text:
    GUNTHER v. SAN DIEGO & ARIZONA EASTERN RAILWAY CO.
    No. 27.
    Argued November 8, 1965.
    Decided December 8, 1965.

      Charles W. Decker argued the cause for petitioner. With him on the brief was Clifton Hildebrand.

      Waldron A. Gregory argued the cause for respondent. With him on the brief was William R. Denton.

      Clarence M. Mulholland, Edward J. Hickey, Jr., and Richard R. Lyman filed a brief for the Railway Labor Executives’ Association, as amicus curiae, urging reversal.
   Mr. Justice Black

delivered the opinion of the Court.

The petitioner, Gunther, worked as a fireman for respondent railroad for eight years, from 1916 to 1924, and as an engineer for 30 years, from 1924 until December 30, 1954. On that date, shortly after his seventy-first birthday, he was removed from active service because of an alleged physical disability. The railroad’s action was taken on the basis of reports made by its physicians, after physical examinations of petitioner, that in their opinion he was no longer physically qualified to work as a locomotive engineer because his “heart was in such condition that he would be likely to suffer an acute coronary episode.” Dissatisfied with the railroad doctors’ findings, Mr. Gunther went to a recognized specialist who, after examination, concluded that petitioner was qualified physically to continue work as an engineer. On the basis of this report petitioner requested the railroad to join him in the selection of a three-doctor board to re-examine his physical qualifications for return to service. The railroad refused. This disagreement led to prolonged litigation which has reached us 11 years after the controversy arose.

When the railroad refused to consent to the appointment of a new board of doctors to re-examine petitioner or to restore him to service, he filed a claim for reinstatement and back pay with the Railroad Adjustment Board, which was created by § 3 of the Railway Labor Act, as amended, to adjust, among other things, disputes of railroads and their employees “growing out of grievances or out of the interpretation or application of agreements concerning . . . rules, or working conditions . ...” The Adjustment Board, over the protests of the railroad, decided it had jurisdiction of the grievance and then, referring to past practice in similar cases, proceeded, as its findings show, to appoint a committee of three qualified physicians, to re-examine petitioner, “one chosen by carrier and one by the employe and the third by the two so selected, for the purpose of determining the facts as to claimant’s disability and the propriety of his removal from service.. ..” Subsequently, this committee of doctors examined petitioner and decided by a majority vote that he was physically qualified to act as an engineer, contrary to the prior findings of the railroad’s doctors. Upon the basis of these findings the Adjustment Board decided that the railroad had been wrong in disqualifying petitioner for service and sustained his claim “for reinstatement with pay for all time lost from October 15, 1955 . . . .” The railroad refused to comply with the Board’s order and petitioner as authorized by the Act filed this action in a district court of the United States for an appropriate court order to enforce the Adjustment Board’s award. After hearings the District Court, in its third opinion in the case, held the award erroneous and refused to enforce it. The District Court’s refusal was based on its conclusion that there were no express or implied provisions in the collective bargaining contract which in the court’s judgment limited in any way what it found to be the absolute right of the railroad, in absence of such provisions, to remove petitioner from active service whenever its physicians found in good faith “that plaintiff was physically disqualified from such service.” The Court of Appeals affirmed, agreeing with the interpretation put upon the contract by the District Court, and thereby rejected the Board’s interpretation of the contract and its decision on the merits of the dispute. 336 F. 2d 543. We granted certiorari because the holding of the two courts below seemed, in several respects, to run counter to the requirements of the Railway Labor Act as we have construed it. 380 U. S. 905.

I. Section 3 First (i) of the Railway Labor Act provides that “disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements” are to be handled by the Adjustment Board. In § 3 Congress has established an expert body to settle “minor” grievances like petitioner’s which arise from day to day in the railroad industry. The Railroad Adjustment Board, composed equally of representatives of management and labor is peculiarly familiar with the thorny problems and the whole range of grievances that constantly exist in the railroad world. Its membership is in daily contact with workers and employers, and knows the industry’s language, customs, and practices. See Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239, 243-244. The Board’s decision here fairly read shows that it construed the collective bargaining provisions which secured seniority rights, together with other provisions of the contract, as justifying an interpretation of the contract guaranteeing to petitioner “priority in service according to his seniority and pursuant to the agreement so long as he is physically qualified.” The District Court, whose opinion was affirmed by the Court of Appeals, however, refused to accept the Board’s interpretation of this contract. Paying strict attention only to the bare words of the contract'and invoking old common-law rules for the interpretation of private employment contracts, the District Court found nothing in the agreement restricting the railroad’s right to remove its employees for physical disability upon the good-faith findings of disability by its own physicians. Certainly it cannot be said that the Board’s interpretation was wholly baseless and completely without reason. We hold that the District Court and the Court of Appeals as well went beyond their province in rejecting the Adjustment Board’s interpretation of this railroad collective bargaining agreement. As hereafter pointed out Congress, in the Railway Labor Act, invested the Adjustment Board with the broad power to arbitrate grievances and plainly intended that interpretation of these controversial provisions should be submitted for the decision of railroad men, both workers and management, serving on the Adjustment Board with their long experience and accepted expertise in this field.

II. The courts below were also of the opinion that the Board went beyond its jurisdiction in appointing a medical board of three physicians to decide for it the question of fact relating to petitioner’s physical qualifications to act as an engineer. We do not agree. The Adjustment Board, of course, is not limited to common-law rules of evidence in obtaining information. The medical board was composed of three doctors, one of whom was appointed by the company, one by petitioner, and the third by these two doctors. This not only seems an eminently fair method of selecting doctors to perform this medical task but it appears from the record that it is commonly used in the railroad world for the very purpose it was used here. In fact the record shows that under respondent’s present collective bargaining agreement with its engineers provision is made for determining a dispute precisely like the one before us by the appointment of a board of doctors in precisely the manner the Board used here. This Court has said that the Railway Labor Act’s “provisions dealing with the Adjustment Board were to be considered as compulsory arbitration in this limited field.” On a question like the one before us here, involving the health of petitioner, and his physical ability to operate an engine, arbitrators would probably find it difficult to find a better method for arriving at the truth than by the use of doctors selected as these doctors were. We reject the idea that the Adjustment Board in some way breached its duty or went beyond its power in relying as it did upon the finding of this board of doctors.

III. Section 3 First (m) provides that Adjustment Board awards “shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.” The award of the Board in this case, based on the central finding that petitioner was wrongfully removed from service is twofold, consisting both of an order of reinstatement and the money award for lost earnings. Thus there arises the question of whether the District Court may open up the Board’s finding on the merits that the railroad wrongfully removed petitioner from his job merely because one part of the Board’s order contained a money award. We hold it cannot. This Court time and again has emphasized and re-emphasized that Congress intended minor grievances of railroad workers to be decided finally by the Railroad Adjustment Board. In Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U. S. 30, the Court gave a Board decision the same finality that a decision of arbitrators would have. In Union Pacific R. Co. v. Price, 360 U. S. 601, the Court discussed the legislative history of the Act at length and pointed out that it “was designed for effective and final decision of grievances which arise daily” and that its “statutory scheme cannot realistically be squared with the contention that Congress did not purpose to foreclose litigation in the courts over grievances submitted to and disposed of by the Board . . . .” 360 U. S., at 616. Also in Locomotive Engineers v. Louisville & Nashville R. Co., 373 U. S. 33, the Court said that prior decisions of this Court had made it clear that the Adjustment Board provisions were to be considered as “compulsory arbitration in this limited field,” p. 40, “the complete and final means for settling minor disputes,” p. 39, and “a mandatory, exclusive, and comprehensive system for resolving grievance disputes.” P. 38.

The Railway Labor Act as construed in the foregoing and other opinions of this Court does not allow a federal district court to review an Adjustment Board’s determination of the merits of a grievance merely because a part of the Board’s award, growing from its determination on the merits, is a money award. The basic grievance here — that is, the complaint that petitioner has been wrongfully removed from active service as an engineer because of health — has been finally, completely, and irrevocably settled by the Adjustment Board’s decision. Consequently, the merits of the wrongful removal issue as decided by the Adjustment Board must be accepted by the District Court.

IV. There remains the question of further proceedings in this case with respect to the money aspect of the Board’s award. The Board did not determine the amount of back pay due petitioner on account of his wrongful removal from service. It merely sustained petitioner’s claim for “reinstatement with pay for all time lost from October 15, 1955.” Though the Board’s finding on the merits of the wrongful discharge must be accepted by the District Court, it has power under the Act to determine the size of the money award. The distinction between court review of the merits of a grievance and the size of the money award was drawn in Locomotive Engineers v. Louisville & Nashville R. Co., supra, at pp. 40-41, when it was said that the computation of a time-lost award is “an issue wholly separable from the merits of the wrongful discharge issue.” On this separable issue the District Court may determine in this action how much time has been lost by reason of the wrongful removal of petitioner from active service, and any proper issues that can be raised with reference to the amount of money necessary to compensate for the time lost. In deciding this issue as to how much money petitioner will be entitled to receive because of lost time, the District Court will bear in mind the fact that the decision on the merits of the wrongful removal issue related to the time when the Board heard and decided the case. Seven years have elapsed since that time, long enough for many changes to have occurred in connection with petitioner’s health. This would, of course, be relevant in determining the amount of money to be paid him in a lawsuit which can, as the statute provides, proceed on this separable issue “in all respects as other civil suits” where damages must be determined.

The judgments of the courts below are reversed and the cause is remanded to the District Court for consideration not inconsistent with this opinion.

Reversed and remanded.

       48 Stat. 1185, 45 U. S. C.-§151 et seq. (1964 ed.).

       Section 3 First (i), 48 Stat. 1191, 45 U. S. C. § 153 First (i) (1964 ed.). This section also provides that disputes between railroad employees and their employers “failing to reach an adjustment . . . may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.”

       Section 3 First (p), 48 Stat. 1192, 45 U. S. C. § 153 First (p) (1964 ed.), provides:
      “If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner . . . may file in the District Court of the United States for the district in which he resides or in which is located the principal operating office of the carrier ... a petition setting forth briefly . . . the order of the division of the Adjustment Board in the premises. Such suit in the District Court of the United States shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated .... The district courts are empowered, under the rules of the court governing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board.”

       192 F. Supp. 882, 198 F. Supp. 402. The third opinion written by the court is not reported.

         Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U. S. 30, 39.

       48 Stat. 1191, 45 U. S. C. § 153 First (m) (1964 ed.).


source: Caselaw Access Project

author: Mr. Justice Fortas Mr. Justice Black,

license: Public Domain

text:
    UNITED STATES v. SPEERS, TRUSTEE IN BANKRUPTCY.
    No. 17.
    Argued October 20, 1965.
    Decided December 13, 1965.

      Acting Assistant Attorney General Roberts argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Oberdorfer and 7. Henry Kutz.

      Robert B. Gosline argued the cause and filed a brief for respondent.
   Mr. Justice Fortas

delivered the opinion of the Court.

This case presents the question whether a federal tax lien, unrecorded as of the time of bankruptcy, is valid as against the trustee in bankruptcy.

On June 3, 1960, a District Director of Internal Revenue assessed more than $14,000 in withholding taxes and interest against the Kurtz Roofing Company. Demand for payment was made, and the taxpayer refused to pay. This gave rise to a federal tax lien. Notice of the lien was not filed either in the Office of the Recorder of Erie County, Ohio, where Kurtz had its principal place of business, or in the United States District Court, at least not before February of 1961. On June 20, 1960, Kurtz filed a petition in bankruptcy. In the ensuing proceedings the trustee took the position that the federal tax lien was invalid as to him. He relied upon § 70c of the Bankruptcy Act, 11 U. S. C. § 110 (c) (1964 ed.), which, he asserted, vested in him the rights of a “judgment creditor,” and upon 26 U. S. C. § 6323 (1964 ed.), which entitles a “judgment creditor” to prevail over an unrecorded federal tax lien. Section 70c provides in part:

“The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.”

Section 6323 provides in part:

“[T]he lien imposed by section 6321 shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the Secretary or his delegate

The trustee’s position, in short, was that his statutory lien attached to all property of the bankrupt as of the date of filing of the petition; that he was a statutory “judgment creditor”; and that, under § 6323, the unrecorded tax lien of the United States was not valid against him. This position, if sustained, would reduce the Government’s claim for unpaid taxes to the status of an unsecured claim, sharing fourth-class priority with unsecured state and local tax claims under § 64a (4) of the Bankruptcy Act, 11 U. S. C. §104 (a) (4) (1964 ed.), and ranking behind administrative expenses, certain wage claims, and specified creditors’ expenses. The result in the present case is that instead of recovering the full amount owing to it, the United States would receive only 53.48%.

The trustee’s position was affirmed by the referee, the District Court, and the Court of Appeals for the Sixth Circuit. 335 F. 2d 311. Certiorari was granted, 379 U. S. 958, to resolve the conceded conflict between decisions of Courts of Appeals for the Second, Third, and Ninth Circuits and the decision below. We affirm.

Despite the language of the applicable statutory provisions, § 70c and § 6323, most of the Courts of Appeals passing on the question have sustained the validity of an unrecorded federal tax lien as against the trustee in bankruptcy. They have arrived at this result on the authority of a statement in United States v. Gilbert Associates, Inc., 345 U. S. 361, 364, that the phrase “judgment creditor” in § 3672, the predecessor of § 6323, was used by Congress “in the usual, conventional sense of a judgment of a court of record . . . .”

It is clear, however, that this characterization was not intended to exclude a trustee in bankruptcy from the scope of the phrase “judgment creditor.” The issue before the Court in Gilbert was quite different.

Gilbert involved neither a bankruptcy proceeding nor the rights of a trustee in bankruptcy. Gilbert arose out of a state insolvency proceeding. The issue was whether an unrecorded federal tax lien was valid as against a municipal tax assessment which had neither been reduced to judgment nor accorded “judgment creditor” status by any statute. The asserted superior position of the local tax claim was based upon the fact that the New Hampshire court, in the Gilbert insolvency proceeding, had, for the first time, conveniently characterized the local tax claim as “in the nature of a judgment,” relying upon the procedures used by the taxing authorities. Because the effect of federal tax liens should not be determined by the diverse rules of the various States, the Court held that the municipality was not a “judgment creditor” for purposes of the federal statute. The Court said:

“A cardinal principle of Congress in its tax scheme is uniformity, as far as may be. Therefore, a ‘judgment creditor’ should have the same application in all the states. In this instance, we think Congress used the words ‘judgment creditor’ in § 3672 in the usual, conventional sense of a judgment of a court of record, since all states have such courts. We do not think Congress had in mind the action of taxing authorities who may be acting judicially as in New Hampshire and some other states, where the end result is something ‘in the nature of a judgment,’ while in other states the taxing authorities act quasi-judicially and are considered administrative bodies.” (Footnotes omitted.) 345 U. S., at 364.

In view of the nature of the claim for which superiority was asserted and because its dominant theme was the need for uniformity in construing the meaning of § 3672, Gilbert cannot be considered as governing the entirely different situation with respect to the rights conferred by Congress upon a trustee in bankruptcy. In the latter circumstance we are confronted with a specific congressional Act defining the status of the trustee. We have no problem of evaluating widely differing state laws. We have no possibility of unequal application of the federal tax laws, depending upon variances in the terms and phraseology of different state and local tax assessment statutes and judicial rulings thereon. Here-we are faced with a uniform federal scheme — the rights of the trustee in bankruptcy in light of an unequivocal statement by Congress that he shall have “all” the rights of a judicial lien creditor with respect to the bankrupt’s property.

The legislative history lends support to the conclusion drawn from the statutory language that the purpose of Congress was to invalidate an unrecorded federal tax lien as against the trustee in bankruptcy. It was in 1910 that Congress enacted the predecessor of § 70c, vesting the trustee “with all the rights, remedies, and powers of a judgment creditor.” Three years later, in 1913, Congress enacted the predecessor of § 6323, providing that an unrecorded federal tax lien was invalid as against a “judgment creditor.” These two statutes, with their corresponding references to “judgment creditor,” co-existed for nearly 40 years. During that period, and prior to our decision in Gilbert in 1953, the only Court of Appeals squarely to pass upon the question decided that the trustee was a “judgment creditor” for purposes of avoiding an unrecorded federal tax lien. United States v. Sands, 174 F. 2d 384, 385 (C. A. 2d Cir.), rejecting contrary dictum in In re Taylorcraft Aviation Corp., 168 F. 2d 808, 810 (C. A. 6th Cir.).

In amending the Bankruptcy Act in 1950, Congress deleted from § 70c the phrase “judgment creditor,” providing instead that whether or not the bankrupt’s property was in possession or control of the court, the trustee was to have “all the rights, remedies, and powers” of a creditor holding a judicial lien.’ Elsewhere in the same legislation it was recognized that the category of those holding judicial liens includes judgment creditors/ and a judicial lien holder generally has “greater rights than a judgment creditor.” It is clear, therefore, that, with respect to the present problem, it was not the purpose of the 1950 amendments to reduce the powers of the trustee. As the House report accompanying the legislation noted, the revision of § 70c “has been placed in the bill for the protection of trustees in bankruptcy . . . also to simplify, and to some extent expand, the general expression of the rights of trustees in bankruptcy.”

In 1954 Congress dealt explicitly with the question whether the trustee ought to prevail against unrecorded federal tax liens. An unsuccessful effort was made, reflected in the House version of the proposed § 6323, expressly to exclude “artificial” judgment creditors like the trustee in bankruptcy. At conference, the House conferees acceded to the views of the Senate, which deemed it “advisable to continue to rely upon judicial interpretation of existing law instead of attempting to prescribe specific statutory rules.” The Government suggests that the “existing law” sought to be preserved was this Court’s decision in Gilbert. But as of the date of the 1954 amendments, Gilbert had not yet been applied by any court to displace the rights of the trustee in bankruptcy as against an unrecorded federal tax lien. So far as that- issue is concerned, it is more likely that reference to “existing law” was to the specific and then unchallenged rule announced by the Second Circuit in United States v. Sands, supra, and by other courts in other cases holding the trustee to have the rights of a judgment creditor. As we have already noted, Gilbert is not inconsistent with the rule announced in Sands.

In recent years, and since the view began to spread that Gilbert compelled exclusion of the trustee from the benefits of § 6323, legislation has' been introduced expressly to reiterate the trustee’s power to upset unrecorded federal tax liens. Such legislation was proposed not to alter the statutory scheme, but to remove what was thought to be an erroneous gloss placed upon it by the courts. Thus, both Senate and House committee reports accompanying a recent bill, H. R. 394, 88th Cong., reflect the belief that those decisions upon which the Government now relies “would appear to be contrary to the legislative purpose which gave the trustee all the rights of an ideal judicial lien creditor.”

In light of these legislative materials — the adoption of the phrase “judgment creditor” in both statutes, the legislative broadening of § 70c in 1950, and the expressions of congressional discontent with recent decisions excluding the trustee from § 6323 — we are persuaded that, read together, § 6323 and § 70c entitle the trustee to prevail over unrecorded federal tax liens.

The Government seeks to ward off this result with the argument that so to read the statutes is to confer upon certain classes of creditors “windfalls” unwarranted by the equities of their situation. The question may, however, be stated less invidiously than the argument indicates: it is whether the Government, unlike other creditors, and contrary to the general policy against secret liens, should be given advantage of a lien which it has not recorded as of the date of bankruptcy. It is true that the consequence of depriving the United States of claimed priority for its secret lien is to improve the relative position of creditors — if there are any not already protected by § 6323 — whose security was obtained subsequent to the Government’s lien and who, once the federal lien is invalidated, have a prior claim to the secured assets. And our decision will enhance the possibility that there will be something in the bankrupt’s estate for those claimants whose priorities are higher than that afforded unsecured tax claims, as well as for state and local tax claims which share with the Federal Government the priority in § 64a (4), 11 U. S. C. §104 (a)(4). Whether this result is inadvisable need not detain us, for the question is one of policy which in our view has been decided by Congress in favor of the trustee. In any event, it is possible for the Government in cases which it deems appropriate, to avoid a result which it regards with unhappiness by promptly filing notice of its lien. Should experience indicate that in-elusion of the trustee within § 6323 is inadvisable, the fact will not be lost upon Congress.

The Government advances one last and quite novel argument predicated upon § 67b of the Bankruptcy Act, 11 U. S. C. § 107 (b) (1964 ed.), which provides:

“The provisions of section 60 of this Act to the contrary notwithstanding, statutory liens [including those] for taxes and debts owing to the United States or to any State or any subdivision thereof . . . may be valid against the trustee, even though arising or perfected while the debtor is insolvent and within four months prior to the filing of the petition .... Where by such laws such liens are required to be perfected and arise but are not perfected before bankruptcy, they may nevertheless be valid, if perfected within the time permitted by and in accordance with the requirements of such laws . . . .”

The contention is that the lower court’s reading of § 70c and § 6323 cannot be correct, for it precludes the possibility which appears to be contemplated by § 67b — that a federal tax lien not perfected until after bankruptcy may nevertheless be “valid against the trustee.” We find no such inconsistency. The purpose of § 67b, insofar as tax claims are concerned, is to protect them from §60, 11 U. S. C. §96 (1964 ed.), which permits the trustee to avoid transfers made within four months of bankruptcy. Thus § 67b permits an otherwise inchoate federal tax claim to be “perfected” by assessment and demand within the four months prior to bankruptcy or afterwards. It does not nullify or purport to nullify the consequences which flow from the Government’s failure to file its perfected lien prior to the date when the trustee’s rights as a statutory judgment creditor attach — namely, on filing of the petition in bankruptcy. There is no indication in the language of § 67b, in the legislative history, or in decisions of any court, that the subsection was intended to affect the construction or application of § 6323. In any event, we should hesitate to read § 67b as relevant to the relationship between § 70c and § 6323, for Congress in the very legislation proposed to clarify the trustee’s rights under § 6323 did consider § 67b, and evidenced no awareness of interrelationship or of inconsistency.

Affirmed.

Mr. Justice Black,

dissenting.

Section 6323 of the 1954 Internal Revenue Code provides that an unfiled tax lien is not “valid as against any mortgagee, pledgee, purchaser, or judgment creditor . . . The Court here holds that a bankruptcy trustee must be treated as if he were a “judgment creditor” thereby reducing government tax claims to the level of unsecured creditors. I am unable to agree. A bankruptcy trustee cannot be treated as a judgment creditor except by giving that term an entirely artificial, fictional meaning. The Court justifies this extraordinary twist of meaning by reference to § 70c of the Bankruptcy Act, 11 U. S. C. § 110 (c) (1964 ed.). That section, so far as here pertinent, provides:

“c. . . . The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.”

This language gives no intimation of a purpose to destroy a valid tax lien such as the Government had here when bankruptcy occurred. The section’s terms simply show a purpose to make sure that all the property the bankrupt had before bankruptcy will be vested in the trustee. It stretches this language entirely too much to say it was intended to change the law so drastically that the mere appointment of a trustee could render invalid a government tax lien which was perfectly valid the moment before bankruptcy. Nor can this section fairly be read as an attempt by Congress to nullify valid government tax liens by placing the claims of all unsecured creditors of the bankrupt on the same level as valid tax liens. In writing § 70c Congress was amending the bankruptcy law, not the government tax hen law that dates back nearly 100 years. I still think, as we said in United States v. Gilbert Associates, 345 U. S. 361, 364, that in enacting the predecessor of § 6323 Congress used the words “judgment creditor” in “the usual, conventional sense of a judgment of a court of record . . .'The Second, Third, and Ninth Circuits have so construed this section. I think they were right. The Court today gives frail and inadequate support, I think, for its judicial destruction of the Government's congressionally created lien.

I would reverse this judgment.

       26 U. S. C. §6321 (1964 ed.) provides: “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.”
      26 U. S. C. § 6322 (1964 ed.) provides: “Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed is satisfied or becomes unenforceable by reason of lapse of time.”

       In its brief in the Court of Appeals the Government for the first time stated that notice of the lien was in fact filed with the Recorder on February 9, 1961. The statement in the referee’s certificate that notice of the lien was never filed was not controverted in the District Court and, as respondent contends, there is no proof of the February filing in the record.

       See §§ 64a (1)-(3), 11 U. S. C. §§ 104 (a) (1)-(3) (1964 ed.). Secured creditors, including those whose security was obtained subsequent to creation of the Government’s lien, would have recourse to their security before any of the Bankruptcy Act priorities come into play. Goggin v. California Labor Div., 336 U. S. 118; City of Richmond v. Bird, 249 U. S. 174. Administrative expenses and wage claims precede all other statutory liens on personal property not accompanied by possession if not enforced by sale prior to bankruptcy. § 67c, 11 U. S. C. § 107 (c) (1964 ed.); Goggin, supra, 126-130.

       See Brust v. Sturr, 237 F. 2d 135 (C. A. 2d Cir.); In re Fidelity Tube Corp., 278 F. 2d 776 (C. A. 3d Cir.) (Kalodner and Hastie, JJ., dissenting), cert. denied sub nom. Borough of East Newark v. United States, 364 U. S. 828; Simonson v. Granquist, 287 F. 2d 489 (C. A. 9th Cir.) (Hamley, J., expressing contrary views), rev’d on other grounds, 369 U. S. 38. See also United States v. England, 226 F. 2d 205 (C. A. 9th Cir.); In re Taylorcraft Aviation Corp., 168 F. 2d 808, 810 (C. A. 6th Cir.) (dictum).

       345 U. S., at 363, quoting from Petition of Gilbert Associates, Inc., 97 N. H. 411, 414, 90 A. 2d 499, 502.

       The Government's brief also emphasized this concern for uniformity in administration of the federal tax laws. See brief for petitioner in Gilbert, No. 440, 1952 Term, pp. 22-24, where the Government argued: “Congress did not intend to subordinate federal tax liens to local tax liens merely because by state statute or state court decisions the local tax assessments are for local purposes denominated ‘judgments’.... Moreover, in holding that under our ‘decisions’ and in ‘this jurisdiction’ the Town’s tax assessments are ‘judgments,’ the court below failed to give sufficient heed to the repeated declarations of this Court that the federal revenue laws should be interpreted ‘so as to give a uniform application to a nationwide scheme of taxation,’ and hence their provisions are not to be deemed subject to state law unless the language of the section involved, expresslj- or by nécessary implication, so requires.”

       The Act of June 25, 1910, c. 412, 36 Stat. 840, § 8, provided in part: ‘‘such trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon; and also, as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied.”

       Act of March 4, 1913, c. 166, 37 Stat. 1016.

       Act of March 18, 1950, c. 70, §2, 64 Stat. 26, now 11 U. S. C. §110 (c) (1964 ed.). Prior to the amendment, § 70c characterized the trustee as a lien holder as to property in the court’s possession or control and as a “judgment creditor” as to property not so reduced to possession. See n. 7, supra; Lewis v. Manufacturers National Bank, 364 U. S. 603, 605-606.

       Act of March 18, 1950, c. 70, § 1, 64 Stat. 25, now 11 U. S. C. §96 (a)(4) (1964 ed.). See 4 Collier, Bankruptcy ¶ 70.49, n. 3, at 1415 (1964 ed.).

       See, e. g., H. R. Rep. No. 745, 86th Cong., 1st Sess., to accompany H. R. 7242, p. 10: “As a matter of general law the holder of a lien by legal proceedings has greater rights than a judgment creditor .... It would seem anomalous to allow judgment creditors to prevail over secret tax liens and to deny that- right to a judicial lien holder.”

       H. R. Rep. No. 1293, 81st Cong., 1st Sess., to accompany S. 88, p. 7. That this was the tenor of the amendment is generally conceded. See, e. g., In re Fidelity Tube Corp., 278 F. 2d 776, 781, 786-787 (both majority and dissenting opinions); 4 Collier, op. cit. supra, at 1415; Seligson, Creditors’ Rights, 32 N. Y. U. L. Rev. 708, 710 (1957).

       The proposed legislation was to make clear that “such protection is not extended to a judgment creditor who does not have a valid judgment obtained in a court of record and of competent jurisdiction” and that “particular persons shall not be treated as judgment creditors because State or Federal law artificially provides or concedes such persons rights or privileges of judgment creditors, or even designates them as such, when they have not actually ob-tamed a judgment in the conventional sense.” H. R. Rep. No. 1337, 83d Cong., 2d Sess., to accompany H. R. 8300, p. A407. See Treas. Reg. on Procedure and Administration (1954 Code) § 301.6323-1 (26 CFR §301.6323-1), incorporating the material rejected by the Eighty-third Congress.

      . S. Rep. No. 1622, 83d Cong., 2d Sess., to accompany H. R. 8300, p. 575; H. R. Conf. Rep. No. 2543, 83d Cong., 2d Sess., to accompany H. R. 8300, p. 78.

        . E. g., Sampsell v. Straub, 194 F. 2d 228, 231 (C. A. 9th Cir.), cert. denied, 343 U. S. 927; McKay v. Trusco Finance Co., 198 F. 2d 431, 433 (C. A. 5th Cir.); In re Lustron Corp., 184 F. 2d 789 (C. A. 7th Cir.), cert denied sub nom. Reconstruction Finance Corp. v. Lustron Corp., 340 U. S. 946.

      . On two occasions the proposed legislation was approved by the appropriate House and Senate committees, and one bill received the assent of both Houses. See H. R. 7242, 86th Cong., § 6, vetoed by President on September 8, 1960, 106 Cong. Rec. 19168; H. R. 394, 88th Cong., § 6; H. R. 136, 89th Cong., § 6.

       H. R. Rep. No. 454, 88th Cong., 1st Sess., p. 10; S. Rep. No. 1133, 88th Cong., 2d Sess., p. 11.

       In enacting the predecessor of § 6323 in 1913, Congress seems generally to have answered this question in the negative — and against secret liens. See H. R. Rep. No. 1018, 62d Cong., 2d Sess., pp. 1-2.

       See §§ 64a (1) — (3), 11 U. S. C. §§ 104 (a) (l)-(3), giving priority to claims for administrative expenses, wages, and certain creditors’ expenses. The claims of general creditors are, of course, in no way affected by our decision. And in some circumstances administrative expense and wage claimants would in any case prevail over the Government’s lien. See n. 3, swpra.

       We note that failure of the Government to record its lien may work a hardship upon persons subsequently extending credit in ignorance of the unrecorded lien, and that nondisclosure may induce others to incur administrative or other expenses which they would not incur if there were no hope of repayment. Moreover, state and local governments might reduce their claims to judgment if they knew of the existence of a federal lien. See Memorandum of Chairman, Drafting Committee of National Bankruptcy Conference, contained in S. Rep. No. 1133, 88th Cong., 2d Sess., to accompany H. R. 394, pp. 24-25.

       In its letter to Senator Eastland opposing H. R. 394, dated September 8, 1961, the Treasury asserted that “The Service has, as a matter of administrative practice, exercised forbearance as a creditor in cases when there exists a reasonable possibility that the business can regain financial stability. Enactment of the proposed amendments . . . could well force the service to change this practice, which it is believed has been proved by experience to be highly desirable.” S. Rep. No. 1133, 88th Cong., 2d Sess., p. 18. This same argument was made to an earlier Congress and rejected. See letter from Treasury, dated Aug. 9, 1960, in opposition to H. R. 7242, contained in S. Rep. No. 1871, 86th Cong., 2d Sess., p. 36.

       In the Court of Appeals the Government advanced, as an alternative basis for disposition of the case, the contention that pursuant to § 67b the alleged filing of notice in February of 1961 retroactively validated the lien as against the trustee. The court declined to reach the merits of this claim, noting that it had not been presented either to the referee or to the District Court and that there was no proof of record with respect to the alleged February filing. 336 F. 2d, at 314.
      The § 67b argument raised in this Court differs from that rejected below, for that subsection is now cited to us as an aid in construing the relationship between § 70c and § 6323. Insofar as it is relevant to the particular problem of statutory construction presented by this case, we regard the § 67b argument as properly before us, for “Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.” United States v. Fisher, 2 Cranch 358, 386 (Marshall, C. J.). See also United States v. Hutcheson, 312 U. S. 219; Estate of Sanford v. Commissioner, 308 U. S. 39, 42-44; United States v. Aluminum Co. of America, 148 F. 2d 416, 429 (C. A. 2d Cir.) (L. Hand, J.).

       See Simonson v. Granquist, 369 U. S. 38, 41; 4 Collier, op. cit. supra, ¶ 67.20, at 183; cf. Lewis v. Manufacturers National Bank, supra, at 609.

       4 Collier, op. cit. supra, ¶ 67.26, at 283-286, and ¶ 70.48, at 1407.

       See legislative materials cited at notes 11, 16, and 17, supra.


author: Per Curiam.

text:
    PENNSYLVANIA PUBLIC UTILITY COMMISSION v. PENNSYLVANIA RAILROAD CO.
    No. 375.
    Decided December 13, 1965.

      William A. Goichman and Joseph C. Bruno for appellant.

      Hugh B. Cox and Windsor F. Cousins for appellee.
   Per Curiam.

In the three-judge District Court from which this appeal comes to us, the Pennsylvania Railroad Company sued to enjoin the enforcement of a duly promulgated order of the Pennsylvania Public Utility Commission on the sole ground that the order conflicted with a federal statute. The Commission, among other defenses, contended that the federal statute was unconstitutional, but the District Court decided the case in favor of the railroad and issued an appropriate injunction. 240 F. Supp. 233.

It follows from our recent decision in Swift & Co. v. Wickham, ante, p. 111, that the injunction sought by the railroad, being based on incompatibility between the state order and the federal statute, was not grounded in the “unconstitutionality” of a state measure so as to require a three-judge tribunal under 28 U. S. C. § 2281 (1964 ed.). Nor is § 2282, requiring such a tribunal in order to enjoin “any Act of Congress for repugnance to the Constitution,” invoked by the Commission’s defense that the federal statute is unconstitutional; it is settled that this provision “does not provide for a case where the validity of an Act of Congress is merely drawn in question, albeit that question be decided, but only for a case where there is an application for an interlocutory or permanent injunction to restrain the enforcement of an Act of Congress.” Garment Workers v. Donnelly Co., 304 U. S. 243, 250.

Because a three-judge court was not required to adjudicate this suit, this Court has no jurisdiction under 28 U. S. C. § 1253 (1964 ed.) to entertain a direct appeal. It does not appear from the record that the Commission lodged a protective appeal in the Court of Appeals, and the time to do so has almost certainly expired. The appeal to this Court occurred before Swift & Co. v. Wick-ham, supra, was decided, and there is no reason why the Commission should be deprived of appellate review. In accordance with precedent, we vacate the judgment below and remand the case to the District Court so that it may enter a fresh decree from which a timely appeal may be taken to the Court of Appeals. See Phillips v. United States, 312 U. S. 246, 254.

It is so ordered.


author: Per Curiam. MR. Justice Harlan

text:
    ALBANESE v. N. V. NEDERL. AMERIK STOOMV. MAATS. et al.
    No. 523.
    Decided December 13, 1965.

      Philip F. DiCostanzo and Robert Klonsky for petitioner in No. 523. Sidney A. Schwartz and Joseph Arthur Cohen for petitioner in No. 557.

      Edmund F. Lamb for respondent N. V. Nederl. Amerik Stoomv. Maats. in Nos. 523 and 557 and for petitioner in No. 654.

      Arthur J. Mandell for the American Trial Lawyers Association Admiralty Section, as amicus curiae, in support of the petition in No. 523.

      Together with No. 557, International Terminal Operating Co., Inc. v. N. V. Nederl. Amerik Stoomv. Maats.; and No. 654, N. V. Nederl. Amerik Stoomv. Maats. v. Albanese et al., also on petitions for writs of certiorari to the same court.

   Per Curiam.

The motion of the American Trial Lawyers Association for leave to file a brief, as amicus curiae, is granted. The petition for certiorari in No. 523, Albanese v. N. V. Nederl. Amerik Stoomv. Maats., is also granted.

We believe that the judgment of the Court of Appeals setting aside the judgment for petitioner Albanese on the ground that the trial court incorrectly charged the jury on the issue of negligence is erroneous. Gutierrez v. Waterman S. S. Corp., 373 U. S. 206.

In its opinion the Court of Appeals also stated that the District Court incorrectly instructed the jury as to the applicability of the Safety and Health Regulations for Longshoring on the question of the shipowner’s liability. But we do not read that court’s opinion as making this an independent ground for ordering a new trial. So we not only reverse the judgment of the Court of Appeals in the case of Albanese but reinstate the District Court’s judgment in his favor.

The petitions in No. 557, International Terminal Operating Co. v. N. V. Nederl. Amerik Stoomv. Maats.; and No. 654, N. V. Nederl. Amerik Stoomv. Maats. v. Albanese, are denied.

It is so ordered.

MR. Justice Harlan

would have denied certiorari in No. 523, Albanese v. N. V. Nederl. Amerik Stoomv. Maats., but the writ having been granted, he would have set the issues for plenary consideration. He concurs in the denial of certiorari in No. 557, International Terminal Operating Co. v. N. V. Nederl. Amerik Stoomv. Maats., and No. 654, N. V. Nederl. Amerik Stoomv. Maats. v. Albanese.

       29 CFR §9.1 et seg. (1963), now 29 CFR § 1504.1 (1965), promulgated by the Secretary of Labor under the authority of Public Law 85-742, 72 Stat. 835, 33 U. S. C. §941 (1964 ed.).


text:
    SORIC v. IMMIGRATION AND NATURALIZATION SERVICE.
    No. 610.
    Decided December 13, 1965.

      Nathan T. Nothin for petitioner.

      Solicitor General Marshall for respondent.
   Per Curiam.

Upon the stipulation of the parties and an examination of the entire record, the petition for a writ of certio-rari is granted. The judgment of the Court of Appeals is vacated and the case is remanded to that court with instructions to remand to the Immigration and Naturalization Service for consideration of claims for relief as authorized by the 1965 amendments to the Immigration and Nationality Act.


text:
    MOODY v. UNITED MINE WORKERS LOCAL FOR THE UNITED STATES et al.
    No. 852,
    Misc.
    Decided December 13, 1965.
   Per Curiam.

The appeal is dismissed for want of jurisdiction.


text:
    MAYBERRY v. PENNSYLVANIA.
    No. 11,
    Misc.
    Decided December 13, 1965.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. Upon consideration of the concessions of the State and an examination of the papers in the case, the judgment of the Supreme Court of Pennsylvania is vacated and the case remanded to that court for further proceedings.


text:
    O'CONNOR v. OHIO.
    No. 281,
    Misc.
    Decided December 13, 1965.
   Per Curiam.

The petition for rehearing is granted and the order of October 11, 1965, insofar as it denies certiorari, is vacated. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari, is granted and the judgment is vacated. The case is remanded to the Supreme Court of Ohio for further proceedings in light of Griffin v. California, 380 U. S. 609.


author: Per Curiam. Mr. Justice Harlan

text:
    TRAVIA et al. v. LOMENZO, SECRETARY OF STATE OF NEW YORK, et al.
    No. 633.
    Decided December 13, 1965.

      Simon H. Rif kind, Edward N. Costikyan and Leo A. Larkin for appellants.

      Louis J. Lefkowitz, Attorney General of New York, Daniel M. Cohen, Assistant Solicitor General, Donald Zimmerman, Special Assistant Attorney General, George D. Zuckerman, Assistant Attorney General, and Willis Burton Lemon for appellees.
   Per Curiam.

The judgment is affirmed.

Mr. Justice Harlan

concurs in the result for the reasons stated in his acquiescence to the affirmance of the judgment in Travia v. Lomenzo, ante, p. 4, at 8.

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


text:
    UNITED STATES v. LOUISIANA et al.
    No. 9,
    Original.
    Decided May 31, 1960. — Final Decree Entered December 12, 1960.
    Supplemental Decree Entered December 13, 1965.

      Solicitor General Marshall for the United States.

      Jack P. F. Gremillion, Attorney General of Louisiana, John L. Madden, Assistant Attorney General, Paul M. Hebert, Victor A. Sachse, Thomas W. Leigh, Oliver P. Stockwell and J. J. Davidson for the State of Louisiana.
   Supplemental Decree.

For the purpose of giving effect to the conclusions of this Court as stated in its opinion, announced May 31, 1960, and the decree entered by this Court on December 12, 1960, it is ordered, adjudged and decreed as follows:

1. As against the defendant State of Louisiana, the United States is entitled to all the lands, minerals and other natural resources underlying the Gulf of Mexico, south of grid line y=499,394.40 on the Louisiana Plane Coordinate System, South Zone, that are more than three geographical miles seaward from a line described as follows (coordinates refer to the Louisiana Plane Coordinate System, South Zone):

Beginning at the point where grid line y — 499,-394.40 intersects the line of mean low water on the eastern side of Chandeleur Island, thence southerly along the line of mean low water on the eastern side of the Chandeleur Islands, and by straight lines across channels between the islands, to the south-westernmost extremity of Errol Shoal, at latitude 29°35'48" N., longitude 89°00/48" W. (x=2,737,-287.96, y=345,654.41); thence to Pass a Loutre lighted whistle buoy 4, at latitude 29°09'55.9" N., longitude 88°56'54.4" W. (x=2,761,169.19, y= 189,334.14); thence to South Pass lighted whistle buoy 2, at latitude 28°58'44.9" N., longitude 89°06'36.9" W. (x=2,710,848.37, y=120,529.26) ; thence to Southwest Pass entrance mid-channel lighted whistle buoy, at latitude 28°52'37.1" N., longitude 89°25'57.1" W. (x=2,608,424.04, y= 81,526.86); thence to Ship Shoal lighthouse at latitude 28°54'51.512" N., longitude 91°04'15.985" W. (x=2,083,908.09, y=90,154.12); thence to Calcasieu Pass lighted whistle buoy 1, at latitude 29°36'21.7" N., longitude 93°19'07.6" W. (x=l,369,080.08, y= 347,060.52); thence to Sabine Pass lighted whistle buoy 1, at latitude 29°36'16" N., longitude 93°48'-31.2" W. (x=l,213,416.18, y=349,514.72).

2. The State of Louisiana is not entitled to any interest in the lands, minerals or resources described in paragraph 1 hereof, and said State, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources.

3. With the exceptions provided by § 5 of the Submerged Lands Act, 67 Stat. 32, 43 U. S. C. § 1313 (1964 ed.), the State of Louisiana is entitled, as against the United States, to all the lands, minerals and other natural resources in the portions of the disputed area described in this paragraph. These portions of the disputed area are bounded on the landward side by the seaward boundary of Zone 1, as delineated on Exhibit A to the parties’ Interim Agreement of October 12, 1956, as amended, on file with the Court. They are bounded on the seaward side by lines three geographical miles seaward from baselines as herein described, consisting of (1) segments of, or salient points on, the line of mean low water on the mainland, on naturally formed islands, or on naturally formed low-tide elevations situated wholly or partly within three geographical miles from the low-water line on the mainland or on such islands, and (2) straight lines across designated openings in the low-water line. As used herein, “salient point” means any point on the low-water line, so situated that there is some area within three geographical miles seaward from such point that is more than three geographical miles from all other points on the baseline. These baselines are ambulatory and subject to continual modification by natural or artificial changes in the shore line to the extent the law may provide, but for purposes of present identification and practical administration until notice by either party to the other they are described herein by their coordinates in the Louisiana Plane Coordinate System, South Zone, as shown by Exhibits 1 to 4, inclusive, filed with the Motion of the United States herein. Each three-mile line is to be drawn in such manner that every point on the three-mile line is exactly three geographical miles from the nearest point or points on the baseline, continuing in each direction until it meets another specified boundary of the particular portion of the disputed area. The portions of the disputed area referred to herein are as follows:

(a) In the vicinity of Calcasieu Pass, all that portion of the disputed area bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical miles seaward from the tip of the western jetty, at x=:l,362,416, y=397,822; from the tip of the eastern jetty, at x= 1,363,392, y=397,870; and from a straight line between said points.
(b) In the vicinity of Marsh Island and Atchaf-alaya Bay, all that portion of the disputed area bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical miles seaward from salient points on islands and low-tide elevations at x= 1,778,769, y=324,757; x=l,782,391, y=321,876; x=l,783,067, y=321,331; x=l,791,584, y=307,545; x=l,809,845, y=296,285; x=l,820,994, y=291,804; x=r 1,833,527, y=271,423; x=l,834,019, y=270,-301; x — 1,835,344, y=270,839; x=l,843,467, y= 275,912; x=l,844,320, y=278,858; x=l,875,200, y=285,729; and x= 1,877,582, y=283,274; three geographical miles seaward from a straight line between South Point, Marsh Island, at x=l,863,474, y=298,772, and Point Au Fer, at x= 1,993,420, y=241,930; and three geographical miles seaward from a salient point on a low-tide elevation at x=l,987,371, y=241,272.
(c) In East Bay, all that portion of the disputed area bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical miles seaward from salient points on the mean low-water line at x=2,639,545, y=126,825; x=2,641,835, y=129,725; and x=2,644,940, y=134,910, and from the line of mean low water which may be considered to consist of straight lines between said points; three geographical miles seaward from a salient point on a low-tide elevation at x=2,672,315, y=141,745; three geographical miles seaward from the line of mean low water which may be considered to consist of straight lines between the points x=2,673,-482, y=141,245; x=2,678,500, y=139,250; and x=2,682,605, y=136,895; and three geographical miles seaward from a salient point on the mean low-water line at x=2,685,325, y= 133,800.
(d) Between Pass a Loutre and Breton Island, all that portion of the disputed area west of grid line x=2,740,710, bounded on the landward side by the seaward boundary of Zone 1, and bounded on the seaward side by a line three geographical miles seaward from salient points on the mainland, on islands, or on low-tide elevations at x=2,738,320, y=210,230; x=2,737,065, y=210,155; x=2,727,090, y=209,195; x=2,709,100, y=220,995; x=2,708,835, yr=221,440; x=2,707,635, y=223,640; x=2,701,500, y=232,820; x=2,700,735, y=234,640; x=2,689,305, y=250,395; and x=2,688,235, y=252,215; and three geographical miles seaward from a straight line between the eastern headland of Main Pass, at x= 2,681,915, y=257,755, and the southern extremity of Breton Island, at x=2,678,009, y=294,303.

4. The United States is not entitled, as against the State of Louisiana, to any interest in the lands, minerals or resources described in paragraph 3 hereof, with the exceptions provided by § 5 of the Submerged Lands Act, 43 U. S. C. § 1313.

5. All sums now held impounded by the United States under the Interim Agreement of October 12, 1956, as amended, derived from or attributable to the lands, minerals or resources described in paragraph 1 hereof are hereby released to the United States absolutely, and the United States is hereby relieved of any obligation under said agreement to impound any sums hereafter received by it, derived from or attributable to said lands, minerals, or resources.

6. All sums now held impounded by the State of Louisiana under the Interim Agreement of October 12, 1956, as amended, derived from or attributable to the lands, minerals or resources described in paragraph 3 hereof are hereby released to the State of Louisiana absolutely, and the State of Louisiana is hereby relieved of any obligation under said agreement to impound any sums hereafter received by it, derived from or attributable to said lands, minerals or resources.

7. Within 75 days after the entry of this decree—

(a) The State of Louisiana shall pay to the United States or other persons entitled thereto under the Interim Agreement of October 12, 1956, as amended, all sums, if any, now held impounded by the State of Louisiana under said agreement, derived from or attributable to the lands, minerals or resources described in paragraph 1 hereof;
(b) The State of Louisiana shall render to the United States and file with the Court a true, full, accurate and appropriate account of any and all other sums of money derived by the State of Louisiana since June 5, 1950, either by sale, leasing, licensing, exploitation or otherwise from or on account of any of the lands, minerals or resources described in paragraph 1 hereof;
(c) The United States shall pay to the State of Louisiana or other persons entitled thereto under the Interim Agreement, as amended, all sums, if any, now held impounded by the United States under said agreement, derived from or attributable to the lands, minerals or resources described in paragraph 3 hereof;
(d) The United States shall render to the State of Louisiana and file with the Court a true, full, accurate and appropriate account of any and all other sums of money derived by the United States either by sale, leasing, licensing, exploitation or otherwise from or on account of the lands, minerals or resources described in paragraph 3 hereof.

8. Within 60 days after receiving the account provided for by paragraph 7(b) or 7(d) hereof, a party may serve on the other and file with the Court its objections thereto. Thereafter either party may file such motion or motions at such time as may be appropriate to have the account settled in conjunction with the issues concerning the areas still in dispute. If neither party files such an objection within 60 days, then each party shall forthwith pay to any third person any amount shown by such accounts to be payable by it to such person, and the party whose obligation io the other party is shown by such accounts to be the greater shall forthwith pay to the other party the net balance so shown to be due. If objections are filed but any undisputed net balance is shown which will be due from one party to the other party or to any third person regardless of what may be the ultimate ruling on the objections, the party so shown to be under any such obligation shall forthwith pay each such undisputed balance to the other party or other person so shown to be entitled thereto. The payments directed by paragraphs 7 (a) and 7 (c) hereof shall be made irrespective of the accounting provided for by paragraphs 7 (b) and 7 (d).

9. Until further order of the Court or agreement of the parties filed with the Court, both parties shall continue to recognize as a single lease for all purposes any existing lease now being administered under the Interim Agreement of October 12, 1956, as amended, that covers lands, minerals, or resources, part of which are described in paragraph 1 or paragraph 3 hereof and part of which remain in dispute (including any existing leasehold partly in Zone 1 and partly within the area confirmed to the United States by this decree); but the party hereby awarded part of the lands, minerals, or resources covered by any such lease shall hereafter administer the lease as to such lands, minerals, or resources as sole lessor, shall be entitled to receive from the lessee all payments hereafter due under said lease to the extent that they are derived from or attributable to such part of the lands, minerals, or resources covered by the lease, and shall be under no duty to account for or impound any payments so received. Either party, for its own convenience, may nevertheless impound any or all of such moneys if it wishes to do so, or may terminate such impoundment in whole or in part at any time, without further order of the Court or agreement of the other party. In all other respects each such lease (including any existing leasehold partly in Zone 1 and partly within the area confirmed to the United States by this decree) shall continue to be administered as at present.

10. Nothing in this supplemental decree or the proceedings leading to it shall prejudice any rights, claims or defenses of the United States or of the State of Louisiana with respect to the remainder of the disputed area or past or future payments derived therefrom or attributable thereto or the operation of the Interim Agreement of October 12, 1956, as amended, with respect to such area and payments.

11. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to the decree of December 12, 1960, herein, or to this decree, including, if necessary, further adjustments of the accounting between the parties with respect to the lands, minerals and resources described in paragraph 1 and paragraph 3 of this decree.

The Chief Justice and Mr. Justice Clark took no part in the consideration or decision of this motion or in the formulation of this decree.