Sam Fox Publishing Company, Inc. v. United States

PETITIONER:Sam Fox Publishing Company, Inc.
RESPONDENT:United States
LOCATION:John H. Kerr Dam and Reservoir

DOCKET NO.: 56
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 366 US 683 (1961)
ARGUED: Mar 29, 1961 / Mar 30, 1961
DECIDED: May 29, 1961

Facts of the case

Question

  • Oral Argument – March 29, 1961
  • Audio Transcription for Oral Argument – March 29, 1961 in Sam Fox Publishing Company, Inc. v. United States

    Audio Transcription for Oral Argument – March 30, 1961 in Sam Fox Publishing Company, Inc. v. United States

    Earl Warren:

    Publishing Company, Incorporated, et al., Appellants, versus United States, et al.

    Mr. Dooling, you may conclude your argument.

    John F. Dooling, Jr.:

    Mr. Chief Justice, may it please the Court.

    Appellants, we submit, have not met the second requirement of Rule 24 (a) (2) by showing that they are or may be bound by the judgment in question.

    We join the Solicitor General’s argument to this effect made at pages 56 to 61 of his brief.

    Now, appellants’ hint, at page 12 of their reply brief, that both appellant Pleasant Music and the Society have acknowledged in the pleadings in the state court case between them that both are bound by the 1950 decree.

    They mistake the pleading.

    It is only that since 1950, the Society has incorporated in each agreement with each member a stamp legend stating that the grant of the owner’s performing rights to the Society in the agreement is modified and set by and subject to the provisions of the 1941 and 1950 decrees and this corresponding provisions of the Society’s articles and Board resolutions.

    Now, that allegation in the Society admitted for the stamp simply conform the new contract forms to limit the Society’s acquisitions of copyright right — rights in conformity with the decree.

    Now, appellants, we submit, are not bound by the decree for several, clear and familiar reasons, first, whether or not the 1941 complaint was a representative complaint against the membership as a class.

    The 1941 judgment ran only against the Society and extended as, of course, to directors, officers, employees, members and all persons acting on the Society’s behalf.

    The 1950 decree applies only to the Society and officers, directors and employees and all other persons, including members, acting under, through or for the Society.

    The 1960 decree leaves that provision unchanged.

    Thus, appellants are neither parties to the decrees nor members of a class represented by parties against whom the decree runs representatively.

    Second, all three decrees were made without taking any testimony and all are expressly without any findings of fact or admission of or adjudication of violation of law.

    The decrees, thus, have no adjudicative content that could bind the right or interest of a non-party.

    Third, there are no issues in the case as between appellants and the other members of the Society or the Society as a whole, but only the consent decree disposition —

    Earl Warren:

    Finish your thought, Mr. —

    John F. Dooling, Jr.:

    May I, Your Honor?

    Earl Warren:

    Yes.

    John F. Dooling, Jr.:

    But only the consent decree disposition of the public antitrust claims of the United States against the Society, thus, making inapplicable such cases as Ben-Hur and the Modern Woodmen case which depend on the adjudication of the Society member issue not present here.

    I respectfully submit the appeal should be dismissed.

    Felix Frankfurter:

    Well, that means — does that mean that these appellants, in your view, would raise the — the — would challenge specific provisions as to voting rights, as to money distribution?

    John F. Dooling, Jr.:

    Yes, Your Honor.

    Felix Frankfurter:

    If you complete this suit out of the decree?

    John F. Dooling, Jr.:

    It — no, Your Honor — of course, in complete disregard of the decree, as in — the Court said in the Borden case in this Court, because the decree deals with the public right of the United States against the Society as a society.

    It does not adjudicate what, in equity or in private antitrust right, might be the maximum, the minimum or the different antitrust or equity result that any one member, suing in his own right, could secure an adjudication of —

    Felix Frankfurter:

    I’m not talking about his own right as — as a matter of dominant sense.

    I’m talking about the right which is the consent decree adjudicated as to the proper way of conserving the public interest under the Sherman Law, and he’s speaking be — that he may say that by this — by the terms of the decree, in behalf of the public, I am shut off — I am — I am subjected to a subordinating position from what would be right if the public interest had properly been concerned.

    I don’t understand how you can split open the — as chap, isn’t — it’s a metaphysical entity, isn’t it?

    John F. Dooling, Jr.:

    Yes, Your Honor.

    Felix Frankfurter:

    If it isn’t that, I mean, according to your view, it’s the metaphysical entity apart from its members.

    John F. Dooling, Jr.:

    Well, it’s a metaphysical entity inclusive of its members —

    Felix Frankfurter:

    Well, if it’s inclusive of its members, then why can’t the member challenge as to what are these — one of the decreed against the entity of which he calls that kind of a part in which he, to some extent, pleads by being a member

    John F. Dooling, Jr.:

    Because a decree, Your Honor, is addressed to removing without reference to rights of the members of the Society inter sese to just or even antitrust correct distributions of voting rights and money, and is directed only to removing with respect to the Society as a whole, its restraints as a whole and not inter sese, except as the decree specifically passes on that —

    Felix Frankfurter:

    But my suggestion is that he’s part of the whole.

    John F. Dooling, Jr.:

    No, he’s — certainly, Your Honor, he is affected by the decree but as in the Sutphen case, and that very point is there, many people are affected by adjudications of the public right which bind the action of a corporation-defendant or a societal-defendant.

    But that does not mean that the person with a specific right —

    Felix Frankfurter:

    He’s been asserting —

    John F. Dooling, Jr.:

    — inherent in him —

    Felix Frankfurter:

    — he has been asserting a specific right.

    John F. Dooling, Jr.:

    Oh, yes, Your Honor.

    Felix Frankfurter:

    He says it’s —

    John F. Dooling, Jr.:

    I’m sorry.

    Felix Frankfurter:

    He — he’s saying the public interest which was adjudicated which includes me as part of the equity against which a decree has been entered.

    I must say you are cutting it pretty fine.

    John F. Dooling, Jr.:

    No, I think I’m not, Your Honor.

    I think I’m cutting it as broadly —

    Felix Frankfurter:

    Just that.

    John F. Dooling, Jr.:

    — as it must be because, Your Honor, his right could not be barred in any way by consent action between the member and the United States, though approved by a court because if that were true, then every member’s right would similarly be struck down.

    And the right that he is pressing is a right particular to him though, with respect to the Society, because it is his individual right to a different distribution and a different voting right that he presses upon the Court.

    Felix Frankfurter:

    But what he’s pressing isn’t something individual and restricted to him.

    If he prevailed in his claim, he would undercut the whole internal arrangement, not just as to him co-ad hoc him, he would be undercutting the decree whereby the present voting scheme is enforced.

    John F. Dooling, Jr.:

    He would disturb every other voting right and every other distributive right —

    Felix Frankfurter:

    It seems to me that it — but — isn’t of individual rights that he’s claiming.

    John F. Dooling, Jr.:

    Yes, it is, because it’s a right to disturb, as in Hansberry against Lee.

    This is a class made up of as many members as there is — as there are members of the Society in the perspective of appellants’ analysis of the situation in which they are essentially pressing, not a right of but against the Society and its remaining membership.

    Felix Frankfurter:

    If he prevailed, everybody will be affected in the whole ASCAP, wouldn’t it?

    John F. Dooling, Jr.:

    Yes, Your Honor.

    Felix Frankfurter:

    Alright.

    Felix Frankfurter:

    Then it can’t be just an individual right.

    John F. Dooling, Jr.:

    Now, he would prevail in a suit against ASCAP in which he would sue on behalf of himself and all others, if any, similarly situated and issue would be “Is he a true member of a class?”

    He would fail in that demonstration because the right of every class member, in the prospective of his claim, is individual, different and not a class right.

    Felix Frankfurter:

    I’m not suggesting that he could start a class suit.

    I’m suggesting that by the arrangement which is decreed, he inevitably is part of the net that has been — that has been woven.

    John F. Dooling, Jr.:

    But that is not the issue.

    He certainly is affected by the decree so long as it remains undisturbed by some later judicial, legislative or other governmental action by which he effects a disturbance of that relation.

    There is no adjudication in this decree —

    Felix Frankfurter:

    It is an —

    John F. Dooling, Jr.:

    — with respect to —

    Felix Frankfurter:

    — adjudication of the status of every member of ASCAP —

    John F. Dooling, Jr.:

    I —

    Felix Frankfurter:

    — so long as this decree stand, and I think the upshot, if I may say so, is that either you or I is begging the question.

    John F. Dooling, Jr.:

    I think, Your Honor —

    Felix Frankfurter:

    May be ours —

    John F. Dooling, Jr.:

    — that you have —

    Felix Frankfurter:

    — may be ours (Voice Overlap) —

    John F. Dooling, Jr.:

    — the power to beg question successfully and I have not.

    Felix Frankfurter:

    Oh, but [Laughter] it would seem that I do not respect reason.

    Hugo L. Black:

    May I ask you a question prompted by this colloquy that had just taken place that raises a question in my mind.

    Do I understand that you’re saying that this is an individual contest between him and other members of ASCAP?

    John F. Dooling, Jr.:

    Yes, Your Honor.

    Hugo L. Black:

    And that this decree as between the Government and ASCAP would leave these people free to protect their rights as against the other members of ASCAP in a lawsuit among themselves?

    John F. Dooling, Jr.:

    Yes, Your Honor.

    Hugo L. Black:

    Is it your idea that they would be, in any way, handicapped by this decision as one res adjudicata?

    John F. Dooling, Jr.:

    No, Your Honor.

    This decree could not even be offered in evidence in such an action against ASCAP, itself, under Section 5 of the Clayton Act.

    Hugo L. Black:

    Your position is then that the Government is acting here in connection with the public interest.

    John F. Dooling, Jr.:

    That is right, Your Honor.

    Hugo L. Black:

    In a way that goes as far as it does, and it —

    John F. Dooling, Jr.:

    Yes, sir.

    Hugo L. Black:

    The intervenors are seeking to bring in a dispute which is, in reality, between themselves and other members of ASCAP and that they are still free, wholly free to litigate the very thing that they say in a suit where they and the other members of ASCAP can compete with one another in court.

    Is that your argument?

    John F. Dooling, Jr.:

    Yes, Your Honor.

    And in the perspective both of their equitable right to a just and fair distribution and of their antitrust right, which has not been adjudicated and is not adjudicated by this decree, for any other conclusion would mean that every antitrust right and indeed, perhaps every equitable right of every member would be held adjudicated by this decree so that all members would now have to be vigilant to pounce by intervention into this proceeding so as to protect their interest of equity and of antitrust in distribution and voting.

    Felix Frankfurter:

    May I ask you one more question.

    I’m not suggesting that you would but I do like to ask you whether you think no lawyer, if now suit were brought by these appellants against ASCAP, that no lawyer would even dream of saying that the decree, the 1959 — the — the latest decree had any relation to that suit.

    Not you because you’ve made your position on that.

    John F. Dooling, Jr.:

    Our laws are profession of dream.

    If that’s boxed, it’s progress.

    But I do not think he ought to conceive of it in that —

    Felix Frankfurter:

    You think — you would think of —

    John F. Dooling, Jr.:

    Aspect.

    Felix Frankfurter:

    — him as poor lawyer speaking.

    John F. Dooling, Jr.:

    No, Your Honor.

    I would think of him as a determined, resolute, and relentless lawyer, [Laughter] but I think the Court would —

    Earl Warren:

    (Voice Overlap) —

    John F. Dooling, Jr.:

    Dispose of the claim.

    [Laughter]

    Earl Warren:

    Mr. Horsky.

    Charles A. Horsky:

    May it please the Court.

    The course of the argument yesterday leads me to seek the indulgence of the Court on about three small points.

    First, the Court will recall that in illustrating our contention, that the Department of Justice inadequately represented the interests of these appellants in presenting to the District Court of the decree which it proposed.

    I illustrated by assertion that the proposed decree left the voting control of the Society precisely where it was before.

    I hope that the Court will also have observed that neither Mr. Dooling nor Mr. Friedman took issue with that assertion.

    I think it is fair to say that there is at least a passive acceptance of the proposition that under the proposed decree, the dominant members of this Society, which is — it has been the purpose of this antitrust suit to curve and which it has been unsuccessful in doing in two antitrust decrees, remains undisturbed under the proposals.

    That antitrust purpose of the suit has not and will not be accomplished.

    Second, if I may turn from what Mr. Dooling and Mr. Friedman did not say to what they did say, I would like to elaborate a bit on one matter which I think I replied to Mr. Justice Whittaker about yesterday and that is what would have happened had we intervened in the court below — had we been permitted to intervene.

    As I see it, the situation would have been this.

    The District Court, under the powers reserved to it in the decree, particularly in Article 17, which gives it a specific power, would have held a hearing on the proposed modifications of the decree.

    Charles A. Horsky:

    The hearing would have been precisely the kind that was sanctioned by this Court in the Hughes case in the 342 United States and in the Liquid Carbonic case in the 350 United States.

    I find nothing in those cases or indeed, in any other cases to support the suggestion which Mr. Dooling made yesterday that in that hearing, the Court would have had to concern itself with the question whether the Society or its members had violated the antitrust laws.

    It wuld have been a hearing on whether and the extent to which further relief was appropriate and necessary.

    And let me add that I see no reason why, following that hearing, it would have had any effect upon the future use of this decree in any Section 5 application in any later case.

    It — modified or not by the judge as the hearing might have indicated to him.

    The decree still would not adjudge that anyone had violated the antitrust laws.

    I also should add that I think, as Mr. Justice Frankfurter, I believe, suggested yesterday, I don’t really think that that issue is particularly relevant to the issue before you here on this appeal, but I believe that would be the course of the proceedings.

    Now, in — finally, and my third point, let me say only this.

    I feel really a certain sympathy with the Department of Justice negotiators and counsel.

    ASCAP is a very complex organization, a very complex machine, and the way in which it can be made to work its will for the people who hold the reins of power in ASCAP are by no mens apparent.

    Indeed, it seems to me that in this kind of a case, where the issue is the regulation of the internal affairs of a complex society, it is highly appropriate that members of the Society who know its workings and who have been in it would be present to help the Court with their facts and their evidence to assist it in determining whether the decree before it did, in fact, adequately carry out the purposes of the antitrust laws.

    One of these appellants, the Fox Company, has been a member of the Society for almost 40 years.

    It’s a charter member of the Serious Music Publishers in the Society.

    The other two members of the — of the appellants group have been members for approximately 20 years in the Society.

    Those people know its workings.

    They have been in it, and their information, their advice and most important, their information as to what further evidence was available which could be presented to the Court.

    It seems to me, it would have been inestimable assistance to the District Court in determining whether this decree did, in fact, properly carry out the purposes of the antitrust laws.

    I submit to you that they should have been welcomed as intervenors rather than summarily rejected.

    Thank you very much.

    Earl Warren:

    Mr. Horsky.

    Would you —

    Charles A. Horsky:

    Yes, sir?

    Earl Warren:

    — mind addressing yourself to the subject matter of the colloquy between Mr. Justice Black and Mr. Dooling at (Voice Overlap) —

    Charles A. Horsky:

    Yes, Your Honor.

    It seems to me, I can — I think I stated it rather summarily yesterday.

    The issue on that is about as follows.

    This was a suit brought against ASCAP, its officers, directors and members.

    The consent decree which was entered — it — it tracks the language of Rule 23.

    It was obviously intended to be and was indeed a true class suit.

    The consent decree entered in 1941 had specific prohibition which ran against the members which, as a contemporaneous interpretation, perhaps is significant as to the nature of the suit.

    Charles A. Horsky:

    As a true class suit, we understand from the Ben-Hur line of cases and other cases, that if a class suit judgment is entered, it binds the members of the class.

    So far, I think we and the Department of Justice, at least, are in accord.

    The Department of Justice takes the position in its brief, and we have dealt with it in our reply brief at some length, that, however, in this case, notwithstanding that the members would be bound by whatever decree has been entered, nonetheless, this decree does not in fact set absolute things that ASCAP must do but only minimums that it must comply with.

    And therefore, they say “We could bring another vindication and insist upon a more stringent application of the antitrust laws to ASCAP because ASCAP is free to make these internal adjustments.”

    As I indicated to you before, I think a reading of the decree will dispel the belief that that is true.

    There are areas, it is quite true, where ASCAP is in a position to make — to do so much or not to do so much, but there are other areas where the — the direction of the decree is a mandatory where ASCAP shall do this, ASCAP shall do that.

    And it certainly is true, if you will read the decree that these defendants if — as I say, we are in accord up to the point through the Ben-Hur case, that these defendants would be inhibited by legitimate pleas of res judicata if they were to try to do in another obligation what we are seeking to do in this proposed amended decree that is before you.

    I trust the —

    Hugo L. Black:

    May I ask you just one question?

    Charles A. Horsky:

    Yes, Mr. Justice.

    Hugo L. Black:

    As I understand it, your complaint is not that the decree is wrong and going too far in protecting your client, but it’s wrong and not going precedent.

    Charles A. Horsky:

    That’s correct.

    The position we take, Your Honor, is that the District Court had an obligation to determine whether the proposal before it was consistent with carrying out the antitrust purposes of the suit, that is, its responsibility as to whether the decree should be approved or not approved was measured by the statute.

    And in this case, we say the decree fell so far short of — of carrying out the purposes of the statute that the Court could not properly approve it.

    Hugo L. Black:

    How could it —

    Charles A. Horsky:

    And that was what we propose to try to prove.

    Hugo L. Black:

    How could it be res adjudicata as to discrimination work by the directors against your client, should they do so hereafter, in the distribution of funds?

    Charles A. Horsky:

    If they comply with the terms of the decree, Your Honor.

    Hugo L. Black:

    Then, does the decree afford to settle all controversies between you and them?

    Charles A. Horsky:

    The decree is — I trust that you will —

    Hugo L. Black:

    Or does it simply provide a way in which both shall recant?

    Charles A. Horsky:

    Oh, no.

    No, it goes much further than that.

    It has very elaborate provisions on the manner in which these funds shall be distributed on the amount of discrimination which shall be had between different kinds of using — use for the same purposes, etcetera.

    It is a very elaborate decree.

    Felix Frankfurter:

    It’s not merely a mechanism for determining substantive issues.

    It, itself, provides certain —

    Charles A. Horsky:

    That’s right.

    Felix Frankfurter:

    — (Voice Overlap) substantive issues.

    Charles A. Horsky:

    That’s right — that’s right.

    Charles A. Horsky:

    I —

    Hugo L. Black:

    Do you mean that the Government has consented to a decree and from your standpoint, which fixes without possibility of your avoiding it, a distribution which will work a discrimination against your clients?

    Charles A. Horsky:

    And against the other general membership of ASCAP to the benefit of the dominant group which we are trying to prove.

    Hugo L. Black:

    And that there is no way for them to avoid that without coming in conflict with this decree?

    Charles A. Horsky:

    It would be res judicata in a lot of cases.

    Hugo L. Black:

    If you are wrong on that, what then?

    Charles A. Horsky:

    If we are wrong on that, I suppose the answer would be that we could bring another suit.

    Hugo L. Black:

    And what then?

    Charles A. Horsky:

    We could attempt to pers — persuade —

    Hugo L. Black:

    What —

    Charles A. Horsky:

    — the Court —

    Hugo L. Black:

    What effect would that have on your right of intervention?

    Charles A. Horsky:

    Well, as I —

    Hugo L. Black:

    (Voice Overlap) —

    Charles A. Horsky:

    — as I understand, Sutphen Estates case —

    Hugo L. Black:

    Supposing now that the decree is not res adjudicata in such a way that it would bar your clients from bringing an action to prevent what you call the unfair discrimination against your client, why — if — if that is true, would you have a right to intervene?

    Charles A. Horsky:

    Well, as I — I think this requires a sentence or two, if I may.

    As I understood the language of the Court in the Sutphen Estates case, Mr. Justice Douglas, I believe, stated that unless the — it was res judicata, you didn’t comply with this last requirement of Rule 24 (a) (2), that is, that you were not bound by the decree.

    Now, there are indications in other cases, and I’m not sure that they may not be proper indications, that you don’t have to go quite that far in some cases but you can be bound in a practical sense even though, perhaps, you are not strictly within the doctrine of res judicata.

    I think, here, we are within the res judicata doctrine but, perhaps, Your Honor, if we were not —

    Hugo L. Black:

    Suppose you’re not?

    Charles A. Horsky:

    If we were not, it might still be possible that we could satisfy the Court that we were so far practically bound that we ought to be allowed to intervene.

    Felix Frankfurter:

    (Voice Overlap) —

    Hugo L. Black:

    So far what?

    Charles A. Horsky:

    Well, that if we brought another case, the effect of Judge Ryan’s decision that this was alright would be so far conclusive, as a matter of comity, that we would really never have a chance to prove anything different.

    Supposing this suit had been brought only against ASCAP, presumably the reach of this decree consented to would have been — could have been just the same.

    Would that affect your position?

    Charles A. Horsky:

    I’m not sure, Mr. Justice Harlan, whether it would or not.

    There is fairly extensive authority for the proposition that if suit brought against ASCAP under 17 (b) has an unincorporated association, a federal cause of action being involved, is really no different than a 23 (a) suit anyway, that it binds the members.

    And it would be my belief that a suit naming only ASCAP would have the same res judicata consequences on the membership of ASCAP as if it had specifically said it was brought pursuant to 23 (a) or 23 (a) (1) or (a) (2).

    Charles A. Horsky:

    I don’t believe it makes any difference if they were named.

    The fact is that they were named and the fact is that the decree operated specifically against them as members and says “As members, you may not do this and this and this.”

    Earl Warren:

    Mr. Horsky, at the opening of your argument, I thought you stressed the fact that — that the Court had taken no evidence on your — your motion to intervene —

    Charles A. Horsky:

    That’s right.

    Earl Warren:

    That it — it had made no findings but had merely given you an order that — preventing him from intervening.

    Now, suppose that he had admitted evidence, under your complaint and your memorandums that were filed — filed with it, and he had made findings and had concluded, on the evidence, that you were not entitled to — to intervene because the public interest had been taken care of, would that be supportable or do you — or do you contend that you have an absolute right to intervene because of — of the interest that you have in the — in the outcome of this litigation?

    Charles A. Horsky:

    Well, I — if I correctly understand your question, let me be sure that I do, Your Honor.

    Earl Warren:

    Yes.

    Charles A. Horsky:

    I think there are two hearings that are perhaps intermingled here that we ought to keep distinct.

    I take it that an — a person who applies to intervene must allege certain things.

    Earl Warren:

    Yes.

    Charles A. Horsky:

    And if challenged or if in doubt, the Court may say “Well, now, I’m going to have a hearing on the question as to whether these facts he alleges as to the basis for his right to intervene are true or not true.”

    Earl Warren:

    Yes.

    Charles A. Horsky:

    And if they turn out to be not true, then I will deny the petition for leave to intervene.

    Now —

    Earl Warren:

    Well, if true, they don’t constitute —

    Charles A. Horsky:

    Or if true —

    Earl Warren:

    (Voice Overlap) — grounds.

    Charles A. Horsky:

    Well, if —

    Earl Warren:

    Yes.

    Charles A. Horsky:

    — if true, they don’t constitute ground, he wouldn’t have to have a hearing.

    Earl Warren:

    Yes.

    Charles A. Horsky:

    That he would then say as he did here, as a matter of law even if you —

    Earl Warren:

    Yes.

    Charles A. Horsky:

    — prove it all, you can’t come in.

    Earl Warren:

    Yes.

    Charles A. Horsky:

    Now, having had that here, we then come in, if he says “Alright, you’ve proved your facts, and I think you’re entitled to intervene,” then there is a hearing on the modification of the decree, which is a different hearing.

    Now, in a sense, in this case, the two are somewhat more interrelated than ordinarily, they would be because —

    Earl Warren:

    But you wouldn’t get to — you wouldn’t get to the second one unless he permitted you to intervene.

    Charles A. Horsky:

    That’s right.

    Earl Warren:

    Now, what I’m talking about is the first one.

    Would the — would his conclusion that you are not entitled to — to intervene be supportable if he had taken evidence and had made adequate findings to the effect that the public interest had been concerned.

    Charles A. Horsky:

    Well, I — I don’t mean to say that if he had taken evidence and our facts had been disputed and the Society and the Department of Justice had persuaded him that under all the facts, even those —

    Earl Warren:

    Yes.

    Charles A. Horsky:

    Which we adduced —

    Earl Warren:

    Yes.

    Charles A. Horsky:

    The decree was a proper decree, that he couldn’t have reached that conclusion.

    No, I’m not —

    Earl Warren:

    Yes.

    Charles A. Horsky:

    I certainly wouldn’t dispute it.

    Earl Warren:

    Yes.

    Charles A. Horsky:

    All I —

    Earl Warren:

    (Voice Overlap) —

    Charles A. Horsky:

    All we want is the opportunity to present to him the entire picture and leave it to his judgment as to whether this is a property.

    Earl Warren:

    Yes, I — I understand that.

    Charles A. Horsky:

    Thank you very much.

    Earl Warren:

    Thank you, Mr. Horsky.