author: Mr. Justice Harlan

text:
    BRAUNSTEIN et al. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 476.
    Argued April 29, 1963.
    Decided June 10, 1963.

      Louis Eisenstein argued the cause for petitioners. With him on the briefs were Thurman Arnold and Julius M. Greisman.

      Wayne G. Barnett argued the cause for respondent. With him on the brief were Solicitor General Cox, Acting Assistant Attorney General Jones, Harry Baum and Gilbert E. Andrews.

   Mr. Justice Harlan

delivered the opinion of the Court.

This ease involves the applicability of the “collapsible corporation” provisions of the federal income tax laws which, during the period relevant here, were set forth in §117 (m) of the Internal Revenue Code of 1939. These provisions require that under certain circumstances, gain from the sale of stock which would otherwise be considered as long-term capital gain, and accordingly taxed at a maximum rate of 25%, must be reported as ordinary income.

The three taxpayers who are petitioners here became .associated in 1938 and have since participated in a number of construction projects, usually through corporations in which the stock was equally divided. In 1948 the petitioners received a commitment from the Federal Housing Administration to insure loans for the construction of a multiple-dwelling apartment project in Queens County, New York. Two corporations were formed to carry out this project, and each petitioner was issued one-third of the stock in each corporation. After the costs of construction had been paid, the corporations each had an unüsed amount of mortgage loan funds remaining, and in 1950 the petitioners sold their stock at a profit, receiving as part of the sale transaction distributions from the corporations which included the unused funds. The petitioners reported the excess of the amounts received over their bases in the stock as long-term capital gains of $313,854.17 each.

The Commissioner asserted a deficiency, treating the gain as ordinary income on the ground that the corporations were “collapsible” within the meaning of § 117 (m). The Tax Court sustained the Commissioner, 36 T. C. 22, and the Court of Appeals affirmed the Tax Court, 305 F. 2d 949, holding that (1) the taxpayers had the requisite “view” during construction of the property (see note 1, supra); (2) more than 70% of the gain realized by the taxpayers was attributable to 'the constructed property (id.); and (3) § 117 (m) applies even if the constructed buildings would have produced capital gain on a sale by the taxpayers had no corporations been formed. This last holding was in response to an argument by the taxpayers based on a theory similar to that adopted by the Court of Appeals for the Fifth Circuit in United States v. Ivey, 294 F. 2d 799. In view of the conflict between the decision below and that in Ivey on this point, we granted certiorari, 371 U. S. 933, stating that the grant was limited to the following question:

“Whether Section 117 (m) of the Internal Revenue Code of 1939, which provides that gain ‘from the sale or exchange ... of stock of a collapsible. corporation’ is taxable as ordinary income rather than capital gain, is inapplicable in circumstances where the stockholders would have been entitled to capital gains treatment had they conducted the enterprise in their individual capacities without utilizing a corporation.”

Briefly summarized, petitioners’ argument runs as follows: As the legislative history shows, the collapsible corporation. provisions of the code were designed to close a loophole through which some persons hgd been able to convert ordinary income into long-term capital gain by use of the corporate form. For example, in the case of an individual who constructed a^property which he held primarily for sale to customers in the ordinary course of his trade or business, any gain from the sale of the asset would be ordinary income; but if that same individual were to form a corporation to construct the property, intending to sell his stock on the. completion of construction, it was at least arguable prior to the enactment of § 117 (m) that the proceeds of the ultimate sale of the stock were entitled to capital-gains treatment. It was this and similar devices that § 117 (m) was designed to frustrate, but it was not intended to have the inequitable effect of converting into ordinary income what would properly have been a capital gain prior to its enactment even in the absence of any corporate form. Thus, it is argued, the phrase “gain attributable to such property,” as used in § 117 (m), must apply only to profit that would have constituted ordinary income if a corporation had not been utilized, for only in such cases is the corporation made to serve as a device for tax avoidance. In the present case, neither the corporation nor the individual petitioners were in the trade or business of selling apartment buildings, and thus the corporations were not used to convert ordinary income into capital gain and the provisions of § 117 (m) are inapplicable.

We have concluded that petitioners! contentions must be rejected. Their argument is wholly inconsistent with the plain meaning of the language of § 117 (m), and we find nothing in the purpose of the statute, as indicated by its legislative history, to warrant any departure from that meaning in this ease.

I.

As to the language used, § 117 (m) defines a collapsible corporation as embracing one formed or availed of principally for. the manufacture, construction, or production of property with a view to (1) the sale or exchange of stock prior to the realization by the corporation of a substantial part of the net income, from the property and (2) the realization “of'gain attributable to such property.” The section is then expressly made inapplicable to gain realized during any year, “unless more than 70 per centum of such gain is attributable to the property so manufactured, constructed, or produced.” If used in their ordinary meaning, the word “gain” in these contexts simply refers to the excess of proceeds over cost or basis, and the phrase “attributable to” merely confines consideration to that gain caused or generated by the property in question. With these definitions, the section makes eminent sense, since the terms operate to limit its application to cases in which the corporation was availed of with a view to profiting from the constructed property by a sale or exchange of stock soon after completion of construction and in which a substantial part of the profit from the sale or exchange of stock in a given year was in fact generated by such property.

There is nothing in the language or structure of the section to demand or even justify reading into these provisions the additional requirement that the taxpayer must in fact have been using the corporate form as a device to convert ordinary income into capital gain. If a corporation owns but one asset, and the shareholders sell their stock at a profit resulting from an increase in the value of the asset, they have “gain attributable to” that asset in the natural meaning of the phrase regardless of their desire, or lack of desire, to avoid thp bite of federal income taxes.

II.

Nor is there anything in the legislative history that would lead us to depart from the plain meaning of the statute as petitioners would have us do. There can of course be no question that the purpose *éí § 117 (m) was, as petitioners contend, to close a loophole that Congress feared could be used to convert ordinary income into capital gain. See H. R. Rep. No. 2319, 81st Cong., 2d Sess.; S. Rep. No. 2375, 81st Cóng., 2d Sess. But the crucial point for present purposes is that the method chosen to close this loophole was to establish a carefully and elaborately. defined category of transactions in which what might otherwise be a capital gain would have to be treated as ordinary income. There is no indication whatever of any congressional desire to have the Commissioner or the courts make a determination in each case as to whether the use of the corporation was for tax avoidance. Indeed, the drawing of certain arbitrary lines not here involved — such as making the section inapplicable to any shareholder owning .10% or less of the stock or to any gain realized more than three years after the completion of construction — tends to refute any such indication. It is our understanding, in other words, that Congress intended to define what it believed to be a tax avoidance device rather than to leave the presence or absence of tax avoidance elements for decision on a case-to-case basis.

We are reinforced in this conclusion by the practical difficulties — indeed the impossibilities — of considering without more legislative guidance than is furnished by § 117 (m) whether there has in fact been “conversion” of ordinarv income into capital gains in a particular case. For example, if we were to inquire whether or not the profit would have been ordinary income had an enterprise been individually owned,- would we treat each taxpaying shareholder differently and look only to his trade or business or would we consider the matter in terms of the trade or business of any or at least a substantial number of the shareholders? There is simply no basis in the statute for a judicial resolution of this question, and indeed when Congress addressed itself to the problem in 1958, it approved an intricate formulation falling between these two extremes.

As a further example, what if the individual in question is not himself engaged in any-trade or business but owns stock in varying amounts in a' number of corporate ventures-*other than the one before the court? Do we pierce each of the corporate veils, regardless of the extent and share of the individual’s investment, and charge him with being in the trade or business of each such corporation? Again, there is no basis for a rational judicial answer; the judgment is essentially a legislative one and in the 1958 amendments Congress enacted a specific provision, designed to deal with this matter, that is far too complex to be summarized here.

These examples should suffice to demonstrate the point: The question whether there has in fact been a “conversion” of ordinary income in a particular case is far easier to state than to answer, and involves a number of thorny issues that may not appear on the surface. We find no basis in either the terms or the history of § 117 (m) for concluding that Congress intended the Commissioner and the courts to enter this thicket and to arrive at ad hoc determinations for every taxpayer. Accordingly, the judgments below must be

Affirmed.

Mr. Justice Douglas dissents.

         Section 117 (m) was added to the Internal Revenue Code of 1939 by the Revenue Act of 1950, § 212 (a), 64 Stat. 934. The section was amended by the Revenue Act of 1951, § 326, 65 Stat. 502. It was reenacted without substantial change as § 341 of the Internal Revenue Code of 1954, 68A Stat. 107, and was amended by the Technical Amendments Act of 1958, §20 (a), 72 Stat. 1615, and by the Act of October 16,1962, § 13 (f) (4), 76 Stat. 1035. As originally enacted, and during the period relevant here, it provided:
      “(1) Treatment of gain to shareholders. — Gain from the sale or exchange (whether in liquidation or otherwise) of stock of a collapsible corporation, to the extent that it would be considered (but for the provisions of this subsection) as gain from the sale or exchange of a capital asset held for more than 6 months, shall; except as provided in paragraph (3), be considered as gain from the sale or exchange of property which is not a capital asset.
      “(2) Definitions.—
      “ (A) For the purposes of this subsection, the term ‘collapsible corporation’ means a corporation formed or availed of principally for the manufacture, construction, or production of property, or for the holding of stock in a corporation so formed or availed of, with a view to—
      “(i) the sale or exchange of stock by its shareholders (whether in liquidation or otherwise), or a distribution to its shareholders, prior to the realization by the corppration manufacturing, constructing, or producing the property of a substantial part of the net income to be derived from such property, and
      “(ii) the realization by such shareholders of gain attributable to such property.
      . . . . .
      “(3) Limitations on application of subsection. — In the case of gain realized by a shareholder upon his stock in a collapsible corporation—
      “ (A) this subsection shall not apply unless, at any time after the commencement of the manufacture, construction, or production of the property, such shareholder (i) owned (or was considered as owning) more than 10 per centum in value of the outstanding stock of the corporation, or (ii) owned stock which was considered as owned at such time by another shareholder who then owned (or was considered as owning) more than 10 per centum in value of the outstanding stock of the corporation;
      “(B) this subsection shall not apply to the gain recognized during a taxable year unless more than 70 per centum of siich gain is attributable to the property so manufactured, constructed, or produced; and
      "(C) this subsection shall not apply to gain realized after the expiration of three years following the completion of such manufácture, construction, or production. . .- .”

       Petitioners Benjamin and Harry Neisloss are builders; petitioner Braunstein, an architect Their wives are parties only by virtue of the filing of joint returns.

       The parties have agreed that the distributions from the corporations and the amounts received directly from the buyers of the stock may be considered together, as if the entire amount had been received from the, buyers.

       Int. Rev. Code, 1939, § 117 (a) (1) (A).

       The Government has assumed for purposes of its argument here, but does not concede, that petitioners would have been entitled to capital-gains treatment had they conducted the enterprise without utilizing a corporation.

       Int. Rev. Code, 1954, § 341 (e), added by the Technical Amendments Act of 1958, § 20 (a), 72 Stat. 1615.

       Int. Rev. Code, 1954, §341 (e)(1)(C).

       The Government has emphasized in its argument here that the present case involves a particularly “blatant” conversion of ordinary income because by charging the corporations only for the out-of-pocket costs of construction “petitioners contributed their services create a valuable property for the corporation [s] and then realized upon that value by selling their stock.” Thus, the Government concludes, the petitioners claim as capital gain “what ought to have been (and, in an arm’s-length transaction, would have been) .taxed as compensation for services.”


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    DIVISION 1287, AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY & MOTOR COACH EMPLOYEES OF AMERICA et al. v. MISSOURI.
    No. 604.
    Argued April 24-25, 1963.
    Decided June 10, 1963.

      Bernard Dunau argued the cause for appellants. With him on the briefs were Bernard Cushman and John Manning.

      Joseph Nessenfeld, Assistant Attorney General of Missouri, argued the cause for appellee. With him on the brief were Thomas F. Eagleton, Attorney General of Missouri, and J. Gordon Siddens and John C. Baumann, Assistant Attorneys General.

      J. Albert Woll, Robert C. Mayer, Theodore J. St. Antoine and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, urging reversal.
    Briefs of amici curiae, urging affirmance, were filed by Richmond C. Coburn and Alan C. Kohn for the Chamber of Commerce of Metropolitan St. Louis; by James M. Douglas for the Laclede Gas Company; and by Irvin Fane, Harry L. Browne and Howard F. Sachs for the Kansas City Power & Light Company.
   Opinion of the Court by

Mr. Justice Stewart,

announced by Mr. Justice White.

The appellant union is the certified representative of a majority of the employees of Kansas City Transit, Inc., a Missouri corporation which operates a public transit business in Kansas and Missouri. A collective bargaining agreement between the appellant and the‘company was due to expire on October 31, 1961, and in August of that year, after appropriate notices, the parties commenced the negotiation of an amended agreement. An impasse in these negotiations was reached, and in early November the appellant’s members voted to strike. The strike was called on. November 13.

The same day the Governor of Missouri, acting under the authority of a state law known as the King-Thompson Act, issued a proclamation that the public interest, health and welfare were jeopardized by the threatened interruption ojb the company’s operations, and by an executive order purported to take possession “of the plants, equipment, and all facilities of the Kansas City Transit, Inc., located in the State of Missouri, for the use and operation by the State of Missouri in the public interest.” A second executive order provided in part that “All rules and regulations . . . governing the internal management and' organization of the company, and its duties and responsibilities, shall remain in force and effect.throughout the term of operation by the State of Missouri.”

Pursuant to a provision of the Act which makes unlawful any strike or concerted refusal to work as a means of enforcing demands against the utility or the State after possession has been taken by the State, the State petitioned the Circuit Court of Jackson County for an injunction on November 15,1961. A temporary restraining order was issued on that day, and the strike and picketing were discontinued that evening. After a two-day trial, the order was continued, in effect, and the Circuit Court later entered a permanent injunction barring the continuation of the strike “against the State of Missouri.”

On appeal to the Supreme Court of Missouri, the appellants argued that the King-Thompson Act is in conflict with and is pre-empted by federal labor legislation, and that it abridges rights guaranteed by the First, Thirteenth, and Fourteenth Amendments. Reaffirming its earlier decisions in cases arising under the Act, the Supreme Court of Missouri rejected these arguments and affirmed the issuance of the injunction. 361 S. W. 2d 33. We noted probable jurisdiction. 371 U. S. 961.

We are met at the threshold with the claim that this controversy has become moot, and that we are accordingly foreclosed from considering the merits of the appeal. The basis for this contention is the fact that, after the appellants’ j urisdietioiyal 'statement was filed in this Court, theTJovernorof Missouri issued an executive order which, although reciting that the labor dispute between Kansas City Transit, Inc., and the appellant union “remains unresolved,” nevertheless terminated the outstanding seizure order, upon the finding that “continued exercise, by me of such authority is not justified in the circumstances of the ,aforesaid labor dispute.” Reliance for the claim of mootness is placed upon this Court’s decisions in Harris v. Battle, 348 U. S. 803, and Oil Workers Unions v. Missouri, 361 U. S. 363. In the Oil Workers case the Court declined to consider constitutional challenges to the King-Thompson Act, and in the Harris case declined to rule on the constitutionality of a similar Virginia statute, on the ground that the controversies had become moot. In both of those cases, however, the underlying labor dispute had been settled and' pek. collective bargaining agreements concluded by the time- the litigation reached this Court. Here, by contrast, the labor dispute remains unresolved. There thus exists in the present case not merely the speculative possibility of invocation of the King-Thompson Act in some future labor dispute, but the presence of an existing unresolved dispute which continues subject to all the provisions of the Act. Cf. Southern Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U. S. 498, 51A-516; United States v. W. T. Grant Co., 345 U. S. 629, 632. The situation here is thus quite different from that presented in the Harris and Oil Workers Unions cases, and we hold that the merits of this controversy are before us and must be decided.

The King-Thómpson Act defines certain public utilities as “life essentials of the people” and declares it to be the policy of the State that “the possibility of labor strife in utilities operating under governmental franchise or permit or under governmental ownership and control is a threat to the welfare and health of the people.” The Act imposes requirements in connection with the duration and renewal of collective bargaining agreements,. and creates a State Board of Mediation and public hearing panels whose services are to be invoked whenever the parties cannot themselves agree upon the terms to be included in a new agreement. And where, as here, the recommendations of these agencies are not accepted, and the continued operation of the utility is threatened as a result, the Governor is empowered to “take immediate possession off’ the utility “for the use and operation by the state of Missouri in the public interest.”

In Bus Employees v. Wisconsin Board, 340 U. S. 383, this Court held that the Wisconsin Public Utility Anti-Strike Law, which made it a misdemeanor for public utility employees to engage in a strike which would cause an interruption of an essential public utility service, conflicted with the National Labor Relations Act and was therefore invalid Tinder the Supremacy Clause of the Constitution. The Supreme Court of Missouri in the present case rejected the appellants’ argument that the Wisconsin Board, decision was determinative of the unconstitutionality of the Missouri statute here in issue. The court held that the provisions of the King-Thompson Act dealing with-the mediation board and public hearing panels were severable from the remainder of the statute, and refused to pass on any but those provisions which authorize the seizure and the issuance of injunctions against strikes taking place after seizure has been imposed. These provisions, the court ruled, do not — as in the Wisconsin Board casé — provide a comprehensive labor code conflicting with federal legislation, but rather represent “strictly emergency legislation” designed solely to authorize use of the State’s police power to protect the public from threatened breakdowns in vital community services. Emphasizing that the company was not a party to the injunction suit, the court concluded that, although the State did not actively participate in the management of the utility’s operations, the Governor’s executive order had been sufficient to convert the strike into one against the State, and that an injunction barring such a strike is therefore not barred by the provisions of. federal labor legislation^. 361 S. W. 2d, at 44, 46, 48-52.

We disagree. None of the distinctions drawn by the Missouri court between the King-Thompson Act and the legislation involved in Wisconsin Board seem to us to be apposite. First, whatever the status of the title to the properties of Kansas City Transit, Inc., acquired by the State as a result of the Governor’s executive order, the record shows that the State’s involvement fell far short of creating a state-owned and operated utility whose labor relations are by definition excluded from the coverage of the National Labor Relations Act. The employees of the company did not become employees of Missouri. Missouri did not pay their wages, and did not direct or supervise their duties. -No property of the company was actually conveyed, transferred, or otherwise turned over to the State. Missouri did not participate in any way in the actual management of the company, and there was no change of any kind" in the conduct of the company’s business. As summed up by the Chairman of the State Mediation Board: “So far as I know the company is operating now just as it was two weéks ago before the strike.”

Secondly, the Wisconsin Board case decisively rejected the proposition that a state enactment affecting a public utility operating in interstate commerce could be saved from a challenge based upon a demonstrated conflict with the standards embodied in federal law simply by designating it as “emergency legislation.” There the Court said that where “the state seeks to deny entirely a federally guaranteed right which Congress itself restricted only to a limited extent in case of national emergencies, however serious, it is manifest that the state legislation is in conflict with federal law.” 340 U. S., at 394.

The short of the matter is that Missouri, through the fiction of “seizure” by the State, has made a peaceful strike against a public utility unlawful, in direct conflict with federal legislation which guarantees the right to strike against a public utility, as against any employer éngaged in interstate commerce. In forbidding a strike against an employer covered by the National Labor Relations Act, Missouri has forbidden the exercise of rights explicitly protected by § 7 of that Act. Collective bargaining, with the right to strike at its core, is the essence of the federal scheme. As in Wisconsin Board, a state law which denies that right cannot stand under the Supremacy Clause of the Constitution.

It is hardly necessary to add that nothing we have said even remotely affects the right of a State to own or operate a public utility or any other business, nor the right or duty of the chief executive or legislature of a State to deal with emergency conditions of public danger, violence, or disaster under appropriate provisions of the State’s organic or statutory law.

Reversed.

       The King-Thompson Act is Chapter 295 of the Revised Statutes of Missouri, 1959. The section of the statute authorizing seizure is Mo. Rev. Stat., 1959, § 295.180.

       Missouri Rev. Stat., 1959, § 295.200, par. 1, provides:
      “It shall be unlawful for any person, employee, or representative as defined in this chapter to call, incite, support or participate in any strike or concerted refusal to work for any utility or for the state after any plant, equipment or facility has been taken over by the state under this chapter, as means of enforcing any demands against the utility or against the state.”
      Section 295.200, par. 6, provides:
      “The courts of this state shall have power to enforce by injunction or other legal or equitable remedies any provision of this chapter or any rule or regulation prescribed by the governor hereunder.”

       See State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S. W. 2d 75; Rider v. Julian 65 Mo. 313, 282 S. W. 2d 484; State v. Local No. 8-6, Oil, Chemical M Atomic Workers International Union, AFL-CIO, 317 S. W. 2d 309, vacated as moot, 361 U. S. 363.

       § 295.010. “It is hereby .declared to' be the policy of the state that heat, light, power, sanitation, transportation, communication, and water are life essentials of the people; that the possibility of labor strife in utilities operating under governmental franchise or permit or under governmental ownership and control is' a threat to the welfare and health of the people; that utilities so operating are clothed with public interest, and the state’s regulation of the labor relations affecting such public utilities is necessary in the public interest.”

       § 295.090. “All collective bargaining labor agreements hereafter entered into between the management of a utility and its employees or any craft or class of employees shall be reduced to writing and continue for a period of not less than one year from the date of the expiration of the previous agreement entered into between the management of the utility and its employees or if there has been no such previous agreement then for a period of not less than one year from the date of the actual execution of the agreement. Such agreement shall be presumed to continue in force and effect from year to year after the date fixed for its original termination unless either or both parties, thereto inform the other, in writing, of the specific changes desired to be made .therein and shall also file a copy of such demands with the state board of mediation, at least sixty days before the original termination date or sixty- days before the end of any yearly renewal period, or sixty days before any termination date desired thereafter.”

       Mo. Rev. Stat., 1959, §§295.030, 295.070, 295.080, 295.120, 295.140, 295.160, 295.170.

       §295.180. "1. Should either the utility or its employees refuse to accept and abide by the recommendations made pursuant to the provisions of this chapter and as a result thereof the effective operation of a public utility be threatened or interrupted, or should either party in a labor dispute between a utility and its employees, after having given sixty days’ notice thereof, or failing to' give such notice, engage in any strike, work stoppage or lockout which, in the opinion of the governor, will result in the failure to continue the operation of the public utility, and threatens the public interest, health and welfare, or in the event that neither side has given notice to the other of an intention to seek a change in working conditions, and there occurs a lockout, strike or work stoppage which, in the opinion of the governor, threatens to impair the operation of the utility so as to interfere with the public interest, health and welfare, then and in that case he is authorized to take immediate possession of the plant, equipment or facility for the use and operation by the state of Missouri in the public interest.
      “2. Such power and authority may be exercised by the governor through such department or agency of the government as he may designate and may be exercised after his investigation and. proclamation that there is a threatened or actual interruption of -the operation of such public utility as the result of a labor dispute, a .threatened or actual strike, a lockout or other labor disturbance, and that the public interest, health and welfare are jeopardized, and that the exercise of such authority is necessary to insure the operation of such public utility; provided, .that whenever such public utility, its plant, equipment or facility has been or is hereafter so taken by reason of a strike, lockout, threatened strike, threatened lockout, work stoppage or slowdown, or other cause, such utility, plant, equipment or facility shall be returned to. the owners thereof as soon as practicable after the settlement of said labor dispute, and it shall thereupon be the duty of such utility to continue the operation of the plant facility, of equipment in accordance with its franchise and certificate of public convenience and necessity.”

       29 U. S. C, § 152 (2), (3), 49 Stat. 450; 61 Stat. 137-138. Compare United States v. United Mine Workers, 330 U. S. 258.

       In enacting the Taft-Hartley Act, Congress expressly rejected the suggestion that public utilities be treated differently from other employers. As explained by Senator Taft, “If we begin with public utilities, it will be said that coal and steel are just as important as public utilities. I do not know where we could draw the line. So far as the bill' is concerned, we have proceeded on the theory that there is a right to strike and that labor peace must be based on free collective bargaining.” 93 Cong. Rec. 3835.

       “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a)(3).” 29 U. S. C. § 157, 49 Stat. 452 ; 61 Stat. 140.


author: Mr. Justice White

text:
    UNITED STATES v. PIONEER AMERICAN INSURANCE CO. et al.
    No. 405.
    Argued April 17, 1963.
    Decided June 10, 1963.

      Richard M. Roberts argued the cause for the United States. On the brief were Solicitor General Cox, Acting Assistant Attorney General Jones, Daniel M. Friedman, Joseph Kovner and George F. Lynch.

      Owen C. Pearce argued the cause for respondents. With him on the brief was Marcus Ginsburg.

      H. Cecil Kilpatrick, Samuel E. Neel and William F. McKenna filed a brief for the Mortgage Bankers Association of America et al., as amici curiae, urging affirmance.
   Mr. Justice White

delivered the opinion of the Court.

The United States has sought review of a decision of the Supreme Court of Arkansas subordinating the federal tax lien (26 U. S. C. § 6321) to a lien for attorney’s fees included in an antecedent mortgage contract. 235 Ark. 267, 357 S. W. 2d 653: Because of conflict between the Arkansas decision and United States v. Bond, 279 F. 2d 837 (C. A. 4th Cir.); In re New Haven Clock & Watch Co., 253 F. 2d 577 (C. A. 2d Cir.), we granted certiorari. 371 U. S. 909.

When the taxpayers in 1958 acquired their -interest in the parcel of real estate involved hete, they assumed liability on a note and the deed of trust (first mortgage) securing it, which were held by respondent Pioneer American Insurance Company. The note obligated taxpayers “in the event of default herein and of the placing of this note in the hands of an attorney for collection, or this note is collected through any court proceedings, to pay a reasonable attorney’s fee.” The taxpayers at the same time executed a note and second mortgage to their vendor, respondent The Development Company, and subsequently, in April 1960, the real estáte became burdened again with a mechanic’s' lien in favor of Alfred J. Anderson.

In October of 1960, taxpayers defaulted on the first mortgage monthly installment and failed thereafter to meet payments as they fell due. On March 24, 1961, Pioneer American filed a suit to foreclose its mortgage and sought, in addition to the principal and interest, a reasonable attorney’s fee. The United States was named a party defendant because of two outstanding federal tax liens against the taxpayers which were filed on November 29, 1960, and January 30, 1961. The United States admitted its liens were subordinate to the principal and interest on the first and second mortgages but claimed that the liens were superior to the claim for the- attorney’s fee. Three additional federal tax liens subsequently were filed on April 14, July 17, and October 3, 1961.

On November 15,1961, the Chancery Court entered its decree of foreclosure which fixed the attorney’s fee at $1,250 and determined the priority of the various claimants. After satisfaction of court and foreclosure sale costs, Pioneer American was -accorded first priority for principal, interest and the attorney’s fee; The Development Company took next on principal and interest under the second mortgage; Alfred J. Anderson shared thereafter on his mechanic’s lien and the United States took last. The property was sold and proceeds were received which satisfied all claims except $3,615.28 of the federal tax liens. The United States appealed to the Supreme Court of Arkansas asserting that it was entitled to priority over the attorney’s fees, and that $1,250 more should have been applied to reduce the unpaid federal taxes. With one judge dissenting, the Arkansas court rejected that contention and sustained the superiority of the claim for the attorney’s fee.

It goes unchallenged that the claim for the attorney’s fee, arising out of the obligations assumed by the taxpayer in 1958, became enforceable under Arkanas law as a contract of indemnity at the time of default in October 1960 before the filing of the first federal tax liens. Furthermore, it is evident that the suit in which this attorney’s fee was earned was commenced on March 24, 1961, prior to the filing of the unpaid federal tax liens crucial to this suit, i. e., the liens of April 14, July 17, and October 3, 1961. Nevertheless, because this fee had not been incurred and paid and could not be finally fixed in amount until November 15, 1961, after all the federal liens had been filed, we hold that the claim for attorney’s fees remained inchoate at least until that date and that the federal tax liens are entitled to priority.

The priority of the federal tax lien provided by 26 U. S. C. § 6321 as against liens created under state law is governed by the common-law rule — “the first in time is the first in right.” United States v. New Britain, 347 U. S. 81, 85-86. It is critical, therefore, to determine when competing liens, whether federal or state-created, come into existence or become valid for the purpose of the rule.

The tax lien arises, according to § 6322, when the tax is assessed, but as against the specific interests mentioned in § 6323 (a) — mortgagees, pledgees, purchasers and judgment creditors — it is not valid until placed of public record, and insofar as the federal lien attaches to securities, mortgagees, pledgees and purchasers must have actual notice of the lien. § 6323 (c).

As for. a lien created by state law, its priority depends “on the time it attached to the property in question and became choate.” United States v. New Britain, supra, at 86; United States v. Security Tr. & Sav. Bank, 340 U. S. 47. Choate state-created liens take priority over later federal tax liens, United States v. New Britain, supra; Crest Finance Co. v. United States, 368 U. S. 347, while inchoate liens do not. See United States v. Liverpool & London Ins. Co., 348 U. S. 215; United States v. Scovil, 348 U. S. 218; United States v. Colotta, 350 U. S. 808. And it is a matter of federal law when such a lien has acquired sufficient substance and has become so perfected as to defeat a later-arising or later-filed federal tax lien. “Otherwise, a State could affect the standing of federal liens, contrary to the established.doctrine, simply by causing an inchoate lien to attach at some arbitrary time even before the amount of the tax, assessment, etc., is determined.” United States v. New Britain, supra, at 86. The federal rule is that liens are “perfected in the sense that there is nothing more to be done to have a choate lien — when the identity of the lienor, the property subject to the lien, and the amount of the lien are established.” Id., at 84.

We reject respondents’ contention that the choateness rule has no place when a mortgage under § 6323 (a) involved. The predecessor to § 6323 was first enacted by Congress in 1912 in order to protect' mortgagees, purchasers and judgment creditors against a secret lien for assessed taxes and to postpone the effectiveness of the tax, lien as against these interests until the tax lien was filed. H. R. Rep. No. 1018, 62d Cong., 2d Sess. The section dealt with the federal lien only and it did not purport to affect the time at which- local liens were deemed to arisé or to become choate or to subordinate the tax lien to tentative, conditional or imperfect state" liens. Rather, we believe Congress intended that if out of the whole spectrum of state^created liens,, certain liens áre tó enjoy the preferred status granted by § 6323, they should at least have attained the degree of perfection required of other liens and be choate for the purposes of the federal rule.

The Court has never held that mortgagees face a less demanding test of perfection than other interests when competing with the federal lien. Indeed United States v. Ball Constr. Co., 355 U. S. 587, stands for just the contrary. There the state law creditor, assérting that the assignment under which he claimed was a mortgage within the predecessor to § 6323, insisted upon priority over the federal lien by virtue of the previously executed assignment. A majority of the Court, although not expressly declaring the assignment to be a mortgage, held that § 6323 (a) afforded the creditor no protection since his interest was “inchoate and unperfected.” The four dissenters thought the assignment was a mortgage and that it was “completely perfected” and “in all respects choate.” While disagreeing on the choateness of the particular assignment involved there, the Court was unanimous in applying the choateness test to those seeking the protection of § 6323 (a). We follow that lead here and therefore proceed to measure against the rule the choateness of the mortgagee’s lien for reasonable attorney’s fees before us.

Clearly the identity of the lienholder and the property subject to the lien are definite here, but it is equally "apparent that the amount of the lien for attorney’s fees was undetermined and indefinite when the federal tax liens in question were filed. The mortgage held by respondents secured a promissory note which obligated the mortgagor maker to pay a “reasonable attorney’s fee” “in the event of default” and “of the placing of this note in the hands of an attorney for collection.” By the time the federal liens subordinated by the Arkansas courts were placed of public record, default had occurred, the mortgagee had elected to declare the note due and payable, an attorney' had been engaged and a suit to foreclose the mortgage had been filed. But the “reasonable attorney’s fee” — reasonable in relation to the service to be performed by the attorney — had not been reduced to a liquidated amount. The final amount was to be established by court decree and the Chancery Court set the fee considerably below the sum requested. Moreover, there is no showing in this record that the mortgagee had become obligated to pay and had paid any sum of money for services performed prior to the filing of the federal tax lien.

Ball once again provides a parallel. Sums due the contractor-taxpayer under a particular construction contract were assigned to the surety as security for any future indebtedness of the contractor to the surety arising under that contract or any other. After the filing of the federal tax lien against the contractor, the surety made advances to complete another contract of the taxpayer, as the surety was obligated to do under its bond issued on that contract, and the taxpayer thereby became indebted to the surety. The majority held the surety’s interest “inchoate and unperfected” at the time of the filing of the federal tax liens. Ball therefore rejects as inchoate an assignee’s or mortgagee’s lien to secure future indebtedness of the taxpayer-debtor. The creditor holds merely “a caveat of a more perfect lien to come.” New York v. Maclay, 288 U. S. 290, 294. Likewise, when a mortgagee has a lien for an attorney’s fee which is uncertain in amount and yet to be incurred and paid, such a lien is inchoate and is subordinate to the intervening federal tax-lien filed before the mortgagee’s lien for the attorney’s fee matures.

But, it is said, the principal and interest of the mortgage were definite in amount, the attorney’s fee later became certain by court order and if the tax lien were to prevail the preference of .the mortgagee given by § 6323 will be frustrated since payment of the attorney’s fee will reduce the net amount realized from the mortgage. Aside from the fact that the mortgagee here will experience no such reduction, this argument would subordinate federal tax liens to inchoate liens and in both United States v. New Britain, supra, and United States v. Buffalo Savings Bank, 371 U. S. 228, the Court denied priority to local tax liens which were imperfect when the federal tax lien was filed even though the former had priority over the mortgage and would reduce the recovery of the mortgagee.

The court below was in error and its judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Douglas dissents.

       The deed of trust provided, in addition:
      “That if either the party of the sécond part [trustee] or the party of the first part [mortgagor] shall become a party to any suit or proceeding at law or in equity in reference to its interest in the premises herein conveyed, the reasonable costs, charges and attorney’s fees in such suit or proceeding shall be added to 4he principal sum then owing by the party of the first part and shall be secured by this instrument, and the note secured hereby shall, at the option of the holder, become due and collectible.
      . . . . .
      “The proceeds of any sale under this deed of trust shall be applied ... as follows:
      “First: To-pay the costs and expenses of executing this trust, and any and all sums expended on account of costs of litigation, attorney’s.fees, ground rents, taxes, insurance premiums, or any advances made or expenses incurred on account of the property sold, with interest thereon.
      “Second: To retain as compensation, a commission as set forth by the laws of the State of Arkansas.
      “Third: To pay off the debt secured hereby, including accrued interest thereon, as well as any other sums owing . . . pursuant to this instrument.”

       The federal tax liens, as of the date of the order of distribution, November 15, 1961, were as follows:
      Lien of November 29, 1960.........;............ $659.67
      Lien of January 30,1961........................ 1,661.03
      Lien of April 14,1961.......................... 1,344.69
      Lien of July 17, 1961.......................... 1,653.23
      Lien of October 3, 1961........................ 1,164.04

       The first two liens, November 29, 1960, and January 30, 1961, were satisfied in full. $546.68 was available for partial payment of the April 14, 1961, lien. The balance of the April lien and the full amounts of the July 17 and October 3, 1961, liens remained unsatisfied.

       The United States did not challenge the priority of the mechanic’s, lien or of any other distribution fixed by the decree.

       Once the attorney’s fee is subordinated to the federal tax liens, the $1,250 would be borne by the other claimants in order of seniority among themselves under state law. On the basis of the present decree, the share of the mechanic’s lienor Anderson would be eliminated and that of the second mortgagee, The Development Company, reduced by half.

       “While it is true that the filing of the notice of the tax lien may constitute notice in the case of real property, it is inequitable for the statute to provide that it constitutes notice as regards securities.' For example, when a broker purchases a security for his customer on the exchange, it is obviously impossible for him to check all the offices in which a notice of the tax lien may be duly filed to determine whether the security is subject to such lien.' A like situation exists with respect to over-the-counter and' direct transactions in securities. An attempt to enforce such liens' on recorded notice would in many cases impair the negotiability of securities and seriously interfere with business transactions. The adoption of the amendment will remove an existing hardship without causing any undue loss of revenue.” H. R. Rep. No. 855, 76th Cong., 1st Sess. 26 (1939).

       “The effect of a lien in relation to a provision of federal law for the collection of debts owing the United States is always a federal question. Hence, although a state court’s classification of a lien as specific and perfected is entitled to weight, it is subject to reexamination by this Court.” United States v. Security Tr. & Sav. Bank,
        340 U. S. 47, 49-50; see also, United States v. Acri, 348 U. S. 211; United States v. Vorreiter, 355 U. S. 15. Thus the fact that, under Arkansas law, the claim for attorney’s fees becomes enforceable upon default as a contract of .indemnity does not foreclose inquiry by this Court into the degree the claim is choate at that time.

       There is nothing in Security Mortgage Co. v. Powers, 278 U. S. 149, which compels us to hold the lien choate, since the issue there was the status of an attorney’s' fee clause, fixed in amount, in bankruptcy proceedings where the rigorous federal lien choateness test was not necessarily applicable.

       Contrast Crest Finance Co. v. United States, 368 U. S. 347, where the assignment and the'loans were consummated prior to.the accrual and filing of the federal tax liens.

       See in accord, with respect to attorney’s fees, United States v. Bond, 279 F. 2d 837 (C. A. 4th Cir.); In re New Haven Clock & Watch Co., 253 F. 2d 577 (C. A. 2d Cir.); Bank of America v. Embry, 188 Cal. App. 2d 425,10 Cal. Rptr. 602; with respect to payments of subsequently attaching local taxes, United States v. Bond, supra; United States v. Christensen, 269 F. 2d 624 (C. A. 9th Cir.); and with respect to future advance clause transactions, American Surety Co. v. Sundberg, 58 Wash. 2d 337, 363 P. 2d 99; Rev. Rule 56-41, 1956-1 Cum. Bull. 562; cf. United States v. Peoples Bank, 197 P. 2d 898 (C. A. 5th Cir.); Hoare v. United States, 294 F. 2d 823 (C. A. 9th Cir.).

       This argument would require us to revitalize the long since rejected relation-back doctrine. See United States v. Security Tr. & Sav. Bank, 340 U. S. 47, 50.

       See note 5, supra.

       By the same token respondents’ contention that the rules against “unjust enrichment” are violated by preferring the tax lien to the claim for attorney’s fees is without merit. Both New Britain and Buffalo Savings Bank prefer the federal lien even though the mortgagee’s interest in the proceeds will be reduced by later-arising local taxes having priority under state law over the mortgagee. The attorney’s services, moreover, were rendered for the benefit of the mortgagee to protect his interest in .the property, and the United States, holding an adverse interest, received no such benefit from them that its interest is to be charged-therefor.


author: Per Curiam.

text:
    BALDWIN et al. v. MOSS et al.
    No. 864.
    Decided June 10, 1963.
    Reported below: — F. Supp. —.

      Walt Allen, Jim A. Rinehart, Leon S. Hirsh and Jdmes C. Harkin for appellants.
   Per Curiam.

The appeal is dismissed.

Mr. Justice Harlan would postpone consideration of the question of jurisdiction until after argument on.the merits.


text:
    ALLEN et al. v. VIRGINIA.
    No. 264, Misc.
    Decided June 10, 1963.

      Leonard W. Holt and Simon Lawrence,Cain for petitioners.

      Sol Goodman for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the Circuit Court of Hopewell, Virginia, for reconsideration in light of Griffin v. Illinois, 351 U. S. 12.


text:
    W. R. ARTHUR & CO., INC., v. WISCONSIN DEPARTMENT OF TAXATION.
    No. 1008.
    Decided June 10, 1963.

      Adolph J. Bieberstein, John C. Wickhem and George L. Weisbard for appellant.

      George Thompson, Attorney General of Wisconsin, and Harold H. Persons and E. Weston Wood, Assistant Attorneys General, for appellee.
   Per Curiam.

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


text:
    LUBLIN v. JAMES T. BARNES & CO. et al.
    No. 1040.
    Decided June 10, 1963.
   Per Curiam.

The motion to dispense with printing the. jurisdictional Statement is granted.

The appeal is dismissed. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.


text:
    SLOAN'S MOVING & STORAGE CO., INC., v. UNITED STATES et al.
    No. 880.
    Decided June 10, 1963.

      Herbert Burstein for appellant.

      Solicitor General Cox, Assistant Attorney General Loevinger, Robert B. Hummel, Robert W. Ginnane and H. Neil Garson for the United States and the Interstate Commerce Commission; and Bernard G. Segal, Richmond C. Coburn, S. Harrison Kahn, Irving R. Segal and Robert L. Kendall, Jr. for United Parcel Service, Inc., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    SCOTT v. PENNSYLVANIA.
    No. 1003, Misc.
    Decided June 10, 1963.
    Appellant pro se.

      Walter E. Alessandroni, Attorney General of Pennsylvania, and George G. Lindsay, Assistant Attorney General, for appellee.
   Per Curiam.

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


text:
    BRIGGS v. LOUISIANA STATE BAR ASSOCIATION, COMMITTEE ON BAR ADMISSIONS.
    No. 1070, Misc.
    Decided June 10, 1963.
    Appellant pro se.

      Felicien Y. Lozes for appellee.
   Per Curiam.

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


text:
    BOLLETTIERI v. NEW YORK.
    No. 1378, Misc.
    Decided June 10, 1963.
    Appellant pro se.

      Louis J. Lefkowitz, Attorney General of New York, and Robert E. Fischer and Maxwell B. Spoont, Special Assistant Attorneys General, for appellee.
   Per Curiam.

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

Mr. Justice Black and Mr. Justice Douglas are of the opinion that probable jurisdiction should be noted.


text:
    RANDOLPH, et al. v. VIRGINIA.
    No. 20.
    Decided June 10, 1963.

      Martin A. Martin, Clarence W. Newsome, Jack Greenberg, James M. Nabrit III and Charles L. Black, Jr. for petitioners.

      Robert Y. Button, Attorney General of Virginia, and R. D. McIlwaine III, Assistant Attorney General, for respondent.
   Per Curiam.

The petition for writ of certiorari is granted, the judgments are vacated and the case is remanded to the Supreme Court of Appeals of Virginia for reconsideration in light of Peterson v. City of Greenville, 373 U. S. 244.

Mr. Justice Harlan concurs in the result on the premises stated in his separate opinion in Peterson v. City of Greenville and Avent v. North Carolina, 373 U. S., at 248.


text:
    HENRY et al. v. VIRGINIA.
    No. 29.
    Decided June 10, 1963.

      Herbert O. Reid, Thurgood Marshall, Jack Greenberg and James M. Nabrit III for petitioners.

      William J. Hassan and Peter J. Kostik for respondent.'
   Per Curiam.

The petition for writ of certiorari is granted, the judgments are vacated and the case is remanded to the Supreme Court of Appeals of Virginia for reconsideration in light of Peterson v. City of Greenville, 373 U. S. 244.

Mr. Justice Harlan concurs in the result on the premises stated in his separate opinion in Peterson v. City of Greenville and Avent v. North Carolina, 373 U. S., at 248.


text:
    THOMPSON v. VIRGINIA.
    No. 60.
    Decided June 10, 1963.

      Jack Greenberg, Constance Baker Motley, James M. Nabrit III, S. W. Tucker and Derrick A. Bell, Jr. for petitioner.

      Robert Y. Button, Attorney General of Virginia, and R. D. McIlwaine III, Assistant Attorney General, for respondent.
   Per Curiam.

The petition for writ of certiorari is granted, the judgment is vacated and the case is remanded to the Supreme Court of Appeals of Virginia for reconsideration in light of Peterson v. City of Greenville, 373 U. S. 244.

Mr. Justice Harlan concurs in the result on the premises stated in his separate opinion in Peterson v. City of Greenville and Avent v. North Carolina, 373 U. S., at 248.


text:
    WOOD et al. v. VIRGINIA.
    No. 79.
    Decided June 10, 1963.

      Melvin L. Wulf, Leonard W. ffoít, Henry Halvor Jones and Simon Lawrence Cain for petitioners.

      Robert Y. Button, Attorney General of Virginia, and R. D. McIlwaine III, Assistant Attorney General, for respondent.
   Per Curiam.

The petition for writ of certiorari is granted, the judgment is vacated ana the case is remanded to the Supreme Court of Appeals of Virginia for reconsideration in light of Peterson v. City of Greenville, 373 U. S. 244.

Mr. Justice Harlan concurs in the result on the premises stated in his separate opinion in Peterson v. City of Greenville and Avent v. North Carolina, 373 U. S., at 248.


text:
    MARCHESE v. UNITED STATES et al.
    No. 362.
    Decided June 10, 1963.

      Russell E. Parsons and Sol C. Berenholtz for petitioner.

      Solicitor General Cox, Assistant Attorney General Miller and Philip R. Monahan for the United States et al.
   Per Curiam.

The petition for writ of certiorari is granted, the judgment is vacated and the case is remanded to the United States District Court for the Southern District of California for reconsideration in light of Sanders v. United States, 373 U. S. 1.

Mr. Justice Clark and Mr. Justice Harlan would deny certiorari on the basis of their dissent in Sanders v. United States, 373 U. S., at 23.


author: Pee Cueiam.

text:
    KELLER v. WISCONSIN ex rel. STATE BAR OF WISCONSIN.
    No. 429.
    Decided June 10, 1963.

      Frank M. Coyne for petitioner.

      John W. Reynolds, Attorney General of Wisconsin, and Warren H. Resh, Assistant Attorney General, for respondent.
   Pee Cueiam.

The petition for writ of certiorari is granted, the judgment is vacated and the case is remanded to the Supreme Court of Wisconsin for reconsideration in light of Sperry v. Florida ex rel. Florida Bar, 373 U. S. 379.


text:
    PRICE et al. v. MOSS et al.
    No. 688.
    Decided June 10, 1963.

      Walt Allen, Jim A. Rinehart, Leon S. Hirsh and James C.Harkin for appellants in No. 688.

      Frank Carter for appellants in No. 689.

      Norman Reynolds, Jr. and Sid White for appellees.

       Together with No. 689, Oklahoma Farm Bureau et al. v. Moss et al., on appeal from the same Court.

   Per Curiam.

The motion to dismiss is granted and the appeals are dismissed as the order of the District Court is not appeal-able under 28 U. S. C. § 1253.

Mr. Justice Black and Mr. Justice Goldberg concur in the result.

Mr. Justice Harlan would postpone consideration of the question of jurisdiction until after argument on the merits.


text:
    LAINO v. NEW YORK.
    No. 992.
    Decided June 10, 1963.

      Edward H. Levine and Vernon.C. Rossner for appellant.

      Louis J. Lefkowitz, Attorney General of New,York, and Robert E. Fischer and Maxwell B.Spoont, Special Assistant Attorneys General, for appellee.
   Per Curiam.

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

Mr. Justice Black and Mr. Justice Douglas are of the opinion that probable jurisdiction should be noted.


text:
    HUGGINS v. RAINES, WARDEN.
    No. 251, Misc.
    Decided June 10, 1963.
    Petitioner pro se.

      Mac Q. Williamson, Attorney General of Oklahoma, and Lewis A. Wallace and Hugh H. Collum, Assistant Attorneys General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Criminal Appeals of Oklahoma for reconsideration in light of Gideon v. Wainwright, 372 U. S. 335, and Carnley v. Cochran, 369 U. S. 506.


text:
    BENTLEY v. ALASKA.
    No. 647, Misc.
    Decided June 10, 1963.
    Petitioner pro se.

      George N. Hayes, Attorney General of Alaska, and John K. Brubaker, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Alaska for reconsideration in light of Douglas v. California, 372 U. S. 353, Lane v. Brown, 372 U. S. 477, and Draper v. Washington, 372 U. S. 487.


text:
    BENTLEY v. ALASKA.
    No. 648, Misc.
    Decided June 10, 1963.
    Petitioner pro se.

      George N. Hayes, Attorney General of Alaska, and John K. Brubaker, Assistant Attorney General, for - respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Alaska for reconsideration in light of Brady v. Maryland, 373 U. S. 83, and Mooney v. Holohan, 294 U. S. 103.


text:
    PETERSON v. WAINWRIGHT, CORRECTIONS DIRECTOR.
    No. 754, Misc.
    Decided June 10, 1963.
    Petitioner pro se.

      Richard W. Ervin, Attorney General of Florida, and George R. Georgieff, ’Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Florida for a hearing on the issue of whether petitioner was denied the assistance of counsel at the time he entered his plea of guilty.