States, 102 Ct.Cl. 822 (1945), on the President’s power to enlarge a treaty reservation for the common benefit of the tribe originally settled there and tribes “in that locality.”

Although the purpose of the executive branch in enlarging the reservation would seem to be apparent from the facts, the defendant reaches a different result entirely; it contends that the purpose of the executive order was to join the parts of the enlarged reservation only technically, for administrative purposes only, the Indians of each tract to retain their rights in their respective tracts. No hint of such a purpose appears on the face of the executive order. And no support for such purpose appears in the data said by defendant to prove it — the background and origins of the executive order and of legislation affecting the Klamath River Reservation, a part of the Addition. An exhaustive inquiry into the data, set out in detail in the accompanying findings, fails to reveal even a mention of such a purpose as defendant asserts, much less the compelling showing which would be required to curtail the ordinary consequences of the executive order.

The executive order originated in the Administration’s desire to give reservation status to the Connecting Strip and the Klamath River Reservation, the latter then recently held by the courts to be an abandoned Indian reservation and threatened by Congress with a bill for its public sale. The object was to provide the legal basis for expulsion of white traders from the area and for the allotment of land in severalty to the Indians of the area, under the General Indian Allotment Act of February 8, 1887 as amended (24 Stat. 388, 26 Stat. 794). Any qualification on the incorporation of the Addition into the reservation would have jeopardized the desired status, for only four reservations were permitted in California under the act of 1864 and four were already in existence. Full reservation status could come only from a bona fide merger of the Addition into the reservation, not a “technical” joinder, “for administration only,” of a reservation with a dubious status to one of lawful status. In the enlarged reservation resulting from such a merger, there could be only equal rights for all Indians of the reservation.

Administrative opinions, in the years following the executive order of 1891, recognized both that a number of tribes including Klamaths, Hoopas and other tribes were entitled to rights on the reservation and, with pointed relevance to the instant case, that the Indians of the Addition and the. Square were equal in respect to rights in the lands of the Square. These opinions are described in the accompanying findings. In one of them, in 1916, it was ruled that the Hoo-pas, Klamaths and several other tribes were entitled to rights on the reservation. In another, in 1933, it was determined that allotments of land on the Square should cease, and assignments of land contingent on cultivation be substituted, because, it was held, the Indians of the Addition and the Square were equally entitled to allotment of lands and there was insufficient land for all those entitled.

Defendant attacks these rulings as erroneous, as made by men of lesser rank and as covering only a short span of years. The rulings were sound, they were made by, among others, a Commissioner, a Chief Clerk of the Indian Office in 1916 (then the officer third in rank, next after the Assistant Commissioner), and they were made whenever there was need for them. No contrary ruling worth the mention was made in the Department of the Interior until the Secretary in 1955 began to pay the income from the Square to the Hoopa Valley Tribe and the Deputy Solicitor in 1958 wrote an opinion justifying the legality of his action. 65 Dec.Int.Dept. 59 (1958). That opinion is not supported by the defendant; the opinion does not reflect the facts found here, primarily the nonexclusive nature of the Hoopas’ residence in the Square, and it proffers neither tangible support nor rational theoretical basis for its assertion that the executive order of 1891 was intended only for administrative convenience.

The baseless belief that the Indians of the Square had exclusive rights in the lands of the Square seems to have grown from the remoteness of the Addition from the Square, the roughness of the terrain of the former, and the different stock of their respective inhabitants. The error flowered during the inordinate delay — from 1894 to 1922 — between the time of allotment of Addition lands and allotment of land on the Square. The Indians of the Square, deprived for so long of allotments, became understandably jealous and possessive for the entire Square.

The 1891 executive order, however, withstands all attacks. It was fully authorized by the act of 1864. No vested Indian rights in the Square existed, and the effect of the order was to enlarge both the area and the population of the reservation, without any limitation on the rights of all the Indians in the communal lands of the enlarged reservation.

Turning to the cases of the 26 individual plaintiffs, stated in detail to the findings, it appears that 22 of them, named in the accompanying ultimate findings and conclusions, are sufficiently proven to be Indians of the reservation to warrant a determination now that they are entitled to recover, in amounts to be calculated after all the 3,323 claims are tried and determined. In the cases of the remaining four, there are questions — of possible loss of reservation rights or of degree of Indian blood — as require that their cases be retried or rebriefed, as seems indicated in each case. With the common issue of exclusive right out of the way, the parties through their counsel will presumably be able to address themselves to the individual claims, and agree upon standards for the recognition of individual claims. There should be no reason to insist upon a formal appearance by each claimant in court. Sworn testimony may be given by affidavit or in the equivalent of a deposition, followed by stipulation for judgment where no contest is planned.

      . “By virtue of power vested in me by an act of Congress approved April 8, 1864, and acting under instructions from the Interior Department, dated at Washington City, D.C., April 26, 1864, concerning the location of four tracts of land for Indian reservations in the State of California, I do hereby proclaim and make known to all concerned that I have this day located an Indian reservation, to be known and called by the name and title of the Hoopa Valley Reservation, said reservation being situated on the Trinity River, in Klamath County, California, to be described by such metes and bounds as may hereafter be established by order of the Interior Department, subject to the approval of the President of the United States. Settlers in Hoopa Valley are hereby notified not to make any further improvements upon their places, as they will be appraised and purchased as soon as the Interior Department may direct.”
      “Austin Wiley, “Superintendent Indian Affairs for the State of California “Fort Gaston, Cal., August 21, 1864”

      . “To Whom, It May Concern:

      “Be it known that by virtue of power vested in me by Act of Congress passed April 8th, 1864, and acting under instructions from the Department of the Interior, I have located and set aside for an Indian Reservation the following described tract of land to be known as the Hoopa Reservation: Beginning at a point where Trinity River flows into Hoopa Valley and following down said stream, extending six miles on each side thereof, to its junction with Klamath River, as will be more particularly described by a map of said Reservation.
      “Notice is hereby given to all persons not to settle or improve upon said Indian Reservation excepting as the Agent in charge may permit and in no manner to trespass thereon on or interfere therewith.
      “Free transit through the Reservation will be permitted all travelers, pack-trains and stock, subject to such restrictions as the local Agent may see proper to impose.
      “Austin Wiley, “Supt. Ind. Aff’s, Cal.”

      “Hoopa Reservation, Cal.

        “February 18th 1865."

      . “Executive Mansion,

        “June 23, 1876

      “It is hereby ordered that the south and west boundaries and that portion of the north boundary west of Trinity River surveyed, in 1875, by C. T. Bissel, and the courses and distances of the east boundary, and that portion of the north boundary east of Trinity River reported but not surveyed by him, viz: ‘Beginning at the southeast corner of the reservation at a post set in mound of rocks, marked ‘H. V. R., No. 3’; thence south 17% degrees west, 905.15 chains, to southeast corner of reservation; thence south 72% degrees west, 480 chains, to the mouth of Trinity River,’ be, and hereby are, declared to be the exterior boundaries of Hoopa Valley Indian Reservation, and the land embraced therein, an area of 89,572.43 acres, be, and hereby is, withdrawn from public sale and set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in California, by act of Congress approved April 8, 1864. (13 Stats., p. 39.)”
      “U.S. Grant”

      . “Executive Mansion, October 16, 1891”

      “It is hereby ordered that the limits of the Hoopa Valley Reservation in the state of California, a reservation duly set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in said State, by Act of Congress approved April 8, 1864, (13 Stats., 39), be and the same are hereby extended so as to include a tract of country one mile in width on each side of the Klamath River, and extending from the present limits of the said Hoopa Valley reservation to the Pacific Ocean; Provided, however, That any tract or tracts included within the above described boundaries to which valid rights have attached under the laws of the United States are hereby excluded from the reservation as hereby extended.”
      “Benj. Harrison”