source: Caselaw Access Project

author: Mr. Justice White Mr. Justice Stewart,

license: Public Domain

text:
    ROSS et al., TRUSTEES v. BERNHARD et al.
    No. 42.
    Argued November 10, 1969
    Decided February 2, 1970

      William E. Haudek argued the cause for petitioners. With him on the briefs were Richard M. Meyer and Stanley M. Grossman.

      Marvin Schwartz argued the cause for respondents. With him on the brief were Roger L. Waldman, William J. Manning, and E. Roger Frisch.

   Mr. Justice White

delivered the opinion of the Court.

The Seventh Amendment to the Constitution provides that in “[s]uits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Whether the Amendment guarantees the right to a jury trial in stockholders’ derivative actions is the issue now before us.

Petitioners brought this derivative suit in federal court against the directors of their closed-end investment company, the Lehman Corporation, and the corporation’s brokers, Lehman Brothers. They contended that Lehman Brothers controlled the corporation through an illegally large representation on the corporation’s board of directors, in violation of the Investment Company Act of 1940, 54 Stat. 789, 15 U. S. C. § 80a-l et seq., and used this control to extract excessive brokerage fees from the corporation. The directors of the corporation were accused of converting corporate assets and of “gross abuse of trust, gross misconduct, willful misfeasance, bad faith, [and] gross negligence.” Both the individual defendants and Lehman Brothers were accused of breaches of fiduciary duty. It was alleged that the payments to Lehman Brothers constituted waste and spoliation, and that the contract between the corporation and Lehman Brothers had been violated. Petitioners requested that the defendants “account for and pay to the Corporation for their profits and gains and its losses.” Petitioners also demanded a jury trial on the corporation's claims.

On motion to strike petitioners’ jury trial demand, the District Court held that a shareholder’s right to a jury on his corporation’s cause of action was to be judged as if the corporation were itself the plaintiff. Only the shareholder’s initial claim to speak for the corporation had to be tried to the judge. 275 F. Supp. 569. Convinced that “there are substantial grounds for difference of opinion as to this question and ... an immediate appeal would materially advance the ultimate termination of this litigation,” the District Court permitted an interlocutory appeal. 28 U. S. C. § 1292 (b). The Court of Appeals reversed, holding that a derivative action was entirely equitable in nature, and no jury was available to try any part of it. 403 F. 2d 909. It specifically disagreed with DePinto v. Provident Security Life Ins. Co., 323 F. 2d 826 (C. A. 9th Cir. 1963), cert. denied, 376 U. S. 950 (1964), on which the District Court had relied. Because of this conflict, we granted certiorari. 394 U. S. 917 (1969).

We reverse the holding of the Court of Appeals that in no event does the right to a jury trial preserved by the Seventh Amendment extend to derivative actions brought by the stockholders of a corporation. We hold that the right to jury trial attaches to those issues in derivative actions as to which the corporation, if it had been suing in its own right, would have been entitled to a jury.

The Seventh Amendment preserves to litigants the right to jury trial in suits at common law—

“not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered .... In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.” Parsons v. Bedford, 3 Pet. 433, 447 (1830).

However difficult it may have been to define with precision the line between actions at law dealing with legal rights and suits in equity dealing with equitable matters, Whitehead v. Shattuck, 138 U. S. 146, 151 (1891), some proceedings were unmistakably actions at law triable to a jury. The Seventh Amendment, for example, entitled the parties to a jury trial in actions for damages to a person or property, for libel and slander, for recovery of land, and for conversion of personal property. Just as clearly, a corporation, although an artificial being, was commonly entitled to sue and be sued in the usual forms of action, at least in its own State. See Paul v. Virginia, 8 Wall. 168 (1869). Whether the corporation was viewed as an entity separate from its stockholders or as a device permitting its stockholders to carry on their business and to sue and be sued, a corporation’s suit to enforce a legal right was an action at common law carrying the right to jury trial at the time the Seventh Amendment was adopted.

The common law refused, however, to permit stockholders to call corporate managers to account in actions at law. The possibilities for abuse, thus presented, were not ignored by corporate officers and directors. Early in the 19th century, equity provided relief both in this country and in England. Without detailing these developments, it suffices to say that the remedy in this country, first dealt with by this Court in Dodge v. Woolsey, 18 How. 331 (1856), provided redress not only against faithless officers and directors but also against third parties who had damaged or threatened the corporate properties and whom the corporation through its managers refused to pursue. The remedy made available in equity was the derivative suit, viewed in this country as a suit to enforce a corporate cause of action against officers, directors, and third parties. As elaborated in the cases, one precondition for the suit was a valid claim on which the corporation could have sued; another was that the corporation itself had refused to proceed after suitable demand, unless excused by extraordinary conditions. Thus the dual nature of the stockholder’s action: first, the plaintiff’s right to sue on behalf of the corporation and, second, the merits of the corporation’s claim itself.

Derivative suits posed no Seventh Amendment problems where the action against the directors and third parties would have been by a bill in equity had the corporation brought the suit. Our concern is with cases based upon a legal claim of the corporation against directors or third parties. Does the trial of such claims at the suit of a stockholder and without a jury violate the Seventh Amendment?

The question arose in this Court in the context of a derivative suit for treble damages under the antitrust laws. Fleitmann v. Welsbach Street Lighting Co., 240 U. S. 27 (1916). Noting that the bill in equity set up a claim of the corporation alone, Mr. Justice Holmes observed that if the corporation were the plaintiff, “no one can doubt that its only remedy would be at law,” and inquired “why the defendants’ right to a jury trial should be taken away because the present plaintiff cannot persuade the only party having a cause of action to sue — how the liability which is the principal matter can be converted into an incident of the plaintiff’s domestic difficulties with the company that has been wronged”? Id., at 28. His answer was that the bill did not state a good cause of action in equity. Agreeing that there were “cases in which the nature of the right asserted for the company, or the failure of the defendants concerned to insist upon their rights, or a different state system, has led to the whole matter being disposed of in equity,” he concluded that when the penalty of triple damages is sought, the antitrust statute plainly anticipated a jury trial and should not be read as “attempting to authorize liability to be enforced otherwise than through the verdict of a jury in a court of common law.” Id,., at 28-29. Although the decision had obvious Seventh Amendment overtones, its ultimate rationale was grounded in the antitrust laws.

Where penal damages were not involved, however, there was no authoritative parallel to Fleitmann in the federal system squarely passing on the applicability of the Seventh Amendment to the trial of a legal claim presented in a pre-merger derivative suit. What can be gleaned from this Court's opinions is not inconsistent with the general understanding, reflected by the state court decisions and secondary sources, that equity could properly resolve corporate claims of any kind without a jury when properly pleaded in derivative suits complying with the equity rules.

Such was the prevailing opinion when the Federal Rules of Civil Procedure were adopted in 1938. It continued until 1963 when the Court of Appeals for the Ninth Circuit, relying on the Federal Rules as construed and applied in Beacon Theatres, Inc. v. Westover, 359 U. S. 500 (1959), and Dairy Queen, Inc. v. Wood, 369 U. S. 469 (1962), required the legal issues in a derivative suit to be tried to a jury. DePinto v. Provident Security Life Ins. Co., 323 F. 2d 826. It was this decision that the District Court followed in the case before us and that the Court of Appeals rejected.

Beacon and Dairy Queen presaged DePinto. Under those cases, where equitable and legal claims are joined in the same action, there is a right to jury trial on the legal claims which must not be infringed either by trying the legal issues as incidental to the equitable ones or by a court trial of a common issue existing between the claims. The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action. See Simler v. Conner, 372 U. S. 221 (1963). The principle of these eases bears heavily on derivative actions..

We have noted that the derivative suit has dual aspects: first, the stockholder’s right to sue on behalf of the corporation, historically an equitable matter; second, the claim of the corporation against directors or third parties on which, if the corporation had sued and the claim presented legal issues, the company could demand a jury trial. As implied by Mr. Justice Holmes in Fleitmann, legal claims are not magically converted into equitable issues by their presentation to a court of equity in a derivative suit. The claim pressed by the stockholder against directors or third parties “is not his own but the corporation’s.” Koster v. Lumbermens Mut. Cas. Co., 330 U. S. 518, 522 (1947). The corporation is a necessary party to the action; without it the case cannot proceed. Although named a defendant, it is the real party in interest, the stockholder being at best the nominal plaintiff. The proceeds of the action belong to the corporation and it is bound by the result of the suit. The heart of the action is the corporate claim. If it presents a legal issue, one entitling the corporation to a jury trial under the Seventh Amendment, the right to a jury is not forfeited merely because the stockholder’s right to sue must first be adjudicated as an equitable issue triable to the court. Beacon and Dairy Queen require no less.

If under older procedures, now discarded, a court of equity could properly try the legal claims of the corporation presented in a derivative suit, it was because irreparable injury was threatened and no remedy at law existed as long as the stockholder was without standing to sue and the corporation itself refused to pursue its own remedies. Indeed, from 1789 until 1938, the judicial code expressly forbade courts of equity from entertaining any suit for which there was an adequate remedy at law. This provision served “to guard the right of trial by jury preserved by the Seventh Amendment and to that end it should be liberally construed.” Schoenthal v. Irving Trust Co., 287 U. S. 92, 94 (1932). If, before 1938, the law had borrowed from equity, as it borrowed other things, the idea that stockholders could litigate for their recalcitrant corporation, the corporate claim, if legal, would undoubtedly have been tried to a jury.

Of course, this did not occur, but the Federal Rules had a similar impact. Actions are no longer brought as actions at law or suits in equity. Under the Rules there is only one action — a “civil action” — in which all claims may be joined and all remedies are available. Purely procedural impediments to the presentation of any issue by any party, based on the difference between law and equity, were destroyed. In a civil action presenting a stockholder’s derivative claim, the court after passing upon the plaintiff’s right to sue on behalf of the corporation is now able to try the corporate claim for damages with the aid of a jury. Separable claims may be tried separately, Fed. Rule Civ. Proc. 42 (b), or legal and equitable issues may be handled in the same trial. Fanchon & Marco. Inc. v. Paramount Pictures, Inc., 202 F. 2d 731 (C. A. 2d Cir. 1953). The historical rule preventing a court of law from entertaining a shareholder’s suit on behalf of the corporation is obsolete; it is no longer tenable for a district court, administering both law and equity in the same action, to deny legal remedies to a corporation, merely because the corporation’s spokesmen are its shareholders rather than its directors. Under the rules, law and equity are procedurally combined; nothing turns now upon the form of the action or the procedural devices by which the parties happen to come before the court. The “expansion of adequate legal remedies provided by . . . the Federal Rules necessarily affects the scope of equity.” Beacon Theatres, Inc. v. Westover, 359 U. S., at 509.

Thus, for example, before-merger class actions were largely a device of equity, and there was no right to a jury even on issues that might, under other circumstances, have been tried to a jury. 5 J. Moore, Federal Practice ¶ 38.38 [2] (2d ed. 1969); 3B id., ¶ 23.02 [1]. Although at least one post-merger court held that the device was not available to try legal issues, it now seems settled in the lower federal courts that class action plaintiffs may obtain a jury trial on any legal issues they present. Montgomery Ward & Co. v. Langer, 168 F. 2d 182 (C. A. 8th Cir. 1948); see Oskoian v. Carmel, 269 F. 2d 311 (C. A. 1st Cir. 1959), aff’g 23 F. R. D. 307; Syres v. Oil Workers Int’l Union, Local 23, 257 F. 2d 479 (C. A. 5th Cir. 1958), cert. denied, 358 U. S. 929 (1959). 2 W. Barron & A. Holtzoff, Federal Practice and Procedure § 571 (Wright ed. 1961).

Derivative suits have been described as one kind of “true” class action. Id., § 562.1. We are inclined to agree with the description, at least to the extent it recognizes that the derivative suit and the class action were both ways of allowing parties to be heard in equity who could not speak at law. 3B J. Moore, Federal Practice ¶¶23.02 [1], 23.1.16 [1] (2d ed. 1969). After adoption of the rules there is no longer any procedural obstacle to the assertion of legal rights before juries, however the party may have acquired standing to assert those rights. Given the availability in a derivative action of both legal and equitable remedies, we think the Seventh Amendment preserves to the parties in a stockholder’s suit the same right to a jury trial that historically belonged to the corporation and to those against whom the corporation pressed its legal claims.

In the instant case we have no doubt that the corporation’s claim is, at least in part, a legal one. The relief sought is money damages. There are allegations in the complaint of a breach of fiduciary duty, but there are also allegations of ordinary breach of contract and gross negligence. The corporation, had it sued on its own behalf, would have been entitled to a jury’s determination, at a minimum, of its damages against its broker under the brokerage contract and of its rights against its own directors because of their negligence. Under these circumstances it is unnecessary to decide whether the corporation’s other claims are also properly triable to a jury. Dairy Queen, Inc. v. Wood, 369 U. S. 469 (1962). The decision of the Court of Appeals is reversed.

It is so ordered.

Mr. Justice Stewart,

with whom The Chief Justice and Mr. Justice Harlan join,

dissenting.

In holding as it does that the plaintiff in a shareholder’s derivative suit is constitutionally entitled to a jury trial, the Court today seems to rely upon some sort of ill-defined combination of the Seventh Amendment and the Federal Rules of Civil Procedure. Somehow the Amendment and the Rules magically interact to do what each separately was expressly intended not to do, namely, to enlarge the right to a jury trial in civil actions brought in the courts of the United States.

The Seventh Amendment, by its terms, does not extend, but merely preserves the right to a jury trial “[i]n Suits at common law.” All agree that this means the reach of the Amendment is limited to those actions that were tried to the jury in 1791 when the Amendment was adopted. Suits in equity, which were historically tried to the court, were therefore unaffected by it. Similarly, Rule 38 of the Federal Rules has no bearing on the right to a jury trial in suits in equity, for it simply preserves inviolate “[t]he right of trial by jury as declared by the Seventh Amendment.” Thus this Rule, like the Amendment itself, neither restricts nor enlarges the right to jury trial. Indeed nothing in the Federal Rules can rightly be construed to enlarge the right of jury trial, for in the legislation authorizing the Rules, Congress expressly provided that they “shall neither abridge, enlarge, nor modify the substantive rights of any litigant.” 48 Stat. 1064. See 28 U. S. C. § 2072. I take this plain, simple, and straightforward language to mean that after the promulgation of the Federal Rules, as before, the constitutional right to a jury trial attaches only to suits at common law. So, apparently, has every federal court that has discussed the issue. Since, as the Court concedes, a shareholder’s derivative suit could be brought only in equity, it would seem to me to follow by the most elementary logic that in such suits there is no constitutional right to a trial by jury. Today the Court tosses aside history, logic, and over 100 years of firm precedent to hold that the plaintiff in a shareholder’s derivative suit does indeed have a constitutional right to a trial by jury. This holding has a questionable basis in policy and no basis whatever in the Constitution.

The Court begins by assuming the “dual nature” of the shareholder’s action. While the plaintiff’s right to get into court at all is conceded to be equitable, once he is there the Court says his claim is to be viewed as though it were the claim of the corporation itself. If the corporation would have been entitled to a jury trial on such a claim, then, it is said, so would the shareholder. This conceptualization is without any historical basis. For the fact is that a shareholder’s suit was not originally viewed in this country, or in England, as a suit to enforce a corporate cause of action. Rather, the shareholder’s suit was initially permitted only against the managers of the corporation — not third parties — and it was conceived of as an equitable action to enforce the right of a beneficiary against his trustee. The shareholder was not, therefore, in court to enforce indirectly the corporate right of action, but to enforce directly his own equitable right of action against an unfaithful fiduciary. Later the rights of the shareholder were enlarged to encompass suits against third parties harming the corporation, but “the postulated ‘corporate cause- of action’ has never been thought to describe an actual historical class of suit which was recognized by courts of law.” Indeed the commentators, including those cited by the Court as postulating the analytic duality of the shareholder’s derivative suit, recognize that historically the suit has in practice always been treated as a single cause tried exclusively in equity. They agree that there is therefore no constitutional right to a jury trial even where there might have been one had the corporation itself brought the suit.

This has been not simply the “general” or “prevailing” view in the federal courts as the Court says, but the unanimous view with the single exception of the Ninth Circuit’s 1963 decision in DePinto v. Provident Security Life Ins. Co., 323 F. 2d 826, a decision that has since been followed by no court until the present case.

The Court would have us discount all those decisions rendered before 1938, when the Federal Rules of Civil Procedure were adopted, because it says that before the promulgation of the Rules, “[pjurely procedural impediments” somehow blocked the exercise of a constitutional right. In itself this would seem a rather shaky premise upon which to build an argument. But the Court’s position is still further weakened by the fact that any “[pjurely procedural impediments” to a jury trial in a derivative suit were eliminated, not in 1938, but at least as early as 1912. For Rule 23 of the Equity Rules of that year provided that if a “matter ordinarily determinable at law” arose in an equity suit it should “be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court.” 226 U. S. 654. These applicable principles included the right of jury trial. Consequently, when the Court said in United Copper Co. v. Amalgamated Copper Co., 244 U. S. 261, 264, that “it is clear” that the remedy of a stockholder seeking to enforce the rights of a corporation — whatever their nature — is not in law but in equity, it was not because there were “procedural impediments” to a jury trial on any “legal issues.” Rather, it was because the suit itself was conceived of as a wholly equitable cause of action.

This was also true in Fleitmann v. Welsbach Street Lighting Co., 240 U. S. 27, on which the Court so heavily relies even though it was a pre-Federal-Rules case. In Fleitmann the plaintiff sued derivatively to enforce a corporate right of action for treble damages under the antitrust laws. Treble damages were considered punitive, and the statute was read to imply a right in the defendant to a jury trial. In his opinion for the Court, Mr. Justice Holmes recognized the potential for abuse: derivative rather than corporate actions could be brought in order to deprive the defendant of his right to a jury trial. The Court’s solution was to dismiss the bill because the antitrust statute “should not be read as attempting to authorize liability to be enforced otherwise than through the verdict of a jury in a court of common law.” Id., at 29. I do not see how the Court today can draw sustenance from this decision. Rather, the Fleitmann case seems to me to stand for a proposition diametrically opposed to that which the Court seeks to establish, namely, the proposition that because a derivative action is wholly equitable, there is no right to a jury trial. The Court in Fleitmann simply held that since there was a statutory right to a jury in all actions for treble damages under the antitrust laws, a derivative suit seeking such damages could not be maintained. Thus the bill had to be dismissed.

These pre-1938 cases, then, firmly establish the unitary, equitable basis of shareholders’ derivative suits and in no way support the Court’s holding here. But, the Court says, whatever the situation may have been before 1938, the Federal Rules of Civil Procedure of that year, at least as construed in our decisions more than 20 years later in Beacon Theatres, Inc. v. Westover, 359 U. S. 500, and Dairy Queen, Inc. v. Wood, 369 U. S. 469, in any event require the conclusion reached today. I can find nothing in either of these cases that leads to that conclusion.

In Beacon Theatres the plaintiff sought both an injunction preventing the defendant from instituting an antitrust action and a declaratory judgment that certain moving picture distribution contracts did not violate the antitrust laws. The defendant answered and counterclaimed for treble damages under the antitrust laws. He demanded a jury trial on the factual issues relating to his counterclaim. The district court held that even though there were factual issues common to both the complaint and the counterclaim, it would first hear the plaintiff’s suit for equitable relief before submitting the counterclaim to a jury. The Court of Appeals affirmed, and this Court reversed, upon the ground that if the equitable claim were tried first, there might be an estop-pel which would defeat the defendant’s right to a full jury trial on all the factual issues raised in his counterclaim. Similarly in Dairy Queen the Court simply held that a plaintiff could not avoid a jury trial by joining legal and equitable causes of action in one complaint.

It is true that in Beacon Theatres it was stated that the 1938 Rules did diminish the scope of federal equity jurisdiction in certain particulars. But the Court’s effort to force the facts of this case into the mold of Beacon Theatres and Dairy Queen simply does not succeed. Those cases involved a combination of historically separable suits, one in law and one in equity. Their facts fit the pattern of cases where, before the Rules, the equity court would have disposed of the equitable claim and would then have either retained jurisdiction over the suit, despite the availability of adequate legal remedies, or enjoined a subsequent legal action between the same parties involving the same controversy.

But the present case is not one involving traditionally equitable claims by one party, and traditionally legal claims by the other. Nor is it a suit in which the plaintiff is asserting a combination of legal and equitable claims. For, as we have seen, a derivative suit has always been conceived of as a single, unitary, equitable cause of action. It is for this reason, and not because of “procedural impediments,” that the courts of equity did not transfer derivative suits to the law side. In short, the cause of action is wholly a creature of equity. And whatever else can be said of Beacon Theatres and Dairy Queen, they did not cast aside altogether the historic division between equity and law.

If history is to be so cavalierly dismissed, the derivative suit can, of course, be artificially broken down into separable elements. But so then can any traditionally equitable cause of action, and the logic of the Court’s position would lead to the virtual elimination of all equity jurisdiction. An equitable suit for an injunction, for instance, often involves issues of fact which, if damages had been sought, would have been triable to a jury. Does this mean that in a suit asking only for injunctive relief these factual issues must be tried to the jury, with the'judge left to decide only whether, given the jury’s findings, an injunction is the appropriate remedy? Certainly the Federal Rules make it possible to try a suit for an injunction in that way, but even more certainly they were not intended to have any such effect. Yet the Court’s approach, it seems, would require that if any “legal issue” procedurally could be tried to a jury, it constitutionally must be tried to a jury.

The fact is, of course, that there are, for the most part, no such things as inherently “legal issues” or inherently “equitable issues.” There are only factual issues, and, “like chameleons [they] take their color from surrounding circumstances.” Thus the Court’s “nature of the issue” approach is hardly meaningful.

As a final ground for its conclusion, the Court points to a supposed analogy to suits involving class actions. It says that before the Federal Rules such suits were considered equitable and not triable to a jury, but that since promulgation of the Rules the federal courts have found that “plaintiffs may obtain a jury trial on any legal issues they present.” Of course the plaintiff may obtain such a trial even in a derivative suit. Nothing in the Constitution or the Rules precludes the judge from granting a jury trial as a matter of discretion. But even if the Court means that some federal courts have ruled that the class action plaintiff in some situations has a constitutional right to a jury trial, the analogy to derivative suits is wholly unpersuasive. For it is clear that the draftsmen of the Federal Rules intended that Rule 23 as it pertained to class actions should be applicable, like other rules governing joinder of claims and parties, “to all actions, whether formerly denominated legal or equitable.” This does not mean that a formerly equitable action is triable to a jury simply because it is brought on behalf of a class, but only that a historically legal cause of action can be tried to a jury even if it is brought as a class action. Since a derivative suit is historically wholly a creation of equity, the class action “analogy” is in truth no analogy at all.

The Court’s decision today can perhaps be explained as a reflection of an unarticulated but apparently overpowering bias in favor of jury trials in civil actions. It certainly cannot be explained in terms of either the Federal Rules or the Constitution.

       See, e. g., Curriden v. Middleton, 232 U. S. 633 (1914); Whitehead v. Shattuck, 138 U. S. 146 (1891); 5 J. Moore, Federal Practice ¶ 38.11 [5] (2d ed. 1969).

       1 W. Blackstone, Commentaries *475; cf. Bank of Columbia v. Patterson’s Adm’r, 7 Cranch 299 (1813); Bank of Kentucky v. Wister, 2 Pet. 318 (1829).

       Prunty, The Shareholders’ Derivative Suit: Notes on Its Derivation, 32 N. Y. U. L. Rev. 980 (1957), treats the development of the equitable remedy.

        Delaware & Hudson Co. v. Albany & S. R. Co., 213 U. S. 435 (1909); Doctor v. Harrington, 196 U. S. 579 (1905); Quincy v. Steel, 120 U. S. 241 (1887); Hawes v. Oakland, 104 U. S. 450 (1882). Soon after Hawes v. Oakland, supra, the preconditions to a shareholder’s suit were promulgated as Equity Rule 94, 104 U. S. ix, which became Equity Rule 27, 226 U. S. 656 (1912), then Fed. Rule Civ. Proc. 23 (b), 308 U. S. 690 (1938), and is now Fed. Rule Civ. Proc. 23.1, 383 U. S. 1050 (1966).

       See Koster v. Lumbermens Mut. Cas. Co., 330 U. S. 518, 522-523 (1947); Ashwander v. TV A, 297 U. S. 288 (1936). See also 13 W. Fletcher, Cyclopedia of the Law of Private Corporations § 5941.1 (1961 ed.); 2 G. Hornstein, Corporation Law and Practice § 716 (1959); 4 J. Pomeroy, Equity Jurisprudence § 1095, p. 278 (5th ed. 1941). Insofar as the stockholders may have been asserting their own direct interest, they closely resemble other class action plaintiffs who could proceed, before merger, only in equity.

       The dilemma of the stockholder seeking treble damages for the corporation became real and complete in United Copper Co. v. Amalgamated Copper Co., 244 U. S. 261 (1917), where the stockholder-plaintiff sought treble damages in an action at law. The Court rejected the claim by reiterating the traditional view that a shareholder was without standing to sue at law on a corporate cause. The treble-damage action was a legal proceeding and only the corporation could bring it. The Court of Appeals for the Second Circuit has held that the federal rules have resolved the dilemma and that derivative actions for treble damages under the antitrust laws are now proper. Fanchon & Marco, Inc. v. Paramount Pictures, Inc., 202 F. 2d 731 (C. A. 2d Cir. 1953). Cf. Ramsburg v. American Inv. Co. of Ill., 231 F. 2d 333 (C. A. 7th Cir. 1956). See generally Comment, Federal Antitrust Law— Stockholders’ Remedies For Corporate Injury Resulting From Antitrust Violations: Derivative Antitrust Suit and Fiduciary Duty Action, 59 Mich. L. Rev. 904 (1961).

       For example, in Amalgamated Copper the Court noted that in Quincy v. Steel, 120 U. S. 241 (1887), a shareholder’s bill in equity that sought to enforce “a purely legal claim of the corporation— damages for breach of contract” was dismissed, “not because the suit should have been at law, but because the bill failed to show that complainant had made sufficient effort to induce the directors to enter suit.” 244 U. S., at 264-265, n. 2. Delaware & Hudson Co. v. Albany & S. R. Co., supra, n. 4, involved a derivative suit for money damages due under a lease. The stockholders’ right to sue was sustained; no jury trial issue appears to have been raised.

       See, e. g., Goetz v. Manufacturers’ & Traders’ Trust Co., 154 Misc. 733, 277 N. Y. S. 802 (Sup. Ct. 1935); Isaac v. Marcus, 258 N. Y. 257, 179 N. E. 487 (1932); Morton v. Morton Realty Co., 41 Idaho 729, 241 P. 1014 (1925); Neff v. Barber, 165 Wis. 503, 162 N. W. 667 (1917); Robinson v. Smith, 3 Paige Ch. 222, 231, 233 (N. Y. 1832); 4 W. Cook, Corporations § 734 (8th ed. 1923); S. Thompson & J. Thompson, Law of Corporations § 4661 (Supp. 1931); 6 id., § 4653 (3d ed. 1927).

       The possibility that the merged federal practice altered the procedures in derivative suits was early recognized, Fanchon & Marco, Inc. v. Paramount Pictures, Inc., supra, n. 6, but until the action of the District Court below DePinto was alone in holding that a right to a jury trial existed in derivative actions. Cf. Richland v. Crandall, 259 F. Supp. 274 (D. C. S. D. N. Y. 1966). See also Metcalf v. Shamel, 166 Cal. App. 2d 789, 333 P. 2d 857 (1959); Steinway v. Griffith Consol. Theatres, 273 P. 2d 872 (Okla. 1954).

       As our cases indicate, the “legal” nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries. Of these factors, the first, requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply. See James, Right to a Jury Trial in Civil Actions, 72 Yale L. J. 655 (1963).

       See Koster v. Lumbermens Mut. Cas. Co., 330 U. S. 518 (1947); Meyer v. Fleming, 327 U. S. 161, 167 (1946); Davenport v. Dows, 18 Wall. 626 (1874).

       The Judicial Code of 1911, § 267, 36 Stat. 1163, re-enacting the Act of Sept. 24, 1789, § 16, 1 Stat. 82, provided: “Suits in equity shall not be sustained in any court of the United States in any case where a plain, adequate, and complete remedy may be had at law.”

       It would appear that the same conclusions could have been reached under Equity Rule 23 and the Law and Equity Act of 1915, Act of March 3, 1915, 38 Stat. 956. See Southern R. Co. v. City of Greenwood, 40 F. 2d 679 (D. C. W. D. S. C. 1928); 2 J. Moore, Federal Practice ¶ 2.05 (2d ed. 1967). Rule 23 provided:
      “If in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court.”

        Farmers Co-operative Oil Co. v. Socony-Vacuum Oil Co., 43 F. Supp. 735 (D. C. N. D. Iowa 1942).

       Other equitable devices are used under the rules without depriving the parties employing them of the right to a jury trial on legal issues. For example, although the right to intervene may in some cases be limited, United States for the Use and Benefit of Browne & Bryan Lumber Co. v. Massachusetts Bonding & Ins. Co., 303 F. 2d 823 (C. A. 2d Cir. 1962); Dickinson v. Burnham, 197 F. 2d 973 (C. A. 2d Cir.), cert. denied, 344 U. S. 875 (1952), when intervention is permitted generally, the intervenor has a right to a jury trial on any legal issues he presents. See 3B J. Moore, Federal Practice ¶ 24.16 [7] (2d ed. 1969); 5 id., ¶ 38.38 [3]. A similar development seems to be taking place in the lower courts in inter-pleader actions. Before merger interpleader actions lay only in equity, and there was no right to a jury even on issues that might, under other circumstances, have been tried to a jury. Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235 (1922). This view continued for some time after merger, see Bynum
        v. Prudential Life Ins. Co., 7 F. R. D. 585 (D. C. E. D. S. C. 1947), but numerous courts and commentators have now come to the conclusion that the right to a jury should not turn on how the parties happen to be brought into court. See Pan American Fire & Cas. Co. v. Revere, 188 F. Supp. 474 (D. C. E. D. La. 1960); Savannah Bank & Trust Co. v. Block, 175 F. Supp. 798 (D. C. S. D. Ga. 1959); Westinghouse Elec. Corp. v. United Elec. Radio & Mach. Workers of America, 99 F. Supp. 597 (D. C. W. D. Pa. 1951); John Hancock Mut. Life Ins. Co. v. Yarrow, 95 F. Supp. 185 (D. C. E. D. Pa. 1951); 2 W. Barron & A. Holtzoff, Federal Practice and Procedure § 556 (Wright ed. 1961); 3A J. Moore, Federal Practice ¶ 22.14 [4] (2d ed. 1969). But see Pennsylvania Fire Ins. Co. v. American Airlines, Inc., 180 F. Supp. 239 (D. C. E. D. N. Y. 1960); Liberty Nat. Life Ins. Co. v. Brown, 119 F. Supp. 920 (D. C. M. D. Ala. 1954).

       Where a new cause of action is created by Congress, and nothing is said about how it is to be tried, the jury trial issue is determined by fitting the cause into its nearest historical analogy. Luria v. United States, 231 U. S. 9; see James, Right to a Jury Trial in Civil Actions, 72 Yale L. J. 655.

       See, e. g., Ettelson v. Metropolitan Life Ins. Co., 137 F. 2d 62, 65; 5 J. Moore, Federal Practice ¶ 38.07 [1] and cases cited therein.

       The principle that the Rules effected no enlargement or restriction of the right of jury trial has “received complete judicial approbation.” 5 J. Moore, Federal Practice ¶ 38.07 [1] and cases cited therein.

       Virtually every state and federal court that has faced this issue has similarly reasoned to the same conclusion. See, e. g., Goetz v. Manufacturers’ & Traders’ Trust Co., 154 Misc. 733, 277 N. Y. S. 802 (Sup. Ct.); Metcalf v. Shamel, 166 Cal. App. 2d 789, 333 P. 2d 857; Liken v. Shaffer, 64 F. Supp. 432; Miller v. Weiant, 42 F. Supp. 760. The equitable nature of the derivative suit has been recognized in several decisions of this Court. See, e. g., Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 547-548. It was also reflected in the adoption of Equity Rule 94 in 1882, and Rule 27 of the Equity Rules of 1912 which established the preconditions to bringing shareholders’ derivative suits in the federal courts. These rules are the forerunners of Rule 23 (b) of Fed. Rule Civ. Proc. of 1938, and of Fed. Rule Civ. Proc. 23.1 (1966), which now controls the initiation of such suits. See 3B J. Moore, Federal Practice ¶ 23.1.15 [1].

       See, e. g., J. Frank, Courts on Trial 110-111 (1949). Certainly there is no consensus among commentators on the desirability of jury trials in civil actions generally. Particularly where the issues in the case are complex — as they are likely to be in a derivative suit — much can be said for allowing the court discretion to try the case itself. See discussion in 5 J. Moore, Federal Practice ¶ 38.02 [1],

        Robinson v. Smith, 3 Paige Ch. 222 (N. Y.); Attorney General v. Utica Ins. Co., 2 Johns. Ch. 371 (N.Y.), discussed in Prunty, The Shareholders’ Derivative Suit: Notes on its Derivation, 32 N. Y. U. L. Rev. 980.

       Note, The Right to a Jury Trial in a Stockholder’s Derivative Action, 74 Yale L. J. 725,730.

       See, e. g., N. Lattin, The Law of Corporations, e. 8, §3; 2 G. Homstein, Corporation Law and Practice §730; 13 W. Fletcher, Cyclopedia of the Law of Private Corporations §5931 (1961 ed.); 5 J. Moore, Federal Practice ¶ 38.38 [4].

       See Southern B. Co. v. City of Greenwood, 40 F. 2d 679.

       Moreover, since the suit was brought after the promulgation of Equity Rule 23 it seems evident that here, too, it was not merely “procedural impediments” that prevented the antitrust claim from being tried to a jury, but presumably the fact that no matter arising in a derivative suit — whatever its “inherent nature” — was considered to be one “ordinarily determinable at law.”

       See discussion in 74 Yale L. J., at 736-737.

       James, supra, n. 1, at 692. As Professor Moore has put it, “Whether issues are legal or equitable may, of course, depend upon the manner in which they are presented 5 J. Moore, Federal Practice ¶ 38.04 [1], n. 40. And he, along with virtually every other commentator, concludes that if the issues are presented in a shareholder’s derivative suit they are equitable and the plaintiff has no constitutional right to have them tried by a jury. 5 J. Moore, Federal Practice ¶ 38.38 [4].

       Original Committee Note of 1937 to Rule 23. Moreover, as Professor Moore points out, certain class actions could be maintained at law in the federal courts even before the Federal Rules. 5 J. Moore, Federal Practice ¶ 38.38 [2].


author: Per Curiam.

text:
    ALABAMA v. FINCH, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, et al.
    No. 38,
    Orig.
    Decided February 2, 1970

      Albert P. Brewer, Governor of Alabama, Daniel J. Meador, and Maüry D. Smith on the motion.
   Per Curiam.

On January 26, 1970, the plaintiff filed a motion seeking leave to file a complaint invoking the original jurisdiction of this Court naming Robert Finch, as Secretary of the Department of Health, Education, and Welfare, and John N. Mitchell, as Attorney General of the United States, as defendants.

The alleged emergent nature of the claims for relief led the Court to give expedited consideration to the motion and proffered complaint and, having examined the complaint, we conclude it fails to state a claim against either of the defendants warranting the exercise of the original jurisdiction of this Court.

Accordingly, the motion for leave to file the said complaint is denied.


text:
    MISSISSIPPI v. FINCH, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, et al.
    No. 39,
    Orig.
    Decided February 2, 1970

      John Bell Williams, Governor of Mississippi, A. F. Summer, Attorney General, and William A. Attain, Assistant Attorney General, on the motion.
   Per Curiam.

On February 2, 1970, the plaintiff filed a motion seeking leave to file a complaint invoking the original jurisdiction of this Court naming Robert Finch, individually and as Secretary of the Department of Health, Education, and Welfare, and John N. Mitchell, individually and as Attorney General of the United States, as defendants.

The alleged emergent nature of the claims for relief led the Court to give expedited consideration to the motion and proffered complaint and, having examined the complaint, we conclude it fails to state a claim against either of the defendants warranting the exercise of the original jurisdiction of this Court.

Accordingly, the motion for leave to file the said complaint is denied.

Mr. Justice Harlan took no part in the consideration or decision of this motion.


text:
    JOHNSON et al. v. WASSERMAN, JUDGE, et al.
    No. 832.
    Decided February 2, 1970

      Alvin A. Fein for appellants.

      John T. Corrigan and John L. Dowling for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    KIRK v. BOARD OF REGENTS OF THE UNIVERSITY OF CALIFORNIA
    No. 836.
    Decided February 2, 1970

      Charles R. B. Kirk, Norman Dorsen, Clark Byse, and William W. Van Alstyne for appellant.

      Thomas J. Cunningham and David W. Louisell for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    STEIN v. LUKEN et al.
    No. 854.
    Decided February 2, 1970

      Yale Stein, appellant, pro se.

   Per Curiam.

The appeal is dismissed for failure to docket the case within the time prescribed by Rule 13.


text:
    PROVIDENCE & WORCESTER CO. v. UNITED STATES et al.
    No. 919.
    Decided February 2, 1970

      Harold I. Meyerson for appellant.

      Solicitor General Griswold, Assistant Attorney General McLaren, Deputy Solicitor General Springer, Howard E. Shapiro, Robert W. Ginnane, and Leonard S. Goodman for appellees the United States et al.
   Per Curiam.

The judgment is affirmed.

Mr. Justice Marshall took no part in the consideration or decision of this case.


text:
    TV PIX, INC., et al. v. TAYLOR et al.
    No. 214.
    Decided February 2, 1970

      George M. McMillan for appellants.

      Harvey Dickerson, Attorney General of Nevada, for appellees.
    Briefs of amici curiae urging affirmance were filed by Solicitor General Griswold and Henry Getter for the United States, and by Paul Rodgers for the National Association of Regulatory Utility Commissioners. E. Stratford Smith and Bruce Lovett filed a brief for the National Cable Television Association, Inc., as amicus curiae.

   Per Curiam.

The motion of the National Association of Regulatory Utility Commissioners for leave to file a brief, as amicus curiae, is granted. The motion for leave to file the motion to dismiss or affirm is also granted.

The motion to affirm is granted and the judgment is affirmed.


text:
    No. 139.
    Siu Fung Luk v. Rosenberg, District Director of Immigration and Naturalization Service.

      Hiram W. Kwan for petitioner. Solicitor General Grisioold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Paul C. Summitt for respondent.
   C. A. 9th Cir. Petition for writ of certiorari dismissed June 25, 1969, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 27.
    Mann v. Vermont Educational Buildings Financing Agency.

      Neil J. Cohen for appellant. Chester S. Ketcham for appellee.
    [For earlier order herein, see 394 U. S. 957.]
   Appeal from Sup. Ct. Vt. Appeal dismissed July 1, 1969, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 503,
    Misc.
    Carter v. United States.
   C. A. 6th Cir. Petition for writ of certiorari dismissed July 11, 1969, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 59,
    Misc.
    Malagon-Ramirez v. United States.
   C. A. 9th Cir. Petition for writ of certiorari dismissed July 25, 1969, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 7,
    Misc.
    Johnson, aka Watford v. Virginia.

      J. Hugo Madison and Michael Meltsner for petitioner. Reno S. Harp III, Assistant Attorney General of Virginia, for respondent.
   Sup. Ct. App. Va. Petition for writ of certiorari dismissed August 1, 1969, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 174,
    Misc.
    Smith v. United States.

      G. S. Crihfield for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Robert G. Maysack for the United States.
   C. A. 4th Cir. Petition for writ of certiorari dismissed August 14, 1969, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 330,
    Misc.
    Bruno v. Louisiana.

      G. Wray Gill, Sr., and George M. Leppert for petitioner.
   Sup. Ct. La. Petition for writ of certiorari dismissed August 18, 1969, pursuant to Rule 60 of the Rules of this Court.


text:
    No. 287.
    Bilbao-Bastida v. Immigration and Naturalization Service.

      David Rein for petitioner. Solicitor General Griswold for respondent.
   C. A. 9th Cir. Petition for writ of certiorari dismissed September 25, 1969, pursuant to Rule 60 of the Rules of this Court.


text:
    October 9, 1969
    No. 632.
    No. 713.
    Alexander et al. v. Holmes County Board of Education et al.; and Holmes County Board of Education et al. v. Alexander et al.
   C. A. 5th Cir. Motion of Lawyers’ Committee for Civil Rights Under Law for leave to file a brief as amicus curiae in No. 632 granted. Petition for a writ of certiorari in No. 632 granted, and cross-petition for a writ of certiorari in No. 713 denied. No. 632 set for oral argument on Thursday, October 23.

Case will be heard on the certified unprinted record as well as printed briefs already on file and typewritten copies of any further briefs the parties may desire to submit. Typewritten brief for the petitioners shall be on file by Friday, October 17, and the typewritten brief, or briefs, for respondents shall be on file by Wednesday, October 22.

Jack Greenberg, James M. Nabrit III, Norman C. Amaker, and Melvyn Zarr for petitioners in No. 632. A. F. Summer, Attorney General of Mississippi, and John C. Satterfield for Holmes County Board of Education et al., and Solicitor General Griswold for the United States, respondents in No. 632. Messrs. Summer and Satterfield for petitioners Holmes County Board of Education et al. in No. 713. John W. Douglas, Bethuel M. Webster, Cyrus R. Vance, Asa Sokolow, John Schafer, Louis F. Oberdorfer, John Doar, Richard C. Dinkelspiel, Arthur H. Dean, Lloyd N. Cutler, Bruce Bromley, Berl I. Bernhard, Timothy B. Dyk, and Michael R. Klein for Lawyers’ Committee for Civil Rights Under Law as amicus curiae in support of the petition in No. 632.

Reported below: 417 F. 2d 852.


text:
    October 13, 1969
    No. 2.
    No. 3.
    Public Utility District No. 1 of Pend Oreille County v. City of Seattle; and City of Seattle v. Public Utility District No. 1 of Pend Oreille County.
    A. L. Newbould and Richard S. White for the City of Seattle in both cases. Clarence C. Dill, William G. Ennis, and Bennett Boskey for Public Utility District No. 1 of Pend Oreille County in both cases. Solicitor General Griswold filed a memorandum for the United States as amicus curiae, by invitation of the Court, 390 U. S. 935, in opposition to the petitions.
   C. A. 9th Cir. Petitions for writs of certiorari dismissed pursuant to Rule 60 of the Rules of this Court.

Reported below: 382 F. 2d 666.


text:
    No. 870,
    Misc.
    Bunter v. United States.

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Robert G. Maysack for the United States.
   C. A. D. C. Cir. Petition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court.


text:
    No. 573,
    October Term, 1968.
    National Labor Relations Board v. Gissel Packing Co., Inc., et al.,

      Lewis P. Hamlin, Jr., for General Steel Products, Inc., et al., John E. Jenkins, Jr., for Gissel Packing Co., Inc., and Fred F. Holroyd for Heck’s Inc. on the motions. Solicitor General Griswold in opposition.
   395 U. S. 575. Motions of respondents Gissel Packing Co., Inc., and Heck’s Inc. to reassess costs in this case denied. Motion of respondents General Steel Products, Inc., and Crown Flex of North Carolina, Inc., to reassess costs in this case granted and no costs are assessed against those respondents. Gissel Packing Co., Inc., is assessed costs of $2,705.24 and Heck’s Inc. is assessed costs of $1,981.06.

The Chief Justice took no part in the consideration or decision of these motions.


text:
    No. 1279,
    October Term, 1968.
    United States v. Ideal Basic Industries, Inc.,
   395 U. S. 936. Respondent is requested to file a response to petition for rehearing within 30 days.

Mr. Justice White and Mr. Justice Marshall took no part in the entry of this order.


text:
    No.-.
    Levy v. Parker, Warden, et al.
   Application for bail granted by Mr. Justice Douglas pending action by this Court is continued pending disposition of case by the United States District Court for the Middle District of Pennsylvania.

Mr. Justice Marshall took no part in the consideration or decision of this application.


text:
    No.-.
    Anderson v. Raimondi.
   Motion for leave to file a bill of complaint under the original jurisdiction denied.


text:
    No. 15.
    DeBacker v. Brainard, Sheriff.

      Alfred L. Scanlan on the motion.
   Appeal from Sup. Ct. Neb. [Probable jurisdiction noted, 393 U. S. 1076.] Motion of National Council of Juvenile Court Judges for leave to file a brief as amicus curiae granted.


text:
    No. 19.
    No. 34.
    First National Bank in Plant City v. Dickinson, Comptroller of Florida, et al.; and Camp, Comptroller of the Currency v. Dickinson, Comptroller of Florida, et al.

      James A. Dunlap on the motion.
   C. A. 5th Cir. [Certiorari granted, 393 U. S. 1079.] Motion of First National Bank of Gainesville, Georgia, et al. for leave to file a brief as amici curiae granted.


text:
    No. 25.
    No. 52.
    Zuber et al. v. Allen et al.; and Hardin, Secretary of Agriculture v. Allen et al.

      Charles Ryan for respondents on their motions in both cases. James M. Jeff or d, Attorney General, for the State of Vermont as amicus curiae on the motion in both cases. Lawrence Hollman and Carlyle C. Ring, Jr., for Zuber et al. in opposition to respondents’ motions.
   C. A. D. C. Cir. [Certiorari granted, 394 U. S. 958.] Motion of Lorton Blair et al. for leave to file a brief as amici curiae granted. Motions of respondents for additional time for oral argument and to postpone oral argument denied. Motion of State of Vermont for leave to participate in oral argument as amicus curiae denied, unless respondents cede to it part of their time for argument.

Mr. Justice Stewart would grant motion of State of Vermont. The Chief Justice and Mr. Justice Marshall took no part in the consideration or decision of these motions.


text:
    No. 31.
    Brockington v. Rhodes, Governor of Ohio, et al.
   Appeal from Sup. Ct. Ohio. [Probable jurisdiction noted, 393 U. S. 1078.] Further consideration of suggestion of mootness by certain appellees postponed to hearing of case.


text:
    No. 32.
    National Labor Relations Board v. J. H. Rutter-Rex Manufacturing Co., Inc., et al.

      Jacob Sheinkman, Ralph N. Jackson, and James J. Graham on the motion.
   C. A. 5th Cir. [Certiorari granted, 393 U. S. 1116.] Motion of Amalgamated Clothing Workers of America, AFL-CIO, for leave to participate in oral argument denied.


text:
    No. 33.
    Sullivan et al. v. Little Hunting Park, Inc., et al.

      Arnold Forster for Anti-Defamation League of B’nai B’rith, Sol Rabkin for National Committee Against Discrimination in Housing, Inc., Melvin L. Wulf for American Civil Liberties Union, and Edwin J. Lukas for American Jewish Committee on the motion.
   Sup. Ct. App. Va. [Certiorari granted, 394 U. S. 942.] Motion of Anti-Defamation League of B’nai B’rith et al. for leave to file a brief as amici curiae granted.


text:
    No. 39.
    Hall et ux. v. Beals, Clerk and Recorder of El Paso County, et al.

      Joseph L. Rauh, Jr., and John Silard on the motion.
   Appeal from D. C. Colo. [Probable jurisdiction noted, 394 U. S. 1011.] Motion of Bipartisan Committee on Absentee Voting for leave to participate in oral argument as amicus curiae denied.


text:
    No. 40.
    Conway v. California Adult Authority et al.
   C. A. 9th Cir. [Certiorari granted, 393 U. S. 1062.] Motion of petitioner for an injunction and for appointment of new counsel denied. Typewritten brief submitted by petitioner ordered filed.


text:
    No. 41.
    No. 59.
    Choctaw Nation et al. v. Oklahoma et al.; and Cherokee Nation or Tribe of Indians in Oklahoma v. Oklahoma et al.

      Charles A. Hobbs for Wilkinson, Cragun & Barker on its motion in both cases. J. D. McLaughlin for petitioners in No. 41 and Peyton Ford for petitioner in No. 59 in opposition. Solicitor General Griswold on his motion in both cases.
   [Certiorari granted, 394 U. S. 972.] Motion of Wilkinson, Cragun & Barker for leave to file a brief as amicus curiae granted. Motion of the Solicitor General for leave to participate in oral argument as amicus curiae granted and 20 minutes allotted for that purpose. Twenty additional minutes allotted to counsel for respondents.


text:
    No. 50.
    No. 268.
    North Carolina v. Alford. Parker v. North Carolina.

      Jack Greenberg, James M. Nabrit III, Michael Meltsner, Norman C. Amaker, Charles Stephen Ralston, and Anthony G. Amsterdam on the motion in both cases.
   Appeal from C. A. 4th Cir. [Probable jurisdiction noted, 394 U. S. 956]; and

Ct. App. N. C. [Certiorari granted, 395 U. S. 974.] Motion of Albert Bobby Childs et al. for leave to file a brief as amici curiae granted.


text:
    No. 53.
    Baird v. State Bar of Arizona.

      John P. Frank on the motion.
   Sup. Ct. Ariz. [Certiorari granted, 394 U. S. 957.] Motion of Peter D. Baird for leave to argue pro hac vice granted.


text:
    No. 265.
    Boddie et al. v. Connecticut et al.
   Appeal from D. C. Conn. [Probable jurisdiction noted, 395 U. S. 974.] Motion of Center on Social Welfare Policy and Law et al. for leave to file a brief as amici curiae granted.


text:
    No. 81.
    Simmons et ux. v. West Haven Housing Authority.

      Robert K. Killian, Attorney General, and F. Michael Ahern, Assistant Attorney General, for the State of Connecticut on its motion.
   Appeal from App. Div., Cir. Ct. Conn. [Probable jurisdiction noted, 394 U. S. 957.] Motion of the State of Connecticut for leave to participate in oral argument as amicus curiae in support of judgment granted. Motion of National Legal Aid and Defender Assn, for leave to file a brief as amicus curiae granted. Motion of Center on Social Welfare Policy and Law et al. for leave to file a brief as amici curiae granted.


text:
    No. 266.
    Sanks et al. v. Georgia et al.
   Appeal from Sup. Ct. Ga. [Probable jurisdiction noted, 395 U. S. 974.] Motion of Center on Social Welfare Policy and Law et al. for leave to file a brief as amici curiae granted.


text:
    No. 85.
    Association of Data Processing Service Organizations, Inc., et al. v. Camp, Comptroller of the Currency of the United States, et al.

      Matthew P. Mitchell and Leland R. Selna, Jr., on the motion.
   C. A. 8th Cir. [Certiorari granted, 395 U. S. 976.] Motion of Sierra Club for leave to file a brief as amicus curiae granted.


text:
    No. 125.
    Martin Marietta Corp. v. Feder et al.
   C. A. 2d Cir. The Solicitor General is invited to file a brief expressing the views of the United States.


text:
    No. 214.
    TV Pix, Inc., et al. v. Taylor et al.
   Appeal from D. C. Nev. The Solicitor General is invited to file a brief expressing the views of the United States.


text:
    No. 270.
    Brady v. United States.
   C. A. 10th Cir. [Certiorari granted, 395 U. S. 976.] Motion for appointment of counsel granted. It is ordered that Peter J. Adang, Esquire, of Albuquerque, New Mexico, be appointed to serve as counsel for petitioner in this case.


text:
    No. 189.
    Minor v. United States.
   C. A. 2d Cir. [Certiorari granted, 395 U. S. 932.] Motion for appointment of counsel under the Criminal Justice Act granted. It is ordered that Phylis Skloot Bamberger, of New York, New York, a member of the Bar of this Court, be appointed to serve as counsel for petitioner in this case.


text:
    No. 252,
    No. 317,
    Misc.
    Misc.
    Hiller v. Ciccone, Medical Center Director; and Furtak v. Mancusi, Warden.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 220,
    Misc.
    Norman v. United States.
   C. A. 9th Cir. Motion of petitioner for leave to file supplement to petition for certiorari granted.


text:
    No. 2,
    Misc.
    Chandler, U. S. District Judge v. Judicial Council of the Tenth Circuit of the United States.
    [For earlier order herein, see 395 U. S. 956.]
   Motion of Carl L. Shipley, pro se, for leave to file a brief as amicus curiae granted. Motion of Solicitor General Griswold, pro se, for leave to participate in oral argument as amicus curiae granted and 30 minutes allotted for that purpose. Thirty additional minutes allotted to counsel for petitioner. Case removed from current argument list and it is ordered that briefs and oral arguments be presented by counsel for the parties.

Mr. Justice Marshall took no part in the consideration or decision of this order.


text:
    No. 201,
    Misc.
    Gallegos v. Arizona ex rel. Eyman, Warden.
   Motion for leave to file petition for writ of mandamus and other relief denied.


text:
    No. 149,
    Misc.
    In re Disbarment of Sullivan.
   It having been reported to the Court that Thomas W. Sullivan, of Montgomery, Alabama, has been disbarred from the practice of the law by the Supreme Court of the State of Alabama; and this Court by order of April 28, 1969 [394 U. S. 995], having suspended the said Thomas W. Sullivan from the practice of the law in this Court and directed that a rule issue requiring him to show cause why he should not be disbarred;

And it appearing that the said rule was duly issued and served upon the respondent, who has filed a return; now, upon consideration of the rule to show cause and the return aforesaid;

It is ordered that the said Thomas W. Sullivan be, and he is hereby, disbarred, and that his name be stricken from the roll of attorneys admitted to practice in this Court.


text:
    No. 437,
    Misc.
    Farrell, Administrator, et al. v. Wyatt, U. S. District Judge.

      Solicitor General Griswold, Assistant Attorney General Ruckelshaus, and Morton Hollander in opposition.
   Motion for leave to file petition for writ of mandamus and/or prohibition denied. Lee S. Kreindler on the motion.


text:
    No. 84.
    United States v. Jorn.

      Solicitor General Griswold, Assistant Attorney General Walters, and Joseph M. Howard for the United States. Gerald R. Miller for appellee.
   Appeal from D. C. Utah. Motion of appellee for leave to proceed in forma pauperis granted. Probable jurisdiction noted.


text:
    No. 103.
    United States v. Armour & Co. et al.

      Solicitor General Griswold, Deputy Assistant Attorney General Hammond, and Howard E. Shapiro for the United States. Herbert A. Bergson, Howard Adler, Jr., James H. Kelley, Carol Garfiel, and Edwin E. McAmis for appellee General Host Corp.
   Appeal from D. C. N. D. Ill. Probable jurisdiction noted.


text:
    No. 179.
    Rogers, Secretary of State v. Bellei.

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Charles Gordon for appellant. O. John Rogge for appellee.
   Appeal from D. C. D. C. Probable jurisdiction noted.


text:
    No. 131.
    Dandridge, Chairman, Maryland Board of Public Welfare, et al. v. Williams et al.

      Francis B. Burch, Attorney General of Maryland, Robert F. Sweeney, Deputy Attorney General, and George W. Liebmann and Michael McWilliams, Assistant Attorneys General, for appellants.
   Appeal from D. C. Md. Motion of appellees for leave to proceed in forma pauperis granted. Probable jurisdiction noted.


text:
    No. 185.
    Reetz, Commissioner of Fish and Game of Alaska, et al. v. Bozanich et al.

      G. Kent Edwards, Attorney General of Alaska, and Robert L. Hartig, Assistant Attorney General, for appellants. Seth Warner Morrison III for ap-pellees.
   Appeal from D. C. Alaska. Probable jurisdiction noted and case set for oral argument with No. 301 [probable jurisdiction noted, infra, p. 812],


text:
    No. 236.
    Evans et al. v. Cornman et al.

      Francis B. Burch, Attorney-General of Maryland, Robert F. Sweeney, Deputy Attorney General, and George W. Liebmann, Assistant Attorney General, for appellants. Richard Schifter for appellees.
   Appeal from D. C. Md. Probable jurisdiction noted. The Solicitor General is invited to file a brief expressing the views of the United States.


text:
    No. 301.
    Pike v. Bruce Church, Inc.

      George C. Lyon for Western Growers Assn, on the motion. Gary K. Nelson, Attorney General of Arizona, Thomas A. Miller, Assistant Attorney General, and Rex E. Lee for appellant. Jacob Abramson for appellee.
   Appeal from D. C. Ariz. Motion of Western Growers Assn, for leave to file a brief as amicus curiae granted. Probable jurisdiction noted and case set for oral argument with No. 185 [probable jurisdiction noted, supra, p. 811].


text:
    No. 305.
    United States v. Sisson.

      Solicitor General Grisioold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Roger A. Pauley for the United States. John G. S. Flym for appellee.
   Appeal from D. C. Mass. Further consideration of question of jurisdiction in this case postponed to the hearing of the case on the merits. Case placed on summary calendar and set for oral argument with No. 76 [certiorari granted, infra, p. 816]. In addition to questions presented on the merits, counsel requested to discuss in their briefs and oral arguments, not only the issue of jurisdiction under the “arresting a judgment” subdivision of 18 U. S. C. § 3731, but also the questions whether jurisdiction exists under either the “motion in bar” subdivision or the “decision . . . setting aside, or dismissing” subdivision of 18 U. S. C. § 3731.


text:
    No. 43,
    Misc.
    Vale v. Louisiana.

      Jack P. F. Gremillion, Attorney General of Louisiana, William P. Schuler, Assistant Attorney General, Jim Garrison, and Louise Korns for appellee.
   Appeal from Sup. Ct. La. Motion for leave to proceed in forma pauperis granted. Further consideration of question of jurisdiction postponed to hearing of case on the merits and review limited to the search and seizure question. Case transferred to appellate docket.


text:
    No. 153.
    McMann, Warden, et al. v. Ross et al.

      Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Lillian Z. Cohen and Brenda Soloff, Assistant Attorneys General, for petitioners. Thomas D. Barr for Ross, and Gretchen White Oherman for Dash et al., respondents. Frank S. Hogan, pro se, and Michael R. Juviler for the District Attorney of New York County in support of the petition.
   C. A. 2d Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari granted.


text:
    No. 74.
    Taggart et al. v. Weinacker’s, Inc.

      S. G. Lippman and Bernard Dunau for petitioners. Edwin J. Curran, Jr., for respondent.
   Sup. Ct. Ala. Certiorari granted.


text:
    No. 88.
    United States v. Reynolds et ux.

      Solicitor General Griswold, Acting Assistant Attorney General Taylor, Raymond N. Zagone, and Robert S. Lynch for the United States. D. Nelson Sutton for respondents.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 104.
    United States v. Estate of Donnelly et al.

      Solicitor General Griswold, Assistant Attorney General Walters, Joseph J. Connolly, and Crombie J. D. Garrett for the United States. Daniel N. Pevos for respondents Carlson et al.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 108.
    Colonnade Catering Corp. v. United States.

      O. John Rogge and Jerome M. Stember for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Roger A. Pauley for the United States.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 231.
    International Longshoremen’s Association, Local 1416, AFL-CIO v. Ariadne Shipping Co., Ltd., et al.

      Louis Waldman and Seymour M. Waldman for petitioner. Thomas H. Anderson for respondents.
   Dist. Ct. App. Fla., 3d Dist. Certiorari granted.


text:
    No. 234.
    Czosek et al. v. O’Mara et al.

      Clarence M. Mulholland and Richard R. Lyman for petitioners. William B. Mahoney for O’Mara et al., and Thomas G. Rickert for Erie Lackawanna Railroad Co., respondents.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 282.
    United States v. Davis et ux.

      Solicitor General Griswold, Assistant Attorney General Walters, Harris Weinstein, and Melva M. Graney for the United States. Robert G. McCullough and William Waller for respondents.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 300.
    Tate et al. v. Hickel, Secretary of the Interior, et al.

      Omer Luellen for petitioners. Solicitor General Griswold, Assistant Attorney General Kashiwa, S. Billingsley Hill, and Robert S. Lynch for respondent Hickel.
   C. A. 10th Cir. Certiorari granted.


text:
    No. 395.
    United States v. Seckinger, trading as M. O. Seckinger Co.

      Solicitor General Griswold, Assistant Attorney General Ruckelshaus, and Morton Hollander for the United States. Frank S. Cheatham, Jr., for respondent.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 540.
    Rosado et al. v. Wyman, Commissioner of Social Services of New York, et al.

      Lee A. Albert and Robert P. Borsody for petitioners. Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, Amy Juviler, Assistant Attorney General, and Philip Weinberg for respondents.
   C. A. 2d Cir. Application for stay presented to Mr. Justice Harlan, and by him referred to the Court, denied. Certiorari and motion to expedite granted.


text:
    No. 75.
    In re Stolar.

      Leonard B. Boudin for petitioner. Paul W. Brown, Attorney General of Ohio, Shelby V. Hutchins, and William H. Schneider in opposition.
   Sup. Ct. Ohio. Certiorari granted and case set for oral argument immediately following No. 53 [Baird v. State Bar of Arizona, certiorari granted, 394 U. S. 957].


text:
    No. 76.
    Welsh v. United States.

      J. B. Tietz for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Sidney M. Glazer for the United States.
   C. A. 9th Cir. Certiorari granted and case set for oral argument with No. 305 [probable jurisdiction postponed, supra, p. 812].


text:
    No. 51,
    Misc.
    Dickey v. Florida.

      John D. Buchanan, Jr., for petitioner. Earl Faircloth, Attorney General of Florida, and George R. Georgieff, Assistant Attorney General, for respondent.
   Dist. Ct. App. Fla., 1st Dist. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket.


text:
    No. 53,
    Misc.
    Bachellar et al. v. Maryland.

      Fred E. Weisgal and Anthony G. Amsterdam for petitioners. Francis B. Burch, Attorney General of Maryland, and Edward F. Borgerding and H. Edgar Lentz, Assistant Attorneys General, for respondent.
   Ct. Sp. App. Md. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket.


text:
    No. 221.
    Hickel, Secretary of the Interior v. Oil Shale Corp. et al.

      Solicitor General Griswold, Assistant Attorney General Kashiwa, Peter L. Strauss, Roger P. Marquis, and Edmund B. Clark for petitioner. Fowler Hamilton, Richard W. Hulbert, and Donald L. Morgan for Oil Shale Corp. et al., Gail L. Ireland for Napier et al., and Fred M. Winner for Umpleby et al., respondents.
   C. A. 10th Cir. Certiorari granted.

Mr. Justice White and Mr. Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 230.
    H. K. Porter Co., Inc., Disston Division-Danville Works v. National Labor Relations Board et al.

      Donald C. Winson for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for National Labor Relations Board, and Bernard Kleiman, Elliot Bredhoff, Michael Gottesman, and George H. Cohen for United Steelworkers of America, AFL-CIO, respondents.
   C. A. D. C. Cir. Certiorari granted.

Mr. Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 480,
    Misc.
    Jones et al. v. State Board of Education of Tennessee et al.

      Reber F. Boult, Jr., Charles Morgan, Jr., Richard Bellman, Melvin L. Wulf, and Eleanor H. Norton for petitioners. George F. McCanless, Attorney General of Tennessee, Thomas E. Fox, Deputy Attorney General, and Robert H. Roberts, Assistant Attorney General, for respondents.
   C. A. 6th Cir. Motion for leave to proceed in forma pauperis granted. Certiorari granted as to petitioner Jones, certiorari denied as to other petitioners, and case transferred to appellate docket.


text:
    No. 69,
    Misc.
    Hill v. California.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Ronald M. George, Deputy Attorney General, for respondent.
   Sup. Ct. Cal. Motion for leave to proceed in forma pauperis granted. Certiorari granted and case transferred to appellate docket.


text:
    No. 77.
    Haskin v. Superior Court of California, County of Orange (Haskin, Real Party in Interest).

      Edward Mosk for petitioner. Robert F. Nuttman for respondent.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 80.
    Heyd, Sheriff v. Brown et al.

      Jim Garrison and Louise Korns for petitioner. Russell J. Schonekas for respondents.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 92.
    American Empire Insurance Co. of South Dakota et al. v. Fidelity & Deposit Co. of Maryland.

      W. Warren Cole, Jr., for petitioners. Harry T. Gray and Francis P. Conroy for respondent.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 94.
    Pyne v. United States.

      Edward J. Calihan, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Ronald L. Gainer for the United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 89.
    Nehring v. Empresa Lineas Maritimas Argentinas et al.

      W. Jiles Roberts for petitioner. Carl O. Bue, Jr., for Empresa Lineas Maritimas Argentinas et al., and Robert Eikel for Strachan Shipping Co., respondents.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 97.
    Bussie v. Illinois.

      Charles B. Evins, R. Eugene Pincham, Earl E. Strayhorn, and Sam Adam for petitioner. William J. Scott, Attorney General of Illinois, and Joel M. Flaum and Thomas J. Immel, Assistant Attorneys General, for respondent.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 98.
    Long Beach Banana Distributors, Inc., et al. v. Atchison, Topeka & Santa Fe Railway Co. et al.

      Herbert A. Bernhard for petitioners. Frederic H. Sturdy for Southern Pacific Co. et al., and John J. Ballufj for Atchison, Topeka & Santa Fe Railway Co., respondents.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 105.
    Northeastern Consolidated Co. v. United States.

      Paul A. Teschner for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, Jonathan S. Cohen, and Robert I. Waxman for the United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 110.
    Snyder et al. v. Hickel, Secretary of the Interior.

      John P. Frank for petitioners. Solicitor General Griswold, Assistant Attorney General Kashiwa, Roger P. Marquis, and George R. Hyde for respondent.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 106.
    Campbell Soup Co. v. International Association of Machinists, District No. 8, AFL-CIO.

      Theophil C. Kammholz for petitioner. Sheldon M. Charone for respondent.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 111.
    Lowe v. Weltner.

      Charles E. Muskett for petitioner.
   Ct. App. Ga. Certiorari denied.


text:
    No. 112.
    Dotson v. Duty.

      Jean L. Auxier for petitioner.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 113.
    Southwestern Portland Cement Co. v. National Labor Relations Board.

      James F. Hulse for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 114.
    Standard Fruit & Steamship Co. v. United Fruit Co. et al.

      Eberhard P. Deutsch, Robert M. Moore, and René H. Himel, Jr., for petitioner. Hugh B. Cox, James H. McGlothlin, and Michael Boudin for United Fruit Co., and Solicitor General Griswold, Assistant Attorney General McLaren, and Howard E. Shapiro for the United States, respondents.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 115.
    A. R. Industries v. Superior Court of California, County of Sacramento (Cervantes, Real Party in Interest).

      Burton J. Stanley for petitioner. John Quincy Brown, Jr., for Cervantes.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 118.
    Walsh v. United States.

      Franklin Smith for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Robert G. Maysack for the United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 120.
    Franko v. Mahoning County Bar Assn.

      Eugene Gressman for petitioner. John H. Ranz for respondent.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 126.
    Watsco, Inc. v. Henry Valve Co.

      Samuel J. Stoll for petitioner. John D. Dewey for respondent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 130.
    Asher v. Indiana.

      William C. Erbecker and James Manahan for petitioner. Theodore L. Sendak, Attorney General of Indiana, and William F. Thompson, Deputy Attorney General, for respondent.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 133.
    Cooper v. Leslie Salt Co. et al.

      David B. Caldwell for petitioner. Bruce M. Casey, Jr., for respondents Leslie Salt Co. et al., Bert W. Levit for respondents T. Jack Foster et al., and Frank Piombo for respondents Estero Municipal Improvement District et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 134.
    In re Marvin.

      Melvin L. Wulf, Sanford J. Rosen, and Robert E. Knowlton for petitioner. Arthur J. Sills, Attorney General of New Jersey, Marilyn Loftus Schauer, First Assistant Attorney General, and Stephen Skillman, Assistant Attorney General, in opposition.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 137.
    DeNarvaez v. United States.

      Elmer Fried for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Mervyn Hamburg for the United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 138.
    Johnson v. United States.

      Wallace N. Springer, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Edward Fenig for the United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 140.
    Jackman et al. v. Bodine et al.

      Lawrence I. Lerner for petitioners Scrimmager et al., and Melvin L. Wulf for certain other petitioners. Arthur J. Sills, Attorney General of New Jersey, and Stephen G. Weiss, Assistant Attorney General, for respondent Burkhardt, and Mr. Sills and William Miller for respondent Apportionment Commission.
    [For earlier order herein, see 395 U. S. 918.]
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 141.
    Tagawa v. Maui Publishing Co., Ltd.

      Meyer M. Ueoka for petitioner.
   Sup. Ct. Hawaii. Certiorari denied.


text:
    No. 145.
    Tannehill v. Roberts et al.

      Donald V. Organ for petitioner. James A. Crooks for respondent Trinity Universal Insurance Co.
   Ct. App. La., 4th Cir. Certiorari denied.


text:
    No. 147.
    Granderson v. Orleans Parish School Board.

      Revius O. Ortigue, Jr., for petitioner.
   Sup. Ct. La. Certiorari denied.


text:
    No. 144.
    Babb v. Marelli, Trustee.

      David B. Babb, petitioner, pro se.

   C. A. 7th Cir. Certiorari denied.


text:
    No. 149.
    No. 208.
    Abramson v. Exchange National Bank of Chicago et al.; and Exchange National Bank of Chicago v. Abramson et al.

      Sidney P. Abramson, petitioner, pro se, in No. 149 and respondent, pro se, in No. 208. Edgar Bernhard for Exchange National Bank of Chicago, petitioner in No. 208 and respondent in No. 149.
   C. A. 8th Cir. Certiorari denied.

Reported below: 408 F. 2d 1099.


text:
    No. 150.
    Harry F. Berggren & Sons, Inc. v. National Labor Relations Board.

      J. Max Harding for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Linda Sher for respondent.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 154.
    Gay v. United States.

      William G. Line for petitioner. Solicitor General Griswold for the United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 155.
    No. 217.
    Neiwirth v. Hydrocarbon Chemicals, Inc., et al.; and Starr et al. v. Hydrocarbon Chemicals, Inc., et al.

      Max L. Bosenstein for petitioner in No. 155, and Edwin Fradkin, pro se, and for other petitioners in No. 217. Michael B. Griffinger for respondent Clemence, Trustee in Bankruptcy, and Solicitor General Griswold, Philip A. Loomis, Jr., David Ferber, and Paul Gonson for respondent Securities and Exchange Commission, in both cases.
   C. A. 3d Cir. Certiorari denied.

Reported below: 411 F. 2d 203.


text:
    No. 151.
    Martin et al. v. United States.

      Maurice J. Walsh, Carl M. Walsh, and Eleanor Waters Walsh for petitioners. Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Edward Fenig for the United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 152.
    Angelus Funeral Home v. Commissioner of Internal Revenue.

      Leo Branton, Jr., and William B. Murrish for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, Harry Baum, and Bennet N. Hollander for respondent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 156.
    Tauferner et ux. v. United States.

      Eks Ayn Anderson for petitioners. Solicitor General Griswold, Assistant Attorney General Walters, Jonathan S. Cohen, and Edward Lee Rogers for the United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 159.
    Crown Machine & Tool Co. v. D & S Industries, Inc., et al.

      Howard T. Mar key for petitioner. Carl Hoppe for respondents.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 162.
    Richard v. Travelers Insurance Co. et al.

      J. Minos Simon for petitioner. J. J. Davidson, Jr., for respondents.
   Sup. Ct. La. Certiorari denied.


text:
    No. 163.
    Agoranos v. United States.

      Eli H. Subin for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, and Joseph M. Howard for the United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 157.
    Valleydale Packers, Inc., of Bristol v. National Labor Relations Board.

      George V. Gardner and Asa Ambrister for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Elliott Moore for respondent.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 165.
    Mojave Uranium Co. v. Mesa Petroleum Co.

      Delbert M. Draper, Jr., for petitioner. Clarence C. Neslen for respondent.
   Sup. Ct. Utah. Certiorari denied.


text:
    No. 167.
    Hart et al. v. United States.

      George W. Wulff for petitioners. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Kirby W. Patterson for the United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 168.
    Belveal et al. v. Socony Mobil Oil Corp. (now Mobil Oil Corp.) et al.

      John G. Patterson for petitioners. Wm. B. Browder, Jr., for Mobil Oil Corp., and E. B. Mitchell, Jr., Gerald Fitz-Gerald, and William L. Kerr for Athey et al., respondents.
   Ct. Civ. App. Tex., 8th Sup. Jud. Dist. Certiorari denied.


text:
    No. 174.
    Sheiner v. United States.

      Albert A. Blinder and Stephen Hoch-hauser for petitioner. Solicitor General Griswold for the United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 178.
    K-S-H Plastics, Inc. v. Carolite, Inc., et al.

      Owen J. Ooms for petitioner. W. Robert Spensley for respondents.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 170.
    Preferred Insurance Co. v. Bentley, Insurance Commissioner of Georgia, et al.

      Alfred C. Bennett and Irvin Waldman for petitioner. Walter G. Cooper for respondents.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 176.
    Griffith v. Board of Commissioners of the Alabama State Bar.

      Carl A. Elliott for petitioner. M. Boland Nachman, Jr., for respondent.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 184.
    Sullivan v. Board of Commissioners of the Alabama State Bar.

      Fred Blanton, Jr., for petitioner. Reginald T. Hamner for respondent.
   Sup. Ct. Ala. Certiorari denied.


text:
    No. 186.
    Iowa Public Service Co. v. Iowa State Commerce Commission et al.

      Mark W. Putney for petitioner. Leo J. Steffen, Jr., for Iowa State Commerce Commission et al., and Solicitor General Griswold, Assistant Attorney General Ruckelshaus, and Morton Hollander for Aldrich et al., respondents.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 192.
    Mesch v. United States.

      Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Robert G. May sack for the United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 193.
    Thorne, Receiver v. Aetna Life Insurance Co.

      Roland Obenchain, Jr., for petitioner. Joseph T. Helling for respondent.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 195.
    Sullivan v. Commissioner of Internal Revenue.

      Thomas J. Carley and Gabriel T. Pap for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, Meyer Rothwacks, and Howard M. Koff for respondent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 197.
    O’Neal v. United States.

      T. Malone Sharpe for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Mervyn Hamburg for the United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 203.
    Moses et al., Executors v. Manufacturers Life Insurance Co.

      Philip Wittenberg for petitioners. M. M. Weinberg, Jr., for respondent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 205.
    Tennessee Valley Sand & Gravel Co. v. Crafton.

      George B. Matthews for petitioner. Truman Hobbs for respondent.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 209.
    Maryland Casualty Co. v. Rush Street Rugby Shop, Ltd., et al.

      Norman A. Miller and Frederic H. Stafford for petitioner. James A. Chatz for respondents.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 213.
    France, Trustee in Bankruptcy v. Union Bank & Savings Co.

      Sol Rothberg for petitioner. Paul W. Philips for respondent.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 216.
    George W. Chapman, Inc. v. Shenk et al.

      Harry Marfut for petitioner. A. Garland Williams for respondents.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 220.
    Jefferson Standard Life Insurance Co. v. United States.

      Fred W. Peel for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, Gilbert E. Andrews, and Thomas L. Stapleton for the United States. William B. Harman, Jr., and Kenneth L. Kimble for American Life Convention et al. as amici curiae in support of the petition.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 222.
    Buncher, dba Buncher Co. v. National Labor Relations Board.

      John G. Wayman for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Elliott Moore for respondent. Milton A. Smith for Chamber of Commerce of the United States as amicus curiae in support of the petition.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 223.
    Goett, Administratrix v. Union Carbide Corp. et al.

      Ernest Franklin Pauley and Harvey Goldstein for petitioner.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 224.
    No. 293.
    Gotthelf et ux. v. Commissioner of Internal Revenue; and Commissioner of Internal Revenue v. Gotthelf.

      Harvey M. Sklaver for petitioners in No. 224. Solicitor General Griswold, Assistant Attorney General Walters, C. Guy Tadlock, and Bennet N. Hollander for petitioner in No. 293 and for respondent in No. 224.
   C. A. 2d Cir. Certiorari denied.

Reported below: 407 F. 2d 491.


text:
    No. 228.
    Tri-Wall Containers, Inc. v. United States.

      Charles B. Spencer for petitioner. Solicitor General Griswold for the United States.
   Ct. Cl. Certiorari denied.


text:
    No. 229.
    Dobbins et al. v. United States.

      H. H. Gearinger for petitioners. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Jerome M. Feit for the United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 232.
    Ross v. Illinois.

      Edward J. Calihan, Jr., for petitioner.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 233.
    Simon v. United States.

      Anna R. Lavin and Edward J. Calihan, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, and Beatrice Rosenberg for the United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 237.
    Collins v. Washington.

      John Caughlan for petitioner. James E. Kennedy for respondent.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 243.
    Texas Oil & Gas Corp. et al. v. Phillips Petroleum Co.

      Geo. L. Verity for petitioners. Edward J. Fauss for respondent.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 246.
    Patterson v. Indiana.

      Palmer K. Ward for petitioner. Theodore L. Sendak, Attorney General of Indiana, and William F. Thompson, Deputy Attorney General, for respondent.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 251.
    Magnetic Heating Corp. et al. v. Foster.

      Charles H. Walker and William K. Kerr for petitioners. Alexander Kahan for respondent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 247.
    Miller v. United States.

      Daniel P. Reardon, Jr., for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Robert G. Maysack for the United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 252.
    DeJoris v. United States.

      J. Leonard Fleet and Julius L. Gold-stein for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, and Gilbert E. Andrews for the United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 253.
    Phillips et ux. v. Latham.

      Fred S. Abney for petitioners.
   Ct. Civ. App. Tex., 11th Sup. Jud. Dist. Certiorari denied.


text:
    No. 254.
    Acuff v. United States.

      Howard G. Swafford for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Kirby W. Patterson for the United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 255.
    Wax v. Pate, Warden.

      Charles A. Bellows for petitioner.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 257.
    General Metal Products Co. v. National Labor Relations Board.

      Carroll C. Gilpin for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 262.
    Wilson v. City of Port Lavaca, Texas, et al.

      Willett Wilson for petitioner.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 256.
    McCluskey v. Norfolk & Western Railway Co.

      Rankin M. Gibson for petitioner. John M. Curphey for respondent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 258.
    Knauff, Executrix, et al. v. Utah Construction & Mining Co. et al.

      Edward T. Lazear for petitioners. Francis R. Kirkham, John B. Bates, and James F. Kirk-ham for Utah Construction & Mining Co. et al., and Gerald R. Miller for Cranmer, respondents.
   C. A. 10th Cir. Cer-tiorari denied.


text:
    No. 259.
    Saab Aktiebolag, formerly Svenska Aeroplan Aktiebolaget (Saab) v. Mergenthaler Linotype Co.

      Ira Milton Jones and Howard W. Churchill for petitioner. Luther E. Morrison for respondent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 263.
    Crumley v. Alabama.

      Fred Blanton, Jr., for petitioner. MacDonald Gallion, Attorney General of Alabama, and Robert P. Bradley and Walter S. Turner, Assistant Attorneys General, for respondent.
   Ct. App. Ala. Cer-tiorari denied.


text:
    No. 274.
    Ketron v. Tennessee.

      Preston H. Taylor for petitioner.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 277.
    Knaack et al. v. United States.

      R. Eugene Pincham, Earl J. Strayhorn, and Charles B. Evins for petitioners. Solicitor General Griswold, Assistant Attorney General Wilson, and Beatrice Rosenberg for the United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 264.
    Miller et ux. v. Camp, Comptroller of the Currency.

      Mitchell A. Kramer for petitioners. Solicitor General Griswold for respondent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 272.
    Barash v. United States.

      Louis Bender for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Kirby W. Patterson for the United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 273.
    Carril v. United States.

      Albert J. Krieger for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Mervyn Hamburg for the United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 276.
    State Farm Mutual Automobile Insurance Co. v. National Labor Relations Board.

      George G. Gallants and Marvin Dicker for petitioner. Solicitor General Gris-wold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Linda Sher for respondent.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 278.
    Ridgewood Management Co., Inc. v. National Labor Relations Board.

      John H. Benckenstein for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 286.
    Canova v. Travelers Insurance Co.

      Sam J. D’Amico for petitioner.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 280.
    City of Detroit et al. v. Ambassador Steel Co. et al.

      Julius C. Pliskow for petitioners City of Detroit et al. Carroll D. Little for respondents Ambassador Steel Co. et al., Stanley M. Weingarden for respondents Advance Steel Co. et al., Erwin B. Ellmann for respondent American Steel Corp., Steven I. Victor for respondent Contractors Steel Co., and Seymour J. Frank for respondent Kasle Steel Corp.
   Ct. App. Mich. Certiorari denied.


text:
    No. 281.
    Tyne v. Commissioner of Internal Revenue.

      Thomas J. Carley for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, and Meyer Rothwacks for respondent.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 283.
    John Klann Moving & Trucking Co. v. National Labor Relations Board.

      Bernard S. Goldfarb for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Nancy M. Sherman for respondent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 289.
    Margoles v. United States.

      John P. Diuguid for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Edward Fenig for the United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 294.
    Southeastern Canteen Co. et al. v. Commissioner of Internal Revenue.

      John J. Kendrick for petitioners. Solicitor General Griswold, Assistant Attorney General Walters, Jonathan S. Cohen, and Michael B. Arkin for respondent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 295.
    Wheeler-Van Label Co., Subsidiary of Stecher-Traung-Schmidt Corp. v. National Labor Relations Board.

      Richard L. Epstein for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 297.
    Purer & Co. et al. v. Aktiebolaget Addo et al.

      Joseph W. Fairfield for petitioners. Harold A. Black for respondents.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 298.
    Rosenthal et al. v. Ash, Trustee in Bankruptcy, et al.

      Albert E. Jenner, Jr., Gilbert H. Hennessey, Jr., and John J. Crown for petitioners. Malcolm M. Gaynor for Ash et al., and Edwin A. Rothschild and Ralph R. Mick-elson for Holleb, respondents.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 299.
    Regan v. United States.

      John T. Casey for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, and Grant W. Wiprud for the United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 302.
    Maynard v. United States.

      J. B. Tietz for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Robert G. May sack for the United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 303.
    Turner v. Mississippi.

      Raymond L. Brown for petitioner.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 309.
    Breen v. Otis Elevator Co. et al.

      Steven R. Plotkin for petitioner. Charles K. Reasonover for respondents.
   Sup. Ct. La. Certiorari denied.


text:
    No. 311.
    Washington Terminal Co. v. Taylor.

      Stephen A. Trimble for petitioner. James R. Scullen for respondent.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 312.
    Meyers v. United States.

      Alan H. Levine and Thomas H. Baer for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Edward Fenig for the United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 313.
    Kalish v. United States.

      George T. Altman for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, Jonathan S. Cohen, and Stuart A. Smith for the United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 315.
    Hayes v. United States et al.

      David P. Schippers and Samuel J. Betar for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, Joseph M. Howard, and John P. Burke for the United States et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 317.
    B. F. Diamond Construction Co., Inc., et al. v. National Labor Relations Board.

      Daniel R. Coffman, Jr., for petitioners. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for respondent.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 314.
    Barnes et al. v. Commissioner of Internal Revenue.

      George D. Crowley for petitioners. Solicitor General Griswold and Assistant Attorney General Walters for respondent.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 319.
    Croughan v. Murphy, Police Commissioner of the City of New York.

      Denis M. Hurley and John F. Haggerty for petitioner. J. Lee Rankin, Stanley Buchsbaum, and Edmund B. Hennefeld for respondent.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 322.
    Montecatini Edison S. p. A. v. E. I. du Pont de Nemours & Co.

      Edward S. Irons and Mary Helen Sears for petitioner. James M. Tunnell, Jr., for respondent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 323.
    McCarty v. United States.

      John C. Moran for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, and Joseph M. Howard for the United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 325.
    Franco v. United States.

      Richard Kanner for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, and Beatrice Rosenberg for the United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 328.
    Stuyvesant Insurance Co. v. United States.

      Dean E. Richards and James Manaban for petitioner. Solicitor General Griswold for the United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 327.
    Sher v. New York.

      Mario Matthew Cuomo for petitioner. William Calm for respondent.
   Ct. App. N. Y. Cer-tiorari denied.