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[247 U.S. 105, 106] Messrs. Rush Taggart and John G. Milburn, both of New York City, and Arthur Lord, of Boston, Mass., for plaintiffs in error (in cases Nos. 274 and 275).
Mr. Henry S. Robbins, of Chicago, Ill, for appellant (in cases Nos. 419 and 420).
Messrs. Patrick Henry Kelley and William Harold Hitchcock, both of Boston, Mass., for Calvin H. Foster.
Messrs. Henry C. Attwill, Atty. Gen., and H. Ware Barnum, Asst. Atty. Gen., for Public Service Commission of Massachusetts.
Four cases were argued together in this Court. The first two were suits in the Supreme Judicial Court of Massachusetts, one a statutory petition by the telegraph companies to have an order of the Public Service Commission annulled, the other a bill by the Commission to have the same order enforced. The cases were consolidated and reserved on the pleadings for determination by the full Court, which decreed that the petition of the plaintiffs in error should be dismissed and the order of [247 U.S. 105, 111] the Commission obeyed. 224 Mass. 365, 113 N. E. 192. The order recited that the Gold and Stock Telegraph Company by the Western Union Telegraph Company lessee and the United Telegram Company had without just cause refused to supply to Calvin H. Foster the continuous quotations of the New York Stock Exchange by means of ticker service then supplied to others, declared the refusal an unlawful discrimination a d required the two companies to remove the discrimination forthwith.
The material facts may be abridged as follows: The New York Stock Exchange, having a monopoly of the information collected by it on the floor of the Exchange concerning the prices quoted in transactions there, made contracts with the plaintiffs in error of the same general character as those before the Court in Board of Trade v. Christie Grain & Stock Co., 198 U.S. 236, 246 , 25 S. Sup. Ct. 637, and Hunt v. New York Cotton Exchange, 205 U.S. 322 , 27 Sup. Ct. 529. By these contracts for specified lump sums the Exchange agreed to furnish to the Telegraph Companies simultaneously full and continuous quotations of prices made in transactions upon the Exchange. The Telegraph Companies 'may' in their turn furnish quotations to their 'patrons' at intervals of more than fifteen minutes subject to discontinuance upon objection of the Exchange, and may furnish continuous service by ticker to subscribers, provided the latter sign applications in duplicate, one of which is to go to the Exchange, the application not to be effectual until the subscriber is approved by the Exchange, agreeing that the Telegraph Company may discontinue the service, 'whenever directed so to do by said new York Stock Exchange.' The application recognizes that the quotations are furnished under contract with the Exchange and agrees not to furnish the quotations to branch offices or correspondents unless first approved by the Exchange and also signing agreements, one of which is to be delivered to the Exchange. The contract states [247 U.S. 105, 112] that the intent of the Exchange in reserving the right to disapprove, etc., is only to prevent improper and unlawful use of the facts.
The Gold and Stock Telegraph Company's business is carried on by the Western Union Telegraph Company in the name of the former. The quotations are furnished to the latter in New York, telegraphed by it to the office of the Gold and Stock Company in Boston, translated from the Morse code into English, and thence transmitted by an operator to the tickers in the offices of the brokers who have subscribed and have been approved. The United Telegram Company, a New Jersey corporation, receives quotations for Boston alone, where is its principal office outside of New Jersey. They are furnished by the Exchange in New York, telegraphed to the Boston office over a wire of the Postal Telegraph Cable Company, and thence transmitted as in the other case. On these facts the plaintiffs in error say that the order is an unwarranted interference with commerce among the States and takes property without due process of law, setting up the Constitution of the United States.
We shall not discuss the bearing of the Fourteenth Amendment nor yet how far an order simply to remove a discrimination could be effectual when if Mr. Foster were let in on the same terms as those now accepted as subscribers, he would agree that the Telegraph Company might discontinue its service without notice whenever directed so to do by the New York Stock Exchange. It is enough that in our opinion the transmission of the quotations did not lose its character of interstate commerce until it was completed in the brokers' offices and that the interference with it was of a kind not permitted to the States. The supposed analogy that has prevailed is that of a receiver of a package breaking bulk and selling at will in retail trade. But it appears to us misleading. We also think it unimportant that the contracts between the Ex- [247 U.S. 105, 113] change and the Telegraph Companies emphasize the element of quasi-sale for lump sum and leave it to the interest of the Telegraph Companies to find subscribers. Neither that nor the intervention of an operator, or of another company, are in the least degree conclusive. Unlike the case of breaking bulk for subsequently determined retail sales, in these the ultimate recipients are determined before the message starts and have been accepted as the contemplate recipients by the Exchange. It does not matter if they have no contract with the Exchange, directly. It does not matter that if the Telegraph Companies did not deliver to any given one the Exchange could not complain. If the normal, contemplated and followed course is a transmission as continuous and rapid as science can make it from Exchange to broker's office it does not matter what are the stages or how little they are secured by covenant or bond.
Thus lumber purchased in Texas for the purpose of filling foreign orders was held to be carried in interstate commerce, although no contract prevented the purchaser from giving it a different destination. Texas & New Orleans R. R. Co. v. Sabine Tram Co., 227 U.S. 111, 126 , 33 S. Sup. Ct. 229. Practice, intent and the typical course, not title or niceties of form, were recognized as determining the character, and other cases to the same effect were cited. The principle was reaffirmed in Railroad Commission of Louisiana v. Texas & Pacific Ry. Co., 229 U.S. 336 , 33 Sup. Ct. 837; and is too well settled to need to be further sustained Western Oil Refining Co. v. Lipscomb, 244 U.S. 346, 349 , 37 S. Sup. Ct. 623. See Swift & Co. v. United States, 196 U.S. 375, 398 , 399 S., 25 Sup. Ct. 276. It is admitted that the transmission from New York to Massachusetts by the Telegraph Company was interstate commerce. If so it continued such until it reached 'the point where the parties originally intended that the movement should finally end.' Illinois Central R. R. Co. v. Louisiana R. R. Commission, 236 U.S. 157, 163 , 35 S. Sup. Ct. 275. [247 U.S. 105, 114] If the transmission of the quotations is interstate commerce the order in question cannot be sustained. It is not like the requirement of some incidental convenience that can be afforded without seriously impeding the interstate work. It is an attempt to affect in its very vitals the character of a business generically withdrawn from state control-to change the criteria by which customers are to be determined and so to change the business. It is suggested that the State gets the power from its power over the streets which it is necessary for the telegraph to cross. But if we assume that the plaintiffs in error under their present charters could be excluded from the streets, the consequence would not follow. Acts generally lawful may become unlawful when done to accomplish an unlawful end, United States v. Reading Co., 226 U.S. 324, 357 , 33 S. Sup. Ct. 90, and a constitutional power cannot be used by way of condition to attain an unconstitutional result. Western Union Telegraph Co. v. Kansas, 216 U.S. 1 , 30 Sup. Ct. 190; Pullman Co. v. Kansas, 216 U.S. 56 , 30 Sup. Ct. 232; Sioux Remedy Co. v. Cope, 235 U.S. 197, 203 , 35 S. Sup. Ct. 57. The regulation in question is quite as great an interference as a tax of the kind that repeated decisions have held void. It cannot be justified 'under that somewhat ambiguous term of police powers.' Western Union Telegraph Co. v. Pendleton, 122 U.S. 347, 359 , 7 S. Sup. Ct. 1126; Leisy v. Hardin, 135 U.S. 100 , 10 Sup. Ct. 681; Savage v. Jones, 225 U.S. 501, 520 , 32 S. Sup. Ct. 715; Western Union Telegraph Co. v. Brown, 234 U.S. 542, 547 , 34 S. Sup. Ct. 955. Without going into further reasons we are of opinion that the decree of the Supreme Judicial Court must be reversed.
The other two cases were suits brought by the New York Stock Exchange against the Telegraph Companies severally and Foster. The bills set forth the respective contracts with the companies, allege that Foster made applications to them in the prescribed form, was given a full hearing before a committee of the Exchange, and that as a result the Exchange reached the conclusion that [247 U.S. 105, 115] Foster had been conducting bucket shops and wanted the quotations in aid of such shops, and therefore disapproved the appl cations. They set forth the order of the State Commission, the decree of the State Court and the intent of the Telegraph Companies to comply with the order, and allege that it is void as beyond the jurisdiction of the State Commission under the Constitution and Acts of Congress and also as depriving the plaintiff of its property without due process of law. Injunctions are prayed against delivery of continuous quotations to Foster or receipt of them by him unless and until he shall have acquired the right by contract with the approval of the Exchange. Subsequently the members of the Public Service Commission were made parties, and then upon their motion the bills were dismissed by the District Court, the judge accepting the reasoning of the Supreme Court of the State. The decision seems to have been upon the merits, but the question is certified whether the bill presents a controversy which arises under the Constitution or laws of the United States within the meaning of section 24 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1091 [Comp. St. 1916, 991]). In view of the decision in the State cases probably it will not be necessary to prosecute these suits farther. But it follows from what we have said that the decision of the District Court was wrong and that the decrees in these cases also must be reversed. It is suggested, to be sure, that the Exchange would be barred by the state decree against the Telegraph Companies if it stood, because the Exchange by its contracts reserved the right to intervene in such suits. It did not intervene and therefore would not have been bound.

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§ 370-3 Word usage; definitions.
§ 370-7 Schedule of Area, Yard and Height Requirements.
§ 370-10 Permitted modifications and exceptions.
§ 370-11 Preservation of natural features.
§ 370-12 Subdivision and site plan requirements.
§ 370-15 Permitted accessory uses.
§ 370-16 Area and bulk requirements.
§ 370-20 Permitted accessory uses.
§ 370-21 Area and bulk requirements.
§ 370-24 Purpose and intent.
§ 370-26 Permitted accessory uses.
§ 370-27 Area and bulk requirements.
§ 370-30 Purpose and intent.
§ 370-32 Permitted accessory uses.
§ 370-33 Area and bulk requirements.
§ 370-37 Permitted accessory uses.
§ 370-38 Area and bulk requirements.
§ 370-42 Permitted accessory uses.
§ 370-43 Area and bulk requirements.
§ 370-47 Permitted accessory uses.
§ 370-48 Area and bulk requirements.
§ 370-51 Permitted accessory uses.
§ 370-52 Area and bulk requirements.
§ 370-55 Town center option.
§ 370-57 Permitted accessory uses.
§ 370-58 Area and bulk requirements.
§ 370-62 Permitted accessory uses.
§ 370-63 Area and bulk requirements.
§ 370-66 Uses to be permitted in district.
§ 370-68 Permitted accessory uses.
§ 370-70 Area and bulk requirements.
§ 370-74 Administrative, business and industrial uses or zones.
§ 370-75 General parking requirements.
§ 370-76 Required off-street parking spaces.
§ 370-77 Off-street loading and unloading requirements.
§ 370-78 Uses requiring conditional use permits.
§ 370-79 Privately owned public utilities.
§ 370-80 Hospitals and philanthropic or eleemosynary uses.
§ 370-81 Quasi-public buildings, fraternal organizations and recreation areas.
§ 370-82 Commercial parking and storage areas.
§ 370-83 Motor vehicle service and gasoline stations.
§ 370-85 Churches, synagogues or other places of worship.
§ 370-86 Seasonal outdoor sales.
§ 370-87 Senior citizen housing.
§ 370-90 Radio antennas and towers.
§ 370-91 Radio, television and satellite dish antennas.
§ 370-92 Trash storage areas.
§ 370-97 Design of containment areas for designated recyclable materials on residential sites.
§ 370-98 Construal of provisions.
§ 370-104 Effect on prior approvals.
§ 370-108 Certificates and permits.
§ 370-110 Violations and penalties.
Planning and Zoning Boards — See Ch. 60.
Fences — See Ch. 155.
Food establishments — See Ch. 179.
Historic buildings — See Ch. 193.
Housing standards — See Ch. 199.
Noise — See Ch. 231.
Property maintenance — See Ch. 272.
Seasonal outdoor sales — See Ch. 285.
Temporary storage units — See Ch. 319.
Swimming pools — See Ch. 333.


The Arkansas Game and Fish Commission hosts Arkansas Stream Team. See Arkansas Stream Team, Ark. Game & Fish Commission, https://www.agfc.com/en/get-involved/onthewater/streamteam/ (last visited Feb. 7, 2019). The program trains volunteers “in water-quality monitoring and streambank maintenance and restoration techniques.” Id.
(B) Had notice that the entry was forbidden or received notice to depart but failed to depart.” Ark. Code § 5-62-203(a).
Violation of this section is a Class D felony. Id. § 5-62-203(b).
“A person who knowingly gains access to a nonpublic area of a commercial property and engages in an act that exceeds the person’s authority to enter the nonpublic area is liable to the owner or operator of the commercial property for any damages sustained by the owner or operator.” Ark. Code § 16-118-113(b).
Commercial property includes “business property” and “[a]gricultural or timber production operations, including buildings and all outdoor areas that are not open to the public.” Id. § 16-118-113(a)(1)(A)-(B).
An individual in violation of this section is liable for compensatory damages or, if compensatory damages cannot be quantified, statutory damages not to exceed $5,000 for each day the violation occurred. Id. § 16-118-113(e)(2) & (4).
“It is unlawful to take wildlife for scientific study without possessing on the person a valid Commission-issued Scientific Collection Permit.” Code Ark. R. 002.00.1-09.09.
No. A trespasser must enter or remain on the premises belonging to another purposely. Ark. Code § 5-39-203(a)(2). “A person who enters or remains upon unimproved and apparently unused land not fenced or otherwise enclosed in a manner designed to exclude an intruder does so with license and privilege unless: (i) Notice not to enter or remain is personally communicated to the person by the owner or a person authorized by the owner; or (ii) Notice is given by a posting in a conspicuous manner.” Id. § 5-39-101(3)(C).
“It is unlawful to use any camera, videotape, photo-optical, photoelectric, or any other image recording device for the purpose of secretly observing, viewing, photographing, filming, or videotaping a person present in a residence, place of business, school, or other structure, or any room or particular location within that structure, if that person: (1) Is in a private area out of public view; (2) Has a reasonable expectation of privacy; and (3) Has not consented to the observation.” Ark. Code § 5-16-101(a).
A violation of subsection (a) is a Class D felony. Id. § 5-16-101(c)(1).
Please check with your local state park officials before using drones in state parks.
“A person commits the offense of unlawful use of an unmanned aircraft system if he or she knowingly uses an unmanned aircraft system to conduct surveillance of, gather evidence or collect information about, or photographically or electronically record critical infrastructure without the prior written consent of the owner of the critical infrastructure.” Ark. Code § 5-60-103(b).
“Critical infrastructure” means: an electrical power generation or delivery system; a petroleum refinery; a chemical or rubber manufacturing facility; or a petroleum or chemical storage facility. Id. § 5-60-103(a)(1).
“Unlawful use of an unmanned aircraft system is: (1) A Class B misdemeanor; or (2) A Class A misdemeanor for a second or subsequent offense.” Id. § 5-60-103(d). An individual who violated this section is also liable for civil damages. See id. § 16-118-111.
“A person commits stalking in the third degree if he or she knowingly commits an act that would place a reasonable person in the victim’s position under emotional distress and in fear for his or her safety or a third person’s safety.” Ark. Code. § 5-71-229(c)(1).
“A person may recover actual damages, and if applicable, punitive damages, reasonable attorney’s fees, and court costs against another person if he or she proves by a preponderance of the evidence that another person knowingly engaged in a course of conduct towards the person that would place a reasonable person in the person’s position under emotional distress or in fear for his or her safety or a third person’s safety.” Ark. Code. § 16-127-102(a).
Requires certification that “the factual contentions have evidentiary support.” Ark. R. Civ. P. 11(b)(3).
“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ark. R. Evid. 901(a).
Daubert standard and Prater analysis. See Farm Bureau Mut. Ins. Co. of Arkansas v. Foote, 14 S.W.3d 512, 519-20 (Ark. 2000); Prater v. State, 307 Ark. 180, 186-89 (1991).


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115 Mass. 256; Jordan v. Warner's Estate, 107 Wis. 539, 83 N. W. 946; 3 Pomeroy, Eq. Jur. Sec. 1196.
11. Professor James Barr Ames, in 20 Harv. Law Rev. at p. 553, Lectures on Legal History 429. A like view is expressed in an able article by Professor Harlan F. Stone in 6 Columbia Law Rev. 326.
12. 4 Wigmore, Evidence, Sec. 2437.
13. See Campbell v. Dearborn, 109 Mass. 130, 12 Am. Rep. 671; Ruckman v. Alwood, 71 III. 155; Eckford v. Berry, 87 Tex. 415, 28 S. W. 937.
14. See Brick v. Brick, 98 U. S. 514, 25 L. Ed. 256; Gibbons v. Joseph Gibbons Consol. Mining & Milling Co., 37 Colo. 96, 11 Ann. Cas. 323, 86 Pac. 94; First Nat. Bank of Florida v. Ashmead, 23 Fla. 379, 2 So. 657, 665; Pickett v. Wadlow, 94 Md. 564, 51 Atl. 423; State Bank of O'Neill v. Mathews, 45 Neb. 659, 50 Am. St. Rep. 565, 63 N. W. 930; Mooney v. Byrne, 163 N. Y. 86, 57 N. E. 163; Williams v. Purcell, 45 Okla. 489, 145 Pac. 1151; Mills v. Sumter Lumber Co., - S. C. -, 95 S. E. 355; Gibson v. Hopkins, 80 W. Va. 756, 93 S. E. 826.
15. A different rule prevails when there is an agreement in terms that the grantor may repurchase the property. See post, this section, note 27.
16. Coyle v. Davis, 116 U. S. 108, 29 L. Ed. 583; Reeves v. Abercrombie, 108 Ala. 535, 19 So. 41; Prickett v. Williams, 110 Ark. 632, 161 S. W. 1023; Mahoney v. Bostwick, 96 Cal. 53, 31 Am. St. Rep. 175, 30 Pac. 1020; Perot v. Cooper, 17 Colo. 80, 31 Am. St. Rep. 258, 28 Pac. 391; Keithley v. Wood, 151 III. 566, 42 Am. St. Rep. 265, 38 N. E. 149; Rasch v. Rasch, 278 III. 261, 115 N. E. 871; Betts v. Betts, 132 Iowa, 72, 106 N. W. 928; Winston v. Burnell, 44 Kan. 367, 21 Am. St. Rep. 289, 24 Pac. 477; Jackson v. Maxwell, 113 Me. 366, 94 Atl. 116; Kellogg v. North-rup, 115 Mich. 327, 73 N. W. 230; Young v. Bake, 128 Minn. 398, 151 N. W. 132; Brightwell v. McAfee, 249 Mo. 562, 155 S. W. 820; Gibson v. Morris State Bank, 49 Mont. 60, 140 Pac. 76; Hogan v.
(c) Considerations determining character of transaction. In determining the question whether an absolute conveyance is a mortgage, the fact that an indebtedness on the part of the grantor to the grantee is created by the transaction, or that a former indebtedness is thereby continued in force, is usually conclusive that it is a mortgage.17 And conversely, the fact that no indebtedness exists, which the conveyance can be regarded as intended to secure, is conclusive that it is not a mortgage.18 The absence, however, of a covenant or other express agreement to pay is not conclusive evidence that the conveyance is not a mortgage, there being other evidence on which to base a personal liability on the part of the grantor,19 and even though no personal liability exists, still the conveyance may, it seems, be regarded as a mortgage,20 since such a liability does not invariably exist in the case of a mortgage.21 The language ordinarily used by the judges, however, suggests that a personal indebtedness is necessary in order that the conveyance may be regarded as a mortgage.
Jaques, 19 N. J. Eq. 123, 97 Am. Dec. 644; Beall v. Beall, 67 Ore. 33, 128 Pac. 835, 135 Pac. 185; Wallace v. Smith, 155 Pa. St. 78, 35 Am. St. Rep. 868, 25 Atl. 807; Bryan v. Boyd, 100 S. C. 397, 84 S. E. 992: Commercial & Savings Bank v. Cassem, 33 S. D. 294, 145 N. W. 551; McLean v. Ellis, 79 Tex. 389, 15 S. W. 394; Motley's Adm'r. v. Carstairs, 114 Va. 429, 76 S. E. 948; Nutter v. Cowley Inv. Co., 85 Wash. 207, 147 Pac. 896. But a different rule appears to control in Kentucky. Castillo v. McBeath, 162 Ky. 382, 172 S. W. 669; Carr v. Morrison, 178 Ky. 683, 199 S. W. 783.

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40 ERC 1102, 63 USLW 2499, 25 Envtl.
Action for the Environment, Intervenor Below.
Edward T. Lyons, Jr., Denver, CO. (David E. Driggers and Thomas J. Burke, Jr., on the brief), for appellant.
Roxanne Giedd, Asst. Atty. Gen., Pierre, SD (Diane Best, Asst. Atty. Gen., on the brief), for appellee.
Before MAGILL, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge.
This appeal is the latest in a seemingly never-ending series of cases arising from SDDS's six-year-long struggle to develop a large-scale MSWD facility near Edgemont, South Dakota. In November 1988, SDDS filed with the South Dakota Department of Water and Natural Resources (DWNR)2 an application for a permit to site, construct and operate a MSWD facility (the Lonetree facility). At the time, South Dakota's administrative permitting procedure for SWD facilities was to issue a one-year initial permit if the facility was determined to be environmentally safe and in the public interest, then to issue five-year renewals of that permit after de novo review of the safety of the facility. See S.D.Codified Laws Sec. 34A-6-1.16 (1986 & Supp.1989). After much judicial3 and political4 wrangling, the Board of Minerals and the Environment (BME), a branch of the DWNR, held a hearing on whether SDDS's application should be granted. The BME determined that the Lonetree facility was environmentally safe and in the public interest, as required by S.D.Codified Laws Sec. 34A-6-1.13 (1986 & Supp.1989), and issued the initial one-year permit on September 9, 1989. While the one-year permit was in effect, SDDS applied for a five-year renewal permit. The BME conducted additional hearings and issued the renewal permit in December 1990 based on independent findings that the Lonetree facility was safe and in the public interest.
SDDS's two permits have generated much litigation. In In re Application of SDDS, Inc., for a Solid Waste Permit, 472 N.W.2d 502 (S.D.1991) (SDDS I ), the South Dakota Supreme Court held that when the BME issued the original one-year permit, it did not make sufficient factual findings from which the court could determine whether the Lonetree facility was in the public interest. The court remanded for factual findings,5 but did not address the merits of whether the facility was in fact in the public interest. 472 N.W.2d at 512. In In re 1990 Renewal Application of SDDS, Inc., 507 N.W.2d 702 (S.D.1993) (SDDS IV ), the South Dakota Supreme Court held that the renewal permit was void from its inception because the original one-year permit was found invalid in SDDS I. SDDS IV, 507 N.W.2d at 703-04.
Meanwhile, South Dakota voters addressed SDDS's attempt to develop the Lonetree facility by placing an initiative on the November 1990 ballot. This initiative required legislative approval of any large-scale SWD facility in addition to the administrative approval required of all SWD facilities regardless of size. Legislative approval was conditioned upon a finding that the facility was environmentally safe and in the public interest. Under South Dakota law, the Secretary of State is required to publish a pamphlet containing an Attorney General's explanation of, S.D.Codified Laws Sec. 12-13-9 (1982 & Supp.1994), and public comment on, S.D. Codified Laws Sec. 12-13-23 (1982 & Supp.1994), each initiated or referred measure. South Dakota stated at oral argument that this pamphlet is part of the legislative history of these initiated and referred measures. The Attorney General's explanation of the November 1990 initiative stated that it would apply retroactively to existing facilities (i.e., the Lonetree facility), and that only one facility (i.e., the Lonetree facility) would be affected. The initiative was passed in the November 1990 election, and is codified at S.D.Codified Laws Sec. 34A-6-53 to 56 (1992).
Shortly after the initiative was passed, the South Dakota legislature passed, and the governor signed, 1991 S.B. 169, codified at S.D.Codified Laws Sec. 34A-6-57 (1992), which gave the required legislative approval to the Lonetree facility. A referendum on S.B. 169 was certified on May 8, 1991. The Attorney General prepared an explanation of S.B. 169 and published arguments pro and con. The Attorney General's explanation states that the legislature found the facility to be environmentally safe and in the public interest and that the DWNR permits were "declared invalid in a court decision." The three-sentence "pro" statement mentions public support for the facility in the Edgemont area, the issuance of permits by the DWNR and the legislature, and the economic impact of the facility.
Referred Law # 1 is a direct public vote on the Lonetree mega-garbage dump near Edgemont. South Dakota Disposal Systems, Inc. (SDDS), Lonetree's owner, has stated 95% of the waste will come from out-of-state. The Board of Minerals and Environment and the legislature gave SDDS approval to bring in 65 railroad cars of garbage per day, seven days per week.
ACTion for the Environment has referred that approval to a vote because South Dakota is not the nation's dumping grounds. A "NO" vote will prevent Lonetree from operating, and keep its imported garbage out of South Dakota.
The U.S. Environmental Protection Agency has stated that all landfills eventually deteriorate, and new technologies only delay leaks further into the future (Federal Register, August 30, 1988). NIMBY (not in my backyard) exists because people do not want their soil, air and water contaminated.
... Lonetree is not an option for South Dakota communities. It is an out-of-state dump.
To the extent we become the nation's dumping grounds, we undermine successful recycling efforts elsewhere. Vote "NO" on Lonetree.
Appellant's Add. at 38. In November 1992, the referred measure was defeated, effectively vetoing the Lonetree facility.6 SDDS, Inc. v. South Dakota, 994 F.2d 486, 489 (8th Cir.1993) (SDDS V ).
These legislative activities spawned several additional lawsuits. SDDS challenged the initiative that required dual legislative and administrative approval. In SDDS, Inc. v. State, Civ. Case No. 90-412 (S.D. 6th Cir.Ct. Oct. 31, 1991) (SDDS III ), South Dakota state judge Steven L. Zinter upheld the initiative against several attacks virtually identical to those now mounted against the referendum. Judge Zinter's decision in SDDS III was not appealed.
All these events bring us to the procedural history of this case in the federal courts. This appeal is the second time we have encountered the referendum. In SDDS V, we reversed the district court's grant of summary judgment for South Dakota and remanded the case for further proceedings. The issue resolved in SDDS V was whether Judge Zinter's decision concerning the legality of the initiative (SDDS III ) precluded litigation of the legality of the referendum (SDDS V ) under the doctrine of collateral estoppel. We held that it did not. On remand, the district court granted summary judgment for South Dakota a second time, holding that there was no due process violation because SDDS had no affected property interest, no commerce clause violation and no equal protection violation. 843 F.Supp. 546, 562 (D.S.D.1994). SDDS's cross-motion for summary judgment was denied. This appeal followed.
The Supreme Court has established a two-step approach to the dormant commerce clause. The first step requires us to determine whether a challenged state measure discriminates against out-of-state articles (i.e., is a protectionist measure). Discrimination may take one of three forms. See Chemical Waste Mgmt. v. Hunt, 504 U.S. 334, ---- n. 6, 112 S.Ct. 2009, 2015 n. 6, 119 L.Ed.2d 121 (1992) (noting three types of discrimination); Southern States Landfill v. Georgia DNR, 801 F.Supp. 725, 730-31 (M.D.Ga.1992) (finding statute discriminatory on its face, in purpose and in effect); Waste Recycling v. Southeast Ala. Solid Waste Disposal, 814 F.Supp. 1566 (M.D.Ala.1993), affirmed, 29 F.3d 641 (11th Cir.1994). First, a measure may facially discriminate against out-of-state articles. See, e.g., Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978) (facial discrimination where state statute prohibited importation of waste "which originated or was collected outside the territorial limits of the State"); Hughes v. Oklahoma, 441 U.S. 322, 336-37, 99 S.Ct. 1727, 1736-37, 60 L.Ed.2d 250 (1979) (facial discrimination where state statute provided that no one "may ship or transport minnows for sale into this state from an outside source"); In re Southeast Ark. Landfill, Inc., 981 F.2d 372, 373 (8th Cir.1992) (facial discrimination where state statute divided state into eight districts and restricted receipt of waste originating "outside of the District in which [a landfill] is located"); Waste Sys. Corp. v. County of Martin, Minn., 985 F.2d 1381, 1386 (8th Cir.1993) (facial discrimination where ordinance required disposal of MSW generated within county at in-county disposal facility). No one contends that the referendum is facially discriminatory. However, facial discrimination is merely one of the ways in which a state may "artlessly disclose an avowed purpose to discriminate." Dean Milk Co. v. City of Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 298, 95 L.Ed. 329 (1951).
The other two forms of discrimination are more subtle and require us to examine the overall effect of the challenged measures.7 Waste Sys. Corp., 985 F.2d at 1386. A second way in which a challenged measure may discriminate is that a facially neutral measure may have a discriminatory purpose. See, e.g., Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 352-53, 97 S.Ct. 2434, 2446-47, 53 L.Ed.2d 383 (1977) (discriminatory purpose where facially neutral state statute prohibiting state grading from appearing on apple boxes discriminated against Washington apples that carry state grades). Third, a facially neutral measure may have a discriminatory effect. See, e.g., Maine v. Taylor, 477 U.S. 131, 148 n. 19, 106 S.Ct. 2440, 2453 n. 19, 91 L.Ed.2d 110 (1986) (discriminatory effect may be found where state "respond[s] to legitimate local concerns by discriminating arbitrarily against interstate trade"); GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1517 (11th Cir.1993) (discriminatory effect where county imposed 150-mile restriction on origin of waste); Government Suppliers Consol. Serv. v. Bayh, 975 F.2d 1267, 1278-79 (7th Cir.1992) (discriminatory effect where state statute imposed "backhaul ban" and additional registration and stickering requirements), cert. denied, --- U.S. ----, 113 S.Ct. 977, 122 L.Ed.2d 131 (1993).
At the second step of the analysis, we apply the appropriate level of scrutiny. The Supreme Court has established two levels of scrutiny. The determinative factor is the presence or absence of discrimination against interstate commerce. If the state measure is discriminatory, it is subjected to the "strictest scrutiny," Oregon Waste Sys., Inc. v. Department of Envtl. Quality of the State of Oregon, --- U.S. ----, ----, 114 S.Ct. 1345, 1351, 128 L.Ed.2d 13 (1994) (quoting Hughes, 441 U.S. at 337, 99 S.Ct. at 1736-37), and a "virtually per se rule of invalidity" applies. Oregon Waste Sys., --- U.S. at ----, 114 S.Ct. at 1351 (quoting Philadelphia, 437 U.S. at 624, 98 S.Ct. at 2535-36); Southeast Ark. Landfill, 981 F.2d at 375.8 If "other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade," the measure is subjected to a more flexible balancing test. Pike v. Bruce Church, 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970); Philadelphia, 437 U.S. at 624, 98 S.Ct. at 2535-36; Waste Sys. Corp., 985 F.2d at 1385-86; Southeast Ark. Landfill, 981 F.2d at 375. We address each of these two steps in turn.
B. What Level of Scrutiny: Is there discrimination?
Although the referendum is not facially discriminatory, we find that the referendum was certified and that the referred measure was defeated for a discriminatory purpose. We also find that the referendum has a discriminatory effect against interstate commerce. We therefore apply the "strictest scrutiny" to the referendum.
1. Does the referendum have a discriminatory purpose?
The presence of a discriminatory purpose is one of three ways to trigger strict scrutiny. Hunt, 432 U.S. at 352-53, 97 S.Ct. at 2446-47; Chemical Waste Mgmt., --- U.S. at ---- n. 6, 112 S.Ct. at 2015 n. 6; Waste Sys. Corp., 985 F.2d at 1381. The record is replete with direct and indirect evidence of an avowed discriminatory purpose behind the referendum.
The record contains two pieces of direct evidence of a discriminatory purpose. First, in SDDS III, Judge Zinter noted that the initiative "was purposely drafted to insure that, except for Lonetree, the Initiated Measure would not apply to existing or foreseeable future landfills that dispose of South Dakota waste." Appellant's App. at 184. The dual administrative and legislative approval required by the initiative was specifically designed and intended to hinder the importation of out-of-state waste into South Dakota. The purpose of the first and only referendum under the initiative cannot be divorced from the purpose of the initiative itself. The initiative was drafted to defeat a specific "out-of-state dump" by requiring an additional approval, and the referendum concerns that very approval for the same "out-of-state dump." We believe that the discriminatory purpose behind the initiative infected the referendum as well. Second, the legislative history of the referred measure is brimming with protectionist rhetoric. The state-sponsored pamphlet that accompanied the referendum contained a "con" statement that exhorted voters to vote against the "out-of-state dump" because "South Dakota is not the nation's dumping grounds," and "[a] 'NO' vote will prevent Lonetree from operating, and keep its imported garbage out of South Dakota." This is ample evidence of a discriminatory purpose to trigger strict scrutiny.
In addition to this direct evidence of a discriminatory purpose, there is substantial indirect evidence that the referendum was motivated by a discriminatory purpose. In Hunt, the Supreme Court found "it somewhat suspect" that the means used to achieve the state's "ostensible ... purpose" were relatively ineffective. Hunt, 432 U.S. at 352, 97 S.Ct. at 2446. Likewise, South Dakota has employed a highly ineffective means to pursue its ostensible purpose of environmental protection. After the initiative passed, a large-scale MSWD facility in South Dakota was required to obtain two things: an administrative permit and legislative authorization. South Dakota argues that large MSWD facilities generally pose a greater risk to the environment than do smaller facilities. We will assume for the sake of our decision that this is true. However, although the general difference in risk between larger and smaller facilities justifies a general requirement of legislative approval for large MSWD facilities, a general difference in risk, without more, is insufficient to support a particular denial of legislative approval. South Dakota must demonstrate not only that there are legitimate interests justifying the general requirement of dual approval, but it must also show that this particular review furthered those goals. Although SDDS III establishes that requiring both administrative and legislative approval for large facilities is permissible because the difference in risk between large and small facilities is a legitimate state interest, South Dakota has completely failed to demonstrate that the referendum that denied legislative approval for the Lonetree facility in any way furthered the state's legitimate concerns with safety and environmental protection.
South Dakota's most significant environmental protection device is the administrative permitting process for SWD facilities. Anyone who sites, develops or operates a SWD facility in South Dakota must obtain a permit from the DWNR. S.D.Codified Laws Sec. 34A-6-1.4 (1992). SDDS sought a permit for the Lonetree facility from the DWNR, and when the permit was contested, the BME held hearings to determine whether the Lonetree facility was environmentally safe and in the public interest. The permit was granted, appealed, remanded, reissued, reappealed, renewed, and ultimately voided. The fact that SDDS's permit for the Lonetree facility was so carefully scrutinized indicates that the administrative permitting process is a relatively effective means of environmental protection. In fact, South Dakota admits that the Lonetree facility is safe and in the public interest if operated in accordance with the DWNR permit conditions. Appellant's App. at 165. Thus, the benefit of the added requirement of legislative approval is not that the legislature provides the sole means by which South Dakota protects its environment from potentially unsafe SWD facilities. Rather, the legislative approval provides a second opportunity to review the proposed facility. Thus, the dual process provides an incremental benefit over the administrative process alone to the extent that the legislature is able to detect unsafe facilities that are not detected by the DWNR.
Because the benefit of legislative review is that it screens out unsafe large facilities that survived the administrative review process, the benefit of each legislative review is directly proportional to the amount of scrutiny of the environmental effects of the proposed facility that occurs in that review.9 The challenged referendum cannot be said to have provided any benefits because the body that disapproved the Lonetree facility (i.e., the South Dakota electorate) was provided with: (1) no standards or information to use to evaluate the benefits and risks of the Lonetree facility; and (2) information that leads to an unreliable result. South Dakota has admitted that there were no standards to guide the electorate. Appellant's App. at 166. Indeed, in SDDS III, Judge Zinter noted that the referral was a "standardless review by the electorate." Appellant's App. at 207 n. 9. The voters simply voted yes or no without any criteria and with severely limited information to guide them in evaluating the effects of the Lonetree facility. Thus, because the voters were not provided with any meaningful criteria, the defeat of the referred measure cannot be seen as improving environmental protection.
Additionally, voters were bombarded with protectionist propaganda that renders the result of the referendum unreliable as an environmental review. The legislative history of the referred measure consists largely of the state-sponsored explanatory pamphlet that contains an official explanation and arguments pro and con. Since the referred measure was defeated, the "con" statement is the most important. See Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 680, 101 S.Ct. 1309, 1321, 67 L.Ed.2d 580 (1981) (Justices Brennan and Marshall, concurring in judgment) (noting that dispositive issue is lawmakers' assessment of benefits and burdens). The con statement mentions general findings by the EPA that all landfills eventually degenerate, and also mentions recycling and the potential for hazardous waste dumping. However, no connection is made between these vague and general statements and the Lonetree facility. Moreover, the few specific environmental concerns that are mentioned in the middle four paragraphs are sandwiched between five paragraphs containing pleas to reject "imported garbage" and the "out-of-state dump." This protectionist concern clearly emerges as the dominant reason to reject the referred measure. The opposition begins and ends its presentation with a plea to keep South Dakota from becoming the nation's dumping grounds. Such propaganda does nothing to enhance any meaningful review of the environmental impact; it merely allows protectionism to run rampant.
South Dakota purports to seek a second review of large-scale SWD facilities that pose increased environmental risks in order to protect its natural resources, but this particular review consisted of a referendum steeped in inflammatory propaganda and does virtually nothing to further this purported goal. This indirect evidence strengthens the conclusion that the denial of approval had a discriminatory purpose, and confirms our decision that the referendum must receive strict scrutiny.
2. Does the referendum have a discriminatory effect?
Alternatively, even if South Dakota had not openly declared a discriminatory purpose, the referendum is discriminatory in its effect, and this type of discrimination will also trigger strict scrutiny.10 Hughes, 441 U.S. at 336, 99 S.Ct. at 1736; Hunt, 432 U.S. at 352-53, 97 S.Ct. at 2446-47. Hunt applied strict scrutiny to a facially neutral statute in a situation that is analogous to the referral of S.B. 169. In Hunt, North Carolina banned the placement of any grading (other than USDA grading) on closed shipping containers of apples. This measure affected only Washington state apples (which bore Washington state grades). Thus, in Hunt, out-of-staters were singled out to bear 100% of the cost of the measure. The structure of the "garbage market" in South Dakota is such that the referendum has a discriminatory effect. South Dakota generates 600,000 to 700,000 tons of MSW each year. In addition to this in-state waste, three facilities accept out-of-state waste (they accepted 60,000 tons in 1992). As a result of the low rate of domestic waste generation and the costs of regulation, the existing disposal facilities in South Dakota are fairly small; the largest facility disposes of 125,000 tons per year. New facilities must be large scale in order to recover the costs imposed by environmental regulations. The Lonetree facility was designed to accept 1.5 million tons of MSW per year. According to the literature accompanying the referendum, 95%11 of this waste would originate outside South Dakota.
Hunt is analogous to this appeal because both involve a facially neutral measure that exports costs to out-of-staters.12 Hunt was a case where North Carolina sought to eliminate Washington's competitive advantages, so that North Carolina farmers could usurp part of the North Carolina apple market that belonged to Washington growers. Here South Dakota is attempting to exclude out-of-state trash that has a "negative" value, thus forcing other states to bear the cost of disposing of the trash when the market would otherwise dispose of the trash in South Dakota. Any distinction between these two species of protectionism is of no consequence. Waste Sys. Corp., 985 F.2d at 1386. Indeed, Judge Zinter noted an analogy between the initiative and Hunt in SDDS III. Appellant's App. at 182. Moreover, we note that in SDDS III, Judge Zinter specifically found that the initiative had a discriminatory effect. Slip op. at 14-15. Just as the purpose of the initiative and the referendum are intimately connected, so are the effects. Thus, because the garbage market of South Dakota is such that the referendum so predominantly affects only out-of-staters, we believe that the referendum of S.B. 169 is discriminatory in effect, and must receive strict scrutiny.
Once strict scrutiny is triggered, "the burden falls on the State to justify [the measure] both in terms of the local benefits flowing from the statute and the unavailability of a nondiscriminatory alternative adequate to preserve the local interests at stake." Hunt, 432 U.S. at 353, 97 S.Ct. at 2446-47; Chemical Waste Mgmt., --- U.S. at ----, 112 S.Ct. at 2014. We find that the referendum fails both prongs of this test because the record demonstrates that (1) the denial of legislative approval by the referendum does not further the legitimate goal of environmental safety, and therefore provides no local benefits; and (2) a nondiscriminatory alternative is available because legislative review of the Lonetree facility may be obtained without a referendum in which the predominant argument is the imported nature of the garbage at Lonetree.
In order to survive strict scrutiny under the commerce clause, South Dakota first must demonstrate that the referendum on the Lonetree facility provided some local benefits. South Dakota identifies environmental protection as the sought-after benefit. Although the goal of environmental protection is a permissible one, as we have already discussed, the referendum on S.B. 169 simply does nothing to advance this goal. Because there is already one procedure in place to protect the environment, and this second review provides only an incremental amount of additional protection, this referendum in which voters were distracted by distinctly non-environmental concerns provided no local benefit. South Dakota has not carried its burden to prove that this referendum resulted in increased environmental protection.
To survive strict scrutiny, South Dakota must also demonstrate the lack of a nondiscriminatory alternative to this referendum under the dual permitting scheme. Things such as a new administrative agency or more stringent regulations are possible alternatives, but these were rejected as alternatives to the initiative by the South Dakota state court in SDDS III. However, SDDS III addressed only the initiative. SDDS V, 994 F.2d at 493-94. We must look at alternative ways in which this particular decision regarding legislative approval might have been made. When the focus is changed from the broad focus of SDDS III to a narrower focus on this particular decision, nondiscriminatory alternatives emerge. The most obvious alternative is a legislative discussion in which interstate trade issues are not the dominant issues discussed. This alternative may be easily achieved through a fuller discussion of the environmental issues, so that the record reflects that voters or legislators might reasonably have considered the environmental issues. Such an alternative, which merely modifies the contents of the legislative discussion or the voter pamphlet accompanying a referred measure, would not be any more costly than the current procedure. The alternative would more fully achieve the desired effect of protecting the environment by forcing consideration of the environmental issues without the distortions of reasoning that result from the emphasis on protectionist propaganda.
Thus, because we hold that the referendum provided no local benefit, and that a nondiscriminatory alternative was available, we conclude that the referendum fails the required strict scrutiny. We therefore hold that South Dakota's referendum of S.B. 169 violates the dormant aspects of the commerce clause of the United States Constitution.
We hold that South Dakota's referral of S.B. 169 violated the dormant commerce clause. Although facially neutral, the referendum had a discriminatory purpose and a sufficiently discriminatory effect to trigger strict scrutiny. Because we find that the referendum does not appreciably advance any legitimate local interest, and that nondiscriminatory alternatives are available to advance South Dakota's legitimate concerns, the referendum does not survive strict scrutiny. Accordingly, the judgment of the district court is reversed and we remand to the district court with instructions to enter judgment in favor of SDDS.

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CISSNA v. STATE OF TENN.
[246 U.S. 289, 290] Mr. Caruthers Ewing, of Memphis, Tenn., for plaintiff in error.
Messrs. John P. Bullington, of Memphis, Tenn., and Frank M. Thompson, of Chattanooga, Tenn., for the State of Tennessee.
The state of Tennessee sued Cissna and others in a court of equity of that state, setting up ownership by the state of that portion of the dry lands formerly a part of the bed of the Mississippi river which lay between low-water mark on the Tennessee side and the middle of the river as it flowed prior to the change in the channel made in the year 1876 by the opening of the Centennial Cut-Off; alleging that the defendant Cissna claiming ownership, but having none, and the Muncie Pulp Company acting under him, were cutting and removing timber from a particularly described portion of those lands; and praying for an injunction against further acts of trespass and against the removal of the timber cut, and a recovery of the value of the timber. Cissna pleaded in abatement that the land described in the bill, except a small portion to [246 U.S. 289, 291] which he disclaimed title, was in the state of Arkansas and not in the state of Tennessee, and hence that the court had no jurisdiction over the controversy. His codefendant having raised a similar issue, the cause came on to be heard before a chancellor, who sustained the pleas to the jurisdiction and ordered that the bill be dismissed. Upon appeal, the Supreme Court of Tennessee, disregarding the form of the pleadings, treated the action as brought to recover the land as well as to stay waste in cutting and removing timber; and deeming that the question of jurisdiction which depended upon the location of the boundary line between Tennessee and Arkansas and the question of the right of the former state to recover the land were practically the same question, considered them together. The facts bearing upon the location of the boundary, recited in the opinion of the court, were substantially the same as those upon which this court passed in the boundary suit of Arkansas v. Tennessee, 246 U.S. 158 , 38 Sup. Ct. 301, 62 L. Ed. --, No. 4, Original, recently decided. The state court held, contrary to the rule laid down by this court in Iowa v. Illinois, 147 U.S. 1 , 13 Sup. Ct. 239, and still adhered to, that the boundary line did not follow the middle of the channel of commerce, but was fixed and defined as 'a line along the middle of the main channel of the river equidistant from the visible and permanent banks confining its waters.' The court found that the change made in the channel in the year 1876 at Centennial Cut-Off was an avulsion, and declared that 'the limits of Tennessee and Arkansas, their respective rights in the abandoned channel, and those of individuals who owned lands lying and abutting upon it, all remained as they were before the formation of the new channel.' But, not carrying this into effect, it concluded that at the place where the lands sued for are situate the correct boundary between the states was midway between the banks of the river as they existed in the year 1823 as shown by the Humphreys Map, notwithstanding [246 U.S. 289, 292] the fact that between that date and the time of the cut-off the river had gradually encroached upon the Tennessee shore, to a large extent in the aggregate; the court holding that the effect of the avulsion was to press back the line between the two states so as to restore to Tennessee what it held before the erosions upon its banks. And since it appeared that complainant had sued only for the land lying on the hither side of the middle of the channel as it was in 1876, and therefore could not recover to the middle of the channel of 1823, the court, on remanding the cause for a hearing upon the answers of defendants, ordered that the bill might be amended so as to make the proper averments to enable the state to recover under the principles laid down n its opinion. State v. Pulp Co., 119 Tenn. 47, 104 S. W. 437.
The cause was remanded, the pleadings were amended, and the suit remained pending in the trial court, when the state of Arkansas filed its bill in this court against the state of Tennessee to settle the boundary line between these states along that part of the former bed of the Mississippi river which was left dry as a result of the avulsion of 1876, including the portion in dispute in the present case; this being the same action above mentioned as No. 4, Original. The pendency of that action was brought by Cissna to the attention of the trial court in the present case, and made the basis of an application for a stay of proceedings until the boundary line between the states should have been fixed and located by this court. This application was overruled and the cause proceeded, with the result that the chancellor made a decree against Cissna on the merits in conformity with the opinion of the Supreme Court, subject however to an accounting with respect to the amount and value of the timber cut and removed during the pendency of the suit. Upon appeal to the Supreme Court this decree was affirmed, with modifications not necessary to be mentioned, that [246 U.S. 289, 293] court ordered that a writ of possession be issued to place the complainant state in possession of the tract of land in controversy, and retained the case for an accounting respecting the value of the timber. By way or objection to the entry of a decree pursuant to the accounting that followed, Cissna again called the attention of the court to the boundary suit pending in this court, and prayed for a stay of proceedings in the suit against him upon the ground that any determination by that court not in accordance with the determination of this court would be void. This objection was overruled, a final judgment or decree went against him for upwards of $110,000, and the case was brought here by writ of error under section 237, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), before the amendment of September 6, 1916 (39 Stat. 726, c. 448, 2 [Comp. St. 1916, 1214]).
It was first argued at the October term, 1916, when, for reasons stated in 242 U.S. 195 , 37 Sup. Ct. 108, it was restored to the docket, and thereafter was heard at the same time with the suit of Arkansas v. Tennessee.
Our jurisdiction is invoked upon the ground that the decision of the state court of last resort was adverse to the federal rights of plaintiff in error in two respects: (1) In overruling his prayer for a stay of proceedings to await the determination of the suit pending in this court to settle the boundary line between the states; and (2) in coming to an erroneous conclusion upon the merits of the question of the proper location of that boundary. We need not pass upon the first point, since we are of the opinion that we have jurisdiction on the second ground, and that the judgment under review must be reverse.
The record does not show that Cissna specially set up in the state courts any contention that the decision of the merits turned upon questions of federal law, except as this may appear by inference from the nature of the grounds upon which the decision was rested. But if the Supreme Court of the state treated federal questions as [246 U.S. 289, 294] necessarily involved and decided them adversely to plaintiff in error, and could not otherwise have reached the result that it did reach, it becomes immaterial to consider how they were raised. Miedreich v. Lauenstein , 232 U.S. 236, 243 , 34 S. Sup. Ct. 309; North Carolina R. R. Co. v. Zachary, 232 U.S. 248, 257 , 34 S. Sup. Ct. 305, Ann. Cas. 1914C, 159; Mallinckrodt Works v. St. Louis, 238 U.S. 41, 49 , 35 S. Sup. Ct. 671.
The opinion of that court, State v. Pulp Co., 119 Tenn. 47, 104 S. W. 437, shows that it treated the question of jurisdiction presented by the pleas in abatement and the question of the title of the state of Tennessee to the lands in co troversy as both dependent upon the location of the boundary, because the state claimed the lands as a sovereign under the same treaties and acts of Congress by which its western boundary was defined and established; and the court held that the location of this boundary depended upon the interpretation of the Treaty of 1783 between the United States and Great Britain (8 Stat. 80, 82, art. II), the act of cession from North Carolina to the United States made in 1790 (1 Stat. 106, c. 6), the Treaty of 1795 between the United States and Spain (8 Stat. 138, 140, art. IV), the Act of Congress of June 1, 1796, admitting Tennessee into the Union as a State (1 Stat. 491, c. 47), the Louisiana Purchase Treaty of 1803 (8 Stat. 200), and the Act of Congress of June 15, 1836 (5 Stat. 50, c. 100), admitting Arkansas as a State. Upon a consideration of the Treaty of 1783, which employed the expression 'middle of the said river Mississippi' to define the western boundary of the United States, and interpreting this in view of the use of the same expression in the previous Treaty of 1763 between Great Britain, France, and Spain (3 Jenkinson's Treaties, 177), and declaring that the treaty with Spain, which provided that the western boundary of the United States should be 'in the middle of the channel or bed of the river,' was not only an interpretation of the former treaties, but superseded them, and construing the phrase 'middle of the main channel,' employed in the act ad- [246 U.S. 289, 295] mitting Arkansas, as introducing no new meaning, the court held that the expression 'middle of the river,' by true interpretation, meant not the middle of the channel of commerce, but a line midway between the visible and fixed banks of the stream, and that any general rule of international law to the contrary must yield to the intent which the court deemed to be expressed in the treaties and acts of Congress referred to.
Since the decision adverse to plaintiff in error turned so clearly and essentially upon questions of federal law, we have jurisdiction to review the resulting judgment. And as the conclusion reached by the state court upon the question of interpretation is directly opposed to that reached by us in Arkansas v. Tennessee upon a consideration of the same pertinent treaties and acts of Congress, we need only refer to our opinion in that case for a statement of the grounds upon which we hold that the state court erred.
Two additional errors entered into the judgment, so intimately connected with the question of interpretation as to be inseparable from it.
The first of these was a decision to the effect that the question of boundary had been settled by the duly constituted authorities of the two states, by judicial decisions, legislation, long acquiescence, exercise of jurisdiction, and other acts amounting to an agreement or convention defining the limit between the states to be the line midway between the visible banks of the river. Obviously, whether two states of the Union, either by long acquiescence in a practical location of their common boundary, or by agreement otherwise evidenced, have definitely fixed or changed the limits of their jurisdiction as laid down by the authority of the general government in treaty or statute, is in its nature a federal question. We have stated briefly, in Arkansas v. Tennessee, the reasons why we are unable to concur with the state court in its decision upon this point. [246 U.S. 289, 296] The remaining error arose in the determination of the consequences of the avulsion of 1876. It is a part of the law of interstate boundaries, that where a running stream forms the boundary, if the bed and channel are changed by the natural and gradual processes of erosion and accretion, the boundary follows the varying course of the stream; while if the stream suddenly leaves its old bed and forms a new one, the resulting change of channel works no change of boundary, which remains in the middle of the old channel although no water be flowing in it. Arkansas v. Tennesse , supra. A correct application of this rule to changes in the Mississippi is necessary in order that proper effect may be given to the treaties and acts of Congress by which that river was established as an interstate boundary, and hence this is a question of federal law. The state court acknowledged the rule in theory, but departed from it in fact. Starting with the Humphreys map as showing the location of the banks of the river as they were in 1823, the date to which the earliest records related, and finding from the evidence that between that date and the time of the avulsion there has been gradual erosions from the Tennessee bank at the place where the land in controversy is situate, to an extent sufficient in the aggregate to increase the width of the river from a little less than a mile to between 1 1/4 and 1 1/2 miles, the court held that the subsequent emergence of the bed of the river at this place, consequent upon the avulsion of 1876, had the effect of pressing back the line between the states to the middle of the old channel as it ran in 1823, so as to restore to Tennessee what it held before the erosions from its banks. This result was reached by grafting upon the acknowledged ruel as to boundary streams an exception deduced from the rule of the common law that lands once swallowed by the sea, if afterwards exposed by its recession, are restored to the former owner if they can be identified. As we have pointed out in [246 U.S. 289, 297] Arkansas v. Tennessee, it is a misapplication of this doctrine to treat it as forming an exception to the established rule respecting the effect of erosion, accretion, and avulsion upon the course of a boundary stream.
We conclude, therefore, that the court erred in awarding to the state of Tennessee a recovery of any land or damages for cutting and removing timber from any land lying without the limits of the state as defined in our opinion in Arkansas v. Tennessee, supra, being a line drawn along the middle of the main channel of navigation of the Mississippi river (as distinguished from a line midway between the visible and fixed banks of the stream) as it was at the time when the current ceased to flow therein as a result of the avulsion of 1876, and without regard to changes in the banks or channel that had occurred through the natural and gradual processes of erosion and accretion prior to the avulsion.

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Меморандум по делу "Рогожников против России"
Additional observation of the Applicant on the application No.
the Applicant is stating the following.
connection with non-execution of the national judgment in his favor.
6 S: 1 of the Convention and of Article 1 of Protocol N 1.
were taken by the Russian authorities.
ECHR found the violation of Art. 6 and Art. 1 of Protocol 1.
possibility  to get execution of the nation judgment in his favor.
24.02.2005  г.,  Poznarikhina  v. Russia 24.02.2005 г., Russatommet v.
Russia  14.06.2005,  Teteriny  v.  Russia 30.06.2005 г., Denisenkov v.
25.10.2005,  Kukalo  v.  Russia  3.11.2005,  Коrchagina  and others v.
г., and many other judgments against Russia on this issue.
По выгодной цене wabco для всех желающих. :: На нашем сайте форсунки дизельные для всех желающих.

matches:
Art. 6
Art. 1
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v.
v.
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v.


The high court accepted sweetener maker TC Heartland LLC’s petition to consider whether the proper venue for an infringement suit should be only where an accused infringer is either incorporated or has a place of business.
TC Heartland had argued to the U.S. Court of Appeals for the Federal Circuit that the patent venue statute, 28 U.S.C.A. § 1400(b), dictates this result, but a three-judge panel rejected the company’s argument. In re TC Heartland LLC, 821 F.3d 1338 (Fed. Cir. 2016).
Kraft Foods Group Brands LLC is based in Northfield, Illinois, and incorporated in Delaware. TC Heartland is headquartered in Carmel, Indiana, and operates under Indiana laws.
The Federal Circuit affirmed Kraft’s choice to sue TC Heartland in the U.S. District Court for the District of Delaware, saying changes made in 1988 to the general venue statute, 28 U.S.C.A. § 1391, allowed the food giant to file its suit in that venue.
TC Heartland’s objection to Kraft’s venue choice reflects concerns that accused infringers are sometimes disadvantaged by where patent holders file their suits.
“Venue has become a hot topic for patent cases over the last few years, with the concentration of patent cases being filed year after year in the Eastern District of Texas,” Dykema intellectual property attorney Victor Johnson said.
Johnson, who works in Texas, noted that nearly 45 percent of all U.S. patent cases filed in 2015 were in the U.S. District Court for the Eastern District of Texas.
“If the court reverses the Federal Circuit … such a change could fundamentally change where patent cases are heard and even potentially end the Eastern District of Texas’ dominance over the cases filed in that venue,” Johnson said.
Byron L. Pickard, director of Sterne, Kessler, Goldstein & Fox’s litigation group in Washington, agreed that the high court’s decision could end the Eastern District of Texas’ role as a major patent venue.
“This case presents the court with an opportunity to severely curtail, if not entirely eliminate, a plaintiff’s ability to pick [the] venue in a patent infringement suit by restricting patent suits to the defendant’s place of incorporation,” Pickard said.
Tom Duston, an IP partner at Marshall, Gerstein & Borun in Chicago, made a prediction about Delaware, a state where a disproportionately large number of U.S. companies are incorporated.
Before the high court accepted TC Heartland’s appeal, a group of internet companies, retailers and associations supported the petition, criticizing the Federal Circuit’s decision and a system that they said permits “rampant forum-shopping.” TC Heartland LLC v. Kraft Foods Grp. Brands LLC, No. 16-341, amici brief filed, 2016 WL 5543364 (U.S. Sept. 27, 2016).
“If plaintiffs can sue alleged corporate infringers in any district in the country, it only stands to reason that they will choose to do so in the handful of districts where they are most likely to prevail or to extract a settlement,” the amici brief said.
A group of 56 law professors filed another friend-of-the-court brief in October that echoed the internet companies’ views. The professors said allowing patent holders to file suit where any alleged infringing product is sold enables “patent trolls.” TC Heartland LLC v. Kraft Foods Grp. Brands LLC, No. 16-341, amici brief filed, 2016 WL 6124403 (U.S. Oct. 17, 2016).
These so-called patent trolls have chosen the Eastern District of Texas as a “clear forum of choice,” the brief says.
“Whether intentionally or not, judges in the Eastern District of Texas have adopted rules and practices relating to case assignment, joinder, discovery, transfer and summary judgment that attract patent plaintiffs to their district,” the brief said.
Kraft chose the Delaware federal court for its 2014 suit accusing TC Heartland of infringing U.S. Patent Nos. 8,293,299; 8,511,472; and 8,603,557, each covering containers and methods for dispensing concentrated liquids. Kraft Foods Grp. Brands LLC v. TC Heartland, No. 14-cv-28, complaint filed, 2014 WL 189801 (D. Del. Jan. 14, 2014).
TC Heartland objected, saying it only shipped products to Delaware for two national accounts — it did not enter into supply contracts in or solicit sales from the state — and that the connection was insufficient to support the venue choice.
The zero-calorie sweetener maker asked the court to dismiss for lack of personal jurisdiction or transfer the dispute to the Southern District of Indiana.
U.S. Magistrate Judge Christopher J. Burke of the District of Delaware recommended denying the motion. Kraft Foods Grp. Brands LLC v. TC Heartland, No. 14-cv-28, 2015 WL 4778828 (D. Del. Aug. 13, 2015).
Judge Burke also ruled out the venue-change request, saying a patent infringement action can be brought in any forum that has personal jurisdiction over the defendant.
U.S. District Judge Leonard P. Stark agreed with the recommendations and denied the dismissal motion and transfer request. Kraft Foods Grp. Brands LLC v. TC Heartland, No. 14-28, 2015 WL 5613160 (D. Del. Sept. 24, 2015).
TC Heartland sought immediate relief from the Federal Circuit.
The Federal Circuit had said in VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990), that 1988 amendments to the general venue statute, 28 U.S.C.A. § 1391, impacted venue choices for patent holders.
As a result of those 1988 changes, a patent infringement action has been allowed in any forum that has personal jurisdiction over the defendant.
TC Heartland did not dispute this, but argued that the 2011 Federal Courts Jurisdiction and Venue Clarification Act, Pub. L. 112-63, §202, 125 Stat. 758, which amended Section 1391(c) of the same statute, overturned VE Holding.
The company said Congress intended for the 2011 amendments to include federal common law, and this reverted venue rules to their pre-1988 status, when venue choices were more restrictive.
“We find this argument to be utterly without merit or logic,” the three-judge Federal Circuit panel said.
TC Heartland could neither show that the 2011 act was intended to embrace common law nor that the common law supports its position, the panel said, denying mandamus relief.
TC Heartland filed its certiorari petition in September, asking the high court to find that VE Holding is no longer good law. TC Heartland LLC v. Kraft Foods Grp. Brands LLC, No. 16-341, petition for cert. filed, 2016 WL 4983136 (U.S. Sept. 12, 2016).
TC Heartland listed numerous reasons for granting the petition, arguing that forum-shopping has been undermining public patent policy.
After TC Heartland filed its petition, the Electronic Frontier Foundation and Public Knowledge filed an amici brief noting the “practical effects” of current patent venue law. TC Heartland LLC v. Kraft Foods Grp. Brands LLC, No. 16-341, amici brief filed, 2016 WL 5957541 (U.S. Oct. 12, 2016).
That brief said one judge in the Eastern District of Texas heard almost a fourth of all U.S. patent cases from 2014 through 2016, despite the fact that the district has a small population and no major technology industry.
“It is clear that parties are engaged in forum-shopping. It is also clear that the Eastern District of Texas is not an appropriate forum for many of those that are sued for patent infringement,” the brief said.
Kraft filed its opposition brief in November, supporting the Federal Circuit’s interpretations of the 1988 venue statute and the 2011 amendments. TC Heartland LLC v. Kraft Foods Grp. Brands LLC, No. 16-341, opposition brief filed, 2016 WL 6873253 (U.S. Nov. 16, 2016).
The brief recognized the prevalence of Texas patent cases but said current venue laws give patent holders choices.
The brief also recognized that some have urged Congress to introduce new legislation to prevent forum-shopping.
“However urgent the issue of patent venue reform may be, it is an issue that must be left to Congress,” Kraft said.
The high court should hear arguments in the case in 2017.
TC Heartland LLC v. Kraft Foods Group Brands LLC, No. 16-341, cert. granted, 2016 WL 4944616 (U.S. Dec. 14, 2016).


DOWNTOWN LOS ANGELES PROPERTY OWNERS ASSOCIATION, Respondent.
Petitioner filed this case to secure Defendant/Respondent’s compliance with three Public Records Act requests for records. In response to three of the four requested items, the BID indicated–at times vaguely–that it withheld responsive records under Cal. Gov. Code § 6255(a), citing to the so-called “deliberative process privilege.” (Declaration of MK filed herewith ¶ 3 (hereafter “MK Decl.”).) Each time Respondent claimed exemptions, Petitioner requested additional information as to how specifically the cited exemption applied, but to no avail. (MK Decl. ¶ 4.) Further, after filing suit, Petitioner requested that Respondent provide a list of withheld and/or redacted documents; Respondent declined, and the parties met and conferred to no avail. (Declaration of Abenicio Cisneros filed herewith ¶¶ 2-5 (hereafter “Cisneros Decl.”.) The requests are discussed in detail below.
Request #1 – Communication with the South Park Business Improvement District and the Downtown Los Angeles Neighborhood Council.
Request #2 – Communications with Urban Place Consulting (UPC).
Request #3 – Board Member Linda Becker’s emails.
Notably, the “deliberative process” privilege claimed by respondent is far from absolute. “’Not every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process spring into existence. The burden is on the [one claiming the privilege to establish the conditions for creation of the privilege.’” Citizens for Open Government v. City of Lodi (2012) 205 Cal. App. 4th 296, 306-07 [rejecting assertion that deliberative process privilege applied]. In light of the conditional nature of the “deliberative process privilege,” the need for a list of withheld documents showing who communicated about what, and when, is magnified in order to shed light on whether any documents can be withheld on that basis.
Petitioner requested a list of withheld and redacted documents after filing suit; Respondent declined to provide such a list.
In order that Petitioner may have fair opportunity to litigate this matter, and that the court may be sufficiently informed to adjudicate it, the court should order Respondent to prepare a list of withheld and redacted documents. Such a list is known in federal open records law as a “Vaughn index.” Under federal precedent, the Vaughn index is a log which (1) identifies each document withheld; (2) states the statutory exemption claimed; and (3) explains how disclosure would damage the interests protected by the claimed exemption. See Citizens Comm’n on Human Rights v. FDA, 45 F.3d 1325, 1326 n.1 (9th Cir. 1995). The description of the withheld material should be sufficiently specific to permit a reasoned judgment as to whether the material is actually exempt under the law. See Founding Church of Scientology v. Bell, 603 F. 2d 945, 949 (D. C. Cir. 1979).
The California Court of Appeal has held that preparation of a list of withheld and redacted documents is “consistent with the language and spirit of the Public Records Act.” State Bd. of Equalization v. Superior Court, supra, 10 Cal.App.4th at p. 1193. The Court of Appeal has further stated that, “[b]ecause the agency has full knowledge of the contents of the withheld records and the requester has only the agency’s affidavits and descriptions of the documents, its affidavits must be specific enough to give the requester a meaningful opportunity to contest the withholdings of the documents and the court to determine whether the exemption applies.” ACLU of N. Cal. v. Superior Court, supra, 202 Cal. App. 4th at p. 83.
Here, Respondent has cited alleged exemptions to withhold an unknown number of records. Petitioner has made repeated attempts to gain clarity as to how many records Respondent is withholding and as to how the cited exemptions might apply to the withheld records. Despite those attempts, Respondent refuses to voluntarily provide the information which Petitioner requires in order to have a meaningful opportunity to contest the withholdings. As Respondent has refused to provide the required information voluntarily in response to Petitioner’s requests, it is appropriate that the court should order Respondent to do so. Otherwise, the parties would be briefing, and the court would be deciding, this case in the dark.
For the foregoing reasons, Petitioner respectfully requests that the Court GRANT this motion. The Court should order Defendant/Respondent to produce a list of withheld and redacted documents which conforms with the requirements of a Vaughn index within fourteen (14) days.
Image of Carol Humiston is ©2018 MichaelKohlhaas.Org and is kinda sorta something de this one over here.
When a law says that someone “shall” do something, it’s not optional. However, in practice, this section of the CPRA does seem to be optional in the sense that no agencies will actually tell anyone what their justifications are and for whatever reason courts won’t enforce this right other than by ordering agencies to explain, which they seem not always to do. In other words it’s a requirement but there are no consequences outside a courtroom for not complying. Sadly, this is true of any number of requirements imposed by the CPRA.
Such an undertaking is called a privilege log or sometimes a Vaughn Index by analogy with a Federal procedure to do with the Freedom of Information Act.
Along with, of course, self-proclaimed Hollywood superlawyer Jeffrey Charles Briggs.


Plaintiff Lynn Solack appeals from Defendant Commissioner of Social Security's decision denying her disability insurance benefits under the Social Security Act. See 42 U.S.C. § 405(g). Magistrate Judge David R. Grand issued a Report and Recommendation (“R&R”) advising the court to deny Defendant's motion for summary judgment, grant in part Plaintiff's motion for summary judgment to the extent it seeks remand, deny in part the Plaintiff's motion for summary judgment to the extent it seeks an award of benefits, and remand the case to the Administrative Law Judge (“ALJ”) for further proceedings consistent with the R&R. (Dkt. #12.) Defendant filed an objection. (Dkt. #14.) The court has determined that a hearing is unnecessary. E.D. Mich. L.R. 7.1(f)(2). For the reasons stated below and in the well-reasoned R&R, the court will overrule Defendant's objection, adopt the R&R, and remand for further proceedings.
Where a party files timely objections to an R&R, the court is required to “make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980); Gant v. Genco I, Inc., 274 F. App'x 429, 431- 32 (6th Cir. 2008). The court then re-examines all evidence relevant to the objected-to portion of the R&R and determines whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately, ” United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981), enabling the court “to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute, ” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.'” Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011) (quoting Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991)).
The court recounts only those portions of this case that are relevant to its opinion.
According to the Commissioner's regulations, “disability” for the purpose of disability insurance benefits is determined through the application of a five-step sequential analysis. Step Three of that analysis asks, in part, whether the claimant has a severe impairment that “meets a listed impairment” in the Commissioner's regulations. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001).
In February 2014, a state agency medical consultant opined that Plaintiff did not meet or medically equal Listing 1.02 in the Listing of Impairments. The ALJ, apparently relying on this opinion, found that Plaintiff did not meet or medically equal the specific criteria of any of the listed impairments.
Defendant raises one objection Judge Grand's R&R: that it ignores the ALJ's discretion to determine whether an updated opinion was necessary and disregards the ALJ's credibility findings. The court disagrees and will overrule the objection.
An ALJ “must obtain an updated medical opinion from a medical expert” when “additional medical evidence is received that in the opinion of the administrative law judge . . . may change the State agency medical . . . consultant's finding that the impairment(s) is not equivalent in severity to any impairment in the Listing of Impairments.” SSR 96-6p; Courter v. Comm'r of Soc. Sec., 479 F. App'x 713, 723 (6th Cir. 2012). The Commissioner has discretion to decide whether an updated decision is warranted. Id. Thus, where a Commissioner explicitly or implicitly decides “that the records would not change the opinions of the experts, ” no updated medical opinion is necessary. Id.


1. Where interest on tax refunds is allowed by statute, a suit for the interest after refund of a tax is maintainable in the Court of Claims. Stewart v. Barnes, 153 U. S. 456, distinguished. P. 270 U. S. 168.
2. Under § 1324(a) of the Revenue Act of November 23, 1921, which provides that, upon the allowance of a claim for the refund of internal revenue taxes paid, interest shall be allowed and paid upon the total amount of such refund "to the date of such allowance," the date to which the interest runs is neither the date of actual repayment nor the date on which the Commissioner of Internal Revenue first decides that there has been an overassessment and refers the matter to the Collector for examination and report of the amounts to be refunded, but the date on which the Commissioner approves the amount thus ascertained for payment. P. 270 U. S. 169.
3. The above section dates the interest (a) from the time when the tax was paid, if it was paid "under a specific protest setting forth in detail the basis of and reasons for such protest," but (b) from six months after the date of filing claim for refund if there was no protest or payment pursuant to additional assessment. Held, that, in order to date the interest from time of payment of tax, the protest under which it was paid must set forth a specific and valid reason for a refund. P. 270 U. S. 171.
4. Where a tax payment was less than the amount illegally assessed, due to deduction of the discount allowed on anticipatory payments by § 1009 of the Revenue Act of October 3, 1917, the amount refundable, with interest, was the amount actually paid, not including the discount. P. 270 U. S. 173.
Appeal from a judgment of the Court of Claims allowing, in part, claims for recovery of interest on the amounts of refunded tax payments.
This is an appeal from a judgment of the Court of Claims under § 242 of the Judicial Code. The judgment was entered May 19, 1924, and the appeal was allowed July 3, 1924. The judgment dismissed the petition of the plaintiffs upon findings of fact. The Girard Trust Company and the other appellants are trustees of the estate of Alfred F. Moore, deceased.
With this certificate was a check for $84,416.02, the amount of the refund without interest. Since filing the petition in this case, the trustees received, under date of October 5, 1923, a check for $4,318.97, interest on the refund and the credit of $21.41 from six months after the filing of the claim for refund to December 9, 1922.
"Approved by the Commissioner of Internal Revenue for transmission to the proper accounting officer for credit and refund." It was sent to the proper Collector of Internal Revenue, who reported it back to the Bureau. It was approved by the Assistant Commissioner, and the refund was finally approved by the Commissioner January 16, 1923. On February 7, 1923, the plaintiffs received by mail a certificate of overassessment dated February 6, 1923, for $107,372.36, together with a check for $112,864.53, the difference, $5,492.17, being interest on the amount refunded from the date six months after the filing of the claim to December 9, 1922.
"As soon as practicable after the return is filed, the Commissioner shall examine it. If it then appears that the correct amount of the tax is greater of less than that shown in the return, the installments shall be recomputed. If the amount already paid exceeds that which should have been paid on the basis of the installments as recomputed, the excess so paid shall be credited against the subsequent installments, and if the amount already paid exceeds the correct amount of the tax, the excess shall be credited or refunded to the taxpayer in accordance with the provisions of § 252."
"That if, upon examination of any return . . . , it appears that an amount of income, war profits, or excess profits tax has been paid in excess of that properly due, then, notwithstanding the provisions of § 3228 of the Revised Statutes, the amount of the excess shall be credited against any income, war profits, or excess profits taxes, or installment thereof, then due from the taxpayer under any other return, and any balance of such excess shall be immediately refunded to the taxpayer. . . . "
"That, upon the allowance of a claim for the refund of or credit for internal revenue taxes paid, interest shall be allowed and paid upon the total amount of such refund or credit at the rate of one-half of 1 percentum per month to the date of such allowance, as follows: (1) if such amount was paid under a specific protest setting forth in detail the basis of and reasons for such protest, from the time when such tax was paid, or (2) if such amount was not paid under protest, but pursuant to an additional assessment, from the time such additional assessment was paid, or (3) if no protest was made and the tax was not paid pursuant to an additional assessment, from six months after the date of filing of such claim for refund or credit. The term 'additional assessment,' as used in this section, means a further assessment for a tax of the same character previously paid in part."
The claims made by the trustees, appellants here, are, first, that the government erred in its construction of § 1324, by which it allowed interest, not to the dates of payments of the refunds February 20 and February 7, 1913, but only to the date when the Commissioner approved the schedule finding the amount of the overassessments and transmitted the schedule to the accounting officers December 9, 1922. The interest between December 9, 1922, down to the dates of payment amounts to $2,028.11. The question is whether the words "to the date of the allowance" mean to the date of the decision of the Commissioner that an overassessment has been made, i.e., to December 9, 1922, to the final approval of the refund by the Commissioner January 16, 1923, or to the date of payment.
under clause (1) in that section as for a payment made under a specific protest, or whether as upon a payment under clause (3) for which no protest was made. The Commissioner held that no sufficient protest had been made, and therefore allowed interest not from the time of payment as provided under clause (1), but from six months after the filing of the claim for refund under clause (3), which made a difference of $3,889.67.
The third claim of the trustees is for $767.79. This is based on the fact that, under the Revenue Act of October 3, 1917, 40 Stat. 300, 326, c. 63, § 1009, a credit on taxes to be paid in advance, calculated at the rate of 3 percent per annum upon the amount so paid from the date of payment to the date fixed by law for payment was allowed, and the amount paid was $767.79 less than the amount assessed. The claim for refund was allowed for the amount actually paid, but not for the discount. The trustees now seek to recover the discount.
The Court of Claims dismissed the petition for all these claims on the authority of Stewart v. Barnes, 153 U. S. 456. The taxpayer in that case had already received and accepted the principal of the amount improperly collected by a Collector of Internal Revenue, and this was an action for the interest. This Court held that the taxpayer could not maintain an independent action for interest for the reason that, in such cases, interest is considered as damages, does not form the basis of the action, and is only an incident to the recovery of the principal debt. We do not think that it controls this case. The payment of interest in the Stewart case was not expressly provided for in the Act. In this case, there is statutory provision for it, and it is analogous to a suit in debt or covenant in which the contract specifically provides for payment of interest on the principal debt. In such cases, the authorities all hold that the acceptance of the payment of the principal debt does not preclude a further suit for the interest unpaid.
Fake v. Eddy, 15 Wend. (N.Y.) 76; Kimball v. Williams, 36 App.D.C. 43; New York Trust Co. v. Detroit Railway Co., 251 F. 514; King v. Phillips, 95 N.C. 245; Bennett v. Federal Coal & Coke Co., 70 W.Va. 456; Robbins v. Cheek, 32 Ind. 328. And the same rule obtains where the obligation is one that, by statute, bears interest. National Bank v. Mechanic's Bank, 94 U. S. 437; Hobbs v. United States, 19 Ct.Cls. 220; New York v. United States, 31 Ct.Cls. 276; Crane v. Craig, 230 N.Y. 452; Bowen v. Minneapolis, 47 Minn. 115; Blair v. United States ex rel. Birkenstock, 6 F.2d 679.
"A claim for refund or credit is allowed within the meaning of the statute when the Commissioner approves the schedule in whole or in part, for transmission to the proper accounting officer, for credit or refund."
"To compute interest to the date of actual payment would be wholly impracticable from an administrative standpoint, and I have no doubt that this phase of the matter was considered by the Congress in providing that the interest should be allowed to the date of allowance, rather than to the date of payment of the claim."
If Congress had intended that interest should be allowed to the date of the payment, it seems to us it would have said so. Allowance, in its ordinary sense, does not mean payment, and, in the practical administration of the Treasury Department, the two things are quite different. The one is a decision by the competent authority that the payment should be made. The other is the actual payment.
The Commissioner of Internal Revenue is the final judge in the administrative branch of the government to decide that an overassessment has been made and that a refund or credit should be granted, and when he has made that decision finally, he has allowed the claim for the refund or credit of the taxes paid within the meaning of the section.
It is said that this is a remedial statute, and was intended to require the government to recoup the taxpayer unjustly dealt with by paying interest during the whole time the money was detained. That was doubtless its general purpose. But the statute is to be construed in the light of the difficulties of the government bookkeeping and accounting. To have made the interest calculable to the date of actual payment would have led to uncertainty and confusion, as the Comptroller General indicates, and it was doubtless for that reason that Congress qualified its desire to pay interest for the exact time during which the money was detained to a date which was practical from an administrative standpoint. Nor does the fact that, pending the carrying out of the direction of the Commissioner of Internal Revenue to make the refund, he might reverse himself, change the finality of his decision allowing the refund. If he does so, the date fixed as the date of the allowance under the section is changed, of course; but the mere fact that he can reverse a final allowance does not prevent its being a final allowance, any more than, when a court renders a judgment, its ability within the term to set it aside or change it affects its finality if it is not changed. We think, therefore, that the words "to the date of such allowance" do not carry interest to be paid on refunds down to the time of payment.
and sends upon a proper form his decision to the Collector of Internal Revenue, who made the collection and keeps the account with the taxpayer. The findings and the exhibits show that the course of business is that the Collector, on receiving from the Commissioner the schedule as to the overassessment, examines his books and reports back to the Bureau the amount which should be credited on taxes due and the amount to be refunded, that this is examined by the Assistant Commissioner and then is delivered to the Commissioner, who makes it effective by his approval. Until it reaches him and is approved by him, the refund cannot be paid. This we think is the real date of allowance. Until that time, the exact amount of the refund is not fixed finally by competent authority. This date would seem to be just as certain and convenient from an administrative standpoint as that of the original decision of the Commissioner, and it is certainly more in conformity to the general purpose of Congress to relieve the overassessed taxpayer by paying compensatory interest on money unjustly taken and kept by the government. We think, therefore, that the trustees are entitled to recover from the government interest on both the refund for the taxes of 1917 and that for those of 1920 from December 9, 1922, to January 16, 1923.
tax paid thereon only under protest, and only in compliance with the requirement of the foregoing form and the instructions thereon."
"In view of the joint investigation by accountants of both government and trustees now in progress, with the agreed object of correcting certain figures, especially those relating to depreciation, believed to have been erroneously increased, as to the most important item and ignored as to another item, in the 1920 return of said trustees covering the sale of the three capital assets in that return set forth, estimating the total of said profits and the tax payable thereon out of the trust estate."
"Inasmuch as the second quarterly installment of $49,050.60 based upon said estimate is now due, you are hereby notified that the accompanying payment thereof is made without prejudice to the right of said trust estate to be hereafter relieved from or reimbursed for the payment of any tax upon the profits so returned in excess of the total tax, resulting from such final adjustment thereof as may be determined, either by agreement, or by the courts. . . ."
The government's contention is that the distinction made in § 1324, by which the interest to be paid on refunded taxes is to date from the payment of the taxes in cases where there is a specific protest setting forth in detail the basis and reasons for such protest, and by which the interest is to be dated only from six months after the date of filing the claim for refund or credit when there is no protest, was intended to favor those who furnished to the collecting officers by way of specific protest a valid basis for a refund of the taxes.
in every case of payment, and would make the protest of no value to the Treasury or the collecting officers. A protest is for the purpose of inviting attention of the taxing officers to the illegality of the collection, so that they may take remedial measures at once. But if protests are based on reasons of no validity, they do not accomplish the public purpose for which they are devised.
In the present case, the protest was based on a decision of the District Court of Connecticut made December 16, 1920. Brewster v. Walsh, 268 F. 207. That case was reversed in Walsh v. Brewster, 255 U. S. 536, or more than two months before the payment of the June 15 installment by the trustees. The statement added under the June 15 installment was merely a recital that an investigation was going on between the government and the trustees, and that, if that turned out to be in excess of the right amount, the payment was without prejudice to the recovery of the excess. This was certainly not a protest for specific reasons, in accordance with the requirement of the statute. For these reasons, we think that no recovery can be had for failure to allow interest for the period of the six months after the date of payment.
paid in advance of an amount not exceeding three percentum per annum calculated upon the amount so paid from the date of such payment to the date fixed by law for such payment, but that no such credit should be allowed on payments in excess of taxes determined to be due.
We do not see the basis upon which such recovery can be had. The taxpayer cannot obtain a refund under the other sections quoted except for taxes paid. By reason of his payment earlier than required, he has been permitted to reduce the amount which he actually paid. But there is no provision in the statute for a recovery of anything but what he did pay, or for interest on anything but on what he did pay. We think that, if Congress intended him to recover interest for his accommodation of the government by a premature payment of his taxes illegally collected, it would have made a specific provision for it and have given the Commissioner special authority.
This disposes of the three claims. The conclusion of the Court of Claims is therefore affirmed in all respects, except as to the interest on the refunds on the taxes illegally collected for the year 1917, and for the year 1920 for the period from the 9th of December, 1922, to January 16, 1923, which the trustees should recover.
The judgment is therefore reversed, and the cause is remanded to the Court of Claims, with directions to enter a judgment in accordance with this opinion.