text:
Posted On February 25, 1896 by &filed under Calcutta High Court, High Court.
1. The suit, out of which this appeal arises, was brought by the plaintiffs appellants against the defendant Sailajanund Datta Jha, described as the ojha or high priest of the temple of Baidyanath, for the recovery of the sum of Rs. 18,279-2; and for a declaration that the said amount is realisable by attachment of the surplus of the offerings called charao made to the deity Sri Sri Iswar Baidyanath, and is recoverable from the defendant’s successors in office. The main allegations, upon which the claim is based are, that the temple of Baidyanath in the town of Deoghur has from time immemorial been under the management of its ojha or high priest; that the offerings made to the deity in the shape of gifts of money and other things, called charao, were formerly divided between the high priest on the one hand and the Raja of Birbhum, and in succession to him the British Government on the other, but since the relinquishment of its share by the British Government in 1791, the whole of the said charao has been taken by the high priest, who is entitled to appropriate to his own use the surplus left after providing for the expenses of the worship and the performance of other obligations appertaining to the institution; that the office of high priest is elective, but confined to the family of the plaintiffs and the defendant, and subject to the final confirmation of the ruling power; that the last ojha Isrinund Datta Jha, father of the plaintiffs and grandfather of the defendant, gave the plaintiffs an ekrar in 1271, stipulating thereby to pay to them and their heirs the sum of Rs. 2,400 annually out of the said charao for their maintenance; that on the death of the said Isrinund Datta Jha, disputes having arisen between the plaintiffs and the defendant as to the right of succession to the office of ojha, the defendant by an ekrar, dated, the 27th of February 1878, promised to pay the plaintiffs and their heirs Rs. 2,400 annually, and the plaintiffs allowed the office of ojha to pass to the defendant; and that the arrears of the said annual allowance of Rs. 2,400 together with interest amount to the sum claimed in the suit.
2. The defence alleges that the temple of Baidyanath is a public place of Hindu worship; that the property appertaining thereto including the charao or offerings is debutter property belonging to the idol Baidyanath, which the ojha or high priest holds only as manager without having any personal right to the same, save and except the right to maintain himself out of it; that the office of high priest is not elective, but passes by succession by primogeniture to the eldest son of the last incumbent, and in his default to his eldest son, and so on; that the ekrars referred to in the plaint cannot create any valid charge in the charao or offerings which constitute debutter property, nor can they bind any succeeding ojha; and that of the amount claimed only a portion, namely the sum of Rs. 5,280, is due to the plaintiffs, and the defendant is personally liable for the same. It appears from the issues that two more objections were subsequently taken by the defendant, namely, that a part of the claim was barred by limitation, and that the claim for interest was not tenable.
3. The Court below has held that the charao or offerings are debutter property, and cannot be charged with liability for the plaintiff’s’ claim; that the ekrar executed by the defendant is not binding on his successors in office, but that the defendant is personally liable under it; that no part of the claim is barred by limitation; and that interest is claimable for the last three years before suit; and it has accordingly given the plaintiffs a decree against the defendant personally for the greater portion of the claim, disallowing only interest in part.
4. Against that decree the plaintiffs have preferred this appeal, and the defendant has filed a cross-appeal, valued at Rs. 6,286-7-0, the difference between the amount decreed and the amount admitted to be due.
Thirdly, that the claim for interest ought to have been disallowed altogether.
Before proceeding to the determination of the appeal and the cross-appeal, it is necessary to dispose of a preliminary question, namely, whether proper Court fees have been paid on the memorandum of appeal and on the petition of cross-appeal.
6. The Court fee paid on the memorandum of appeal is Rs. 10, and the learned vakil for the appellants contended that this was the proper fee chargeable under clause iii of Article 17 of Schedule II of the Court Fees Act, the object of the appeal being only to obtain a declaration that the amount decreed is realisable from the surplus of charao or offerings, and is recoverable from the defendant’s successors in office, the prayer for consequential relief, that is, for recovery of the money, having already been granted by the Court below. He further urged that the cross-appeal could not be heard, unless the respondent paid the fee payable on the amount at which it was valued as required by Section 16 of the Court Fees Act. On the other hand, it was argued for the respondent that, as the declaratory decree asked for by the appellants would not amount to a mere declaration, but must necessarily carry with it some consequential relief, the fee payable on the appeal was the ad valorem fee on the amount decreed as required by Article 1 of Schedule I of the Act; and if that was paid, no additional fee would be payable by the respondent under Section 16.
7. The point not being altogether free from doubt, we reserved judgment upon it, and allowed the hearing of the appeal and the cross-appeal to proceed, upon the parties undertaking through their learned vakils to pay any amount that they might be declared liable to pay.
8. After giving our best attention to the point, the conclusion we arrive at is that the memorandum of appeal has been properly stamped, and that the petition of cross-appeal requires to be stamped with the fee payable on the value of the cross-appeal as provided by Section 16 of the Court Fees Act.
9. It is true that the case does not come under clause iii of Article 17 of the second Schedule of the Court Fees Act upon a literal construction of that clause; for that clause refers to the nature of the suit as the criterion for determining whether an appeal comes under it, and the suit here was clearly not for a declaratory decree without consequential relief. But though that is so, still Section 16 of the Act clearly indicates that, where an appeal is only against a part of a decision, and that part relates only to a portion of the subject-matter, the memorandum of appeal is sufficiently stamped, if it bears the Court fee stamp chargeable upon such portion of the subject-matter. Now, the subject-matter of the suit here was a claim for a certain sum of money, coupled with a claim for a declaration that it was realisable from the offerings to the idol and was recoverable from the successors in office of the defendant. The Court below has allowed the former claim with a small reduction, the correctness of which is not questioned in appeal, but disallowed the latter; and the appeal is only against that part of the decision which relates to the declaration. The memorandum of appeal should therefore be held to be sufficiently stamped, if it bears the Court fee stamp chargeable in a suit for a mere declaratory decree, that is, if it bears a stamp of Rs. 10 as provided by clause iii, Article 17, Schedule II of the Act.
10. It has been contended that if the declaratory decree asked for is granted, it will necessarily carry with it some consequential relief; that is to say, as soon as the declaration is obtained, the plaintiffs will become entitled to realise their claim out of the offerings, so that it cannot be said to be a declaratory decree without consequential relief. But this contention is not sound. The correct view of the matter is that the declaratory decree results in consequential relief, not by its own force, but only by reason of such relief having already been granted.
12. In the other case cited, Vithal Krishna v. Balkrishna Janardan I.L.R. 10 Bom. 610, the suit was brought by a judgment-creditor to establish the right of his judgment-debtor to certain property and the liability of that property to attachment in execution of his decree, after the property had been released from attachment on the claim of a third party; and a Full Bench of the Bombay High Court held that the proper stamp on the plaint was Rs. 10 under Schedule II, Article 17, Clause (i) of the Court Pees Act. This too is not, therefore, a case quite in point.
13. The language of the Act not being’ clear, and there being no case in point, we think the correct view of the law is that indicated above, as being the one most consonant to reason.
14. We shall now proceed to the determination, of the appeal and the cross-appeal, taking the appeal first and then the cross-appeal; and we shall consider the grounds urged in each in the order in which they have been stated above.
15. The first contention of the appellants, namely, that the Court below ought to have declared that the amount decreed was realisable by the attachment of the charao or offerings, involves some of the most important questions raised and discussed in the argument. In support of this contention it is urged that the surplus of the offerings left after defraying the expenses of worship and certain other necessary expenses, such as those required for keeping the temple in proper order, belongs to the ojha or high priest; that the defendant was therefore competent to create a charge on such surplus by the ekrar on which this suit is based; and that the plaintiffs are entitled to the declaration asked for. And the right of the high’ priest to the surplus of the offerings is sought to be based as well upon the general Hindu law as upon the special custom of the shrine. It is further urged that, even if the surplus of the offerings be not the property of the ojha, they are still chargeable by him with the maintenance of members of his family. The attempt made in the Court below to support the plaintiffs’ claim to a charge on the offerings, even if they are the property of the idol, on the ground of the charge being created for the benefit of the endowment, was not repeated here, evidently because the contention was, as shown in the judgment of the learned Subordinate Judge, utterly untenable. In dealing with the first ground of appeal, therefore, we may confine our attention to the two questions, whether by the general Hindu law the surplus of the offerings belongs to the high priest, and whether by the special custom of the shrine they belong to him or are chargeable by him with the maintenance of members of his family.
17. Relying upon this text and upon a remark of Jagannatha, in which the learned author speaks of an idol as a being “whose essence is a text of Scripture” (see Colebrooke’s Digest, Book V, Ch. I, 2 Commentary, Madras Ed., Vol. II, p. 191), the learned vakils for the appellants contend that offerings made to an idol are only nominally the idol’s property, but belong really to the officiating priest. It is argued that according to true Hindu notions, an idol is only an emblem of God, and offerings made to an idol are intended not for the use of the idol, that is a mere symbol, but for the use of God’s creatures in general, and of Brahmins or priests in particular as being the most meritorious among them. Whatever weight an argument like this may be entitled to in a purely religious or metaphysical discussion, it cannot, we think, prevail in its broad generality in a Court of law at the present day. Decisions too clear and authoritative to be doubted or disregarded have repeatedly laid down that an idol in Hindu law is capable of holding property, and that property dedicated to an idol belongs to an idol and not to the sebait, or priest. See Shibessuri Debia v. Mothoora Nath Acharjo 13 W.R. P.C. 18 : 13 Moore I.A. 270, and Prosunno Kumari Debya v. Golap Chand Baboo 14 B.L.R. 450 : 23 W.R. 253 : L.R. 2 I.A. 145.
18. If it were necessary to give reasons in favour of a view so amply supported by authority, we should add that the opinion of Jagannatha goes merely to show that an idol can be the owner of property only in a figurative sense, possession being held by a manager or trustee, and that dedication of property to an idol is only a mode of creating a trust for religious purposes in perpetuity, which is allowed by law [see Jaggut Moheenee Dassi v. Sakhi Monee Dassi 10 B.L.R. 19 : 17 W.R. 41 : 14 Moore I.A. 289]. And as for the text cited above, though it requires the appropriation by a Brahmin of offerings made to an idol, it does not show that the Brahmin intended is the priest attending the idol. What is offered to an idol is required to be devoted to the use of a Brahmin on account of his generally having great religious merit; but the Hindu law regards a priest attending an idol as a Brahmin of a comparatively lower order of merit (see Manu, III, 152; Vishnu, LXXXII, 8). Where an idol is set up temporarily for worship, or where the offerings are of a perishable nature, such as articles of food, the priest in attendance, as the nearest Brahmin available, generally appropriates the offerings; and the same is the case where the idol itself is the private property of the priest. But where, as in this case, the idol is an ancient one permanently established for public worship, and the offerings are generally of a more or less permanent character, being coins and other metallic articles, in the absence of any custom or express declaration by the donor to the contrary, they are, as they ought to be, taken to be intended to contribute to the maintenance of the shrine with all its rites, ceremonies and charities, and not to become the personal property of the priest. However much a Hindu votary may wish that his offerings to public shrines should ultimately go to the use of meritorious Brahmins”, he can never be supposed to intend, nor does the Hindu law anywhere allow, that they should become the property of the priest, to be squandered by him or devoted to purposes foreign to the endowment. This view is quite in accord with that expressed by the Bombay High Court in Monohar Ganesh Tambekar v. Lakhmiram Govindram I.L.R. 12 Bom. 247.
20. Let us next examine how far the special custom of this shrine helps the appellants. It is admitted by the plaintiff Girijanund in his deposition, and it could not very well have been denied upon the evidence adduced by the plaintiffs themselves (see Government letter of 1791, Ex. 4, that of 1822, Ex. 3, and the Assistant Commissioner’s Report of 1860, Ex, 7) that the temple of Baidyanatb is a public place of worship. But it is urged that by custom the surplus of the offerings made to the idol after defraying the expenses of worship belong to the ojha. The custom is said to be traceable in its origin to the fact that the temple was either built by the founder of the family of the ojhas or made over to him by the king of Gidhaur who had built it; and to the further fact that the right to two-thirds of the offerings which was formerly claimed and enjoyed by the Rajas of Birbhum and afterwards in succession to them by the British Government, was subsequently relinquished by the latter in favour of the high priest in 1791. The custom is said to be proved by evidence showing the mode in which the offerings have been appropriated; and, lastly, it is said to have been recognised by Courts of Justice.
With this view we propose requiring from the ojha who may be eventually nominated such periodical accounts as will be calculated to supply the necessary information respecting the extent and nature of every source of receipt and object of disbursement, and we believe that with the exercise of an active superintendence on the part of the local agents, it will be practicable so far to control the conduct of the ojha in the administration of the temporal duties of his office, as will preclude the possibility of any extensive misapplication of the funds committed to his charge.
22. The letter of the Local Agent to the Board of Revenue, dated the 23rd February 1825, embodied in the proceedings of the Board, dated the 1st March following, and Exhibit F, support the same view.
23. It is argued for the appellants that the mode in which the offerings have all along been appropriated by the ojha proves that they belong to him. On the other side, it is contended that such appropriation, even if established, will only show abuse of trust on the part of the ojha, but instances of former abuse of trust cannot be pleaded against a trustee who is now seeking to prevent a repetition of abuse; and the case of Jaggat Mohinee Dassi v. Sakhi Monee Dassi 10 B.L.R. 19 : 17 W.R. 41 : 14 Moore I.A. 289 is cited in support of this contention. Though that is undoubtedly so, when the trust is admitted or proved, yet, when the question to be determined is whether certain property is trust property, or whether it belongs to the alleged trustee in his own right, instances of the appropriation of such property by the alleged trustee to his own use, if they are numerous and extend far back into the past in a continuous series, will be good evidence of his right; but if the instances are only recent or are few and far between, they are not likely to be of much value, and may be treated merely as instances of abuse of trust. Now after carefully considering the evidence adduced in this case we must say that the instances of appropriation proved are of the latter description and not of the former. The instances given by the witnesses as well as those given in the documents are for the most part recent, and they are few and far between. Moreover, some of the instances deposed to by the witnesses are, when examined, found not to be instances at all of unauthorized appropriation of the offerings by the ojha to his own purposes. Thus witness No. 3, Amrito Saha, admits in cross-examination (see page 27 of the Paper Book) that the dues of the creditors about whose decrees he has spoken, were on account of the worship expenses of the mat; while the expenses of sradhs and of other ceremonies in the family of the ojha, which the ojha is said to have supplied out of the offerings, may be treated as legitimate expenses which he was authorized to make out of the temple funds just as he is authorized to maintain himself out of the same. Then, again, part of the evidence (see the depositions of Ashutosh Jha, witness No. 2, and of Harihar Lall witness No. 6) proves too much, when it seeks to make out that no distinction is made between the offerings and the income of property which is admittedly debutter.
24. It remains to consider the effect of the decisions referred to, in which the ojha’s right to the offerings is said to have been recognised. These are certain decisions of the civil Courts passed in different stages of a suit for maintenance, somewhat similar to the present, brought by one Sib Datta Jha in the year 1848 against Isrinund Datta Jha, the predecessor in office of the present ojha. They cannot operate by way of res judicata, not being judgments inter partes, but they are evidence under Section 13 of the Evidence Act, upon the present question, which is one as to the existence of a right by custom; and they are certainly entitled to careful consideration. The most important of these decisions is that of the Sudder Dewanny Adalut of Calcutta, dated the 7th of June 1856, which is reported in the Sudder Dewanny Adalut Reports of 1856, page 512, and of which a certified copy is filed with the record of this case.
26. This passage of the judgment clearly shows that the present question did not properly arise in the former suit, and what was said with reference to it may therefore be treated as an obiter dictum. Moreover, what was said by the learned Judges has no reference to any special custom of the temple of Baidyanath, but refers to offerings made at temples generally. With all respect for the learned Judges, we must say that to the broad proposition of law thus laid down by them, we are unable to assent. Where any property is not wholly debutter, but is only charged with certain religious trusts, there the surplus which remains after the performance of the trusts is no doubt attachable for the debts of the person beneficially entitled to the surplus. See Ashutosh Dutt v. Doorga Charan Chatterjee I.L.R. 5 Cal. 438 : L.R. 6 I.A. 182. But that is not the case before us. Here the offerings are admittedly made to the idol (see the deposition of the plaintiff Girijanund, page 16 of the Paper Book). Their very name charao shows that they are placed either actually or symbolically on the head of the idol when the offering is made. The purposes, again, to which they are required to be appropriated in the first instance, that is, the trusts with which they are said to be charged, are of an indefinite character and may exhaust them completely. And the only definite right which the ojha seems to have in them is to maintain himself and the dependent members of his family out of them.
27. Such being the case, it would be reversing the order of things to say that the offerings constitute the property of the ojha subject to certain religious trusts, when the correct view to take is, that they constitute the property of the idol subject to certain rights of the ojha. When some of the most beneficial objects of the endowment, such as the feeding of the poor and the infirm (see Clause 10, para. 7 of plaintiffs’ Ex. 7) are of an indefinite extent, to hold that the ojha is entitled to the surplus of the offerings, would be to place the trustee or manager in a position to cut down the indefinite expenses to the lowest possible limits for his own individual benefit. Such a view can never be sound.
28. There are two important facts proved in the case, which make the correctness of the view we take clear beyond doubt. One of these is the fact that the ojha, or high priest of Baidyanath is required to be above a certain age and to lead an ascetic life. This is proved by the plaintiffs’ witness Ashutosh Jha and by their Exhibit 7, the Report of the Assistant Commissioner, dated the 4th May 1860 (see para. 7, Clause 12). The other is the fact proved by the deposition of the plaintiff Girijanund that, besides making their offerings to the idol, pilgrims pay pranamis or fees to the ojha. The condition imposed on the high priest that he should lead an ascetic life implies that his temporal wants must be of a very limited nature, so that he can have no occasion for misappropriating the funds of the shrine; and the payment of separate fees to him shows that the offerings to the idol are not intended to be appropriated by him.
29. Last of all it was urged in support of the plaintiffs’ right to enforce the charge claimed that, even if the surplus of the offerings do not belong to the ojha, they are still chargeable by him with the maintenance of members of his family; and para. 4 of Exhibit 3 was relied upon. Conceding that the humane provisions of the Hindu law relating to maintenance would authorize the ojha to maintain out of the temple funds certain of his relations in the same way as he is authorized to maintain himself, they can only be those dependent and helpless members of his family whom he is under that law bound to maintain; and clearly the plaintiffs in this case do not come under that description. Nor can Exhibit 3, which merely contains a special recommendation with reference to a particular case, help the plaintiff’s much.
30. For all these reasons we are of opinion that the first ground of appeal is not tenable upon any view of the case.
31. The consideration of the second ground need not detain us long. The plaintiffs admit in their plaint (para. 5) that the office of ojha or high priest is elective, though the election is confined within their family circle. It is true that the defendant denies this in his written statement; but the evidence adduced by the plaintiffs (see the deposition of the plaintiff Girijanund and of their witness Ashutosh) shows that the office is not a strictly hereditary one. Their documentary evidence leaves the matter to some extent in uncertainty. The earlier proceedings of the Board of Revenue show that the Board exercised some control over the appointment of successors to the office, though they admitted the office to be as a rule hereditary, while in their later proceedings they disclaim all authority to control the succession. But whether the office is elective or hereditary, no holder of it can bind his successors in office by any act, unless it is for the benefit of the endowment; and it is clear, as has been shown in the judgment of the Court below, that the ekrar upon which the plaintiffs base their claim cannot be said to have been entered into for the benefit of the endowment. The plaintiffs cannot, therefore, have any right to recover the money decreed from the defendant’s successors in office.
32. The third ground of appeal is clearly untenable. A former abuse of trust, such as is shown by the stipulation in the ekrar charging the offerings with the allowance to the plaintiffs, cannot be set up against a party who seeks to prevent repetition of such abuse in future. The case of Jaggut Mohinee Dassi v. Sakhi Monee Dassi 10 B.L.R. 19 : 17 W.R. 41 : 14 Moore I.A. 289 is conclusive authority on the point.
33. The grounds urged before us therefore all fail, and the appeal must consequently be dismissed with costs.
34. Turning now to the cross-appeal, we think the first ground ought to succeed to this extent, namely, that the claim in respect of the time preceding the last six years before the date of institution of the suit ought to be disallowed, as barred by limitation. The suit being based upon the ekrarnama of the defendant which is a contract in writing registered, the period of limitation applicable to it is six years under Article 116, Schedule II of the Limitation Act [see Nobocoomar Mookhopadhya v. Sent Mullick I.L.R. 6 Cal. 94]. The Court below has held that the allowance claimed being one for maintenance, the period of limitation applicable to it is twelve years. The learned Subordinate Judge evidently thinks that Articles 128 and 129 govern the case. This view is clearly wrong. Those Articles, in our opinion, apply only to cases in which the right of maintenance is based upon the Hindu law. They can have no application to a case like the present in which the right is based entirely upon a contract, merely because the persons claiming under the contract are Hindus. The application of those two Articles depends not upon the nationality of the plaintiff, but upon the nature of his right; and the words by a Hindu “used in the Articles must be taken to mean” by a person claiming under the Hindu law.” If it were otherwise, and if these words were taken literally, it would lead to this anomalous result, that a Hindu servant of a Christian or a Mahomedan, to whom his master may have granted maintenance by a deed in consideration of his past services, would be entitled to twelve years limitation in respect of his claim, while a servant of the master’s own nationality and creed would be entitled only to six years or three years in respect of a similar claim, according as the deed in his favour was or was not registered. This could never have been intended. As a further reason for his decision that no pact of the claim is barred, the learned Subordinate Judge adds that the plaintiffs have the right to appropriate the payment in satisfaction of the earlier arrears; that they have in fact made such appropriation in the account annexed to the plaint; and that even if they have not done so, the Court can allow such appropriation to be made now. This view is not, in our opinion, correct. Granting that the conditions under which the plaintiffs are entitled under Section 60 of the Contract Act to appropriate payments to the discharge of the earlier debts, were satisfied, we do not think that the account referred to makes any such appropriation. It is a running account in which every year the amount due at the end of the last preceding year is added to the amount due for the year, and the payment made during the year is deducted from the same’ without any specification as to whether the payment is deducted from the former amount or the latter; and the payment cannot now be applied under Section 61 of that Act to the discharge of earlier arrears, which are now barred by limitation. Practically the difference is not very great. The suit was brought on the 16th of January 1891, corresponding to some time in Magh 1297, the allowance is an annual one; and six years being the period of limitation, the claims for the years beginning with 1291 are within time. The only part of the claim that is barred is the balance due at the end of 1290, which according to the account appended to the decree is Rs. 1,064-8.
35. With reference to the second ground of cross-appeal, it is argued in the first place that as the ekrar in question contains no personal covenant to pay, but only creates a charge on the offerings which is invalid, no personal decree ought to have been made; and in support of this argument the case of Narotam Dass v. Sheo Pergash Singh I.L.R. 10 Cal. 740 is cited. It is next contended that, even if there was a personal contract, it cannot be enforced, as there was no valid and legal consideration for the contract. On the other side it is urged that it is not open to the defendant now to deny his personal liability under the ekrar, when in paragraph 13 of his written statement he admitted such liability, and merely questioned the correctness of the plaintiffs’ account and pleaded payment in reduction of the claim. We are of opinion that the admission of the defendant should be taken in its entirety, and that it is open to the defendant to contest his liability for any sum in excess of that admitted to be due, upon any ground that he may think fit to urge, provided no new case is made in appeal, and the other side is not taken by surprise. We shall therefore examine the argument advanced.
36. Upon the first branch of the argument, it is enough to say that the question is one of construction of the ekrar; that the case cited is clearly distinguishable from the present, the documents in the two cases being very different from one another in their language; and that the ekrar upon which the suit is based contains in our opinion a personal contract to pay, when the defendant in that document says to the plaintiffs: “You and your descendants shall from generation to generation continue to get from year to year the said sum of Rs. 2,400 from me and my representatives, &c.
37. In support of the second branch of the argument the preamble of the ekrar is relied upon, and it is urged that upon the death of Isrinund, the last ojha, either the defendant was entitled to the office, in which case the plaintiffs gave up nothing, and so there was no consideration for the ekrar, or he was not, and one of the plaintiffs was, in which case it was a sale of the office or a bargaining for it, and the consideration was illegal, such sale of, or bargaining for, a public office like that of the high priest of a public shrine being opposed to public policy. And Pollock’s Principles of Contracts (5th edition), page 313; Leake’s Law of Contracts (3rd edition), page 624, and the cases of Juggurnath Roy Chowdhry v. Kishen Pershad Surma alias Raja Babu 7 W.R. 266, Durga Bihi v. Chanchal Ram I.L.R. 4 All. 81, Narasimma Thatha Acharya v. Anantha Bhatta I.L.R. 4 Mad. 391, Kuppa Gurukal v. Dora Sami Gurukal I.L.R. 6 Mad. 76, Raja Varmah Yalta v. Rapi Varma Kunhi Kutty I.L.R. 1 Mad. 235 are relied upon as authorities. On the other side are cited the cases of Mancharam v. Pranshankar I.L.R. 6 Bom. 298 and Sitarambhat v. Sitaram Ganesh 6 Bom. A.C. 250.
38. Having regard to the facts of this case, we are of opinion that this contention is not valid. The ekrar (Ex. 2) no doubt recites that both the plaintiffs and the defendant tried to obtain the post of the high priest on the death of Isrinund, and that this dispute concerning the succession was settled by that document; it also recites that Isrinund had by an ekrar dated the 24th Baisakh 1271 granted to the plaintiffs and their heirs in succession an annuity of Rs. 2,400 for their maintenance. The defendant Sailajanund is the eldest son of Purnanund, who was the eldest son of the late ojha Isrinund, but who died before his father; and the plaintiff Ghjjanund appears to be the eldest surviving son of Isrinund. The earlier letters of the Government and of the Board of Revenue (see Exhibits 3, 5 and 6) show that succession to the office of ojha or high priest, though generally hereditary, is still governed by the elective principle to this extent that the priests or. members of the family of the ojhas have a voice in the determination of the question whether the person entitled to succeed by inheritance is also qualified by his age (which is required to be above forty years) and his character; and though in their later communications, that is, those of 1839 (see Exhibits 19 and 20) they withdraw their control over the appointment of the ojha, still they regarded the succession as partially elective, when they said “that the priests of the temple should be left at liberty to choose their own superior without restriction of age or other qualification.” Moreover, it had never been authoritatively settled that the succession to the office of ojha was regulated solely by the principle of lineal primogeniture as contended by the defendant. In that state of things it is impossible to say that at the date of the ekrar there could not have been any bond fide dispute as to the right to succeed, and that the plaintiffs did not abandon a bond fide claim. And if that was so, it cannot be said that the ekrar was without consideration. (See Pollock’s Principles of Contracts, 5th Edition (page 181), and Miles v. New Zealand Alford Estate Co. L.R. 32 Ch. D. 266.
40. The Indian cases cited are somewhat in conflict with one another, but they do not really affect the question as to the validity of the agreement upon which this suit is based. Juggernath v. Kishen Pershad 7 W.R. 266 only decides that the judgment-debtor’s right as sebait cannot be sold in execution of a decree. In Durga Bibi v. Chanchal Bam I.L.R. 4 All. 81, the same rule is laid down, with a qualification, however, which favours the appellants. The learned Judges say: “We are of opinion in default of any proof to the contrary that the right of managing the temple, of officiating at the worship conducted in it, and of receiving the offerings at the shrine cannot legally pass outside family of the trustee, Sadhu Misr, until absolute failure of succession in his family.” In Narasimma Thatha Acharya v. Anantha Bhatta I.L.R. 4 Mad. 391, and Kuppa Gurukal v. Dorasami Gurukal I.L.R. 6 Mad. 76, the sale of a priestly office for the pecuniary benefit of the sebaitfia declared to be invalid, and in Raja Varma Valia v. Ravi Varma Kunhi Kutty I.L.R. 1 Mad. 235, the Privy Council held that a custom allowing the sale of the office of trustees for the pecuniary advantage of the trustees, even if it was established, would be bad in law. On the other hand, the case of Mancharam v. Pranshanker I.L.R. 6 Bom. 298, while affirming the invalidity of an alienation of the office of sebait to a stranger, upholds an alienation made in favour of a member of the founder’s family standing in the line of succession; and to the same effect is the case of Sitarambhat v. Sitaram Ganesh 6 Bom. H.C. 250.
41. These decisions, so far as they relate to public offices, are based more or less upon one of two principles, namely, first, that the interests of the public might suffer, if bargains relating to public offices are upheld, as their effect is to prevent such offices being filled by the best available persons; and, second, that no such office should be treated as the private property of any incumbent, and as such capable of being sold by him or of being brought to sale in execution of a decree against him, as such a sale might lead to public inconvenience. The agreement before us obviously does not infringe this second principle, as there was no sale of the office of ojha here. As far as the first-mentioned principle goes, that can hold good only in those cases in which the office is of such a nature that no one has more claim to it than what his personal fitness gives him, and no one has any right to question in a Court of Justice the correctness of the decision of the person or persons, in whose gift the office is. When, however, as in the case before us, the only persons who can have any claim to the office are members of a family group, and the nature of the office is such that claims to it must be ultimately determined by the decision of a Court of Justice, and bond fide claimants to the office compromise their claims by an agreement for a pecuniary consideration, the propriety of the agreement has to be judged of not merely with reference to the above-mentioned principles, but with reference to various other considerations besides. In fact, conflicting considerations arise in such cases. On the one hand, it may be said that the rights of the rival claimant should be determined by the Court, so that the office may be held by the person found best entitled to it. On the other hand, it is to be borne in mind that litigation concerning succession to a public office always involves a certain amount of inconvenience to the public and some waste of the funds of the endowment to which the office appertains; and where the qualifications of the rival claimants are evenly balanced, so far as the public are concerned, it would conduce more to the interests of the public by allowing a compromise than by prohibiting it, provided the nature of the compromise is such that it does not interfere with those interests. We are of opinion that in cases like these, it is not possible to lay down any hard and fast rule of law which can be of general application. Each case ought to be determined upon its own facts. And having regard to the nature of the office in this case, to the nature of the dispute relating to it, and to the nature of the compromise effected, we are not prepared to say that the agreement in question is invalid by reason of its being opposed to public policy.
42. It remains only to consider the last ground of cross-appeal, namely, that relating to the claim for interest. Having regard to the terms of the ekrar, we are of opinion that interest has been rightly allowed. The claim is one for a certain sum, payable by virtue of a written instrument at a time certain (that is at the end of each Bengali year), within the meaning of Act XXXII of 1839; and the rate at which interest has been awarded, namely, 12 per cent, per annum, may fairly be regarded as not exceeding the current rate, that being the rate allowed by the Legislature in certain oases (Act VIII of 1885, Section 67).
43. The result then is, that the appeal, is dismissed with costs and the cross-appeal allowed with proportionate costs in both Courts to this extent, namely, that the sum of Rs. 1,064-8, being the portion of the amount decreed that is barred by limitation, shall be deducted from that amount; and the appellants are entitled to costs in this cross-appeal in proportion to the amount disallowed; but the order made in the cross-appeal will be subject to the condition that the respondent shall pay within one month from this date the additional Court fee payable on the memorandum of cross-appeal under Section 16 of the Court Fees Act, that is, the sum of Rs. 335, and if this sum is not paid as directed, the cross-appeal shall stand dismissed with costs. Except as indicated above, the decree of the Court below shall stand.

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


text:
Yesterday, the United States Supreme Court issued its decision in SCA Hygiene Products Aktiebolag et al. v. First Quality Baby Products, LLC, et al. The case required the Court to determine whether the defense of laches remained a viable defense to patent infringement actions when the charge of patent infringement is brought during the six-year statute of limitations. As predicted by many, the Supreme Court found that the defense of laches is inappropriate for claims brought within the statute of limitations, the same ruling reached only several years ago with respect to laches as a defense in copyright infringement claims. See Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. ___ (2014).
The decision of the Supreme Court was not unanimous. The majority opinion was delivered by Justice Alito, who was joined by the Chief Justice, as well as Justices Kennedy, Thomas, Ginsburg, Sotomayor, and Kagan. A dissent was filed by Justice Breyer, who would have affirmed the Federal Circuit ruling finding that 35 U.S.C. 282 codified a laches defense without using the term “laches.” It was Justice Breyer’s belief that the codified defense of unenforceability allowed for a laches defense to patent infringement actions, explaining that in very old cases interpreting the common law laches was at times equated to unenforceability.
Still, this case was hardly difficult to predict. Justice Alito explained, in a rather exasperated way, that the Federal Circuit seemed to ignore previous Supreme Court pronouncements that laches could not be used as a defense to a claim brought during the statute of limitations period because those cases did not specifically deal with a claim of patent infringement. This gave Alito the opportunity to again lecture the Federal Circuit, this time by citing to Judge Hughes’ en banc dissent, which explained that patents and patent cases are not special, and that the law applies equally to patents and patent cases.
First Quality did make an interesting argument about the six-year statute of limitations for patent infringement actions not being a true statute of limitations because it counts backwards from the filing of the complaint rather than forward from the date of infringement. The importance of this nuance seemed completely missed on the majority. Only Justice Breyer really seemed to understand the importance of the argument. Of course, without a laches defense possible, a patent owner could lie in wait for infringement to become widespread and then sue for infringement seeking only the previous six-years worth of damages.
Although I doubt the Supreme Court really understands what they have done, the fact that laches cannot be used as a defense to a patent infringement action brought during the statute of limitations is most definitely a pro-patent decision. Presently patents are much weaker than they have been at any time over the last 36 years. But patent law has always swung like a pendulum, and this low point will not last forever. Thus, in the wake of the Supreme Court’s decision in SCA Hygiene, patent owners would do well to consider forgoing patent enforcement. Instead, allow infringement to accrue and then sue for infringement in several years when the law may be quite a bit more favorable. After all, patents can last for 20 years, the statute of limitations is six-years, and without a laches defense available to infringers you will be able to seek damages going back six years from whenever you choose to sue.
The Supreme Court never seems to be bothered with “legislation-overriding” when they apply their extra-statutory requirements for patent eligibility. Indeed, 35 U.S.C. 101 specifically says that if a claim is directed to a machine, process, manufacture or composition of matter, the claim is patent eligible. But without any statutory support for doing so, or any support in the Constitution, the Supreme Court has added two additional inquiries through what they refer to as the Alice/Mayo framework. It is indeed interesting that the Supreme Court at times can so correctly understand the role of the Judiciary and at other times completely ignore separation of powers, ignore Congress and the statutes they pass and do whatever they want.
Settled expectations meant absolutely nothing to Justice Breyer, or any of the other Justices of the Supreme Court, when they decided AMP v. Myriad Genetics. While the Supreme Court clings to the fiction that Myriad did not overrule Diamond v. Ckakrabarty, there is simply no way to interpret Myriad in any other way than overruling the settled expectations that had been understood by the industry for over 30 years. The ruling in Chakrabarty was that the touchstone for patent eligibility was human intervention. Even though the Supreme Court admitted in Myriad that the claimed subject matter did not exist in nature it was still, nevertheless, invalidated under the law of nature doctrine.
Furthermore, in Mayo v. Prometheus, the Supreme Court flat out ignored the entire statutory scheme enacted by Congress and relied upon by the industry since 1952. The Court also overruled Diamond v. Diehr, at least to the extent that in Diehr then Associate Justice Rehnquist explained that novelty is inappropriate to consider under 35 U.S.C. 101 despite the fact that the word “new” appears in 101. Again clinging to the fiction that no precedent was overruled, in Mayo the Supreme Court intentionally conflated novelty and obviousness with patent eligibility, requiring that decision makers consider whether conventional items are added to claims and proclaiming that the addition of conventional, known steps cannot render a claim patent eligible. Of course, whether something is conventional is an inquiry under 35 U.S.C. 102 and 103, not 101. Even worse, whether something is conventional is now asked absent the application of prior art, apparently divining that knowledge from some higher authority. See Mayo v. Prometheus: A lawless decision by an omnipotent Court.
Indeed, those two quotes from Justice Alito and Justice Breyer are as frustrating as they are comical. Clearly, the Supreme Court is as out of touch with reality as they are with their own precedent.
You finally take down them who are above reproach no matter how clownish their antics.
Do as I say — not as I do.
SCOTUS then proceeded to do exactly that by continuing to read an “abstract idea” exception into 35 USC 101.
There is nothing wrong with saying that one cannot claim a totally nonphysical thing that is not a machine, physical process, manufacture or composition of matter but rather an abstract theory of man (e.g. E=mc^2).
However, to create a hocus pocus circus act that converts a physical MRI machine into an ethereal ghost, that is a whole other set of theatrics. And that is exactly what out hypocritical SCOTeti have and continue to do. Shame.
Gene, on 101, I think “new” was added in ’93 when “compositions” were also added to make clear that discovered compositions were not eligible. Beyond that, 101’s “new” would seem to generally apply only to laws of nature and then only in the abstract, but not in any application.
Before examining the patent right itself, let us see what inventions the law allows to be patented. The field of patentable inventions is comparatively narrow. By far the greater portion of human inventions and discoveries lie ouside the domain prescribed by the patent statutes, which limit the grant of patents, generally speaking, to the industrial arts. For example no protection is affored to the novel, useful, and clearly inventive schemes of conducting business such as systems of banking, sales promotion plans, or methods of merchandising; to the discovery of laws of nature or scientific truths; or to pedagogical methods and other sociological improvements of the highest value.
Asexually reproduced planes, not tuber-propagated.
“These terms are not entirely self-explanatory but we shall not stop to examine into their interpretation.
“Implicit in the words “invention” and “discovery” is the idea of novelty, which, as we saw in the discussion of monopolies, was a characteristic which set apart the patent grant from other kinds of monopoly.
On Diehr, I believe the point the Supreme Court was making is that one could not view the eligibility of the novel parts of the claim without considering the old parts as well. One had to consider the claim as a whole.
As has been abundantly pointed out it you, Congress has already spoken as to process. See 35 U.S.C. 100(b).
Process is simply NOT your desired state of merely a handmaiden of the hard goods statutory categories.
An article by Judge Rich prior to the Act of 1952 will not suffice to explain what Congress did in that Act.
Mr. Heller, do you believe is selective originalism?
p.s I think there are some really good ancient manuscripts on curing medical ills by means of leeches and generous blood letting. A true believer applies his beliefs to himself as well as to others.
Unfortunately, what this tends to promote is a type of “well, I read the case and this is what it means to me” “legal” analysis from people who do not understand the terrain of law and who merely seek out confirmation of pre-existing beliefs and feelings.
Such easily leads to a reduction in critical thinking and a mere unreasonable stance on the law based on emotions.
After this no-more-laches decision, if somebody sues for infringement that has been ongoing every year for the last 10 years, does the SoL operate to just cut off damages from conduct that is more than 6 years prior to suit or would it bar the suit altogether? Would the outcome be different under laches (other than the time period being fuzzy rather than exactly 6 years)?
Ed the Ned’s attempt to add a new witch word to 101. Oy vey.
Chief Justice Rehnquist was a relative giant, as compared to these Seven Dwarfs.
American jurisprudence has indeed deteriorated; and not solely, in the area of patent law.
BTW, Gene, I must also second ‘step’ ‘s opinion of this article. Thank you for explicating the essential principles involved, in such a forthright and accurate analysis.
I love the Seven Dwarfs line!
Joerg, “ongoing every year for the last 10 years…” Infringements are normally not “ongoing.” They occur discretely, as when a product is made or sold. Now, use can be longer, but typically damages do not involve such use.
Statute of limitations generally apply to breaches of contract, or the date the damage from a tort occurs. The limitations period gives one a short number of years to file suit.
But with patent damages, the statute gives one the right to file and collect for any infringements that have occurred within the last six years. Typically, infringements are continuing after suit is filed, and, unless enjoined, will continue after judgment is rendered and collected.
Laches best applies to the equitable remedy, leaving the patent owner only his legal remedy. For ongoing infringements, the court can and does award an ongoing royalty.
One has to be aware that past damages are vested may be assigned separately from an assignment of a patent. In fact, unless an assignment specifically includes an assignment of past damages, the law presumes the past damages were not assigned. Only the owner of the right to collect past damages has the right to bring suit.
Looking at it this way as well, the Federal Circuit’s prior rule made no sense because person delaying bringing suit on past damages may be a party different from the person who owns the patent.
@10 >American jurisprudence has indeed deteriorated; and not solely, in the area of patent law.
This is the understatement of the day. What I find so offensive is that the justices somehow put this high value on themselves and think they are such great boys and girls, and they write stuff like Alice as if we don’t know what they are doing. It offends the intellect and dignity of any honest, ethical attorney in the USA.
It sounds radical, but I really think if this keeps swinging to no law we are going to end up in a very bad place. The reality is when Justices behave like this is breaks the foundation of our society.
I fear that you are quite correct on these points.
Unfortunately it may take many years (decades or more or never) before people wake up and realize what damage has been done and who are the sources of that damage.
We need to establish a Judicial Hall of Shame.
We need to post the portraits of the judicial actors who belong there on the walls with plaques explaining exactly what they did and how it harmed us and our posterity in contradiction the goals of the Preamble to our US Constitution.
Sounds like a nice series for your own site.
Perhaps you can solicit bios to (and with) certain nominees?
We can start with the 101 cases (post 1952), and include the Group of 4 from Bilski, whom, it is worth noting have dropped to a Group of 3 with Justice Stevens retirement and – it should shock no one – that very same three were flagged in the President Clinton released presidential papers as being unduly activist on the bench.
Our Founding Fathers feared a “too-strong” judiciary – and for good reason.
Anon, seriously, with everyone complaining about “abstract,” you would not put Justice Kennedy at the top of your list?
Justice Scalia probably had a very hard time supporting Kennedy because Scalia was always in favor of clear rules that everybody could follow. The majority opinion in Bilski was anything but that.
That is going to be one very full wall! I’m not sure even an Internet wall has the kind of room necessary for all the rightful honorees.
Mr. Heller, the option (and a very clear far worse one) in Bilski was to go with Justice Stevens.
anon, you seem to pretend that Stevens’s dissent, which would have only addressed business method patents, is worse for software patents than the majority that declared the claims in Bilski to be invalid because they were abstract, which now affects not only business method patents but just about everything else. At some point in time, you are going to have to recognize anon, that the so-called victory you think you achieved with the Kennedy majority was hardly a victory at all.
I have been trying to point this out to you since Bilski came down to no avail. You seem to be blind to what happened in Bilski. You seem to think you won, when you did not win.You seem to think that Bilski preserved business method patents when clearly Bilski did not. You seem to think that software patents were protected by Bilski when clearly they were not. You seem to think that Stevens was not your friend but Kennedy was. You have another think coming.
Your constant antipathy towards Kennedy and the majority is bewildering given what actually happened.
The entire court is against your position. It is just that the Kennedy majority is worse than the Stevens dissent.
Stevens’s views were technically a concurrence, and no, Mr. Heller, that was a far worse path.
I am not the one that needs to open their eyes to what the Court has done, and is doing.
That would be you and your desire to place the Court above the Constitution.
It is not just one decision of the Court that evidences this most odd and peculiar desire of yours. It is the pattern of decisions. It is not just one Justice (albeit there are a few more consistently anti-patent: Breyer, for example), but it is the very notion that the Justices place themselves above the law, above the Constitution that is reprehensible.
Perhaps you should try listening, or maybe simply fully commiting to an (inte11ectually honest) dialogue and NOT disappear when the discussion becomes inconvenient to your agenda, as you have done now for several years.
Anon, what I see that there was a split between Republicans and Democrats in Bilski and that you want to side with Republicans because you are Republican or a leaning Republican. You perceive Democrats as anti-patent and will not give up your bias against them. But in this 101 fight, the court generally has been united, producing unanimous decision after unanimous decision, including Benson and Alice. Republicans are equally on board with the notion that math in business methods are not patentable subject matter, but because Congress had passed a statute provided prior user rights perspective business method patents, the Republican majority was unwilling to categorically exclude business method patents of patentable subject matter. That is why they came up with “abstract.” That does not mean however that the ever approved of claims like those of Bilski as being patentable subject matter. They just wanted to provide some legal basis for their not being patentable subject matter other than the fact that they were business methods. That is the true divide between the majority and the concurrence in Bilski.
Thus, if you think that the current status of jurisprudence with respect to 101 is wrong, I would suggest that the problem is with the entire Supreme Court not with one party’s justices. This is not a political issue and never has been.
Furthermore, I think bashing the Supreme Court as a general matter is completely off base. If the general populace would actually understand that patent attorneys are in revolt against the Supreme Court as an institution, that would be the end of patent law as we know it. The people would react with anger. Political divides they understand – but not complete opposition to the Supreme Court.
So where are we? Bashing the Supreme Court as an institution is completely wrong. Your trying to turn the issue into a political issue by demonizing one party is wrong. In general, anon, you are wrong on this is, and always have been. It handicaps you and so many, many ways from seeing the issue for what it is. The Supreme Court is not on your side on this issue.
I do not know if there is a legitimate end run around this issue because I do not think anyone will ever persuade Congress to allow the patenting of abstract ideas once they understand what that means, as if it was not clear just by saying so. Patents are for technology, and software certainly involves technology. But patenting ideas is not patenting technology and is not patenting software.
Yes it means that an MRI machine is not a “machine” per the plain and ordinary meaning of 35 USC 101 but rather a shadowy illusion on the walls of Plato’s allegorical cave.
Please show my your State attorney’s oath.
I would put to you that “bashing” instead of being wrong, is actually your duty.
Until you actually decide to fully commit to a reasoned dialogue, including answering the points put to you, your credibility on these matters remains nil.
Further, Mr. Heller, I have NOT demonized ANY political party in my views on the Supreme Court.
There have been ZERO political party aspersions in my posts.
You simply present a false fact and attack that false fact.
Still further, you (once again) seem confused between the thought of software and software. Software is not the thought of software. Software is not the execution of software. Software is a manufacture by the hand of man, and in fact (regardless of what the Court may think), is a machine component.
You have in the recent past on this blog professed that you have always believed in the patent eligibility of software, but that statement just does not hold up to scrutiny.
As I stated then, and repeat now: your credibility on these matters is zero.
Step, Citizen’s United is a f’n great decision. It is clear that you and I will never see eye-to-eye.
anon, I perceive you doing exactly what I said you we doing. You have been picking out the Dems on the Supreme Court for special treatment.
Your perceptions are only in your mind, and have no nexus with reality.
Basing “voice” on pocketbook (which is the clear takeaway from Citizen’s United) is the bane of the “little guy” and goes hand in hand with the Big Corp attack on the patent system.
Now we are finally getting near to the abstraction flame.
A “corporation” is an abstraction.
It does not actually exist in the real world.
It has no heart, no pulse, no emotions or fears.
If you prick it, it doth not bleed.
If you whip it, it feels no pain.
If you prod it it, it speaks not on its own but is rather a mere puppet whose strings are moved by them who have leveraged control over the fictitious corpus of the corporation.
Human beings have a need for protection so they can speak freely, think freely and worship as they please. The 1st Amendment was put into place by the originalist Founding Fathers to protect those among human beings that they then considered as citizens (not all pigs were equal back then).
There is no way that the originalist Founding Fathers added the 1st Amendment so as to protect the heartless, pulseless and fear-free corporations.
The goal of any totalitarian, from the Marxist to the fascist, is to control the press and the speech the powerful. Individuals have no power even though they might have some free speech. Their free speech can only be communicated to their immediate neighbor. To protest, one must have a megaphone.
The left in the United States has demanded that free speech be regulated. They do this in many different ways, from demanding equal time on broadcast networks that effectively censors any political speech, or by stripping the powerful of of any right to speak at all.
When one says that the press is free to speak but corporations are not, one observes that all press are in fact corporations or held by corporations. The the principal once established that corporations do not have free speech imperils freedom of the press.
In the bottom line, anybody who opposes Citizens United is, in the United States, either a Marxist or a Marxist dupe. This is a fact. The protests against citizens United come entirely from the left.
Unabashedly and unequivocally false, Mr. Heller.
There is a world of difference between Citizen’s United and freedom of the press, as well as free speech.
Please do not attempt to speak on another topic (First Amendment) that you know so little about.
You are only embarrassing yourself with such a lowly tactic.
anon, that is just my opinion. One has to understand Marxism from its roots to understand this issue fully. Regardless, on the right, we also have a good example of control of the press. Think 1932-1945.
Your opinion is baseless. I understand Marxism full well (from its roots, even) and your views here are simply meaningless.
How do you feel about dark money and campaign contributions? Even McCain wants campaign finance reform.
Lucky for us that you are not a totalitarian McCarthyist.
But let’s get back to your debate points about the megaphone.
By that I assume you mean the major network channels on television.
Yes you are correct that all of them are owned and controlled by corporate subsidiaries of larger holding corps.
You lie (misspeak the truth?) when you say “all” the press.
Gene Quinn for example sometimes acts as the “press” (e.g. catching the USPTO as refusing to say who is their official Director during the era of Trumptopia). Many other independent bloggers, tweeters or other form of small time publishers also act as the “press”. And of course they do not have access to unlimited sums of money for holding that public “megaphone”.
It’s not about merely holding the megaphone though. Is it?
It’s about being able to buy and privately own one of the limited number of government officials (Congress critters, bureaucrats, judges etc.). Isn’t it?
It’s about being able to buy and privately own one of the limited number of them who know the dark rhetorical and mind manipulating arts. Isn’t it?
No need to mention that us unpatriotic Marxist sympathizers might dream of conspiracies where foreign governments with untold amounts of oil money might want to buy a piece of our government or main public megaphone and through that means of control do harm to our nation (harm-mah-nation), is there?
step, your antipathy to private ownership betrays you. And no, I am not talking about the ownership of the press as we know it. I am talking about anybody being able to speak about any topic, at any time, in any form. This includes the right to form organizations in order to speak louder through those organizations, and these organizations include political parties. It includes the right of organizations that are nominally are only in business to make money but who have an interest in the public dialogue. Obviously, this would include companies like IBM who have major stakes in patent law, and should have a right to express their opinion even though, for the most part, most of us would not agree with it.
Gene is an example of a person who has a view and, because of his website, he and his fellow posters are able to speak their minds and perhaps persuade people that they are right. It would be unfortunate if Gene were denied any right to speak at all simply because he formed an LLC, or had other investors.
On McCain, is he really a Republican?
This is not antipathy to private ownership – this is antipathy to the machinations of Big Corp.
Once again, Mr. Heller, it is you that does not appear to have a grasp of the issues here.
Your “protest” is just not what the Citizen’s United concern is about.
Citizens United (CU) is not about being able to “speak”.
CU is about being able to spend unlimited amounts of money so that political offices are in effect sold to the highest bidder. The SCt held that the amount of money cannot be restrained because, as they see it, money=speech.
step, the principle is whether corporations, which have the collective voices of their owners, have a first amendment right to speak. They do.
Further, the whole point of having the right to speak is to be heard.
Your thinking is so polluted and backasswards that it would be nigh on impossible for you and I to ever agree on anything. I am for freedom. You are not. You are for rigging outcomes, pure and simple, where the end justifies the means. Pure Marxist or, better, totalitarian, thinking all the way.
You do not have “the principle” correct and you are ignoring what people are telling you as to what the concern really is.
Your ad hominem then, is doubly off base, as it is you that mirror the ad hominem that you dish out.
Do not play those games here, please.
Two mis-truths in just one line.
Them who own a small but controlling percentage (.e.g. 10%), control the Board and President of the Corp. Most “owners” (.e.g. <1% apiece),do not have large enough a percentage to have any voice.
The "owners" can speak for themselves as can John Smith.
Having the corp "speak" for them with its hoarded cash is a double dip.
All pigs on Animal Farm have an equal right to be heard.
But it seems those with the moolah are more equal than others -according to your principles.

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


text:
Rehearing Denied Jan. 10, 1972.
See 404 U.S. 1026, 92 S.Ct. 668.
In connection with a 1964 consolidation by which petitioner railway company absorbed New York, Chicago & St. Louis R. Co. (Nickel Plate), the so-called Sandusky Line, running from Columbus, Ohio, to Sandusky, Ohio, was acquired from the Pennsylvania Railroad system. Respondents were at the time employees of the Pennsylvania on the Sandusky Line. Their work was seasonal because the winter freeze barred navigation on Lake Erie. During those periods junior employees of Sandusky worked at other points on the Pennsylvania's Toledo Division.
In anticipation of the 1964 consolidation, petitioner entered into an agreement with 19 labor organizations for protection of the employees of the several railroads coming into the consolidation, including those on the Sandusky Line. Petitioner agreed to employ 'all employees of the lines involved with the guarantee that they will not be adversely affected in their employment as a result of the proposed transactions or for any reason other than furloughs due to seasonal requirements or a decline in volume of traffic or revenue.' 324 D.C.C. 1, 89 (emphasis added).
Some 96 Sandusky Line employees elected to accept employment with petitioner on the terms and conditions stated. Twenty-five were junior men who had worked seasonally on the Toledo Division and they were the plaintiffs in this action.
The consolidation took place and over a year elapsed during which these trainmen were not paid the compensation promised. Arbitration pursuant to the collective agreement was agreed upon. At that point in 1965 the union and petitioner entered into a new agreement which reduced substantially the benefits of the junior trainmen who had been Sandusky Line employees. The District Court (287 F.Supp. 221; 309 F.Supp. 575) held that this new agreement was not enforceable as a matter of law as it violated the Act under which the consolidation or merger took place. The Court of Appeals affirmed, 436 F.2d 841, with a modification that the damages due respondent-employees should be determined by the District Court, not through arbitration. The case is here on a petition for a writ of certiorari which we granted, 402 U.S. 994, 91 S.Ct. 2171, 29 L.Ed.2d 159.
Section 5(2)(f)1 of the Interstate Commerce Act as amended, 54 Stat. 906, 49 U.S.C. § 5(2)(f), provides that in mergers and consolidations 'the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected' for a period of four years.
It construed the agreements as requiring 'that job eliminations as a result of the proposed acquisition of control be accomplished only through normal attrition.' Ibid.
We disagree with that view. We reviewed the history of § 5(2)(f) in Railway Labor Executives' Assn. v. United States, 339 U.S. 142, 70 S.Ct. 530, 94 L.Ed. 721, and said that 'one of its principal purposes was to provide mandatory protection for the interests of employees affected by railroad consolidations.'4 Id., at 148, 70 S.Ct., at 533. That 'mandatory protection' can be accorded by terms provided by the Commission, or, as is more likely, by provisions of a collective agreement which the Commission adopts or approves as adequate for a minimum of four years (as required by the second sentence) or longer (as allowed by the first sentence) if the Commission so provides. Id., at 154, 70 S.Ct., at 536. The purpose of § 5(2)(f) was not to freeze jobs but to provide compensatory conditions. Brotherhood of Maintenance of Way Employes v. United States, 366 U.S. 169, 175—176, 81 S.Ct. 913, 916—917, 6 L.Ed.2d 206. In that case we noted that the Commission has consistently followed that practice 'in over 80 cases, with the full support of the intervening brotherhoods.' Id., at 177, 81 S.Ct., at 917. And the Commission over and over again has adopted the set of labor conditions contained in collective agreements in discharge of its duty under § 5(2)(f). See Gulf, M. & O.R. Co. Purchase, 261 I.C.C. 405, 434; Erie R. Co. Trackage Rights, 295 I.C.C. 303, 305; Delaware, L. & W.R. Co. Trackage Rights, 295 I.C.C. 743, 755—756.
When there is a collective agreement and the Commission, as here, adopts or approves it, the 'notwithstanding' sentence of § 5(2)(f) is not, as suggested, read out of the Act. The collective agreement then becomes a 'condition' of the Commission's 'approval' of the consolidation under the first sentence of § 5(2) (f) and its provisions are deemed by the Commission to be 'a fair and equitable arrangement to protect the interests' of the employees within the meaning of the first sentence. Thus, the significance of the 'notwithstanding' proviso is that it provides the machinery for the terms of a pre-merger collective agreement and thus supplies the minimum measure of fairness required under the first sentence of § 5(2)(f).
'An agreement made pursuant to the last sentence of Sec. 5(2)(f) may vary the protections afforded by the I.C.C. order, but it may not substantially abrogate employees' rights grounded in an I.C.C. order.' 436 F.2d at 848.
We agree with that view. We also agree that the 1965 implementing agreement5 abrogated the standard of 'compensation' covered by the pre-consolidation agreement6 which had come under the protective order of the Commission.
1. The very language of the statute. Section 5(2)(f) was added to the Interstate Commerce Act by the Transportation Act of 1940, 54 Stat. 906. It is the Act's only provision relating to employee benefits. The thrust of the subsection's third and last sentence, beginning with the exclusionary word 'notwithstanding,' is crucial here.
This plain and unambiguous 'notwithstanding' language, obviously and necessarily directed to and affecting only the two preceding sentences, requires that an agreement entered into by the carrier and the collective-bargaining representative be controlling. The two preceding sentences have application, therefore, only when an agreement 'pertaining to the protection of the interests of said employees' is not executed. In the case before us the carrier and the Brotherhood did execute an agreement of the kind specified, and the 'notwithstanding' language should come into play. The Court today nullifies that sentence and reads it out of the Act.
2. The legislative history. This history is clearly antagonistic to respondents' position here. The Transportation Act of 1940 was no accident or floor-conceived legislation. Indeed, Senator Wheeler was led to 'venture the assertion that the bill was given more careful and more thoughtful consideration than any other bill which has ever come before the Senate in my time.' 86 Cong.Rec. 11270. It emerged from the economically distressed days of the 1930's, from the Washington Job Protection Agreement of 1936 (see Hearings on H.R. 2531 before the House Committee on Interstate and Foreign Commerce, 76th Cong., 1st Sess., vol. 1, p. 231), and from recommendations of President F. D. Roosevelt's Committee of Six (see Hearings, supra, at 259).
What is now § 5(2)(f) was not contained in the original House version (H.R. 4862, 76th Cong., 1st Sess.), or in the original Senate version (S. 2009, 76th Cong., 1st Sess.), or, indeed, in the draft contained in the initial H.R.Conf.Rep.No.2016 of April 26, 1940, 76th Cong., 3d Sess. It surfaced as § 7 of the revised draft submitted with the supplanting H.R.Conf.Rep.No.2832 of August 7, 1940, 76th Cong., 3d Sess.
The new language replaced the earlier Harrington Amendment to the House version. The reasons for the change effected by the conferees are set forth on pages 68—69 of H.R.Conf.Rep.No.2832. Although the comments there do not focus on the 'notwithstanding' sentence, its purpose and significance are apparent from the debates.
'But this provision also contains a clause that permits the industry, through the processes of collective bargaining, to work out its problems in a democratic manner.' 86 Cong.Rec. 5871.
'And, then there was also further uncertainty in the opinion of some representatives of railroad labor as to whether the language of the amendment might not preclude voluntary agreements, between management and men by collective bargaining, from being entered into.
'I want, however, to make it clear that no one who expressed the opinions I have mentioned thought for a moment that any of these possibilities were ever intended by the sponsors of the amendment.' 86 Cong.Rec. 10189.
And Congressman Lea referred to the 'notwithstanding' sentence as 'a provision confirming the right of employees to enter into agreements with railroads to take care of them in case of unemployment as a result of consolidations.' 86 Cong.Rec. 10178.
For me, all this evinces a clear and positive intent on the part of the authors of this legislation to make appropriate provision for employee protection, but explicitly to withdraw Commission-dictated protection whenever the carrier and the union, before merger, voluntarily arrive at protective provisions satisfactory to them. This was the purpose of the 'notwithstanding' clause. Furthermore, it is in accord with the 'strong federal labor policy against governmental interference with the substantive terms of collective-bargaining agreements.' Chicago & North Western R. Co. v. United Transportation Union, 402 U.S. 570, 579 n. 11, 91 S.Ct. 1731, 1736, 29 L.Ed.2d 187 (1971). In my view, the Court's decision today, and the decisions of the District Court and the Court of Appeals, overlook or choose to ignore this purpose and this legislative history. Instead, a result is achieved that is the exact opposite of the congressional intent and policy.
Respondents urge that this Court in the past has recognized the Commission's responsibility to review the sufficiency of third-sentence voluntary agreements and to 'adopt' them as part of its orders, citing Railway Labor Executives' Assn. v. United States, 339 U.S. 142, 70 S.Ct. 530, 94 L.Ed. 721 (1950), and Brotherhood of Maintenance of Way Employes v. United States, 366 U.S. 169, 81 S.Ct. 913, 6 L.Ed.2d 206 (1961). These are the only two decisions the Court produces to support its theory of jurisdiction. Neither is apposite. The former case presented the question whether under sentence two the Commission had the power to precribe protective provisions extending beyond the four-year period to which that sentence refers. The holding was in the affirmative. The Court now makes much of the language of 'mandatory protection' in that decision. But no premerger voluntary agreement had been made there, and the effect of sentence three did not enter the case. Nor had a pre-merger agreement been reached in the latter Maintenance of Way case, where the issue was whether, when the Commission formulates its own protective provisions under sentence two, it must require the carrier to retain employees for the four-year period or simply to guarantee them equivalent compensation. The disagreement between the parties there arose at the Commission hearing on what protective arrangements should be imposed by the Commission in fulfillment of its sentence two duty.
The Commission seems consistently to have taken a position in line with the legislative history noted above, and with the clear meaning of the 'notwithstanding' sentence. See, e.g., Great Northern Pacific & Burlington Lines-Merger-Great Northern R. Co., 331 I.C.C. 228, 278 (1967); Pennsylvania R. Co.-Merger-New York Central R. Co., 327 I.C.C. 475, 544 (1966); Norfolk & Western R. Co. and New York, Chicago & St. Louis R. Co.-Merger, 324 I.C.C. 1, 9, 90 (1964); Missouri Pacific R. Corp. in Nebraska Trustee Operation, 247 I.C.C. 653, 657 (1941).
3. The effect on collective bargaining. The result reached by the Court appears to me to require the ICC and the courts always to intrude upon collective bargaining, by reviewing the sufficiency of its substantive product, and thereby to discourage and to downgrade the collective-bargaining process that has been so firmly established in this area and so steadfastly protected. See, for example, International Association of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). As this case makes only too clear, the general standard of sentence two of § 5(2)(f), namely, 'a worse position with respect to their employment,' permits of widely varying interpretations when applied to specific dilemmas such as that of the respondents here. The Court's holding implies for me that any agreement between the carrier and the Brotherhood pursuant to sentence three of § 5(2)(f), however protective, is nevertheless not to be regarded as controlling if it is subsequently deemed less protective than Commissioners or judges think it should have been. Neither the language nor the legislative history warrants our espousing such judicial overview.
4. The facts and the element of choice. Contrary to the impression one might receive from a quick appraisal of either the opinions below or that of the Court here, it is not at all clear that the Implementing Agreement took from respondents something they had a reasonable expectation of receiving when the merger was approved. On its face, the application to respondents of the 1962 agreement, the language of which ('placed in a worse position with respect to compensation') reflected the generality of § 5(2)(f), is ambiguous. Interpretation of this language necessarily requires an understanding of the parties' original intentions with respect to Sandusky Line employees. Respondents were not without a substantial measure of selection of their future work at the time of the transfer of the Sandusky Line. That choice was between continued employment with the Pennsylvania, with seniority on its Toledo division maintained, or abandoning a part of their working territory and casting their lot with Norfolk & Western as acquirer of the Sandusky Line. Had they chosen to stay with the Pennsylvania, as it appears the parties to the agreement expected they would, respondents would not have brought on their present plight. For personal reasons such as, perhaps, residence in Sandusky (a factor of less than ideal convenience in the off-season regardless of the choice they made), they chose the other course and incurred the risks both of new employment and of the application of the protective provisions to them under the unexpected circumstances. This situation highlights the wisdom of the policy of § 5(2)(f), namely, to leave the solution of their problem to their own Brotherhood (their bargaining representative with the Norfolk & Western as well as with the Pennsylvania), rather than to the benevolent hindsight of the Commission or of a court.
All this propels me to the conclusion that the Commission may not be held to have reviewed and incorporated the 1962 agreement into its 1964 order authorizing the merger. All it did was to state that its duty to see to the protection of employees under § 5(2)(f) was satisfied by the execution of the 1962 agreement. It follows that there was no district court jurisdiction and that the respondents' complaint should have been dismissed.
A synopsis of the legislative history of § 5(2)(f) is contained in an Appendix to our opinion in St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U.S. 298, 315, 74 S.Ct. 574, 583, 98 L.Ed. 1118.
The union that negotiated the Implementing Agreement disagreed with that position as did the union's National Board of Appeals. Both, however, proceeded on a mistaken view of the law.
Respondents refer to Florida East Coast R. Co. Reorganization, 307 I.C.C. 5 (1958), aff'd, 312 I.C.C. 744, aff'd, 171 F.Supp. 512 (S.D.Fla.1959), but the District Court's decision in that case plainly sustained the Commission's determination that because a bankruptcy reorganization was involved, no part of § 5(2)(f) was applicable.

matches:
§ 5
§ 5
v.
§ 5
v.
§ 5
§ 5
§ 5
§ 5
§ 5
§ 7
v.
v.
v.
v.
§ 5
§ 5
§ 5
§ 5
§ 5
§ 5
v.
§ 5