Brownell v. Chase National Bank of New York – Oral Argument – October 17, 1956

Media for Brownell v. Chase National Bank of New York

Audio Transcription for Oral Argument – October 16, 1956 in Brownell v. Chase National Bank of New York

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Earl Warren:

Number 24, Herbert Brownell, Jr., Attorney General, Petitioner versus The Chase National Bank of the City of New York.

Mr. O’Leary, you may proceed.

Arthur J. O’Leary:

If the Court pleases, one of the important questions on this appeal is that question of res judicata, and I would like to address myself to that phase of this case.

And in doing so, I’ll refer again briefly to those findings of fact that were made in the prior action, which I’ve been referred to before, concerning the disposition of income.

In that prior action, in the —

Earl Warren:

Where do — where do we find those?

Arthur J. O’Leary:

You’ll find those, Your Honor, at page 222 of the record.

Those findings with respect to income, read in part of many — some of the words, which I don’t think is significant here.

But so, we’ll have the substance of them that the Attorney General is not entitled to receive the income of the said trust which had been accumulated as of the date of the making of the vesting order, referring to the original vesting order.

In number 10, the Attorney General is not entitled to receive any part of the accumulated income held by the trustee, which has been collected since the date of the original vesting order.

And then, Number 11, that the Attorney General as Alien Property Custodian is not entitled to receive any income, which may be collected during the lifetime of Bruno Reinicke, his set law and said trust.

Now, I would like to show in a practical way how that prior judgment will be circumvented, and I think in part destroyed, if the Attorney General gets the relief that he seeks in this action.

And I can demonstrate that by asking Your Honor to look or to take my description of it at the schedule of the account at page 260 of the record.

Unmet schedule is listed in a few items.

What happened to the accumulated income and the amount of it?

At page 260 of the record, it shows that there has been accumulated in these trusts and headed to the corpus, the total sum of $116,576.75.

That is the income that had been accumulated in that accumulated cents.

That is the income which those findings of fact that I referred to, refer to.

That income was adjudged to be in the possession and — and it should remain a possession of the trustee.

Now, it’s the Attorney General who gets the relief that he asks for here.

That income will be turned over to the Attorney General, and to that extent, that prior judgment would be circumvented and in part, destroyed.

Now, in arguing at the prior action, I had nothing to do with either possession or the vesting of the race.

It certainly would seem to be the correct fact that the prior judgment did have something to do with possession.

Certainly, plainly so, with respect to that accumulated income which I have just described, the possession of that was litigated in past time.

And furthermore, I think the vesting of the race itself was a matter which was the subject of the litigation in the prior action.

And I say that basing it upon the language of the original vesting order, that original vesting order which is printed at — beginning at page 67 of the record.

In the opening part of it, it refers to property described as, “all right title and interest” of Bruno Reinicke and others as being property payable to enemy nationals.

Because I might say though, that such property, is in the process of administration by the Chase National Bank as trustee of its trust dated so and so, under the judicial supervision of the Supreme Court.

Now, when I say that in that original order, they refer to something in addition to the right title and interest of the aliens, they are vesting also the very property itself.

When they use the words “property” in the process of administration, I don’t think the man who wrote that intended to say or imply that they were — that they were administrating rights and interest.

Arthur J. O’Leary:

He meant, the securities would be in, and the trustee itself was being administered.

And that I think is evident by what follows was that paragraph, beginning at the top of page 71, which reads, “Hereby vest in the Alien Property Custodian, the property described above to be held used, administered, liquidated, sold or otherwise dealt with.”

Now, we don’t liquidate and sell rights and interest.

At language, it’s only fitted to me the securities, the funds that comprise the purpose of this trust.

Now, the Attorney General labels this original vesting order that I have just quoted as a right title and interest order.

And he said, “That was all up before the Court in the prior action.”

But that — that original order contain that language that I referred to referring to properties that can be bought and sold which I say refers to the purpose of the trust.

Now, if we look at the so-called raised vesting order, which, however, in this preparation by the Alien Property Custodian was labelled as an amendment to the original vesting order, the language of that is not legally different from the language of the original order.

There, the same nationals I referred to —

Harold Burton:

Where is Enemy next to at?

Arthur J. O’Leary:

That — that begins at page 72 of the record.

The opening part of it, they referred to enemy nationals.

And then, on page 74, in paragraph 2, they say, “All property in the custody of the Chase Bank, its trustee, et cetera.”

And then, in the last paragraph, page 75, that property just referred to was vested.

That, I say is the same property that would describe and referred to in the original vesting order, and I don’t think there’s any illegal significance or any legal difference in the need of either document, and the first document was before the Court.

Now, there is one other phase of this case that I want to refer to.

The Attorney General wants to relegate the ultimate beneficiary of this fund.

Harold Burton:

What — what did the Attorney General ask for the — the intervention?

What did he infer in this petition?

Arthur J. O’Leary:

In the prior action?

Harold Burton:

Yes.

Arthur J. O’Leary:

He — he demanded that the entire purpose of the trustee turned over to him upon termination of the trust.

He plainly demanded that.

Because Bruno Reinicke — because the trust agreement itself provided that all income shall be added to principles and — unless Bruno Reinicke directed it to go otherwise.

The Attorney General demanded.

He said he had seized that right and he demanded the income.

Now, also, in the Court of Appeals, and that part of it —

Stanley Reed:

He demanded the right and the income.

Arthur J. O’Leary:

The right and the income.

Now, and he also — there’s a dispute about this part of it.

Arthur J. O’Leary:

The appellants claim the Attorney General and his — and the Court of Appeals demanded the entire purpose, but the petitioner puts a different construction on that and he says, “He did only by way of argument.”

He says, “If he can’t get it.”

He said, “He argued there, but he couldn’t get despite to direct income.”

Then, the trust had terminated, and therefore, he went to the entire principle.

Now, I want to say a few words about that Section 9 (a).

If the Attorney General gets the relief that he wants in this action, then the ultimate remainder of the trust, if it turns out to be this American citizen.

So, the Attorney General says, “He has a right to come in under Section 9 (a), and bring a suit for recovery.”

But, we must bear in mind that there’s a statute of limitations on claims.

Anybody who claims to be entitled a property that’s taken over by the Alien Property Custodian must bring a suit no later than two years from the date of vesting all seizure as statute of limitations of the 50 U.S.C. Section 33.

Now, this trust, as we already know, will not terminate until the two lives are being expired.

Now, that may be ex number of years.

If it’s 10, 11, or 20 by that time, the rights of the argument remained in them with a long sense of vanished under that statute of limitations.

Stanley Reed:

What — why would that come?

Would that answer the problem?

Arthur J. O’Leary:

Well, I would Your Honor, because the statute of limitation says, “Any right to recover property that has been seized or vested in the Attorney — in the Alien Property Custodian, such an action must be commenced in the words of the statute.”

These are the words —

Stanley Reed:

That’s a right to recover.

Arthur J. O’Leary:

No suit —

Hugo L. Black:

I understand you.

Arthur J. O’Leary:

— no suit pursuant to — pursuant to Section 9.

That’s the Section he refers to.

No suit pursuant to Section 9 may be instituted after April 30th, 1949, or after the expiration of two years from the date of seizure by or vesting in the Alien Property Custodian, as the case may be, of the property or interest in respect of which relief is sought, whichever is later.

Hugo L. Black:

Would that apply to a person whose rights did not accrue until after the two-year statute of limitation?

Arthur J. O’Leary:

Well, I’m — I’m afraid it would because it — it doesn’t say that you bring the action within two years after your cause of action accrues.

It says, “No action can be brought later than two years after the date of seizure or date of vesting.”

Now, I don’t think that you have any other reason for construction of that as I read it.

And there was one case where a man was unavoidably absent, Your Honor.

In the Circuit Court here, passed against McGrath, he was out of the country.

And when he got here, his two years had expired and he was denied of recovery.

Now, and then, in closing, I think the Alien Property Custodian had been fully protected here, no respondent questions or fact that whatever the rights of these aliens are, they have been seized.

Arthur J. O’Leary:

And when the trust terminates, the Chase Bank can’t pay that money, except to the persons legally entitled to it, if it turns out that their — that this group of enemy aliens, that’s where the money would go.

He turns out to be an American citizen, the American citizen will get.

Stanley Reed:

That is the decision in the lower — the first preceding, the one on page 150 of the record?

Arthur J. O’Leary:

That’s the — that’s a present decision, the present action, I guess.

Stanley Reed:

Where is the decision, the first action (Inaudible)

Arthur J. O’Leary:

Yes.

Just a minute, I’ll tell you what I think, Your Honor.

I quoted from it at page 222, see where the opening pages —

Stanley Reed:

That’s all right.

I didn’t have on my record either.

Arthur J. O’Leary:

The — the judgment in that prior action, Your Honor, is mentioned at page 211.

Earl Warren:

Mr. Searls.

Mr. Searls were you going to answer — answer counsel on the statute of limitations question?

George B. Searls:

That is the first thing I’m going to take up, Your Honor.

Earl Warren:

Thank you.

George B. Searls:

There is a two-year limitation period, but Mr. O’Leary did not read the complete text.

The clause ends but in computing such two years, this is Section 33 of the Act.

There shall be excluded any period during which there was pending a suit or claim for return pursuant to Section 9 or 32 (a) hereof.

That is, if a claim is filed, the two-year period is told or extended.

And it does not expire — cannot expire until after that claim has been disposed of.

Hugo L. Black:

But the two years statute of limitations expires in case of the remainder men and had no right to file a suit to get anything?

George B. Searls:

Well, I — as I said yesterday, Your Honor, I think — and Your Honor, maybe the man has a right to file a suit.

And in this case, claims have been filed —

Felix Frankfurter:

That is not — can one be dealt with matters about that?

(Inaudible) can one be dealt with matters about that.

George B. Searls:

No, I’m not.

And I —

Felix Frankfurter:

Do you mean to say there weren’t any offenses —

George B. Searls:

No, all I —

Felix Frankfurter:

— and can one be sure about it as a matter of law?

George B. Searls:

I’m not sure about his right to recover, Your Honor.

I am sure about his right to sue if he is not an enemy.

Felix Frankfurter:

Well, the man can go to Court and file a piece of paper but what chance could he have here with the protection of that right according to New York law or the bill of that law in the New York law?

George B. Searls:

Well, I think as I said yesterday, Your Honor that if I can — if this contingent remainder is a constitutionally protected property interest that that right will be recognized under Section 9 (a).

Felix Frankfurter:

That’s the particular order.

George B. Searls:

Well, it’s — they’ve been —

Felix Frankfurter:

It may be protected by the New York Constitution, yet so is your motion, you point that you have a federal interest.

George B. Searls:

Well, I think he’d have the same rights.

He wanted the property to be taken by an imminent domain.

I mean, if he’s protected in the one case, he’s protected now.

Now, let’s go back to Section 33 for a moment.

In this case, claims have been filed and are pending with the office of Alien Property by three remainder men, Bruno Kyle Reinicke, Robert Hans Reinicke and Hans Dietrich Schaefer, and those claims were all filed within two years to the day of the 1953 vesting.

So that as far as timely filing of claims are concerned, it appears that they have protected their rights.

I’d like to speak briefly of a matter that was mentioned yesterday several times, the agreements that have been made with Germany.

I’m not going — go into it extensively, but I’d like to call the Court’s attention to Senate Document Number 11, 84th Congress 1st session, which sets out the most of the agreements.

There was an agreement in 1952 as mentioned by Mr. Lourie, which was ratified by the Senate, but never became effective because it was not ratified by all the parties to it.

However, that agreement did become effective in 1954 by virtue of another agreement made in that year with certain amendments.

Mr. Ryan suggested yesterday that the result of turning a property over would be that it would be sold.

The trust fund would be — become merely a figure on the books of the Treasury.

That is not so if a Section 9 (a) suit is brought.

If a Section 9 (a) suit is brought, we are required by the statute to retain the property in kind and unchanged.

So, there’s the property returned over.

The dividends would continue to be collected on the stocks, the interest on the box.

And if there were a return to any claimant, he got the interest and the dividend as well as whatever share of principle he’s entitled to.

Tom C. Clark:

Do you mean that the custodian takes over —

George B. Searls:

We keep —

Tom C. Clark:

— if he didn’t continue to pay the parties here, what the Court of New York has said they should be paying out of dividends?

George B. Searls:

Not that Your Honor, because they’re not being paid anything now if this — the income is being accumulated by the bank.

What I meant was that if he had shares and say, American or U.S. still and no shares pay dividends, those shares would be retained intact, and the dividends would be collected that took fund would not be sold and dissipated if 9 (a) suit is brought.

William O. Douglas:

When will these people seize being alien enemies?

William O. Douglas:

When would this thing come to an end?

When would this be over with?

George B. Searls:

Well, if they were alien enemies at the time of the vesting.

William O. Douglas:

Well, they weren’t, because they had peace then on Germany.

George B. Searls:

I — but that’s — it brings up the question of the Joint Resolution.

William O. Douglas:

Yes, that’s what I’m referring to.

George B. Searls:

Yes.

They — I think that Congress intended that they should continue to be enemies to that extent.

That’s the language of the Joint Resolution.

It’s pretty clear.

Tom C. Clark:

But it do the —

George B. Searls:

What?

Tom C. Clark:

I said it continued, except about a mere declaration to say that people were entering at the time when they were not.

George B. Searls:

Well, the only —

Tom C. Clark:

If it be true that they will not.

William O. Douglas:

How long was this run, could you — could you have a vesting order of 10 years from the date of the Joint Resolution?

George B. Searls:

No, because this — Mr. Lourie said in 1953, after this, the President, who of course has the power, declared there would be no more vestings.

The vesting program is over.

Felix Frankfurter:

Was this the day after the resolution?

George B. Searls:

No, it was longer than that.

The resolution of course was in 1951.

Felix Frankfurter:

No, but the —

George B. Searls:

And the —

Felix Frankfurter:

— but the vesting order, was the vesting order — is that repeat by one male in termination of this whole business?

George B. Searls:

I’m sorry I didn’t get that.

Felix Frankfurter:

If I understood Mr. Lourie, he said, this vesting order was one minute before midnight at the Court before the person is (Voice Overlap) —

George B. Searls:

No Your Honor, it’s a longer period than that.

I don’t know exactly how long, but —

Even days, I think.

George B. Searls:

Eleven days, Your Honor, I think.

George B. Searls:

Now —

William O. Douglas:

Mr. Searls —

George B. Searls:

— there’s — there’s some question raised yesterday.

Harold Burton:

I just have one — one question.

You’re speaking of when the custodian takes over then he has account for the interest and the dividends and so on.

George B. Searls:

That’s correct.

Harold Burton:

Who was charged in the management and the reinvestment during that time to determine what security —

George B. Searls:

We have what is called a custody section that handles and operates something like across the department of a bank.

Felix Frankfurter:

Is there account on what the power of control, effective control that you haven’t discussed?

Is that substantially accurate, to stay off, reinvest, all of that?

George B. Searls:

Of the trustee or of our office, Your Honor?

Felix Frankfurter:

No, in case you prevail, would you have that control over the trust?

George B. Searls:

No, we have to —

Felix Frankfurter:

Is this the —

George B. Searls:

— we have to hold the property — if a 9 (a) suit is brought, we have to hold the identical property which we take over.

Felix Frankfurter:

Between — between prevailing in this suit and beginning of 9 (a) trust would be —

George B. Searls:

Yes.

Felix Frankfurter:

— you then have freedom of action —

Stanley Reed:

To reinvest, per se.

Felix Frankfurter:

— to reinvest, that’s right.

George B. Searls:

We can only reinvest through the consent of the claimants.

William O. Douglas:

Of attending an event — well, you have — that’s assuming that the claimants want out, but —

George B. Searls:

No, I said, while the suit is pending.

William O. Douglas:

While the suit is pending?

George B. Searls:

Yes, Your Honor.

We have to hold —

Felix Frankfurter:

How many — how many —

George B. Searls:

— hold the property —

William O. Douglas:

And no, no discretion at all?

George B. Searls:

The way it usually worked is that we — when this — if a large bond that she was paid off for example, we get together with counsel for the claimant and agree on what shall be done with it.

Felix Frankfurter:

Of course, but it has the question of agreement that — if the Board —

George B. Searls:

If the — if they want.

Felix Frankfurter:

How many court restrictions depending to suit as I really agree is having freedom of action in the conscience of exercise of the trustee?

George B. Searls:

We do not have — we do not have if a Court action is pending the same freedom of action of trustee there.

Felix Frankfurter:

Automatically, you’re — you have held the status quo, is that right?

George B. Searls:

That’s correct, Your Honor.

Felix Frankfurter:

I mean, as a matter of fact, is a matter of law.

George B. Searls:

As a matter of law.

Now, I’d like to come back just to one more thing.

Hugo L. Black:

Before you leave that, may I ask you?

I have uncertainly, generally speaking, the purpose of the seizure to enemy property in the time of war was that the enemy should not have attended to that property in a war with us.

What is the purpose of the Government seizing after peace have been officially declared?

Would that regard the reservation industry?

George B. Searls:

Well, I only think your —

Hugo L. Black:

What is the purpose?

George B. Searls:

We think, Your Honor, it was to enable the Government to carry out the commitments that have made to war claimants.

We’ve mentioned that under the War Claims Act of 1948.

That is mentioned in our brief.

I don’t have the page of that.

William J. Brennan, Jr.:

Is it fair to say that the property of enemies has taken, so all as to compensate they are sincere of losses that they might haven’t heard or awarded?

George B. Searls:

That’s — that’s correct, Your Honor.

Now, on the matter of national interest, I’d call your attention of the fact that in the amended vesting order, I think it’s on page 55 of the record.

There is a finding that dimming it necessary in the national interest, this vesting is made, and we think that was a decision within the discretion of the Attorney General.

Now, as to our rights —

Earl Warren:

And would — would you mind — would you mind just elaborating a little there in telling us what a newer opinion the national interest protected is in this situation?

George B. Searls:

I think, Your Honor, it’s primarily at that time, what Mr. Justice Reed referred to in that that we have been forced to an extremely expensive war.

And that it was the opinion of Congress that the enemy assets within our reach should be converted to that purpose.

I think that that was what Congress thought was the national interest and I think that that is what the —

Stanley Reed:

To pay for the war, you mean?

George B. Searls:

Yes Your Honor.

George B. Searls:

As far — of course, it won’t come anywhere nearer, but we do the best we can.

Hugo L. Black:

If not the page, namely, the United States would pay the — pay the individuals.

George B. Searls:

That is correct, Your Honor.

The United —

Earl Warren:

What claims of individuals?

Stanley Reed:

What is — what are those claims?

George B. Searls:

Well, in the War Claims Act of 1948, that was addressed primarily to the claims of American prisoners of war who had been mistreated, to the claims of civilian internees who had been interned by the enemy during the war.

And there was also, I believe, a provision in that Act that Congress might later add other claim of other types of claims to that list.

Stanley Reed:

What about Germany?

A lot of citizens have lost property in Germany, a lot of confiscation there.

George B. Searls:

Well, property of Germans and Japanese.

Stanley Reed:

Well, American citizens lost their property by the actions of the Germans and the Japanese.

George B. Searls:

I’m not sure about — well, I imagine, undoubtedly good men do but I’m not able to give you any detail on that.

Stanley Reed:

Then there’s the overhead of the Alien Property Custodian itself.

George B. Searls:

That is paid out of the vested property.

There’s — there’s always been enough property to which no claims are made, no claims for return so the financing of the office has not imposed any laws on people who are entitled to get it back.

Tom C. Clark:

What happened to the property of aliens to see that to the First World War?

I’m talking about what were seized during the war.What happened after the war was over?

George B. Searls:

Starting, I think in 1923, there were serious of amendments to the Act providing for returns of property to various types of claimants.

At last, by the War Claims Act in — of 1928, there was a provision for the return to Germans of 80% of their property.

The other 20% to be withheld —

Tom C. Clark:

For what purpose?

George B. Searls:

— to secure the United States against the default in the reparations payment Germany had agreed to make.

There was a default, and by the Harrison Resolution in 1934, further payments to Germans were stopped.

However, by that time, the 80% had been returned, so the Germans got 80% of their property back.

Felix Frankfurter:

But, how much of the 20% was thought —

George B. Searls:

I haven’t got —

Felix Frankfurter:

— the offenses, do you know —

George B. Searls:

— the figures Your Honor.

The amount left on —

Felix Frankfurter:

(Voice Overlap) —

George B. Searls:

— left on hand is not large.

They were small in comparison, because it will only be 20% of the property that we would have been entitled to retain as being enemy property.

It wouldn’t have been 20% of all the property we see.

Felix Frankfurter:

Has there been any policy adopted yet that would show what is the purpose of — what the Congress — what should be done with the funds of aliens now, except divested in the Alien Property Custodian?

George B. Searls:

Well, Your Honor, there —

Felix Frankfurter:

You’re on the line.

George B. Searls:

There was a legislation, there have been legislation on several recent session of Congress but none of it has passed.

There was a proposal at the last session by the administration of what was called a $10,000 bill that each claimant would be returned up to $10,000.

But there’s also Section 32 in the Act, which provides for the return of property to people who may not recover under Section 9 (a) because they are enemies.

And that includes the German views who were persecuted because of their race or religion.

There have been very substantial returns under that section, although, I have no figures.

Felix Frankfurter:

Do you read the Act itself and then — as providing for confiscation of the property of the alien by this country?

George B. Searls:

No, I don’t think so, Your Honor.

I — I always have trouble with the word confiscation, because the last word is with Congress.

And Section 12, which I think is still effective, it says that “After the war” and I take it that refers to probably any war.

“The property shall be disposed of as Congress shall direct.”

So that —

Felix Frankfurter:

(Voice Overlap) —

George B. Searls:

— until Congress says, “confiscate,” there isn’t a confiscation.

Earl Warren:

Mr. — is this a unique case or is — or are there other cases that depend upon the outcome of this case?

George B. Searls:

I have no doubt, Your Honor, there other — there are no — I don’t know about litigate cases, but I have no doubt there are other claims pending similar to this.

I mean, where we have taken property subject to future interest.

There haven’t been many actually litigated cases.

I think I can recall a hand about three of these, the cohort case, which I mentioned yesterday.

And there was a case of United States Trust Company against Hicks, which is cited by one of the respondents, I forget which one.

In 16 Fd.2d in which a remainder interest was returned.

I don’t know whether it was vested or contingent — to — the respondent says to ancillary administrator, “I don’t.”

Now, those are, I think, the only 9 (a) suits that I can recall that have been involved future interest.

Hugo L. Black:

Does the treaty with Germany provides in anyway or touch on any ways this subject of what is beyond this kind to authorize this Government to utilize its institution?

George B. Searls:

Well, there was an agreement with Germany, Your Honor.

I’m not sure of which one in which the German Government agreed to compensate its nationals for a property, which was retained by this country.

Hugo L. Black:

So that — since the war?

George B. Searls:

That’s — yes, Your Honor, and I think it’s probably referred to in that document I mentioned.

Felix Frankfurter:

So that, if I may just spoke in that way, these funds will bail out the obligation of Germany in its own action.

George B. Searls:

To that extent.

Felix Frankfurter:

Pardon me?

George B. Searls:

To that extent, Your Honor.

Felix Frankfurter:

May I ask you this question?

And feel free to say that the — you’re not free to answer it because I don’t want to trench you on what counsel may do replace litigation in both agendas since you’re not prepared, but if you can, may I ask you this.

You can answer that.

In fact, you’re going to answer this question.

In case the order of the judgment below stands, what relief in opinion is open with this Government?

You assert such right is claimed here in the state of the institution.

George B. Searls:

Your Honor, I — that brings up the matter which I was about to start on when some other question diverted me.

I do not think we would have any rights.

All that the New York Courts have given us is a right to a 60-day notice.

We can just stand there and —

Felix Frankfurter:

What is the point of that?

What is the point of that —

George B. Searls:

I assume the justice who entered that order thought he was giving us some protection.

But since he found — then find that we had any rights.

And since he didn’t reserved jurisdiction or take — make any provision for what we might do in the future, and since we’ve already got two judgments against us, I think that our prospects of being able to enforce anything in the event the trust termination then gave us 60-day notice would be less than slim.

Felix Frankfurter:

But Mr. Searls, if you say that you already have two judgments against you, if you claim that each judgment haven’t foreclosed this issue, why would it be foreclosing the new proceeding?

George B. Searls:

Well, because Your Honor, by the vesting the last amendment, I think we have exercised the broadest power we have.

And if —

Felix Frankfurter:

Well, why can’t you set that in the state court, unless you are foreclosed by the prior judgment.

And it could only be foreclosed if a treaty isn’t filed.

George B. Searls:

Well, of course, there are all sorts of arguments here.

I don’t know, but at present, my feeling is very distinctive.

George B. Searls:

If we don’t prevail here, the matter might as well be written of.

Felix Frankfurter:

And may I say that I think nothing has been said in reply to my question.

It would be fairer if it’s quoted against you, whichever way this litigation may go into the (Inaudible) because I don’t think counsel will be held to this type of litigation.

And the hypothetical question is seeking litigation.

At least, it has never appealed to me but that’s practically the law the way it should be filed.

Earl Warren:

(Inaudible)