author: IRVING R. KAUFMAN, Chief Judge:

text:
    CITY TRUST COMPANY, Executor of the Will of Frederick A. Lockwood, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 938, Docket 74-1036.
    United States Court of Appeals, Second Circuit.
    Argued May 14, 1974.
    Decided May 17, 1974.

      Louis Ciccarello, Norwalk, Conn. (Lovejoy, Cuneo & Curtis, Norwalk, Conn., on the brief), for plaintiff-appellee.
    Donald H. Olsen, Atty., Tax Div., Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Garry R. Allen, Attys., Tax Div., Dept, of Justice, Washington, D. C., on the brief, Stewart Jones, U. S. Atty. for the District of Connecticut, of counsel), for defendant-appellant.
    Before KAUFMAN, Chief Judge, and HAYS and OAKES, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

The appeal before us presents the single, narrow question whether the remainder interest bequeathed to charity under the will of Frederick A. Lockwood, deceased, is an allowable, charitable deduction for estate tax purposes, 26 U.S.C. § 2055. The court below responded in the affirmative, and accordingly entered judgment for the taxpayer in the amount of $197,497.53. Since we find, however, that the language of the will provides no objective standard to govern the trustee’s power to invade corpus for the benefit of Lockwood’s widow, the life beneficiary, we reverse.

Lockwood died a resident of Norwalk, Connecticut on May 21, 1966. His will was admitted to probate in the Probate Court for the District of Norwalk, and appellee City Trust Company was duly qualified as executor. Article 3 of the will established a trust, the income from which was to benefit Lockwood’s widow during her lifetime, and also to benefit his sister and certain relatives in the event his sister survived his widow. Upon the death of the survivor the trust was to cease, with fifty percent of the remainder to be paid to certain charities.

During Mrs. Lockwood’s life tenancy, the trustee could invade corpus for her benefit in accordance with the following provision of the will:

My trustee may, in its absolute and unhampered discretion, pay so much of the principal of this trust as it may deem to be necessary for the proper care, comfort, welfare and happiness of my wife. It is my desire that my wife may occupy her own home and live in the manner to which she has been accustomed in our life together so long as she desires to do so, and that she shall have from my estate at least Five Hundred Dollars ($500.00) a month, from the date of my death, with payments to begin as soon after my death as is practicable, for her own personal spending money and for whatever she may desire, after the payment of all of her necessary expenses. I direct my executor and trustee to begin to make regular monthly payments to my wife on account of the income which is due or will become due to her as soon after my death as it is practicable to do so. (emphasis added)

The district court construed this language as establishing the widow’s customary standard of living as an objective determinant to limit the trustee’s power of invasion. To be sure, this standard finds mention, but that objectivity is totally lost among such subjective factors as provision for her “happiness,” for “whatever she may desire,” and for monthly payments of “at least $500.00 . . . after the payment of all of her necessary expenses.” With a guideline so pregnant with subjective considerations, the size of the charitable bequest is simply not, as it must be for deductibility, “presently ascertainable.” See Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 69 S.Ct. 35, 93 L.Ed. 259 (1949); Merchants National Bank of Boston v. Comm’r., 320 U.S. 256, 64 S.Ct. 108, 88 L.Ed. 35 (1943); Treas. Reg. § 20.2055-2(a) (1958). And compare Seubert v. Shaughnessy, 233 F.2d 134, 137 (2d Cir. 1956) with Hartford National Bank & Trust Co. v. United States, 467 F.2d 782, 785 (2d Cir. 1972). Thus, the language in issue, read in its entirety, makes clear that the decedent intended his trustee to prefer his wife’s desires at all times over the needs of the charitable remaindermen. Accordingly, the taxpayer, we hold, can effectuate that wish only by foregoing its charitable deduction.

We note, finally, with some surprise, the Government’s suggestion — an afterthought perhaps for it first appeared in the Government’s reply brief —that we remand “for consideration whether taxpayer is entitled to an additional estate tax deduction for the legal expenses incurred by it in defending this appeal.” Since the Government had earlier entered into a stipulation with taxpayer assuring the allowance of an estate tax deduction for reasonable attorney’s fees “in connection with this litigation,” we believe it is bound by this agreement. See also Treas.Reg. § 20.-2053-3(C)(2) (1958). The district court is instructed to retain jurisdiction to compute reasonable attorney’s fees, in the event the parties are unable to agree on the sum.

      . Since Lockwood died on May 21, 1966, we need not concern ourselves here with the substantial amendment of 26 U.S.C. § 2055 by the Tax Reform Act of 1969, 83 Stat. 560-561. As applicable to gifts and transfers made before December 31, 1969, Section 2055 stated in relevant part:
      (a) In general. — For purposes of the tax imposed by section 2001, the value of the taxable estate shall be determined by deducting from the value of the gross estate the amount of all bequests, legacies, devises, or transfers (including the interest which falls into any such bequest, legacy, devise, transfer, as a result of an irrevocable disclaimer of a bequest, legacy, devise, transfer, or power, if the disclaimer is made before the date prescribed for the filing of the estate tax return)
      (2) to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, including the encouragement of art and the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private stockholder or individual, and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation;

      . This matter was initially heard by a United States Magistrate, who filed a memorandum decision on April 30, 1973. Judge Newman entered judgment on July 30, 1973.

      . This amount was bequeathed to the following charities: The First Congregational Church on the Green, Norwalk, Connecticut (10%), Yale University (5%), Young Men’s Christian Association of Norwalk (5%), Langdon Hubbard Memorial Hospital, Badaxe, Michigan (10%), and The Norwalk Hospital Association, Inc. (20%). The balance of the remainder interest was to be paid to certain relatives.

      . It is well settled, moreover, that where, as here, subjective standards prevail, the fact that invasion may be remote because of a widow’s frugality or her independent means, will not supply the saving grace. See Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 599, 69 S.Ct. 35, 93 L.Ed. 259 (1949); Seubert v. Shaughnessy, 233 F.2d 134, 138 (2d Cir. 1956).

      . Treas.Reg. § 20.2055-2 (a) reads in pertinent part:

        Remainders and similar interests. If a trust is created or property is transferred for both a charitable and a private purpose, deduction may be taken of the value of the charitable beneficial interest only insofar as that interest is presently ascertainable, and hence severable from the noncharitable interest.

      . Connecticut law, of course, governs our construction of the will. And, City Trust maintains that the courts of Connecticut would restrict the exercise of the trustee’s discretion to an objective standard in order to protect the interests of the remainder-man. It is clear, however, that where the will establishes no such standard, the courts of Connecticut will not imply one. See Connecticut Bank and Trust Co. v. Lyman, 148 Conn. 273, 170 A.2d 130 (1961).


source: Caselaw Access Project

author: PELL, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph NOCAR and John Pendergast, Defendants-Appellants.
    Nos. 73-1703, 73-1704.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 27, 1973.
    Decided May 31, 1974.
    Rehearing and Rehearing En Banc Denied July 18, 1974.

      Barry H. Holt, Thomas H. Ramsey, Chicago, 111., for defendants-appellants.
    James R. Thompson, U. S. Atty., Ann P. Sheldon, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before CLARK, Associate Justice, PELL, Circuit Judge, and NOLAND, District Judge.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, is sitting by designation.

       Judge James E. Noland of the Southern District of Indiana is sitting by designation.

      . In its memorandum opinion on the motion to suppress, the district court found that Nocar had not freely and voluntarily consented to the search of the trunk. “There was conflicting testimony ... as to whether Nocar was asked to open the trunk or ordered to do so. It is clear that Agent King entered the garage with his gun drawn. It is not unreasonable to infer that Nocar believed that he was in custody even before he was told that he was under arrest. . . . [T]he Government failed to meet its burden of proof on its consent theory.”

   PELL, Circuit Judge.

On the basis of the parties’ stipulated testimony, the trial judge found Joseph Nocar and John Pendergast guilty of knowingly and intentionally possessing a quantity of marijuana (18,772 grams) with intent to distribute the same, 21 U.S.C. § 841(a)(1). Defendants raise three issues on this appeal: (1) whether the Attorney General failed to update and republish in the Federal Register the schedules of “controlled substances” as required by 21 U.S.C. § 812(a), and, if he did, whether that failure precluded the defendants’ prosecutions for possession of marijuana; (2) whether the court erred in denying the defendants’ motion to suppress marijuana which had been seized in a warrant-less search of an automobile; and (3) whether the evidence was sufficient to prove that defendants had knowingly possessed the drug with intent to distribute it.

The evidence to which the parties had stipulated consisted primarily of the testimony that Government witnesses had given at the hearing on the motion to suppress. In a memorandum opinion issued April 20, 1973, the district court denied the motion.

Customs agents Robert Smith and Thomas King provided the principal evidence for the Government. Smith testified that on January 7, 1972, he had received a telephone call from a reliable informant, who told him that two men and a woman driving a blue Toyota with a specified Texas license plate were in Chicago attempting to locate buyers for narcotics. The three persons supposedly were staying at a motel at a designated location on the north side of Chicago. After Smith verified that an automobile fitting the informant’s description was at the motel, he and another agent maintained surveillance. From his post, Smith could see two men and a woman in the room to which the car’s occupants had been assigned. A check by another agent revealed that the Toyota was registered to a M. Guerra and that Carol Guerra, the owner’s daughter, was under indictment in Texas. In appearance, the woman in the motel room corresponded with the description Smith received of Carol Guerra. The agents also learned that the automobile had recently been in Mexico.

Agent Smith next observed defendant Pendergast drive up to the motel, enter the trio’s room, and engage in conversation with the group. The agents checked the registration on Pendergast’s vehicle. They learned that the ear was registered to Pendergast at a Carbon-dale, Illinois, address. “[0]ur St. Louis office . . . stated that Mr. Pendergast was known in that area as a dealer in marijuana.” When the persons in the room left and went to a garage at the rear of 1203-5 North State Street, Government agents followed them. They saw the Toyota backed into the garage while the woman resembling Carol Guerra remained in the adjacent alley. Smith testified that the woman kept glancing up and down the alley and appeared, to Smith, to be acting as a lookout. After a brief period, the persons left the garage.

Later in the day, the agents returned with a search warrant to the garage but found no contraband.

The next day, Saturday, January 8th, customs agents placed the garage under surveillance. About 1:50 p. m., agents Smith and King saw Nocar and Pendergast walk down the alley behind State Street. Smith drove his automobile to the south end of the alley, where King got out and began walking north. King testified that as he walked past the garage, he saw the blue Toyota with Texas license plates backed up to the door of the garage, its rear about a foot or two inside the building. The trunk of the car was open, and the garage door had been pulled down to the level of the trunk lid. A rug had been draped over the area between the open trunk lid and the body of the Toyota. King testified that the view provided by the angle formed by the garage door and the wall of the garage enabled him to look into the building as he passed. During the approximately fifteen seconds he was at this vantage point, King observed defendant Nocar remove some white bags from the trunk of the Toyota and hand them to Pendergast, who placed them in the back of the garage. After observing these actions, King continued walking until he was some yards north of the garage whereupon he turned and signaled to agent Smith.

On the signal, Smith drove up the alley and jumped from his automobile, shouting, “Federal officers.” Smith entered the garage at the same time that King, with gun drawn, did. Meanwhile, one of the defendants had slammed shut the trunk of the Toyota. Several other agents then joined those in the garage. Smith testified that he asked Nocar to open the trunk, and that Noear shrugged his shoulders and did so. Smith observed white plastic bags and vegetable material in the trunk. He also detected a strong odor of marijuana. He then told the defendants that they were under arrest and read them their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A field test revealed the substance in the bags to be marijuana. By 2:15 p. m., the agents had searched the garage and had found two suitcases containing approximately 6000 grams of marijuana.

The defendants testified in their behalf at the suppression hearing. Their version of the search differed somewhat from that of the agents. For example, they claimed that they did not hear the announcement “Federal officers” and that agent Smith demanded, rather than requested, that Nocar open the trunk.

I.

Defendants’ first contention rests on their interpretation of 21 U.S.C. § 812(a), which provides in pertinent part :

“There are established five schedules of controlled substances, to be known as schedules I, II, III, IV, and Y. Such schedules shall initially consist of the substances listed in this section. The schedules established by this section shall be updated and republished on a semiannual basis during the two-year period beginning one year after the date of enactment of this subchapter and shall be updated and republished on an annual basis thereafter.”

Subchapter I of the Comprehensive Drug Abuse Prevention and Control Act of 1970 was enacted on October 27, 1970. Marijuana was listed in schedule I of the statute.

The defendants maintain that the schedules should have been first republished and updated on the initial anniversary date, October 27, 1971, and subsequently on April 27, 1972, six months later. There was no republication on October 27. The Director of the Bureau of Narcotics and Dangerous Drugs first expressly invoked section 812(a) and fully republished the schedules on May 12, 1972, 37 Fed.Reg. 9545 (1972):

“The Comprehensive Drug Abuse Prevention and Control Act of 1970, in section 202(a) (21 U.S.C. 812(a)), requires that the schedules of controlled substances established by that Act be updated and republished on a semiannual basis during the 2-year period beginning 1 year after the effective date of that Act. The effective date of that Act was October 27, 1970. Pursuant to the mandate of section 202(a), therefore, the Director hereby orders the publication of the schedules of controlled substances as of April 27, 1972.”

Actually, schedules had been published approximately a year earlier in the Federal Register but not apparently pursuant to the mandate of the Act. In 36 Fed.Reg. 4928 (March 13, 1971), the Director had published under the caption of “Notice of Proposed Rule Making” a comprehensive set of regulations implementing the Act. The regulations covered, inter alia, registration of manufacturers, labelling and packaging, quotas, records, and reports. Also included was Part 308, schedules of controlled substances established by the Act “as they are changed, updated, and republished from time to time . . . .”

In response to objections to and comments on the proposed regulations, various amendments were made and the regulations as revised were published in 36 Fed.Reg. 7776, on April 24, 1971. In the proposed regulations, code numbers were given to the various controlled substances. In the regulations as finally published the scope and function of the code numbers was defined. These numbers do not appear in the schedules of the Act.

We do not deem that the publication of the schedules in March and April of 1971 were either necessitated by or were in compliance with the updating-republication requirement of the Act but were merely a part of the overall implementing regulations for the Act.

We disagree with the defendants’ reading of section 812(a). The second sentence of the provision does not require republication on October 27, 1971. Rather, it directs that that date be used to determine when, during the following two years, the six-month demarcations are to fall. Therefore, the first republication was due on April 27, 1972, eighteen months after the enactment of the subchapter and' one half year after the first anniversary.

The meaning that the defendants ascribe to the section would be supported, not by the provision as presently written, but by, for example, “The schedules established by this section shall be updated and republished one year after the date of the enactment of this subehapter and every six months thereafter for two years.”

Amicus curiae contends that the May 12th republication, stated to be effective as of April 27, 1972, violates due process because of its retroactivity. We need not reach this issue, for the rights of these defendants obviously were not infringed. Their alleged violation of the drug laws occurred in January 1972, when, as we held above, the Government’s obligation to republish the schedules in accordance with section 812(a) had not yet ripened. The non-publication cases upon which the defendants rely, Hotch v. United States, 212 F.2d 280 (9th Cir. 1954), and Borak v. Biddle, 78 U.S.App.D.C. 374, 141 F.2d 278 (1944), are thus inapplicable.

In sum, in January 1972 there was a valid prohibition in force making unauthorized use of marijuana a crime.

The defendants also argue that even if there had been a timely republication it would not have been valid inasmuch as the Director of the Bureau of Narcotics and Dangerous Drugs caused the republication rather than the Attorney General, 21 U.S.C. § 811. This argument, of course, is disposed of by our holding that the republication requirement had not ripened as of the date of activities involved in the present case. However, we also note that in 28 U.S.C. § 510, Congress provided that the Attorney General may make such provisions as he considers appropriate to allow other officers, employees or agencies to perform any of his functions. 28 C.F.R. 0.100 subdelegates the functions of the Attorney General under the Comprehensive Drug Abuse Prevention and Control Act to the Director of the Bureau of Narcotics and Dangerous Drugs.

II.

The defendants claim that they do not quarrel with the holdings in Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925), upon which the trial court in part relied in denying the motion to suppress the marijuana seized from the automobile trunk. Their complaint is that the foundation of those cases, the existence of probable cause, was lacking in their case. The district court had concluded that “[t]he evidence clearly shows . . . that the agents had probable cause to believe that the Toyota contained contraband drugs.”

As the defendants point out, the informer’s tip, as recapitulated by agent Smith, did not describe the basis for the informer’s assertion that the persons he mentioned were attempting to sell narcotics. However, we certainly cannot fault the agents for following up the tip. It clearly was superior to casual rumor. The confidential source had previously given information to Government agents about illicit heroin and hashish traffic, which tips had resulted in four seizures and an unspecified number of arrests and convictions. The tip consisted in part of detailed information that was readily verifiable by independent means. The agents investigated these specifics, and from their own observations confirmed the existence of the persons, the automobile, and the motel registration. The reports stemming from the tracing of the blue Toyota and Pendergast’s car further enhanced the tip’s credibility. Next, the agents saw Carol Guerra acting suspiciously in the alley behind the State Street garage on January 7th.

Despite these corroborative indicia, the defendants contend that the fruitless search conducted on January 7th would have persuaded a reasonable person that the tip was probably inaccurate. The lack of contraband in the garage on Friday surely did not mandate the agents’ abandoning their investigation. They had ample justification for keeping a watch on the garage the following day. During that surveillance, agent King saw defendant Nocar take white plastic bags from the Toyota’s trunk and hand them to defendant Pendergast. Although King testified that he could not ascertain what substance was in the bags, we think it judicially cognizable that marijuana is often transported in bags. The covert garage activities smacked of the illegal activity customarily associated with drug transactions.

What agent King observed and the slamming of the trunk lid upon Smith’s shout of “Federal officers” were the last needed corroboration of the informer’s tip to create probable cause. Carroll, supra at 149, explains that term as “a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile . . . contains that which by law is subject to seizure and destruction,” a definition applicable to the instant ease, too. “[T]he facts and circumstances within [the agents’] knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched.” Id. at 162. The evidence at the hearing was sufficient to meet the test the Supreme Court has stated in a related context: “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause . . . . ” Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1959). The agents here had many more facts on which to rely than had the agents in Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1969), which defendants cite. Contrast also Coolidge v. New Hampshire, 403 U.S. 443, 458-464, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Not only was there probable cause, but the search of the Toyota and the seizure of the marijuana were not “unreasonable.” It was not practicable for the agents to try to obtain a search warrant before conducting the search. The defendants emphasize that the Federal Building was a mere mile and one half from the garage, but they minimize the difficulty of finding a magistrate on a Saturday afternoon without risking the loss of the possible contraband. The magistrate is present there on Saturdays only until noon. If the hunt for a magistrate and the warrant procedures had taken several hours, the defendants would now be arguing that the agents had violated their constitutional rights by preventing them from leaving the scene. Further, the Government would face a similar challenge had Carol Guerra or the unidentified male in the motel room or another person come to remove the Toyota. See Chambers v. Maroney, supra at 52, where the Court explained that

“[f]or constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.”

III.

The defendants’ final argument is that the Government failed to prove the statutory elements of possession and intent to distribute.

Agent King testified that when he walked by the garage on the afternoon of January 8th he saw defendant Nocar removing some white bags from the trunk of the blue Toyota and handing them to defendant Pendergast. He also observed Pendergast take the bags and move them to the rear of the garage. King then signaled to agent Smith, and the men moved in to make the seizure. This testimony shows that the defendants had actual possession of the marijuana. That one of the defendants slammed the trunk shut when he realized that the agents were near does not negate the defendants’ exercise of dominion and control over the marijuana immediately prior to the arrest. Because of King’s observations, the Government did not need to establish that the defendants owned or leased the garage or the automobile or the suitcases.

The defendants also maintain that the agent’s observations and the quantity of the contraband recovered are the only evidence the Government adduced as to their intent to distribute or sell and that such evidence was insufficient to meet the statutory requirement. Direct evidence of a sale or of the dollar value of drugs is not essential. As courts have frequently pointed out, knowledge and intent must often be proven by circumstantial evidence. At least two circuits, the Fifth and the Eighth, have held that proof of possession of substantial amounts of controlled substances supports the inference that the possessor intended to distribute the drugs rather than retain them for personal use. In United States v. Mather, 465 F.2d 1035 (5th Cir. 1972), cert. denied, 409 U.S. 1085, 93 S.Ct. 685, 34 L.Ed.2d 672 (1973), the defendant was carrying 197 grams of cocaine when he was arrested. In United States v. Perry, 480 F.2d 147 (5th Cir. 1973), the defendant possessed 188 pounds of hashish, and in United States v. Johnson, 469 F.2d 973, 977 (5th Cir. 1972), the amount was 133 pounds of marijuana. Citing Mather, the court in United States v. Echols, 477 F.2d 37 (8th Cir. 1973), cert. denied, 414 U.S. 825, 94 S.Ct. 128, 38 L.Ed.2d 58, held that the possession of 199 grams of cocaine was sufficient to support an inference of intent to distribute. Here, defendants possessed 18,770 grams, approximately 40 pounds, of marijuana.

We agree with the Fifth and Eight Circuits. Cf. United States v. Ortiz, 445 F.2d 1100, 1104-1105 (10th Cir. 1971), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545; United States v. Cerrito, 413 F.2d 1270 (7th Cir. 1969), cert. denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (1970). It is consistent with House Report No. 91-1444, which accompanied H.R. 18583, the basis for the present Act: “The quantity of a drug found in the possession of a person, of course, bears upon the question of whether or not his possession is for his own use, or is for the purpose of illicit transactions involving others, for which much more severe penalties are provided.” 3 U.S.Code Cong. & Admin. News, 91st Cong., 2d Sess. (1970)-1971), at 4577.

We therefore affirm the judgments of conviction of Joseph Nocar and John Pendergast.

Affirmed.

      . Subsection 841(a)(1), part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, provides :
      “Except as authorized by this subehapter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. . . ."
      21 U.S.C. § 802(6) defines “controlled substance” as a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V, as established by sections 811 and 812.

      . On May 11, 1973, the district court denied defendants’ motion to dismiss the indictment because of the Attorney General’s supposed failure to comply with the republication provision of the Comprehensive Drug Abuse Prevention and Control Act.


author: CHRISTENSEN, Senior District Judge:

text:
    Joseph S. ROSENTHAL, Plaintiff-Appellant, v. BOARD OF EDUCATION OF CENTRAL HIGH SCHOOL DISTRICT NO. 3 OF the TOWN OF HEMPSTEAD et al., Defendants-Appellees, Ewald Nyquist, Commissioner of Education of the State of New York, Intervenor-Defendant-Appellee.
    No. 768, Docket 73-2729.
    United States Court of Appeals, Second Circuit.
    Argued April 2, 1974.
    Decided May 20, 1974.
    Joseph S. Rosenthal, pro se, with whom Merril A. Mironer, and Friedlander, Gaines, Ruttenberg & Goetz, New York City, were on the brief, for appellant.
    Bernard Morris, Merrick, N. Y., for appellee.
    Louis J. Lefkowitz, Atty. Gen. of N. Y., with whom Samuel A. Hirshowitz and A. Seth Greenwald, Asst. Attys. Gen., were on the brief, for intervenor.

      Before HAYS and OAKES, Circuit Judges, and CHRISTENSEN, Senior District Judge.

       Of the District of Utah sitting by designation.

   CHRISTENSEN, Senior District Judge:

Plaintiff, a resident and voter in Merrick, Long Island, New York, brought a civil rights action in the district court seeking the convention of a three-judge court for the purpose of granting declaratory and injunctive relief on his allegations that the method of selection provided by the New York Education Law for members of the defendant Central High School District Board was violative of the “one man, one vote” principle and thus unconstitutional. A single judge of the district court denied plaintiff’s motions for a three-judge court and for summary judgment and granted the motion of the defendants and the intervenor to dismiss the complaint for failure to state an actionable claim. The determinative issue presented here is whether the complaint stated a substantial constitutional claim requiring the convening of a three-judge court.

Plaintiff-appellee, Joseph S. Rosenthal, is a resident of, and eligible to vote in, Merrick, Town of Hempstead, County of Nassau, State of New York. The defendant-appellee, Central High School District, has jurisdiction over the pupils residing within the district who have completed the work of the sixth grade, and possesses the same powers with respect to the high school therein as boards of education of union free school districts have with respect to the elementary schools in their districts.

Within the area of the Central High School District are four separate union free school districts — North Bellmore, Bellmore, Merrick and North Merrick, which also are defendants-appellees herein. The members of the boards of each of these union free school districts are elected by the qualified voters in the respective districts.

The board of education of such component union free school district selects two of its members to serve as representatives on the board of education of the Central High School District. The persons so selected remain members of the central board during their respective terms of office as members of the union free school district boards. Whenever a vacancy occurs in the office of a member of the central board, the local board which had been represented in that office selects one of its members as a replacement to serve on the central board.

The respective populations of the union free school districts vary widely. Aside from the importance or materiality of disparate weights, it is obvious that to the extent voters in the respective union free school districts determine the identity of members of the board of the Central High School District they exert varying degrees of influence by their votes. That their respective votes do tend to control the selection of central high school board members is evident from the fact that only members of the local board as determined by such votes are eligible for membership on the central board.

The central board with respect to the high school under its jurisdiction exercises all of the powers which are possessed by boards of the component free school districts with reference to the elementary schools supervised by them. The central board may issue bonds, adopt budgets, hire professional and non-professional employees, establish curricula and generally determine the educational policies and procedures to be implemented at the high school level. It may select sites and plans and propose taxes for school buildings, subject to the approval of the qualified electors of the district. Its action has a practical effect also upon the levy of general school taxes since a proportionate share of its budget is transmitted to each component union free school district for incorporation in the local district’s overall school tax. There seems no doubt, as recognized by the district court, that the powers of a central high school district include substantial governmental functions.

Confronted with plaintiff’s motion for the convening of a three-judge court, his alternative motion for summary judgment and the defendants’ motion for dismissal of plaintiff’s complaint, the judge below granted the latter motion in the view that the complaint did not state a substantial constitutional claim.'

Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), the district court noted, was “clearly not intended to apply to an appointive board”. It dismissed plaintiff’s argument that the central board should be treated as an elected one because its members were chosen from members of the constituent board, who themselves were elected, with the statement that “restricting the class of people who may be appointed does not change appointment to election”, and added:

“Moreover, the statute (Education Law § 1901), requires that a central high school board member be a member of a local board only in the case of common school districts and not in the case of union free school districts, which are the only constituents of Central High School District Number 3.”

If the latter premise were correct, the controlling effect of Sailors v. Board of Education of the County of Kent, supra, against appellant’s position would be indicated. But as has already been noted, election to a local board is a prerequisite to “appointment” by that local board as a member of a central high school board.

We are mindful of Sailors’ teaching that the “one man, one vote” principle does not apply to an appointive board. But the question remains whether within its rationale the members of the central high school board are “appointed” or “elected” officers, and if strictly neither whether the manner of their selection falls more nearly within the ambit of Hadley than of Sailors.

Were the members of the central high school board to be appointed from among residents of the respective districts without reference to whether or not they had been otherwise elected, we would have essentially a Sailors’ situation with no substantial federal constitutional question remaining. Had election ' as a member of a local board served automatically to designate that elected member also as a member of a central high school board, the “one man, one vote” concept would have been offended since the vote of residents of the larger local districts would have been impermissibly diluted with respect to their representation on the central high school board.

Yet we have neither of these situations precisely, but one lying somewhere between them, and thus between Sailors and Hadley. We are concerned with an election in a local district which will determine not only membership in the local board but eligibility for membership on a central high school board. The number serving on the local boards involved here vary between five and seven. Out of the membership of each local board two are designated as members of the central high school board, which has a total membership of eight.

We conclude that such a situation, being directly controlled neither by Sailors nor Hadley, presented a substantial constitutional question. As such, its answer was not within the competence of a single judge and required the convening of a three-judge court.

The constitutional claims in this case are not “so attenuated and unsubstantial as to be absolutely devoid of merit”, Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 557, 48 L.Ed. 795 (1904), or “no longer open to discussion”, McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27, 54 L.Ed. 95 (1909). The prior decisions of the Supreme Court did not “inescapably render the [plaintiff’s] claims frivolous”, Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1970). Their unsoundness did not “so clearly [result] from the previous decisions of this [Supreme] court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910); Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933). These authorities were reviewed most recently in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577, 42 U.S.L.W. 4381 (Mar. 25, 1974), in the context of the Civil Rights Act. Mr. Justice White wrote for the majority:

“The substantiality doctrine as a statement of jurisdictional principles affecting the power of a federal court to adjudicate constitutional claims has been questioned, Bell v. Hood, 327 U.S. 678, 683, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946), and characterized as ‘more ancient than analytically sound.’ Rosado v. Wyman, supra, 397 U.S. at 404, 90 S.Ct., at 1214. But it remains the federal rule and needs no reexamination here, for we are convinced that within accepted doctrine petitioners’ complaint alleged a constitutional claim sufficient to confer jurisdiction on the District Court to pass on the controversy.” 42 U.S.L.W. at 4385 [94 S.Ct. at 1379],

The standards for determining the substantiality of a constitutional claim requiring a three-judge court are essentially the same as those applied to the corresponding problem of substantiality under the Civil Rights Act.

Beyond holding that plaintiff’s complaint presented a substantial constitutional claim not subject to adjudication by a single judge, we express no opinion concerning the merits.

Reversed and remanded for the constitution of a three-judge court and further proceedings not inconsistent with this opinion.

      . Appellant also assigns as error the refusal of the district judge to grant his motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. While the facts were not in substantial dispute, the problem of law was substantial, not frivolous. Not meaning to indicate that under other circumstances summary judgment necessarily is precluded by the existence of a substantial constitutional question, in effect here this would be the result as far as concerns the decision of a single judge; the existence of such a question leaves him with no alternative but to convene a three-judge court.

      . New York Education Law § 1903, McKinney’s Consol.Laws, c. 16, Powers of board of education; laws applicable. The board of education of a central high school district shall have jurisdiction over the pupils residing therein who have completed the work of the sixth grade and shall have the same powers and duties in respect to the school therein as a board of education of a union free school district has, under this chapter, in respect to the schools in such district. Except as otherwise provided in this article, the provisions of this chapter as to the courses of study, the qualifications and employment of teachers and the maintenance, conduct and supervision of public schools in union free school districts shall apply to a central high school district.

      . New York Education Law § 2032 et seq.

      . New York Education Law § 1901. Central high school districts; number and election of members of board of education.

      Existing central high school districts are continued. Boards of education of such central high school districts heretofore established shall continue as constituted under the order of the commissioner of education. The number of their members shall be not less than five. There shall be ... at least two [members of such board] from each union free school district within the central high school district. The board of education of each union free school district in each such central high school district shall appoint the number of persons so designated by the commissioner to represent such district as members of the board of education of such central high school district. . . . The persons so designated shall be members of the board of education of the central high school district during their terms of office as members of the board of education ... of the districts respectively represented by them. Whenever a vacancy shall occur in the office of a member of the board of education of such central high school district, it shall be filled as above provided.

      . North Bellmore, 23,105; Bellmore, 18,697; Merrick, 25,940; North Merrick, 13,724.

      . Education Law §§ 1910, 1911.

      . If the taxes are voted by the electors within the central high school district each local school district collects its proportional share with its own taxes and pays such share to the central board.

      . Primary reliance was placed upon Sailors v. Board of Education of County of Kent, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); but reference was also made to Salyer Land Co. v. Tulare Water District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973); Associated Enterprises, Inc. v. Toltec Watershed Improvement District, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973); Egan v. Wisconsin State Board of Vocational, Technical and Adult Education, 332 F.Supp. 964 (E.D.Wis.1971); Oliver v. Board of Education of the City of New York, 306 F.Supp. 1286 (S.D.N.Y.1969), and Board of Education v. Board of Cooperative Educational Services, 37 A.D.2d 330, 325 N.Y.S.2d 592 (3d Dept. 1971), aff’d, 31 N.Y.2d 1020, 341 N.Y.S.2d 897, 294 N.E.2d 657 (1973).

      . In oral argument, defendant Central High School Board contended that even though this were so, a member of the central high school board could continue in office after his term as a member of the local board had expired. This appears not to be authorized by the statute, but in any event we do not regard such qualification, if any, as of significance on the problem before us.

      . “This Court has consistently held in a long series of cases, that in situations involving elections, the States are required to insure that each person’s vote counts as much, insofar as it is practicable, as any other person’s . . . [T]he right to vote in an election is protected by the United States Constitution against dilution or debasement. While the particular offices involved in these cases have varied, in each case a constant factor is the decision of the government to have citizens participate individually by ballot in the selection of certain people who carry out governmental functions . . . If one person’s vote is given less weight through unequal apportionment, his right to equal voting participation is impaired just as much when he votes for a school board member as when he votes for a state legislator.” Hadley v. Junior College District, supra, 397 U.S. at 54-55.

      . It is established, of course, that a single judge may dismiss a complaint attacking the constitutionality of a state statute and seeking an injunction against enforcement where no substantial constitutional issue is raised; but where such an issue is raised, the converse is true. Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933).

      . The dissenting judges expressed doubt (Id. at 4392 [94 S.Ct. at 1393]) of the sufficiency of the constitutional claim, and concluded that even if the equal protection claim “meets the threshold of substantiality for jurisdiction in the federal courts . . . the district court should have declined to exercise pendant jurisdiction over the Supremacy Clause claim and referred the equal protection claim to a three-judge court.”

      . See Hagans v. Lavine, supra, at 4384; Rosado v. Wyman, 397 U.S. 397, 403, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). See also Garfinkle v. Wells-Fargo Bank, 483 F.2d 1074, 1077 (9th Cir. 1973) (insubstantiality test for “federal question” jurisdiction under 28 U.S.C. § 1331).