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This was a petition by the executors of the will of the late Admiral David D. Porter, who died February 13, 1891, to the special term of the supreme court of the District of Columbia, sitting as an orphans' court, for the admission to probate of his will, and of a codicil thereto.
Upon citation to the next of kin, Elena Porter, a daughter of the testator (having become, by marriage, Elena Campbell) appeared, and demanded full proof of the execution of the will and codicil.
The will and the codicil each bore the signature of the testator, and those of the same three persons as witnesses. [162 U.S. 478, 479] At the hearing in special term, it was shown by the examination of the witnesses that the will was duly executed by the testator, and attested by all three witnesses, and that the codicil was signed by the testator, and attested by two of the witnesses; and the only controverted question was whether the testator did or did not make or acknowledge his signature to the codicil in the presence of the third witness.
Upon the whole evidence (which was set forth in the record, but is unnecessary to the understanding of the points decided by this court), the judge holding the special term ordered the will to be admitted to probate as to both real and personal property, and the codicil to be admitted to probate in respect of personal property, and certified to the general term, for hearing in the first instance, the question of the sufficiency of the codicil to devise or dispose of real estate.
At the hearing in general term it was ordered and adjudged, for reasons stated in the opinion reported in 9 Mackey, 493, that the codicil was duly executed by the testator, and subscribed and attested by three witnesses, as required by law, and should be admitted to probate as a devise of real estate. A bill of exceptions to this ruling and order was tendered by Mrs. Campbell, and allowed by the court, which certified that the value of the real estate devised to her in the codicil was less than that devised to her in the will by more than the sum of $5,000,-a sufficient amount to sustain the appellate jurisdiction of this court, under the act of March 3, 1885, c. 355 (23 Stat. 443). And Mrs. Campbell on June 22, 1892, sued out this writ of error. Walter D. Davidge, for plaintiff in error. [162 U.S. 478, 480] Chapin Brown, for defendants in error.
It was contended in behalf of the defendants in error that the case should have been brought to this court by appeal, and not by writ of error. But we consider this point as settled by the decision made six years ago in Ormsby v. Webb, 134 U.S. 47, 64 , 65 S., 10 Sup. Ct. 478, in which a motion to dismiss, for the same reason, a writ of error to review a judgment of the supreme court of the District of Columbia, admitting a will to probate, was denied by this court, not merely because in that case a trial by jury had been actually had, but upon the more general ground that a proceeding for the probate of a will in the District of Columbia was not a suit in equity, and was a case in which the parties had the right to claim a trial by jury, and in which there might be adversary parties, and a final judgment affecting rights of property. See Price v. Taylor, 21 Md. 356, 363. The decision in Ormsby v. Webb has since been understood as governing the practice in the District, and evidently guided the course of the plaintiff in error in the present case. Under these circumstances, the question whether the form of bringing up a probate case shall be by writ of error or by appeal does not apper to us to be so important in its consequences that it should now be reconsidered. [162 U.S. 478, 482] A more serious question of jurisdiction, presented by this record, is whether the supreme court of the District of Columbia had power to admit a will or codicil to probate as a devise of real estate. Curiously enough, it is the plaintiff in error who contends that it had, and the defendants in error who insist that it had not. But it is immaterial by which party the question is made; for, being a question of jurisdiction, it would be the duty of this court, of its own motion, to take notice of it.
This question depends upon the act of congress of July 9, 1888, c. 597, entitled 'An act relating to the record of wills in the District of Columbia,' and the whole of the rest of which is as follows: 'The record of any will or codicil, heretofore or hereafter recorded in the office of the register of wills of the District of Columbia, which shall have been admitted to probate by the supreme court of the District of Columbia, or by the late orphans' court of said district, or the record of the transcript of the record and probate of any will or codicil elsewhere, or of any certified copy thereof, heretofore or hereafter filed in the office of said register of wills, shall be prima facie evidence of the contents and due execution of such wills and codicils: provided, that this act shall not apply in any cause now pending in any of the courts of the District of Columbia.' 25 Stat. 246.
In order to determine the scope and effect of this act, it as necessary to consider what the law upon the subject was in the District of Columbia before its passage.
The law of wills and of probate, as existing in Maryland on February 27, 1801, is the law of the District of Columbia, except as since altered by congress; and the supreme court of the District of Columbia, in special and general term, respectively, has, by virtue of successive acts of congress, the probate jurisdiction formerly exercised by the orphans' court and the court of chancery of the state of Maryland, and by the orphans' court and the circuit court of the United States for the District of Columbia; with authority, also, at a special term, to order any matter to be heard in the first instance at a general term. Acts Feb. 27, 1801, c. 15, 1, 12 (2 [162 U.S. 478, 483] Stat. 103, 107); March 3, 1863, c. 91, 3, 5, 16 (12 Stat. 763, 764); June 21, 1870, c. 141, 4, 5 (16 Stat. 161); Rev. St. D. C. 772, 800, 930.
That statute did not authorize the probate of wills of real estate. But in subchapter 2, 5-13, and subchapter 15, 16-18, it made full and minute provisions for the probate in the orphans' court of 'any will or codicil, containing any disposition relative to goods, chattels or personal estate,' by which such a will might, if uncontested, be admitted to probate at once, or, if contested, be dealt with 'according to the testimony produced on both sides,' and be admitted to probate 'on such proof as shall be sufficient to give efficacy to a will or codicil for passing personal property,' or, at the request of either party, by a plenary proceeding, upon bill or petition, answer under oath, and depositions, and, it might be, [162 U.S. 478, 484] the findings of a jury upon issues sent to a court of law for trial, with a right of appeal from the orphans' court to the court of chancery or general court.
By the law of Maryland, and consequently of the District of Columbia, in accordance with what was the law of England until the statute of 1 Vict. c. 26, a will of personal property need not be attested by subscribing witnesses, but might be established, when offered for probate, by the testimony of any two witnesses, or by equivalent proof. 1 Williams, Ex'rs ( 7th Ed.) 85, 343; Dorsey, Test. Law, 57; McIntire v. McIntire, 16 Sup. Ct. 814; 8 Mackey, 482, 489. A will of personal property, until admitted to probate, was not competent evidence in another suit Armstrong v. Lear, 12 Wheat. 169, 176. And in Maryland, under the statute of 1798, an order granting or refusing probate of a will, as to personally, has been considered, not merely prima facie, but conclusive, evidence in a subsequent suit. Warford v. Colvin, 14 Md. 532, 554; Johns v. Hodges, 62 Md. 525, 534.
'It is true that the generality of the terms in the first lines of this clause is such as would, if unrestricted by the context, embrace wills of lands. It is also true that the previous chapter in the same article prescribes the formalities necessary to give validity to devises of real estate. It is further true that the previous sections of the second chapter indicate the means, and impose the duty, of delivering up wills of all descriptions to the register of the court of probates, for safe-keeping, after the death of the testator, and until they shall [162 U.S. 478, 485] be demanded by some person authorized to demand them for the purpose of proving them.
'But it is equally true that the act does not authorize the registering of any will without probate. Nor does it, in any one of its provisions, relate to the probate of any wills, except wills of goods and chattels.
'The clause recited makes evidence of such wills only as are recorded in the offices of courts authorized to record them. But, when the power of taking probate is expressly limited to the probate of wills of goods and chattels, we see not with what propriety the meaning of the clause in question can be extended to wills of any other description. The orphans' court may take probates of wills, though they affect lands, provided they also affect goods and chattels; but the will, nevertheless, is conclusively established only as to the personalty.
'Unless the words be explicit and imperative to the contrary, the construction must necessarily conform to the existing laws of the state on the subject of wills of real estate. And, when the power of taking probates is confined to wills of personalty, we think the construction of the clause recited must be limited by the context.
'We are therefore of opinion that there was nothing in the law of Maryland which could, under the constitution, make the document offered to prove this will, per se, evidence in a land cause.' 10 Wheat. 465, 471, 472.
In Robertson v. Pickrell (1883) this court held that an exemplified copy of the probate of a will of real estate in a court of Virginia authorized by the law of that state to take probate of wills, as well of real estate as of personal property, was incompetent evidence, in the courts of the District of Columbia, of title to real estate in the District, and, speaking by Mr. Justice Field, said: 'In most of the states in the Union, a will of real property must be admitted to probate in some one of their courts, before it can be received elsewhere as a conveyance of such property. But by the law of Maryland, which governs in the District of Columbia, wills, so far as real property is concerned, are not admitted to such pro- [162 U.S. 478, 486] bate. The common-law rule prevails on that subject. The orphans' court there may, it is true, take the probate of wills, though they affect lands, provided they affect chattels also, but the probate is evidence of the validity of the will only so far as the personal property is concerned. As an instrument conveying real property, the probate is not evidence of its execution. That must be shown by a production of the instrument itself, and proof by the subscribing witnesses, or, if they be not living, by proof of their handwriting.' 109 U.S. 608, 610 , 3 S. Sup. Ct. 407.
Before the passage of this act, as has been seen, neither the supreme court of the District of Columbia, nor its predecessor, the orphans' court, had any jurisdiction to admit to probate a will of real estate only, and consequently no record, in any court of the District, of a probate of a will, would be any evidence whatever of title to real estate; but, as to personal property, the probate of a will would seem to have been regarded as conclusive evidence, and there was no statute law in the District concerning the record or the proof of wills made and probated elsewhere.
The act of 1888 is a statute of evidence, and not of jurisdiction. It does not purport to confer any jurisdiction whatever. Its title describes it as 'Relating to the Record of Wills.' The body of it is, in terms, a simple declaration that records of probates of wills or codicils in the District of Columbia 'shall be prima facie evidence of the contents and due execution of such wills and codicils.' And the concluding proviso, that it shall not apply to pending causes, treats it as a mere rule of evidence.
The records thus made evidence include those of wills and codicils admitted to probate by the courts of the District, [162 U.S. 478, 488] whether before or after the passage of the act, and also records of probates made elsewhere, and filed in the register's office here. The act assumes the probates to have been lawfully made, and it no more undertakes to define or to regulate the jurisdiction of the courts of probate of the District for the future than it does the jurisdiction of those courts in the past, or the jurisdiction of the courts elsewhere whose proceedings filed here are equally made evidence.
The act gives no greater weight to future than it does to past probates and records. But if it made the record of a will, admitted to probate in the District of Columbia before the act, evidence of title to real estate, it would not only give the probate an effect which could not have bee in the mind of the court which granted it, but it would, in many cases, make a will effective to pass real estate which had never been attested as required by law to constitute a valid will for that purpose.
For example, take the case now before the court, supposing it to have arisen before the passage of the act. The codicil disposed of both real and personal property, and bore the names of three witnesses. To prove it as a testamentary disposition of personal property, two witnesses were ample. Therefore, if the court of probate was satisfied that two only of the witnesses whose names were on the paper saw the testator sign or acknowledge it, the court would be bound to admit it to probate, although, for want of a third witness, there was no sufficient attestation or proof to make it a good will of real estate; and yet the record of the probate would be evidence of title to real estate under the devise therein contained.
The act not only does not (as did the statute of Maryland of 1831, above cited) contain an express grant of jurisdiction to take probate of wills of real estate, but it does not mention such wills at all. The leading words, 'the record of any will or codicil,' in the first line of this act, are no more general than the corresponding words, 'an attested copy of any will, testament or codicil,' in the similar provision of the statute of Maryland of 1798, which were held by this court in Darby v. Mayer, before cited, not to embrace wills of real estate, which* [162 U.S. 478, 489] the courts had no authority to admit to probate, although that statute, in other clauses (as this act does not), applied by necessary implication, and even by express words, to such wills.
Congress, when framing the act of 1888, cannot be supposed to have been ignorant of the provision relating to evidence in the statute of 1798, which had been part of the law of the District of Columbia for nearly 90 years, nor of the construction which this court had given to that provision, nor yet of the want of any statute concerning records of wills admitted to probate elsewhere.
There may be some difficulty in ascertaining the motive of congress in passing the act of 1888. But difficulty in ascertaining the motive of congress is but a slight foundation for attributing to it an intention, unexpressed, to confer upon the courts of probate within the District of Columbia an authority over wills of real estate which they never had before since the district was first organized.
We regret to be compelled to differ in opinion from the court of appeals of the District of Columbia, which, since the decision below in the present case, has held that the record of a will admitted to probate in the District before the passage of the act of 1888 was competent evidence of the title to real estate in an action brought since its passage. But the question appears by the report not to have been argued by counsel, or much discussed by the court. Barbour v. Moore, 4 App. D. C. 535, 543, 544.
The result is that the supreme court of the District of Columbia, upon the application for probate of the codicil in question, had no authority to determine upon its sufficiency to pass real estate, and that its order in this respect must be modified.
That the codicil was sufficiently proved to pass personal property was not controverted at the bar.
Mr. Chief Justice FULLER took no part in the consideration and decision of this case.

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#GSTCase-73-Anti-Profiteering Provisions-: Passing on the benefit of Input Tax Credit to the recipient by commensurate reduction in the prices of goods or services or both.
One of the most subjective issues in GST has been “what is meant by” and “how” Passing on the Benefit of benefit of the Input Tax Credit to the recipient by commensurate reduction in the prices of goods or services or both has to be calculated under GST Regime. The matter has decided by National Anti-Profiteering Authority and is pending for consideration before the Delhi High Court. Let’s try to analyse the provisions with relevant Judicial Rulings.
Section 171(1) provides that any reduction in rate of tax on any supply of goods or services or the benefit of input tax credit shall be passed on to the recipient by way of commensurate reduction in prices. Therefore, provision identifies two events wherein benefit of either of them has to be passed on to the consumer i.e.
Any reduction in rate of tax on any supply of goods or services.
Benefit of input tax credit.
This clause provides that the additional benefit of the Input Tax Credit should be passed on to the recipient by commensurate reduction in the prices of goods or services or both.
The clause provides that supplier cannot be benefited by availment of Input Tax Credit at the expense of the recipient and commensurate benefit should be passed on to the recipient with appropriate reduction in the supply price of goods or services or both. Right of availment of Credit rests with the supplier only to pass on the benefit to the consumer and not for holding it in his own account. Supplier is bound to act as a pass through or an agent and actual benefit should go to the consumer.
Taking a very simple example, supposedly, under the pre-GST Regime, supplier was eligible for Input Tax Credit of Rs 100/- on a selling price of Rs 500/- of the product and Rs 50/- was forming part of the cost price. Subsequently after implementation of GST, supplier was eligible for a credit of Rs 150/-. Therefore, selling price of the product would now be Rs 450/- and tax should be charged on Rs 450/-.
The mechanics is not so simple but example has been taken just as a starting point. There are many factors which are going to impact in assessing the benefit of input tax credit. Assessing Commensurate benefit in reduction of tax rate is much simpler than assessing the commensurate benefit of Input Tax Credit.
The issue now arises is which stage of claim of input tax credit would be used for quantifying the benefit to be passed on to the recipient. Would it be the Input Tax Credit availed or Input Tax Credit Utilized.
Meaning of the Word “ITC Availed” has been clarified vide Circular No. 79/53/2018 Dated 31st December 2018 wherein it has been clarified that “Input tax credit can be said to have been “availed‟ when it is entered into the electronic credit ledger of the registered person. Under the current dispensation, this happens when the said taxable person files his/her monthly return in FORM GSTR-3B.” Further Input Tax Credit is said to be utilized when the liability is set off against the input tax credit availed.
Let’s analyses Section 171(1) and 171(2) and see what inferences can be drawn from the same. On one hand Section 171(1) provides that benefit of input tax credit should have been passed on the recipient by way of commensurate reduction in the prices and on the other hand Section 171(2) provides for that the authority shall examine that whether benefits of the input tax credit availed have actually resulted in a commensurate reduction in the price of the goods or services or both supplied by him.
Thus, as can be seen that whereas Section 171(1) reveals little about the stage of claim of Input Tax Credit to be used for quantifying the amount of benefit to be passed on to the recipient. However, Section 171(2) clearly provides that the benefit of input Tax Credit availed has to be passed on to the recipients.
Therefore, on a conjoint reading of both Section 171(1) and 171(2), it can be concluded that Section 171(1) provides for the benefit of input tax credit availed should have been passed on the recipient by way of commensurate reduction in the prices and Section 171(2) provides for that the authority shall examine that whether such benefits of the input tax credit availed have actually resulted in a commensurate reduction in the price of the goods or services or both supplied by him.
Hence, Benefit of Input Tax Credit availed has to be passed on to buyers and not benefit of Input Tax Credit utilized. This also forms one of the most litigative issues in arriving at the benefit to be passed on to the recipient.
In the matter of Shylesh Damodaran v. Landmark Automobiles (P.) Ltd.  100 taxmann.com 326 (NAA) it was held that comparison of pre-GST and post-GST invoices issued by respondent car dealer revealed that benefit of Input Tax Credit had been passed on by respondent to applicant purchaser by reduction in base price of car, respondent would not be liable for contravention of provisions of section 171.
In the matter of Crown Express Dental Lab v. Theco India (P.)  100 taxmann.com 127 (NAA) Ltd., it was held that applicant had purchased Milling machines and Lava Materials Approved Sintering Furnance from respondent which had been imported from Germany and quoted price of machine prior to implementation of GST included CST and freight, but, after implementation of GST, respondent had charged 18 per cent IGST on said quoted price but he had not reduced base price (i.e., excluded CVD & CST), since respondent had charged more than actual base price and had profiteered at expense of applicant, he had violated provisions of section 171.
In the matter of Ravi Charaya v. Hardcastle Restaurants (P.) Ltd  99 taxmann.com 254 (NAA) respondent had availed ITC benefit of Rs.9.33 crores till November 2017, which was not passed on to customers. Therefore, it was held that respondent by denying benefit of ITC to its customers had resorted to profiteering in contravention of provisions of section 171.
In the matter of Vivek Gupta v. Gurukripa Developers & Infrastructures (P.) Ltd.  103 taxmann.com 445 (NAA), applicants had filed complaint before Anti-Profiteering Authority stating that respondent had resorted to profiteering in respect of purchase of flat constructed by respondent in its ‘Vrindavan Yojna Project’, Lucknow, it was held that respondent had denied benefit of ITC to applicants as well as rest 64 purchases of flats in contravention of provisions of section 171 (1) and had, thus, realized more price from them than what it was entitled to charge and had also compelled them to pay more GST than what they were required to pay by issuing incorrect tax invoices and, hence, it had committed offence under section 122 (1)(i) and was liable for imposition of penalty under section 122, read with Rule 133 (3)(d) of the CGST Rules, 2017.
In the matter of Ashok Khatri v. S3 Infra Reality (P.) Ltd.  103 taxmann.com 52 (NAA) it was held that respondent engaged in business of construction of flats under affordable housing scheme had denied benefit of Input Tax Credit (ITC) to buyers of flats and realized more price from them than he was entitled to collect and also compelled them to pay more GST than that they were required to pay by issuing incorrect tax invoices, he would be liable for profiteering.
In the matter of Sukhbir Rohilla v. Pyramid Infratech (P.) Ltd  97 taxmann.com 379 (NAA) it was held that respondent builder had denied benefit of Input Tax Credit to buyers of flats being constructed by him under Affordable Housing Policy 2013 in contravention of provisions of section 171(1) and had thus realized more price from them than he was entitled to collect and had also compelled them to pay more GST than that they were required to pay by issuing incorrect tax invoices and had committed an offence under section 122(1)(i) and therefore would be liable for imposition of penalty. He was further asked to return the amount profiteered to all flat buyers. However, Hon’ble Delhi High Court has stayed the operation of the order vide their order Pyramid Infratech (P.) Ltd. v. Union of India  100 taxmann.com 433 (Delhi).
What if the Input Tax Credit availed is passed on to the Buyers but the same could not be utilized by the supplier due to any reason i.e. Output Tax Lesser than Input Tax, Supplier has to reverse the credit subsequently on account of provisions of Section 17(1)/17(2) or 16(2).
No specific methodology provided in the statue for arriving at benefit of Input Tax Credit to be passed on to the buyers and therefore adoption of any method therein is subjective. The same issue has been challenged before the Delhi High Court in the matter of Pyramid Infratech (P.) Ltd. v. Union of India  100 taxmann.com 433 (Delhi) wherein it has been argued that lack of clarity on anti-profiteering has led to violation of basic rights such as freedom of speech and equality.
These are only illustrative list of the issues and many more issues can crop in specific cases. Next Article would conclude the series on Article on Anti Profiteering.

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The Colorado Supreme Court issued its opinion in Kuhn v. Williams on Monday, April 23, 2018.
In this expedited appeal under C.R.S. § 1-1-113(3), the supreme court addressed whether the Colorado Secretary of State (Secretary) could certify incumbent Representative Doug Lamborn to the 2018 Republican primary ballot for Colorado’s Fifth Congressional District. Relying solely on the Colorado Election Code, the court concluded he may not.
The court held that although the Secretary properly relied on the circulator’s affidavit and information in the voter registration system in verifying the petition and issuing a statement of sufficiency, petitioners nonetheless had the statutory right to challenge the validity of the petition under C.R.S. §§ 1-4-909 and 1-1-113 before the Secretary certified Rep. Lamborn’s name to the ballot. Petitioners properly presented additional evidence to the district court in challenging the actual residence of the petition circulators.
The court concluded that the district erred when it focused on the challenged circulator’s subjective intent to move back to Colorado, rather than the test set forth in C.R.S. § 1-2-102, when determining the challenged circulator’s residency. In applying the correct test to the essentially undisputed facts here, the court concluded that the challenged circulator was not a resident of Colorado when he served as a circulator for the Lamborn campaign. Accordingly, the court reversed the district court’s ruling to the contrary. Because the challenged circulator was statutorily ineligible to serve as a circulator, the signatures he collected are invalid and may not be considered. That caused the Lamborn campaign’s number of signatures to fall short of the 1,000 required to be on the Republican primary ballot.
Therefore, the court held that the Secretary may not certify Rep. Lamborn to the 2018 primary ballot for Colorado’s Fifth Congressional District. The court did not address the Lamborn campaign’s arguments regarding the constitutionality of the circulator residency requirement in C.R.S. § 1-4-905(1) because the court lacks jurisdiction to address such claims in a proceeding under C.R.S. § 1-1-113.
On Thursday, May 19, 2016, Governor Hickenlooper signed six bills into law. To date, he has signed 192 bills this legislative session. The bills signed Thursday include a bill to allow depositions of at-risk persons in criminal trials in which the at risk persons may not be available to testify, a bill repealing certain mandatory terms of incarceration, and more. The bills signed Thursday are summarized here.
HB 16-1027 – Concerning Depositions in Criminal Cases in Which an At-Risk Person May Not Be Available for Trial, by Rep. Jessie Danielson and Sens. Nancy Todd & Jerry Sonnenberg. The bill expands and streamlines the allowable use of recorded depositions for at-risk elders. Under the bill, upon receipt of a motion the court must schedule a recorded deposition within 14 days without further findings if the victim is an at-risk elder, defined as any person 70 years of age or older; however, the bill allows the defense to challenge the motion for recorded depositions of other at-risk adults.
HB 16-1227 – Concerning Exemptions from Child Support Enforcement Requirements as a Condition of Receipt of Child Care Assistance Under the Colorado Child Care Assistance Program, and, in Connection Therewith, Making an Appropriation, by Reps. Daniel Kagan & Brian DelGrosso and Sens. Owen Hill & Larry Crowder. The bill specifies that a teen parent is not required to submit an application for child support establishment as a condition of receiving child care assistance. However, the county can require the parent to submit an application for child support establishment in order to receive child care assistance once they no longer qualify as a teen parent.
HB 16-1302 – Concerning the Alignment of the Colorado Statutes with the Federal “Workforce Innovation and Opportunity Act” Through the “Colorado Career Advancement Act,” by Reps. Crisanta Duran & Brian DelGrosso and Sen. Linda Newell. The bill changes the title of the “Colorado Workforce Investment Act” to the “Colorado Career Advancement Act.” It also clarifies the roles of specific entities in workforce development programs and removes statutory requirements made inapplicable by the federal act.
HB 16-1390 – Concerning Immunity for Certain Persons who Are Involved with a Reported Overdose Event, by Rep. Dominick Moreno and Sen. Lucia Guzman. The bill provides immunity from arrest for underage persons reporting alcohol or marijuana overdoses and extends immunity from arrest and prosecution to the underage person requiring medical assistance.
SB 16-072 – Concerning an Increase in the Maximum Total Amount of Annual Lease Payments Authorized for Lease-Purchase Agreements Entered into Under the “Building Excellent Schools Today Act”, and, in Connection Therewith, Making an Appropriation, by Sen. Andy Kerr and Reps. Alec Garnett & Jim Wilson. Currently under the Building Excellent Schools Today Act (BEST), the state may enter into lease-purchase agreements for public school facility capital construction projects, subject to the limitation that the maximum total annual amount of lease payments payable under these agreements does not exceed $80 million in a fiscal year. This bill establishes incremental caps on these lease payments.
SB 16-102 – Concerning the Elimination of Mandatory Sentences to Incarceration for Certain Crimes, and, in Connection Therewith, Making and Reducing an Appropriation, by Sen. Andy Kerr and Rep. Dominick Moreno. The bill removes the mandatory term of incarceration that must accompany convictions of certain types of second degree assault or violations of bail bond conditions.
On Tuesday, April 5, 2016, the governor signed three bills into law. To date, he has signed 73 bills into law this legislative session. The bills signed Tuesday include a bill to extend the time to complete residential reconstruction, a bill regarding the costs of district public health agencies, and a bill repealing the “Medicaid Clean Claims Task Force.” These three bills are summarized below.
SB 16-012 – Concerning the Authority of a Local Assessor to Grant Additional Time for a Landowner to Reconstruct Residential Improvements that were Destroyed by a Natural Cause, by Sen. Rollie Heath and Rep. Jonathan Singer. The bill allows residential property to maintain its property tax classification for an indefinite period of time if the county assessor finds the property owner is making a good faith effort to rebuild after a natural disaster.
SB 16-094 – Concerning the Shared Costs of a District Public Health Agency by the Counties in the District, by Sen. Larry Crowder and Rep. Ed Vigil. Currently, the largest county in a multi-county public health district must serve as treasurer and district costs must be apportioned based on population. The bill allows multi-county health districts with small populations more flexibility in choosing which county will act as treasurer and apportioning costs.
SB 16-127 – Concerning the Repeal of the “Medicaid Clean Claims Transparency and Uniformity Act,” by Sen. Jack Tate and Rep. Jeni James Arndt. The bill repeals the Medicaid Clean Claims Transparency and Uniformity Act, repeals all ongoing work of the Medicaid Clean Claims Task Force, and repeals the requirement that insurance companies bill using codes developed by the task force. Related statutory definitions are also repealed.
For a complete list of the governor’s 2016 legislative decisions, click here.
The Colorado Supreme Court issued its opinion in Colorado Medical Society v. Hickenlooper on Monday, June 1, 2015.
To receive Medicare reimbursement, hospitals and other medical service providers must require certified registered nurse anesthetists (CRNAs) who administer anesthesia to do so under physician supervision. However, states may opt out of this requirement if the Governor submits a letter to the relevant federal agencies attesting that the opt-out is in the best interest of the state’s citizens and is consistent with state law. In 2010, Governor Bill Ritter, Jr. sent such an opt-out letter, which attested that Colorado law permits CRNAs to administer anesthesia unsupervised.
Here, the Supreme Court held that the Governor’s attestation to the federal agencies that Colorado law permits CRNAs to administer anesthesia without supervision is not a generally binding interpretation of Colorado law subject to de novo review. Instead, the attestation’s sole effect is to exempt certain Colorado hospitals from the federal physician supervision requirement. This decision, if reviewable at all, is reviewable only for a gross abuse of discretion. Because petitioners do not allege that such a gross abuse occurred in this case, the Court affirmed the court of appeals’ dismissal of petitioners’ claims.

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Federal Ins. Co. v. Northfield Ins. Co.
William Lee, et al v. Verizon Communications, Inc.

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This Opinion discusses the general conflict analysis for government lawyers switching to private practice that may involve representing private clients against the lawyer’s former government agency.
The inquiring attorney recently left the Attorney General's Office to join a private law firm that represents clients before various state agencies. While employed by the Attorney General's Office, the inquiring attorney represented several state agencies in regulatory and administrative law matters. The inquiring attorney anticipates being asked to represent clients whose interests are adverse to a state agency the inquiring attorney represented while with the Attorney General's Office, as well as clients whose interests are adverse to individuals or entities who were involved in administrative proceedings in which the inquiring attorney took part while employed by the Attorney General's Office. The inquiring attorney seeks general guidance about whether it is ethically permissible to represent such clients.
Under what circumstances may a former government lawyer represent clients in matters involving a government agency the lawyer formerly represented?
A former government lawyer's conflict of interest obligations are generally found in ER 1.11. See ABA Formal Ethics Op. 97-409 (concluding that ER 1.11 supplants, rather than supplements, ER 1.9(a), although ER 1.9(b) remains applicable to former government lawyers); cf. 1 Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering § 15.4 at 15-13, 15-14 (3rd ed. 2000) (arguing that a former government lawyer's conflict of interest obligations should be analyzed under both ER 1.9(a) and ER 1.11(a)). The purpose of ER 1.11 is to "prevent a lawyer from exploiting public office for the advantage of a private client." ER 1.11 Comment; see also Security General Life Ins. Co. v. Superior Court, 149 Ariz. 332, 334, 718 P.2d 985, 987 (1986) ("This rule is intended to prevent conflicts of interest that arise in the 'revolving door' between government and private practice.").
Ethical Rule 1.11(a) prohibits a former government lawyer from personally "represent[ing] a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation." Because the purpose of the Rule is to prevent exploitation of government office, "there is no requirement that the [private] representation be adverse to the government or its interests, as there is in other conflicts of interest rules; even representation congruent to the interests of the former client is banned, absent consent by the government." Hazard & Hodes, supra § 15.4 at 15-11—15-12 (emphasis in original).
contemplat[ing] a discrete and isolatable transaction or set of transactions between identifiable parties (footnote omitted). Perhaps the scope of the term "matter" may be indicated by examples. The same lawsuit or litigation is the same matter. . . . By contrast, work as a government employee in drafting, enforcing or interpreting government or agency procedures, regulations, or laws, or in briefing abstract principles of law, does not disqualify the lawyer . . . from subsequent private employment involving the same regulations, procedures, or points of law; the same "matter" is not involved because there is lacking the discrete, identifiable transactions or conduct involving a particular situation and specific parties (footnote omitted).
ABA Formal Op. 342 (1975), quoted in Hazard & Hodes, supra § 15.5 at 15-15.
To have participated "personally and substantially" in a matter, a government lawyer must have "become personally involved to a material degree in the investigative or deliberative process regarding the transactions in question." Security General, 149 Ariz. at 334, 718 P.2d at 987 (citing ABA Formal Op. 342).
Conflicts under ER 1.11(a) may be waived by a government agency, subject to statutory or regulatory restrictions. ER 1.11(a). It is the former government lawyer's duty to determine the individual or entity authorized to give informed consent on behalf of a governmental entity. In most cases, the appropriate individual will be the chief legal officer for the governmental entity - e.g., the Attorney General, county attorney or city attorney - as opposed to an agency head or managerial-level employee.
If a former government lawyer is barred by ER 1.11(a) from personally representing a client and the conflict has not been waived, that conflict is not imputed to lawyers in the former government lawyer's firm. Id. The firm may represent the client so long as the former government lawyer is "screened from any participation in the matter and is apportioned no part of the fee therefrom" and "written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule." Id.
In addition to considering whether he or she was "personally and substantially" involved in the same "matter" for which a new client seeks representation, the former government lawyer must consider whether ER 1.11(b) applies. ER 1.11(b) precludes a former government lawyer who acquired "confidential government information about a person" while employed by the government from representing "a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person." ER 1.11(b).
"Confidential government information" is defined narrowly in ER 1.11(e) as information (i) "which has been obtained under governmental authority," (ii) "which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose," and (iii) "which is not otherwise available to the public." Moreover, ER 1.11(b) "operates only when the lawyer is [sic] question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer." ER 1.11 Comment. In short, "if the [former] government lawyer does not have information about a particular party that she learned only because of her position in the government, Rule 1.11(b) should not apply." Hazard & Hodes, supra § 1.7 at 15-22 (emphasis in original).
Unlike conflicts under ER 1.11(a), a conflict under ER 1.11(b) is not waivable. Annotated Model Rules of Professional Conduct at 182. If a former government lawyer has a conflict under ER 1.11(b), the conflict is not imputed to his or her firm so long as the former government lawyer is screened in accordance with ER 1.11(a). Id.
The last question that a former government lawyer must address in deciding whether to represent a private client on matters involving a governmental entity he or she formerly represented is whether ER 1.9(b), which prohibits a lawyer from "us[ing] information relating to the representation [of a former client] to the disadvantage of the former client except as ER 1.6 would permit," precludes the lawyer from taking on the new representation. As the ABA's Standing Committee on Ethics and Professional Responsibility explained in Formal Op. 97-409, a former government lawyer representing clients against a government agency he or she formerly represented may be subject to disqualification if, in the new representation, he or she would be required to use or reveal confidences of his or her former government client.
Although Rule 1.9(c)does not provide for automatic disqualification by virtue of a lawyer's prior representational activities, its restrictions on the use or disclosure of a former client's confidences may effectively disable a lawyer from undertaking a new representation under certain circumstances (footnote omitted). If a lawyer has information relating to the prior representation of her government client that would necessarily be used or revealed in a new client's cause, but which her former client will not allow her to use or reveal, her obligations to her former client under Rule 1.9(c) would almost certainly be deemed to "materially limit" her representation of the new client under Rule 1.7(b). Not only could her inability to use or reveal her former government client's confidences compromise her competence and zeal in the new representation, but she would be subject to a disqualification motion by her former government client based on her knowledge of its confidences.
Accordingly, the lawyer could not undertake the new representation unless the former government client consented to waive the confidentiality barrier posed by Rule 1.9(c).
Formal Op. 97-409, quoted in ABA/BNA Lawyers' Manual on Professional Conduct, Ethics Opinions 1996-2000 at 1101:157. While not defining what "information relating to the representation" might trigger a former government lawyer's obligation under ER 1.9(b), the Opinion noted that "general knowledge of policies and practices of her former agency, gained through employment by or representation of that agency," would ordinarily not be considered disqualifying under ER 1.9(b). Id. at 1101:157 n. 17.
If a former government lawyer has a conflict under ER 1.9(b), that conflict would not be imputed to his or her firm, and other members of the firm could undertake the representation so long as the former government lawyer is screened in accordance with ER 1.11(a). Id. at 1101:158.
The inquiring attorney may ethically personally represent clients in matters involving state agencies the inquiring attorney formerly represented so long as the following conditions are met: First, the matter for which a new client seeks representation is not one in which the inquiring attorney personally and substantially participated while employed by the Arizona Attorney General's Office. If so, the inquiring attorney can only represent the new client if the former government client consents to the representation. Second, the inquiring attorney does not possess confidential government information that could be used to the disadvantage of a party opposing the new client. Third, the representation of the new client will not require the inquiring attorney to use the former government client's confidential information. If so, the inquiring attorney can only represent the new client if the former government client consents. If the inquiring attorney is ethically precluded from personally representing the new client, the inquiring attorney's firm may represent the client so long as the inquiring attorney is screened in accordance with ER 1.11(a) and prompt written notice is provided to the inquiring attorney's former government client.
 Other state and federal laws also may impose restrictions on a former government lawyer's ability to represent clients in matters involving a government agency the lawyer formerly represented. See A.R.S. § 38-504(A); 18 U.S.C. § 207. An analysis of those statutes is outside our jurisdiction.
 The former government lawyer should also consider whether the representative of a private client creates an "appearance of impropriety." See, e.g., Romley v. Superior Court, 184 Ariz. 223, 227, 908 P.2d 37, 41 (App. 1995); Turbin v. Superior Court, 165 Ariz. 195, 199, 797 P.2d 734, 738 (App. 1990).
 The Comment to ER 1.11 notes that the firm need not "give notice to the government agency at a time when premature disclosure would injure the client," but that notice should be given "as soon as practicable in order that the government agency will have a reasonable opportunity to ascertain that the [former government] lawyer is complying with ER 1.11 and to take appropriate action if it believes the lawyer is not complying." ER 1.11 Comment.
 ABA Model Rule 1.9(c) is the equivalent to Ariz. ER 1.9(b).


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the notes and mortgage violated the laws of Tennessee, and were void.
(1) That Bedford's subscription to the stock of the association, its issuance, and the application of a loan in pursuance of it constituted a contract, which is inviolable by the state legislature.
(2) That by his subscription to the stock of the association, Bedford became a member of it, bound to the performance of what its bylaws and charter required of him, and entitled to exact the performance of what the bylaws and charter required of the association.
This Court recognizes the power of a state to impose conditions upon foreign corporations doing business within the state, but that cannot be exercised to discharge the citizens of the state from their contract obligations.
This suit was brought in the Circuit Court of the United States for the Western District of Tennessee by respondent to foreclose a mortgage executed by petitioners. A decree was entered in favor of the respondent. 88 F. 7. There was an appeal taken to the United States Circuit Court of Appeals for the Sixth Circuit. From that court the case came here on certificate. Subsequently a writ of certiorari was issued.
to accept applications for membership or subscriptions for stock, but only the authority to transmit them by mail to the office of the company in Syracuse, New York, where they were accepted or rejected by the board of directors of the association. Three months after a person had subscribed for stock and the stock had been issued to him, he was, by the bylaws of the association, permitted to apply for an advance of the nominal par value of his shares, or, in effect, a loan. This application was forwarded through the soliciting agent to the company at Syracuse, together with the certificate of stock, already issued, as a pledge and a statement of the value of the property which it was proposed to mortgage to secure the loan. The application was accompanied by a recommendation of what was called 'the local board' in regard to the wisdom of the loan. The local board consisted of certain stockholders of the association living at the applicant's place of residence, who had been elected by all the resident stockholders, and whose duty it was to advise the association at Syracuse concerning the value of the property offered and the character of the applicant. The local board had officers, one of whom was a treasurer, through whom members might, if they desired, forward payments due to the association at Syracuse; but the bylaws stated that in so doing the local treasurer was acting as agent for the stockholders, and not for the association. Another bylaw provided that all payments should be made to the secretary of the association at the home office, in registered letter, express or money order, or drafts."
On the second day of January, 1891, H.L. Bedford, one of the petitioners, then being a resident of Shelby County, Tennessee, made application, in due form and under seal, to become a member of the association, and subscribed for forty-six shares of installment stock. He delivered the application to the soliciting agent of the association at Memphis, to be forwarded to Syracuse. He agreed in the application "to abide by all the terms, conditions, and bylaws contained or referred to in the certificate of shares," and to comply with the rules and regulations of the association, and he appointed the secretary of the association as proxy to appear and vote on his shares.
On the second of February, 1891, the certificate of stock was issued by the association and sent to its soliciting agent at Memphis, who, a few days later, handed it to Bedford. The certificate was numbered 4,773, and stated the number of shares to be forty-six, and the amount $4,600; date of maturity, August 1, 1897. It certified that Bedford was thereby constituted a member of the association and holder of forty-six shares therein of $100 each. "The terms, conditions, and bylaws printed on the front and back" of the certificate were made part of the contract, and it was stated "that this certificate of shares is issued to and accepted by the holder thereof upon the following express terms and conditions."
The payments of a monthly installment of seventy-five cents on each share until it matures or is withdrawn; a fine of ten cents per share per month for each month if the payment of the installment shall be in arrears; declaring the stock nonforfeitable; providing for its sale at auction if the monthly installments due thereon be in arrears for six months or more, and providing for the application of the proceeds of the sale to the payment of such installments and accrued fines; the balance remaining, if any, to be paid to the member in whose name the stock stands at the time of sale.
"If the stock brings no more than enough to pay the accrued fines and monthly payments, it shall be bid in by the association and cancelled, and the amount standing to the credit thereof in the loan fund shall be divided among the other shares as profits."
(8) reservation of a right in the association to make investigation prior to approval of claims; '(9) 'the bylaws of this association, which are attached to and indorsed hereon, are a part of this contract, and such bylaws and this certificate are to be construed together as part of the contract between the association and the shareholder;' (12) no shareholder to have an interest in the affairs, assets, or funds of the association except as above stated, or to assume liability except as hereafter described; (13) upon the cessation or determination of the contract, all payments made thereon shall become forfeited to the association; (14) actions to be brought within six months after filing proofs in the County of Onondaga, in the State of New York; (15) 'no agent has authority to change this contract, and the association assumes no liability for any statements not contained in its printed literature."
"Given under the seal of said association at Syracuse, New York, the second day of Feby., A.D. 1891."
"[L. S.] Jno. W. Reynolds"
"To the Board of Directors of the Eastern Building & Loan Association of Syracuse, N.Y."
bylaws of your association and all requirements defined by your committee of the board of directors."
"Witness: J. H. T. Martin"
"grant is intended as security for the payment of the sum of fifty-six hundred eighty-three and 8/100 dollars, the same being the principal, interest, and premium of a loan from said association, which said loan was made pursuant to and accepted under the provisions of the bylaws of said association, and which said bylaws have been read by the mortgagor, H.L. Bedford, and are made a part of this contract, which said loan is evidenced and secured to be paid by seventy-eight (78) certain promissory notes of even date herewith, executed by the said H.L. Bedford, payable to the said association at its office in Syracuse as follows: one of each of said notes to be paid on or before the last Saturday of each and every month until all of said seventy-eight notes are fully paid, together with the interest, and each of said notes after maturity at the rate of six (6) percent per annum, payable semiannually, until said notes are fully paid. And the said mortgagor, H.L. Bedford, for himself and his heirs, executors, administrators, and assigns, hereby covenants and agrees with the party of the second part, its successors and assigns, to pay said principal, interest, and premiums at maturity and the interest accruing on said notes after maturity, and all fines and penalties that may be imposed pursuant to the provisions of the constitution and bylaws of said association, and also to keep and perform all promises and engagements made and entered into with said association according to the true intent and meaning of its bylaws and articles of association. . . . "
"On or before the last Saturday of June, 1893, I promise to pay seventy-two and 86-100 dollars ($72 86/100) to the order of the Eastern Building & Loan Association at its office in Syracuse, N.Y. Value received."
"Bailey, Tenn. May 1, 1891 H.L. Bedford"
"An Act to Amend Chapter 31 of the Acts of 1877, Declaring the Terms on Which Foreign Corporations Organized for Mining or Manufacturing Purposes May Carry on their Business and Purchase, Hold, and Convey Real and Personal Property in this state, So as to Make the Provisions of Said Act Apply to all Foreign Corporations that May Desire to Own Property or to Do Business in this state."
"SEC. 1. Be it enacted by the General Assembly of the State of Tennessee, That chapter 31 of the Acts of 1877 be so amended and enlarged as that the provisions of said act shall apply to all corporations chartered or organized under the laws of other states or countries for any purpose whatsoever, which may desire to do any kind of business in this state."
"SEC. 2. Be it further enacted that each and every corporation created or organized under or by virtue of any government other than that of this state, for any purpose whatever, desiring to own property or carry on business in this state, of any kind or character, shall first file in the office of the secretary of the state a copy of its charter, and cause an abstract of same to be recorded in the office of the register in each county in which such corporation desires or proposes to carry on its business or to acquire or own property, as now required by section 2 of chapter 31 of Acts of 1877."
to own or acquire any property in this state, without having first complied with the provisions of this act, and a violation of this statute shall subject the offender to a fine of not less than $100 nor more than $500 at the discretion of the jury trying the case."
"SEC. 4. Be it further enacted that when a corporation complies with the provisions of this act, it shall then be, to all intents and purposes, a domestic corporation, and may sue and be sued in the courts of this state, and subject to the jurisdiction of the courts of this state, just as though it were created under the laws of this state."
"SEC. 5. Be it further enacted that when such corporation has no agent in this state upon whom process may be served by any person bringing suit against such corporation, then it may be proceeded against by an attachment to be levied upon any property owned by the corporation, and publication, as in other attachment cases. But for the plaintiff to obtain an attachment, he, his agent, or attorney, need only make oath of the justness of his claim, that the defendant is a corporation organized under this act, and that it has no agent in the county where the property sought to be attached is situated upon whom process can be served."
"SEC. 6. Be it further enacted that said chapter 31 of the Acts of 1877, except insofar as the same is amended, enlarged, and extended by this act, be and the same is declared to be in full force."
"SEC. 7. Be it further enacted that this act take effect from and after its passage, the public welfare requiring it."
this or some other State of the United States, mortgages (or other securities) received by it in the usual course of its business amounting to not less than twenty-five thousand ($25,000) dollars nor more than fifty thousand ($50,000) dollars at the discretion of the state treasurer. All of the personal obligations of its members taken in the ordinary course of business of such association and secured on first mortgage on real estate, all dividends and interest which may accrue on securities held in trust, as aforesaid, by the trust company or the state, as provided herein, and all dues or monthly payments which may become payable on stock pledged as security for loans, the mortgages for which are on deposit in accordance with the provisions of this act, may be collected and retained by the association depositing such securities or mortgages so long as such association remains solvent and faithfully performs all contracts with its members. Any securities on deposit, as provided herein, may from time to time be withdrawn if others of equal value are substituted therefor. Every building and loan association organized under the laws of any state, territory, or foreign government shall, before commencing to do business in this state --"
"First. File with the treasurer of this state a duly authenticated copy of its charter or articles of corporation."
"Second. File with the treasurer of this state the certificate of the proper state officer of another state or the president and treasurer of some responsible trust company, certifying that it has on deposit securities, not less than $25,000, taken in the regular course of business as mentioned in this act, in trust for all the members and creditors of such building and loan association."
"Third. File with the state treasurer a duly authenticated copy of a resolution adopted by the board of directors of such association stipulating and agreeing that, if any legal process affecting such association be served on said state treasurer, and a copy thereof be mailed, postage prepaid, by the party procuring the issuing of the same, or his attorney, to said association, addressed to its home office, then such service and mailing of such process shall have the same effect as personal service on said association of this state. "
"Fourth. Pay the state treasurer twenty-five ($25) dollars as fees for filing the papers mentioned in this section."
"SEC. 7. Be it further enacted, no officer, director, or agent of any foreign building and loan association shall, in this state, solicit subscriptions to the stock of such association, or sell, or knowingly cause to be sold or issued, to a resident of this state, any stock of an association while said association has not on deposit securities as required by section 3 of this act, or before said association has complied with all the provisions of this act. License to agents of such companies or associations shall be issued by the treasurer annually, on the first of January, and said treasurer is authorized to collect from each agent for said license $2 fee. Any violation hereof shall be deemed a misdemeanor, and upon conviction shall be punished by a fine of not less than ten dollars or more than fifty dollars."
There is no evidence that the association solicited stock subscriptions after March 26, 1891, but it does appear that it made several loans of the same kind as the Bedford loan upon stock already subscribed for after that date.
The Supreme Court of Tennessee has decided that notes and a mortgage executed under similar circumstances and made payable in Minnesota are Minnesota contracts, but that they are nevertheless void in Tennessee, and cannot be enforced in the courts of Tennessee. United States Savings and Loan Company v. Miller, 47 S.W. 17, affirmed on appeal by the Supreme Court of Tennessee, December 18, 1897, without written opinion.
were in violation of the above-quoted laws of Tennessee, and were void, and could not be enforced.
The assignments of error, except one, present the question of the enforceability of the notes and mortgage under the Tennessee law, or, as the question may be put, whether there was a contract between the parties -- a right in one and an obligation in the other arising from a consideration given and received; mutual covenants by which each party acquired the right to that which the other promised or engaged to do, and whether the laws of Tennessee, as interpreted by its courts, impaired that right.
deposited at interest in the savings banks, trust companies, or duly incorporated banks of said state, and which are in good standing."
"SEC. 1. The terms and conditions expressed in the certificate of stock, in connection with the application for membership and the bylaws of the association, form the contract between the association and each shareholder therein."
"SEC. 2. All persons desiring to become shareholders of this association must fill out, sign, and deliver to the secretary an application according to the form adopted by the association, which said application shall be a part of said application with this association. Such applicant shall also pay a membership fee of $1 per share for each and every share held by him."
"SEC. 16. All remittances for advance, installments, premiums, monthly installments, fines and penalties, interest and premiums, and all other payments shall be made to the secretary of the association at the home office, and in registered letter, express or money order, or drafts. Individual checks shall not be received."
The other sections of the article provide for the manner in which the loan shall be made, upon what security, interest and premium, and covenants, the manner of payment and prepayment, and the enforcement of payment, and when shares may be cancelled and forfeited.
"Punctuality and strict performance on the part of all members, borrowers, and shareholders, in payment of fines, dues, interest, loans, and premiums, are made the essence of the contract."
and to what it shall be subject, the amount of monthly installments to be paid, and when paid, and when and to what extent and upon what terms shares may be withdrawn, and for the issue of paid-up stock.
"SEC. 1. Each shareholder, for each share named in their certificate, shall be entitled to a loan of one hundred dollars from the association, provided they shall first make application for such a loan upon a blank furnished by the association for that purpose, if the condition of the loan fund in the treasury shall warrant it. All applications for loans shall be filed and numbered consecutively as received, and be examined and approved, or rejected, by the board in their regular order."
"SEC. 2. All shares must be in force three months before said shareholder shall be entitled to a loan. All applications for loans are part of the contract of the shareholders with this association. Nothing herein contained shall prevent the board of directors from loaning funds of the association to any member in greater sums than the above provided, upon approved securities."
"_____ _____ do hereby make application for a loan of forty-six hundred ($4,600.00) dollars, for six and a half years, to bear interest at the rate of five percent per annum, and a premium of five percent per annum payable on or before the last Saturday of each month,"
easily to be worth $40,000. The application was sworn to and accompanied by the affidavit of three other persons that they regarded Bedford "as a prompt, upright, reliable person, pecuniarily responsible for his contracts."
The application and report of the local board of appraisers was received by the association on the 12th of May, 1891, by mail from H.B. Martin, the soliciting agent of the association. It was accepted and a loan granted on the 18th of May, and to secure the same the notes and mortgage in suit were subsequently executed.
"Cannon, having become a stockholder in the association before the acts were passed, with a view to becoming a borrower, and for that purpose, and having made his application for a loan likewise before the acts passed, acquired a vested right to the consummation of the loan, and the association became legally obligated to complete it, and it was also unfinished business, which the association had a right, and which was its duty, to finish, notwithstanding the acts of the legislature."
made, only in compliance with the law. There was nothing to prevent the association from complying with the statutes and thus placing itself in the attitude where it could legally make the loan and take the mortgage, if it were under obligation to do so as it claims."
And the court observed that it could not be considered that the association and Cannon were winding up an old transaction and unfinished business, but were doing business in the sense of the statute and in defiance of its prohibition, and refused to enforce the mortgage of the association. We cannot assent to the view that there is nothing to prevent the association from complying with the statutes. The mere filing of its charter in a particular office -- the Secretary of State's or some other office -- might be easily complied with, but the deposit, with some responsible trust company or state officer of the state or some other state, of mortgages or securities of from $25,000 to $50,000 in amount at the discretion of the state treasurer, might be impossible to comply with. At any rate, the requirement is so very onerous that the association could justly decline to do business in the state on that condition. It might indeed have the right to decline any condition and retire from the state, and from all it had the option to retire from. But it could not retire from the execution of its contracts. It contracted with Bedford to make him a loan if it had the means in its treasury and his security was good. The state could not affect that obligation, nor impair it. "The obligation of a contract is the law which binds the parties to perform their agreement.'" 4 Wall. 452 [argument of counsel -- omitted]. The building association was incorporated under the laws of New York to make loans to its members, and rights to a loan accrued to membership. The condition of a loan existing -- means in the treasury, a tender of good security -- the contingent right became a vested one, a contract was formed, and can there be a doubt that it was enforceable against the association? If it could have been enforced by suit, it was properly yielded to without suit, and possessed all legal sanctions.
have affirmed the existence of that power many times; but manifestly it cannot be exercised to discharge the citizens of the state from their contract obligations.
"where the promise to pay a sum above legal interest depends upon a contingency, and not upon the happening of a certain event, the loan is not usurious."
But the fact was not as asserted.
well settled. If the rate of interest be higher at the place of the contract than at the place of performance, the parties may lawfully contract in that case also for the higher rate."
See also Andrews v. Pond, 13 Pet. 78; Railroad Company v. Bank of Ashland, 12 Wall. 226; Scotland County v. Hill, 132 U. S. 107; Cromwell v. Sac County, 96 U. S. 57; Cockle v. Flack, 93 U. S. 344.
"The second assignment of error is that the note and mortgage were both usurious on their faces, and nonenforceable. As already stated, the note stipulates on its face to pay five percent interest per annum, and five percent premium per annum at the office of the company at Minneapolis, Minnesota. This contract is a Minnesota contract, and is expressly authorized by the charter of the company and the laws of that state, which have been distinctly proved, and appear on the record."
The assignment of error was held not well taken.
The circuit court adjudged Mrs. Bedford personally liable for the indebtedness to the association. This is conceded to be error, and it has been stipulated "that an order or decree may be entered in this cause releasing her from said liability upon such terms and conditions as to this Court may seem just."

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Franklin Delano Roosevelt served as the thirty-second president of the United States from 1933 to 1945. During his unprecedented four terms in office, Roosevelt established himself as a towering national leader, leading the United States out of the Great Depression through the active involvement of the federal government in the national economy. The federal government grew dramatically in size and power as Congress enacted Roosevelt's New Deal program. As president, Roosevelt was responsible for the creation of Social Security, federal labor laws, rural electrification programs, and myriad projects that assisted farmers, business, and labor. During World War II Roosevelt's leadership was vital to rallying the spirits of the citizenry and mobilizing a wartime economy. Nevertheless, Roosevelt was a controversial figure. Many economic conservatives believed his programs owed more to state socialism than to free enterprise.
Roosevelt was born on January 30, 1882, in Hyde Park, New York, the only son of James and Sara Delano Roosevelt. The young Roosevelt was taught to be a gentleman and to exercise Christian stewardship through public service. He graduated from Harvard University in 1904 and in 1905 wed Eleanor Roosevelt, the niece of his fifth cousin, President Theodore Roosevelt.
Roosevelt attended Columbia University Law School but left without receiving a degree when he passed the New York bar exam in 1907. In 1910 Roosevelt was elected to the New York Senate as a member of the Democratic Party. Reelected in 1912, he resigned in 1913 to accept an appointment from President Woodrow Wilson as assistant secretary of the Navy. For the next seven years, Roosevelt proved an effective administrator and an advocate of reform in the U.S. Navy.
Roosevelt was nominated for vice president on the 1920 Democratic party ticket. He waged a vigorous campaign in support of the presidential nominee, James M. Cox, but the Republican ticket headed by Warren G. Harding soundly defeated Cox and Roosevelt. After the election Roosevelt joined a Maryland bonding company and began investing in various business schemes.
Roosevelt's life changed in August 1921, when he was stricken with poliomyelitis while vacationing at Campobello Island, New Brunswick. Initially, Roosevelt was completely paralyzed, but over several years of intense therapy, he made gradual improvement. His legs, however, suffered permanent paralysis. For the rest of his life, he used a wheelchair and could walk only a few steps with the help of leg braces.
Eleanor Roosevelt believed her husband's recovery depended on his reentry into New York politics. She attended meetings, made speeches, and reported back to him on the political events of the day. By 1924 Roosevelt was at the Democratic National Convention nominating Governor Alfred E. Smith of New York for president. Smith, who lost the presidential elections in 1924 and 1928, showed Roosevelt the ways of New York state politics and pushed him to run for governor in 1928. A reluctant Roosevelt won by a narrow margin, but soon was governing as if he had won by a landslide. With the stock market crash of October 25, 1929, the United States was thrown into a national economic depression of unprecedented severity. As governor, Roosevelt set up the first state public relief agency and tried to find ways to spark an economic recovery. His landslide reelection in 1930 made him the logical candidate to face the Republican president Herbert Hoover in the next presidential election.
Roosevelt was nominated for president on the third ballot of the 1932 Democratic National Convention. During the campaign Roosevelt called for the federal government to take action to revive the economy and end the suffering of the thirteen million unemployed people. Hoover advocated a more limited role for the federal government in the national economy. Roosevelt easily defeated Hoover and brought with him large Democratic majorities in both houses of Congress.
Roosevelt took office on March 4, 1933, at a time when the economy appeared hopeless. In his inaugural address he reassured the nation that "the only thing we have to fear is fear itself." He proposed a New Deal for the people of the United States and promised to use the power of the executive branch to address the economic crisis.
During his first hundred days in office, Roosevelt sent Congress many pieces of legislation that sought to boost economic activity and restore the circulation of money through federally funded work programs. The Civilian Conservation Corps (CCC) provided unemployment relief and an opportunity for national service to young workers, while promoting conservation through reforestation and flood control work. Federal funds were given to state relief agencies for direct relief, and the Reconstruction Finance Company was given the authority to make loans to small and large businesses.
The centerpieces of Roosevelt's New Deal legislation were the Agricultural Adjustment Act (AAA) of 1933 (7 U.S.C.A. § 601 et seq.) and the National Industrial Recovery Act (NIRA) of 1933 (48 Stat. 195). The AAA sought to raise farm prices by giving farmers federal subsidies if they reduced their agricultural production.
The NIRA was a comprehensive attempt to manage all phases of U.S. business. It established the National Recovery Administration (NRA) to administer codes of fair practice within each industry. Under these codes labor and management negotiated minimum wages, maximum hours, and fair-trade practices for each industry. The Roosevelt administration sought to use these codes to stabilize production, raise prices, and protect labor and consumers. By early 1934 there were 557 basic codes and 208 supplementary ones. In 1935, however, the Supreme Court struck down the NIRA in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570.
In 1935 Roosevelt and the Congress passed the Social Security Act (42 U.S.C.A. § 301 et seq.), a fundamental piece of social welfare legislation that provided unemployment compensation and pensions for those over the age of sixty-five. More groundbreaking legislation came with the passage of the Wagner Act, also known as the National Labor Relations Act (NLRA) of 1935 (29 U.S.C.A. § 151 et seq.), which recognized for the first time the right of workers to organize unions and engage in collective bargaining with employers.
Roosevelt handily defeated Republican Alfred M. Landon, the governor of Kansas, in the 1936 presidential election. In his second term, however, Roosevelt met more resistance to his legislative initiatives. Between 1935 and 1937, the Supreme Court struck down as unconstitutional eight New Deal programs that attempted to regulate the national economy. Most of the conservative justices who voted against the New Deal statutes were over the age of seventy. Roosevelt responded by proposing that justices be allowed to retire at age seventy at full pay. Any justice who declined this offer would be forced to have an assistant with full Voting Rights. The assistant, of course, as a Roosevelt appointee, would be more likely to be sympathetic to the president's political ideals. This plan to "pack" the Court was met with hostility by Democrats and Republicans and rejected as an act of political interference. Despite the rejection of his plan, Roosevelt ultimately prevailed. In 1937 the Supreme Court upheld the Wagner Act in NLRB v. Jones and Laughlin Steel Corp. 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893, signaling an end to the invalidation of New Deal laws that sought to reshape the national economy. From Jones onward the Court permitted the federal government to take a dominant role in matters of commerce.
By 1937 the national economy appeared to be recovering. In the fall of 1937, however, the economy went into a recession, accompanied by a dramatic increase in unemployment. Roosevelt responded by instituting massive government spending, and by June 1938 the economy had stabilized.
During the late 1930s, Roosevelt had also become preoccupied with foreign policy. The rise of Adolf Hitler and Nazism in Germany, coupled with a militaristic Japanese government that had invaded Manchuria in 1933, created international tensions that Roosevelt realized might come to involve the United States. U.S. foreign policy had traditionally counseled against entanglements with other nations, and the 1930s had seen a resurgence of isolationist thought. Roosevelt, while publicly agreeing with isolationist legislators, quietly moved to enhance U.S. military strength.
With the outbreak of World War II in Europe in August 1939, Roosevelt sought to aid Great Britain and France against Germany and Italy. The Neutrality Act of 1939 (22 U.S.C.A. § 441), however, prohibited the export of arms to any belligerent. With some difficulty Roosevelt secured the repeal of this provision so that military equipment could be sold to Great Britain and France.
In 1940 Roosevelt took the unprecedented step of seeking a third term. Although there was no constitutional prohibition against a third term, President George Washington had established the tradition of serving only two terms. Nevertheless, Roosevelt was concerned about the approach of war and decided a third term was necessary to continue his plans. He defeated the Republican nominee, Wendell L. Willkie, pledging that he would keep the United States out of war. Roosevelt's margin of victory in the popular vote was closer than in 1936, but he still won the Electoral College vote easily.
Following his reelection, Roosevelt became more public in his support of the Allies. At his urging, Congress moved further away from neutrality by passing the Lend-Lease Act of 1941 (55 Stat. 31). Lend-Lease provided munitions, food, machinery, and services to Great Britain and other Allies without immediate cost.
The United States entered World War II following the Japanese attack on the U.S. naval base at Pearl Harbor, Hawaii, on December 7, 1941. Roosevelt rallied a stunned citizenry and began the mobilization of a wartime economy. In his public speeches and "fireside chats" on the radio, Roosevelt imparted the strong determination that the United States would prevail in the conflict. He met with Winston Churchill, the prime minister of Great Britain, and Joseph Stalin, the leader of the Soviet Union, several times during the war to discuss military strategy and to plan power-sharing in the postwar world. Roosevelt, who needed the Soviet Union's cooperation in defeating Germany, sought to minimize conflicts with Stalin over postwar boundaries in Europe.
In 1944 Roosevelt decided to run for a fourth term. Though his health had seriously declined, he wished to remain commander in chief for the remainder of the war. The Republican Party nominated Governor Thomas E. Dewey of New York for president, but again Roosevelt turned back the challenge, winning 432 electoral votes to Dewey's 99.
In February 1945 Roosevelt traveled to Yalta in the Crimea to meet with Churchill and Stalin. Germany was on the edge of defeat, but Japan's defeat did not appear imminent. Stalin accepted Roosevelt and Churchill's offer of territorial concessions in Asia in return for his promise that the Soviet Union would enter the war against Japan once Germany was defeated. At Yalta the leaders reaffirmed earlier agreements and made plans for the establishment of democratic governments in eastern Europe. The Yalta agreements were not clearly written, however, and therefore were open to differing interpretations by the Allies. Within a month after Yalta, Roosevelt sent a sharp message to Stalin concerning Soviet accusations that Great Britain and the United States were trying to rob the Soviets of their legitimate territorial interests.
Early in the war, Roosevelt decided that an effective international organization should be established after the war to replace the League of Nations. At Yalta, Roosevelt pressed for the creation of the United Nations as a mechanism to preserve world peace. A conference attended by fifty nations was scheduled to begin on April 25, 1945, in San Francisco, California, to draft a United Nations charter. Roosevelt had planned to attend, but his health had steadily declined since the 1944 election.
Instead, Roosevelt went to his retreat in Warm Springs, Georgia, where he had begun his rehabilitation from polio in the 1920s. He died there on April 12, 1945. Vice President Harry S. Truman succeeded Roosevelt. On May 7 the war in Europe ended with Germany's surrender; four months later, on September 2, Japan also surrendered, ending the war in the Pacific.
Jenkins, Roy. 2003. Franklin Delano Roosevelt. New York: Times Books.
Kline, Stephan O. 1999. "Revisting FDR's Court Packing Plan: Are the Current Attacks on Judicial Independence So Bad?" McGeorge Law Review 30 (spring).
McElvaine, Robert S. 2002. Franklin Delano Roosevelt. Washington, D.C.: CQ Press.
This page was last modified on 6 January 2010, at 18:23.	This page has been accessed 21,426 times.


Held: The conviction is reversed. Pp. 361 U. S. 213-219.
(a) Since the indictment did not charge interference with the exportation of steel from the State, it was prejudicial error to submit to the jury the question whether the extortion interfered with the exportation of steel. Pp. 361 U. S. 215-219.
(b) The variance between pleading and proof here involved was not insignificant, and may not be dismissed as harmless error, because it deprived petitioner of his substantial right to be tried for a felony only on charges presented in an indictment returned by a grand jury. Pp. 361 U. S. 217-218.
(c) Since the jury might have based the conviction on a finding of interference with the exportation of steel, the conviction must be reversed. P. 361 U. S. 219.
Petitioner Nicholas Stirone was indicted and convicted in a federal court for unlawfully interfering wit interstate commerce in violation of the Hobbs Act. [Footnote 1] The crucial question here is whether he was convicted of an offense not charged in the indictment.
We agree with the Court of Appeals that Rider's dependence on shipments of sand from outside Pennsylvania to carry on his ready-mixed concrete business entitled him to the Hobbs Act's protection against interruption or stoppage of his commerce in sand by extortion of the kind that the jury found the petitioner had committed here. That Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence. The Act outlaws such interference "in any way or degree." 18 U.S.C. § 1951(a). Had Rider's business been hindered or destroyed, interstate movements of sand to him would have slackened or stopped. The trial jury was entitled to find that commerce was saved from such a blockage by Rider's compliance with Stirone's coercive and illegal demands. It was to free commerce from such destructive burdens that the Hobbs Act was passed. United States v. Green, 350 U. S. 415, 350 U. S. 420.
Whether prospective steel shipments from the new steel mills would be enough, alone, to bring this transaction under the Act is a more difficult question. We need not decide this, however, since we agree with the dissenting judges in the Court of Appeals that it was error to submit that question to the jury, and that the error cannot be dismissed as merely an insignificant variance between allegation and proof, and thus harmless error, as in Berger v. United States, 295 U. S. 78. The crime charged here is a felony, and the Fifth Amendment requires that prosecution be begun by indictment.
121 U. S. 121 U.S. 1, 121 U. S. 10.
121 U. S. 121 U.S. 1, 121 U. S. 13. The Bain case, which has never been disapproved, stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him. See also United States v. Norris, 281 U. S. 619, 281 U. S. 622. Cf. Clyatt v. United States, 197 U. S. 207, 197 U. S. 219, 220. Yet the court did permit that in this case. The indictment here cannot fairly be read as charging interference with movements of steel from Pennsylvania to other States, nor does the Court of Appeals appear to have so read it. The grand jury which found this indictment was satisfied to charge that Stirone's conduct interfered with interstate importation of sand. But neither this nor any other court can know that the grand jury would have been willing to charge that Stirone's conduct would interfere with interstate exportation of steel from a mill later to be built with Rider's concrete. And it cannot be said with certainty that, with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned. Although the trial court did not permit a formal amendment of the indictment, the effect of what it did was the same. And the addition charging interference with steel exports here is neither trivial, useless, nor innocuous. Compare Ford v. United States, 273 U. S. 593, 273 U. S. 602; Goto v. Lane, 265 U. S. 393, 265 U. S. 402. While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance, and then dismissed as harmless error. Compare 295 U. S.
United States, 295 U. S. 78. The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. [Footnote 3] Thus, the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for interference with interstate commerce which the grand jury did not charge.
to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment. Here, as in the Bain case, we cannot know whether the grand jury would have included in its indictment a charge that commerce in steel from a nonexistent steel mill had been interfered with. Yet, because of the court's admission of evidence and under its charge, this might have been the basis upon which the trial jury convicted petitioner. If so, he was convicted on a charge the grand jury never made against him. This was fatal error. Cf. Cole v. Arkansas, 333 U. S. 196; De Jonge v. Oregon, 299 U. S. 353.
"thereupon, on motion of the United States, by counsel, the court orders that the indictment be amended by striking out the words 'the Comptroller of the Currency and' therein contained."
Ex parte Bain, 121 U. S. 1, 121 U. S. 11. See also Costello v. United States, 350 U. S. 359, 350 U. S. 362-363, n. 6.


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The big day is Monday – USA v. Ghana at 5:00 CST. But today and this weekend (just in time for Father’s Day) we have World Cup Viewus Maximus. Four games today, three games tomorrow. No overlap, all available to watch on ABC and ESPN. It’s like Sweet Sixteen weekend – all the games are on, all of them are important – only with higher stakes and it only occurs every four years. Have a seat on the couch or head out to your favorite sports bar.
So far we’ve seen some bad refereeing decisions (Brazil penalty, Mexico disallowed goals) and a shocking dismantlement of the Spaniards by the Dutch. The games this weekend all have some intrigue and reasons to watch.
Colombia v. Greece – 11:00 Sat: Without Falcao, Colombia aren’t as fun, but they’re still pretty fun. Will the Greeks come to play or will they bunker down?
Uruguay v. Costa Rica – 2:00 Sat: Luis Suarez and Edison Cavani are worth a look. Let’s hope Suarez’s knee is really OK. The Ticos of Costa Rica are from our region and feature exciting players like Joel Campbell and Bryan Ruiz. They’re definitely the underdogs in this group.
England v. Italy – 5:00 Sat: Euro Old Guard powers square off. The winner has the inside track on this group; the loser blames the weather and gets scorched by their home country’s media. A lot to like here Ballotelli and Pirlo against Gerrard and Rooney. This is one to watch.
Japan v. Ivory Coast – 8:00 Sat: Which Japan shows up? The technical swashbuckling samurai or the overmatched, over-pressured team of last summer? Ivory Coast features big names like Drogba and the two Toures (Yaya and Kolo). This is a potentially great match-up and we could see either of these teams winning the group or completely bombing out of the tournament.
Switzerland v. Ecuador – 11:00 Sun: Can the Swiss take the heat? The weather and Ecuadorians will oblige them. Is Ecuador for real or are they just the beneficiary of playing all their qualifiers at a very altitude?
France v. Honduras – 2:00 Sun: Hondo, our other regional cousins (we don’t claim Mexico) are big underdogs here. Many of their players are MLS guys. France has star power, skill, and talent, but you don’t know if they’ll show up to play or end up on strike.
Argentina v. Bosnia-Herzegovina – 5:00 Sun: Messi, Higuain, Aguero for Argentina. How will they play together? Will Messi exert some leadership and lead this team like he can? Bosnia will certainly try to bunker and counter but they do have Dzeko and Pjanic in the attack.
Here’s hoping for some great play, plenty of goals, and fewer bad calls this weekend.
The Mexico friendly is behind us. A tale of two halves, with some impressive midfield play and alarming defending, and surprise! Jurgen unveils a diamond midfield. Mostly, guys who’ve already booked tickets to the World Cup confirmed why they’re going, and a couple of guys made strong cases for inclusion. Among those not staking claims were the injured (Brad Evans), the not-allowed-to-participate-because-Mexico (Beasley, Herculez, Joe Corona) and the very wet behind the ears (Julian Green). While we wouldn’t be surprised to see Green brought along for seasoning, it’s getting might late for debutantes.
So it’s time for another Beemsville 23: our picks (not who we think Jurgen Klinsmann will take) for the World Cup. It’s t-minus two months until the USA kicks off against Ghana in Brazil, and only a couple of weeks before the coaching staff names its preliminary 30-man roster for training camp.
Earlier this month, Jurgen rolled out a mostly European-based squad in Cyprus, who were pretty roundly outplayed by a motivated Ukrainian side that’s just about the best team not to make the World Cup. It was an opportunity to confirm who probably shouldn’t be on the 23 man roster for Brazil, and that’s the best we can say about that game. Guys like Oguchi Onyewu, John Brooks, Edgar Castillo, and Sascha Klejistan showed very little.
So here’s our Ides of March Beemsville 23: our picks (not who we think Jurgen will take) for the World Cup, based on numerous factors. We will know more next month, with the Mexico friendly played and MLS a month or so into the schedule.
Goalkeepers (3): Tim Howard (Everton), Brad Guzan (Aston Villa), Nick Rimando (Real Salt Lake). Timmy remains the #1.
The USA’s January camp is behind us, this World Cup year begun with training in Sao Paulo and an unconvincing victory over South Korea last weekend. Coach Jurgen has begun his stretch run of evaluation, giving looks to the MLS-based contingent in camp while continuing to watch and track the European and Mexico-based players.
Interesting about Jurgen: he espouses a lot of new-age philosophy, talks about mindset, attitude, leaving the door open for players. But when it’s come down to it, he’s been very regimented about bringing players in, having them earn their spots over time. He’s looked at a lot, but you get the sense he’s much less likely to drop a surprise on us than his predecessors.
That said, we have significant questions about the team’s back-line, the attacking midfield spots, as well as how many forwards should make the roster. Guys are hurt, guys aren’t playing (or aren’t playing well), and MLS is still a month from kicking off. We’ll know a lot more when the March 5 friendly in Ukraine rolls around.
For now, though, it’s time to roll out the Beemsville 23: our picks (not who we think Jurgen will take) for the World Cup, based on numerous scientific factors like watching the players on TV (some more than others), FIFA 2014-PS3 edition, the opinions of soccer writers and podcasters, and the proverbial gut feeling.