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Justia › US Law › US Case Law › US Supreme Court › Volume 454 › MICHAEL v. U.S.
Rehearing Denied Dec. 7, 1981.
The District Court in this criminal case sustained petitioner's motion to suppress on the ground that the evidence in question was obtained by Drug Enforcement Administration agents with the aid of an electronic tracking device or "beeper" which was installed on the exterior of petitioner's rented van and for which no warrant was obtained.
legal drug manufacture outweighs the slight infringement of any expectation of privacy.
Corp., 379 U.S. 148, 153, 311 (1964); Land v. Dollar, 330 U.S. 731, 734, n. 2, 1010, n. 2 (1947); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 685, n. 3, 1459, n. 3 (1949).
This is such a case. The law of the Fifth Circuit is now settled. The announced rule will influence, if not determine, the disposition of this case. More importantly, granting certiorari will enable us to resolve the clear conflicts in the Circuits over the use of beepers. This case presents the very set of facts necessary to decide whether warrantless installation of such devices is permissible and, if so, whether reasonable suspicion is adequate justification. Here DEA agents did not have probable cause to support warrantless installation. The panel opinion stated that "only reasonable suspicion existed-at the time the beeper was installed-to believe that the defendant was connected with the criminal activity of another suspect (for whom probable cause did exist)." 622 F.2d 744, 745 (1980) (footnote omitted). The en banc court agreed, but found such a level of suspicion to be adequate. 645 F.2d 252 ( 1981).
Failure to exercise our jurisdiction at this time will not resolve this recurring issue or enhanced the factual record. I would grant the petition.
[Footnote *] When Justice REHNQUIST, acting in his capacity of Circuit Justice, denied a motion for a stay in a case from the Ninth Circuit raising this issue, he observed that "in all probability this Court may eventually feel bound to decide whether Government agencies must have probable cause to install tracking devices on motor vehicles" because "the question is an important and recurring one." Thus Justice REHNQUIST thought that the Court would grant certiorari if "such an action would appear to offer the strong likelihood of deciding an issue on which a square conflict exists." Miroyan v. United States, 439 U.S. 1338, 1342-1343, 20-21 (1978). With this case the square conflict has emerged.
Other Circuits have reserved the issue because judicial authorization, consent, or exigent circumstances justified the installation. E. G., United States v. Chavez, 603 F.2d 143, 145-146 (CA10 1979); United States v. Bruneau, 594 F.2d 1190, 1194 (CA8 1979).

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§ 310-2 Application; information required.
§ 310-3 Public hearing; examination of application.
§ 310-4 Removal requirements and conditions.
§ 310-5 Filing of bond.
§ 310-7 Violations and penalties.
Excavations in streets — See Ch. 326, Art. III.
Hereafter, no person, firm or corporation shall excavate on or remove soil from any premises in the Borough of Runnemede, except in connection with the constructing or alteration of a building or structure on such premises when excavation, grading or soil removal is incidental thereto, unless permission is first obtained for such purpose from the Mayor and Borough Council, and also except as such restriction may be further modified or limited by the provisions of § 310-6 hereof.
In order that any person, firm or corporation may remove soil from any premises within the Borough, the owner thereof shall first file an application with the Borough Clerk requesting permission to do so, which application shall be accompanied by maps or plans of the premises showing the existing contour lines thereof and the contour lines as they would exist after the removal of such soil, and the maps or plans so submitted shall be subject to inspection and the approval thereof by the Mayor and Borough Council; no such permission shall be granted until the application, together with the plans or maps aforesaid, has been approved as aforesaid.
Such other factors that may bear upon or relate to the coordinated, adjusted and harmonious physical development of the Borough.
If, after examining the application and the map or plans filed as provided for in § 310-2 of this chapter, and after a hearing thereon if a hearing has been requested as aforesaid, the Mayor and Borough Council shall be of the opinion that the proposed soil removal will not create conditions inimical to the public health, welfare and safety of the community and will not result in the creation of any sharp declivities, pits or depressions, soil erosion or fertility problems, depressed land values, nor create any drainage, sewerage problems or other conditions of danger, then permission to remove the soil may be granted.
If permission to remove the soil shall be granted as aforesaid, the owner of the premises from which such soil is to be excavated or removed shall see to it that the operation shall be so conducted that there shall be no sharp declivities, pits or depressions, and such operation must be conducted in such manner that the area shall be clearly leveled, cleared of debris and graded to conform with the contour lines and grades as approved by the Mayor and Borough Council.
If the Mayor and Borough Council shall approve the application for excavation or removal of soil as aforesaid, then the owner of the premises to be affected by such application shall file with the Mayor and Borough Council a bond in such amount, in such form and with such surety as is acceptable to the Mayor and Borough Council in order to insure the faithful performance of the work to be undertaken pursuant to the permission granted by the Mayor and Borough Council, and in accordance with the application and the maps or plans accompanying it, and in accordance with the provisions of this chapter.
Any person, firm or corporation who or which has acquired or obtained or may in the future acquire or obtain soil with the intention of stockpiling it until it or any part thereof has been sold, given or otherwise transferred to other persons for the purpose of removing it from the land on which it is so stored or stockpiled.
Any person, firm or corporation who or which is presently operating any sand or gravel pit, such operation being considered as a nonconforming usage of land, provided, however, that such exception shall not extend to any land or premises that may be acquired hereafter by such person, firm or corporation operating a sand or gravel pit for the purpose of furthering or extending such sand- or gravel-pit operation.
Any person, firm or corporation violating any of the provisions of this chapter shall be subject to a the penalty as provided in § 1-15, General penalty, of this Code.
Each and every violation of this chapter and every nonconformance or noncompliance with the provisions of this chapter, or on each day that any provision of this chapter shall have been violated, shall be construed as a separate and distinct offense and as a violation hereof.


The United States Food and Drug Administration (FDA) inspected your facility, Apis Vida Industria e Comercio Produtos Farmaceuticos Ltda, Bebedouro, Brazil, from March 9-11, 2015. The inspection was conducted to determine your compliance with the Federal Food, Drug, and Cosmetic Act (the Act) and regulations that apply to the food you ship to the United States.
We acknowledge your written responses of June 4, July 21, and August 20, 2015, to the Form FDA 483. List of Inspectional Observations that was issued to your firm at the conclusion of our inspection. We reviewed your responses, and have concluded that the corrective actions described appear to be adequate to address the items identified on the FDA 483. The implementation of these corrections may be further evaluated during a subsequent inspection.
Based on our review of your product labels collected during the inspection, as well as a subsequent review of your website at beelife.us and your Amazon.com online "store." we have concluded that several of your products are in violation of the Act and the applicable regulations in Title 21, Code of Federal Regulations, Part 101 (21 CFR 101). You can find copies of the Act and FDA regulations through links in FDA's home page at www.fda.gov .
Based on our review of your website at beelife.us and your Amazon.com online “store” in June 2015, we have determined that you make claims for the following products that establish that the products are drugs under Section 201(g)(1)(B) of the Act [21 USC § 321(g)(1)(B)] because they are intended for use in the cure, mitigation, treatment, or prevention of disease: Green Propolis Extract, Traditional Honey, Organic Honey, Compound Honey, Compound Honey with Propolis and Guaco, Compound Honey with Propolis + Pennyroyal, Compound Honey with Propolis + Watercress, Compound Honey with Propolis + Eucalyptus, Compound Honey with Propolis + Limonium, and Compound Honey with Propolis + Pomegranate. While your products are not available for sale from your beelife.us website, you provide a link from your beelife.us website to your Amazon.com “store,” from which your products can be purchased. As explained further below, introducing or delivering these products for introduction into interstate commerce for such uses violates the Act.
"[H]elps to relieve coughs and other respiratory ailments ... "
Your above-listed products are not generally recognized as safe and effective for the above-referenced uses and therefore, the products are “new drugs” under Section 201(p)(1) of the Act [21 USC § 321(p)(1)]. A new drug may not be legally marketed in the United States without prior approval from FDA as described in Section 505(a) of the Act [21 USC § 355(a)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate the drug is safe and effective.
Your Green Propolis Extract, Compound Honey, Compound Honey with Propolis and Guaco, Compound Honey with Propolis + Pennyroyal, Compound Honey with Propolis + Watercress, Compound Honey with Propolis + Eucalyptus, Compound Honey with Propolis + Limonium, and Compound Honey with Propolis + Pomegranate products are intended for prevention or treatment of one or more diseases that are not amenable to self-diagnosis and treatment. Therefore, it is impossible to write adequate directions for a layperson to use your products safely for their intended purposes. Accordingly, your Green Propolis Extract, Compound Honey, Compound Honey with Propolis and Guaco, Compound Honey with Propolis + Pennyroyal, Compound Honey with Propolis + Watercress, Compound Honey with Propolis + Eucalyptus, Compound Honey with Propolis + Limonium, and Compound Honey with Propolis + Pomegranate products fail to bear adequate directions for their intended use and, therefore, the products are misbranded under section 502(f)(1) of the Act (21 U.S.C. § 352(f)(1)). The introduction or delivery for introduction into interstate commerce of these misbranded drugs violates section 301(a) of the Act (21 U.S.C. § 331(a)).
Your Green Propolis Extract product is misbranded within the meaning of section 403(q)(5)(F) of the Act (21 U.S.C. 343 (q)(5)(F)) in that the label fails to include a presentation of the nutrition information on the label of your product which complies with 21 CFR 101.36.
Your Amazonia Power Energy Drink product is misbranded within the meaning of Section 403(q)(5)(F)(i) because the label fails to list the servings per container under the serving size on the left hand side of the nutrition label or fails to include this information as part of the net quantity of contents declaration in accordance with 21 CFR 101.36(b)(1)(ii). Your label states “1” to the right of the required heading of “Amount Per Serving” but it is unclear what this “1” is intended to mean.
Your Amazonia Power Energy Drink product is misbranded within the meaning of section 403(q)(2)(B) of the Act [21 U.S.C 343(q)(2)(B)] in that this product declares nutrients which can be declared as zero, contrary to the requirements of 21 CFR 101.36(b)(2)(i). For example, the Supplement Facts panel declares Total Fat, Riboflavin, Vitamin B3, Vitamin B6, Vitamin B12, and Pantothenic acid as zero.
Your Amazonia Power Energy Drink product label is misbranded within the meaning of Section 403(y) of the Act [21 U.S.C. § 343(y)] in that the label fails to bear a US address or US phone number through which the responsible person (as described in section 761) may receive a report of a serious adverse event with such dietary supplement.
The serving size for your Honey (sachet) is not based on an appropriate “reference amount customarily consumed” (RACC) that is appropriate to the food as defined within 21 CFR 101.12. The reference amount for honey under 21 CFR 101.12(b) is “1 tbsp” but the label incorrectly bases the Nutritiona Facts information on 1 ½ tbsp. (or 5 sachets) of products. Under 21 CFR 101.9(b)(2)(i)(A), if a unit weighs 50 percent or less of the reference amount, the serving size shall be the number of whole units that most closely approximates the reference amount for the product category. In other words, the serving size for the honey sachets must be based on the number of sachets that most closely approximates 1 tbsp, not 1 1.2 tbsp. Therefore, all of the nutrition amounts of this product are based on the incorrect serving size, including the servings per container.
The serving size for your Honey (Net WT 8.82 Oz) is not based on an appropriate “reference amount customarily consumed” (RACC) that is appropriate to the food as defined within 21 CFR 101.12, Table B. The serving size for honey is 1 tablespoon. However, your product label shows a serving size of 1 ½ tablespoons. All of the nutrition amounts of this product are based on the incorrect serving size, including the servings per container.
The Servings Per Container for your Compound of Honey with Propolis and Eucalyptus and Honey (Net WT 8.82 Oz) is not stated correctly to meet the requirements of 21 CFR 101.9(b)(8)(i). Multiplying the serving size times the number of servings per container yields an amount less or greater than the net quantity of contents. As such, the Servings Per Container are to be rounded to the nearest whole number, unless the servings per container are between 2 and 5, and the rounding is indicated by use of the term “about” (for example, “about 14 servings”).
You should take prompt action to correct the violations cited in this letter. Failure to promptly correct these violations may result in legal action without further notice, including, without limitation, seizure and injunction. Additionally, we may take further action to refuse admission of your imported products under Section 801(a) of the Act [21 U.S.C. § 381(a)], including placing them on detention without physical examination (DWPE). FDA’s DWPE is an administrative procedure whereby products offered for import into the United States may be detained without physical examination upon entry. DWPE information may be conveyed in FDA’s Import Alerts. For your information, an example of an Import Alert that conveys information specific to foreign firms that are not in compliance with nutritional labeling and basic labeling requirements are 99-20 and 99-39, respectively. You may view these alerts at: http://www.accessdata.fda.gov/cms_ia/ialist.html.
Your Brazilian Guarana in capsules and Green Propolis Extract products fail to list the name and place of business of the manufacturer, packer, or distributor in accordance with 21 CFR 101.5. Specifically, the label fails to include the zip code of the distributor’s location.
On your Compound of Honey with Propolis and Eucalyptus product, the information panel is not located immediately contiguous and to the right of the principal display panel as required by 21 CPR 101.2(a).
You have misspelled the abbreviation for tablespoon in the Nutrition Facts panel for your Compound of Honey with Propolis and Eucalyptus and Honey (Sachet) (spelling as “Tbps”, transposing the “p” and “s”).
We also note that the Honey (sachet) uses a comma in the net quantity of content statement (0,14 Oz). This should be a period.


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on the grounds of unseaworthiness and negligence. The District Court dismissed the libel after finding that there was no negligence, and that, since the ship in fact was not in navigation, there was no warranty of seaworthiness. 170 F.Supp. 763. This dismissal was affirmed by a divided Court of Appeals, 282 F.2d 413, and a petition for certiorari requesting review of the seaworthiness issue was granted. 365 U.S. 802. We now affirm the judgment below.
The S.S. Harry Lane was a liberty ship of World War II origin, which was deactivated from service and "mothballed" in 1945. In this process, her supplies, stores, nautical instruments, cargo gear and tackle were removed; her pipes and machinery were drained and prepared for storage; and her rudder, tail shaft and propeller were secured. As a result of such action, the ship lost her Coast Guard safety certification as well as her license to operate, both of which were requisite to a vessel in navigation. Indeed, the trial court found that "admittedly" reactivation of the ship would have required a major overhaul.
In 1954, the Government was confronted with an urgent need of storage facilities for the country's surplus grain, and a decision was made to utilize as warehouse space the holds of some of the deactivated liberty ships. The ships were not reactivated for navigation nor used for transportation purposes, but were utilized solely as granaries for the storage of the Government's grain. Pursuant thereto, the use of the S.S. Harry Lane was covered by a general storage agreement between the Continental Grain Company and the Commodity Credit Corporation, and it was towed to loading facilities, filled with grain, and returned to the "dead fleet" of some 360 vessels, where it remained for two years.
no repairs or structural changes preparatory to activating the ship were made; nor was there any attempt to obtain a safety certificate or a license to operate as a vessel in navigation, and none was issued. The movement was by tug, with a licensed riding master and six linemen stationed aboard the dead vessel. The linemen were discharged from the vessel after she was secured to her berth at the grain elevator, the riding master alone remaining to guard the vessel. The line handlers did not sign on as seamen for the vessel, and the tugboat captain was "in charge of the move from the Fleet down to the berth" with the riding master "subject to the orders of the tugboat captain."
The unloading operation was carried out by Continental Grain Company. The grain was removed by a "marine leg," a large shore-based mechanism containing a conveyor belt which lifts grain from the ship's hold into the adjacent grain elevator leased by Continental. The marine leg was owned and maintained by Continental, and their employee operated it from a control house in response to signals from longshoremen in the hold. When the grain level dropped to a certain depth, the balance was drawn onto the belt by "grain shovels" -- plow-like devices attached by rope to winches in the leg. These shovels were operated by longshoremen employed by a stevedoring company, which had contracted with Continental to aid in the unloading. Petitioner, the foreman of the longshoreman crew, was injured when a latently defective part of the marine leg (a block through which one of the shovel ropes ran) broke and struck him. The entire unloading operation was directed and controlled by Continental and the stevedoring company, and the riding master was without power to supervise the work or inspect the equipment.
361 U. S. 118, 361 U. S. 122 (1959). This is a question of fact, Butler v. Whiteman, 356 U. S. 271 (1958), and consequently reversible only upon a showing of clear error. Admittedly the S.S. Harry Lane was withdrawn from navigation in 1945. The issue presented is therefore whether events subsequent to 1945 altered this status. In 1954, the function of the ship was modified. However, she was not converted to a self-propelled, self-directed cargo vessel. Nor was she even prepared for use as a barge to transport cargo from one location to another. In point of fact, it would be more accurate to note that the ship itself was not converted to any navigational use. While its hold was utilized as a granary or warehouse, the vessel ipso facto was not reactivated for service in navigation.
A second aspect of the ship's history since 1954 is the movement between the dead fleet and the grain elevator. This movement was by tug, without assistance from the ship's motive or directional equipment which, indeed, was not in the least usable. The men aboard were not signed on as seamen, and the entire operation was directed and controlled by the tug captain. Unlike a barge, the S.S. Harry Lane was not moved in order to transport commodities from one location to another. It served as a mobile warehouse which was filled and then moved out of the way to perform its function of storing grain until needed at which time it was returned and unloaded.
in navigation, it follows that there was no warranty of the ship's seaworthiness. West v. United States, supra; Kissinger v. United States, 176 F.Supp. 828 (1959). [Footnote 3] This limitation is analogous to that applied in libels under the Jones Act, where it has long been held that recovery is precluded if the ship involved is not a vessel in navigation. Desper v. Starved Rock Ferry Co., 342 U. S. 187 (1952); Hawn v. American S.S. Co., 107 F.2d 999 (1939).
This disposition of the case makes it unnecessary for us to pass upon the remaining question, i.e., whether a shore-based marine leg is within the warranty of seaworthiness in the circumstances here disclosed.
Other parties, not concerned with our disposition, were impleaded.
For cases involving similar facts and to the same effect, see Hawn v. American S.S. Co., 1939, 107 F.2d 999; Kissinger v. United States, 176 F.Supp. 828 (D.C.E.D.N.Y. 1959); Krolczyk v. Waterways Navigation Co., 151 F.Supp. 873 (D.C.E.D.Mich. 1957). Lawlor v. Socony-Vacuum Oil Co., 275 F.2d 599 (1960), is not contra. There, minor repairs were underway on an active ship with a full crew aboard.
The view that a vessel not in navigation extends no warranty has often been expressed in the more familiar context of to whom does the warranty extend. E.g., Union Carbide Corp. v. Goett, 256 F.2d 449 (1958). Implicit within such cases is the reasoning that those working on vessels not in navigation are not seamen (or doing seamen's work) and consequently not among those employees protected by the warranty of seaworthiness.
For the reasons stated by Judge Sobeloff in the Court of Appeals, I believe this ship at the time of the accident was not a "dead ship," but "a vessel in navigation," because it was "being actually used as a barge, and transporting a cargo." 282 F.2d 413, 419.

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Completion St. Mary’s JSO Church reconstruction and consecration celebrated by His Eminence Mor Titus Yeldho and His Eminence Mor Clemis Eugene Kaplan.
V. Rev. Fr. Thomas' service to the Holy Church began at the age of eight when he was appointed as an altar boy at St. Thomas Jacobite Church, Thiruvanchoor by His Eminence Mor Clemis Abraham. He was ordained as sub-deacon (qoruyo) at seventeen and full deacon after completing his seminary studies both by His Grace Mor Gregorius Gheevarghese (Perumpilly Thirumeni). In 1986, before his ordination to priesthood, V. Rev. Fr. Thomas married Ms. Achamma Alackaparambil (Kochumol). Later that year, at the age of twenty-two, V. Rev. Fr. Thomas was ordained to priesthood by His Grace Mor Gregorius Gheevarghese.
While tending to these congregations, he served in other capacities as the Vice President of the Malankara Jacobite Youth Association and Editor of the Syrian Sandesam.
In 1993, His Eminence Mor Athanasius Yeshu Samuel appointed V. Rev. Fr. Thomas as the new vicar of St. Mary’s Church, Los Angeles and made necessary arrangements for his emigration in the same year. His wife, son, Eldho, and daughter, Alby, followed two years later.
In 2012, V. Rev. Fr. Thomas was elevated to the rank of Corepiscopo on October 13. The evelation was officiated by His Eminence Mor Titus Yeldho Pathickal and His Eminence Mor Clemis Eugene Kaplan.
V. Rev. Fr. Thomas’ deep commitment to the Church and our faith continues in the United States, where he has served as Chairman of Kerala Christian Fellowship of Southern California and is a member of the Oriental Orthodox Churches Council.
The son of late Mr. K.K. Thomas and late Mariamma, V. Rev. Fr. Thomas was born and raised in Thiruvanchoor, Kottayam District, Kerala. He holds a Bachelors degree in Sociology from Kerala University and a Masters degree in Malayalam Literature from the University of Trivandrum. V. Rev. Fr. Thomas currently resides in Winnetka, California with his wife and two children.

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GRAVER TANK & MFG. CO., Inc., et al.
Motion to Issue Mandate Denied June 5, 1950.
Mr. Thomas V. Koykka, Cleveland, Ohio, for petitioners.
Mr. John T. Cahill, New York City, Richard R. Wolfe, Chicago, Ill., for respondent.
Linde Air Products Co., owner of the Jones patent for an electric welding process and for fluxes to be used therewith, brought an action for infringement against Lincoln and the two Graver companies. The trial court held four flux claims valid and infringed and certain other flux claims and all process claims invalid. 86 F.Supp. 191. The Court of Appeals affirmed findings of validity and infringement as to the four flux claims but reversed the trial court and held valid the process claims and the remaining contested flux claims. 167 F.2d 531. We granted certiorari, 335 U.S. 810, 69 S.Ct. 50, 93 L.Ed. 366, and reversed the judgment of the Court of Appeals insofar as it reversed that of the trial court, and reinstated the District Court decree. 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672. Rehearing was granted, limited to the question of infringement of the four valid flux claims and to the applicability of the doctrine of equivalents to findings of fact in this case. 337 U.S. 910, 69 S.Ct. 1046, 93 L.Ed. 1722.
At the outset it should be noted that the single issue before us is whether the trial court's holding that the four flux claims have been infringed will be sustained. Any issue as to the validity of these claims was unanimously determined by the previous decision in this Court and attack on their validity cannot be renewed now by reason of limitation on grant of rehearing. The disclosure, the claims, and the prior art have been adequately described in our former opinion and in the opinions of the courts below.
But courts have also recognized that to permit imitation of a patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such a limitation would leave room for—indeed encourage—the unscrupulous copyist to make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of law. One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare type of infringement. To prohibit no other would place the inventor at the mercy of verbalism and would be subordinating substance to form. It would deprive him of the benefit of his invention and would foster concealment rather than disclosure of inventions, which is one of the primary purposes of the patent system.
The doctrine of equivalents evolved in response to this experience. The essence of the doctrine is that one may not practice a fraud on a patent. Originating almost a century ago in the case of Winans v. Denmead, 15 How. 330, 14 L.Ed. 717, it has been consistently applied by this Court and the lower federal courts, and continues today ready and available for utilization when the proper circumstances for its application arise. 'To temper unsparing logic and prevent an infringer from stealing the benefit of the invention'1 a patentee may invoke this doctrine to proceed against the producer of a device 'if it performs substantially the same function in substantially the same way to obtain the same result.' Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147. The theory on which it is founded is that 'if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form or shape.' Union Paper-Bag Machine Co. v. Murphy, 97 U.S. 120, 125, 24 L.Ed. 935. The doctrine operates not only in favor of the patentee of a pioneer or primary invention, but also for the patentee of a secondary invention consisting of a combination of old ingredients which produce new and useful results, Imhaeuser v. Buerk, 101 U.S. 647, 655, 25 L.Ed. 945, although the area of equivalence may vary under the circumstances. See Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 414—415, 28 S.Ct. 748, 749, 52 L.Ed. 1122, and cases cited; Seymour v. Osborne, 11 Wall. 516, 556, 20 L.Ed. 33; Gould v. Rees, 15 Wall. 187, 192, 21 L.Ed. 39. The wholesome realism of this doctrine is not always applied in favor of a patentee but is sometimes used against him. Thus, where a device is so far changed in principle from a patented article that it performs the same or a similar function in a substantially different way, but nevertheless falls within the literal words of the claim, the doctrine of equivalents may be used to restrict the claim and defeat the patentee's action for infringement. Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 568, 18 S.Ct. 707, 722, 42 L.Ed. 1136. In its early development, the doctrine was usually applied in cases involving devices where there was equivalence in mechanical components. Subsequently, however, the same principles were also applied to compositions, where there was equivalence between chemical ingredients. Today the doctrine is applied to mechanical or chemical equivalents in compositions or devices. See discussions and cases collected in 3 Walker on Patents (Deller's ed. 1937) §§ 489—492; Ellis, Patent Claims (1949) §§ 59—60.
What constitutes equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case. Equivalence, in the patent law, is not the prisoner of a formula and is not an absolute to be considered in a vacuum. It does not require complete identity for every purpose and in every respect. In determining equivalents, things equal to the same thing may not be equal to each other and, by the same token, things for most purposes different may sometimes be equivalents. Consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with the other ingredients, and the function which it is intended to perform. An important factor is whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was.
A finding of equivalence is a determination of fact. Proof can be made in any form: through testimony of experts or others versed in the technology; by documents, including texts and treatises; and, of course, by the disclosures of the prior art. Like any other issue of fact, final determination requires a balancing of credibility, persuasiveness and weight of evidence. It is to be decided by the trial court and that court's decision, under general principles of appellate review, should not be disturbed unless clearly erroneous. Particularly is this so in a field where so much depends upon familiarity with specific scientific problems and principles not usually contained in the general storehouse of knowledge and experience.
In the case before us, we have two electric welding compositions or fluxes: the patented composition, Unionmelt Grade 20, and the accused composition, Lincolnweld 660. The patent under which Unionmelt is made claims essentially a combination of alkaline earth metal silicate and calcium fluoride; Unionmelt actually contains, however, silicates of calcium and magnesium, two alkaline earth metal silicates. Lincolnweld's composition is similar to Unionmelt's, except that it substitutes silicates of calcium and manganese—the latter not an alkaline earth metal—for silicates of calcium and magnesium. In all other respects, the two compositions are alike. The mechanical methods in which these compositions are employed are similar. They are identical in operation and produce the same kind and quality of weld.
The question which thus emerges is whether the substitution of the manganese which is not an alkaline earth metal for the magnesium which is, under the circumstances of this case, and in view of the technology and the prior art, is a change of such substance as to make the doctrine of equivalents inapplicable; or conversely, whether under the circumstances the change was so insubstantial that the trial court's invocation of the doctrine of equivalents was justified.
Without attempting to be all-inclusive, we note the following evidence in the record: Chemists familiar with the two fluxes testified that manganese and magnesium were similar in many of their reactions (R. 287, 669). There is testimony by a metallurgist that alkaline earth metals are often found in manganese ores in their natural state and that they serve the same purpose in the fluxes (R. 831—832); and a chemist testified that 'in the sense of the patent' manganese could be included as an alkaline earth metal (R. 297). Much of this testimony was corroborated by reference to recognized texts on inorganic chemistry (R. 332). Particularly important, in addition, were the disclosures of the prior art, also contained in the record. The Miller patent, No. 1,754,566, which preceded the patent in suit, taught the use of manganese silicate in welding fluxes (R. 969, 971). Manganese was similarly disclosed in the Armor patent, No. 1,467,825, which also described a welding composition (R. 1346). And the record contains no evidence of any kind to show that Lincolnweld was developed as the result of independent research or experiments.
It is not for this Court to even essay an independent evaluation of this evidence. This is the function of the trial court. And, as we have heretofore observed, 'To no type of case is this * * * more appropriately applicable than to the one before us, where the evidence is largely the testimony of experts as to which a trial court may be enlightened by scientific demonstrations. This trial occupied some three weeks, during which, as the record shows, the trial judge visited laboratories with counsel and experts to observe actual demonstrations of welding as taught by the patent and of the welding accused of infringing it, and of various stages of the prior art. He viewed motion pictures of various welding operations and tests and heard many experts and other witnesses.' 336 U.S. 271, 274—275, 69 S.Ct. 535, 537, 93 L.Ed. 672.
It is difficult to conceive of a case more appropriate for application of the doctrine of equivalents. The disclosures of the prior art made clear that manganese silicate was a useful ingredient in welding compositions. Specialists familiar with the problems of welding compositions understood that manganese was equivalent to and could be substituted for magnesium in the composition of the patented flux and their observations were confirmed by the literature of chemistry. Without some explanation or indication that Lincolnweld was developed by independent research, the trial court could properly infer that the accused flux is the result of imitation rather than experimentation or invention. Though infringement was not literal, the changes which avoid literal infringement are colorable only. We conclude that the trial court's judgment of infringement respecting the four flux claims was proper, and we adhere to our prior decision on this aspect of the case.
I heartily agree with the Court that 'fraud' is bad, 'piracy' is evil, and 'stealing' is reprehensible. But in this case, where petitioners are not charged with any such malevolence, these lofty principles do not justify the Court's sterilization of Acts of Congress and prior decisions, none of which are even mentioned in today's opinion.
The only patent claims involved here describe respondent's product as a flux 'containing a major proportion of alkaline earth metal silicate.' The trial court found that petitioners used a flux 'composed principally of manganese silicate.' Finding also that 'manganese is not an alkaline earth metal,' the trial court admitted that petitioners' flux did not 'literally infringe' respondent's patent. Nevertheless it invoked the judicial 'doctrine of equivalents' to broaden the claim for 'alkaline earth metals' so as to embrace 'manganese.' On the ground that 'the fact that manganese is a proper substitute * * * is fully disclosed in the specification' of respondent's patent, it concluded that 'no determination need be made whether it is a known chemical fact outside the teachings of the patent that manganese is an equivalent * * *.' Since today's affirmance unquestioningly follows the findings of the trial court, this Court necessarily relies on what the specifications revealed.1 In so doing, it violates a direct mandate of Congress without even discussing that mandate.
Whatever the merits of the 'doctrine of equivalents' where differences between the claims of a patent and the allegedly infringing product are de minimis, colorable only, and without substance, that doctrine should have no application to the facts of this case. For the differences between respondent's welding substance and petitioner's claimed flux were not nearly so slight. The claims relied upon here did not involve any mechanical structure or process where invention lay in the construction or method rather than in the materials used. Rather they were based wholly on using particular materials for a particular purpose. Respondent's assignors experimented with several metallic silicates, including that of manganese. According to the specifications (if these are to be considered) they concluded that while several were 'more or less efficacious in our process, we prefer to use silicates of the alkaline earth metals.' Several of their claims which this Court found too broad to be valid encompassed manganese silicate; the only claims found valid did not. Yet today the Court disregards that crucial deficiency, holding those claims infringed by a composition of which 88.49% by weight is manganese silicate.
In view of the intense study and experimentation of respondent's assignors with manganese silicate, it would be frivolous to contend that failure specifically to include that substance in a precise claim was unintentional. Nor does respondent attempt to give that or any other explanation for its omission. But the similar use of manganese in prior expired patents, referred to in the Court's opinion, raises far more than a suspicion that its elimination from the valid claims stemmed from fear that its inclusion by name might result in denial or subsequent invalidation of respondent's patent.
Under these circumstances I think petitioner had a right to act on the belief that this Court would follow the plain mandates of Congress that a patent's precise claims mark its monopoly boundaries, and that expansion of those claims to include manganese could be obtained only in a statutory reissue proceeding. The Court's ruling today sets the stage for more patent 'fraud' and 'piracy' against business than could be expected from faithful observance of the congressionally enacted plan to protect business against judicial expansion of precise patent claims. Hereafter a manufacturer cannot rely on what the language of a patent claims. He must be able, at the peril of heavy infringement damages, to forecast how far a court relatively inversed in a particular technological field will expand the claim's language after considering the testimony of technical experts in that field. To burden business enterprise on the assumption that men possess such a prescience bodes ill for the kind of competitive economy that is our professed goal.
The way specific problems are approached naturally has much to do with the decisions reached. A host of prior cases, to some of which I have referred, have treated the 17-year monopoly authorized by valid patents as a narrow exception to our competitive enterprise system. For that reason, they have emphasized the importance of leaving business men free to utilize all knowledge not preempted by the precise language of a patent claim. E.g., Sontag Stores Co. v. Nut Co., 310 U.S. 281, 60 S.Ct. 961, 84 L.Ed. 1204, and cases there cited. In the Sontag case Mr. Justice McReynolds, speaking for a unanimous Court, said in part: 'In the case under consideration the patentee might have included in the application for the original patent, claims broad enough to embrace petitioner's accused machine, but did not. This 'gave the public to understand' that whatever was not claimed 'did not come within his patent and might rightfully be made by anyone." 310 U.S. at page 293, 60 S.Ct. at page 966, 967, 84 L.Ed. 1204.
The claims of the patent are limited to a flux 'containing a major proportion of alkaline earth metal silicate.' Manganese silicate, the flux which is held to infringe, is not an alkaline earth metal silicate. It was disclosed in the application and then excluded from the claims. It therefore became public property. See Mahn v. Harwood, 112 U.S. 354, 361, 5 S.Ct. 174, 178, 6 S.Ct. 451, 28 L.Ed. 665. It was, to be sure, mentioned in the specifications. But the measure of the grant is to be found in the claims, not in the specifications. Milcor Steel Co. v. Fuller Co., 316 U.S. 143, 145, 146, 62 S.Ct. 969, 970, 971, 86 L.Ed. 1332. The specifications can be used to limit but never to expand the claim. See McClain v. Ortmayer, 141 U.S. 419, 424, 12 S.Ct. 76, 77, 35 L.Ed. 800.
The Court now allows the doctrine of equivalents to erase those time-honored rules. Moreover, a doctrine which is said to protect against practicing 'a fraud on a patent' is used to extend a patent to a composition which could not be patented. For manganese silicate had been covered by prior patents, now expired. Thus we end with a strange anomaly: a monopoly is obtained on an unpatented and unpatentable article.
L. Hand in Royal Typewriter Co. v. Remington Rand, 2 Cir., 168 F.2d 691, 692.
For this reason the tidbits of evidence painstakingly selected from the record by this Court have no significance, since the trial court avowedly did not look beyond the specifications themselves.
This Court's approval of the trial judge's resort to specifications is ironic as well as unfortunate. In its original opinion this Court rejected respondent's contention that the very language invoked here to support infringement should be applied to validate a claim otherwise too board to be upheld. 336 U.S. 271, 277, 69 S.Ct. 535, 538, 93 L.Ed. 672.
'This provision was inserted in the law for the purpose of relieving the courts from the duty of ascertaining the exact invention of the patentee by inference and conjecture, derived from a laborious examination of previous inventions, and a comparison thereof with that claimed by him. This duty is now cast upon the Patent Office. There his claim is, or is supposed to be, examined, scrutinized, limited, and made to conform to what he is entitled to. If the office refuses to allow him all that he asks, he has an appeal. But the courts have no right to enlarge a patent beyond the scope of its claim as allowed by the Patent Office, or the appellate tribunal to which contested applications are referred. When the terms of a claim in a patent are clear and distinct (as they always should be), the patentee, in a suit brought upon the patent, is bound by it. Merrill v. Yeomans, 94 U.S. 568, 24 L.Ed. 235.' Keystone Bridge Co. v. Phoenix Iron Co., 95 U.S. 274, 278, 24 L.Ed. 344.

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


§ 605.010 Payment of All Delinquent Taxes and Fees Prerequisite To License or Permit.
§ 605.025 License Application and Issuance.
§ 605.030 No Modification of Other Provisions or Ordinances.
§ 605.040 Term of Licenses.
§ 605.050 License Fee Due When — Proration.
§ 605.060 Licenses To Be Posted.
§ 605.070 Licenses Restricted To A Specific Location Not Transferable.
§ 605.080 Charitable and Not-For-Profit Organization Exemption.
§ 605.100 Persons Not To Be Charged For Business License.
§ 605.140 Contents of License.
§ 605.170 Merchants To File Statements.
§ 605.180 Amount of Tax.
§ 605.190 Merchants To Keep Accounts.
§ 605.210 Penalty For False Affidavits.
§ 605.240 Business License and Fee For Banquet and Reception Facilities.
§ 605.250 Business License and Fee For A Telecommunication Tower, A Telecommunications Antenna and Similar Facilities.
§ 605.260 Business Tax On Outdoor Advertising Structures (Billboards).
§ 605.270 Compliance With Article Provisions Required.
§ 605.280 Period of License.
§ 605.290 Businesses To Keep Accounts.
§ 605.300 Excepted Businesses and Occupations.
§ 605.310 Revocation of License — Grounds.
§ 605.320 Revocation of License — Procedure.
§ 605.330 Registration of Guests Regulated — How.
§ 605.340 Violation and Penalty — Delinquency.
Section 605.010 Payment of All Delinquent Taxes and Fees Prerequisite To License or Permit.
Section 605.025 License Application and Issuance.
Section 605.030 No Modification of Other Provisions or Ordinances.
Section 605.040 Term of Licenses.
Section 605.050 License Fee Due When — Proration.
Section 605.060 Licenses To Be Posted.
Section 605.070 Licenses Restricted To A Specific Location Not Transferable.
Section 605.080 Charitable and Not-For-Profit Organization Exemption.
Section 605.100 Persons Not To Be Charged For Business License.
Section 605.140 Contents of License.
Section 605.170 Merchants To File Statements.
Section 605.180 Amount of Tax.
Section 605.190 Merchants To Keep Accounts.
Section 605.210 Penalty For False Affidavits.
Section 605.240 Business License and Fee For Banquet and Reception Facilities.
Section 605.250 Business License and Fee For A Telecommunication Tower, A Telecommunications Antenna and Similar Facilities.
Section 605.260 Business Tax On Outdoor Advertising Structures (Billboards).
Section 605.270 Compliance With Article Provisions Required.
Section 605.280 Period of License.
Section 605.290 Businesses To Keep Accounts.
Section 605.300 Excepted Businesses and Occupations.
Section 605.310 Revocation of License — Grounds.
Section 605.320 Revocation of License — Procedure.
Section 605.330 Registration of Guests Regulated — How.
Section 605.340 Violation and Penalty — Delinquency.


United States money is expressed in dollars, dimes or tenths, cents or hundreths,1 and mills or thousandths. A dime is a tenth of a dollar, a cent is a hundredth of a dollar, and a mill is a thousandth of a dollar.
1st. What ought to be the nature of the money unit of the United States?
. . ., and it is certain that nothing can be more simple and convenient than the decimal subdivisions. There is every reason to expect that the method will speedily grow into general use, when it shall be seconded by corresponding coins. On this plan the unit in the money of account will continue to be, as established by that resolution [of August 8, 1786], a dollar, and its multiples, dimes, cents, and mills, or tenths, hundreths, [sic] and thousands.
Thus, the phrase "money of account" did not mean, by itself, that dollars or fractions of dollars must be equal to something having intrinsic or "substantive" value. This concept is supported by earlier writings of Thomas Jefferson in his "Notes on the Establishment of a Money Unit, and of a Coinage for the United States" (1784), and the 1782 report to the President of the Continental Congress on the coinage of the United States by the Superintendent of Finances, Robert Morris, which was apparently prepared by the Assistant Superintendent, Gouverneur Morris. See Paul L. Ford, The Writings of Thomas Jefferson, vol. III (G.P. Putnam's Sons, 1894) pp. 446–457; William G. Sumner, The Financier and the Finances of the American Revolution, vol. II (Burt Franklin, 1891, reprinted 1970) pp. 36–47; and George T. Curtis, History of the Constitution, vol. I (Harper and Brothers, 1859) p. 443, n2. The words "or units" and "and all accounts in the public offices and all proceedings in the courts shall be kept and had in conformity to this regulation" are omitted as surplus.
Pub. L. 115–197, §1, July 20, 2018, 132 Stat. 1515 , provided that: "This Act [amending section 5112 of this title] may be cited as the 'American Innovation $1 Coin Act'."
Pub. L. 113–118, §1, June 9, 2014, 128 Stat. 1183 , provided that: "This Act [amending provisions listed in a table of Commemorative Medals set out under section 5111 of this title] may be cited as the 'Gold Medal Technical Corrections Act of 2014'."
Pub. L. 111–303, §1, Dec. 14, 2010, 124 Stat. 3275 , provided that: "This Act [amending section 5112 of this title] may be cited as the 'American Eagle Palladium Bullion Coin Act of 2010'."
Pub. L. 111–302, §1, Dec. 14, 2010, 124 Stat. 3272 , provided that: "This Act [amending section 5112 of this title and enacting provisions set out as notes under section 5112 of this title] may be cited as the 'Coin Modernization, Oversight, and Continuity Act of 2010'."
Pub. L. 110–456, §1, Dec. 23, 2008, 122 Stat. 5038 , provided that: "This Act [amending section 5112 of this title and enacting provisions set out as a note under section 5112 of this title] may be cited as the 'America's Beautiful National Parks Quarter Dollar Coin Act of 2008'."
Pub. L. 110–82, §1, Sept. 20, 2007, 121 Stat. 777 , provided that: "This Act [amending section 5112 of this title and enacting provisions set out as a note under section 5112 of this title] may be cited as the 'Native American $1 Coin Act'."
Pub. L. 109–145, §1, Dec. 22, 2005, 119 Stat. 2664 , provided that: "This Act [amending section 5112 of this title and enacting provisions set out as notes under section 5112 of this title] may be cited as the 'Presidential $1 Coin Act of 2005'."
Pub. L. 108–15, §1, Apr. 23, 2003, 117 Stat. 615 , provided that: "This Act [amending sections 5112, 5134, and 5135 of this title and enacting provisions set out as notes under sections 5112, 5134, and 5135 of this title] may be cited as the 'American 5-Cent Coin Design Continuity Act of 2003'."
Pub. L. 107–201, §1, July 23, 2002, 116 Stat. 736 , provided that: "This Act [amending section 5116 of this title and enacting provisions set out as notes under sections 5112 and 5116 of this title] may be cited as the 'Support of American Eagle Silver Bullion Program Act'."
Pub. L. 106–445, §1, Nov. 6, 2000, 114 Stat. 1931 , provided that: "This Act [amending sections 5112, 5132 and 5134 of this title] may be cited as the 'United States Mint Numismatic Coin Clarification Act of 2000'."
Pub. L. 105–124, §1, Dec. 1, 1997, 111 Stat. 2534 , provided that: "This Act [amending section 5112 of this title and enacting provisions set out as notes under this section and section 5112 of this title] may be cited as the '50 States Commemorative Coin Program Act'."
Pub. L. 105–124, §4(a), Dec. 1, 1997, 111 Stat. 2536 , provided that: "This section [amending section 5112 of this title and enacting provisions set out as notes under section 5112 of this title] may be cited as the 'United States $1 Coin Act of 1997'."
Pub. L. 104–329, §1(a), Oct. 20, 1996, 110 Stat. 4005 , provided that: "This Act [amending sections 5131 and 5135 of this title and enacting provisions set out as notes under this section, sections 5112 and 5135 of this title, and section 431 of Title 16, Conservation] may be cited as the 'United States Commemorative Coin Act of 1996'."
Pub. L. 104–329, title III, §301, Oct. 20, 1996, 110 Stat. 4012 , provided that: "This title [amending sections 5131 and 5135 of this title and enacting provisions set out as notes under sections 5112 and 5135 of this title] may be cited as the '50 States Commemorative Coin Program Act'."
Pub. L. 102–390, title II, §201, Oct. 6, 1992, 106 Stat. 1624 , provided that: "This title [enacting sections 5134 and 5135 of this title, amending sections 304, 5111, 5112, 5119, 5131, and 5132 of this title and section 709 of Title 18, Crimes and Criminal Procedure, enacting provisions set out as notes under sections 5132 and 5134 of this title, amending provisions set out as notes under section 5112 of this title, and repealing provisions set out as a note under section 5112 of this title] may be cited as the 'United States Mint Reauthorization and Reform Act of 1992'."
Pub. L. 101–585, §1, Nov. 15, 1990, 104 Stat. 2874 , provided that: "This Act [amending section 5132 of this title] may be cited as the 'Silver Coin Proof Sets Act'."
1 So in original. Probably should be "hundredths,".


text:
Unfortunately, two decisions by the U.S. Supreme Court provide for the use of public school buildings by churches, religious and political groups on a viewpoint-neutral basis, if the public school districts are already renting their facilities after hours to other community groups. The subsidy involved in use of public schools by religious organizations, however, continues to create concern, confusion, and litigation. The law on the limits of church use is not completely settled. While schools are not permitted to discriminate against religious groups because they are religious, schools can create regulations that impact church use of school buildings (see Bronx Household of Faith v. Board of Educ. of City of New York below). One appellate court, the 2nd Circuit, ruled in 2011 that a school board’s prohibition of hosting a particular type of activity, religious worship services, was constitutional.
Since public school districts often have the least expensive rental rates available in a community, rental to churches often involves what many of us consider taxpayer subsidy of congregations. Start-up churches often take advantage of low school rental to establish themselves. They obtain a prominent site for a new church, collect church donations on public property, and use their savings to eventually buy their own tax-free buildings. No wonder many taxpayers are concerned!
School districts would be wise to set appropriate limits regarding the use of school facilities. Many school buildings are not used for school events on Sundays, making it costly to continue to heat, cool, and to have custodial staff maintain the buildings on behalf of renters. In such instances, schools could choose not to rent on Sundays or weekends, so long as it is uniformly enforced. Alternatively, school districts may select the types of activities that will be allowed, including limiting building use to school-sponsored events, or excluding religious worship services. Any rules should be applicable to all groups, regardless of a group’s viewpoint.
Ask the school district for a copy of the contract. (Call the superintendent’s office, not the principal.) School district rental contracts are public information. A school district may ask that you to put your request in writing or e-mail. The district may ask you to pay for or reimburse the District if they mail you a copy. But they cannot deny you this public information.
Once you have reviewed the rent contract, ask for verification that rent has been paid up to date. FFRF once uncovered a rental situation in which the church was in arrears by thousands of dollars and had not paid rent for most of the year, yet the school district had extended a new contract to this church. FFRF made headlines when it uncovered the money owed to taxpayers, and the church paid up!
3. Verify that rent is reasonable.
When you ask for the contract, also ask for a copy of the school district’s rental rate schedule. (The rate schedule may even be online at the district’s website.) Rental rates likewise are public information. Compare what the church is being charged with the rates assessed other groups. Churches and religious groups should not be receiving a preferred rate (although they may qualify for a nonprofit rate). Many districts are adopting a sliding scale, in which they charge the least to groups directly serving school-age children and the most to community groups serving an adult population. Churches renting schools on weekends fall into the latter category.
Take a thorough look at the rents charged for use of classrooms, auditorium, etc. Some churches virtually take over public schools on Sunday mornings, even using the pool for baptisms! We have had complaints from teachers about diapers left in classrooms.
Rent should be reasonable and cover space, equipment, janitorial overtime, AC, and heat. Otherwise it amounts to taxpayer subsidy of worship, which could be prohibited by state constitutions. If the rates for rentals in general seem inadequate to you, take this up with your local school board. Schools are always hurting for money so rentals should bring in revenue.
4. Monitor kiosks or signs.
Large church signs, posters and kiosks are often planted prominently by major entrances of public schools on Sunday morning or during the church services. If the school policy allows all rental groups this privilege, there may not be much you can do except lobby to bar any such signage. But these signs should be informational only, and they should only stay up during the actual period of rental. FFRF has taken complaints about signs staying up all week (and all year). If this is happening in your community, complain! Also: prayer books, crosses and other religious paraphernalia should not remain on school property or be stored at the school.
Churches renting public school facilities often advertise their services in the newspapers and in community flyers, using the name and address of a public school. This gives the impression to the reasonable onlooker that the public schools themselves are involved. FFRF believes that wise public school districts will require all renters to carry disclaimers on ads, flyers and other information advertising their public school meeting location. Disclaimers may note that public school property is being rented after-hours and that this rental carries no endorsement by the school district.
How FFRF can help. If a church is receiving preferential treatment, this amounts to taxpayer subsidy of a church or religious group. If you want FFRF to complain, send a clear e-mail, letter or fax to us describing the situation and detailing the name and address of the school where the church is meeting, as well as the name and address of the Superintendent (and title of the school district). It’s helpful to know as much background information as possible, such as how long this has been going on and any information listed above.
If you complain about a church kiosk being left on school property beyond the rental time and cannot get the district to halt the abuse, you may contact FFRF for backup help.
The Supreme Court has found that it is constitutional for a school district to allow religious groups to use school property for meetings during non-instructional hours if the school district’s policy allows other community groups to use its facilities. Both decisions involved rental of public schools by religious groups. Once a school district has adopted such a policy, it generally creates a “limited public forum.” This means that the government may still regulate speech occurring on its property; however, the government’s restrictions on speech in these types of forums must be made on a viewpoint neutral basis. It should also be noted, that school districts may restrict all outside groups from using school facilities. Certainly, the school district can restrict the use of its property to only school-sponsored events and/or activities.
“The performance of worship services is a core event in organized religion. . . . Religious worship services are conducted according to the rules dictated by the particular religious establishment and are generally performed by an officiant of the church or religion. When worship services are performed in a place, the nature of the site changes. The site is no longer simply a room in a school being used temporarily for some activity. The church has made the school the place for the performance of its rites, and might well appear to have established itself there. The place has, at least for a time, become the church." Id. At 41.
The Supreme Court let the decision stand, denying certiorari without an opinion. Bronx Household of Faith v. New York City Bd. of Educ., No. 11-386, 2011 WL 4479210 (U.S., 2011).
Although the court did not rule that it was unconstitutional for a religious group to rent a public school, the court did decide that public schools could constitutionally prohibit “worship services” on school grounds. This case allows schools to refuse to rent to churches for the purpose of holding church services at the school.
The two Supreme Court decisions and how they relate to Bronx Household—Lamb’s Chapel v. Center Moriches Union Free School District and Good News Club v. Milford—are discussed in further detail below.
In this case, a New York school district adopted a policy, which allowed outside community groups to use its premises for “social, civic, or recreational” purposes, but expressly prohibited use for “religious” purposes. Pursuant to this policy, the school district had twice denied an application by Lamb’s Chapel, an evangelical church, to use the district’s facilities in the evening, after school hours, to show a film series concerning family and child-rearing issues from a Christian perspective.
The Supreme Court held unanimously that a school district cannot deny religious groups access to its facilities for use after school hours, i.e., during evenings and on the weekends, if the school district allows other community groups to use them. Even when the school district opens its doors to outside community groups, the Court recognized the school district can still control access to its property. It stated that a school district can still “legally preserve the property under its control for the use to which it is dedicated.” Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 390 (1993). The Court further noted that the school district “need not have permitted after-hours use of its property” at all. Id. at 391.
However, because the school did open its property to various community groups, the Court held that the school district could not then “discriminate” based on the content of the speech, even in the interests of upholding the separation between church and state. Specifically, the Court stated, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Id. at 392-3.
The Court also addressed the Establishment Clause issue. The Court ultimately rejected the notion that permitting the church to use the school after hours would violate the Establishment Clause. It stated specifically that because the film showing “would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, and not just church members” the Establishment Clause was not violated. Id. at 395. When these circumstances exist, there is no “realistic danger that the community would think that the district was endorsing religion.”Id. at 395.
This case again involved a New York school district policy that allowed public schools to rent out school premises for public use. Specifically, the policy allowed residents to use a school for “instruction in any branch of education, learning or the arts” or “social, civic, and recreational meetings.” The Good News Club, a subdivision of the Child Evangelism Fellowship, requested to use a school for its weekly after-school meetings, seeking to rent classrooms directly after the bell rang at the end of the school day. The purpose of these after-school clubs is described on the Child Evangelism Fellowship’s website as follows: “As with all CEF ministries, the purpose of after-school Good News Clubs is to evangelize boys and girls with the Gospel of the Lord Jesus Christ and establish (disciple) them in the Word of God and in a local church for Christian living.” Its mission statement: "Child Evangelism Fellowship (CEF) is a Bible-centered, worldwide organization that is dedicated to seeing every child reached with the Gospel of the Lord Jesus Christ, discipled [sic] and established in a local church." It claims that annually "ten million children worldwide heard the good news with over one million making professions of faith in the Lord Jesus Christ," including through courses designed to meet in public schools.
The Supreme Court, in a 6-3 decision, held that the school district’s action violated the Free Speech Clause of the First Amendment. Noting that the parties agreed the school district created a limited public forum, the Court stated that any restriction on speech had to be viewpoint neutral. In the Court’s language, “When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech.” Good News Club v. Milford Central Sch., 533 U.S. 98, 106 (2001). However, “the restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be ‘reasonable in light of the purpose served by the forum.’” Id. at 106-7. The Court held that in refusing to allow Good News Club to meet directly after class, the school district engaged in viewpoint discrimination. The Court claimed that the facts of this case were virtually indistinguishable from Lamb’s Chapel. The Court stated, “Like the church inLamb’s Chapel, the Club seeks to address a subject otherwise permitted under the rule, the teaching of morals and character from a religious standpoint.” Id. at 109. It stated, “The only apparent difference between the activity of Lamb’s Chapel and the activities of the Good News Club is that the Club chooses to teach moral lessons from a Christian perspective through live storytelling and prayer, whereas Lamb’s Chapel taught lessons through films.” Id. at 109-10. The Court’s majority even suggested that the Good News Club teaches morals and character development to children because the “Club instructs children to overcome feelings of jealousy, to treat others well regardless of how they treat the children, and to be obedient, even if it does so in a nonsecular way.” Id. at 108. Additionally, the majority, in a footnote, concluded that the activities did not amount to religious worship. Id. at 112, n.4.
The Supreme Court held that allowing the Good News Club to meet on school property did not violate the Establishment Clause. It reiterated that because the meetings were held after school hours, were not sponsored by the school and were open to any student with parental consent, and not just Club members, that the Establishment Clause was not violated. Id. at 113.
The “good news” is that three justices dissented in this case. Justice Stevens argued in his dissenting opinion that, while he agreed that schools operating a limited public forum could not exclude speech from religious point of view, it could discriminate against religious speech that seeks to proselytize school children. Id. at 133-4. Therefore, Stevens concluded that the school district actions did not abridge free speech.
Additionally, Justice Souter (joined by Justice Ginsburg) argued that the school district was correct in excluding the Good News Club. Souter stated, “It is beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion.” Id. at 138. Souter also dissented from the majority’s decision to address the Establishment Clause issue when the lower courts did not. Id. at 139. Souter would have remanded that issue to gain a more complete record.
Souter also stated that the school district’s actions “would offend the Establishment Clause if they carried the message of endorsing religions under the circumstances, as viewed by a reasonable observer.” Id. at 141. Souter rejected the majority’s assertion that the case was indistinguishable from Lamb’s Chapel and other previous cases because this case involved “elementary school children as young as six.” Id. at 143. Souter continued, “The timing and the format of the Good News’s gatherings ... may well affirmatively suggest the imprimatur of officialdom in the minds of young children.” Id. at 144. Souter concluded that the facts before the Court pointed away from the majority’s conclusion that the Establishment Clause would not be violated if Good News Club was allowed to meet on school property. Id. at 145.
The key issue is whether or not the regulation amounts to viewpoint discrimination or content-based exclusion. In Bronx Household, the court said that content-based exclusion was acceptable; the court did not find the ban on worship services to be viewpoint discrimination. In Lamb’s Chapel, the school was banning the movies based on the particular views expressed therein – the Court found this to be unlawful viewpoint discrimination.
FFRF's position is that Good News was a travesty. This global Christian evangelical ministry self-avowedly dedicated to converting youngsters should not be granted access to a captive audience of elementary school-aged children. Public schools exist to educate, and should not be turned into tax-subsidized recruitment grounds for predatory proselytizers. Public schools should not be conduits for preachers, forced to distribute Good News flyers advertising clubs, monitor parental consent forms or turnover classrooms directly after school to missionaries. Among the numerous complaints FFRF has received from parents about such clubs and successfully acted on: Teachers who, as soon as the bell rings, take off their public employee "cap" and become child evangelism instructors in the same setting; teachers personally escorting kindergartners to classrooms to attend after-school child evangelism clubs; child evangelism instructors entering schools before the bell has rung and parading through halls with trays of cupcakes to entice children to stay after; flyers advertising the clubs placed at child-eye level by water fountains and other school areas, and public-supported bus schedules being altered to arrive an hour later (stranding students who do not attend the club). FFRF continues to monitor abuses and take action on behalf of complainants.


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Justia › US Law › US Case Law › US Supreme Court › Volume 239 › United States v. Hamburg-Amerikanische Co.
This Court cannot pass upon questions which have, as an inevitable legal consequence of the European War now flagrant, become moot. This Court takes judicial notice of the European War, and that its inevitable consequence has been to interrupt the steamship business between this country and Europe.
It is a rule of this Court based on fundamental principle of public policy not to establish a rule for controlling predicted future conduct, and it will not decide a case involving a combination alleged to be in violation of the Anti-Trust Act which has become moot as a legal consequence of war because of probability of its being recreated on the cessation of war. California v. San Pablo R. Co., 149 U. S. 308.
The power of this Court cannot be enlarged or its duty affected in regard to the decision of a moot case by stipulation of parties or counsel.
Where a case to dissolve a combination alleged to be illegal under the Anti-Trust Act has become moot and this Court has thus been prevented from deciding it upon the merits, and the court below decided against the government, the course most consonant with justice is to reverse, with directions to dismiss the bill without prejudice to the government in the future to assail any actual contract or combination deemed to offend the Anti-Trust Act.
The facts, which involve the construction and application of the Sherman Anti-Trust Act of July 2, 1890 and the practice of this Court in regard to cases which have become moot, and the effect of the legal consequence of war, are stated in the opinion.
The United States, on January 4th, 1911, commenced this suit to prevent the further execution of an agreement to which the defendants were parties and which it was charged constituted the foundation of an illegal combination in violation of the Anti-Trust Act of July 2, 1890 (26 Stat. 209, c. 647). The relief asked, moreover, in the nature of things embraced certain subsidiary agreements made during the course of the execution of the main contract, in furtherance of its alleged prohibited result. The principal agreement was made in 1908, to last until February 28, 1911, but was to continue in force thereafter from year to year unless, not later than December 1st of each year a notice of the intention not to continue was given. On December 3, 1910, however, just a month before this suit was filed, the agreement in question was renewed for a period of five years.
We give from the argument on behalf of the United States a statement of the corporate defendants to the bill, some of whom had become parties to the alleged illegal combination by subsidiary agreement or agreements made at a later date than the original contract.
"1. The Allan Line Steamship Company, Limited, hereafter called the 'Allan Line,' a British corporation, operating from Portland, Boston, and Philadelphia to London, Liverpool, and Glasgow and return. "
"2. International Mercantile Marine Company, a New Jersey corporation, operating from New York and Philadelphia to Liverpool and Southampton and return."
"3. Its ships, together with those of its subsidiary company, defendant International Navigation Company, Limited, also operating from New York and Philadelphia to Liverpool and Southampton, . . . are referred to as the 'American Line.' Besides International Navigation Company, Limited, it also controls through stock ownership the defendants British & North Atlantic Steam Navigation Company, Limited, Societe Anonyme de Navigation Belge Americaine, and Oceanic Steam Navigation Company, Limited."
"4. British & North Atlantic Steam Navigation Company, Limited, a British corporation, hereafter called the 'Dominion Line,' operating from Portland to Liverpool and return."
"5. Societe Anonyme de Navigation Belge Americaine, a Belgian corporation, hereafter called the 'Red Star Line,' operating from New York and Philadelphia to Antwerp and return."
"6. Oceanic Steam Navigation Company, Limited, a British corporation, hereafter called the 'White Star Line,' operating from New York and Boston to Liverpool and Southampton and return."
"7. The Anchor Line (Henderson Brothers), Limited, a British corporation, hereafter called the 'Anchor Line,' operating from New York to Glasgow and return."
transports a substantial proportion (12%) of its steamship passengers to and from points in this country."
"9. The Cunard Steamship Company, Limited, a British corporation, hereafter called the 'Cunard Line,' operating from New York and Boston to Liverpool in England, Fiume in Hungary, and Trieste in Austria, and return."
"10. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, a German corporation, hereafter called the 'Hamburg-American Line,' operating from New York to Hamburg and return."
"11. Nord Deutscher Lloyd, a German corporation, hereafter called the 'North German Lloyd Line,' operating from New York, Baltimore, and Galveston to Bremen and return."
"12. Nederlandsh-Amerikaansche Stoomvaart Maatschapij (Holland-Amerika Lijn), a Netherlands corporation, hereafter called the 'Holland-American Line,' operating between New York and Rotterdam and return."
"13. Russian East Asiatic Steamship Company, a Russian corporation, hereafter called the 'Russian-American Line,' operating between New York and Libau, Russia, and return."
The individuals named as defendants were the principal officers and agents in this country of the corporate defendants. We extract from the argument on behalf of the government the following statement of the main provisions of the principal agreement.
"(1) The parties guarantee to each other certain definite percentages of the entire steerage traffic carried by them both eastbound and westbound between European ports and the United States and Canada, except Mediterranean passengers."
which have not carried their full quota. It is expressly stated that this provision 'forms one of the main features of the entire contract.'"
"(3) Each line must make a weekly report of the number of steerage passengers carried, and from these the secretary of the pool compiles weekly statements showing the pool position of each line. He also prepares each month provisional accounts of the compensation due from lines which have exceeded their quota. This must be paid immediately on pain of heavy penalties. Final settlements are made at the end of each year."
"(4) Each line undertakes to arrange its rates and service in such manner that the number of steerage passengers it actually carries shall correspond as nearly as possible with the number allotted to it by the contract. If any line exceeds its proportion, it is in duty bound to adopt measures calculated to bring about a correct adjustment. The other lines may either await the action of the individual line, or a majority of the lines representing 75 percent of the pool shares can immediately order rates on a plus line to be raised or rates on a minus line to be lowered, and from this order there is no appeal. It is expressly stated, however, that"
"all parties were unanimously of the opinion that the adjustment is, whenever practicable, to be effected not by reducing the rates of one line, but, on the contrary, by raising the rates of one or several of the lines."
"(5) No line has the right to alter its steerage rates without having previously informed the secretary -- i.e., all lines are bound to maintain existing rates until the other pool members are notified."
"(6) No circulars or publications shall be issued by any line reflecting upon or instituting comparisons with any other conference line unfavorable to the latter, and no party shall support (advertise in) any newspaper which shall systematically attack any conference line."
each line deposits with the secretary a promissory note in the amount of £1,000 for each percent of traffic allotted to it in the pool. From this amount penalties may be collected ranging from £250 for smaller infractions to the forfeiture of the entire deposit if the line withdraws from the agreement before its expiration, refuses to pay compensation money, or assists directly or indirectly any opposition line."
"(8) New lines may be admitted or the terms of the agreement altered only by unanimous vote, unless otherwise provided in the contract."
"(9) To assist in the carrying out of the agreement, a secretary was appointed."
"(10) Regular meetings are to be held alternately at London and Cologne for the purpose of carrying out this agreement and agreements collateral thereto. These meetings constitute what is called the Atlantic Conference."
"Representatives of the Atlantic Conference Lines likewise meet in New York in what is called the American Atlantic Conference or New York Conference."
It is to be observed in addition that the agreement expressly provided that the withdrawal of any one of the lines from the contract should release all others from all future obligation unless the others agreed among themselves to continue.
To the elucidation of the view we take of the case, it suffices to say that, as the result of the answers of the defendants, the issues which arose for decision were two-fold in character: did the Anti-Trust Act relate to the business of ocean transportation with which the assailed agreement and those subsidiary to it were concerned, and if so, did the agreements and the conduct of the defendants under them constitute a violation of the provisions of the Anti-Trust Act?
transportation covered by the main agreement was under the control of the Anti-Trust Act, yet held that the assailed contract and the action of the parties under it were not within the terms of the act, and therefore that the complaint of the government on that subject was without foundation. The court, however, concluded that a certain subsidiary agreement which had been entered into in the process of the execution of the original agreement had given rise to a practice which was reprobated by the Anti-Trust Act, and the further execution of such agreement and the carrying out of the practice under it were by the decree forbidden. The court reached these conclusions upon opinions formed concerning the nature and character of ocean transportation with which the agreement was concerned, the evils which had existed in the traffic and which it was the purpose of the agreement to remedy, the practice of the commercial world in dealing with such transportation in the past, the benefit which had resulted to commerce from the execution of the agreement, the reflex light thrown upon its intent and object by the reasonable rates which had been applied in its execution, and many other conditions which had come to pass as a result of the agreement, tending to the amelioration of the conditions of steerage travel and the resulting benefaction to the safety, comfort, and health of the millions of human beings traveling by steerage, to which class of traffic alone the contract related. 216 F. 971.
with the conclusion that the Anti-Trust Act was applicable to such transportation.
in the case before it. No stipulation of parties or counsel, whether, in the case before the Court or in any other case, can enlarge the power, or affect the duty, of the Court in this regard."
See also Lord Veazie, 8 How. 251; Cheong Ah Moy v. United States, 113 U. S. 216; Little v. Bowers, 134 U. S. 547; Jones v. Montague, 194 U. S. 147; Security Life Insurance Co. v. Prewitt, 200 U. S. 446; Richardson v. McChesney, 218 U. S. 487; Stearns v. Wood, 236 U. S. 75.
"the combination against which this proceeding is directed, composed of two British and two German steamship companies, has been practically dissolved as a result of the European War,"
"In view of the fact that the logic of events has turned this investigation into an autopsy, instead of a determination of live issues, it seems unnecessary to discuss the persuasiveness of the proofs,"
etc. But we cannot give our implied sanction to what was thus done, or accept the persuasiveness of the reasoning upon which the action was based, in view of the settled decisions of this Court to the contrary and the fundamental principles of public policy upon which they are based. In fact, at this term, although we were pressed to take jurisdiction of a cause in a capital case after the death penalty had been inflicted on the accused, we declined to do so and dismissed for want of jurisdiction because the case had become a moot one. Director of Prisons v. Court of First Instance of the Province of Cavite, post, p. 633.
Nor is there anything in United States v. Trans-Missouri Freight Association, 166 U. S. 290, and Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S.
498, which conflicts with this fundamental doctrine. In the first, the Trans-Missouri case, a combination between railroads, charged to be illegal, was by consent dissolved, and it was held that, in view of the continued operation of the railroads and the relations between them, their mere consent did not relieve of the duty to pass upon the pending charge of illegality under the statute of their previous conduct, since, by the mere volition of the parties, the combination could come into existence at any moment. Leaving aside some immaterial differences, in terms, the ruling in the Southern Pacific case was based upon the decision in the Trans-Missouri case. Here, on the contrary, the business in which the parties to the combination were engaged has, by force of events beyond their control, ceased, and by the same power and a continued relation concerning it between them has become unlawful and impossible. The difference between this and the Trans-Missouri case was clearly laid down in Mills v. Green, 159 U. S. 651, where, after announcing the general rule as to the absence of authority to consider a mere moot question, and referring to possible exceptions resulting from the fact that the want of actuality had arisen either from the consent of the parties or the action of a defendant, it was declared: "But if the intervening event is owing to the plaintiff's own act or to a power beyond the control of either party, the Court will stay its hand."
and must be based solely upon determining what will be "most consonant to justice" in view of the conditions and circumstances of the particular case. Coming to consider the question in that light, and in view of the nature and character of the conditions which have caused the case to become moot, we are of opinion that the ends of justice exact that the judgment below should not be permitted to stand when, without any fault of the government, there is no power to review it upon the merits, but that it should be reversed and the case be remanded to the court below with directions to dismiss the bill without prejudice to the right of the government in the future to assail any actual contract or combination deemed to offend against the Anti-Trust Act.

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This response has been inspired by Gregory Nagy’s discussion of Catullus’ famous ‘Sparrow Poem’ (c. 2) in Classical Inquiries 2018.12.13. According to Nagy, Catullus’ model was Sappho’s ‘Sparrow Song’, lost to us but not to Catullus, in which the Lesbian poet expressed her affection for her little sparrow. Taking my lead from a Modern Greek pet song, I shall explore a slightly different path, the possibility that the ‘Sparrow Poem’ is not a poetic exercise on a Sapphic song, but Catullus’ imaginative reconstruction of Sappho’s relationship with Aphrodite’s winged charioteer.
§0. This posting for 2019.03.01 is Part Seven of a long-term project that started with Part One at 2019.01.08. The numbering of my paragraphs here in Part Seven continues from §110 of Part Six, posted 2019.02.22, continuing from earlier posts. In Part Seven here, I attempt to round out my findings, as of now, about the reception of Sappho’s songs in the ancient world. Most if not all of these findings, I must emphasize, are not as yet certain, but they can point the way, I hope, to eventual certainties.
§0. This posting for 2019.02.22 is Part Six of a long-term project that started with Part One at 2019.01.08. The numbering of my paragraphs here in Part Six continues from §95 of Part Five, posted 2019.02.08, continuing from earlier posts. In Part Six here, I concentrate once again on the poetry of Catullus, which has been my main preoccupation in the course of this overall project ever since §53 in Part Three, posted 2019.01.25. This time, over forty paragraphs later, I hope to tie up some of the many loose ends that I have made for myself in pursuing the questions I face in studying the reception of Sappho by Catullus.
§0. On the cover of an earlier posting of mine for Classical Inquiries, Nagy 2019.01.31, we see a facsimile of a picture painted on an Attic white-ground lekythos, dated somewhere around 440–430 BCE, by an artist who is known to art historians as the Achilles Painter. In that posting, which was all about Sappho, I never explained why I chose that picture for the cover. In the posting for today, 2019.02.14, I offer an explanation, which will require a broader view: that is why the facsimile for the cover here is in three parts: the part on our right is the same picture I showed in the earlier post, but the part in the middle “zooms out,” showing the whole scene that is being pictured—not just a part of the scene, as before—and then the part on our left shows a picturing that I have not shown before. Relevant to my explanation of the overall scene, as we will see, is the day on which this posting is being published, Valentine’s Day 2019.02.14. And, I should add on a personal note, the relevance extends further: whether or not I am right in trying to explain the meaning of the overall scene that is being pictured here by the Achilles Painter, I hope that the picture itself, in all its beauty, will be accepted as a loving Valentine’s Day “card” from Greg to Holly.