Laughlin E. Waters, U. S. Atty., Ray H. Kinnison, Asst. U. S. Atty., Chief of Criminal Division, Manuel L. Real, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before MATHEWS, HEALY and BONE, Circuit Judges.
"[Appellant], a male person within the class made subject to selective service under the Selective Service Act of 1948,3 registered as required by said act and the regulations promulgated thereunder and thereafter became a registrant of Local Board No. 113, said board being then and there duly created and acting, under the Selective Service System established by said act, in Los Angeles County, in the Central Division of the Southern District of California; pursuant to said act and the regulations promulgated thereunder, [appellant] was classified in Class I-A-O and was notified of said classification and a notice and order by said board was duly given to him to report for induction into the armed forces of the United States of America on July 28, 1952, in Los Angeles County, California; and at said time and place [appellant] did knowingly fail and neglect to perform a duty required of him under said act and the regulations promulgated thereunder in that he then and there knowingly failed and refused to be inducted into the armed forces of the United States as so notified and ordered to do."
Appellant was arraigned, pleaded not guilty and filed a motion to dismiss the indictment. That motion was denied. Thereafter appellant waived jury trial and was tried without a jury. At the close of the evidence offered by appellee, the United States, appellant moved for a judgment of acquittal. That motion was denied. Thereafter appellant offered evidence and, at the close of all the evidence, again moved for a judgment of acquittal. That motion was denied. Thereafter appellant was found guilty, and a judgment was entered sentencing him to be imprisoned for four years. This appeal is from that judgment.
Appellant contends that the motion to dismiss the indictment should have been granted because the indictment was fatally defective in that the Act on which the indictment was based was referred to in the indictment as the "Selective Service Act of 1948," instead of the "Universal Military Training and Service Act." There is no merit in this contention. The Act on which the indictment was based has two names — "Selective Service Act of 1948" and "Universal Military Training and Service Act."4 The name used in the indictment was a proper and sufficient designation of the Act.
"By reason of religious training and belief, I am conscientiously opposed to participation in war in any form and for this reason hereby request that the local board furnish me a Special Form for Conscientious Objector (SSS Form No. 150)10 which I am to complete and return to the local board for its consideration."
On March 8, 1951, the local board mailed him an order (SSS Form No. 223) to report for physical examination.19 He complied with that order, was examined on March 16, 1951, and was found acceptable for induction. Thereafter, on July 16, 1952, the local board mailed him an order (SSS Form No. 252) to report for induction20 on July 28, 1952. He received that order on July 18, 1952, but did not comply with it. Instead, on July 28, 1952, he knowingly failed and refused to be inducted.
Thus the evidence showed that appellant, on July 28, 1952, knowingly failed and refused to perform a duty required of him under §§ 1-21 of the Act, 50 U. S.C.A.Appendix, §§ 451-454 and 455-471, and regulations made pursuant thereto.21 We therefore hold that the evidence was sufficient to sustain his conviction.
"Q. Did you speak to her about an appeal? A. Yes.
"Q. What was the conversation on that? A. Well, as I already said before, she said as I had already been classified I-A-O, that the board wouldn't change their decision.
"Q. Did you ask her if there was anything you could do to get them to change the decision? A. Yes.
"Q. And what did she say? A. She said there wasn't."
Obviously, appellant did not, in or by that conversation, attempt to appeal from his classification, nor did the clerk, in or by that conversation, frustrate appellant; nor does the record show that appellant ever made any such attempt or was ever frustrated by the clerk or anyone else.
As indicated above, appellant's claim was that, by reason of religious training and belief, he was conscientiously opposed (1) to participation in war in any form and (2) to participation in noncombatant training or service. On page 1 of his special form (SSS Form No. 150), he was asked to describe the nature of the belief which was the basis of his claim. He answered as follows: "I believe that it is wrong to kill (Romans 13:9), that it is wrong to fight with carnal weapons (2 Corinthians 10:3-5; Ephesians 6:12; Matthew 26:52) and participate in carnal warfare (John 18:36). Since these are the duties of Military Services, I can't join them. I also believe it is my duty to meet with the Church of Christ on the first day of the week. I believe that I should obey the Lord rather than man." He did not say that he believed it was wrong to participate in noncombatant training or service.
On page 2 of his special form, appellant was asked to explain how, when and from whom or from what source he received the training and acquired the belief which was the basis of his claim. He answered as follows: "By studying the Bible myself. From religious teaching in the Church of Christ, and from my mother's training at home, both from my earliest remembrance." He did not say that he had been taught in the Church of Christ or at home, by his mother or anyone else, that it was wrong to participate in noncombatant training or service.
On page 3 of his special form, having stated that he was a member of the Church of Christ, appellant was asked to describe carefully the creed or official statements of that church in relation to participation in war. He answered as follows: "It is wrong to kill (Romans 13:9), it is wrong to fight with carnal weapons (2 Corinthians 10:3-5; Ephesians 6:12; Matthew 26:52), it is wrong to participate in carnal warfare (John 18:36)." He did not say that, according to the creed or official statements of the Church of Christ, it was wrong to participate in noncombatant training or service.
From the answers quoted above, the local board could reasonably find — as it did — that appellant was, by reason of religious training and belief, conscientiously opposed to participation in war in any form, but was not, by reason of religious training and belief, conscientiously opposed to participation in noncombatant training or service. There was, therefore, a basis in fact for his classification in Class I-A-O.
1. Also called the Selective Service Act of 1948.
2. Section 12(a) of the Act, 50 U.S.C.A. Appendix, § 462(a), provides: "* * * any person * * * who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of [§§ 1-21 of the Act, 50 U.S.C.A.Appendix, §§ 451-454 and 455-471], or rules, regulations, or directions made pursuant to [said sections], * * * shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *." See 62 Stat. 622.
3. Also called the Universal Military Training and Service Act.
4. As originally enacted — on June 24, 1948 — § 1(a) of the Act, 50 U.S.C.A.Appendix, § 451(a), read as follows: "This Act may be cited as the `Selective Service Act of 1948.'" See 62 Stat. 604. On June 19, 1951, it was amended to read as follows: "This Act may be cited as the `Universal Military Training and Service Act.'" See 65 Stat. 75. The evidence showed that some of the things alleged in the indictment occurred between June 24, 1948, and June 19, 1951, and that some occurred after June 19, 1951.
5. Mosca v. United States, 9 Cir., 174 F. 2d 448; Lii v. United States, 9 Cir., 198 F.2d 109; Drown v. United States, 9 Cir., 198 F.2d 999.
6. See 62 Stat. 605.
7. See 32 C.F.R., 1949 Edition, § 1611.1. All sections of 32 C.F.R., 1949 Edition, cited in this opinion were in effect at all pertinent times prior to September 28, 1951.
8. Section 10(b) (3) of the Act, 50 U.S. C.A.Appendix, § 460(b) (3), provides: "* * * [The President] shall create and establish one or more local boards in each county * * * of each State * * *. Each local board shall consist of three or more members to be appointed by the President * * *. Such local boards * * * shall, under rules and regulations prescribed by the President, have the power within the respective jurisdictions of such local boards to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under [§§ 1-21 of the Act, 50 U.S.C.A. Appendix, §§ 451-454 and 455-471], of all individuals within the jurisdiction of such local boards. The decisions of such local board shall be final, except when an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe. There shall be not less than one appeal board located within the area of each Federal judicial district in the United States * * *." See 62 Stat. 619-620; 64 Stat. 1074; 65 Stat. 87. Prior to June 19, 1951, § 10(b) (3) of the Act, 50 U.S.C.A. Appendix, § 460(b) (3), provided that there should be at least one appeal board for each State. See 62 Stat. 620.
9. See 32 C.F.R., 1949 Edition, § 1621.9.
10. See 32 C.F.R., 1949 Edition, § 1621.11.
11. Section 6(j) of the Act, 50 U.S.C.A. Appendix, § 456(j), provides: "Nothing contained in [§§ 1-21 of the Act, 50 U.S.C.A.Appendix, §§ 451-454 and 455-471] shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code. Any person claiming exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the armed forces under [said sections], be assigned to noncombatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of such induction, be ordered by his local board, subject to such regulations as the President may prescribe, to perform for a period equal to the period prescribed in [§ 4(b) of the Act, 50 U.S.C.A. Appendix, § 454(b)] such civilian work contributing to the maintenance of the national health, safety, or interest as the local board may deem appropriate * * *." See 62 Stat. 612-613; 65 Stat. 86. Prior to June 19, 1951, § 6(j) of the Act, 50 U.S.C.A.Appendix, § 456(j), provided that a person so found to be conscientiously opposed to participation in such noncombatant service should be deferred. See 62 Stat. 613.
12. See 32 C.F.R., 1949 Edition, § 1622.20. On September 28, 1951, Class IV-E became Class I-O. See 32 C.F.R., 1951 Edition, § 1622.14. All sections of 32 C.F.R., 1951 Edition, cited in this opinion were in effect on September 28, 1951, and at all pertinent times thereafter.
13. See 32 C.F.R., 1949 Edition, § 1622.6; 32 C.F.R., 1951 Edition, § 1622.11.
14. See 32 C.F.R., 1949 Edition, § 1623.4.
15. See 32 C.F.R., 1949 Edition, § 1626.2.
16. See 32 C.F.R., 1949 Edition, § 1624.1.
17. See 32 C.F.R., 1949 Edition, § 1626.2.
18. See 32 C.F.R., 1949 and 1951 Editions, § 1625.2.
19. See 32 C.F.R., 1949 Edition, § 1628.11.
20. See 32 C.F.R., 1951 Edition, § 1632.1.
21. See 32 C.F.R., 1951 Edition, § 1632.14.
22. Williams v. United States, 9 Cir., 203 F.2d 85.
23. Meaning the local board.
24. Cf. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59; Tyrrell v. United States, 9 Cir., 200 F.2d 8; Dickinson v. United States, 9 Cir., 203 F.2d 336; Reed v. United States, 9 Cir., 205 F.2d 216. It should be noted that the Estep, Cox, Tyrrell, Dickinson and Reed cases involved classifications from which appeals had been taken.


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Brun, E., S. Morin and V. Vionnet, "La modélisation du manteau neigeux en réponse à des enjeux majeurs souvent ignorés", in Modéliser & simuler. Epistémologies et pratiques de la modélisation et de la simulation, tome 1, edited by F. Varenne and Marc Silberstein, http://www.materiologiques.com/Modeliser-simuler-Epistemologies, 2013.
Revuelto, J., Lecourt, G., Lafaysse, M., Zin, I., Charrois, L., Vionnet, V., Dumont, M., Rabatel, A., Six, D., Condom, T., Morin, S., Viani, A., and Sirguey, P. : Distributed vs. semi-distributed simulations of snowpack dynamics in alpine areas : case study in the upper Arve catchment, French Alps, 1989–2015, The Cryosphere Discuss., https://doi.org/10.5194/tc-2017-184, in review, 2017.
Réveillet, M., Six, D., Vincent, C., Rabatel, A., Dumont, M., Lafaysse, M., Morin, S., Vionnet, V., , and Litt, M. : Relative performance of empirical and physical models in assessing seasonal and annual glacier surface mass balance in the French Alps, The Cryosphere Discuss., https://doi.org/10.5194/tc-2017-188, in review, 2017.
Barrere, M., Domine, F., Decharme, B., Morin, S., Vionnet, V. , and Lafaysse, M. : Evaluating the performance of coupled snow-soil models in SURFEXv8 to simulate the permafrost thermal regime at a high Arctic site, 10, 3461-3479, Geosci. Model Dev., doi :10.5194/gmd-10-3461-2017, 2017.
Lafaysse, M., Cluzet, B., Dumont, M., Lejeune, Y., Vionnet V., and Morin, S. : A multiphysical ensemble system of numerical snow modelling, The Cryosphere, 11, 1173-1198, doi:10.5194/tc-11-1173-2017, 2017.
Naaim Bouvet F., H. Bellot, K. Nishimura, C. Genthon, C. Palerme, G. Guyomarc’h and V. Vionnet : Detection of snow fall occurrence during blowing snow events using photoelectric sensors, Cold Reg. Sci. Technol., 106-107,11-21, doi : 10.1016/j.coldregions.2014.05.005, 2014.
Vionnet, V., Martin, E., Masson, V., Guyomarc’h, G., Naaim-Bouvet, F., Prokop, A., Durand, Y. and Lac, C. : Simulation of wind-induced snow transport and sublimation in alpine terrain using a fully coupled snowpack/atmosphere model, The Cryosphere, 8, 395-415, doi : tc-8-395-2014, 2014.
Brun E., Vionnet, V., Boone, A., Decharme, B., Karbou, F., Peings, Y., Morin, S., and Valette, R. : Simulation of northern Eurasian local snow depth, mass and density using a detailed snowpack model and meteorological reanalyses, J. Hydrometeorol., 14, 203-219, doi : 10.1175/JHM-D-12-012.1, 2013.
Masson, V., Le Moigne, P., Martin, E., Faroux, S., Alias, A., Alkama, R., Belamari, S., Barbu, A., Boone, A., Bouyssel, F., Brousseau, P., Brun, E., Calvet, J.-C., Carrer, D., Decharme, B., Delire, C., Donier, S., Essaouini, K., Gibelin, A.-L., Giordani, H., Habets, F., Jidane, M., Kerdraon, G., Kourzeneva, E., Lafaysse, M., Lafont, S., Lebeaupin Brossier, C., Lemonsu, A., Mahfouf, J.-F., Marguinaud, P., Mokhtari, M., Morin, S., Pigeon, G., Salgado, R., Seity, Y., Taillefer, F., Tanguy, G., Tulet, P., Vincendon, B., Vionnet, V., and Voldoire, A. : The SURFEXv7.2 land and ocean surface platform for coupled or offline simulation of earth surface variables and fluxes, Geosci. Model Dev., 6, 929-960, doi : 10.5194/gmd-6-929-2013, 2013.
Vionnet, V., Guyomarc’h, G., Naaim Bouvet F., Martin, E., Durand, Y., Bel, C., Bellot, H. and Puglièse P. : Occurrence of blowing snow events at an alpine site over a 10-year period : observations and modeling, Adv. Water Res., 55, 53-63, doi : 10.1016/j.advwatres.2012.05.004, 2013.
Vionnet, V., Brun, E., Morin, S., Boone, A., Faroux, S., Le Moigne, P., Martin, E. and Willemet, J.-M. : The detailed snowpack scheme Crocus and its implementation in SURFEX v7.2, Geosci. Model Dev., 5, 773-791, doi : 10.5194/gmd-5-773-2012, 2012.
Brun, E., Vionnet, V., Morin, S., Boone, A., Faroux, S., Le Moigne, P., Martin, E. and Willemet, J.-M. : Le modèle de manteau neigeux Crocus et ses applications, La Météorologie, 76, 44-54, doi : 10.4267/2042/47245, 2012.
Brun E., Six, D., Picard, G.,Vionnet, V., Arnaud, L., Bazile, E., Boone, A., Bouchard, A., Genthon, C., Guidard, V., Le Moigne, P., Rabier, F. and Seity, Y. : Snow/atmosphere coupled simulation at Dome C, Antarctica, J. Glaciol., 57(204), 721-736, doi : 10.3189/002214311797409794, 2011.
Vionnet V., E. Martin, V. Masson, E. Brun, Y. Durand, G. Guyomarc’h et C. Lac ; 2011, "Simulations of snow-drift events in an alpine terrain" In Proc. of the IUGG General Assembly 2011, Melbourne, Juillet 2011. Présentation orale.
Vionnet V., E. Brun, S. Morin, A. Boone, S. Faroux, P. Le Moigne, E. Martin et J.-M. Willemet ; 2011, "Crocus-SURFEX : a new simulation platform dedicated to study snowcover processes" In Proc. of the IUGG General Assembly 2011, Melbourne, Juillet 2011. Poster.
Vionnet V., E. Martin, E. Brun, C. Lac, V. Masson et Y. Durand ; 2010, "Implementation of a blowing snow scheme in a meso-scale atmospheric model" In Proc. of the EGU General Assembly 2010, Vienne, Mai 2010. Présentation orale.
Vionnet V., E. Martin, E. Brun, C. Lac, V. Masson et Y. Durand ; 2010, "Introduction d’un schéma de transport de neige par le vent dans un modèle atmosphérique" In Proc. of the AMA 2010 Conference, Toulouse, Janvier 2010. Présentation orale.
Vionnet V., L. Bertino, K.A. Lisæter et G. Liston ; 2009, "Effects of snow cover heterogeneities on sea-ice development" In Proc. of the Notur 2009 Conference, Trondheim, Mai 2009. Poster.
Décembre 2011 : Animation d’une conférence de vulgarisation sur le thème : "Le transport de la neige par le vent" dans le cadre du cycle de conférence "Autour d’un micro avec Joël Collado". La revoir ici.
Juillet 2008 : Participation à la campagne d’été POLARCAT à Kangerlussuaq (Groënland), lors de l’année polaire internationale (collaboration franco-allemande CNRS/IPSL-DLR, études des feux de biomasse transportés vers l’Arctique, 2008).

matches: V. V. V. V. V. V.


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The Circuit Court, Hardee County, J. David Langford, J.
Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Respondent.
Warren Stang seeks a writ of certiorari directed to the Circuit Court for the Tenth Judicial Circuit, which denied his petition for writ of habeas corpus. Stang contends that he is being illegally detained in the Tenth Judicial Circuit under a sentencing order that is void. Because the attachments to Stang's petition show that the sentencing order is void, we treat Stang's petition as a petition for writ of habeas corpus, grant it, and order his release.
Stang initially pleaded guilty in January 2000 to twenty-four various white-collar offenses that occurred between 1991 and 1994. He was sentenced to five years in prison for fifteen of the counts, to run concurrently and with credit for time served, followed by three years of probation for the remaining nine counts, also to run concurrently. After serving his time in prison, Stang was released to probation, which he subsequently violated. The sentencing order on the violation of probation, dated March 30, 2005, imposed a combination of concurrent and consecutive sentences on the pending nine counts that totaled twenty-seven years. However, the order also granted Stang 1915 days' credit for time served and indicated that the credit was to be applied against each count. The practical effect of this sentencing order was that Stang would serve about two months in prison and then be released with no further supervision.
On April 21, 2005, Stang appealed the revocation of his probation to the Fourth District Court of Appeal. While this direct appeal was pending, Stang was transferred to the custody of the Department of Corrections. When the Department saw the March 30, 2005, sentencing order, it was "confused." Thus, on June 6, 2005, with no notice to Stang, his counsel, or the State, the Department faxed a letter to "Ana" at the Palm Beach County Clerk of Court. The fax attached the two-page sentencing order from March 30, 2005, and noted that page two of the sentencing order allowed Stang credit for "1,915 days `plus' the original county jail time and time served in the department's custody from [sic] counts 1 thru 3, 8, 30, 33, 34, 37, 39, 42, 51, 56, 60, 62 and 64, in accordance with Tripp v. State." The fax also noted that awarding this credit "would result in a potential immediate release." Therefore, the Department requested that the court "clarify" Stang's sentence within three working days.
Apparently in response to this letter, on June 7, 2005, the trial court entered an "amended" sentence that gave Stang a total of 1915 days' credit against his entire sentence. This amendment meant that Stang would serve approximately twenty-two years in prison, rather than approximately two months. Neither Stang nor his counsel were given notice of this "resentencing," and the "amended" sentence was not provided to Stang, his counsel, or the State. This "amended" sentence was entered sixty-nine days after Stang was sentenced for the violation of probation and while Stang's direct appeal of that sentence was pending.
Stang first learned of the existence of this "amended" sentencing order when he questioned the Department about his release date. The Department told Stang that he had been awarded 1915 days' credit against his total sentence, not each count, and it provided him with the "amended" sentence. When Stang attempted to address the issue of which sentence should be enforced — the original or the "amended" — through the prison grievance system, he was told that the Department was required to enforce the "amended" sentence and that it had no authority to disregard that sentence.
Stang also attempted to address the enforceability of the "amended" sentence through the court system. In a motion filed pursuant to Florida Rule of Criminal Procedure 3.850, Stang argued that the "jail time served" award in the "amended" sentence was incorrect and contrary to the sentence imposed when he entered his admission to the violation of his probation. See Stang v. State, 976 So.2d 656 (Fla. 4th DCA 2008). After the trial court denied this claim as untimely, Stang appealed, and the Fourth District reversed and remanded for reconsideration on the merits. Id. On remand, the postconviction court ordered the State to respond. The State did so by arguing that Stang was not entitled to the "windfall" of having his time served applied to each count. From the record before this court, it does not appear that the State addressed the issue of whether the "amended" sentence was legally entered or whether it comported with the sentence actually imposed at the violation of probation hearing. After "adopting" the State's response, the postconviction court denied Stang's rule 3.850 motion on April 18, 2008.
Stang did not appeal the denial of this postconviction motion. Instead, on June 26, 2008, he filed a petition for writ of habeas corpus with the Tenth Judicial Circuit arguing that the "amended" sentence was void because it was rendered during the pendency of his direct appeal. He also argued that entry of the "amended" sentence violated his due process rights because neither he nor his counsel were given notice of the court's intent to amend his sentence nor was he given the opportunity to be present when his sentence was amended. Finally, he argued that because his original sentence was not illegal and because the sixty-day period for modifying a sentence under rule 3.800(c) had expired, the trial court had no jurisdiction to "correct" any error in his sentence on the sixty-ninth day. Stang asserted that the initial legally imposed sentence had long since expired and that he was entitled to immediate release. The postconviction court denied Stang's habeas petition, finding that his claims had been "addressed appropriately at the administrative level." Stang then sought review of that ruling by seeking a writ of certiorari in this court.
As an initial matter, we treat Stang's petition for writ of certiorari as a petition for writ of habeas corpus because Stang is seeking his immediate release from custody. Florida Rule of Appellate Procedure 9.040(c) provides that "[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought." Because Stang is seeking his immediate release from prison based on an allegedly void sentencing order, his petition for writ of certiorari should be treated as a petition for writ of habeas corpus.
Turning to the merits, we note that this court's jurisdiction to consider Stang's habeas petition is quite limited. While Stang was convicted and sentenced in Palm Beach County, a county not within the territorial jurisdiction of this court, this court nevertheless has jurisdiction to review the sentencing order because Stang is currently assigned to the Hardee Correctional Institution, which is within the territorial jurisdiction of this court. See Alachua Reg'l Juvenile Det. Ctr. v. T.O., 684 So.2d 814, 816 (Fla. 1996). In such a case, "the scope of the reviewing court's inquiry is limited to whether the court that entered the [detention] order was without jurisdiction to do so or whether the order is void or illegal." Id; see also Murray v. Regier, 872 So.2d 217, 221 (Fla. 2002); Pressly v. Tadlock, 968 So.2d 1057, 1058 (Fla. 2d DCA 2007). The crux of the inquiry is whether the order is void or patently illegal, and "[t]he reviewing court may not discharge the detainee if the detention order is merely defective, irregular, or insufficient in form or substance." T.O., 684 So.2d at 816. As a practical matter, "[i]f the challenged detention order [is] determined to be in violation of the petitioner's constitutional guarantee of due process, then the order would clearly be `illegal' and not merely defective, irregular, or insufficient in form or substance." Murray, 872 So.2d at 222.
Here, our review of the record reveals that the detention order under which Stang is being held is void and illegal for several reasons. First, the trial court had no jurisdiction to "amend" Stang's sentence during the pendency of his direct appeal in the absence of a proper motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Florida Rule of Appellate Procedure 9.600(d) provides that a trial court retains jurisdiction during the pendency of an appeal in a criminal case to consider only motions filed pursuant to rule 3.800(b)(2) and motions addressed to post-trial release pursuant to rule 9.140(h). Cf. Brown v. State, 744 So.2d 1209, 1209 (Fla. 2d DCA 1999) (noting that the trial court's jurisdiction while an appeal is pending is limited to that provided by rule 9.600(d)).
Here, Stang's sentence was not "amended" pursuant to any motion filed under rule 3.800(b)(2). Clearly Stang did not file such a motion, and the State could not have properly filed such a motion since rule 3.800(b) permits the State to seek relief "only if the correction of the sentencing error would benefit the defendant or . . . correct a scrivener's error." Nothing in the record indicates that the error in question was simply a scrivener's error, nor has the State ever asserted so in any of its filings with the postconviction court, the Fourth District, or in this appeal. Accordingly, pursuant to rule 9.600(d), the trial court was without jurisdiction to enter the "amended" sentence, and the "amended" sentence is therefore void and unenforceable.
Second, the "amended" sentence was entered in violation of Stang's due process rights. A defendant has a due process right to be present at any sentencing or resentencing hearing at which judicial discretion will be exercised. See, e.g., Griffin v. State, 517 So.2d 669, 670 (Fla. 1987); Mullins v. State, 997 So.2d 443, 445 (Fla. 3d DCA 2008). A defendant also has the right to notice of the sentencing hearing and notice that any new sentence is appealable. Cf. Butler v. State, 973 So.2d 677, 678 (Fla. 2d DCA 2008) (noting that a defendant has a due process right to be represented by counsel at any resentencing and to be informed of his right to appeal the new sentence); Fuston v. State, 838 So.2d 1205, 1207 (Fla. 2d DCA 2003) (questioning the validity of an amended sentence as violative of due process when the defendant was not advised that the amended sentence was appealable); Canete v. Fla. Dep't of Corr., 967 So.2d 412, 416 n. 4 (Fla. 1st DCA 2007) (expressing serious due process concerns about a sentence imposed outside the defendant's presence, without notice, and without entry of an appealable sentencing order). Here, the record clearly shows that the trial court adversely modified Stang's sentence outside of his presence, without notice, and without providing either Stang or his counsel with the "amended" sentence so that an appeal could be taken. These blatant due process violations, apparent from the face of the record, render the "amended" sentence illegal. See Murray, 872 So.2d at 222.
Third, the "amended" sentence violated Stang's double jeopardy rights. This court and others have repeatedly held that a trial court may not rescind jail credit that was previously awarded, even if the initial award was improper, because such an action violates double jeopardy. See, e.g., Lebron v. State, 870 So.2d 165, 165 (Fla. 2d DCA 2004); Linton v. State, 702 So.2d 236, 236-37 (Fla. 2d DCA 1997); Wheeler v. State, 880 So.2d 1260, 1261 (Fla. 1st DCA 2004); but see Gallinat v. State, 941 So.2d 1237 (Fla. 5th DCA 2006) (finding no double jeopardy violation if the trial court simply corrects an award of jail credit that is clearly incorrect based on the face of the record). Here, as the Department's faxed letter confirms, the original sentencing documents awarded Stang 1915 days' credit against each of his sentences. The State neither appealed this award nor filed a motion to modify pursuant to rule 3.800(c). Accordingly, the trial court's "taking back" of Stang's previously awarded jail credit was a violation of his double jeopardy rights that renders his "amended" sentence illegal.
Because the "amended" sentencing order under which the Department is holding Stang is void and illegal, it is unenforceable. Under these circumstances, Stang can be legally held pursuant only to the original sentence imposed on March 30, 2005-not the June 7, 2005, "amended" sentence. Since the sentence imposed on March 30, 2005, expired years ago, Stang is entitled to immediate release.
Petition for writ of habeas corpus granted.
NORTHCUTT and VILLANTI, JJ., Concur.
WHATLEY, J., Concurs in result only.

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COLORADO v. Francis Barry CONNELLY.
Did respondent's mental condition render his waiver of Miranda rights ineffective?
The application for stay, presented to Justice WHITE and by him referred to the Court, is granted pending the issuance of the mandate of this Court.
Memorandum of Justice BRENNAN, with whom Justice STEVENS joins.
This grant of certiorari is yet another instance supporting the concern that the Court shows an unseemly eagerness to act as "the adjunct of the State and its prosecutors in facilitating efficient and expedient conviction. . . ." Wainwright v. Witt, 469 U.S. 412, 463, 105 S.Ct. 844, 872, 83 L.Ed.2d 841 (1985) (BRENNAN, J., dissenting). Most often, this concern has been evoked by the Court's overly narrow interpretations of the Constitution's fundamental guarantees and the laws established to secure relief from violations of those guarantees. See ibid.; United States v. Leon, 468 U.S. 897, 928-929, 104 S.Ct. 3405, 3430, 82 L.Ed.2d 677 (1984) (BRENNAN, J., dissenting). However, the Court's willingness to take special judicial action to assist the prosecutor has not been limited to its interpretations of substantive law. For example, in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), reargument was directed on a constitutional question not raised by either party because it provided a broader basis for upholding the State's action. Similarly, two Terms ago, Justice STEVENS noted the "quite striking" fact that during the preceding two-and-a-half years the Court had summarily reversed, without briefing or oral argument, 19 criminal casesevery one on the petition of the warden or the prosecutor and every one in his favor. Florida v. Meyers, 466 U.S. 380, 385-387, and n. 3, 104 S.Ct. 1852, 1855-1856, and n. 3, 80 L.Ed.2d 381 (1984) (STEVENS J., dissenting). Nothing has changed in the year and a half since that decision, for, although in the immediate wake of Justice STEVENS' dissent the Court did summarily reverse a few convictions on the petition of a criminal defendant, the trend to grant summary dispositions only in favor of the prosecutor has resumed and the record now stands at 26-4. 1 No particularly informed understanding of statistics is required to appreciate that the likelihood of courts so consistently erring in favor of defendants is truly remote and that only a one-sided exercise of discretion can explain these results.
Respondent approached a uniformed police officer and stated that "he had killed someone" and wanted to tell the officer about it. Before questioning respondent about the killing, the officer informed respondent of his Miranda rights. Respondent waived his rights and proceeded to confess to the murder of a young girl. After being charged with murder, respondent moved to suppress his statements as made involuntarily. A psychiatrist testified that respondent believed that the voice of God had commanded him to confess or commit suicide. The psychiatrist testified that respondent was suffering from "chronic paranoid schizophrenia" and "command auditory hallucinations" when he confessed and that respondent's actions were not the product of a free will. The trial court suppressed statements made both before and after the Miranda warnings were given on the ground that respondent's mental state rendered these confessions involuntary and tainted his waiver of the Miranda rights. The Colorado Supreme Court affirmed, and this petition followed. The prosecutor carefully limited his petition to this Court to challenge only the suppression of respondent's initial, unsolicited statements. The petition expressly states that "respondent's later confession, which involves a Miranda issue, is not an issue in this petition." Pet. for Cert. 15. Despite this, the Court directs the parties to brief and argue that issue.
I realize that, in itself, this order is not a matter of great significance. But even matters of small effect can cloak issues of great moment. In making the specific guarantees of the Bill of Rights a part of our fundamental law, the Framers recognized that limitless state power afflicts the innocent as well as the guilty, that even a crime-free world is not worth the fear and oppression that inevitably follow unrestricted police power, and that a truly free society is one in which every citizen guilty or innocentis treated fairly and accorded dignity and respect by the State. Of course, the Framers could not foresee the shape our society would take as the Nation developed. Nor could they foresee how the police function would evolve to keep pace. Rather, it has fallen to this Courtthe "ultimate interpreter of the Constitution," Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962)to enforce the rights enshrined in the Bill of Rights and preserve the principles established in 1789. Ours is the duty to prevent encroachment on these principles by over-zealous police in the discharge of their great responsibility to prevent crime. Every law-abiding citizen shares with the Court the belief that the prevention of crime is an essential governmental function. However, the Members of this Court have the special responsibility to recognize that, as essential as is the goal of preventing crime, "the Court must be ever mindful of its primary role as the protector of the citizen and not the warden or the prosecutor." Florida v. Meyers, 466 U.S., at 387, 104 S.Ct., at 1856 (STEVENS, J., dissenting). This Court has, sadly, lost sight of this role, to the detriment of the rights of each of us. I can only repeat: "One can only hope that this day too will soon pass." Wainwright v. Witt, 469 U.S., at 463, 105 S.Ct., at 873 (BRENNAN, J., dissenting).
The four cases since Florida v. Meyers decided in favor of a criminal defendant are: Payne v. Virginia, 468 U.S. 1062, 104 S.Ct. 3573, 82 L.Ed.2d 801 (1984) (per curiam ); Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984) (per curiam ); Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (per curiam ); and Lanier v. South Carolina, 474 U.S. 25, 106 S.Ct. 297, 88 L.Ed.2d 23 (1985) (per curiam ). The seven cases decided in favor of the warden or prosecutor during that same period are: Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (per curiam ); Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984) (per curiam ); United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1984) (per curiam ); United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam ); United States v. Benchimol, 471 U.S. 453, 105 S.Ct. 2103, 85 L.Ed.2d 462 (1985) (per curiam ); Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam ); and Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985) (per curiam ). Payne, Thompson, and Smith followed closely after Justice STEVENS' dissent in Florida v. Meyers. Since Smith was decided on December 10, 1984, however, five of the last six summary dispositions have been in favor of the prosecution.
I am not suggesting that all the summary judgments awarded to the State were incorrect or improper, although I did not agree with the result in many of the cases. It is the Court's selective employment of its summary disposition power only in favor of the prosecution that is most disturbing.
This action is even less justifiable than the improper decision to order reargument in New Jersey v. T.L.O., 469 U.S. 325, 106 S.Ct. 733, 83 L.Ed.2d 720 (1985), since here the Court cannot even point to having heard oral argument as justification for revising the issues presented to suit its own desires.
I express no views about the merits of the issues on which certiorari is now granted. See Ohio ex rel. Eaton v. Price, 360 U.S. 246, 79 S.Ct. 978, 3 L.Ed.2d 1200 (1959) (statement of BRENNAN, J.).
Robert E. O'CONNOR, et ux., Petitioners, 85-558 v. UNITED STATES. Paul H. COPLIN, et ux., Petitioners, 85-559 v. UNITED STATES. Jack R. MATTOX, et ux., Petitioners, 85-560 v. UNITED STATES.

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Justia › US Law › US Case Law › US Supreme Court › Volume 490 › California v. ARC America Corp.
Illinois Brick Co. v. Illinois, 431 U. S. 720, held that, generally, only overcharged direct purchasers, and not subsequent indirect purchasers, are entitled to recover treble damages under § 4 of the Clayton Act for price fixing violative of § 1 of the Sherman Act. Appellant States -- who are, at least in part, indirect purchasers of cement -- brought class actions against various cement producers in the appropriate federal courts seeking treble damages under the federal antitrust laws for an alleged nationwide conspiracy to fix cement prices and damages for alleged violations of their respective state antitrust laws, which arguably allow indirect purchasers to recover for all overcharges passed on to them by direct purchasers. The cases were transferred to the District Court for coordinated pretrial proceedings, and a settlement was reached with several major defendants. When appellants sought payment out of the settlement fund for their state indirect purchaser claims, appellees, class members who are direct purchasers, objected. The court refused to allow the claims, ruling that the state statutes are preempted by federal law because they are clear attempts to frustrate Congress' purposes and objectives, as interpreted in Illinois Brick. The Court of Appeals affirmed, holding that, depending on how they were construed, the state statutes would either conflict directly with federal law under Illinois Brick or would impermissibly interfere with the three federal antitrust policy goals that the court identified as having been defined by Illinois Brick and Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481: avoiding unnecessarily complicated litigation; providing direct purchasers with incentives to bring private antitrust actions; and avoiding multiple liability of defendants.
Held: The rule limiting federal antitrust recoveries to direct purchasers does not prevent indirect purchasers from recovering damages flowing from state antitrust law violations. Pp. 490 U. S. 100-106.
and did not consider state law or preemption standards or define the interrelationship between the federal and state law. Nothing in Illinois Brick suggests that it would be contrary to congressional purposes for States to allow indirect purchasers to recover under their own antitrust laws. Pp. 490 U. S. 100-103.
(b) In any event, the state indirect purchaser statutes do not interfere with accomplishing the federal law purposes as identified in Illinois Brick. First, the state statutes will not engender unnecessarily complicated federal antitrust proceedings, since they cannot and do not purport to affect available federal law remedies; since claims under them could be brought in state court, separately from federal direct purchaser actions; and since federal courts have discretion to decline to exercise pendent jurisdiction over burdensome state claims. Second, claims under the state statutes will not reduce the incentives of direct purchasers to bring private federal antitrust actions by reducing their potential recoveries. Illinois Brick was not concerned with the risk that a federal plaintiff might not be able to recover its entire damages award or might be offered less to settle. Rather, it was concerned that requiring direct and indirect purchasers to apportion the recovery under a single statute -- § 4 of the Clayton Act -- would result in no one plaintiff having a sufficient incentive to sue under that statute. The state statutes at issue pose no similar risk. That direct purchasers' recoveries may be reduced because they will have to share the settlement fund with indirect purchasers is not due to the impermissible operation of the state statutes, but is, rather, a function of the fact and form of the settlement, which was intended to dispose of all claimants, whether claiming under federal or state law and whether direct or indirect purchasers. Third, claims under the state statutes will not contravene any express federal policy condemning multiple liability for antitrust defendants, since Illinois Brick and similar cases simply construed § 4, and did not identify a federal policy against imposing state liability in addition to that imposed by federal law. Pp. 490 U. S. 103-106.
WHITE, J., delivered the opinion of the Court, in which all other Members joined, except STEVENS and O'CONNOR, JJ., who took no part in the consideration or decision of the case.
of a number of local governmental entities seeking treble damages under § 4 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 15(a), [Footnote 1] for an alleged conspiracy to fix the price of concrete block in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. The State and the local governments were all indirect purchasers of concrete block -- that is, they did not purchase concrete block directly from the price-fixing defendants, but rather purchased products or contracted for construction into which the concrete block was incorporated by a prior purchaser. The Court held that, with limited exceptions, [Footnote 2] only overcharged direct purchasers, and not subsequent indirect purchasers, were persons "injured in [their] business or property" within the meaning of § 4, and that therefore the State of Illinois was not entitled to recover under federal law for the portion of the overcharge passed on to it.
case, would not be entitled to recover on their indirect purchaser claims under § 4 unless those claims fell within one of the exceptions. In their complaints, however, appellants also alleged violations of their respective state antitrust laws under which, as a matter of state law, indirect purchasers arguably are allowed to recover for all overcharges passed on to them by direct purchasers. [Footnote 3] The claims under these state indirect purchaser statutes are the focus of this case.
with the various classes, resulting in a settlement fund in excess of $32 million. The settlements left distribution of the fund for later resolution, subject to approval of the District Court.
"[s]uch statutes are clear attempts to frustrate the purposes and objectives of Congress, as interpreted by the Supreme Court in Illinois Brick, and, accordingly, are preempted by federal law."
App. to Juris. Statement A-31 (emphasis omitted).
The Ninth Circuit affirmed. In re Cement and Concrete Antitrust Litigation, 817 F.2d 1435 (1987). The Court of Appeals identified "three purposes or objectives of federal antitrust law in this context," as defined by Illinois Brick and Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 (1968): avoiding unnecessarily complicated litigation; providing direct purchasers with incentives to bring private antitrust actions; and avoiding multiple liability of defendants. 817 F.2d at 1445. If state laws permitting indirect purchasers to recover were construed to restrict direct purchasers to suing only for the amount of any overcharge they have absorbed, the Court of Appeals was of the view that state law conflicted directly with federal law as construed in Illinois Brick. Alternatively, if state law permitted indirect purchasers to bring claims for damages in addition to the claims brought by direct purchasers, it would "impermissibly interfere with the three policy goals outlined in Hanover Shoe and Illinois Brick." 817 F.2d at 1445. The Court of Appeals therefore held that state indirect purchaser claims that did not satisfy any exception to Illinois Brick were preempted.
Appellants appealed to this Court, invoking our jurisdiction under 28 U.S.C. § 1254(2). We noted probable jurisdiction, 488 U.S. 814 (1988), and we now reverse.
We should first make it clear exactly what the issue is before us. These cases alleged violations of both the Sherman Act and state antitrust Acts. The settlements, as we understand it, covered both the federal and the state law claims; the settlement fund was intended to be distributed in complete satisfaction of those claims. Under federal law, no indirect purchaser is entitled to sue for damages for a Sherman Act violation, and there is no claim here that state law could provide a remedy for the federal violation that federal law forbids. Had these cases gone to trial and a Sherman Act violation been proved, only direct purchasers would have been entitled to damages for that violation, and there is no suggestion by the parties that the same rule should not apply to distributing that part of the fund that was meant to settle the Sherman Act claims. The issue before us is whether this rule limiting recoveries under the Sherman Act also prevents indirect purchasers from recovering damages flowing from violations of state law, despite express state statutory provisions giving such purchasers a damages cause of action.
when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941). See, e.g., Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 464 U. S. 248 (1984).
Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947). Given the long history of state common law and statutory remedies against monopolies and unfair business practices, [Footnote 4] it is plain that this is an area traditionally regulated by the States. Cf. Florida Lime & Avocado Growers, supra, at 373 U. S. 146 (regulation to "prevent the deception of consumers").
ARC America Corp. 10, n. 5; Brief for Appellees Allied Concrete, Inc., et al. 4. Congress intended the federal antitrust laws to supplement, not displace, state antitrust remedies. 21 Cong.Rec. 2457 (1890) (remarks of Sen. Sherman); see Cantor v. Detroit Edison Co., 428 U. S. 579, 428 U. S. 632-635 (1976) (Stewart, J., dissenting). And on several prior occasions, the Court has recognized that the federal antitrust laws do not preempt state law. See Watson v. Buck, 313 U. S. 387, 313 U. S. 403 (1941); Puerto Rico v. Shell Co., 302 U. S. 253, 302 U. S. 259-260 (1937); cf. Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 437 U. S. 133-134 (1978).
Appellees' only contention is that state laws permitting indirect purchaser recoveries pose an obstacle to the accomplishment of the purposes and objectives of Congress. State laws to this effect are consistent with the broad purposes of the federal antitrust laws: deterring anticompetitive conduct and ensuring the compensation of victims of that conduct. Illinois Brick, 431 U.S. at 431 U. S. 746; Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 429 U. S. 485-486 (1977). The Court of Appeals concluded, however, that such laws are inconsistent with, and stand as an obstacle to, effectuating the congressional purposes and policies identified in Hanover Shoe and Illinois Brick. [Footnote 6] In this respect, the Court of Appeals has misunderstood both Hanover Shoe and Illinois Brick.
before the Court in both that case and in Hanover Shoe was strictly a question of statutory interpretation -- what was the proper construction of § 4 of the Clayton Act. See, e.g., 431 U.S. at 431 U. S. 736.
It is one thing to consider the congressional policies identified in Illinois Brick and Hanover Shoe in defining what sort of recovery federal antitrust law authorizes; it is something altogether different, and in our view inappropriate, to consider them as defining what federal law allows States to do under their own antitrust law. As construed in Illinois Brick, § 4 of the Clayton Act authorizes only direct purchasers to recover monopoly overcharges under federal law. We construed § 4 as not authorizing indirect purchasers to recover under federal law because that would be contrary to the purposes of Congress. But nothing in Illinois Brick suggests that it would be contrary to congressional purposes for States to allow indirect purchasers to recover under their own antitrust laws.
the first instance in federal court. See Mine Workers v. Gibbs, 383 U. S. 715, 383 U. S. 725-726 (1966). Since many state indirect purchaser actions would be heard in state courts, at least when the federal courts determined that hearing those claims would be overly burdensome, any complication of federal direct purchaser actions in federal court would be minimal.
Second, the Court of Appeals reasoned that allowing state indirect purchaser claims could reduce the incentives of direct purchasers to bring antitrust actions by reducing their potential recoveries. The presence of indirect purchaser claims would reduce settlement offers to direct purchasers, the Court of Appeals believed, and if the total liability were to exhaust a defendant's assets, the direct purchasers would have to share the defendant's estate in bankruptcy with indirect purchasers. But the Court in Illinois Brick was not concerned with the risk that a plaintiff might not be able to recover its entire damages award or might be offered less to settle. Indeed, taken to its extreme, the Court of Appeals' logic would lead to the preemption of any state law claims against antitrust defendants, even if wholly unrelated, because the presence of other litigation could threaten the defendants with bankruptcy and reduce their willingness to settle. Illinois Brick was concerned that requiring direct and indirect purchasers to apportion the recovery under a single statute -- § 4 of the Clayton Act -- would result in no one plaintiff having a sufficient incentive to sue under that statute. State indirect purchaser statutes pose no similar risk to the enforcement of the federal law.
the settlement covered both federal and state law claims, and whatever amount is allocable to federal claims will be distributed only to direct purchasers. Indirect purchasers will participate only in distributing the funds available to claimants under state law. Even if the settlement fund is not to be divided between state and federal law claimants, the settlement necessarily was intended to dispose of all claimants, whether claiming under federal or state law and whether direct or indirect purchasers. That direct purchasers may have to share with indirect purchasers is a function of the fact and form of settlement, rather than the impermissible operation of state indirect purchaser statutes.
Third, the Court of Appeals concluded that state indirect purchaser claims might subject antitrust defendants to multiple liability, in contravention of the "express federal policy" condemning multiple liability. 817 F.2d at 1446 (citing Illinois Brick, Associated General Contractors of California, Inc. v. Carpenters, 459 U. S. 519, 459 U. S. 544 (1983), and Blue Shield of Virginia v. McCready, 457 U. S. 465, 457 U. S. 474-475 (1982)). But Illinois Brick, as well as Associated General Contractors and Blue Shield, all were cases construing § 4 of the Clayton Act; in none of those cases did the Court identify a federal policy against States imposing liability in addition to that imposed by federal law. Ordinarily, state causes of action are not preempted solely because they impose liability over and above that authorized by federal law, see Silkwood v. Kerr-McGee Corp., 464 U.S. at 464 U. S. 257-258; California v. Zook, 336 U. S. 725, 336 U. S. 736 (1949), and no clear purpose of Congress indicates that we should decide otherwise in this case.
purchaser statutes are preempted by federal law. The judgment of the Court of Appeals is therefore reversed.
"[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."
The Court noted two possible exceptions: when the direct purchaser and the indirect purchaser have entered into preexisting cost-plus contracts, Illinois Brick Co. v. Illinois, 431 U.S. at 431 U. S. 732, n. 12, and when the direct purchaser is owned or controlled by the indirect purchaser, id. at 431 U. S. 736, n. 16.
The statutes of Alabama, California, and Minnesota expressly allow indirect purchasers to sue. See Ala.Code § 6-5-60(a) (1975) (allowing recovery by any person "injured or damaged . . direct or indirect"); Cal.Bus. & Prof.Code Ann. § 16750(a) (West Supp.1989) (allowing recovery "regardless of whether such injured person dealt directly or indirectly with the defendant"); Minn.Stat. § 325D.57 (1988) (allowing recovery by any person "injured directly or indirectly"). A number of other jurisdictions have similar statutes. Colo. Rev.Stat. § 6-4-106 (Supp.1988); D.C.Code § 28-4509(a) (1981); Haw.Rev.Stat. § 480-14(c) (1985); Ill.Rev.Stat., ch. 38, ¦ 60-7(2) (1988); Kan.Stat.Ann. § 50-801(b) (Supp.1988); Md.Com.Law Code Ann. § 11-209 (1983); Mich.Comp.Laws Ann. § 445.778 (West Supp.1988); Miss.Code Ann. § 75-21-9 (1972); N.M.Stat.Ann. § 57-1-3(A) (1987); R.I.Gen.Laws § 6-36-12(g) (1985); S.D.Codified Laws § 37-1-33 (1986); Wis.Stat. § 133.18 (1987-1988).
The Arizona statute, Ariz. Rev.Stat.Ann. § 44-1408(A) (1987), generally follows the language of the Clayton Act, but it might be interpreted as a matter of state law as authorizing indirect purchasers to recover. This is appellants' position. See Brief for Appellants 19, n. 6; Juris. Statement 9. Appellees dispute this interpretation, Brief for Appellee ARC America Corp. 21, n. 14, and the District Court and the Court of Appeals did not pass on this question, given their holdings that, even if the statute was so interpreted, it was preempted by federal law. We express no opinion on this question of Arizona law.
"does not announce a new principle of law, but applies old and well recognized principles of the common law to the complicated jurisdiction of our State and Federal Government."
Cf. National Cooperative Research Act of 1984, 15 U.S.C. § 4303(c) (1982 ed., Supp. V); Export Trading Company Act of 1982, 15 U.S.C. §§ 4016, 4002(a)(7).
In one respect, the Court of Appeals was overly narrow in its description of the congressional purposes identified in Illinois Brick. In Illinois Brick, the Court was concerned not merely that direct purchasers have sufficient incentive to bring suit under the antitrust laws, as the Court of Appeals asserted, but rather that at least some party have sufficient incentive to bring suit. Indeed, we implicitly recognized as much in noting that indirect purchasers might be allowed to bring suit in cases in which it would be easy to prove the extent to which the overcharge was passed on to them. See 431 U.S. at 431 U. S. 732, n. 12.
Contrary to the Court of Appeals' suggestion, 817 F.2d at 1445, there is no contention here that the state indirect purchaser statutes themselves seek to limit the recovery direct purchasers can obtain under federal law.


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PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION, Petitioner, v. HON. WALFRIDO DE LOS ANGELES, Judge of the Court of First Instance of Rizal, Branch IV (Quezon City) and TIMOTEO A. SEVILLA, doing business under the name and style of PHILIPPINE ASSOCIATED RESOURCES and PRUDENTIAL BANK AND TRUST COMPANY, Respondents.
Lorenzo F. Miravite for respondent Timoteo Sevilla.
Ferrer & Rañada Law Office for respondent Prudential Bank & Trust Co.
1.	MERCANTILE LAW; LETTERS OF CREDIT; IRREVOCABLE LETTER OF CREDIT CANNOT BE CANCELLED WITHOUT EXPRESS PERMISSION OF BENEFICIARY. — An irrevocable letter of credit cannot during its lifetime be cancelled or modified without the express permission of the beneficiary (Miranda and Garrovilla, Principles of Money Credit and Banking, Revised Edition, p. 291).
2.	REMEDIAL LAW; CIVIL PROCEDURE; MOTIONS IN GENERAL; REQUIREMENTS; MOTION WITHOUT REQUIRED 3-DAY NOTICE IS WORTHLESS. — Section 4 of Rule 15 of the Revised Rules of Court requires that notice of a motion be served by the applicant to all parties concerned at least three days before the hearing thereof; Section 5 of the same Rule which provides that the notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion; and Section 6 of the same Rule which requires proof of service of the notice thereof, except when the Court is satisfied that the rights of the adverse party or parties are not affected, (Sunga v. Lacson, L-26055, April 29, 1968, 23 SCRA 393) A motion which does not meet the requirements of Sections 4 and 5 of Rule 15 of the Revised Rules of Court is considered a worthless piece of paper which the Clerk has no right to receive and the respondent court a quo has no authority to act thereon. (Vda. de A. Zarias v. Maddela, 38 SCRA 35; Cledera v. Sarmiento, 39 SCRA 552; and Sacdalan v. Bautista, 56 SCRA 175).
3.	ID.; PROVISIONAL REMEDIES; PRELIMINARY INJUNCTION; NOT GRANTED WITHOUT NOTICE; EXCEPTION. — Section 5 of Rule 58 requires notice to the defendant before a preliminary injunction is granted unless it shall appear from facts shown by affidavits or by the verified complaint that great or irreparable injury would result to the applicant before the matter can be heard on notice.
4.	ID.; ID.; ID.; ID.; IRREPARABLE INJURY AS REASON FOR ISSUANCE OF PRELIMINARY MANDATORY INJUNCTION, DEFINED. — Injury is considered irreparable if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law (Allundorff v. Abrahanson, 38 Phil. 585) or where there is no standard by which their amount can be measured with reasonable accuracy, that is, it is not susceptible of mathematical computation (SSC v. Bayona, Et Al., L-13555, May 30, 1962).
5.	ID.; ID.; ID.; ID.; HEARING IS ESSENTIAL TO LEGALITY OF ISSUANCE OF PRELIMINARY INJUNCTION. — Once the, application is filed with the Judge, the latter must cause an Order to be served on the defendant, requiring him to show cause at a given time and place why the injunction should not be granted. The hearing is essential to the legality of the issuance of a preliminary injunction. It is an abuse of discretion on the part of the court to issue an injunction without hearing the parties and receiving evidence thereon (Associated Watchmen and Security Union, Et. Al. v. United States Lines, Et Al., 101 Phil. 895).
6.	ID.; ID.; ID.; PRELIMINARY MANDATORY INJUNCTION; FACTS REQUIRED TO BE SHOWN BEFORE ISSUANCE OF WRIT. — The discretionary power of the trial court to issue a preliminary mandatory injunction is not absolute as the issuance of the writ is the exception rather than the rule. The party applying for it must show a clear legal right the violation of which is so recent as to make its vindication an urgent one (Police Commission v. Bello, 37 SCRA 230). It is granted only on a showing that (a) the invasion of the right is material and substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an urgent and permanent necessity for the writ to prevent serious damages (Pelejo v. Court of Appeals, 117 SCRA 665).
7.	ID.; ID.; ID.; ID.; INSTANCES WHEN PRELIMINARY MANDATORY INJUNCTIONS MAY BE ISSUED PRIOR TO FINAL HEARING. — It has always been said that it is improper to issue a writ of preliminary mandatory injunction prior to the final hearing except in cases of extreme urgency, where the right of petitioner to the writ is very clear; where considerations of relative inconvenience bear strongly in complainant’s favor; where there is a willful and unlawful invasion of plaintiffs right against his protest and remonstrance, the injury being a contributing one, and there the effect of the mandatory injunctions is rather to re-establish and maintain a pre-existing continuing relation between the parties, recantly and arbitrarily interrupted by the defendant, than to establish a new relation (Alvaro v. Zapata, 118 SCRA 722; Lemi v. Valencia, February 28, 1963, 7 SCRA 469; Com. of Customs v. Cloribel, L-20266, January 31, 1967, 19 SCRA 234).
8.	ID.; ID.; ID.; ID.; PRELIMINARY MANDATORY INJUNCTION BASED ON UNESTABLISHED ASSUMPTIONS IS VOID. — In the case at bar there appears no urgency for the issuance of the writs of preliminary mandatory injunctions in the Orders of July 17, 1967 and November 3, 1967; much less was there a clear legal right of respondent Sevilla that has been violated by petitioner. Indeed, it was an abuse of discretion on the part of respondent Judge to order the dissolution of the letter of credit on the basis of assumptions that cannot be established except by a hearing on the merits nor was there a showing that R.A. 4155 applies retroactively to respondent in this case, modifying his importation exportation contract with petitioner.
9.	ID.; ID.; ID.; ID.; PRELIMINARY MANDATORY INJUNCTION IS IMPROPER IF IT DISPOSES OF ISSUE IN CONTROVERSY. — There is merit in petitioner’s contention that the question of exclusiveness of the award is an issue raised by the pleadings and therefore a matter of controversy, hence a preliminary mandatory injunction directing petitioner to issue respondent Sevilla a certificate of authority to import Virginia leaf tobacco and at the same time restraining petitioner from issuing a similar certificate of authority to others is premature and improper.
10.	ID.; ID.; ID.; ID.; ID.; SOLE SUBJECT OF WRIT IS TO PRESERVE STATUS QUO UNTIL MERIT OF CASE IS HEARD. — The sole object of a preliminary injunction is to preserve the status quo until the merit can be heard. It is the last actual peaceable uncontested status which precedes the pending controversy (Rodulfo v. Alfonso, L-144, 76 Phil. 225), in the instant case, before the Case No. Q-10351 was filed in the Court of First Instance of Rizal. Consequently, instead of operating to preserve the status quo until the parties’ rights can be fairly and fully investigated and determined (De los Reyes v. Elepano, Et Al., 93 Phil. 239), the Orders of July 17, 1966 and March 3, 1967 serve to disturb the status quo.
11.	ID.; ID.; ID.; FILING OF INSUFFICIENT BOND DOES NOT DISSOLVE UNCONDITIONALLY AN INJUNCTION. — The filing of an insufficient or defective bond does not dissolve absolutely and unconditionally an injunction. The remedy in a proper case is to order party to file a sufficient bond (Municipality of La Trinidad v. CFI of Baguio-Benguet, Br. I, 123 SCRA 81).
"IN VIEW OF THE FOREGOING, the petition under consideration is granted, as follows: (a) the defendant PVTA is hereby ordered to issue the corresponding certificate of Authority to the plaintiff, allowing him to export the remaining balance of his tobacco quota at the current world market price and to make the corresponding import of American high-grade tobacco; (b) the defendant PVTA is hereby restrained from issuing any Certificate of Authority to export or import to any persons and/or entities while the right of the plaintiff to the balance of his quota remains valid, effective and in force; and (c) defendant PVTA is hereby enjoined from opening public bidding to sell its Virginia leaf tobacco during the effectivity of its contract with the plaintiff.
The contract entered into between the petitioner and respondent Sevilla was for the importation of 85 million kilos of Virginia leaf tobacco and a counterpart exportation of 2.53 million kilos of PVTA and 5.1 million kilos of farmer’s and or PVTA at P3.00 a kilo. (Annex "A," p. 55 and Annex "B," Rollo, p. 59) In accordance with their contract respondent Sevilla purchased from petitioner and actually exported 2,101.470 kilos of tobacco, paying the PVTA the sum of P2,482,938.50 and leaving a balance of P3,713,908.91. Before respondent Sevilla could import the counterpart blending Virginia tobacco, amounting to 525,560 kilos, Republic Act No. 4155 was passed and took effect on June 20, 1964, authorizing the PVTA to grant import privileges at the ratio of 4 to 1 instead of 9 to 1 and to dispose of all its tobacco stock at the best price available.
Thus, on September 14, 1965 subject contract which was already amended on December 14, 1963 because of the prevailing export or world market price under which respondent will be exporting at a loss, (Complaint, Rollo, p. 3) was further amended to grant respondent the privileges under aforesaid law, subject to the following conditions: (1) that on the 2,101.470 kilos already purchased, and exported, the purchase price of about P3.00 a kilo was maintained; (2) that the unpaid balance of P3,713,908.91 was to be liquidated by paying PVTA the sum of P4.00 for every kilo of imported Virginia blending tobacco and, (3) that respondent Sevilla would open an irrevocable letter of credit No. 6232 with the Prudential Bank and Trust Co. in favor of the PVTA to secure the payment of said balance, drawable upon the release from the Bureau of Customs of the imported Virginia blending tobacco.
While respondent was trying to negotiate the reduction of the procurement cost of the 2,101.479 kilos of PVTA tobacco already exported which attempt was denied by petitioner and also by the Office of the President, petitioner prepared two drafts to be drawn against said letter of credit for amounts which have already become due and demandable. Respondent then filed a complaint for damages with preliminary injunction against the petitioner in the amount of P5,000,000.00. Petitioner filed an answer with counterclaim, admitting the execution of the contract. It alleged however that respondent violated the terms thereof by causing the issuance of the preliminary injunction to prevent the former from drawing from the letter of credit for amounts due and payable and thus caused petitioner additional damage of 6% per annum.
Respondent Sevilla filed an answer to the supplemental petition (Rollo, pp. 216-221) and so did respondent bank (Rollo, p. 225). Thereafter, all the parties filed their respective memoranda (Memo for Petitioners, Rollo, pp. 230-244; for Resp. Bank, pp. 246-247; and for Respondents, Rollo, pp. 252-257). Petitioners filed a rejoinder (rollo, pp. 259-262) and respondent Sevilla filed an Amended Reply Memorandum (Rollo, pp. 266-274). Thereafter the case was submitted for decision in September, 1968 (Rollo, p. 264).
2.	Respondent Judge likewise acted without or in excess of jurisdiction or with grave abuse of discretion when he issued the Order of November 3, 1967 which has exceeded the proper scope and function of a Writ of Preliminary Injunction which is to preserve the status quo and cannot therefore assume without hearing on the merits, that the award granted to respondent is exclusive; that the action is for specific performance and that the contract is still in force; that the conditions of the contract have already been complied with to entitle the party to the issuance of the corresponding Certificate of Authority to import American high grade tobacco; that the contract is still existing; that the parties have already agreed that the balance of the quota of respondent will be sold at current world market price and that petitioner has been overpaid.
3.	The alleged damages suffered and to be suffered by respondent Sevilla are not irreparable, thus lacking in one essential prerequisite to be established before a Writ of Preliminary Injunction may be issued. The alleged damages to be suffered are loss of expected profits which can be measured and therefore reparable.
4.	Petitioner will suffer greater damages than those alleged by respondent if the injunction is not dissolved. Petitioner stands to lose warehousing storage and servicing fees amounting to P4,704.236.00 yearly or P392,019.66 monthly, not to mention the loss of opportunity to take advantage of any beneficial change in the price of tobacco.
In issuing the Order of July 17, 1967, respondent Judge violated the irrevocability of the letter of credit issued by respondent Bank in favor of petitioner. An irrevocable letter of credit cannot during its lifetime be cancelled or modified without the express permission of the beneficiary (Miranda and Garrovilla, Principles of Money Credit and Banking, Revised Edition, p. 291). Consequently, if the finding after the trial on the merits is that respondent Sevilla has an unpaid balance due the petitioner, such unpaid obligation would be unsecured.
In the issuance of the aforesaid Order, respondent Judge likewise violated: Section 4 of Rule 15 of the Revised Rules of Court which requires that notice of a motion be served by the applicant to all parties concerned at least three days before the hearing thereof; Section 5 of the same Rule which provides that the notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion; and Section 6 of the same Rule which requires proof of service of the notice thereof, except when the Court is satisfied that the rights of the adverse party or parties are not affected, (Sunga v. Lacson, L-26055, April 29, 1968, 23 SCRA 393) A motion which does not meet the requirements of Sections 4 and 5 of Rule 15 of the Revised Rules of Court is considered a worthless piece of paper which the Clerk has no right to receive and the respondent court a quo has no authority to act thereon. (Vda. de A. Zarias v. Maddela, 38 SCRA 35; Cledera v. Sarmiento, 39 SCRA 552; and Sacdalan v. Bautista, 56 SCRA 175). The three-day notice required by law in the filing of a motion is intended not for the movant’s benefit but to avoid surprises upon the opposite party and to give the latter time to study and meet the arguments of the motion. (J.M. Tuason and Co., Inc. v. Magdangal, L-15539, 4 SCRA 84).
More specifically, Section 5 of Rule 58 requires notice to the defendant before a preliminary injunction is granted unless it shall appear from facts shown by affidavits or by the verified complaint that great or irreparable injury would result to the applicant before the matter can be heard on notice. Once the, application is filed with the Judge, the latter must cause an Order to be served on the defendant, requiring him to show cause at a given time and place why the injunction should not be granted. The hearing is essential to the legality of the issuance of a preliminary injunction. It is an abuse of discretion on the part of the court to issue an injunction without hearing the parties and receiving evidence thereon (Associated Watchmen and Security Union, Et. Al. v. United States Lines, Et Al., 101 Phil. 896).
In the case at bar there appears no urgency for the issuance of the writs of preliminary mandatory injunctions in the Orders of July 17, 1967 and November 3, 1967; much less was there a clear legal right of respondent Sevilla that has been violated by petitioner. Indeed, it was an abuse of discretion on the part of respondent Judge to order the dissolution of the letter of credit on the basis of assumptions that cannot be established except by a hearing on the merits nor was there a showing that R.A. 4155 applies retroactively to respondent in this case, modifying his importation exportation contract with petitioner. Furthermore, a writ of preliminary injunction’s enjoining any withdrawal from Letter of Credit 6232 would have been sufficient to protect the rights of respondent Sevilla should the finding be that he has no more unpaid obligations to petitioner.
Similarly, there is merit in petitioner’s contention that the question of exclusiveness of the award is an issue raised by the pleadings and therefore a matter of controversy, hence a preliminary mandatory injunction directing petitioner to issue respondent Sevilla a certificate of authority to import Virginia leaf tobacco and at the same time restraining petitioner from issuing a similar certificate of authority to others is premature and improper.
The sole object of a preliminary injunction is to preserve the status quo until the merit can be heard. It is the last actual peaceable uncontested status which precedes the pending controversy (Rodulfo v. Alfonso, L-144, 76 Phil. 225), in the instant case, before the Case No. Q-10351 was filed in the Court of First Instance of Rizal. Consequently, instead of operating to preserve the status quo until the parties’ rights can be fairly and fully investigated and determined (De los Reyes v. Elepano, Et Al., 93 Phil. 239), the Orders of July 17, 1966 and March 3, 1967 serve to disturb the status quo.
Injury is considered irreparable if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in a court of law (Allundorff v. Abrahanson, 38 Phil. 585) or where there is no standard by which their amount can be measured with reasonable accuracy, that is, it is not susceptible of mathematical computation (SSC v. Bayona, Et Al., L-13555, May 30, 1962).
Any alleged damage suffered or might possibly be suffered by respondent Sevilla refers to expected profits and claimed by him in this complaint as damages in the amount of FIVE Million Pesos (P5,000,000.00), a damage that can be measured, susceptible of mathematical computation, not irreparable, nor do they necessitate the issuance of the Order of November 3, 1967.
Conversely, there is truth in petitioner’s claim that it will suffer greater damage than that suffered by respondent Sevilla if the Order of November 3, 1967 is not annulled. Petitioner’s stock if not made available to other parties will require warehouse storage and servicing fees in the amount of P4,704,236.00 yearly or more than P9,000,000.00 in two years time.
PREMISES CONSIDERED, the petition is given due course and the assailed Orders of July 17, 1967 and November 3, 1967 and March 16, 1968 are ANNULLED and SET ASIDE; and the preliminary injunctions issued by this Court should continue until the termination of Case No. Q-10351 on the merits.
Melencio-Herrera (Chairperson) and Padilla, JJ., concur.
Sarmiento, J., no part; related to the respondent within the sixth degree of affinity.


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Non linear optical absorption in silver nanosol. K.P. Unnikrishnan, V.P.N. Nampoori, M. Umadevi, V. Ramakrishnan, and C.P.G. Vallabhan, National Laser Symposium (NLS-2002), SCTIMST, Thiruvananthapuram, Nov 14-16 (2002).
Spatial distribution of Cu & CuII species in laser produced plasma from brass. Dilna S , Pramod Gopinath, P. Radhakrishnan, C.P.G. Vallabhan and V.P.N. Nampoori, National Laser Symposium (NLS-2002), SCTIMST, Thiruvananthapuram, Nov 14-16 (2002).
Fibre optic based chemical sensor to detect endpoint in volumetric analysis. A.Santhi , S. Thomas Lee, Ginu Rajan, Veena Gopal , P. Radhakrishnan and V.P.N Nampoori, National Laser Symposium (NLS-2002), SCTIMST, Thiruvananthapuram, Nov 14-16 (2002).
Laser excited fluorescence characteristics of chemical ligand hydroxyphenol salicylaldehyde oxime. A Santhi , Pravitha Ramanand, V.P.N. Nampoori and P. Radhakrishnan. National Laser Symposium (NLS-2002), SCTIMST, Thiruvananthapuram, Nov 14-16 (2002).
Quasi periodicity and chaos in a directly modulated semiconductor laser with delayed optoelectronic feedback. Rajesh S and V.M. Nandakumaran, National Laser Symposium (NLS-2002), SCTIMST, Thiruvananthapuram, Nov 14-16 (2002).
Fuel level indicator using long periodic grating in multimode optical fibers. P. Suresh Kumar, Dinesh Kumar. R, Jibukumar G, C. P. G. Vallabhan, V.P.N. Nampoori, and P. Radhakrishnan, National Laser Symposium (NLS-2002), SCTIMST, Thiruvananthapuram, Nov 14-16 (2002).
Influence of porosity on thermal diffusivity of LaPO4 ceramics- A photo acoustic measurement. S.D. George, Rajesh Komban, K.G.K. Warrier, P.Radhakrishnan, V.P.N. Nampoori and C.P.G. Vallabhan, National Laser Symposium (NLS-2002), SCTIMST, Thiruvananthapuram, Nov 14-16 (2002).
Study of pH dependence on fluorescence quantum yield of laser dye using thermal lens technique. Achamma Kurian, Sajan D George, V. P. N. Nampoori and C.P.G.Vallabhan, National Laser Symposium (NLS-2002), SCTIMST, Thiruvananthapuram, Nov 14-16 (2002).
Cortical interactions as inferred from EEG analysis during various cognitive and pathological brain conditions. Pravitha Ramanand, Rekha Mathew , R Sreenivasan and V.P.N. Nampoori. National Conference on Recent Advances in Non Linear Science 2002, I.I.Sc. Bangalore, Jul 31-Aug 2 (2002).
Numerical studies on directly modulated semiconductor laser with delayed optoelectronic feedback. Rajesh S and V.M. Nandakumaran, National Conference on Recent Advances in Non Linear Science 2002, I.I.Sc. Bangalore, Jul 31-Aug 2 (2002).
Synchronisation of an array of chaotic semiconductor lasers. V. Bindu and V.M. Nandakumaran, National Conference on Recent Advances in Non Linear Science 2002, I.I.Sc. Bangalore, Jul 31-Aug 2 (2002).
Unfolding of neural attractors: A time scales viewpoint. Pravitha Ramanand, P. Indic , V. P. N. Nampoori & R. Pratap. Chaos and Fractals: Application , Rajagiri School of Science and Technology, Cochin, Jan 18-19 (2002).
Degenerate four wave mixing in some metal phthalocyanines. K P Unnikrishnan, V P N Nampoori and C P G Vallabhan, National Laser Symposium (NLS-2001), CAT Indore, Dec 19-21 (2001).
Photoacoustic evaluation of thermal diffusivity of Indium Phosphide, Nibu A George, C P G Vallabhan, V P N Nampoori and P Radhakrishnan, National Conference on Materials Science, M G University, Kottayam, Mar 23-24 (2001).
Thermal diffusivity of a substrate of two layer system using photoacoustic technique. Sajan D George, P. Radhakrishnan, V. P. N. Nampoori and C. P. G. Vallabhan, National Laser Symposium-2001, CAT Indore, Dec 19-21 (2001).
Studies on laser induced plasma from Cu-Al multiple target. Pramod Gopinath, Binoy Paul, Dilna.S, Sreeja.R, V P N Nampoori and C P G Vallabhan, National Laser Symposium-2001, CAT Indore (2001).
Nonlinear Optical studies in samarium phthalocyanines doped poly methyl methacrylate using nanosecond pulses. Binoy Paul, K P Unnikrishnan, Pramod Gopinath, Reji Philip, V P N Nampoori, C P G Vallabhan, National Laser Symposium(NLS-2001), CAT Indore, Dec 19-21 (2001).
Side illumination Fluorescence Studies in dye doped polymer waveguide. K Geetha, Pramod Gopinath, K P Uniikrishnan, S Thomas Lee, C P G Vallabhan, V P N Nampoori, P Radhakrishnan, National Laser Symposium-2001, CAT, Indore, Dec 19-21 (2001).
Fibre Optic Ammonia Sensor. P Suresh Kumar, S. Thomas Lee, C.P.G. Vallabhan, V.P.N. Nampoori and P. Radhakrishnan, SPENDE 2001, Kerala University, Kariavattom Campus, Thiruvananthapuram, May 25-26 (2001).
Nonlinear absorption and optical limiting in solutions of a phthalocyanine. K. P. Unnikrishnan, Binoy Paul, Achamma Kurian, Pramod Gopinath, V P N Nampoori and C P G Vallabhan, National Laser Symposium(NLS)-2000, LASTEC, New Delhi, Dec 13-15, (2000).
Use of photoacoustic effect for the detection of phase transitions in polymer dispersed liquid crystal mixtures. Nibu A George, C P G Vallabhan, V P N Nampoori, A K George and P Radhakrishnan, National Laser Symposium-2000, DSC, New Delhi, Dec 13-15, (2000).
Photoacoustic evaluation of the thermal effusivity of the liquid crystals 7OCB and 8OCB. Nibu A George, C P G Vallabhan, V P N Nampoori, A K George and P Radhakrishnan, National Laser Symposium-2000, DSC, New Delhi, Dec 13-15, (2000).
Optical limiting studies on samarium phthalocyanine in methyl methacrylate matrix. Binoy Paul, K P Unnikrishnan, Pramod Gopinath, B Aneeshkumar, S Thomas Lee, V P N Nampoori, C P G Vallabhan, National Laser Symposium-2000, LASTEC, Delhi, Dec 13-15, (2000).
Nonlinear Absorption and Optical Limiting in solutions of a BIS-Phthalocyanines. K P Unnikrishnan, Binoy Paul, Achamma Kurian, Pramod Gopinath, V P N Nampoori, C P G Vallabhan, National Laser Symposium-2000, LASTEC, Delhi, Dec 13-15 (2000).
Dynamics of the ambient molecules during laser ablation of a solid target. Pramod Gopinath, Binoy Paul, K P Unnikrishnan, V P N Nampoori, C P G Vallabhan, PLASMA-2000, Saha Institute of Nuclear Physics, Calcutta, Dec 5-8 (2000).
Studies on nonlinear refraction of metal phthalocyanines using Z-scan technique. K P Unnikrishnan, Jayan Thomas, V P N Nampoori and C P G Vallabhan. National Laser Symposium-1999, University of Hyderabad, Hyderanbad, Dec 15-17, (1999).
Photoacoustic study of phase transitions in liquid crystals. Nibu A George, C P G Vallabhan, V P N Nampoori, A K George and P Radhakrishnan, National Seminar on High Power Lasers, ISP, CUSAT, Cochin, Feb 26-27, (1999).
Optical limiting behaviour of Iron phthalocyanine doped co-polymer film. B. Aneeshkumar, Pramod Gopinath, Jayan Thomas, P.Radhakrishnan, V. P. N. Nampoori, C. P. G. Vallabhan, National Symposium on Antennas and Propagation, Dept. of Electronics, CUSAT, Cochin, Dec 15-16, (1999).
A study on electron temperature in laser induced plasma from silver and teflon using electrical probes. Binoy Paul, Pramod Gopinath, Unnikrishnan K P, V P N Nampoori, C P G Vallabhan, National Laser Symposium-1999, University of Hyderabad Dec 15-17 (1999).
Spectral Emission from Cu+ in Laser Produced Copper Plasma-Spatial and Pressure Dependence. Pramod Gopinath, Binoy Paul, V P N Nampoori, C P G Vallabhan, National Laser Symposium-1999, University of Hyderabad, Dec 15-17 (1999).
Investigations on the photobleaching of Rhodamine 6G doped in poly methyl methacrylate using photoacoustic technique. Nibu A George, B Aneeshkumar, P Radhakrishnan and C P G Vallabhan, National Laser Symposium-1998, I I T Kanpur, Dec 14-16, (1998).
Effect of poly(vinyl alcohol) concentration on fluorescence parameters of Rh-B laser dye. B. Aneeshkumar, Nibu A George, P.Radhakrishnan, V. P. N. Nampoori, C. P. G. Vallabhan, National Laser Symposium-1998, I I T Kanpur, Dec 14-16, (1998).
Temporal and Spatial evolution of laser produced aluminium plasma. Binoy Paul, Pramod Gopinath, Unnikrishnan K P, V P N Nampoori, C P G Vallabhan, National Laser Symposium-1998, IIT Kanpur, Dec 14-16 (1998).
Collisional ionization of ambient molecules during laser ablation of Copper. Pramod Gopinath, Riju C Issac, Binoy Paul, Geetha K Varier, V P N Nampoori, C P G Vallabhan, National Laser Symposium-1998, IIT Kanpur, Dec 14-16 (1998).
Diagnostics of laser produced plasma from silver under film deposition conditions. Riju C Issac, Vasudevan Pillai, Pramod Gopinath, P Radhakrishnan, V P N Nampoori, C P G Vallabhan, National Laser Symposium-1997, CAT, Indore, Feb 6-8 (1997).
Evolution of nonlinear refractive index of ZnSe using CW laser. Geetha K Varier, Riju C Issac, Pramod Gopinath, V P N Nampoori, C P G Vallabhan, National Laser Symposium-1997, CAT, Indore, Feb 6-8 (1997).
National Symposium on Plasma Science & Technology, IPR, Gandhinagar, Dec 2-5, (1997).
Studies on amplified spontaneous emission from polyacrylamide embedded with rhodamine 6G. Geetha K Varier, Riju C Issac, Pramod Gopinath, V P N Nampoori, C P G Vallabhan, National Laser Symposium-1997, PRL,Ahmedabad, Dec 10-12 (1997).
Temporal variations of electron density and temperature in a laser produced plasma from silicon carbide. Pramod Gopinath, Riju C Issac, Geetha K Varier, C V Bindhu, S S Harilal, V P N Nampoori, C P G Vallabhan, National Laser Symposium-1997, PRL,Ahmedabad, Dec 10-12 ( 1997).
Molecular excitation by prompt electron impact during laser beam interaction with silver target. Riju C Issac, Pramod Gopinath, S S Harilal, Geetha K Varier, Binoy Paul, V P N Nampoori, C P G Vallabhan, National Laser Symposium-1997, PRL,Ahmedabad, Dec 10-12 (1997).

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In this case, the writ of error was dismissed because the judgment below rested upon a construction by the state court of a statute of the state, which was sufficiently broad to sustain the judgment.
to aid in the construction of certain railroads. 11 Stat. 17, c. 24. This grant was renewed and extended by an Act of April 10, 1869. 16 Stat. 459, c. 24. By a joint resolution of the Legislature of the State of Alabama approved January 20, 1858, Acts 1857-1858, p. 430, certain railroad companies were made the beneficiaries of this grant. The Alabama and Chattanooga Railroad Company was formed by a consolidation, under the authority of the state, of two of these companies, and became thereby one of such beneficiaries. On February 11, 1870, an act was passed, Acts 1869-70, No. 101, pp. 89-92, loaning two millions of dollars of the bonds of the state to this company and providing for the execution of a mortgage by the company on all its property, including the land grant, to secure this loan. The bonds were delivered to the company, and on March 2, 1870, the mortgage called for by the last-named act was executed. Thereafter the railroad company, defaulting in the payment of its obligations to the state, was thrown into bankruptcy, and its property, including this land grant, was, on judicial sale, after proper proceedings in the district court of the United States, purchased by the state in satisfaction of such obligations. The title thus acquired the defendants in error hold under a conveyance from the state, made by virtue of what is called the "debt settlement" Act of the General Assembly, Acts 1875-76, No. 38, pp. 130, 149, and they were proceeding to enforce their right to the lands in controversy in this suit by an action of ejectment.
the company to Bagley. This suit was commenced in July, 1884, by D. B. Miller, who claims under sundry mesne conveyances from Bagley, in the Chancery Court of Jefferson County, Alabama, against John Swann and John A. Billups, trustees, and others, the object of which was to enforce the specific performance of the two contracts of September 13, 1870, and January 24, 1871, and to enjoin the further prosecution of the action of ejectment. On the 20th of June, 1885, the Chancellor entered a decree in favor of the complainant, which decree was reversed by the supreme court of the state. 82 Ala. 530. An amended bill having been filed, the case was again submitted to the chancellor, who, on November 12, 1888, entered a decree dismissing the complainant's bill, which decree was affirmed by the supreme court on the second of May, 1890. 89 Ala. 631. Subsequently to the commencement of the suit, Miler died, and the suit was revived in the names of his executor and heirs. The two original trustees have also died, and Frank Y. Anderson and W. J. Cameron have been substituted as their successors.
It is contended by defendants in error that whatever questions may be found in the case, the decision of the Supreme Court of Alabama was upon a question not of a federal character, and one broad enough to sustain the judgment, and therefore that this Court has no jurisdiction, and should dismiss the case. Hale v. Akers, 132 U. S. 554; Hopkins v. McLure, 133 U. S. 380; Blount v. Walker, 134 U. S. 607; Wood Mowing & Reaping Co. v. Skinner, 139 U. S. 293; Henderson Bridge Co. v. Henderson City, 141 U. S. 679; Delaware City &c. Navigation Co. v. Reybold, 142 U. S. 636.
"the said Alabama and Chattanooga Railroad Company shall have the privilege and right of selling said lands or any part thereof in accordance with the acts of Congress granting the same."
"This reservation was incorporated in the mortgage, and its construction, as applied to the facts of the case, is the controlling question for us to decide. The power retained by the mortgagor was not an unlimited power to sell. It was a power to sell only in accordance with the terms and conditions of the act of Congress making the grant, which, we have said in a former decision, was 'a law as well as a grant.' If these terms and conditions were followed, then the lien of the mortgage was by agreement to be released. If they were not followed as to the mode or time prescribed or otherwise, then the contract of the parties is that the lien of the mortgage is to remain unaffected. Compliance with the essential requirements of the act of Congress became thus a condition precedent to the divestiture of title out of the state as mortgagee. This, we repeat, was the express contract between the parties. It is sufficiently shown in the former opinion in this case that the attempt to sell to Bagley was in direct violation of the terms of the law of Congress, and therefore necessarily also in violation of the agreement of the parties to the mortgage, which was based on that law. Swann v. Miller, 82 Ala. 530. The lien of the mortgage for this reason remained undischarged. This we understand to be the natural and just construction of the mortgage agreement and of the act of the Alabama General Assembly approved February, 1870, above cited. "
"SEC. 4. And be it further enacted that the lands hereby granted to said state shall be disposed of by said state only in manner following, that is to say: that a quantity of land, not exceeding one hundred and twenty sections for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold, and when the governor of said state shall certify to the Secretary of the Interior that any twenty continuous miles of any of said roads is completed, then another quantity of land hereby granted, not to exceed one hundred and twenty sections for each of said roads, having twenty continuous miles completed as aforesaid and included within a continuous length of twenty miles of each of such roads, may be sold, and so from time to time until said roads are completed, and if any of said roads is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States."
state does not make the determination of such rights a federal question. A state may prescribe the procedure in the federal courts as the rule of practice in its own tribunals; it may authorize the disposal of its own lands in accordance with the provisions for the sale of the public lands of the United States, and in such cases an examination may be necessary of the acts of Congress, the rules of the federal courts, and the practices of the Land Department, and yet the questions for decision would not be of a federal character. The inquiry along federal lines is only incidental to a determination of the local question of what the state has required and prescribed. The matter decided is one of state rule and practice. The facts by which that state rule and practice are determined may be of a federal origin.
We see nothing in the cases of St. Louis &c. Railway Co. v. McGee, 115 U. S. 469, and Doe v. Larmore, 116 U. S. 198, conflicting with these views or throwing any light on this question. These cases involved simply a consideration of the effect to be given to the later act of Congress in respect to the rights of the state in the lands, and held that the later act was not to be considered as a new and independent grant, but simply as an extension of time.

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Ottawa : Royal Canadian Geographical Society, 1930-1978.
96 v. : ill. (some col., incl. maps) ; 26-28 cm.
v. 70(1965)-96(1978). Scattered issues before 1965.
Vol. 1 (May 1930)-v. 96, no. 3 (June/July 1978).
Editor: 1930- L. J. Burpee.
Vols. for 1930- include section "Amongst the new books."
Beginning with v. 9, every other vol. includes 2 v. index.
Regional index: Vols. 1-59, 1930-59. 1 v.
Issue for Jan. 1937 (v. 14, no. 1) incorrectly numbered as v. 13, no. 9.
Issue for June/July 1977 (v. 94, no. 3) incorrectly numbered as v. 92, no. 3.
Issue for June/July 1978 (v. 96, no. 3) incorrectly numbered as v. 94, no. 3.
Vols. for May 1930-Sept. 1957 published by the society under its earlier name: Canadian Geographical Society.

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