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HEIRS OF SERVANDO FRANCO, PETITIONERS, VS. SPOUSES VERONICA AND DANILO GONZALES, RESPONDENTS.
There is novation when there is an irreconcilable incompatibility between the old and the new obligations. There is no novation in case of only slight modifications; hence, the old obligation prevails.
The petitioners challenge the decision promulgated on March 19, 2003, whereby the Court of Appeals (CA) upheld the issuance of a writ of execution by the Regional Trial Court (RTC), Branch 16, in Malolos, Bulacan.
On November 7, 1985, Servando Franco and Leticia Medel (hereafter Servando and Leticia) obtained a loan from Veronica R. Gonzales (hereafter Veronica), who was engaged in the money lending business under the name “Gonzales Credit Enterprises”, in the amount of P50,000.00, payable in two months. Veronica gave only the amount of P47,000.00, to the borrowers, as she retained P3,000.00, as advance interest for one month at 6% per month. Servado and Leticia executed a promissory note for P50,000.00, to evidence the loan, payable on January 7, 1986.
On November 19, 1985, Servando and Leticia obtained from Veronica another loan in the amount of P90,000.00, payable in two months, at 6% interest per month. They executed a promissory note to evidence the loan, maturing on January 19, 1986. They received only P84,000.00, out of the proceeds of the loan.
On maturity of the two promissory notes, the borrowers failed to pay the indebtedness.
On June 11, 1986, Servando and Leticia secured from Veronica still another loan in the amount of P300,000.00, maturing in one month, secured by a real estate mortgage over a property belonging to Leticia Makalintal Yaptinchay, who issued a special power of attorney in favor of Leticia Medel, authorizing her to execute the mortgage. Servando and Leticia executed a promissory note in favor of Veronica to pay the sum of P300,000.00, after a month, or on July 11, 1986. However, only the sum of P275,000.00, was given to them out of the proceeds of the loan.
Like the previous loans, Servando and Medel failed to pay the third loan on maturity.
“Payment will be made in full at the maturity date.
“I, WE further agree that in the event the present rate of interest on loan is increased by law or the Central Bank of the Philippines, the holder shall have the option to apply and collect the increased interest charges without notice although the original interest have already been collected wholly or partially unless the contrary is required by law.
“It is also a special condition of this contract that the parties herein agree that the amount of peso-obligation under this agreement is based on the present value of peso, and if there be any change in the value thereof, due to extraordinary inflation or deflation, or any other cause or reason, then the peso-obligation herein contracted shall be adjusted in accordance with the value of the peso then prevailing at the time of the complete fulfillment of obligation.
“Demand and notice of dishonor waived. Holder may accept partial payments and grant renewals of this note or extension of payments, reserving rights against each and all indorsers and all parties to this note.
On maturity of the loan, the borrowers failed to pay the indebtedness of P500,000.00, plus interests and penalties, evidenced by the above-quoted promissory note.
On February 20, 1990, Veronica R. Gonzales, joined by her husband Danilo G. Gonzales, filed with the Regional Trial Court of Bulacan, Branch 16, at Malolos, Bulacan, a complaint for collection of the full amount of the loan including interests and other charges.
In his answer to the complaint filed with the trial court on April 5, 1990, defendant Servando alleged that he did not obtain any loan from the plaintiffs; that it was defendants Leticia and Dr. Rafael Medel who borrowed from the plaintiffs the sum of P500,000.00, and actually received the amount and benefited therefrom; that the loan was secured by a real estate mortgage executed in favor of the plaintiffs, and that he (Servando Franco) signed the promissory note only as a witness.
In their separate answer filed on April 10,1990, defendants Leticia and Rafael Medel alleged that the loan was the transaction of Leticia Yaptinchay, who executed a mortgage in favor of the plaintiffs over a parcel of real estate situated in San Juan, Batangas; that the interest rate is excessive at 5.5% per month with additional service charge of 2% per annum, and penalty charge of 1% per month; that the stipulation for attorney's fees of 25% of the amount due is unconscionable, illegal and excessive, and that substantial payments made were applied to interest, penalties and other charges.
After due trial, the lower court declared that the due execution and genuineness of the four promissory notes had been duly proved, and ruled that although the Usury Law had been repealed, the interest charged by the plaintiffs on the loans was unconscionable and "revolting to the conscience". Hence, the trial court applied "the provision of the New [Civil] Code" that the "legal rate of interest for loan or forbearance of money, goods or credit is 12% per annum."
“1. Ordering the defendants Servando Franco and Leticia Medel, jointly and severally, to pay plaintiffs the amount of P47,000.00 plus 12% interest per annum from November 7, 1985 and 1% per month as penalty, until the entire amount is paid in full.
“5. All counterclaims are hereby dismissed.
In due time, both plaintiffs and defendants appealed to the Court of Appeals.
In their appeal, plaintiffs-appellants argued that the promissory note, which consolidated all the unpaid loans of the defendants, is the law that governs the parties. They further argued that Circular No. 416 of the Central Bank prescribing the rate of interest for loans or forbearance of money, goods or credit at 12% per annum, applies only in the absence of a stipulation on interest rate, but not when the parties agreed thereon.
The Court of Appeals sustained the plaintiffs-appellants' contention. It ruled that “the Usury Law having become ‘legally inexistent’ with the promulgation by the Central Bank in 1982 of Circular No. 905, the lender and borrower could agree on any interest that may be charged on the loan“. The Court of Appeals further held that "the imposition of ‘an additional amount equivalent to 1% per month of the amount due and demandable as penalty charges in the form of liquidated damages until fully paid’ was allowed by law”.
“WHEREFORE, the appealed judgment is hereby MODIFIED such that defendants are hereby ordered to pay the plaintiffs the sum of P500,000.00, plus 5.5% per month interest and 2% service charge per annum effective July 23, 1986, plus 1% per month of the total amount due and demandable as penalty charges effective August 24, 1986, until the entire amount is fully paid.
“The award to the plaintiffs of P50,000.00 as attorney's fees is affirmed. And so is the imposition of costs against the defendants.
On April 15, 1997, defendants-appellants filed a motion for reconsideration of the said decision. By resolution dated November 25, 1997, the Court of Appeals denied the motion.
WHEREFORE, the Court hereby REVERSES and SETS ASIDE the decision of the Court of Appeals promulgated on March 21, 1997, and its resolution dated November 25, 1997. Instead, we render judgment REVIVING and AFFIRMING the decision dated December 9, 1991, of the Regional Trial Court of Bulacan, Branch 16, Malolos, Bulacan, in Civil Case No. 134-M-90, involving the same parties.
No pronouncement as to costs in this instance.
Upon the finality of the decision in Medel v. Court of Appeals, the respondents moved for execution. Servando Franco opposed, claiming that he and the respondents had agreed to fix the entire obligation at P775,000.00. According to Servando, their agreement, which was allegedly embodied in a receipt dated February 5, 1992, whereby he made an initial payment of P400,000.00 and promised to pay the balance of P375,000.00 on February 29, 1992, superseded the July 23, 1986 promissory note.
There is no doubt that the decision dated December 9, 1991 had already been affirmed and had already become final and executory. Thus, in accordance with Sec. 1 of Rule 39 of the 1997 Rules of Civil Procedure, execution shall issue as a matter of right. It has likewise been ruled that a judgment which has acquired finality becomes immutable and unalterable and hence may no longer be modified at any respect except only to correct clerical errors or mistakes (Korean Airlines Co. Ltd. vs. C.A., 247 SCRA 599). In this respect, the decision deserves to be respected.
The argument about the modification of the contract or non-participation of defendant Servando Franco in the proceedings on appeal on the alleged belief that the payment he made had already absolved him from liability is of no moment. Primarily, the decision was for him and Leticia Medel to pay the plaintiffs jointly and severally the amounts stated in the Decision. In other words, the liability of the defendants thereunder is solidary. Based on this aspect alone, the new defense raised by defendant Franco is unavailing.
WHEREFORE, in the light of all the foregoing, the Court hereby grants the Motion for Execution of Judgment.
Accordingly, let a writ of execution be issued for implementation by the Deputy Sheriff of this Court.
On March 8, 2001, the RTC issued the writ of execution.
Servando moved for reconsideration, but the RTC denied his motion.
Petitioner cannot deny the fact that there was no full compliance with the tenor of the compromise agreement. Private respondents on their part did not disregard the payments made by the petitioner. They even offered that whatever payments made by petitioner, it can be deducted from the principal obligation including interest. However, private respondents posit that the payments made cannot alter, modify or revoke the decision of the Supreme Court in the instant case.
It is clear from the aforementioned jurisprudence that even if there is a compromise agreement and the terms have been violated, the aggrieved party, such as the private respondents, has the right to move for the issuance of a writ of execution of the final judgment subject of the compromise agreement.
Moreover, under the circumstances of this case, petitioner does not stand to suffer any harm or prejudice for the simple reason that what has been asked by private respondents to be the subject of a writ of execution is only the balance of petitioner’s obligation after deducting the payments made on the basis of the compromise agreement.
WHEREFORE, premises considered, the instant petition is hereby DENIED DUE COURSE and consequently DISMISSED for lack of merit.
His motion for reconsideration having been denied, Servando appealed. He was eventually substituted by his heirs, now the petitioners herein, on account of his intervening death. The substitution was pursuant to the resolution dated June 15, 2005.
THE 9 DECEMBER 1991 DECISION OF BRANCH 16 OF THE REGIONAL TRIAL COURT OF MALOLOS, BULACAN WAS NOT NOVATED BY THE COMPROMISE AGREEMENT BETWEEN THE PARTIES ON 5 FEBRUARY 1992.
THE LIABILITY OF THE PETITIONER TO RESPONDENTS SHOULD BE BASED ON THE DECEMBER 1991 DECISION OF BRANCH 16 OF THE REGIONAL TRIAL COURT OF MALOLOS, BULACAN AND NOT ON THE COMPROMISE AGREEMENT EXECUTED IN 1992.
The petitioners insist that the RTC could not validly enforce a judgment based on a promissory note that had been already novated; that the promissory note had been impliedly novated when the principal obligation of P500,000.00 had been fixed at P750,000.00, and the maturity date had been extended from August 23, 1986 to February 29, 1992.
In contrast, the respondents aver that the petitioners seek to alter, modify or revoke the final and executory decision of the Court; that novation did not take place because there was no complete incompatibility between the promissory note and the memorandum receipt; that Servando’s previous payment would be deducted from the total liability of the debtors based on the RTC’s decision.
Was there a novation of the August 23, 1986 promissory note when respondent Veronica Gonzales issued the February 5, 1992 receipt?
To buttress their claim of novation, the petitioners rely on the receipt issued on February 5, 1992 by respondent Veronica whereby Servando’s obligation was fixed at P750,000.00. They insist that even the maturity date was extended until February 29, 1992. Such changes, they assert, were incompatible with those of the original agreement under the promissory note.
The petitioners’ assertion is wrong.
A novation arises when there is a substitution of an obligation by a subsequent one that extinguishes the first, either by changing the object or the principal conditions, or by substituting the person of the debtor, or by subrogating a third person in the rights of the creditor. For a valid novation to take place, there must be, therefore: (a) a previous valid obligation; (b) an agreement of the parties to make a new contract; (c) an extinguishment of the old contract; and (d) a valid new contract. In short, the new obligation extinguishes the prior agreement only when the substitution is unequivocally declared, or the old and the new obligations are incompatible on every point. A compromise of a final judgment operates as a novation of the judgment obligation upon compliance with either of these two conditions.
Received from SERVANDO FRANCO BPI Manager’s Check No. 001700 in the amount of P400,00.00 as partial payment of loan. Balance of P375,000.00 to be paid on or before FEBRUARY 29, 1992. In case of default an interest will be charged as stipulated in the promissory note subject of this case.
The extinguishment of the old obligation by the new one is a necessary element of novation which may be effected either expressly or impliedly. The term “expressly” means that the contracting parties incontrovertibly disclose that their object in executing the new contract is to extinguish the old one. Upon the other hand, no specific form is required for an implied novation, and all that is prescribed by law would be an incompatibility between the two contracts. While there is really no hard and fast rule to determine what might constitute to be a sufficient change that can bring about novation, the touchstone for contrariety, however, would be an irreconcilable incompatibility between the old and the new obligations.
There is incompatibility when the two obligations cannot stand together, each one having its independent existence. If the two obligations cannot stand together, the latter obligation novates the first. Changes that breed incompatibility must be essential in nature and not merely accidental. The incompatibility must affect any of the essential elements of the obligation, such as its object, cause or principal conditions thereof; otherwise, the change is merely modificatory in nature and insufficient to extinguish the original obligation.
In light of the foregoing, the issuance of the receipt created no new obligation. Instead, the respondents only thereby recognized the original obligation by stating in the receipt that the P400,000.00 was “partial payment of loan” and by referring to “the promissory note subject of the case in imposing the interest.” The loan mentioned in the receipt was still the same loan involving the P500,000.00 extended to Servando. Advertence to the interest stipulated in the promissory note indicated that the contract still subsisted, not replaced and extinguished, as the petitioners claim.
The receipt dated February 5, 1992 was only the proof of Servando’s payment of his obligation as confirmed by the decision of the RTC. It did not establish the novation of his agreement with the respondents. Indeed, the Court has ruled that an obligation to pay a sum of money is not novated by an instrument that expressly recognizes the old, or changes only the terms of payment, or adds other obligations not incompatible with the old ones, or the new contract merely supplements the old one. A new contract that is a mere reiteration, acknowledgment or ratification of the old contract with slight modifications or alterations as to the cause or object or principal conditions can stand together with the former one, and there can be no incompatibility between them. Moreover, a creditor’s acceptance of payment after demand does not operate as a modification of the original contract.
Worth noting is that Servando’s liability was joint and solidary with his co-debtors. In a solidary obligation, the creditor may proceed against any one of the solidary debtors or some or all of them simultaneously. The choice to determine against whom the collection is enforced belongs to the creditor until the obligation is fully satisfied. Thus, the obligation was being enforced against Servando, who, in order to escape liability, should have presented evidence to prove that his obligation had already been cancelled by the new obligation or that another debtor had assumed his place. In case of change in the person of the debtor, the substitution must be clear and express, and made with the consent of the creditor. Yet, these circumstances did not obtain herein, proving precisely that Servando remained a solidary debtor against whom the entire or part of the obligation might be enforced.
Lastly, the extension of the maturity date did not constitute a novation of the previous agreement. It is settled that an extension of the term or period of the maturity date does not result in novation.
The petitioners argue that Servando’s remaining liability amounted to only P375,000.00, the balance indicated in the February 5, 1992 receipt. Accordingly, the balance was not yet due because the respondents did not yet make a demand for payment.
The petitioners cannot be upheld.
The balance of P375,000.00 was premised on the taking place of a novation. However, as found now, novation did not take place. Accordingly, Servando’s obligation, being solidary, remained to be that decreed in the December 9, 1991 decision of the RTC, inclusive of interests, less the amount of P400,000.00 that was meanwhile paid by him.
WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals promulgated on March 19, 2003; ORDERS the Regional Trial Court, Branch 16, in Malolos, Bulacan to proceed with the execution based on its decision rendered on December 9, 1991, deducting the amount of P400,000.00 already paid by the late Servando Franco; and DIRECTS the petitioners to pay the costs of suit.
Leonardo-De Castro, (Acting Chairperson), Del Castillo, Villarama, Jr, and Perlas-Bernabe, JJ., concur.
 Rollo, pp. 103-110; penned by Associate Justice Bernardo P. Abesamis (retired), with Associate Justice Juan Q. Enriquez, Jr. (retired) and Associate Justice Edgardo F. Sundiam (deceased) concurring.
 G.R. No. 131622, November 27, 1998, 299 SCRA 481.
 Foundation Specialists, Inc. v. Betonval Ready Concrete, Inc., G.R. No. 170674, August 24, 2009, 596 SCRA 697, 706-707.
 Valenzuela v. Kalayaan Development & Industrial Corporation, G.R. No. 163244, June 22, 2009, 590 SCRA 380, 391; Bautista v. Pilar Development Corporation, G.R. No. 135046, August 17, 1999, 312 SCRA 611, 618.
 Magbanua v. Uy, G.R. No. 161003, May 6, 2005, 458 SCRA 184, 197.
 Valenzuela v. Kalayaan Development & Industrial Corporation, supra, note 17, pp. 390-391.
 G.R. No. 147950, December 11, 2003, 418 SCRA 297, 309-310.
 Valenzuela v. Kalayaan Development & Industrial Corporation, supra, note 17; California Bus Lines, Inc. v. State Investment House, Inc., supra, note 21; Kwong v. Gargantos, G.R. No. 152984, November 22, 2006, 507 SCRA 540, 548.
 Transpacific Battery Corporation v. Security Bank & Trust Co., G.R. No. 173565, May 8, 2009, 587 SCRA 536, 546.
 Aguilar v. Manila Banking Corporation, G.R. No. 157911, September 19, 2006, 502 SCRA 354; Spouses Reyes v. BPI Family Savings Bank, Inc., G.R. Nos. 149840-41, March 31, 2006, 486 SCRA 276.
 Jurado, Comments and Jurisprudence on Obligations and Contracts (2002 ed.), p. 331.
 Valenzuela v. Kalayaan Development & Industrial Corporation, supra, note 17.
 Ang v. Associated Bank, G.R. No. 146511, September 5, 2007, 532 SCRA 244, 276; Inciong, Jr. v. Court of Appeals, G.R. No. 96405, June 26, 1996, 257 SCRA 578, 588.
 Garcia v. Llamas, G.R. No. 154127, December 8, 2003, 417 SCRA 292, 302.
 California Bus Lines, Inc. v. State Investment House, Inc., supra, note 21; Garcia, Jr. v. Court of Appeals, G.R. No. 80201, November 20, 1990, 191 SCRA 493, 502.

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D.C. Law Library - § 5–115.05. Detention of witnesses.
↪ § 5–115.05. Detention of witnesses.
§ 5–115.04. Legal assistance for police in wrongful arrest cases.
§ 5–115.06. Gaming and bawdy houses and sale of lottery tickets — Arrest of persons; seizure of implements.
§ 5–115.05. Detention of witnesses.
The Mayor of the District of Columbia shall provide suitable accommodations within the District for the detention of witnesses who are unable to furnish security for their appearance in criminal proceedings, and such accommodations shall be in premises other than those employed for the confinement of persons charged with crime, fraud, or disorderly conduct; and it shall be the duty of all judges in committing witnesses to have regard to the rules and regulations of the Council of the District of Columbia in reference to their detention.
Witnesses, material, detention and release, see § 23-1326.
This section originated at a time when local government powers were delegated to a Board of Commissioners of the District of Columbia (see Acts Relating to the Establishment of the District of Columbia and its Various Forms of Governmental Organization in Volume 1). Section 402(101) of Reorganization Plan No. 3 of 1967 (see Reorganization Plans in Volume 1) transferred all of the functions of the Board of Commissioners under this section to the District of Columbia Council, subject to the right of the Commissioner as provided in § 406 of the Plan. The District of Columbia Self-Government and Governmental Reorganization Act, 87 Stat. 818, § 711 ( D.C. Code, § 1-207.11), abolished the District of Columbia Council and the Office of Commissioner of the District of Columbia. These branches of government were replaced by the Council of the District of Columbia and the Office of Mayor of the District of Columbia, respectively. Accordingly, and also pursuant to § 714(a) of such Act ( D.C. Code, § 1-207.14(a)), appropriate changes in terminology were made in this section.


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Senators Richard Blumenthal, Sheldon Whitehouse, and Mazie Hirono filed suit yesterday against "purported Acting Attorney General" Matthew Whitaker and President Trump, seeking declaratory and injunctive relief against President Trump's designation of Whitaker as Acting AG.
The complaint points especially to the Senate's advice-and-consent role in principal officer appointments as a separation-of-powers check. That's partly to establish standing: "By designating Mr. Whitaker to perform the functions and duties of the Attorney General without having been subject to Senate confirmation, President Trump has unlawfully denied the Plaintiffs their right, as sitting U.S. Senators, to vote on whether to consent to his appointment to that role."
It is precisely so that matters like these can be thoroughly examined by Senators that the Constitution prohibits the appointment of principal federal Officers without the Senate's advice and consent. That safeguard, the Framers recognized, helps prevent the President from appointing Officers with "no other merit than that of . . . possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure." The Framers regarded the advice-and-consent requirement as "an excellent check upon a spirit of favoritism in the President" that "would tend greatly to prevent the appointment of unfit characters from State prejudice, and from family connection, [and] from personal attachment."
Tom Goldstein, frequent Supreme Court litigator and publisher of SCOTUSblog, asked the Supreme Court today to rule on the legality of President Trump's designation of Matthew Whitaker as Acting AG. The issue came up in Goldstein's motion to substitute Rod Rosenstein (and not Matthew Whitaker) in a case against the AG.
The case pits the AG Succession Act (which specifies an automatic line of succession for the office) against the Vacancies Reform Act (which applies more broadly and gives the President more flexibility in naming an acting officer). It also asks whether the President's designation violated the Appointments Clause, because the AG is an "officer" that requires Senate confirmation.
The government's position is set out here, in the OLC memo concluding that President Trump had authority to designate Whitaker. Walter Dellinger and Marty Lederman have an outstanding "initial reactions" here, at Just Security.
Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday in American Federation of Government Employees v. Trump that President Trump's executive orders sharply curtailing federal employees' collective bargaining and labor rights violate federal labor law. The ruling means that most of the EOs' limitations are invalid.
Together, the EOs set a timeframe for completion of collective bargaining negotiations; removed certain matters from the bargaining table completely; set certain procedures for negotiations; limited the extent to which federal employees could engage in union work during business hours; limited the government resources that union members could use for union activities; made it easier for the government to dismiss federal employees for unsatisfactory performance.
The court recognized that the EOs are subject to restrictions in statutory law, but that "the President could always theoretically claim that he possesses the inherent constitutional authority to take a given action, regardless of any conflict with a congressional statute and his resulting lack of statutory authority." "But Defendants have made no such assertion in the instant case; instead, they have 'expressly recognized statutory limitations on the President's authority to act in this area.'" The court, therefore, didn't rule on the constitutional question.
The government's omission of a constitutional argument might seem surprising, given the President's recent constitutional extrapolation from the Court's ruling in Lucia in an EO designed to rein in control over executive branch ALJs. That move seemed like an attack, under cover of Lucia and claimed plenary Article II authority over the executive branch, on civil service laws that in any way restrict the President's claimed authority to hire and fire whomever he wants. That attack would seem to apply equally here. But the government didn't press it.
[T]he Order provisions concerning matters such as the reduction of the availability of and support for official time activities [to engage in union-related work], and the specific prohibitions against bargaining over [certain matters], or hte unilateral narrowing of any negotiated grievance procedures, dramatically decrease the scope of the right to bargain collectively, because, in the [Federal Service Labor-Management Relations Act], Congress clearly intended for agencies and unions to engage in a broad and meaningful negotiation over nearly every "condition of employment." Likewise, the Orders' requirements, such as the directive that agencies should "ordinarily" seek to conclude collective bargaining negotiations within five to seven months, or should limit the applicability of grievance procedures "[w]henever reasonable[,]" effectively instruct federal agencies and executive departments to approach collective bargaining in a manner that clearly runs counter to the FSLMRS's expectation of good-faith conduct on the part of negotiating parties. . . .
[T]he only challenged provisions of [the EOs] that can stand are those that neither contribute to a reduction in the scope of the collective bargaining that Congress has envisioned nor impede the ability of agencies and executive departments to engage in the kind of good-faith bargaining over conditions of federal employment that Congress has required.
Judge Dabney L. Friedrich (D.D.C.) today rejected challenges to Special Counsel Robert Mueller's office and authority by a defendant in the criminal case against thirteen Russian individuals and three corporations. The ruling in U.S. v. Concord Management says that the special counsel office is constitutional and that Special Counsel Mueller was acting within his authority in bringing this case. The ruling allows the case to go on.
We posted on another rejection to the special counsel just 11 days ago, here.
The regulations' revocability is "[t]he crucial difference" between the Special Counsel regulations and a statute that seeks to bind the executive branch from without, and it is this different that ensures the Special Counsel is an inferior officer. That is, to the extent that the regulations threaten to impair the Acting Attorney General's ability to direct and supervise the Special Counsel, the Department of Justice may simply rescind or revise the regulations at any time. This ability to rescind or revise the regulations as needed means that the Special Counsel is subject to the Acting Attorney General's plenary supervision. It also makes the Special Counsel effectively removable at will: if the for-cause provision stands in the way, the Acting Attorney General need only rescind or revise the regulation in order to remove the Special Counsel.
The court also ruled that the special counsel was an "inferior office" under Morrison v. Olson.
The court went on to say that the office didn't violate the separation of powers. In particular, the court ruled that even if the special counsel regulations are nonbinding on the special counsel (as Concord argued), then "the Special Counsel would be subject to the Acting Attorney General's plenary control by statute. Because executive power would remain wholly within the executive branch, no separation-of-powers problem would arise." Moreover, the court said that the AG had plenty of statutory authority to issue the special counsel regs.
Finally, the court said that Special Counsel Mueller wasn't acting outside of his appointment authority in bringing this particular case.
For yet a different take on Mueller's constitutionality, check out Seth Barrett Tillman and Josh Blackman's piece on Lawfare, Is Robert Mueller an "Officer of the United States" or an "Employee of the United States?"
The Supreme Court's recent decision in Lucia v. SEC explains that if a federal position is only "temporary," then such a position is likely not an "office of the United States." . . . Therefore, [the special counsel] may not be an "officer of the United States" under the rule in Lucia.
As an employee, they argue, the special counsel is subject to the ordinary appointment requirements for any (non-officer) civil servant.
Chief Judge Beryl A. Howell (D.D.C.) rejected a challenge to Special Counsel Robert Mueller's appointment under the Appointments Clause. The ruling, which came in response to a witness's challenge to a grand jury subpoena issued by Mueller, means that the witness--identified by several sources as Andrew Miller, a former associate of Roger Stone--will have to comply with the subpoena.
The ruling aligns with other district court rulings that upheld Mueller's appointment.
Miller challenged a grand jury subpoena issued by Mueller, arguing that Mueller was invalidly appointed under the Appointments Clause. Judge Howell rejected that claim. The court, relying on the factors in Morrison v. Olson, ruled that Mueller was an "inferior officer" and was validly appointed, pursuant to federal statute, by the head of a department. As to Miller's claim that DAG Rod Rosenstein wasn't the "Head of Department" for purposes of the Appointments Clause (because he was the DAG, not the AG), the court said that federal law authorizes the DAG to serve as Acting AG when the AG is recused, and that a different statutory provision allows the AG to delegate to the DAG authority to appoint the Special Counsel.
The Sixth Circuit ruled this week in Jones Brothers, Inc. v. Sec'y of Labor that administrative law judges in the Mine Safety and Health Review Commission are "inferior officers" and were invalidly appointed under the Appointments Clause.
The very short ruling (on the merits) is a straight-line application of Lucia.
The case arose when the Mine Safety and Health Administration imposed a civil penalty on Jones Brothers for failing to comply with agency safety requirements. A Commission ALJ upheld the penalty, and the Commission itself affirmed.
The problem: The ALJ was appointed by the Commission's Chief ALJ, and not by the "department head" (the Commission itself).
The Commission's administrative law judges are likewise established by statute . . . and exercise significant authority commensurate with their SEC counterparts. Like SEC administrative law judges, they preside over trial-like hearings. In that role, they shape the administrative record by taking testimony, regulating document production and depositions, ruling on the admissibility of evidence, receiving evidence, ruling on dispositive and procedural motions, and issuing subpoenas. Indeed, they exercise "nearly all the tools of federal trial judges."
And like SEC administrative law judges, they have the authority to issue initial decisions assigning liability and imposing sanctions. After 40 days, those decisions become final decisions of the Mine Commission unless the Commission decides to review them. But such review is available at "the sound discretion of the Commission," not as a "matter of right." This process is nearly identical to the SEC's review process.
The court said that Commission ALJs, like SEC ALJs, are therefore "inferior officers." And as "inferior officers," they have to be appointed by the President, a court, or a head of department. But they weren't: they were appointed by the Commission's Chief ALJ. So they're unconstitutional.
The court recognized that the Commission ratified the appointment of every ALJ. That works fine going forward, but for this case, the court, like the Supreme Court in Lucia, ordered that Jones Brothers get a new ALJ hearing before a validly appointed ALJ who is not the original ALJ.
The court spilled quite a bit of ink determining whether Jones Brothers forfeited the constitutional argument by not raising at the administrative stage. The court said that Jones Brothers did forfeit it, but that the forfeiture was excusable here.
Check out the on-line symposium at SCOTUSblog on the Term's separation-of-powers and administrative-law decisions, led by analysis of Thursday's Lucia (holding that SEC ALJs are "officers" under the Appointments Clause (and not employees not subject to the Clause), and therefore require appointment by the SEC, as head of the agency).
The Supreme Court ruled today in Ortiz v. United States that a military officer could serve on both the military Court of Criminal Appeals (as an inferior officer) and the Court of Military Commission Review (as a principal officer) without violating the Appointments Clause. The ruling also says that the dual appointment didn't violate federal statutory law.
The ruling leaves in place a conviction upheld by a CCA panel that included an officer who also had an appointment on the CMCR (which reviews military commission decisions--different than court martial rulings--out of Guantanamo Bay).
Today's decision is unprecedented, and it flatly violates the unambiguous text of the Constitution. Although the arguments in the various opinions issued today may seem complex, the ultimate issue is really quite simple. The Court and the concurrence say that Congress may confer part of the judicial power of the United States on an entity that is indisputably part of the Executive Branch. But Article III of the Constitution vests "[t]he Judicial Power of the United States"--every single drop of it--in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" in compliance with that Article. A decision more contrary to the plain words of the Constitution is not easy to recall.
The problem, [petitioner] suggests, is that the other (inferior officer) judges on the CCA will be "unduly influenced by" Judge Mitchell's principal-officer status on the CMCR.
But that argument stretches too far. This Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. Nor has it ever recognized principles of "incongruity" or "incompatibility" to test the permissibility of holding two offices. As Ortiz [the petitioner] himself acknowledges, he can "cite no authority holding that the Appointments Clause prohibits this sort of simultaneous service."
And if we were ever to apply the Clause to dual office-holding, we would not start here. Ortiz tells no plausible story about how Judge Mitchell's service on the CMCR would result in "undue influence" on his CCA colleagues. The CMCR does not review the CCA's decisions (or vice versa); indeed, the two courts do not have any overlapping jurisdiction. They are parts of separate judicial systems, adjudicating different kinds of charges against different kinds of defendants. We cannot imagine that anyone on the CCA acceded to Judge Mitchell's views because he also sat on the CMCR . . . . The CAAF put the point well: "When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge." So there is no violation of the Appointments Clause.
The Court also ruled that the dual appointment didn't violate federal statutory law.
Justice Kagan wrote for the Court, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Alito, and Gorsuch.
the Commission's ALJs exercise the same "significant discretion" when carrying out the same "important functions" as STJs do [in Freytag]. Both sets of officials have all the authority needed to ensure fair and orderly adversarial hearings--indeed, nearly all the tools of federal trial judges. . . . So point for point--straight from Freytag's list--the Commission's ALJs have equivalent duties and powers as STJs in conducting adversarial inquiries.
And at the close of those proceedings, ALJs issue decisions much like that in Freytag--except with potentially more independent effect. . . . By contrast [to Freytag], the SEC can decide against reviewing an ALJ decision at all. And when the SEC declines review (and issues an order saying so), the ALJs decision itself "becomes final" and is "deemed the action of the Commission." That last-word capacity makes this an a fortiori case: If the Tax Court's STJs are officers, as Freytag held, then the Commission's ALJs must be too.
Because the ALJs are "Officers," they have to be appointed by the President, the courts, or the head of the department, here the SEC. And because they were appointed by SEC employees, and not the SEC itself, their appointment was invalid, as was the ALJ's ruling in this case.
Importantly, the Court assumed, as agreed by the parties, that the ALJs were "inferior officers," not "principal officers." This means that they can be appointed by the President, the courts, or the head of a department. This, in turn, means that SEC ALJs--and any other ALJs who weren't appointed by the head of a department--have to be reappointed by the head of a department under law. It also means that this case says nothing about the line between inferior officers and principal officers; it only speaks to the difference between "Officers" and "employees" (which are not covered by the Appointments Clause at all and are therefore not at all subject to Appointments Clause requirements).
The Court ordered the SEC to grant a new hearing to the petitioner, with a different and validly appointed ALJ or with the SEC itself.
Justice Thomas, joined by Justice Gorsuch, concurred, and argued that "Officer," under an original understanding, should sweep much, much more broadly, to "all federal civil officials 'with responsibility for an ongoing statutory duty.'"
I would not answer the question whether the Securities and Exchange Commission's administrative law judges are constitutional "Officers" without first deciding the preexisting Free Enterprise Fund question--namely, what effect that holding would have on the statutory "for cause" removal protections that Congress provided for administrative law judges. If, for example, Free Enterprise Fund means that saying administrative law judges are "inferior Officers" will cause them to lose their "for cause" removal protections, then I would likely hold that the administrative law judges are not "Officers," for to say otherwise would be to contradict Congress' enactment of those protections in the Administrative Procedure Act. In contrast, if Free Enterprise Fund does not mean that an administrative law judge (if an "Office[r] of the United States") would lose "for cause" protections, then it is more likely that interpreting the Administrative Procedure Act as conferring such status would not run contrary to Congress' intent. In such a case, I would more likely hold that, given the other features of the Administrative Procedure Act, Congress did intend to make administrative law judges inferior "Officers of the United States."
Justice Breyer, joined by Justices Ginsburg and Sotomayor, also would have allowed the same ALJ to re-hear the case on remand.
Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that "Commission ALJs are not officers because they lack final decisionmaking authority."
The Government's 53 page Memorandum (with an additional 230 pages of exhibits), Response in Opposition to Motion to Dismiss, in United States v. Manafort provides another window into the prosecution of Paul Manafort. In his motion to dismiss, Manafort challenges the validity of the Acting Attorney General’s order appointing the Special Counsel and defining the Special Counsel’s jurisdiction (Office of the Deputy Att’y Gen., Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters, May 17, 2017), available here.
But the Independent Counsel Act is expired. And the Special Counsel was not appointed by a court, but by the Justice Department. Thus, according to the Government's Memorandum, "Unlike the former statutory scheme that authorized court-appointed independent counsels, the definition of the Special Counsel’s authority remains within the Executive Branch and is subject to ongoing dialogue based on sensitive prosecutorial considerations" In other words, there are no constitutional considerations - - - and certainly no separations of powers issues - - - in "the wholly Executive-Branch regime created by the Special Counsel regulations" under which Special Counsel was appointed and directed.
For LawProfs looking for a relatively succinct discussion of the Special Counsel, this Government memo is a good example, especially given its clear and crisp writing style.

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Ronald Shinstock v. State of Mississippi – illegal search – William Valentine was caught with methamphetamine and law enforcement made a deal with him if he could lead them t o his supplier. Valentine set up a controlled buy from Shinstock and purchased an “eight ball” of meth for $260 in marked bills. After the buy, law enforcement arrested Shinstock and found the $260 on his person and scales in his bedroom. He was convicted. On appeal he argues that his 4th Amendment rights were violated when officers entered his home to arrest him and found the scales. The COA finds this argument barred because Shinstock failed to move to suppress in the trial court. And because the search was never challenged, there isn’t evidence in teh record to determine whether the search was legal or illegal. Shinstock also argues that his trial attorney was ineffective in failing to suppress the evidence. The COA finds this issue cannot be determined from the appellate record and denies it without prejudice.
Cortaia Washington v. State of Mississippi – intimidation of a witness – Washington’s brother was on trial for armed robbery. One of the witnesses against him was Freda Austin. Washington recognized Austin because she worked at a store where Washington shopped. During the trial, Washington and her aunt Ashley Bryant went to the store and yelled at Austin. Washington punched Austin several times and tore out her hair. She was convicted of intimidating a witness and sentenced to two years with two months suspended. On appeal she argues that her conviction was against the weight of the evidence. The COA affirms.
T.L. Wallace Construction, Inc., Thomas Wallace and Janette Wallace v. McArthur, Thames, Slay, and Dews, PLLC – accounting malpractice – Thomas Wallace owned Wallace Construction. In 2007 he retired and let his employees run the company. According to Wallace, between 2007 and 2011, top employees charged $3.7 million of personal expenses were to Wallace Construction and Wallace ended up losing his business. He filed suit against his accounting firm alleging that it should have discovered all of the fraud and theft. The trial court excluded the Wallace’s causation expert Ralph Summerford and then granted summary judgment for the accounting firm based on a lack of expert evidence. On appeal Wallace argues that expert testimony is not always required, that the testimony of Thomas Wallace should have been sufficient to overcome summary judgment, and that the court erred in excluding Summerford’s opinion. The accounting form cross appealed arguing that the court should have dismissed the complaint on the basis of the statute of limitations, that the trial court erred in limiting discovery of company information to June 30, 2012, and that the court erred in denying discovery of the Wallace’s personal accounts. The COA reverses.
causation was required in all malpractice cases, and because Wallace Construction presented sufficient lay testimony to overcome summary judgment on the issue of causation, we affirm in part, reverse in part, and remand the case the trial court for further proceedings consistent with this opinion. In addition, we find that the trial court abused its discretion in disallowing reasonable access to the financial information of Wallace Construction subsequent to June 30, 2012, and in its denial of discovery of the Wallaces’ personal accounts.
Kale Rashaud Scott v. State of Mississippi – self defense – Scott was convicted of killing one and shooting another during a graduation party in Lowndes County. On appeal he argues that the verdict was against the weight of the evidence and/or that the evidence was insufficient because the state did not prove that his actions were not in necessary self defense. The COA affirms.
Builders and Contractors Association of Mississippi, Home Builders Association of Mississippi, AmFed Casualty Insurance Company and AmFed Companies, LLC v. Laser Line Construction Company, LLC – workers comp insurance – Laser Line purchased statutory workers’ compensation insurance coverage from the Builders and Contractors Association of Mississippi Self Insurers’ Fund. Because Laser Line was a general contractor, BCAM sought premium payments for all employees of Laser Line’s subcontractors who did not independently secure workers’ compensation coverage. Laser Line refused to pay premiums for employees of subcontractors who had fewer than five employees and claimed they were thus exempt from the coverage requirement. BCAM canceled Laser Line’s coverage for nonpayment. Laser Line filed suit for damages and a declaratory judgment. The trial court granted Laser Line partial summary judgment on the statutory interpretation issue. BCAM sought and was granted an interlocutory appeal. The Court reverses.
fewer than five employees and who did not secure workers’ compensation coverage.
Consistent with the statute and this Court’s interpretation and application of that statute, an employee of the subcontractor of the general contractor comes within the provisions of the Act. The language has the effect of making the employees of a subcontractor, where the subcontractor does not carry insurance for the protection of its employees, the employees of the general contractor within the meaning of the Workers’ Compensation Act—thus requiring Laser Line to secure workers’ compensation coverage for the employees of its uninsured subcontractors. See Mills, 56 So. 2d at 486-87; Miss. Code Ann. § 71-3-7.
Timothy Vivians v. Baptist HealthPlex, Becky Vrieland and Helen Wilson – premises liability – Vivians filed a lawsuit against Baptist Healthplex; Becky Vrieland, Baptist’s aquatics director; and Helen Wilson, an employee of Baptist Health Systems alleging negligence arising out of an accident wherein in February 2008, he slipped and fell backward upon entering Baptist’s therapy pool. The trial court granted summary judgment for the defendants and Vivians appeals. The COA affirmed. The Miss.S.Ct. granted cert and reverses finding that Viviens’ evidence of five prior falls meant that there was a material issues of fact whether the steps were a dangerous condition and whther Baptist failed to take reasonable steps to fix the condition.
Tyler Edmonds v. State of Mississippi – compensation for wrongful conviction – In 2003, 13-year-old Edmonds was charged along with his half-sister of murdering his brother-in-law Joey Fulgham, during a Mother’s Day weekend shooting in 2003. Fulgham died of a gunshot wound to the back of the head. Edmonds initially told investigators he held a .22-caliber rifle, while Kristi Fulgham put her arms around him and they both fired the fatal shot. Edmonds then recanted his story, claiming he was outside Joey Fulgham’s house at the time of the shooting. Both were found guilty of Joey Fulgham’s murder in 2004. His conviction was overturned and he was acquitted after a retrial. Edmonds filed suit in state court seeking compensation under the Compensation to Victims of Wrongful Conviction and Imprisonment Act. The trial court dismissed the suit pursuant to M.C.A. § 11-44-7(c), which disallows recovery if a plaintiff fails to prove, by a preponderance of the evidence, that he did not “fabricate evidence to bring about his conviction” – in this case Edmonds gave a false confession. The Mississippi Supreme Court reverses finding that an element of the fabrication bar to recovery is intent and here there is a material issue of fact with regard to whether Edmonds intended to fabricate evidence. The Court also agrees with Edmonds that he is entitled to a jury trial.
The Court amends MRAP 2 and the comments to 2 and 4 to clarify that “[t]he time for taking an appeal under Rules 4 or 5 may be extended in criminal and post-conviction cases, but not in civil cases.” (Post conviction is typically considered civil; I assume this is the reason for the clarification). See the changes here.
Demario Walker v. State of Mississippi – (the link is to the COA opinion) – parole violation – Demario is a con man who finds it impossible to conform his behavior so that he doesn’t violate the law. He was on probation from various charges when his parole offer sought to revoke him for failure to meet with his parole officer, failure to pay fees and fines, etc. The court revoked his probation and ordered he serve the remaining part of his five-year sentence. Demario filed a pcr and lost. He appealed and the COA affirmed the revocation but found that the revocation was for technical violations and, thus, the court was limited to revoking him for 90 days as per statute. Demario, though, was convicted of more crimes in Rankin (thank you Rankin County prosecutors!) in August of 2016 so he’s not getting out soon. But when he does, don’t ever take a check from this guy. A few years ago he was indicted as an habitual in Hinds but the Hinds DA agreed to let him plead to time served. (My father was one of his victims in Hinds County). At any rate, both Demario and the State filed cert. petitions (Demario has filed hundreds of lawsuits throughout his criminal career; its part part of his sociopathy – just Google him). The Court granted both cert petitions.
Demario argues 1) there was no evidence he violated probation and 2) he wasn’t on probation in Jefferson Davis but rather on probation in half a dozen other Mississippi counties.
The State argues that this was not, as the COA characterizes it, Demario’s first technical violation but rather his third.
Carl William Arnold, Jr., Lynda Arnold Gambrell and Deborah Arnold Herndon v. Annie J. Arnold – withdrawal of attorney – In 2015, Debbie Herndon, Lynda Gambree and Carl Arnold filed a petition to have a conservator, namely Debbie, appointed for their father Carl Arnold. Arnold’s wife Annie objected. A GAL recommended that Debbie be appointed and the Court initially agreed. The Court then changed its mind and decided to appoint Annie. The children were upset and fired their attorney and hired a new attorney. Their initial attorney moved to withdraw but the trial court refused to allow it. He filed an interlocutory appeal which the Court grants and orders that the trial court allow the attorney to withdraw.


text:
1. Claim 1 of Patent No. 1,262,860, to Smith for a method of incubating eggs, held valid and infringed. See Smith v. Snow, ante p. 294 U. S. 1. P. 294 U. S. 21.
2. The claim is for a method or process, and not for a machine or the function of a machine. P. 294 U. S. 21.
3. A method, otherwise patentable, is not to be rejected as "functional" merely because the specifications show a machine capable of using it. P. 294 U. S. 22.
4. Infringement of the Smith method is not avoided by use of it, whether more or less efficiently, in an incubator of different structure than Smith's. P. 294 U. S. 23.
Certiorari to review a judgment affirming a judgment of the District Court holding a patent valid and infringed.
In this companion case to Smith v. Snow, ante, p. 294 U. S. 1, certiorari was granted to review a decree of the Court of Appeals for the Ninth Circuit, 70 F.2d 457, which affirmed the decree of the District Court, and held valid and infringed the first claim of the Smith patent, No. 1,262,860, of April 16, 1918, for an improved apparatus and method for the incubation of eggs.
eggs in different stages of incubation, and the flow of heat units from one to the other, in achieving the desired result. He did this by arrangement of the eggs in staged incubation and applying to them a current of heated air under the conditions specified in Claim 1. By the use of materials in a particular manner, he secured the performance of the function by a means which had never occurred in nature, and had not been anticipated by the prior art; this is a patentable method or process. Corning v. Burden, 15 How. 252, 56 U. S. 267-268; Risdon Iron & Locomotive Works v. Medart, supra, 158 U. S. 77; Cochrane v. Deener, 94 U. S. 780, 94 U. S. 788. A method, which may be patented irrespective of the particular form of the mechanism which may be availed of for carrying it into operation, is not to be rejected as "functional" merely because the specifications show a machine capable of using it. Expanded Metal Co. v. Bradford, 214 U. S. 366, 214 U. S. 382-386; Cochrane v. Deener, supra, 94 U. S. 787-788. Cf. Holland Furniture Co. v. Perkins Glue Co., 277 U. S. 245, 277 U. S. 255-256.
they are deflected in the direction of the fans, and there "drawn" toward them through the central part of the chamber. Less than 1% of the air passes out through the foul air exits in the course of making the described circuits, so that there is circulation and recirculation of the air within the chamber. The evidence supports the finding of the special master and of the two courts below that the currents of air set in motion by the fans flow continuously along defined paths.
The petitioner's machine thus employs every essential of the patented method as it is defined by Claim 1. Petitioner does not avoid infringement of respondent's method patent merely by employing it in a machine of different structure than respondent's, whether more or less efficiently. Winans v. Denmead, 15 How. 330, 56 U. S. 344; Sewall v. Jones, 91 U. S. 171, 91 U. S. 184; Cochrane v. Deener, supra, 94 U. S. 789; Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 185 U. S. 441.

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The law creates 10 year tax and licensing fee exemptions for restaurants, retail stores, and supermarkets located in specific "priority development areas" of D.C. The exemptions include include exemption from real property tax, personal property tax, and exemptions from sales and use tax on building materials related to the development of a restaurant, store, or supermarket in a designated area.
Creates an incentive for a change.
Limited scope. This law has a voluntary component and provides a tax break/licensing exemption.
Unclear. "Law defines ""eligible areas"" to include historically underutilized business zone and specific census tracts. (Sec. 47-3801 (1D). According to ""Effects of Amendments"" section in online codified version, previous version of law included a definition for ""underserved areas."" ".
Unclear. Definition of supermarket states: "Offers for sale a full line of meat, seafood, fruits, vegetables, dairy products, dry groceries…" (Sec. 47-3801 3 (A)(ii)).
Yes. Authorizes and requires Mayor to issue rules to implement, including creating application form. (Sec. 47-3802 (c )(1)-(4), and Sec. 47-3805). Includes criteria for what Mayor's certification of qualification must include (Sec. 47-3802 (c )(3)), and requires Office of Tax and Revenue to review requests within 10 days (Sec. 47-3802(c)(4)).
"Title 47, Taxation, Licensing, Permits, Assessments, and Fees; Chapter 38, Supermarket Tax Incentives. History: Sept. 29, 1988, D.C. Law 7-173, § 2, 35 DCR 5758; enacted, Apr. 9, 1997, D.C. Law 11-254, § 2, 44 DCR 1575; October 4, 2000, D.C. Law 13-166, § 2(a), 47 DCR 5821; Mar. 26, 2008, D.C. Law 17-138, § 703(a)(1), 55 DCR 1689; Apr. 8, 2011, D.C. Law 18-353, § 205(a), 58 DCR 746; Sept. 26, 2012, D.C. Law 19-171, § 114(o), 59 DCR 6190; Feb. 18, 2017, D.C. Law 21-204, § 3, 63 DCR 15047.".


text:
g e r s were also chosen last week.
Philpott f o r basketball.
Scott, Walker, Grow, and Schmitz.
also a promising piece of material.
for a good team next year.
Gravatt, Smith, E. T., and Chadwick.
a formidable team next year.
year are now being made out.
Will Be Held First of Week.
is convincing enough, while L.
Berry, and C. V. Smith.
W. Adams will have his tour at V.
that Infantry instructors in the R.
instruction at Fort Benning, Georgia.
A regular meeting of the V. M. I.
"The Great Wall of China." J.
of good roads in Tidewater Virginia.
National Forest Service. Col. J. A.
and by recommending Col. T. A. E.
will be held on Saturday, March 24.
Entirely New Infield In Action.
better than the team of last year.
keystone sack, and Hewlett on first.
seven men fighting for positions.
been marred with only one accident.
March 31 with Catholic University.
Corps of Cadets. The theme of Dr.
fully developed in his next lecture.
high degree of perfection in this di-rection.
attains a great exuberance of ex-pression.
shots out of a possible fifty.
held in the Library on Tuesday aft-ernoon.
ability in wrestling and boxing, re-spectively.
for the season just ended.
Crary, and Haase, W. F.
Cray, Marshall, R. C., and Spilman.
T. F. Thompson; wrestling: E. T.
information received by Colonel R.
S. Dodson, Commandant of Cadets.
Full Text Search THE CADET P U B L I S H E D W E E K L Y BY THE CORPS OF CADETS VIRGINIA MILITARY INSTITUTE VOL. XXI. L E X I N G T O N , V I R G I N I A , MONDAY, MARCH 19, 1928 No. 22 Harner, Field, Gordon to Lead Basketball, Wrestling, Boxing A L T H O U G H LOSING STARS, WINTER SPORTS SHOW S P L E N D I D PROSPECTS N E X T Y E AR D u r i n g the past week Captains f or next year's Boxing, Wrestling, and Basketball teams were elected. They are, for the respective teams, Gor-don, Feild, and Harner. The man-a g e r s were also chosen last week. They are Thompson, T. F., f o r box-i n g ; Upson, E. T., f o r wrestling, and Philpott f o r basketball. The basketball team loses Frost, the Fulkerson brothers, and Mondy by graduation. There are four mono-gram men, Harner, Barnes, Hewlett, and McGlone, that next year's team will be built around. Some reserves who will also aid "greatly and fur-nish quite a bit of competition are Scott, Walker, Grow, and Schmitz. Brown, of this year's rat team, is also a promising piece of material. In all, the loss by graduation is heavy, but remaining material is promising enough to allow a predic-tion for a good team next year. The boxing team will also lose heavily by the graduation of Boog-her, Sully, Griffin, Bob Spilman, Bus-ter Cilley, Marshall, and Higgins. However, Gordon, newly made cap-tain, will be back with us and with him will be Rogers, Palmer, McCray, Gravatt, Smith, E. T., and Chadwick. Supplemented by material from this year's rat squad the boxers will pre-sent a formidable team next year. The wrestling team will lost the justly famed Woodbury, Woodward, and Rugh. The wrestling team loses less in number than either box-ing or basketball, but these three will be hard to replace. The monogram men available for next year are Feild (captain), Thompson, McCray, and Haase. These will be supple-mented by such men as Tucker, Mof-fitt, Adams, T. T., Kellam, Meyers, Nichols, Buck White, Philpott, Ayer, Parker, and Smith. Talman, Robin-son, and Rochelle of this year's rat squad showed up well and will also be available for next year. With these men a mighty good team should be turned out. Schedules of the teams for next year are now being made out. INCLEMENT WEATHER HALTS TRACK TRYOUTS Will Be Held First of Week. Although the weather called a halt to the track tryouts which were scheduled for Saturday afternoon, the team continues to round into shape and show promise of making an en-viable record throughout the coming season. Last year's varsity was hurt but little by graduation while a wealth of promising material comes up from the old rat team. All the candidates have settled down to steady work in preparation for the first, meet which is to be held on the thirty-first of the month. In the dashes, we seem to be bet-ter fortified than we have been in years. Although most of the candi-dates are making their initial bid for a place on the varsity, Harrington, Thornhill, Holtzclaw, Causey, Jack-son, Mitchell, and Fowler should be more than sufficient to handle this phase of the business. Holtzclaw, who was the outstanding members of last year's rat team, will prob-ably be a big aid in ruining many of our opponents' hopes for victory be-fore the season is over. Captain Decker's work in the hur-dles is convincing enough, while L. G. Walker, also of last year's var-sity, is pushing him hard. Ryland also bids fair to be heard from throughout the season. In the gruelling two-mile, Winter and Wag-ner, of the cross country team, should manage very nicely while the mile is well provided for by Pettyjohn, Berry, and C. V. Smith. Although Upson is the only vet eran in the half, there is no need for worry as he is well supported by Causey, Burgess, and Mitchell. Up-son, Thornhill, and Causey will bear the burden in the quarter and they CAPTAIN ADAMS STAYS ANOTHER YEAR Capt. Heap Ordered To Infantry School. (Continued on Pace Fiva) AMERICAN SOCIETY OF CIVIL ENGINEERS MEET As result of a permit submitted to the War Department, Captain Fred W. Adams will have his tour at V. M. I. extended one year longer. Cap-tain Theodore P. Heap will go to Fort Benning, Georgia. All officers in the U. S. Army are detailed with some R. 0. T. C. unit for four years. Captains Adams and Heap both came here in June, 1924. June, 1928, will end their reg-ular tour, but Captain Adams' tour has been extended one more year so that Infantry instructors in the R. O. T. C. will not leave in the same year. At the direction of the War De-partment, Captain Theodore P. Heap will proceed to the Infantry School at Fort Benning, Georgia, for a course of instruction. Captain Heap came to the Institute four years ago after he had completed a. course of instruction at Fort Benning, Georgia. He will report about September 12 for duty in the 1928-29 advanced of-ficers' course. Langben Heads Program. A regular meeting of the V. M. I. student chapter of the American So-ciety of Civil Engineers was held on Friday, March 16th. T. F. Langben of the Second Class was the first speaker on the progi-am. He gave an exceedingly good talk on the sub-ject "The Great Wall of China." J. V. Summerlin spoke on the necessity of good roads in Tidewater Virginia. J. Q. Marchant of the First Class spoke on "Sanitary Engineering dat-ing back to the time of Christ." D A. Cilley of the First Class spoke on "The Snow Removal Problem." S H. Duerson of the Second Class spoke on the subject "Roman Struc tures." J. F. Sullivan of the Second Class gave an account of his person-al experiences while working for the National Forest Service. Col. J. A. Anderson, Head of the Civil Engi neering Department, closed the meet-ing by making constructive criticisms and by recommending Col. T. A. E. Moseley's weekly lectures on the subject "Greek Architecture." The next meeting of the student chapter will be held on Saturday, March 24. VARSITY NINE SHOWS STRONG DEFENSE Entirely New Infield In Action. The varsity baseball team is rapid-ly rounding into Bhape under the skillful direction of Bill Raftery, head coach. With only three mono-gram men as a nucleus about which to build a nine, coach will turn out a team that will do as well if not better than the team of last year. Special attention is being given this year to the offensive side of the game, as games can only be won with runs. At present there are slightly more than two score men on the squad. In the box there are Black, a letter man from last year's team, Bellamy and Rucker of last year's varsity squad, and Boxley and Gillespie from the Rat team. From these coach will be able to pick at least two starters that can be depended upon. On the other end of the battery we have Day and Ballenger of the varsity squad and Hull and Smith from the Rats. The infield will probably be com-posed of Sullivan at the hot corner, Biggs in the short field, Grow at the keystone sack, and Hewlett on first. In reserve there are Thompson at first, Jones at second, Marchant at short, and Moore at third. In the outfield competition is keen with seven men fighting for positions. Barnes, Talman, and Scott will probably get the call, but both of the latter are being pushed for berths by Carney, Saunders, Keyon, and Hawkins. The training season to date has been marred with only one accident. While catching during batting prac-tice Hull suffered a split finger from a foul tip. Whether or not this will affect his work behind the plate is unknown, but if so he may be shunt-ted to the outfield if needed, a posi-tion he covered for the i-at team last year. There are yet two weeks prior to the opening of the season and the nine will be in even better shape than now. The season opens here on March 31 with Catholic University. Dr. Swan Addresses Corps Last Monday afternoon Dr. Eugene L. Swan of the American Social Hy-giene Association addressed the Corps of Cadets. The theme of Dr. Swan's talk was the psychological difference between men and women. He traced the growth of each from infancy to marriage, giving the phy-sical changes in each and showed how these differences with those of en-vironment had combined to make the mental reactions of men and women entirely different. Dr. Swan said that the general ignorance and dis regard for these differences was the cause for most of the divorces in America today. He gave much sound advice to young men in their social relations with women. He next discussed Companionate Mar-riage and pointed out the obvious un-fairness of such an arrangement. Dr. Swan's address can not fail to do a great deal of good and the Corps was very lucky to have the privilege of hearing such an eminent and en tertaining speaker. It is hoped by the entire Corps that Dr. Swan will be able to return and speak to the Cadets again some time in the near future. Dr. Swan is a retired major in the U. S. Army. During the war he ad-dressed over a million men. Athletic Council Selects Winter Sports Managers PETTYJOHN, PHILPOTT, AND THOMPSON HONORED W I T H POSITIONS COL. MOSELEY DELIVERS FIFTH LECTURE Describes Architecture of Early Greeks. Last Tuesday night Col. Moseley continued his series of addresses on ancient art and architecture by pre-senting in detail the Hellenistic age of Greek sculpture. He also spoke of the early growth of Roman artis-try in design, but this will be more fully developed in his next lecture. Col. Moseley emphasized the influ-ence that the artistice conventions of the fourth century B. C. had on the work of the Hellenistic Age. Praxi-teles and Lysippas, whose creations expressed the spirit of the fourth century B. C. were decidedly human-istic in their artistic treatment. Their work is characterized by a more ro-mantic grace and delicacy that is found in the realistic work of the subsequent age. The Hermes of Praxiteles is an excellent example of the development during this human-istic period. The statues are aloof and impersonal. Here we find no at-tempt at portrature. The sculptors of the Hellenistic age broke away from this convention and attained a high degree of perfection in this di-rection. These artists emphasized realism. They copied the stately poise of the fifth century, combined it with the graceful drapery of the fourth century and produced a re-markable result, the dignified which attains a great exuberance of ex-pression. The Victory of Samoth-race and the Venus of Milos are no-table pieces of work produced dur-ing the Hellenistic period. Colonel Moseley explained the gradual shift of artistic talent from Greece prop-er to Asia Minor. With this change a more oriental influence is noticed (Continued en >Uji« Five) V. M. I. FREE THROW CONTEST BEGINS 300 Aspirants Already Enrolled. The Free Throw contest, which is taking the country by storm, is causing a veritable tornado amidst the walls of '94 Hall. Sponsored by Coach Player, with the aid of the Managers and players of varsity basketball, the contest started in full swing Sunday afternoon. All men except varsity and rat basketball men are eligible, and upon payment of five cents are entitled to fifty shots, which may be taken at any time in lots of ten or more. Coach Player is offering a cup to the high point scorer and also a cup to the company turning in the highest scores of five combined players. The entrance fee will be used to aid in purchasing the cups. The results of the first day's trials are headed by Lynn of A Company with thirty-six shots, while A, F, and E Companies, respectively, are leading in the com-bined throws. The record for throws in the Big Ten Conference was forty-nine shots out of a possible fifty. There are only two days left for trials and it is hoped that a greater number of cadets will participate by that time. A meeting of the Athletic Council at which nine faculty and fourteen cadet members were present was held in the Library on Tuesday aft-ernoon. Monograms and numerals in wrestling, boxing, and basketball were awarded and managers of bas-ketball, boxing and wrestling for next year were elected. The appointment of assistant managers in basketball and track was ratified. An interest-ing decision of the Council is that in the future the Varsity Football Team will wear scarlet jerseys and stockings in their games. It was unanimously voted to award major monograms to Woodberry and Griffin in recognition of their outstanding ability in wrestling and boxing, re-spectively. "Jake" Summerlin was appointed cheer leader for the re-mainder of the present year. The question of the recognition of golf as a minor sport was also discussed but no definite decision was reached and the matter will be taken up at a later meeting. After taking a vote upon the question, it was decided to allow the monogram men of the First Class t?o retain the basketball uniforms worn by them during the past season. Jack West was award-ed an emblem in recognition of his services as Manager of Basketball for the season just ended. Those men receiving monograms were: Basketball: Frost, Barnes, Harner, Fulkerson, B., Hewlett, Mondy, and McGlone. Wrestling: Woodward, Woodberry, Thompson, L. C., Field, Preston, Mc- Crary, and Haase, W. F. Boxing: Rogers, Boogher, Griffin, Gordon, Cilley, Palmer, Gravatt, Mc- Cray, Marshall, R. C., and Spilman. The following men received num-erals in Fresh sports: Basketball: Crider, Dunn, Brower, Brown, W. M., Shell, Fowler, Wal-ker, J., Dayhuff, and Childress. Wrestling: Dewey, Southall, Rob-ertson, Talman, Hill, Calfee, and Leech. Boxing: Johenning, Tyler, Buck, King, Chapman, Kohout, Hamner, and Wheless. The following men were elected managers of the sports named below for the season of 1928-29: Basketball: H. C. Philpott; fresh-man basketball: Pettyjohn; boxing: T. F. Thompson; wrestling: E. T. Upson. The appointment of the following (Continued on Page Five) GOVERNMENT INSPECTION SCHEDULED APRIL 3 Col. Deans To Inspect Corps and School. The annual government inspection will be made by Lieutenant-Colonel Clarence Deems, Jr., Field Artillery, U. S. A., on April 3, according to information received by Colonel R. S. Dodson, Commandant of Cadets. In the past few years this inspection has extended over a period of sev-eral days, but this year it will be only one day. It will probably include a garri-son review, parade, and visits to oth-er forms of R. O. T. C. work which are carried on here.

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