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B&B Hardware, Inc. v. Hargis Industries, Inc./Dissent Thomas

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.

The Court today applies a presumption that when Congress enacts statutes authorizing administrative agencies to resolve disputes in an adjudicatory setting, it intends those agency decisions to have preclusive effect in Article III courts. That presumption was first announced in poorly supported dictum in a 1991 decision of this Court, and we have not applied it since. Whatever the validity of that presumption with respect to statutes enacted after its creation, there is no justification for applying it to the Lanham Act, passed in 1946. Seeing no other reason to conclude that Congress implicitly authorized the decisions of the Trademark Trial and Appeal Board (TTAB) to have preclusive effect in a subsequent trademark infringement suit, I would affirm the decision of the Court of Appeals.

A
The presumption in favor of administrative preclusion the Court applies today was first announced in ''Astoria Fed. Sav. & Loan Assn. v. Solimino'', 501 U.S. 104, 108 (1991). In that case, the Court confronted the question "whether claimants under the Age Discrimination in Employment Act of 1967 [ (ADEA)] are collaterally estopped to relitigate in federal court the judicially unreviewed findings of a state administrative agency made with respect to an age-discrimination claim." Id., at 106. It answered that question [p162] in the negative, concluding that the availability of administrative preclusion was an issue of statutory construction and that the particular statute at issue "carrie[d] an implication that the federal courts should recognize no [such] preclusion." Id., at 108, 110.

Despite rejecting the availability of preclusion, the Court nevertheless, in dictum, announced a presumption in favor of giving preclusive effect to administrative determinations "where Congress has failed expressly or impliedly to evince any intention on the issue." Id., at 110. That dictum rested on two premises. First, that "Congress is understood to legislate against a background of common-law adjudicatory principles." Id., at 108. And, second, that the Court had "long favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determinations of administrative bodies that have attained finality." Id., at 107.

I do not quarrel with the first premise, but I have serious doubts about the second. The Court in Astoria offered only one decision predating the enactment of the ADEA to shore up its assertion that Congress had legislated against a background principle in favor of administrative preclusion—''United States v. Utah Constr. & Mining Co.'', 384 U.S. 394, 422 (1966). See Astoria, supra, at 107. And that decision cannot be read for the broad proposition asserted by the Court.

Like Astoria itself, Utah Construction discussed administrative preclusion only in dictum. The case arose out of a contract dispute between the United States and a private contractor. 384 U.S., at 400. The contract at issue contained a disputes clause providing for an administrative process [p163] by which disputes concerning questions of fact arising under th[e] contract would be decided by the contracting officer, subject to written appeal to the head of the department. Id., at 397–398. The Wunderlich Act of 1954 likewise provided that such administrative factfinding would be "final and conclusive" in a later breach-of-contract action unless the same is fra[u]dulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence. Id., at 399. Because both "the disputes clause [of the contract] and the Wunderlich Act categorically state[d] that administrative findings on factual issues relevant to questions arising under the contract [would] be final and conclusive on the parties," the Court required the lower courts to accept those findings. Id., at 419. Only after acknowledging that its decision "rest[ed] upon the agreement of the parties as modified by the Wunderlich Act" did the Court go on to comment that the decision was "harmonious with general principles of collateral estoppel." Id., at 421.

To create a presumption based solely on dictum would be bad enough, but the principles Utah Construction referred to were far too equivocal to constitute "long-established and familiar" background principles of the common law of the sort on which we base our statutory inferences. Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952). Although Utah Construction asserted that "[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose," it admitted that "courts have used language to the effect that res judicata principles do not apply to administrative proceedings." 384 U.S., at 421–422. These contradictory signals are not typically the stuff of which background rules of common law are made. Cf. Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 538 (2013) (presuming that Congress intended to retain [p164] the "first sale" doctrine in copyright statutes based on that common-law doctrine's "impeccable historic pedigree").

B
If the occasion had arisen in Astoria for the Court to examine the history of administrative preclusion, it would have discovered that the issue was far from settled. At common law, principles of res judicata and collateral estoppel applied only to a decision by a "court of competent jurisdiction." Aurora City v. West, 7 Wall. 82, 102 (1869); accord, Hopkins v. Lee, 6 Wheat. 109, 113 (1821); Restatement of Judgments §§ 4, 7, and Comment f, pp. 20, 41, 45 (1942). That rule came with the corollary requirement that the court be "legally constituted"—that is, a court "known to and recognized by the law." 2 H. Black, Law of Judgments § 516, p. 614 (1891). A court not "legally constituted" lacked jurisdiction to enter a legally binding judgment, and thus any such judgment could have no preclusive effect. Ibid.

Nineteenth century courts generally understood the term "court of competent jurisdiction" to include all courts with authority and jurisdiction conclusively to resolve a dispute. See J. Wells, A Treatise on the Doctrines of Res Judicata and Stare Decisis §§ 422–423, pp. 336–338 (1878); 2 Black, supra, § 516, at 613–614. Thus, courts of law, courts of equity, admiralty courts, and foreign courts could all satisfy the requirement of a "[c]ourt of competent jurisdiction." Hopkins, 6 Wheat., at 113. This broad definition served the interest in finality that supports preclusion doctrines, without which "an end could never be put to litigation." Id., at 114.

But however broadly "[c]ourt of competent jurisdiction" was defined, it would require quite a leap to say that the concept encompasses administrative agencies, which were recognized as categorically different from courts. E.g., Pearson v. Williams, 202 U.S. 281 (1906); F. Cooper, Administrative [p165] Agencies and the Courts 241–242 (1951) (taking the position that agencies "are not courts, and their determinations are not judgments"). This distinction stems from the Constitution itself, which vests the "judicial Power" not in administrative agencies, but in federal courts, whose independence is safeguarded by certain constitutional requirements. Art. III, § 1. One of the consequences of this allocation of judicial power is that agencies possess limited ability to act in a judicial capacity in cases resolving traditional disputes between private parties. See infra, at 171.

It is therefore unsurprising that federal courts—including this Court—have been far more hesitant than today's majority to extend common-law preclusion principles to decisions of administrative tribunals. In Pearson, for example, this Court declined to recognize any preclusive effect of a decision of an immigration board. 202 U.S., at 284–285. Writing for the Court, Justice Holmes explained that "[t]he board is an instrument of the executive power, not a court"; that it consisted of officials "whose duties are declared to be administrative by" statute; and that "[d]ecisions of a similar type long have been recognized as decisions of the executive department, and cannot constitute res judicata in a technical sense." Ibid.

Other courts likewise declined to apply general preclusion principles to decisions of administrative agencies. For example, as late as 1947, the D.C. Circuit would rely on the "well settled doctrine that res judicata and equitable estoppel do not ordinarily apply to decisions of administrative tribunals." Churchill Tabernacle v. FCC, 160 F.2d 244, 246 (1947).

The Restatement of Judgments also reflected this practice: It contained no provision for administrative preclusion and explained that it would not address "the effect of the decisions of administrative tribunals." Restatement of Judgments, Scope Note, at 2. It rejected the idea of any consistent practice in favor of administrative [p166] preclusion, noting that "the question whether the decisions of a particular tribunal are binding in subsequent controversies depends upon the character of the tribunal and the nature of its procedure and the construction of the statute creating the tribunal and conferring powers upon it." Ibid.

Consistent with that comment, federal courts approved of administrative preclusion in narrow circumstances arguably involving only claims against the Government, over which Congress exercises a broader measure of control. In the 19th century, for instance, this Court effectively gave preclusive effect to the decisions of the U.S. Land Department with respect to land patents when it held such patents unreviewable in federal court "for mere errors of judgment." Smelting Co. v. Kemp, 104 U.S. 636, 646 (1882) ("A patent, in a court of law, is conclusive as to all matters properly determined by the Land Department"). Commentators explained that these cases could not truly be understood to involve an application of res judicata or collateral estoppel—for, after all, administrative agencies are not courts—but rather a "species of equitable estoppel." Cooper, supra, at 242; see also 2 A. Freeman, Law of Judgments § 633, p. 1335 (5th ed. rev. 1925) (explaining that "the immunity from judicial review" for certain administrative decisions was "not based upon the doctrine of res judicata nor governed by exactly the same rules"). As one commentator put it, res judicata could "not apply, in any strict or technical sense, [p167] to the decisions of administrative agencies." Cooper, supra, at 241.

This history undercuts any suggestion in Utah Construction that administrative preclusion was widely accepted at common law. Accordingly, at least for statutes passed before Astoria, I would reject the presumption of administrative preclusion.

II
In light of this history, I cannot agree with the majority's decision to apply administrative preclusion in the context of the Lanham Act. To start, the Lanham Act was enacted in 1946, 20 years before this Court said—even in dictum—that administrative preclusion was an established common-law [p168] principle. Thus, even if one thought that the dictum in Utah Construction were sufficient to establish a common-law principle in favor of preclusion, that conclusion would not warrant applying 's presumption to this enactment from the 1940's. And, construing the Act on its own terms, I see no reason to conclude that Congress intended administrative preclusion to apply to TTAB findings of fact in a subsequent trademark infringement suit. The Act says nothing to indicate such an intent, and several features of the Act support the contrary inference.

The first feature indicating that Congress did not intend preclusion to apply is the limited authority the Act gives the TTAB. The Act authorizes the TTAB only to "determine and decide the respective rights of [trademark] registration," 15 U.S.C. § 1067(a), thereby withholding any authority from the TTAB to "determine the right to use" a trademark or to "decide broader questions of infringement or unfair competition," TTAB Manual of Procedure § 102.01 (2014). This limited job description indicates that TTAB's conclusions regarding registration were never meant to become decisive—through application of administrative preclusion—in subsequent infringement suits. See 15 U.S.C. § 1115(a) (providing that registration of a mark "shall be prima facie evidence of the validity of the registered mark" but "shall not preclude another person from proving any legal or equitable defense or defect"). Giving preclusive effect to the TTAB's decision on likelihood of confusion would be an end-run around the statutory limitation on its authority, as all parties agree that likelihood of confusion is the central issue in a subsequent infringement suit.

A second indication that Congress did not intend administrative preclusion to apply is the Lanham Act's provision for judicial review. After the TTAB issues a registration decision, a party "who is dissatisfied with the decision" may either appeal to the Federal Circuit or file a civil action in [p169] district court seeking review. §§ 1071(a)(1), (b)(1). And it is undisputed that a civil action in district court would entail de novo review of the TTAB's decision. Ante, at 144. Although under ordinary preclusion principles "the failure to pursue an appeal does not undermine issue preclusion," ante, at 152, the availability of de novo judicial review of an administrative decision does. That is true both because the judicial review afforded by the Act marks the first opportunity for consideration of the issue by an Article III court and because Congress has deviated from the usual practice of affording deference to the factfindings of an initial tribunal in affording de novo review of the TTAB's decisions.

The decision to provide this de novo review is even more striking in light of the historical background of the choice: Congress passed the Lanham Act the same year it passed the Administrative Procedure Act, following a lengthy period of disagreement in the courts about what deference administrative findings of fact were entitled to receive on direct review. The issue had been the subject of debate for over 50 years, with varying results. See generally 2 J. Dickinson, Administrative Justice and the Supremacy of Law 39–75 (1927). Sometimes this Court refused to review factual determinations of administrative agencies at all, Smelting Co., 104 U.S., at 640, 646, and sometimes it allowed lower courts to engage in essentially de novo review of factual determinations, see ICC v. Alabama Midland R. Co., 168 U.S. 144, 174 (1897); Reckendorfer v. Faber, 92 U.S. 347, 351–355 (1876).

In the early 20th century, the Court began to move toward substantial-evidence review of administrative determinations involving mixed questions of law and fact, ICC v. Union Pacific R. Co., 222 U.S. 541, 546–548 (1912), but reserved the authority to review de novo any so-called "jurisdictional facts." [p170] Crowell v. Benson, 285 U.S. 22, 62–63 (1932). Courts then struggled to determine the boundary between jurisdictional and nonjurisdictional facts, and thus to determine the appropriate standard of review for administrative decisions. See, e.g., Estep v. United States, 327 U.S. 114, 142 (1946) (Frankfurter, J., concurring in result) (noting the "casuistic difficulties spawned" in Crowell and the "attritions of that case through later decisions"). Although Congress provided for substantial-evidence review in the Administrative Procedure Act, 5 U.S.C. § 706(2)(E), it required de novo review in the Lanham Act.

I need not take a side in this historical debate about the proper level of review for administrative findings of fact to conclude that its existence provides yet another reason to doubt that Congress intended administrative preclusion to apply to the Lanham Act.

III
In addition to being unsupported by our precedents or historical evidence, the majority's application of administrative preclusion raises serious constitutional concerns.

A
Executive agencies derive their authority from Article II of the Constitution, which vests "[t]he executive power" in "a President of the United States," Art. II, § 1, cl. 1. Executive agencies are thus part of the political branches of Government and make decisions "not by fixed rules of law, but by the application of governmental discretion or policy." Dickinson, supra, at 35–36; see, e.g., ''Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co.'', 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part) (An agency "is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration"). They are not constituted to exercise "independent judgment," but to be responsive to the pressures of the political branches. [p171] Perez v. Mortgage Bankers Assn., ante, at 119 (THOMAS, J., concurring in judgment).

Because federal administrative agencies are part of the Executive Branch, it is not clear that they have power to adjudicate claims involving core private rights. Under our Constitution, the "judicial power" belongs to Article III courts and cannot be shared with the Legislature or the Executive. Stern v. Marshall, 564 U.S. 462, 482–483 (2011); see also Perez, ante, at 119–122 (opinion of THOMAS, J.). And some historical evidence suggests that the adjudication of core private rights is a function that can be performed only by Article III courts, at least absent the consent of the parties to adjudication in another forum. See Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 561–574 (2007) (hereinafter Nelson); see also Department of Transportation v. Association of American Railroads, ante, at 69 (THOMAS, J., concurring in judgment) (explaining that "there are certain core functions" that require the exercise of a particular constitutional power and that only one branch can constitutionally perform).

To the extent that administrative agencies could, consistent with the Constitution, function as courts, they might only be able to do so with respect to claims involving public or quasi-private rights. See ''Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 68–70 (1982) (plurality opinion); see also Nelson 561–574; Dickinson, supra'', at 6. Public rights are those belonging to the public as a whole, see Nelson 566, whereas quasi-private rights, or statutory entitlements, are those privileges or franchises that are bestowed by the government on individuals, id., at 567; see, e.g., Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929) (discussing claims "arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it").

The historical treatment of administrative preclusion is consistent with this understanding. As discussed above, [p172] most administrative adjudications that were given preclusive effect in Article III courts involved quasi-private rights like land grants. See Smelting Co., 104 U.S., at 646. And in the context of land grants, this Court recognized that once "title had passed from the government," a more complete form of judicial review was available because "the question became one of private right." Johnson v. Towsley, 13 Wall. 72, 87 (1871).

It is true that, in the New Deal era, the Court sometimes gave preclusive effect to administrative findings of fact in tax cases, which could be construed to implicate private rights. See, e.g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 401–404 (1940); Tait v. Western Maryland R. Co., 289 U.S. 620, 622–624 (1933). But administrative tax determinations may simply have enjoyed a special historical status, in which case this practice might be best understood as a limited deviation from a general distinction between public and private rights. See Nelson 588–590.

B
Trademark registration under the Lanham Act has the characteristics of a quasi-private right. Registration is a creature of the Lanham Act, which "confers important legal rights and benefits on trademark owners who register their marks." Ante, at 142 (internal quotation marks omitted). Because registration is merely a statutory government entitlement, no one disputes that the TTAB may constitutionally adjudicate a registration claim. See Stern, supra, at 491; Nelson 568–569.

By contrast, the right to adopt and exclusively use a trademark appears to be a private property right that "has been long recognized by the common law and the chancery courts of England and of this country." In re Trade-Mark Cases, 100 U.S. 82, 92 (1879). As this Court explained when addressing Congress' first trademark statute, enacted in 1870, the exclusive right to use a trademark "was not created by the [p173] act of Congress, and does not now depend upon it for its enforcement." Ibid. "The whole system of trade-mark property and the civil remedies for its protection existed long anterior to that act, and have remained in full force since its passage." Ibid. Thus, it appears that the trademark infringement suit at issue in this case might be of a type that must be decided by "Article III judges in Article III courts." Stern, 564 U.S., at 484.

The majority, however, would have Article III courts decide infringement claims where the central issue—whether there is a likelihood of consumer confusion between two trademarks—has already been decided by an executive agency. This raises two potential constitutional concerns. First, it may deprive a trademark holder of the opportunity to have a core private right adjudicated in an Article III court. See id., at 485–487. Second, it may effect a transfer of a core attribute of the judicial power to an executive agency. Cf. Perez, ante, at 120–122 (opinion of THOMAS, J.) (explaining that interpretation of regulations having the force and effect of law is likely a core attribute of the judicial power that cannot be transferred to an executive agency). Administrative preclusion thus threatens to "sap the judicial power as it exists under the Federal Constitution, and to establish a government of a bureaucratic character alien to our own system, wherever fundamental rights depend upon the facts, and finality as to facts becomes in effect finality in law." Crowell, 285 U.S., at 57, 52 S.Ct. 285.

At a minimum, this practice raises serious questions that the majority does not adequately confront. The majority does not address the distinction between private rights and public rights or the nature of the power exercised by an administrative agency when adjudicating facts in private-rights disputes. And it fails to consider whether applying administrative preclusion to a core factual determination in a private-rights dispute comports with the separation of powers. [p174]

I would hold that the TTAB's trademark-registration decisions are not entitled to preclusive effect in a subsequent infringement suit. The common law does not support a general presumption in favor of administrative preclusion for statutes passed before this Court's decision in Astoria, and the text, structure, and history of the Lanham Act provide no support for such preclusion. I disagree with the majority's willingness to endorse 's unfounded presumption and to apply it to an adjudication in a private-rights dispute, as that analysis raises serious constitutional questions. Because I can resolve this case on statutory grounds, however, I leave these questions for another day. I respectfully dissent.


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62

Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.

A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.

2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.

1. All States shall cooperate in the suppression of unauthorized broadcasting from the high seas.

2. For the purposes of this Convention, "unauthorized broadcasting" means the transmission of sound radio or television broadcasts from a ship or installation on the high seas intended for reception by the general public contrary to international regulations, but excluding the transmission of distress calls.

3. Any person engaged in unauthorized broadcasting may be prosecuted before the court of:
 * (a) the flag State of the ship;
 * (b) the State of registry of the installation;
 * (c) the State of which the person is a national;
 * (d) any State where the transmissions can be received; or
 * (e) any State where authorized radio communication is suffering interference.

4. On the high seas, a State having jurisdiction in accordance with paragraph 3 may, in conformity with article 110, arrest any person or ship engaged in unauthorized broadcasting and seize the broadcasting apparatus.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Page:Unclos e.djvu/56


text:
Page:The House at Pooh Corner (1961).pdf/49

 “All except the shillings,” said Piglet. “I don’t think they ought to be there.”

“They wanted to come in after the pounds,” explained Pooh, “so I let them. It is the best way to write poetry, letting things come.”

“Oh, I didn’t know,” said Piglet.

Tigger had been bouncing in front of them all this time, turning round every now and then to ask, “Is this the way?”—and now at last they came in sight of Kanga’s house, and there was Christopher Robin. Tigger rushed up to him.

“Oh, there you are, Tigger!” said Christopher Robin. “I knew you’d be somewhere.”

“I’ve been finding things in the Forest,” said Tigger importantly. “I’ve found a pooh and a piglet and an eeyore, but I can’t find any breakfast.”

Pooh and Piglet came up and hugged Christopher Robin, and explained what had been happening.

“Don’t you know what Tiggers like?” asked Pooh.

“I expect if I thought very hard I should,” said Christopher Robin, "but I thought Tigger knew.”

“I do,” said Tigger. “Everything there is in the world except honey and haycorns and—what were those hot things called?”

“Thistles.”

“Yes, and those."


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Page:The House at Pooh Corner (1961).pdf/48

 Tigger finished his last circle and came up to Pooh and Piglet.

“Hot!” he explained with a large and friendly smile. “Come on!” and he rushed off.

Pooh and Piglet walked slowly after him. And as they walked Piglet said nothing, because he couldn’t think of anything, and Pooh said nothing, because he was thinking of a poem. And when he had thought of it he began:

“He’s quite big enough anyhow,” said Piglet.

“He isn’t really very big.”

“Well, he seems so.”

Pooh was thoughtful when he heard this, and then he murmured to himself:

“And that’s the whole poem,” he said. “Do you like it, Piglet?”


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Bennett v. Arkansas

Relying on an Arkansas statute authorizing the State to seize a prisoner's property, including his Social Security benefits, in order to help defray the cost of maintaining its prison system, Arkansas filed suit in state court to attach petitioner's Social Security benefits. The trial court directed that a portion of petitioner's benefits be seized, rejecting his argument that the state law violates the Supremacy Clause of the Federal Constitution because it permits the State to attach funds that are exempt from legal process under 42 U.S.C. § 407(a). The Supreme Court of Arkansas affirmed, holding that there is no conflict between the state and federal statutes because § 407(a) contains an "implied exception to exemption from legal process" when a State provides for a Social Security recipient's care and maintenance.

Held: The Arkansas statute violates the Supremacy Clause. There is no "implied exception" to the express language of § 407(a) and its clear intent that Social Security benefits not be attachable, even though the State provides for all of petitioner's needs. The State is not a statutorily intended beneficiary of petitioner's Social Security benefits. Rose v. Rose, 481 U.S. 619, distinguished.

290 Ark. 47, 716 S.W.2d 755, reversed.

Thomas M. Carpenter, by appointment of the Court, 484 U.S. 921, argued the cause for petitioner. With him on the brief were Charles L. Carpenter and Charles L. Carpenter, Jr.

Richard J. Lazarus argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Merrill, Charles A. Rothfeld, John F. Cordes, and John P. Schnitker.

J. Steven Clark, Attorney General of Arkansas, argued the cause for respondent. With him on the brief was Clint Miller, Assistant Attorney General.

title: Bennett v. Arkansas


text: Page:The House at Pooh Corner (1961).pdf/9


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Bennett v. Arkansas/Opinion of the Court

PER CURIAM.

This case involves an attempt by the State of Arkansas to attach certain federal benefits paid to individuals who are incarcerated in Arkansas prisons. In 1981, Arkansas adopted the State Prison Inmate Care and Custody Reimbursement Act, Ark. Stat. Ann. § 46-1701 et seq. (Supp. 1985), a statute that authorizes the State to seize a prisoner's property or "estate" in order to help defray the cost of maintaining its prison system. The Act specifically defines "estate" to include a prisoner's federal Social Security benefits, as well as other types of pension or retirement benefits. § 46-1702(d). The State filed separate actions in state court seeking to attach Social Security benefits that had been paid to petitioner Bennett and Veterans' Administration (VA) disability pension benefits that were paid to another inmate, Shelton. In relevant part, the inmates responded by arguing that the Arkansas statute violates the Supremacy Clause of the Federal Constitution because it permits the State to attach funds that federal law exempts from legal process. In particular, petitioner pointed to 42 U.S.C. § 407(a) (1982 ed., Supp. III), which provides that "none of the moneys paid or payable under [the Social Security Act] shall be subject to execution, levy, attachment, garnishment, or other legal process." Similarly, Shelton contended that attachment of his VA benefits is inconsistent with 38 U.S.C. § 3101(a), which provides that such benefits "shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or [p397] under any legal or equitable process whatever, either before or after receipt by the beneficiary."

The state trial court rejected the inmates' arguments and directed that a portion of each of their benefits be seized. The Supreme Court of Arkansas affirmed, with one justice dissenting. 290 Ark. 47, 716 S.W.2d 755 (1986). Briefly stated, the court found that there is no conflict between the federal and state statutes because "the federal statutes contain an implied exception to the exemption from legal process when the State provides for the care and maintenance of a beneficiary of social security or veterans' funds." Id., at 49, 716 S.W.2d, at 756. We granted Bennett's petition for certiorari. 484 U.S. 895 (1987).

We think—contrary to the conclusion of the Supreme Court of Arkansas—that there is a clear inconsistency between the Arkansas statute and 42 U.S.C. § 407(a) (1982 ed., Supp. III). Section 407(a) unambiguously rules out any attempt to attach Social Security benefits. The Arkansas statute just as unambiguously allows the State to attach those benefits. As we see it, this amounts to a "conflict" under the Supremacy Clause—a conflict that the State cannot win. See Rose v. Arkansas State Police, 479 U.S. 1 (1986). We reject the State's attempt to avoid this conclusion by arguing that the federal statute contains an "implied exception" that would allow attachment of otherwise exempted federal payments simply because the State has provided the recipient with "care and maintenance." We declined to find such an exception in Philpott v. Essex County Welfare Board, 409 U.S. 413 (1973), where we held that § 407 bars a State from attempting to attach Social Security benefits as reimbursement for state welfare assistance payments. [p398] Philpott may be factually distinguishable on the ground that there the State provided for only part of the needs of the Social Security recipient while here the State provides for all of the prisoners' needs, see Department of Health and Rehabilitative Services, State of Fla. v. Davis, 616 F.2d 828, 830 (CA5 1980) (relying on such a distinction). But we do not think that such a distinction carries the day given the express language of § 407(a) and the clear intent of Congress that Social Security benefits not be attachable.

Nor do we think that the State's "implied exception" argument is supported by our decision last Term in Rose v. Rose, 481 U.S. 619 (1987). There we held that 38 U.S.C. § 3101 did not bar a state court from holding a disabled veteran in contempt for failing to pay child support, even though the veteran's only means of paying his obligation was to use his VA disability benefits. But in that case we held that the benefits in question were designed by Congress to support not only the recipient of the benefits, but also his dependents. Accordingly, allowing the state court in that case to enforce a valid child support order was fully consistent with the underlying intent of § 3101, which was in part to prevent the deprivation and depletion of the means of subsistence of the beneficiaries of the federal payments. Id., at 630 (quoting S. Rep. No. 94-1243, pp. 147–148 (1976)). Here, in contrast, the State cannot be said to be a "beneficiary" of petitioner's Social Security benefits.

The judgment of the Supreme Court of Arkansas is

Reversed.


text: Category:United States Supreme Court decisions in Volume 485


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Page:William Muir, Thomas Hunter Weir - The Caliphate; Its Rise, Decline, and Fall (1915).djvu/400

Suleimān differed from Al-Welīd, ʿOmar differed incomparably more, not only from both, but also from all other Caliphs both before and after him. An unaffected piety, tinged albeit with bigotry, led to uprightness, moderation, simplicity of life, and to a rule that was eminently just and peaceful. On assuming the Caliphate, the royal grooms brought before him the prancing steeds of the court stables to choose from; but he preferred his own modest equipage. He bade his wife surrender to the treasury the costly jewels given her by her father, ʿAbd al-Melik, else he could no longer live with her; and she obeyed. On ʿOmar's death, her brother Yezīd succeeding to the throne, offered to restore them, but she, mindful of her husband's wish, declined. Calling his other wives and slave-girls to him, ʿOmar told them, that as now he had to bear the weight of empire, they must no longer expect from him the same attention and benevolence as before, but it was open to them to leave: they wept, and all declared that they would not be parted from him. In his first oration he invited only those to join his company who would help in doing that which was just and right. Poets, orators, and such like soon found that his court was no place for them, while it was thronged by godly and devout divines. His pious scruples led him sometimes into acts of questionable expediency. The demesnes at Fadak, reserved by the Prophet for public charity, but some time back wrongfully appropriated by Merwān for the expenses of the court, were now, against

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 370 the ruling of Abu Bekr, handed over to the family of ʿAlī; their properties in Mecca were restored to the family of Talḥa; and these, with other resumptions of the kind, created ill-feeling in the royal house. His devotion to Islām prejudiced him against the employment of Jews and Christians: and in a rescript addressed to his lieutenants he bade them exalt the true faith, abase all others, and appoint none but Muslims to offices of trust—quoting verses of the Ḳorʾān in support of his command. The Mawāli, or new converts, of Khorāsān, who took part in the wars, were put on a level with the Muḳātila, or fighting Arabs—that is, they were exempt from taxes and received pensions. He restored to the children also of the Muḳātila the pensions which had been curtailed by Muʿāwiya and withheld by ʿAbd al-Melik. The tithes of the province of ʿOmān were returned to that province for distribution amongst its poor. He was also hard and unpitiful in exacting from those of other creeds the severest burdens it was lawful to impose. But whatever the bigotry or even fanaticism of his rule, and however much he may have sought to proselytise by favouring the religion of Islām, his justice in administering the law according to its dictates, was surpassed by none. When appealed to by the Christians of Damascus to give them back the Church of St John turned by Al-Welīd into the city Mosque—though unable to concede their request, he allowed them to retain the Church of St Thomas, which was not theirs by right. The people of Nejrān, who had, by a breach of faith, been transplanted by ʿOmar I. to near Al-Kūfa, and on whom Moḥammad had laid a tribute of 2000 pieces of cloth (80,000 dirhems), had decreased in numbers by war and conversions. ʿOthmān had granted them a rebate of 200 pieces, and Muʿāwiya of a further 200, Both these were re-imposed by Al-Ḥajjāj. By the time of ʿOmar II., their numbers had fallen from 40,000 to 4000, ʿOmar II. therefore reduced the tribute from 2000 pieces of cloth to 200.

Hitherto in the public prayers on Friday throughout the Empire, a petition cursing ʿAlī had been in use. The later historians say this was now withdrawn. A sense of duty may have led to this action, justified by a passage in the Ḳorʾān, which enjoins justice and kindness towards


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26 have got a good deal to attend to. See you to-morrow, my dear. Perhaps if I 'phone you, we can meet at Galbraiths'?"

Messrs. Galbraith, Galbraith, Cuthbertson, & Galbraith were Van Aldin's London solicitors.

"Very well. Dad." She hesitated. "I suppose it—this—won't keep me from going to the Riviera?"

"When are you off?"

"On the fourteenth."

"Oh, that will be all right. These things take a long time to mature. By the way, Ruth, I shouldn't take those rubies abroad if I were you. Leave them at the bank."

Mrs. Kettering nodded.

"We don't want to have you robbed and murdered for the sake of 'Heart of Fire, said the millionaire jocosely.

"And yet you carried it about in your pocket loose," retorted his daughter, smiling.

"Yes"

Something, some hesitation, caught her attention.

"What is it, Dad?"

"Nothing." He smiled. "Thinking of a little adventure of mine in Paris."

"An adventure?"

"Yes, the night I bought these things."

He made a gesture towards the jewel case.

"Oh, do tell me."

"Nothing to tell, Ruthie. Some apache fellows got a bit fresh and I shot at them and they got off. That's all."

She looked at him with some pride.


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Rh "You're a tough proposition, Dad."

"You bet I am, Ruthie."

He kissed her affectionately and departed. On arriving back at the Savoy, he gave a curt order to Knighton.

"Get hold of a man called Goby; you’ll find his address in my private book. He's to be here to-morrow morning at half-past nine."

"Yes, sir."

"I also want to see Mr. Kettering. Run him to earth for me if you can. Try his Club—at any rate, get hold of him somehow, and arrange for me to see him here to-morrow morning. Better make it latish, about twelve. His sort aren't early risers."

The secretary nodded in comprehension of these instructions. Van Aldin gave himself into the hands of his valet. His bath was prepared, and as he lay luxuriating in the hot water, his mind went back over the conversation with his daughter. On the whole he was well satisfied. His keen mind had long since accepted the fact that divorce was the only possible way out. Ruth had agreed to the proposed solution with more readiness than he had hoped for. Yet, in spite of her acquiescence, he was left with a vague sense of uneasiness. Something about her manner, he felt, had not been quite natural. He frowned to himself.

"Maybe I'm fanciful," he muttered, "and yet—I bet there's something she has not told me."


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 Rh A few days later I met Tomlinson in the street with a valise in his hand.

“Where are you going?” I asked.

“I’m off to Mexico,” he answered. “They’re advertising for a Canadian teller for a bank in Tuscapulco. I’ve sent my credentials down, and I’m going to follow them right up in person. In a thing like this, the personal element is everything.”

So Tomlinson went down to Mexico and he travelled by sea to Mexico City, and then with a mule train to Tuscapulco. But the mails, with his credentials, went by land and got there two days ahead of him.

When Tomlinson got to Tuscapulco he went into the bank and he spoke to the junior manager and told him what he came for. ‘I’m awfully sorry,” the junior manager said, “I’m afraid that this post has just been filled.”

Then he went into an inner room to talk with the manager.

“The tellership that you wanted a Canadian for,” he asked, “didn’t you say that you have a man already?”

“Yes,” said the manager, “a brilliant young fellow from Toronto; his name is Tomlinson, I have his credentials here—a first-class man. I’ve wired him to come right along, at our expense, and we’ll keep the job open for him ten days.”

“There’s a young man outside,” said the

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text:
Wood v. Lovett/Dissent Black

MR. JUSTICE BLACK, dissenting:

There is far more involved here than a mere litigation between rival claimants to a few hundred acres of Arkansas land. In my view, the statute here stricken down is but one of many acts adopted both by Congress and by state legislatures in an effort to meet the baffling economic and sociological problems growing out of a nation-wide depression. These problems—among them the owners' loss of homes and farms, chiefly through mortgage sales and tax forfeitures and the states' concomitant loss of tax revenues—challenged the wisdom and capacity of the nation's legislators.

Among the efforts of Arkansas' legislators to meet these problems was the legislation adopted by Act 142 of 1935 and repealed by Act 264 of 1937—the repealing act being the statute here held invalid. It is quite apparent that considerations of public policy induced the Arkansas legislature to pass the 1935 act whereby Arkansas courts were prohibited from setting aside certain types of defective tax sales "by any proceedings at law or in equity." At the time that act was passed, more than [p373] 25% of the real property in the state was tax delinquent. Loss of revenue from so substantial a portion of the state's total acreage was a serious matter. In the eyes of some people, the land could be sold and the lost revenues recouped if some of the formal grounds on which tax titles could be invalidated were rendered unavailing. It seems clear that the 1935 legislature was persuaded of the wisdom of such a step. But it also seems clear that the 1935 act was repealed in 1937 because the legislature became convinced that the law had worked directly contrary to the state's policy of obtaining the benefits believed to flow from continuity of possession by home owners and farmers, that it had accomplished inequitable results, that it had thereby "operated injuriously to the interests of the State, and that sound policy dictated its repeal." This is apparent from reading that part of § 2 of the repealing act of 1937 which declared that "said Act 142, Acts 1935, ignores jurisdictional prerequisites to effect valid sales of tax delinquent lands, as prescribed by law, and has brought the laws of [p374] the State incident thereto into doubt and confusion "

Both the 1935 act and the 1937 act repealing it touch on Arkansas' policy as to taxation, tax forfeiture, and land ownership—matters of public policy which are of vital interest to the state and all its citizens. It was a matter of serious moment to Arkansas that 25% of the state's privately owned land—homes, farms, and other property—was in jeopardy of being taken from its owners because of inability to pay taxes. If only 50% of the forfeitures were homes and farms, simultaneous ouster of so many citizens could result in forced migrations and discontents disastrous in their consequences. The manifestations of financial distress revealed by the widespread delinquency spotlighted conditions which called for the best in legislative statesmanship. To seek a rational and fair solution to the problem was not only within the power of Arkansas' lawmakers, but was also their imperative duty. Without attempting to judge the wisdom or equities of either act, it is easy to see that both the 1935 and the 1937 act represented rational and understandable attempts to achieve such a solution. To hold that the contract clause of the Federal Constitution is a barrier to the 1937 attempt to restore to the distressed landowners the remedy partly taken away by the 1935 act is, in my view, wholly inconsistent with the spirit and the language of that Constitution.

As already stated, Arkansas was not faced with a problem peculiar to that state alone. At the depth of the depression, over 20% of all real property in the United States was tax delinquent. Nor was Arkansas alone in seeking to do something about the situation. "Since 1928 [p375] nearly every state in the Union has enacted legislation dealing with the problem of delinquent taxes and a number of states have completely remodeled their systems of tax delinquency laws. This legislative activity has been called forth by the unprecedented increase just before and during the depression in the amount of unpaid property taxes and by the consequent threat both to the financial stability of state and local governments and to the security of private property." By acts passed in the single year of 1933, twelve states extended the time for paying taxes already due, eleven states postponed sales for taxes, twenty-six states (among them Arkansas) waived or reduced penalties and interest on taxes already delinquent or for which property had already been sold, nine states (among them Arkansas) lengthened the period of redemption on property already sold, and sixteen states permitted payment of already delinquent taxes in installments spread over a period of years.

The states, and the federal government also, were faced with a "financial crisis [which had] the same results as if it were caused by flood, earthquake, or disturbance in nature." The federal government greatly expanded facilities for farm loans; set up the Home Owners Loan Corporation; practically underwrote the nation's banking system; passed the Frazier-Lemke Act; widened the scope of bankruptcy jurisdiction; and embarked on a system of nationwide relief. In the states, [p376] part of the effort to meet the crisis took the form of mortgage and tax moratoria; part took other forms, including that of the legislation now before us. All may well be considered parts of the larger and over-all effort to avert catyclysmic changes which were thought to threaten the equilibrium and tranquility of our society. This Court, in its notable decision in Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, upheld that phase of the Minnesota effort which took the form of a mortgage moratorium. In the course of the opinion, the Court quoted the state Attorney General, who in his argument here had stated: Tax delinquencies were alarmingly great, rising as high as 78% in one county of the state. In seven counties of the state the tax delinquency was over 50%. Because of these delinquencies many towns, school districts, villages and cities were practically bankrupt' [and] serious breaches of the peace had occurred." The policy behind mortgage moratoria and the policy behind tax leniency to landowners are inextricably intertwined. The basic philosophy of the two types of legislation is identical. For encouragement of home and farm ownership has always been treated as a major objective of our social and governmental policy. And therefore what was said in the Blaisdell case with reference to the contract clause is equally applicable here: "Not only is the constitutional provision qualified by the measure of control which the state retains over remedial processes, but the state also continues to possess authority to safeguard the vital interests of its people. It does not matter that legislation appropriate to that end 'has the result of modifying or abrogating contracts already in effect.' Stephenson v. Binford, 287 U.S. 251, 276. Not only are existing laws [p377] read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order."

So much for the general setting which gave rise to the law here held invalid. In order better to understand the effect that law had on the appellants and the appellee, it is necessary to consider other provisions of Arkansas law.

At the time appellants secured from the state a quit claim deed to the lands here in question, the law provided two alternative means of assuring purchasers of tax forfeited lands against loss:

(1) Such purchasers, under certain circumstances, could hold on to the land through the protection afforded by the remedial processes of the courts;

(2) In case they could not hold on to the land, such purchasers were afforded the protection of a judicially enforceable right to be reimbursed by the landowner for the amount paid out for purchase price and subsequent taxes, with interest, as well as for improvements-all in the event that the former owners of the land should for any reason be able to prove that the lands had never been validly forfeited. Ark. Dig. Stats. (Pope, 1937) §§ 4663–4665, 13881.

[p378] The Arkansas legislature, by Act 264 of 1937, narrowed the circumstances under which purchasers might hold on to the land. But the second alternative assurance remained intact.

From my study of the case I am of opinion that:

(1) The 1937 Arkansas statute here attacked neither impaired nor sought to repudiate any contractual agreement or obligation expressly or impliedly assumed by the state;

(2) The 1937 Arkansas statute was enacted well within the state's general legislative powers and is in no way inconsistent with the true intent and fair interpretation of the federal constitutional prohibition which commands that "No State shall pass any  Law impairing the Obligation of Contracts "

First. The state, by quitclaim deeds, without any express warranty whatever, conveyed the lands in question to appellants. It is appellants' claim that an "obligation of the contract created by the grant of the State" has been impaired by the Arkansas statute. Stripped of surplus verbiage, appellants' naked contention is that Arkansas, by its quit claim sale and conveyance, obligated itself to refrain from thereafter passing a general legislative enactment if such enactment would affect in any manner any of the legal means provided to protect tax sale purchasers against loss. We need not here consider whether under the Arkansas Constitution the legislature could have thus bargained away the state's legislative power in setting up a scheme for the sale of tax forfeited land. For there was no attempt on the part of the state officials who made the sale to exercise any such extraordinary authority.

A deed to property without warranty is an agreement to transfer whatever title the grantor has. And even without express language to that effect in the conveyance, it is reasonable to say that a valid quit claim conveyance [p379] carries along with it an implied obligation that the grantor will not repudiate the grant and attempt to reassert title in himself, for such a reassertion of title would be contrary to the express purpose which actuated the parties in reaching the agreement which ended in the conveyance. The implied obligation not to reassert title was the basis of the decision in Fletcher v. Peck, 6 Cranch 87, a decision which this Court relies on in the case at bar. Cf. Satterlee v. Matthewson, 2 Pet. 380, 414, 415. In Fletcher v. Peck, the court said: "A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his own grant." What the State of Georgia did in that case was to seek to reassert title to land which the court found it had conveyed for a consideration under what the court deemed to be a valid contract. True, Georgia was not a party to the actual litigation, but by purporting to convey to one purchaser land which had already been conveyed by it to another purchaser the state clearly attempted to assert that it still had title to the land. Here the State of Arkansas has not repudiated any implied obligation by attempting to reassert title in the lands whose ownership is now in issue. There is no litigation here between the state and its grantees, and none, as in Fletcher v. Peck, between rival grantees of the state. Appellee claims title through an owner whose estate Arkansas had purportedly forfeited for unpaid taxes. Neither in the facts of this case nor in the legislation attacked is there any kind of challenge to the validity of [p380] the state's conveyance of all the title the state possessed. As pointed out above, Fletcher v. Peck rested upon the assumption that there was a continuing obligation on the part of the state, as on the part of any other grantor, not to repudiate a valid conveyance and attempt to reassert a claim to property which had been sold. Such a ruling offers no support to the contention that Arkansas, in quit claiming all its interest to appellants, thereby assumed a continuing contractual obligation that its legislative department would in no way alter the procedural rules to be followed by the Arkansas courts in adjudicating controversies between the state's grantees and the original owners whom the state had attempted to divest of their property by the drastic method of forfeiture. "The trouble at the bottom of the case is that the supposed promise  on which it is founded does not exist. If such a promise had been intended, it was far too important to be left to implication." Knoxville Water Co. v. Knoxville, 189 U.S. 434, 436. "The patent [here, the quit claim deed] contains no covenant to do, or not to do, any further act in relation to the land; and we do not, in this case, feel at liberty to create one by implication." Jackson v. Lamphire, 3 Pet. 280, 289, 7 L.Ed. 679. "A contract binding the state is only created by clear language, and is not to be extended by implication beyond the terms of the statute In the case at bar the act  operated in no manner as a restraint upon the legislature or as a contract upon its part that the state would not act whenever in its judgment it perceived the necessity for an additional ferry No promise made by the legislature by the first act is broken by the second." Williams v. Wingo, 177 U.S. 601, 603. "There is no undertaking on the part of the state with the purchaser that the remedy prescribed in this statute, and no other, shall be pursued, unless it is to be implied from the mere presence of the provision in the statute, [p381] and we think it well settled that no such implication arises." Wilson v. Standefer, 184 U.S. 399, 410.

In this case Arkansas has fully complied with the express terms of its contract. For there was certainly no express obligation on the part of Arkansas that its general laws concerning forfeiture of property and sale of land should remain static. Nor do I believe that any such obligation can properly be implied. Arkansas did not agree with the appellants that it would keep on its statute books legislation which in effect forfeited its citizens' lands in a way and manner which was directly in the teeth of what had been the Arkansas law at the time the alleged forfeitures occurred. And I do not believe that we should compel the accomplishment of such a result by what I conceive to be a stretching of the contract clause of the Federal Constitution.

Second. Measured either by the constitutional provision itself or by that provision as construed by prior decisions of this Court, I am of opinion that the Arkansas statute is consistent with what was referred to in Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 438, 439, as the true intent and fair interpretation of the contract clause.

Writing in 1817, Judge Livingston, of the Federal Circuit Court of New York, had this to say of the contract clause: "There is not, perhaps, in the constitution any article of more ambiguous import, or which has occasioned, and will continue to occasion, more discussion and disagreement, or the application of which to the cases which occur, will be attended with more perplexity and embarrassment  and it will not be surprising if, in the discharge of it, great diversity of opinion should arise." Adams v. Storey, Fed. Cas. No. 66, 1 Paine's Rep. 79, 88–89. In Home Building & Loan Assn. v. Blaisdell, supra, written in 1933, appears a resumé of previous decisions which [p382] substantiate the accuracy of Judge Livingston's prophecy. And in the Blaisdell case this Court quoted a statement originally made by Justice Johnson in Ogden v. Saunders, 12 Wheat. 213, 286: "But to assign to contracts, universally, a literal purport, and to exact for them a rigid literal fulfilment, could not have been the intent of the constitution. It is repelled by a hundred examples. Societies exercise a positive control as well over the inception, construction and fulfilment of contracts, as over the form and measure of the remedy to enforce them." The accuracy of this statement cannot be questioned by one who reflects upon the extent to which contracts and agreements are a part of the daily activities of our society. For so nearly universal are contractual relationships that it is difficult if not impossible to conceive of laws which do not have either direct or indirect bearing upon contractual obligations. Therefore, it would go far towards paralyzing the legislative arm of state governments to say that no legislative body could ever pass a law which would impair in any manner any contractual obligation of any kind. Upon a recognition of this basic truth rests the decision in the Blaisdell case. Such recognition was made clear by the use of the following expressions, either quoted and implicitly approved, or used for the first time: "the prohibition is not an absolute one and is not to be read with literal exactness like a mathematical formula"; "No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances"; "In all such cases the question becomes, therefore, one of reasonableness, and of that the legislature is primarily the judge"; "The question is not whether the legislative action affects contracts incidentally, or directly or indirectly, but [p383] whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end"; "If it be determined, as it must be, that the contract clause is not an absolute and utterly unqualified restriction of the state's protective power, this legislation is clearly so reasonable as to be within the legislative competency." 290 U.S. 398, 430, 438, 447.

The Blaisdell decision represented a realistic appreciation of the fact that ours is an evolving society and that the general words of the contract clause were not intended to reduce the legislative branch of government to helpless impotency. See Veix v. Sixth Ward Building & Loan Assn., 310 U.S. 32, 38. Whether the contract clause held been given too broad a construction in judicial opinions prior to the Blaisdell decision is not now material. And whether I believe that the language quoted from the Blaisdell opinion constitutes the ultimate criteria upon which legislation should be measured I need not now discuss. For I am of opinion that the Arkansas statute, passed in pursuance of a general public policy of that state, comes well within the permissible area of state legislation as that area is defined by the Blaisdell case and the decisions upon which that case rests. The only part of the Blaisdell decision mentioned by the Court in the case at bar is a passage quoting a statement which in Blaisdell, the Chief Justice quoted from Von Hoffman v. City of Quincy, 4 Wall. 535, 550, 552: "the laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to or incorporated in its terms." The Court now quotes this language as the governing law. In the Blaisdell case, however, the Chief Justice followed the quotation with this statement: "But this broad language cannot be taken without qualification. Chief Justice Marshall pointed out the distinction between obligation and remedy. Sturges v. Crowninshield, supra, 4 Wheat. 122], p. 200. Said he: 'The distinction between the obligation of a contract, and the remedy given [p384] by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct. Home Building & Loan Assn. v. Blaisdell, supra, at 430. And Chief Justice Marshall, elaborating his views of this same subject in his dissenting opinion in Ogden v. Saunders, 12 Wheat. 213, 343, 353: "We have, then, no hesitation in saying that, however law may act upon contracts, it does not enter into them, and become a part of the agreement. The effect of such a principle would be a mischievous abridgment of legislative power over subjects within the proper jurisdiction of states, by arresting their power to repeal or modify such laws with respect to existing contracts." "We think, that obligation and remedy are distinguishable from each other. That the first is created by the act of the parties, the last is afforded by government."

[p384] As has already been pointed out the forfeiture in the case at bar was wholly invalid under what was the governing law at the time of such forfeiture. That invalidity was rendered unavailing to the land's former owners—and to all other owners similarly situated—by the 1935 act. As has also been pointed out, experience evidently demonstrated to the legislature that the best interest of all the people of the state was not served by the change effected by the 1935 act; hence its repeal in 1937. In Arkansas, as appellants argue here, "these actions to cancel tax deeds are in their essential nature nothing more or less than suits to redeem the property " And it has long been recognized as the law in Arkansas that "the right to redeem lands from a tax-sale depends upon the statute in force at the date of the sale." Thompson v. Sherrill, 51 Ark. 453, 458; 11 S.W. 689, 690; Groves v. Keene, 105 Ark. 40, 43; 150 S.W. 575. At the time of the forfeiture and sale to the state, Arkansas law protected the purchaser by providing that he should be reimbursed and made whole in case his tax purchase was set aside for irregularity. That protection is today afforded to the full extent that it was when appellants [p385] bought the land; the repealing act of which appellants complain did not take away any part of that right. From all of this it is manifest that the entire plan of the state in connection with tax sales, both before and after the repealing act of 1937, shows a scrupulous desire to provide compensation for the purchaser in order that he may not suffer pecuniary loss, whatever may be the consequences of a suit for the land. And the whole course of legislation in Arkansas shows a desire to be fair both to the purchaser of tax forfeited land and to the former owners whose land is about to be lost by reason of the drastic device of forfeiture. Cf. Curtis v. Whitney, 13 Wall. 68, 71. I cannot believe that the true intent and interpretation of the contract clause prohibits Arkansas from making such an effort to preserve the rights of both the landowner and the one who claims the landowner's forfeited property. Arkansas has not here taken away appellants' "entire remedy" but has done so "in part only." Mason v. Haile, 12 Wheat. 370, 378. I am willing to concede that there may be a "vast disproportion between the value of the land and the sum for which it is usually bid off at such sales." Curtis v. Whitney, supra, at 70. But assuming that the tax forfeited land here was obtained at such a bargain, I am still of the opinion that these appellants—who have the right to their money, with interest—have been denied no right guaranteed by the contract clause. And in this connection it is not to be forgotten that appellants could have obtained a perfect title by openly and adversely holding possession of the land for two years—a privilege which the state courts finally and authoritatively found had not been exercised. Tax sold properties are undoubtedly bought with the knowledge on the part of those who speculate in them that states ordinarily [p386] adopt a liberal policy in order to protect property owners from tax forfeiture. And even granting that we could enter into questions of policy, I would be unable to reach the conclusion that Arkansas, by repealing its 1935 statute, acted "without reason or in a spirit of oppression." W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56, 60. It would seem to me to be difficult to support an argument that Arkansas was acting either unreasonably, unjustly, oppressively, or counter to sound public policy in adopting a law which, without depriving purchasers of the right to recover their money outlay, with interest, sought to make the way easy for former home owners and property owners of all types to reacquire possession and ownership of forfeited property. If under the contract clause it is justifiable to seek to find "a rational compromise between individual rights and public welfare," Home Building & Loan Assn. v. Blaisdell, supra, at 442, then it seems to me that this is a case for the application of that principle. I do not believe that the Arkansas legislaure is prohibited by the Federal Constitution from adopting the public policy which the decision of the Arkansas Supreme Court has upheld in this case. "Especial respect should be had to such decisions when the dispute arises out of general laws of a state, regulating its exercise of the taxing power, or relating to the State's disposition of its public lands."

MR. JUSTICE DOUGLAS and MR. JUSTICE MURPHY concur in this opinion.

title: Wood v. Lovett/Dissent Black


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Page:Frenzied Fiction.djvu/217

 Rh junior, “who wants to apply for the job.”

“Outside?” exclaimed the manager. “How did he get here?”

“Came in on the mule train this morning: says he can do the work and wants the job.”

“What’s he like?” asked the manager.

The junior shook his head.

“Pretty dusty looking customer,” he said. “Shifty looking.”

“Same old story,” murmured the manager. “It’s odd how these fellows drift down here, isn’t it? Up to something crooked at home, I suppose. Understands the working of a bank, eh? I guess he understands it a little too well for my taste. No, no,” he continued, tapping the papers that lay on the table, “now that we’ve got a first-class man like Tomlinson, let’s hang on to him. We can easily wait ten days, and the cost of the journey is nothing to the bank as compared with getting a man of Tomlinson’s stamp. And, by the way, you might telephone to the Chief of Police and get him to see to it that this loafer gets out of town straight off.”

So the Chief of Police shut up Tomlinson in the calaboose and then sent him down to Mexico City under a guard. By the time the police were done with him he was dead broke, and it took him four months to get back to

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 Rh Toronto; when he got there, the place in Mexico had been filled long ago.

But I can imagine that some of my readers might suggest that I have hitherto been dealing only with success in a very limited way, and that more interest would lie in discussing how the really great fortunes are made.

Everybody feels an instinctive interest in knowing how our great captains of industry, our financiers and railroad magnates made their money.

Here the explanation is really a very simple one. There is, in fact, only one way to amass a huge fortune in business or railway management. One must begin at the bottom. One must mount the ladder from the lowest rung. But this lowest rung is everything. Any man who can stand upon it with his foot well poised, his head erect, his arms braced and his eye directed upward, will inevitably mount to the top.

But after all—I say this as a kind of afterthought in conclusion—why bother with success at all? I have observed that the successful people get very little real enjoyment out of life. In fact the contrary is true. If I had to choose—with an eye to having a really pleasant life—between success and ruin, I should prefer ruin every time. I have several friends who are completely ruined—some two

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text: Template:Cast and crew

title: Template:Cast and crew


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Page:Self-help with illustrations of conduct and perseverance (IA selfhelpwithillu00smiliala).pdf/113

so happens that the history of Pottery furnishes some of the most remarkable instances of patient perseverance to be found in the whole range of biography. Of these we select three of the most striking, as exhibited in the lives of Bernard Palissy, the Frenchman; Johann Friedrich Böttgher, the German; and Josiah Wedgwood, the Englishman.

Though the art of making common vessels of clay was known to most of the ancient nations, that of manufacturing enamelled earthenware was much less common. It was, however, practised by the ancient Etruscans, specimens of whose ware are still to be found in antiquarian collections. But it became a lost art, and was only recovered


text:
Module:Cast and crew

require('strict')

local p = {}

local getArgs = require('Module:Arguments').getArgs local error_message = require('Module:Error')['error']

local function getLink(args) -- Get the Wikidata item ID from the frame arguments local wikidataItem = args[1] if not wikidataItem then return error_message({'Module:Cast and crew error: no Wikidata item provided'}) end -- Query Wikidata for sitelinks local entity = mw.wikibase.getEntity(wikidataItem) if not entity then return error_message({'Module:Cast and crew error: invalid or nonexistent Wikidata item'}) end local label = entity:getLabel('en') or wikidataItem -- Check for an English Wikisource link local enwikisourceLink = entity:getSitelink('enwikisource') if enwikisourceLink then return  .. label ..  end -- Check for an English Wikipedia link local enwikiLink = entity:getSitelink('enwiki') if enwikiLink then return  .. label ..  end -- Fallback to a direct Wikidata link with label return  .. label ..  end

function p._getCastList(args) local wikidataItem = args[1] if not wikidataItem then return error_message({'Module:Cast and crew error: no Wikidata item provided'}) end -- Query Wikidata for cast member claims (P161) local entity = mw.wikibase.getEntity(wikidataItem) if not entity or not entity.claims then return '' end local castMembers = entity.claims['P161'] if not castMembers then castMembers = entity.claims['P725'] -- voice actors end if not castMembers then return '' end local leadingActors = {} local otherCastMembers = {} local uncreditedActors = {} for _, castMember in ipairs(castMembers) do		local castMemberQID = (castMember.mainsnak.datavalue and castMember.mainsnak.datavalue.value.id) or nil local roleClaims = (castMember.qualifiers and castMember.qualifiers['P453']) or nil local characteristicClaims = (castMember.qualifiers and castMember.qualifiers['P1552']) or nil local role = '' local uncredited = false local isLeadingActor = false -- Get the role if available if roleClaims and roleClaims[1].datavalue and roleClaims[1].datavalue.value then local roleQID = roleClaims[1].datavalue.value.id           if roleQID == 'Q18086706' then role = 'Self' elseif roleQID then role = getLink({roleQID}) end end -- Check for characteristics (leading actor, uncredited) if characteristicClaims then for _, characteristic in ipairs(characteristicClaims) do               local characteristicQID if characteristic and characteristic.datavalue and characteristic.datavalue.value then characteristicQID = characteristic.datavalue.value.id               end if characteristicQID == 'Q1765879' then -- Leading actor isLeadingActor = true elseif characteristicQID == 'Q16582801' or characteristicQID == 'Q122392315' then -- Uncredited uncredited = true end end end -- Generate link for the cast member local castMemberLink = getLink({castMemberQID}) if uncredited then castMemberLink = castMemberLink .. ' (uncredited)' end -- generate table cells local castMemberCells = ' ' .. role .. ' ' .. castMemberLink .. ' '        -- Sort leading actors, other cast members, and uncredited actors if isLeadingActor then table.insert(leadingActors, castMemberCells) elseif uncredited then table.insert(uncreditedActors, castMemberCells) else table.insert(otherCastMembers, castMemberCells) end end -- Combine leading actors, other cast members, and uncredited actors local castList = table.concat(leadingActors) .. table.concat(otherCastMembers) .. table.concat(uncreditedActors) -- Return the formatted table if there are cast members if castList ~= '' then return ' Cast   Role  Actor  ' .. castList else return '' end end

function p.getCastList(frame) return p._getCastList(getArgs(frame)) end

function p._getCrewList(args) local properties = { {"Production company", "P272"}, {"Distributor", "P750"}, {"Director", "P57"}, {"Producer", "P162"}, {"Screenwriter", "P58"}, {"Cinematographer", "P344"}, {"Editor", "P1040"}, {"Composer", "P86"}, {"Animator", "P6942"}, {"Production designer", "P2554"}, {"Costume designer", "P2515"}, {"Storyboard artist", "P3275"}, }   local deathYearNeeded = { ["Director"] = true, ["Producer"] = true, ["Screenwriter"] = true, ["Animator"] = true, ["Cinematographer"] = true, ["Composer"] = true }   local wikidataItem = args[1] if not wikidataItem then return error_message({'Module:Cast and crew error: no Wikidata item provided'}) end local entity = mw.wikibase.getEntity(wikidataItem) if not entity or not entity.claims then return '' end local crewTableRows = {} local latestDeathYear = 0 local deathYears = {} local releaseDateClaim = entity.claims['P577'] and entity.claims['P577'][1] local releaseDate = releaseDateClaim and releaseDateClaim.mainsnak.datavalue.value.time local releaseYear = releaseDate and releaseDate:match('+([0-9]+)') local isSilentFilm = false if releaseYear and tonumber(releaseYear) >= 1926 then local instanceOfClaims = entity.claims['P31'] or {} local genreClaims = entity.claims['P136'] or {} for _, claim in ipairs(instanceOfClaims) do           if not isSilentFilm and claim and claim.mainsnak and claim.mainsnak.datavalue and claim.mainsnak.datavalue.value and claim.mainsnak.datavalue.value.id == 'Q226730' then isSilentFilm = true break end end if not isSilentFilm then for _, claim in ipairs(genreClaims) do               if not isSilentFilm and claim and claim.mainsnak and claim.mainsnak.datavalue and claim.mainsnak.datavalue.value and claim.mainsnak.datavalue.value.id == 'Q226730' then isSilentFilm = true break end end end end for _, prop in ipairs(properties) do       local role, propertyId = unpack(prop) local crewMembers = entity.claims[propertyId] if crewMembers then local crewMemberLinks = {} for _, crewMember in ipairs(crewMembers) do           	if crewMember and crewMember.mainsnak and crewMember.mainsnak.datavalue and crewMember.mainsnak.datavalue.value then local crewMemberQID = crewMember.mainsnak.datavalue.value.id	               local crewMemberLink = getLink({crewMemberQID}) if deathYearNeeded[role] and not deathYears[crewMemberQID] then local deathDateClaims = mw.wikibase.getBestStatements(crewMemberQID, 'P570') if deathDateClaims and deathDateClaims[1] and deathDateClaims[1].mainsnak and deathDateClaims[1].mainsnak.datavalue and deathDateClaims[1].mainsnak.datavalue.value then local deathDate = deathDateClaims[1].mainsnak.datavalue.value['time'] if deathDate then local deathYear = deathDate:match('+([0-9]+)') if deathYear then crewMemberLink = crewMemberLink .. ' (d. ' .. deathYear .. ')' deathYears[crewMemberQID] = deathYear latestDeathYear = math.max(latestDeathYear, tonumber(deathYear)) end end end end table.insert(crewMemberLinks, crewMemberLink) end end if #crewMemberLinks > 0 then table.insert(crewTableRows, ' ' .. role .. '  ' .. table.concat(crewMemberLinks, ', ') .. '  ') end end end if #crewTableRows == 0 then return '' end table.insert(crewTableRows, 1, ' Crew ') if latestDeathYear > 0 then local currentYear = tonumber(os.date('*t').year) local pmaYears = currentYear - latestDeathYear - 1 local footnoteText = string.format('Based on available information, the latest crew member that is relevant to international copyright laws died in %d, meaning that this film may be in the public domain in countries and jurisdictions with %d years p.m.a. or less, as well as in the United States.', latestDeathYear, pmaYears) table.insert(crewTableRows, ' ' .. footnoteText .. ' ') end return table.concat(crewTableRows) end

function p.getCrewList(frame) return p._getCrewList(getArgs(frame)) end

function p._generateCastAndCrew(args) -- Try to get the current Wikidata item associated with the page local currentPageQID = args[1] or mw.wikibase.getEntityIdForCurrentPage if not currentPageQID then return '' end local castListContent = p._getCastList({currentPageQID}) local crewListContent = p._getCrewList({currentPageQID}) if crewListContent ==  and castListContent ==  then return '' end return tostring(mw.html.create('table')		:addClass('wikitable mw-collapsible mw-collapsed wst-cast-and-crew')		:wikitext(' Cast and Crew  ' .. castListContent .. crewListContent)	) end

function p.generateCastAndCrew(frame) return p._generateCastAndCrew(getArgs(frame)) end

return p

title: Module:Cast and crew


text:
Page:Self-help with illustrations of conduct and perseverance (IA selfhelpwithillu00smiliala).pdf/114

 at a comparatively recent date. The Etruscan ware was very valuable in ancient times, a vase being worth its weight in gold in the time of Augustus. The Moors seem to have preserved amongst them a knowledge of the art, which they were found practising in the island of Majorca when it was taken by the Pisans in. Among the spoil carried away were many plates of Moorish earthenware, which, in token of triumph, were embedded in the walls of several of the ancient churches of Pisa, where they are to be seen to this day. About two centuries later the Italians began to make an imitation enamelled ware, which they named Majolica, after the Moorish place of manufacture.

The reviver or re-discoverer of the art of enamelling in Italy was Luca della Robbia, a Florentine sculptor. Vasari describes him as a man of indefatigable perseverance, working with his chisel all day and practising drawing during the greater part of the night. He pursued the latter art with so much assiduity, that when working late, to prevent his feet from freezing with the cold, he was accustomed to provide himself with a basket of shavings, in which he placed them to keep himself warm and enable him to proceed with his drawings. "Nor," says Vasari, "am I in the least astonished at this, since no man ever becomes distinguished in any art whatsoever who does not early begin to acquire the power of supporting heat, cold, hunger, thirst, and other discomforts; whereas those persons deceive themselves altogether who suppose that when taking their ease and surrounded by all the enjoyments of the world they may still attain to honourable


text:
Mississippi v. Arkansas

In this boundary dispute between Arkansas and Mississippi over an area known as Luna Bar in the abandoned bed of the Mississippi River between the upstream and downstream ends of Tarpley Cut-off, where Arkansas' Chicot County and Mississippi's Washington County adjoin, the report of the Special Master is adopted, in which he found that Luna Bar was formed by accretion resulting from the gradual westward movement of the Mississippi River, and is therefore part of the State of Mississippi, and not by avulsive process as claimed by Arkansas. Pp. 291–294.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 294.

Mitchell E. Ward argued the cause for plaintiff. With him on the brief were Albioun F. Summer, Attorney General of Mississippi, and Martin R. McLendon, Assistant Attorney General.

William H. Drew argued the cause for defendant. With him on the brief was Jim Guy Tucker, Attorney General of Arkansas.

title: Mississippi v. Arkansas


text:
Mississippi v. Arkansas/Opinion of the Court

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

Mississippi, prompted by the pendency of private title litigation in the Arkansas courts, instituted this original [p290] action aganist Arkansas in November 1970. The bill of complaint, which accompanied the motion for leave to file, prayed that the boundary line between the two States, in the old bed of the Mississippi River from the upstream end to the downstream end of Tarpley Cut-off, that is, the Spanish Moss Bend-Luna Bar-Carter Point area where Arkansas' Chicot County and Mississippi's Washington County adjoin, be fixed and determined.

The river was originally established as the boundary between the States by their respective Acts of Admission. Mississippi's Act, 3 Stat. 348 (1817), described the line as "up" the river. Arkansas' Act, 5 Stat. 50 (1836), described the line as "up the middle of the main channel of the said river." See, also, Arkansas' Constitution, Art. 1 (1874). Over 50 years ago the question whether there was any difference in the meaning of these two descriptions was resolved and the boundary was determined to be "the middle of the main navigable channel, and not along the line equidistant between the banks." Arkansas v. Mississippi, 250 U.S. 39, 43 (1919). That decision was in conformity with the rule of the thalweg enunciated in Iowa v. Illinois, 147 U.S. 1, 7–8 (1893), and followed, in the absence of special circumstances, in many subsequent cases. See, for example, Minnesota v. Wisconsin, 252 U.S. 273, 281–282 (1920); New Jersey v. Delaware, 291 U.S. 361, 379–380 (1934); Arkansas v. Tennessee, 310 U.S. 563, 571 (1940).

Arkansas responded to Mississippi's motion and moved that leave to file be denied and that the complaint be dismissed. The motion for leave to file, however, was granted. 400 U.S. 1019 (1971). Thereafter, the Honorable [p291] Clifford O'Sullivan was appointed Special Master. 402 U.S. 926 (1971). The Master's report eventually issued and was ordered filed. 411 U.S. 913 (1973). Arkansas' exceptions to the report and Mississippi's response to those exceptions were forthcoming in due course and the case has been argued to this Court.

Prior to 1935 Spanish Moss Bend was on the thalweg, or primary channel, of the Mississippi River. It has not been the thalweg, however, since the Tarpley Cut-off was established about five miles to the east in 1935 by the United States Army Corps of Engineers. The present controversy focuses on what is known as Luna Bar on the eastern bank of the old river at Spanish Moss Bend. The issue simply is whether Luna Bar came into being by gradual migration of the river westward, or, instead, by some avulsive process, also to the westward. Depending on the resolution of this factual issue, legal consequences ensue in line with established principles conceded by the two States to be the law relating to riparian accretion and avulsion. Nebraska v. Iowa, 143 U.S. 359 (1892); Missouri v. Nebraska, 196 U.S. 23 (1904); Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 325–327 (1973). These principles need no reiteration here. It suffices to say that if Luna Bar was formed by accretion, this litigation is to be resolved in favor of Mississippi, and, contrarily, if Luna Bar resulted from an avulsion, the suit is to be resolved in favor of Arkansas.

Upon our independent review of the record, we find ourselves in complete agreement and accord with the findings of fact made by the Special Master. Report [p292] 34. We therefore affirm those findings, overrule Arkansas' exceptions to the Master's report, confirm that report, and in general accept the Master's recommendations for a decree.

We deem it unnecessary to outline at length the evidence adduced, or to reproduce here the detailed analysis of that evidence made by the Special Master. We note only that the dissent would regard the case as close because of three factors: (1) certain testimony as to ancient trees on Luna Bar indicated by the presence of three stumps that could not have lived and died there in the last 100 years, (2) some testimony as to soil on the bar "not compatible with the soil that would result from accretion," post, at 298, and (3) the bar's "hard core elevation," post, at 299–300, that coincides with the elevation "on the adjacent Arkansas bank." These factors, in our view, would be pertinent except that they reflect only the approach and testimony of Arkansas' witnesses and overlook pertinent and persuasive testimony to the opposite effect from expert witnesses for Mississippi. The latter are the witnesses that the Special Master credited, as do we, in the evaluation of the conflicting testimony.

Arkansas conceded that Mississippi made out a prima facie case of accretion. Tr. of Oral Arg. 19. In addition, the Master was impressed with the total absence of [p293] any known historical reference to an avulsion in this area that changed the course of the river by the necessary half mile. And the dissent acknowledges, post, at 295, as to how "Mississippi made its case," and concedes that the testimony "gives force to the argument that accretion formed Luna Bar," that there was testimony that in the Mississippi River "avulsion would shorten the course of the river, while here the course was lengthened," and that Mississippi's experts knew of no instance "where avulsion had worked the way Arkansas claims."

So far as the ancient tree stumps are concerned, Mississippi presented evidence from forestry experts that the forest on Luna Bar was one predominantly of pioneer species with the expected small accompanying, scattered areas of secondary and climax trees, and with no tree more than 37 years old. This is consistent with the first appearance of growth upon Luna Bar depicted in early Mississippi River Commission charts showing the bar to be barren and without vegetation. Report 10. Mississippi's position as to the three particular stumps was that they had been washed in by floodwaters in preceding years; that one had moss on its roots, a condition incompatible with growth in place; and that, at the point where another allegedly was found in 1972, the elevation of the bar was at least 10 feet above what it had been 90 years earlier. Thus the stump necessarily should have been deep in the undersoil of the bar and not on its surface at the time of its removal. Report 11.

The soil composition is purely a matter of conflicting testimony and we are persuaded by Mississippi's evidence. Deep borings, of course, would be below the riverbed, and would be expected to be consistent throughout the area on both sides of the river. And, as noted above, charts of 1882 and 1894, admitted into [p294] evidence, show Luna Bar as a dry sandbar with no vegetation.

The claim of similar elevations, too, encounters strong and convincing opposing authority. Dr. Charles R. Kolb, a highly qualified expert for Mississippi, testified that his study disclosed that the Arkansas bank, from the first comparative recordings until fairly recent times, was about 12 feet higher than Luna Bar. Report 15, 19. R. 354–357. And there is an absence of levee formations on Luna Bar, as contrasted with the presence of pre-1860 levees on the Arkansas bank.

We agree with the Special Master's evaluation of the evidence and conclude, as he did, that Arkansas did not sustain its burden of rebutting Mississippi's conceded prima facie case, a burden the Arkansas court has described as "considerable." Pannell v. Earls, 252 Ark. 385, 388, 483 S.W.2d 440, 442 (1972).

Upon our own consideration and our independent review of the entire record, of the report filed by the Special Master, of the exceptions filed thereto, and of the argument thereon, a decree is accordingly entered.

It is so ordered.

[For decree adopted and entered by the Court, see post, p. 302.]

Decree
IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:

1. Luna Bar, depicted in Mississippi's Exhibits 1 and 2 constituting, respectively, Appendix A and part of Appendix B to the Special Master's report, and appended hereto and hereby made a part of this decree, came into existence by accretion to Carter Point and is, and was, a part of the State of Mississippi.

2. The boundary line between the State of Mississippi and the State of Arkansas in the areas between the upstream and the downstream ends of Tarpley Cut-off is as follows:

In the abandoned bed of the Mississippi River between the upstream end of the Tarpley Cut-off and the downstream end of Tarpley Cut-off, as defined and identified in Mississippi's said Exhibit 2. The courses and distances of the above-described line are set out in said Exhibit 2.

3. The cost of this suit, including the expenses of the Special Master and the printing of his report, have been paid out of the fund made up of equal contributions by the State of Mississippi and the State of Arkansas and said fund has been sufficient to defray all said expenses to the date of the issuance of the report. Any costs and expenses that may be incurred beyond the amount so contributed by the respective litigants shall be borne by the State of Arkansas.