Professor Intisar Rabb and Iran editor Marzieh Tofighi Darian analyze changes made to statutes defining juvenile crimes and punishment under Iran’s new Islamic Penal Code, passed in 2013. The Code follows a traditional dichotomy between ḥudūd fixed crimes and qiṣāṣ retaliatory scheme (which are directly incorporated from classical Islamic law interpretations of criminal law into the modern Code) and taʿzīr discretionary (which are acts left to the government to regulate). But the reform has not been balanced to address modern needs and developments in the link between maturity and accountability. The authors see the different means of assessing children’s maturity as problematic for reform, especially under the hudūd-qiṣāṣ section of the Code. Because crimes in this category are derived from classical Islamic law interpretations, Iranian officials find little room to legally redefine them or their associated punishments. Through a side-by-side comparison of the hudūd-qiṣāṣ and ta’zir sections of the Code, the authors suggest areas for which new attempts at reform may focus.
In May 2013, Iran’s new Islamic Penal Code finally entered into force after five years of debates and deliberations in the Islamic Consultative Assembly (Iran’s name for its Parliament). A review of literature on Iran’s 1991 Islamic Penal Code and the new draft bill reveals that they have been subject to harsh criticism by human rights bodies, NGOs and activists  with most of them focusing on the provisions of qiṣāṣ (retaliatory penalties) and hudūd (fixed criminal sanctions) as those parts of the code that are almost entirely based on the Shīʽī version of sharīʿa. The new Code, in return, has taken steps to respond to some of these critiques. Fairly speaking, most of the issues raised over the years are somehow addressed in the process of drafting the new code. The outcome, however, has not been a complete success. Many of the legislative initiatives did not survive either the formal objections of the Guardian Council or informal pressures of religious forces in Qom.
Focusing on children and juvenile crimes under the new code as an example, I argue that national and international pressures  have resulted in significant but insufficient changes. The dichotomy between sharīʿa-based crimes (hudūd and qiṣāṣ) and customary crimes (ta’zirāt) has impeded the parliament to extend its more favorable and lenient approach under the rules of discretionary penalties (ta’zirāt) to hudūd and qiṣāṣ crimes committed by children and juvenile offenders.
Juvenile punishments have gone through considerable though insufficient changes under the new code. For a long time, there was a single test of puberty to demarcate childhood from adulthood for the sake of criminal responsibility. The default ages of puberty were set at: ages 9 and 15 (respectively for girls and boys), before which no criminal responsibility would apply. Upon reaching that age, both were subject to full criminal culpability. Besides general concerns over the low age of criminal culpability, execution of juvenile offenders has resulted in national and international outcries. In particular the recent instances of qiṣāṣ executions have outraged people who, in the absence of any legal means, have resorted to informal reconciliation campaigns designed to persuade the victims’ family (as the sole rights holder) to withdraw from qiṣāṣ.
In these circumstances, the parliament attempts to modify its rules on juvenile offenders. However, as they still bind themselves to the dichotomy of hudūd-qiṣāṣ punishments (crimes directly incorporated from sharīʿa to the Code) versus ta’zir punishments (crimes left to the government to regulate), the progress has not been even in these two sets of crimes. The Code even uses different terminology. While in ta’zirāt, the Code regulates “children and juveniles”; in hudūd and qiṣāṣ, it adopts the language of “mature” and “immature” referring to the traditional puberty test under sharīʿa.
In the section on ta’zirāt, as shown in Table 1, the gradation of criminal responsibility has replaced a simple test of puberty. As depicted in this table, there have been two major developments (Articles 88-89). First, the Code expands the definition of children to include any person under 18, treating boys and girls equally. Second, the Code provides a substantial reduction of all punishments. It replaces punishments as harsh as more than twenty five years imprisonment with a maximum of five years of detention in the Rehabilitation Center for a first degree ta’zir offence. The significance of this article can only be appreciated by bearing in mind that under the former Code, a 9-year-old girl could potentially be sentenced to life imprisonment.
The text still remains vague as capital punishment based on ta’zir laws are not included in the new Code’s classification. Filling the gap, the Legal Division of Judiciary in an advisory opinion proposed that article 88 (as illustrated in table 1) includes ta’zir executions as well. That division further argued that, by way of comparison, capital punishments based on ta’zir laws should be equated to first degree ta’zir offences.
On the other hand, according to the parliamentarians, hudūd and qiṣāṣ crimes due to their immutable nature under sharīʿa, do not allow much room for legislative maneuver. Hudūd, as defined in article 15 “are those punishments for which the grounds, types, amount and conditions of execution are specified in sharīʿa.” The decision to implement the retaliatory penalties of qiṣāṣ rules is solely left to the wish of victim’s family with no room for judges to exert discretion. In regulating hudūd and qiṣāṣ, the language of “mature” and “immature” appears again to reinforce the puberty test under sharīʿa. As illustrated in table 2, the category of immature persons now enjoys graded responsibility (two groups of under 12 years of age and 12 to 15 years of age according to article 88, note 2). This change, though at first seemingly progressive, should not deceive the reader. The term “immature” suggests that this provision is, in fact, only applicable to boys, since according to an unrebuttable legal presumption, no girl over 12 years of age can be immature to take advantage of these provisions for reduced responsibility. In fact, if the article was equally applicable to both sexes, then it would be a mitigation of punishment for girls and aggregation of punishment for boys. Since according to sharīʿa and the Islamic Penal Code, any girl over the age of 9 is mature and subject to full criminal responsibility. On the other hand, boys reach maturity at the age of 15. The Legal Division of Judiciary, confirming this conclusion, stated in an advisory opinion that article 147’s determination of the age of puberty is definite such that article 88, note 2 applies only to boys. Therefore, not only does the note exclude girls from eligibility for reduced punishment, but it also increases the punishments for boys who were previously totally absolved of any criminal responsibility prior to the age of 15 (in the old Islamic Penal Code). The latter part of the note takes the regression another step further by providing correctional measures (though not punishment) for any child under 12 years of age. This leaves the question of minimum age requirement for a child to be involved in a judicial process unresolved.
Handing over to parents or natural or legal guardians while taking promises to correct and educate the child or youth and taking care of their good behavior.
Handing over to other natural or legal persons by ordering the measures such as referral of the child to a social worker, educational institutes etc.
Warning or taking a written promise not to commit an offence again.
 See, e.g., Mohammad Hossein Nayyeri, New Islamic Penal Code of Islamic Republic of Iran: An overview, (Human Rights Unit in Iran, University of Essex, Research Paper Series, 2012); Human Rights Watch, Codifying Oppression: An Assessment of Iran’s New Penal Code (2012).
 Some activists and NGOs, admitting the influence of international pressures on Iran’s parliament, claim that Iran is misleading the international community by exaggerating the effectiveness of changes made under the new code. See e.g., Seed Kamali Dehghan, Iran ‘Misleading International Community’ with Death Penalty Claims (Feb. 13, 2012, 01:29 AM),http://www.theguardian.com/world/2012/feb/13/iran-misleading-death-penalty-claims.
 CRC Committee in its ‘Concluding Observation on Iran’ urged Iran to immediately suspend the execution of all death penalties on persons who committed a crime before the age of 18. CRC/C/15/ADD.254 (Mar. 31, 2005). Three General Assembly resolutions, reminding Iran’s obligations under article 6 of ICCPR and article 37 of CRC, has requested Iran’s government to abolish death penalty for children under the age of 18. G.A. Res. 62/168, ¶ 3 (d), U.N. Doc. A/RES/62/168 (Dec. 18, 2007); G.A. Res. 63/191, ¶ 3 (c), U.N. Doc. A/RES/63/191 (Dec. 18, 2008); G.A. Res. 64/176, ¶ 4 (c), U.N. Doc. A/RES/64/176 (Dec. 18, 2009). Note that all these resolutions were exactly adopted at a time when the new draft bill was being discussed in the parliament.
 One of the MPs in an interview said: “The issue of juvenile executions has preoccupied us. We are not indifferent to world public opinion about this matter, and we are trying to find a solution” Farnaz Fassihi, Debate over Child Executions Roils Iran’s Presidential Vote (May. 29, 2009, 11:59 PM), http://www.wsj.com/articles/SB124355320443064445.
It is in these circumstances that the first draft bill written by judiciary and submitted to the parliament explicitly defines a child as a person under 18 years old. This definition was subsequently deleted. Article 414-1, Parliament Documents, Term 8, Year 1st, 06/29/2008.
 Interestingly the Guardian Council raised no objection with regard to these extensive changes. This means that the jurists did not find any of these changes either in ta’zirāt or hudūd and qiṣāṣ sections to be at variance with sharīʿa.
 Qānūn-i Mujāzāt-i Islāmī [Islamic Penal Code] Tehran 1370 , art. 49 (Iran). The age of maturity, however, is defined in Civil Code, art.1210, note 1. Qānūni MadanĪ [Civil Code] Tehran 1314 , art. 1210 (Iran).
 For an overview of the situation of juvenile execution under the new draft see Nayyeri, New Islamic Penal Code of Islamic Republic of Iran: An overview, at 10-12; Human Rights Watch, Codifying Oppression: An Assessment of Iran’s New Penal Code, at 19-23.
 See, e.g., HRW, Iran: Another Execution of Juvenile Offender (Oct. 13, 2009), http://www.hrw.org/news/2009/10/13/iran-another-execution-juvenile-offender; HRW, Iran: Secret Execution of Juvenile Offender (May. 1, 2009), http://www.hrw.org/news/2009/05/01/iran-secret-execution-juvenile-offender.
 Under Iran’s Islamic Penal Code, qiṣāṣ punishment (retaliation) applies to intentional bodily harms including homicide. In each case, the punishment shall be equal to the harm caused. Qiṣāṣ is a private claim and it is up to the victim’s heirs (vali-e dam) to either forgive, ask for blood money (diyah) or execute the offender.
 The new Code, for the first time, classifies ta’zir punishments into 8 categories starting with more than twenty five years imprisonment for the first degree ta’zir punishment.
 1393/3/10 [May. 31, 2014] Advisory Opinion 537/93/7, Legal Division of the Judiciary (Iran),http://edarehoquqy.ir/Default.aspx tabid=4988&articleType=ArticleView&articleId=87698.
In this case, responding to an inquiry of a lower court, the Legal Division stated that a juvenile facing the death penalty for drug- related crimes shall be subject to article 89 (regulating ta’zir punishments for juveniles between the age of 15 and 18 as shown in table 1) of the new Islamic Penal Code rather than provisions of the Illegal Drug Code. Case No. 92-1/186-1522.
 Qānūn-i Mujāzāt-i Islāmī [Islamic Penal Code] Tehran 1392 , art. 15 (Iran).
 Qānūn-i Mujāzāt-i Islāmī[Islamic Penal Code] Tehran 1392 , art. 347 and 418 (Iran).
 Qānūn-i Mujāzāt-i Islāmī [Islamic Penal Code] Tehran 1392 , art. 88, note 2 and 91 (Iran).
 Some Shīʽī jurists such as Ayatollah Yousef Saaeni believe that the age of maturity is 13 for girls and other than hudūd and qiṣāṣ crimes, the government has the authority to increase the age of criminal responsibility to 18 years old. Ayatollah Yousef Saanei, Age and Criminal Responsibility in Ayatollah Saanei’s View (Aug. 20, 2014, 10:04), http://marjaema.com/?p=4&id=220.
 When two or more lower courts issue opposing decisions on a same matter of law, the Supreme Court may convene in its full body and declare one of the opinions correct. This decision is law and binding on all other courts.
 In compliance with article 272 § 7 of Criminal Procedure Code.
 1393/9/11 [Dec. 2, 2014], Case No. 737, Raye Vahdati Raviiahi Divani Aali Kishvar [Unification Decision of the Supreme Court] (Iran), http://www.rrk.ir/Laws/ShowLaw.aspx?Code=2460.
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In July 2015, the U.S. Patent and Trademark Office updated its patentable subject matter guidance in response to public comments on the 2014 interim guidance on subject matter eligibility (IEG). The July 2015 update contains a new set of computer-related examples, discusses issues raised by the public comments on the IEG, and is intended to help the examining corps in applying the 2014 IEG during the patent examination process.
But, the USPTO’s interpretation of patentable subject matter law in the July 2015 update ignores many of the comments made from the patent stakeholder community in response to the IEG and adds even more subjectivity to a § 101 analysis. Following are 10 issues, specifically seven cons and three pros, of the USPTO’s July 2015 update.
1. Prima facie case of subject matter ineligibility and evidence.
The USPTO states that because patent subject matter eligibility is a question of law and courts do not rely on evidence to establish that a claim is directed to a judicial exception, no evidence is required for a § 101 rejection. However, the Administrative Procedure Act mandates the production of evidence by government agencies, such as the USPTO. Because the USPTO is bound by the APA, the examining corps is not permitted to use official notice in rejections in the same manner that judges utilize judicial notice in court proceedings. In forming a § 101 rejection, the examining corps should be required to make a prima facie showing on all claim elements with evidence to show a claim is directed to a judicial exception or well understood, routine, or conventional.
Granted, preemption is not a standalone test. But, preemption is the policy motivating the two-part Mayo test, and the U.S. Supreme Court has rejected the notion of a single, bright line rule for patent eligibility. Therefore, evidence from applicants showing that their claims do not preempt a judicial exception should be considered as a probative factor in determining patent eligibility.
3. Use of the nonprecedential SmartGene decision.
In the July 2015 update, the USPTO routinely uses the SmartGene decision to support its contentions that computer-related examples 21 and 22 in Appendix 1 are directed to abstract ideas. However, SmartGene is a nonprecedential case, and therefore never established a holding that should be applied to other cases. In addition, the claims in examples 21 and 22 are overgeneralized to set up a false analogy to the SmartGene decision. The example 21 analysis states: “It is similar to other concepts that have been identified as abstract by the courts, such as … comparing new and stored information and using rules to identify options in SmartGene.” The USPTO’s repeated use of the nonprecedential SmartGene decision is a serious problem and should be withdrawn.
4. The analyses of the examples fail to identify which claim recitations are in the abstract idea and which are not.
Using the methodology of the July 2015 update, examiners can include many claim elements within an abstract idea, and then disregard those elements in the Mayo Step 2B “significantly more” analysis. In examples 21 and 22, the USPTO’s § 101 analyses fail to look at several elements under both Steps 2A and 2B. An analysis that does not treat each claim element under either of the Mayo steps violates the USPTO’s notice obligations and makes prosecution onerous. Examiners should provide a basis in the record for each claim element under Steps 2A or 2B.
5. The USPTO’s analyses of the examples provide several descriptions of what the claims are allegedly directed to.
The analysis of example 21 uses three different descriptions of what the claim is directed to. The USPTO first states that “[t]he claim recites the steps of receiving, filtering, formatting and transmitting stock quote information.” Next, the USPTO states that “[i]n other words, the claim recites comparing and formatting information for transmission.” Finally, the USPTO states “[t]his is simply the organization and comparison of data.” Similarly, example 22 contains four different descriptions of what the claim is allegedly directed to.
A Step 2A analysis that uses multiple descriptions of what a claim is directed to is confusing and forces applicants to rebut whether each of the directed to descriptions are actually judicial exceptions. Even if the applicant is able to successfully rebut one description, the examiner may then turn to the more generalized description. The USPTO should use a single directed to description in a § 101 analysis.
6. In example 23 (graphical user interfaces), the USPTO concludes that broader claim 1 is not directed to an abstract idea, but the USPTO concludes that narrower claim 4, which contains all of the elements of claim 1 and additional elements, is directed to an abstract idea.
The § 101 analysis of this narrower claim will require applicants to clear a higher § 101 bar for dependent claims than independent claims. Granted, the USPTO ultimately determines that claim 4 adds significantly more, but this example may cause the examining corps to erroneously believe that any “calculating” recitation means a claim is directed to a judicial exception under Step 2A. Because the graphical user interface calculations of example 23 are not akin to the mathematical algorithms (e.g., representative of a law of nature) that courts have previously found abstract, the USPTO should determine that claim 4 of example 23 is not directed to an abstract idea.
The Diehr court never discussed the mental steps doctrine. In fact, Justice John Paul Stevens’ dissent complained that “Justice Douglas’ opinion for a unanimous Court made no reference to the lower court’s rejection of the mental-steps doctrine or to the new technological-arts standard.” For the USPTO to suggest that the Diehr court made a finding that these claim elements are mental steps is erroneous, and therefore this statement should be retracted.
In example 21, the USPTO’s Step 2B analysis of claim 2 states that “although some of the limitations when viewed individually do not amount to significantly more than the abstract idea (such as storing subscriber preferences or transmitting an alert) … when looking at the ordered combination of the elements, the invention as a whole amounts to significantly more than simply organizing and comparing data [the alleged abstract idea].” Similarly, the USPTO’s analysis of claim 2 in example 25 (based on Diehr) states that “the claim recites additional limitations that when viewed as an ordered combination amount to significantly more than the second abstract idea (the critical thinking steps of calculating and comparing the timing data).” This language in examples 21 and 25 should help applicants rebut an examiner that is improperly dissecting a claim to support a § 101 rejection.
2. The USPTO correctly determines that example 26 (internal combustion engine) is eligible for the streamlined eligibility analysis.
Example 26 recites an internal combustion engine with various mechanical parts. The claim further recites a control system that “calculate[s] a position of the exhaust gas recirculation valve.” The USPTO’s conclusion that there is no need to perform the full eligibility analysis is in line with the preemption policy motivating the two-part Mayo test. As a result of the streamlined eligibility analysis in the IEG, applicants that are outside of the e-commerce art units of Technology Center 3600 have not faced a barrage of § 101 rejections in wake of the July 2015 update.
3. The USPTO states that “computers and computer operations are not automatically subjected to an eligibility analysis” in example 27 (system software — Basic Input/Output System).
Example 27 recites a series of steps for loading a Basic Input/Output System on a local computer system from a remote storage location. The USPTO concludes that transferring control of the processor operations to that BIOS code would “clearly amount to significantly more than any potential recited exception.” Examiners in computer-focused Technology Centers 2100, 2400, and 2600 will hopefully use example 27 as a basis for determining that a § 101 rejection does not need to be raised when issuing first office actions.
The USPTO’s July 2015 update to its previous patent eligibility guidance is an improvement, but still contains several flaws that need to be addressed in future iterations. The errors discussed above, including the role of evidence, use of nonprecedential decisions, and presence of several descriptions of what a claim is directed to, are in need of correction and should be the focus of future versions of the guidance. With public comments due on Oct. 28, 2015, the USPTO will almost certainly refine its patent subject matter eligibility guidance in the near future.
Sunjeev Sikand is a patent attorney in RatnerPrestia’s Washington, D.C., office and vice chairman of the U.S. Patent Office Practice Committee of the Intellectual Property Owners Association.
 See July 2015 Update at 6.
 See Dickinson v. Zurko, 527 U.S. 150, 152 (1999); In Re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
 In re Gartside, 203 F.3d 1305, 1313 (Fed. Cir. 2000); see also USPTO Memo on “Procedures for Relying on Facts Which are Not of Record as Common Knowledge or for Taking Official Notice” (Feb. 21, 2002) (hereinafter, “USPTO Official Notice Memo”).
 Bilski v. Kappos, 561 U.S. 593 (2010) (citing three textbooks on finance in demonstrating that “hedging is a fundamental economic practice”); Alice Corp. v. CLS Bank Int’l., 573 U.S. __, 134 S. Ct. 2347 (2014) (citing a textbook from 1896 in demonstrating that “the concept of intermediated settlement is ‘a fundamental economic practice long prevalent’”); See Comments of Intellectual Property Owners Association on the Section 101 Interim Eligibility Guidance (Mar. 16, 2015) at 2.
 See July 2015 Update at 8.
 See DDR Holdings L.L.C. v. Hotels.com, L.P., 773 F.3d 1245, 1259 (Fed. Cir. 2014); CLS Bank Int’l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 1281 (Fed. Cir. 2013) (Lourie, J.).
 SmartGene, Inc. v. Advanced Biological Labs., SA, No. 2013-1186 (Fed. Cir. 2014).
 See Appendix 1 to July 2015 Update at 3, 6.
 USPTO Official Notice Memo at 2; Hyatt v. Dudas, 492 F. 3d 1365, 1369 (Fed Cir. 2007).
 See Federal Register, Vol. 79, No. 241, p. 74624, col. 3; MPEP § 2106(III).
 Diamond v. Diehr, 450 U.S. 175, 201 (1981) (Stevens, J., dissenting).
 Robert Sachs, “An Update on Section 101 Rejection Rates at the USPTO,” Law360 (Oct. 21, 2015) (stating that “Tech Center 3600 covers both e-commerce and non-e-commerce work groups, and it is the former that contributes to the high § 101 rejection rates”).


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TOPMOTIVE Group uses your personal data for the purpose of direct marketing purposes. You have the right to object at any time to the processing of personal data concerning your person for such marketing purposes. This includes profiling to the extent that it is related to such direct marketing. If you object to processing for direct marketing purposes, TOPMOTIVE Group will no longer process your personal data for such purposes.
This website can be used without providing personal data. Other provisions may apply to the use of individual services on our site, which will be explained separately below. Your personal data (such as name, address, e-mail, telephone number, etc.) are processed by us only in accordance with the provisions of German data protection law. Data are personal when they can be clearly assigned to a specific natural person. The following provisions inform you in this respect about the type, scope and purpose of the collection, use and processing of personal data.
We would like to point out that Internet-based data transmission has security gaps; a complete protection against access by third parties is therefore impossible.
We use so-called cookies on our site to detect multiple visits to our website by the same user / owner of the Internet connection. Cookies are small text files that your Internet browser stores and saves on your computer. They serve to optimise our website and our services. These are mostly so-called "session cookies", which are deleted after the end of your visit.
In some cases, however, these cookies provide information in order to automatically recognize you. This recognition is based on the IP address stored in the cookies. The information obtained in this way serves to optimize our offers and to provide you with easier access to our site.
- Browser type and version - Used operating system - Website from which you visit us (referrer URL) - Website you visit - Date and time of your access - Your Internet Protocol (IP) address.
These anonymous data are stored separately from any personal information that you may provide and therefore do not allow any conclusions to be drawn about a particular person. They are evaluated for statistical purposes in order to optimise our website and our services.
We use Google Analytics, a web analysis service of Google Inc. 1600 Amphitheatre Parkway, Mountain View, CA 94043 USA, hereinafter "Google". Google Analytics uses "cookies", which are text files placed on your computer, to help the website analyse how users use the site.
The information generated by these cookies, such as the time, place and frequency of your visit to the website, including your IP address, is transmitted to Google in the USA and stored there.
We use Google Analytics on our website with an IP anonymisation function. In this case, Google will already reduce your IP address within member states of the European Union or in other signatory states to the Agreement on the European Economic Area and thereby make it anonymous.
Google will use this information to evaluate your use of our site, to compile reports on website activity for us and to provide other services relating to website and Internet use. Google may also transfer this information to third parties if this is required by law or if third parties process this data on behalf of Google.
We use the component "Google Maps" from Google Inc. 1600 Amphitheatre Parkway, Mountain View, CA 94043 USA, hereinafter "Google".
Each time you access the Google Maps component, Google sets a cookie to process user settings and data when you view the page that includes the Google Maps component. As a rule, this cookie is not deleted when you close your browser, but expires after a certain time, unless you delete it manually beforehand.
To protect input forms on our site, we use the service "reCAPTCHA" of Google Inc. 1600 Amphitheatre Parkway, Mountain View, CA 94043 USA, hereinafter "Google". By using this service it can be distinguished whether the corresponding input is of human origin or is abusive through automated machine processing.
To our knowledge, the referrer URL, the IP address, the behaviour of website visitors, information about operating system, browser and dwell time, cookies, display instructions and scripts, the user's input behaviour and mouse movements in the "reCAPTCHA" checkbox area are transmitted to "Google".
Google uses the information obtained in this way, among other things, to digitise books and other printed matter and to optimise services such as Google Street View and Google Maps (e.g. house number and street name recognition).
The IP address transmitted within the scope of "reCAPTCHA" will not be merged with other Google data unless you are logged in to your Google account at the time you use the "reCAPTCHA" plug-in. If you want to prevent this transmission and storage of data about you and your behaviour on our website by "Google", you must log out of "Google" before you visit our site or use the reCAPTCHA plug-in.
We use components of the provider facebook.com on our website. Facebook is a service of Facebook Inc, 1601 S. California Ave, Palo Alto, CA 94304, USA. Every time you visit our website, which is equipped with such a component, this component causes the browser you are using to download a corresponding representation of the Facebook component. Through this process, facebook is informed about which specific page of our website is currently being visited by you.
If you access our site while logged in to Facebook, Facebook uses the information collected by the component to identify which specific page you are visiting and assigns this information to your personal account on Facebook. For example, if you click the "I like" button or make comments, this information is transferred to your personal user account on Facebook and stored there. Furthermore, the information that you have visited our site will be forwarded to Facebook. This happens regardless of whether you click on the component or not.
We use components of the XING.com network on our site. These components are a service of XING AG, Dammtorstraße 29-32, 20354 Hamburg, Germany. Every time you access our website, which is equipped with such a component, this component causes the browser you use to download a corresponding representation of the XING component.
We use components of the LinkedIn network on our website. LinkedIn is a service of LinkedIn Corporation, 2029 Stierlin Court, Mountain View, CA 94043, USA. Every time you visit our website, which is equipped with such a component, this component causes your browser to download a corresponding display of the LinkedIn component.
This process will provide LinkedIn with information about the specific page of our website being visited at the time. If you click the LinkedIn “Recommend button” while being logged in to your LinkedIn account, you will be able to provide links to the contents of our pages in your LinkedIn profile. This enables LinkedIn to assign the visit of our pages to your LinkedIn user account.
If your application is rejected, the data transmitted by you will be deleted automatically two months after you are notified that your application has been unsuccessful. This does not apply if longer storage is necessary due to legal requirements (e.g. the burden of proof according to the General Equal Treatment Act, AGG) or if you have expressly agreed to longer storage in our database.
In accordance with the Federal Data Protection Act, you can contact us free of charge with questions regarding the collection, processing or use of your personal data and the correction, blocking, deletion or revocation of a given consent. We would like to point out that you have the right to have incorrect data corrected or personal data deleted if there is no legal obligation to retain such data.
The "Supplementary information" for the use of this website was created by the privacy statement generator of the law firm Weiß & Partner.

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The protection of your privacy in personal data processing is an important priority for robatherm (“we”, “our”, “us”), which we would like to take into consideration all of our business processes. We process your personal data exclusively in compliance with data protection regulations. In addition to general information (Part 1), this Privacy Notice also includes information concerning the processing of personal data in connection with the use of our website (Part 2), information concerning the processing of your personal data if you are our customer, an interested party (Part 3) or our supplier (Part 4), and information concerning the processing of your personal data as an applicant at our company (Part 5).
• pursuant to Art. 77 GDPR to lodge a complaint with a supervisory authority.
In the event that you have questions that are not answered in this privacy statement or if you would like to have more in-depth information for any matter in this regard, please contact us at any time through the contact information listed above.
We do not use purely automated processing operations to reach a decision.
robatherm implements technical and organizational security measures to protect your personal data against accidental or unlawful deletion, modification, or loss, and against unauthorized forwarding or unauthorized access.
This Privacy Notice was last updated in April 2018. It may become necessary to modify this privacy statement due to the continuous development of our website or modified statutory or official requirements. The respective current Privacy Notice is available under https://www.robatherm.com/en/privacy-notice.
When accessing our website through telecommunication services, communication-oriented information (data (e.g. Internet protocol address, referrer, URL, browser) or usage-oriented data (e.g. information concerning start and duration of use and the telecommunication services used by you) are automatically generated by technical means. These generally do not allow us to determine the identity of the website user.
Such data is collected and used to ensure a seamless connectivity of the website and convenient use of our website. This information is furthermore used to evaluate system security and stability and for other administrative purposes. Such data is processed within the scope of our legitimate interests (Art. 6 (1) Clause 1 lit. f GDPR).
Such data will be erased if they are no longer required for the stated purposes.
Our websites and the services offered thereon are supported by technical service providers on our behalf (e.g. hosting). Personal data collected through this website is generally not transmitted unless specified otherwise below. This also applies to a transfer to third countries or international organizations.
This website utilizes cookies. Cookies are text files which a website places on your hard drive. Cookies do not harm your computer and do not contain any viruses.
Information concerning the specific terminal device used by you is stored in a cookie. However, this does not allow us to gain direct knowledge of your identity.
We also use temporary cookies to optimize user-friendliness. They are stored on your terminal device for a specific duration. If you visit our website again, we can automatically recognize that you have previously visited us as well as your previous entries and settings, so that you do not have to enter these again.
Data processed through cookies is necessary for the stated purposes to safeguard our legitimate interests and third-party interests pursuant to Art. 6 (1) Clause 1 lit. f GDPR.
Google uses this information on behalf of the operator of this website to evaluate your use of the website, to create reports concerning website activities, and to provide other services in connection with website use and Internet use vis-à-vis the website operator. The IP address transmitted from your browser within the scope of Google Analytics is not combined with other data held by Google. You can prevent the placement of cookies through a corresponding setting of your browser software; however, this may result in your inability to fully use all functions of our website.
You can also prevent collection of the data generated by the cookie and relating to your use of the website (including your IP address) by Google and the processing of this data by Google by downloading and installing the browser plug-in available at the following tools.google.com/dlpage/gaoptout.
Alternatively to the browser plug-in, you can click on this link to prevent data collection through Google Analytics on this website in the future. This places an opt-out cookie on your terminal device. If you delete your cookies, you must once again click on the link.
More detailed information concerning data protection at Google Analytics is available at http://www.google.com/intl/de/analytics/privacyoverview.html.
The information in the following subsections relates exclusively to the processing of data from customers and interested parties, possibly also outside of our website. Unless specified otherwise below, the general information from the remaining parts (in particular Part 1) apply.
Data is processed for the purpose of creating offers and processing orders and delivering goods. Data is also processed for invoicing and payment. Data is processed for the performance of the contract to which you are a party or in order to take steps at your request prior to entering into a contract (Art. 6 (1) Clause 1 lit. b GDPR).
Data is also processed for the purpose of a credit check. Our interest in this consists of reviewing the solvency of a customer in order to safeguard against payment defaults. This processing safeguards our legitimate interests (Art. 6 (1) Clause 1 lit. f GDPR), whereby overriding interests of the data subject do not exist.
For the rest, data is processed for the purpose of after sales service, i.e. in order to support you in your use of our products even after a purchase. In this regard, data is processed for the performance of the contract to which you are a party (Art. 6 (1) Clause 1 lit. b GDPR) or insofar as such pertains to direct marketing measures based on our legitimate interest (Art. 6 (1) Clause 1 lit. f GDPR), and subject to consent possibly to be obtained in the individual case (Art. 6 (1) Clause 1 lit. a GDPR).
If you have, in the course of an inquiry and/or the sale of one of our products, provided us with your e-mail address, we use the e-mail address to send you information about similar products and services.
You can object to this processing at any time and free of charge.
The legal basis for the processing of this personal data is - notwithstanding separate consent (Art. 6 (1) Clause 1 lit. a GDPR) - our legitimate interest (Art. 6 (1) Clause 1 lit. f GDPR) in such direct marketing.
The provision of the data listed in Section 11 is not required by law. However, we cannot conclude a contract with you as a customer unless you provide this data, because this data is necessary to conclude a contract.
We are processing and retaining your data only for as long as necessary to provide our services. Data retention may, among other things, continue for as long as claims can be asserted against us from the provided services and/or for as long as we may require the relevant data for the purpose of a legal defense. We are also frequently obligated by law to retain the data for a longer period, generally between 6 to 10 years.
For the purposes of the credits check listed in Section 11 and 12, our credit insurer will receive customer data (company name and address) as well as information concerning the value of goods to be insured so that the insurer can create of an offer for us.
For the rest, we are commissioning external service partners for services (e.g. rectification of defects, startup operation) at our customers. For this purpose, the service partners will receive customer data (e.g. name of the customer, contact information, address). This is for the performance of the contract to which you are a party (Art. 6 (1) Clause 1 lit. b GDPR), whereby we conclude all necessary contracts with our partners.
The information in the following subsections relate exclusively to the processing of supplier data. Unless specified otherwise below, the general information from the remaining parts (in particular Part 1) apply.
Processing is for the purpose of creating inquiries, reviewing offers, and ordering. The data is also processed for invoicing and payment. Our interest in this regard is that we are able to order products from you. This processing safeguards are legitimate interests (Art. 6 (1) Clause 1 lit. f GDPR).
For the rest, processing is for the purpose of invoice auditing. Our interest in this regard is that we do not pay any erroneous invoice amounts. This processing is necessary for performance of the contract (Art. 6 (1) Clause 1 lit. b GDPR).
Your data is also processed for the purpose of payment. This is necessary for the performance of the contract to which you are a party (Art. 6 (1) Clause 1 lit. b GDPR).
The provision of the data listed in Section 16 is not required by law. However, we cannot conclude a contract with you as a supplier unless you provide this data, because this data is necessary to conclude a contract.
We are processing and retaining your data only for as long as necessary for the provision of our services. Data retention may, among other things, continue for as long as claims can be asserted against us based on the provided services and/or for as long as we may require the relevant data for the purpose of a legal defense. We are also frequently obligated by law to retain the data for a longer period, generally between 6 to 10 years.
The information in the following subsections relate exclusively to the processing of data processed within the scope of a job application. Unless specified otherwise below, the general information from the remaining parts (in particular Part 1) apply.
Your data is collected only to fill positions within robatherm. We keep your data confidential and do not pass it on to third parties.
• if relevant for the advertised position: fitness for duty.
Your personal data is generally collected directly from you within the scope of the application process, in particular from the job application documents, the job interview, and the staff questionnaire.
We may also receive data from third parties, (e.g. employment agencies).
We also process your personal data that we permissibly gain from publicly accessible sources (e.g. professional networks).
Data processing chiefly serves to establish an employment relationship. The predominant legal basis for this is Art. 88 (1) GDPR in conjunction with Section 26 (1) German Federal Data Protection Act (new) (Bundesdatenschutzgesetz (neu), BDSG).
Your data is processed exclusively to fill the specific position for which you have applied.
The processing of health data may also be necessary for the assessment of your working capacity pursuant to Art. 9 (2) lit.h GDPR in conjunction with Section 22 (1) lit.b BDSG.
If, in the event of a rejection, you wish to be included in our pool of applicants or if your application is to be taken into consideration for other vacancies in the company/group, we require a declaration of consent from you for this purpose.
If you are hired, we transfer your application records to your personnel file. After the end of your employment, the personal data that we are legally obligated to retain will continue to be stored. This generally is the based on statutory retention obligations and obligations to provide proof, which, among other things, are stipulated in the German Commercial Code (Handelsgesetzbuch, HGB) and the German Tax Code (Abgabenordnung, AO). According to these, retention periods are up to 10 years. Personal data may also be retained for the duration during which claims can be asserted against us (statutory limitation period from 3 or to up to 30 years).
In the event of a rejection, your application documents will be deleted no later than 6 months after the completion of the application process, unless you have granted us consent for a longer retention period (applicant pool).
Within our company, only the persons and functions (e.g. departments) that are involved in the decision concerning your hire will receive your personal data.
We do not transfer your applicant data to third countries.
To consider your application, we require from you the personal data necessary for the decision or to establish the employment relationship. A statutory obligation to provide data does not exist.
Your online application data will be encrypted and transferred with state-of-the-art technology. If you transmit an unsolicited online application to robatherm or apply for a current vacancy, your application data will be stored in our software-based applicant management system.
From processing technology aspects, your written application will be handled like an online application. Your original documents will be returned to you at the latest upon conclusion of the staffing process.
The protection of your privacy in personal data processing is an important priority for robatherm (“we”, “our”, “us”), which we would like to take into consideration in all of our business processes. We process your personal data exclusively in compliance with data protection regulations.
We implement technical and organizational security measures to protect your personal data against accidental or unlawful erasure, modification, or loss, and against unauthorized forwarding or unauthorized access.
When downloading the app, the required information is transmitted to the App Store, in particular the user name, email address, and customer number for your account, the time of download, payment information, and individual device ID number. We have no influence over this collection of data and we are not responsible for it. We process the data only insofar as such is necessary for downloading the mobile app to your mobile end device.
• Language and version of the browser software.
This serves to safeguard our legitimate interests, the legal basis for this is Art. 6 (1) Clause 1 lit. f GDPR. Our interest in this regard is the ability to offer a comfortable use of functions to users.
Data will be erased if the data is no longer required for the stated purposes.
This data is collected to prevent abuse because it allows individual users to be excluded from further use. Name and first name are also requested to enhance the user experience. This is covered by our legitimate interests, Art. 6 (1) Clause 1 lit. f GDPR. Company and address are voluntary information and can be used by the user for customization. Processing is also based on our legitimate interests and also serves to enhance the user experience. This is necessary to safeguard our legitimate interests. The legal basis for this collection is Art. 6 (1) Clause 1 lit. f GDPR.
Data will be erased if it is no longer required for the stated purposes. Data retention may, among other things, continue for as long as claims can be asserted against us based on the provided services and/or for as long as we may require the relevant data for the purpose of a legal defense.
The collection of this data is not required by law or contractually, nor is it obligatory, however, mandatory information is necessary for registration. Non-provision of data will result in your inability to register. As a consequence, the full functionality of the app will not be available to you. A data exchange across multiple devices will then, for example, not be possible.
If you establish contact with us by email or through a contact form, your email address, and - if provided by you - your name and your telephone number will be stored by us to answer your questions. This is necessary for the performance of the contract to which you are a party or in order to take steps prior to entering into a contract (Art. 6 (1) Clause 1 lit. b GDPR) or to safeguard our legitimate interests (Art. 6 (1) Clause 1 lit. f GDPR). Our legitimate interest in this is a satisfactory processing of your inquiry.
We will erase the data collected in this regard after retention is no longer necessary.
We are transmitting data for the purpose of data backup to our service provider tarienna GmbH and deposit a backup copy in a bank deposit box. Our interest in this is to prevent loss of data. Our legitimate interest is the legal basis for this transmission (Art. 6 (1) Clause 1 lit. f GDPR).
No data will be transmitted to countries outside of the European Union or to an international organization.
This app uses Google Analytics, a web analysis service of Google LLC (“Google”). Google Analytics allows us an analysis of your use of the app. For this purpose, information about your use of this app will be generated. The information is transmitted to and stored at a Google server in the USA. If IP anonymization is activated in the app, your IP address is first abbreviated by Google within member states of the European Union or other contracting parties to the Agreement on the European Economic Area. The full IP address is transmitted to a Google server in the USA and abbreviated there only in exceptional cases. IP anonymization is activated.
Google uses this information on behalf of the operator of this app to evaluate your use of the app, to create reports concerning activities, and to provide other services in connection with app use and Internet use vis-à-vis the app operator. The IP address transmitted from your browser within the scope of Google Analytics is not combined with other data held by Google.
More detailed information concerning data protection at Google Analytics is available at https://support.google.com/analytics/answer/6004245?hl=en.
This privacy notice is valid as of April 2018. It may be necessary to modify this privacy statement due to continued development of our website or modified statutory or official requirements. The respective updated privacy notice is available at https://www.robatherm.com/en/privacy-notice.
• Transient cookies: These are erased automatically if you close our mobile app. It includes specifically session cookies. Session cookies store a so-called session ID, which can be used to allocate various inquiries to your mobile app. This allows a recognition of your mobile end device when you next use our mobile app. Session cookies are erased if you log out or close the app.
• Persistent cookies: These are automatically erased after a prespecified period that may differ depending on the cookie.
You can configure the settings of your mobile operating system and of the app as you wish and, e.g., refuse acceptance of third party cookies or all cookies. However, in such a case you may not be able to use all functions of our mobile app.

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Justia US Law US Codes and Statutes Oklahoma Statutes 2016 Oklahoma Statutes Title 70. Schools §70-24-100.4. School Safety and Bullying Prevention Act - Discipline of child - Prohibition of bullying at school and online – Policy requirements.
§70-24-100.4. School Safety and Bullying Prevention Act - Discipline of child - Prohibition of bullying at school and online – Policy requirements.
70 OK Stat § 70-24-100.4 (2016) What's This?
15. Establish a procedure whereby a school may request the disclosure of any information concerning students who have received mental health, substance abuse, or other care pursuant to paragraph 14 of this subsection that indicates an explicit threat to the safety of students or school personnel, provided the disclosure of the information does not violate the requirements and provisions of the Family Educational Rights and Privacy Act of 1974, the Health Insurance Portability and Accountability Act of 1996, Section 2503 of Title 12 of the Oklahoma Statutes, Section 1376 of Title 59 of the Oklahoma Statutes, or any other state or federal laws regarding the disclosure of confidential information.
B. In developing the policy, the district board of education shall make an effort to involve the teachers, parents, administrators, school staff, school volunteers, community representatives, local law enforcement agencies and students. The students, teachers, and parents or guardian of every child residing within a school district shall be notified by the district board of education of its adoption of the policy and shall receive a copy upon request. The school district policy shall be implemented in a manner that is ongoing throughout the school year and is integrated with other violence prevention efforts.
C. The teacher of a child attending a public school shall have the same right as a parent or guardian to control and discipline such child according to district policies during the time the child is in attendance or in transit to or from the school or any other school function authorized by the school district or classroom presided over by the teacher.
D. Except concerning students on individualized education plans (IEP) pursuant to the Individuals with Disabilities Education Act (IDEA), P.L. No. 101-476, the State Board of Education shall not have authority to prescribe student disciplinary policies for school districts or to proscribe corporal punishment in the public schools. The State Board of Education shall not have authority to require school districts to file student disciplinary action reports more often than once each year and shall not use disciplinary action reports in determining a school district's or school site's eligibility for program assistance including competitive grants.
E. The board of education of each school district in this state shall have the option of adopting a dress code for students enrolled in the school district. The board of education of a school district shall also have the option of adopting a dress code which includes school uniforms.
3. Publish a report annually on the State Department of Education website regarding the number of documented and verified incidents of bullying in the public schools in the state.
Added by Laws 1971, c. 281, § 6-114, eff. July 2, 1971. Amended by Laws 1982, c. 326, § 2; Laws 1985, c. 329, § 13, emerg. eff. July 30, 1985; Laws 1995, c. 241, § 2, eff. July 1, 1995; Laws 1999, c. 320, § 34, eff. July 1, 1999; Laws 2000, c. 232, § 11, eff. July 1, 2000; Laws 2002, c. 149, § 3, eff. Nov. 1, 2002. Renumbered from § 6-114 of this title by Laws 2002, c. 149, § 5, eff. Nov. 1, 2002. Amended by Laws 2008, c. 216, § 6, eff. Nov. 1, 2008; Laws 2013, c. 311, § 3; Laws 2014, c. 345, § 2, eff. Nov. 1, 2014.


1 Since carriers or other utilities with the right of eminent domain, the use of public property, special franchises, or public contracts, have many points of distinction from other businesses, including relative freedom from competition, they may for purposes of taxation be classed separately. P. 303 U. S. 578.
2. Utilities subject to supervision by the New York Department of Public Service, including those engaged in transportation of persons or property and those furnishing gas, electricity, steam, water, communication by telegraph or telephone, were subjected by local laws of the City of New York to privilege taxes of 3% of their gross incomes. The laws were enacted for short periods under authority from the state legislature, and the proceeds were earmarked for use exclusively in relieving the unemployed in the City. Transit companies operating in the City assailed the levies under the due process and equal protection clauses of the Fourteenth Amendment, and the contract clause of the Federal Constitution.
(1) It is not a valid objection that the taxpayers are defined by reference to the classification previously established by the New York Public Service Law, rather than by specific reference in the taxing law itself to the character of their businesses. P. 303 U. S. 579.
(2) Separate classification of the utilities taxed is justifiable, upon the grounds that they enjoy a special measure of statutory protection from competition; that they are required to make financial reports to public authority which are of administrative convenience in ascertaining and collecting such taxes, and that the revenues of such utilities, furnishing indispensable services, may be subject to relatively little fluctuation, even in times of depression. P. 303 U. S. 580.
discriminatory against them as compared with the other utilities or with business in general. P. 303 U. S. 581.
The legislature is not required to make meticulous adjustments in an effort to avoid incidental hardships.
(4) Taxes on gross receipts, rather than on net income, are justified upon the ground of convenience in administration and because of the close relation of the volume of transactions in a business to cost of its supervision and protection by government. Stewart Dry Goods Co. v. Lewis, 294 U. S. 550, distinguished. P. 303 U. S. 582.
(5) The fact that the tax is levied for the specific purpose of relieving conditions (unemployment) to which the utilities taxed bear no special relation does not render it unconstitutional. P. 303 U. S. 584.
(6) Within the meaning of the rule that classification must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, the "object" in this case is the raising of the revenue. That an appropriation of the funds for relief is part of the same legislation is not significant; it is not constitutionally necessary that the classification for the tax be related to the appropriation of the proceeds. P. 303 U. S. 585.
(7) The laws under consideration do not violate the due process clause of the Fourteenth Amendment. P. 303 U. S. 587.
3. To sustain a claim of contractual tax exemption, the language must be clear and express. P. 303 U. S. 593.
4. In deciding a case under the contract clause, this Court determines for itself the existence and meaning of the contract, but, in so doing, it leans toward agreement with the courts of the State and accepts their judgment unless manifestly wrong. P. 303 U. S. 593.
assessed or which may hereafter be assessed against the Lessee in connection with . . . the operation of the . . . Railroad."
At the time of making the contract, the taxing power of the City was confined to special assessments for public improvements and ad valorem taxes on real estate and on special franchises granted by the City. Later, under new power acquired from the legislature, the City levied a privilege tax of 3% of the gross receipts.
(1) That the collection of such tax was not in violation of the contract, but in accordance with its express terms. Pp. 303 U. S. 588, 303 U. S. 591.
(2) The contract may not be construed as limiting the taxes deductible from gross receipts to those which the City was authorized to impose when the contract was made. P. 303 U. S. 591.
275 N.Y. 258, 454; 9 N.E.2d 858; 11 id. 293, affirmed.
Appeals from judgments of the Supreme Court of New York, entered on remittitur from the Court of Appeals. These were actions to recover from the City large sums exacted as taxes. The Special Term of the Supreme Court held the taxes void; the Appellate Division affirmed, 251 App.Div. 710; 296 N.Y.S. 1006, 1012; the Court of Appeals upheld the taxes and reversed the judgments.
the City of New York," an excise tax shall be paid by every "utility" doing business in the City of New York during 1935 and the first six months of 1936.
"shall be deposited in a separate bank account or accounts, and shall be available and used solely and exclusively for the purpose of relieving the people of the City of New York from the hardships and suffering caused by unemployment."
raised by it is conclusive of those advanced by the Brooklyn and Queens Transit Corporation.
The New York Rapid Transit Corporation operates rapid transit railroads in the City of New York under a contract known as contract No. 4, dated March 19, 1913, made pursuant to the New York Rapid Transit Act Laws 1891, c. 4, as amended, between its predecessor (New York Municipal Railway Corporation) and the City. As a common carrier engaged in the operation of rapid transit railroads, the corporation is under the supervision of the transit commission, the head of the metropolitan division of the state department of public service. Accordingly, but under protest, it paid the taxes imposed by the Local Laws set out above for the months January, 1935, to June, 1936, inclusive. It brought this action against the City of New York to recover the amounts paid, § 1,408,697, with interest, on the ground that the Local Laws are unconstitutional. The case arises on the City's motion to dismiss the complaint.
The Supreme Court of New York, Special Term, denied the motion to dismiss the complaint, and found that the Local Laws denied equal protection because of gross inequality of burden in comparison with other utilities. This order was affirmed by the Appellate Division of the Supreme Court, without opinion, on a 3-2 vote (251 App.Div. 710, 296 N.Y.S. 1006). The Court of Appeals reversed (275 N.Y. 258, 9 N.E.2d 858), upheld the Local Laws against all attacks, and ruled that the complaint did not state a cause of action. Appeal was taken to this Court under § 237(a) of the Judicial Code, 28 U.S.C. § 344(a).
The corporation challenges the Local Laws as violative of the equal protection and due process clauses of the Fourteenth Amendment and the contracts clause of article 1, § 10, of the Constitution.
I. Classification. No question is or could be made by the corporation as to the right of a state, or a municipality with properly delegated powers, to enact laws or ordinances based on reasonable classification of the objects of the legislation or of the persons whom it affects. "Equal protection" does not prohibit this. Although the wide discretion as to classification retained by a Legislature often results in narrow distinctions, these distinctions, if reasonably related to the object of the legislation, are sufficient to justify the classification. German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 233 U. S. 418; Atchison, T., S. & F. R. Co v. Matthews, 174 U. S. 96, 174 U. S. 105; Giozza v. Tiernan, 148 U. S. 657. Indeed, it has long been the law under the Fourteenth Amendment that "a distinction in legislation is not arbitrary if any state of facts reasonably can be conceived that would sustain it." Rast v. Van Deman & Lewis Co., 240 U. S. 342, 240 U. S. 357; Borden's Co. v. Baldwin, 293 U. S. 194, 293 U. S. 209; Metropolitan Casualty Co. v. Brownell, 294 U. S. 580, 294 U. S. 584. "The rule of equality permits many practical inequalities." Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 170 U. S. 296; Breedlove v. Suttles, 302 U. S. 277, 302 U. S. 281; Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 301 U. S. 509. "What satisfies this equality has not been, and probably never can be, precisely defined." Magoun v. Illinois Trust & Savings Bank, supra, 170 U. S. 293.
as respects occupation taxes." Oliver Iron Mining Co. v. Lord, 262 U. S. 172, 262 U. S. 179; Brown-Forman Co. v. Kentucky, 217 U. S. 563, 217 U. S. 573; Southwestern Oil Co. v. Texas, 217 U. S. 114, 217 U. S. 121, 217 U. S. 126; see Ohio Oil Co. v. Conway, 281 U. S. 146, 281 U. S. 159.
Since carriers or other utilities with the right of eminent domain, the use of public property, special franchises, or public contracts, have many points of distinction from other business, including relative freedom from competition, especially significant with increasing density of population and municipal expansion, these public service organizations have no valid ground by virtue of the equal protection clause to object to separate treatment related to such distinctions. Carriers may be treated as a separate class (compare Seaboard Air Line v. Seegers, 207 U. S. 73) and, as such, taxed differently or additionally. Southern R. Co. v. Watts, 260 U. S. 519, 260 U. S. 530. This Court has approved the adoption of modes and methods of assessment and administration peculiar to railroads (Kentucky Railroad Tax cases, 115 U. S. 321, 115 U. S. 337), and upheld tax rates for railroads differing from those on other property, and as between railroad taxpayers, Michigan Central R. Co. v. Powers, 201 U. S. 245, 201 U. S. 300; Ohio Tax cases, 232 U. S. 576, 232 U. S. 590; Columbus & G. Ry. Co. v. Miller, 283 U. S. 96. Similarly, we have explicitly recognized that a state may subject public service corporations to a special or higher income tax than individuals or other corporations. Atlantic Coast Line R. Co. v. Daughton, 262 U. S. 413, 262 U. S. 424. The corporation concedes this general right to set apart the utilities in New York for taxation.
excise tax, however, should be made by specific reference to the character of the business to be taxed, and that it is arbitrary to make taxability depend on whether a person is subject to the supervision of a commission. Valid reason for the definition utilized appears from the fact that the Local Laws merely adopted the classification previously established in the New York Public Service Law (N.Y.Laws 1910, c. 480, as amended), which had selected those offering several kinds of public services, including the transportation of persons and property (§ 25), [Footnote 3] and made them subject to the supervision of the department of public service.
tax [Footnote 5] which might properly have been taken into account by the City's Legislature. See Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 301 U. S. 511, and cases cited. The Legislature may reasonably have conceived that the revenues of utilities furnishing indispensable services are subject to relatively little fluctuation, even in depression times, and reasonably have shaped its tax system accordingly.
gross income yields a higher percentage of profit, that the operation and maintenance expenses of these corporations are higher in relation to gross receipts than those of other utilities, the ratio of net income to gross receipts, lower. It is said to be highly discriminatory to classify these railroads apart from other businesses, or in the same group as other utilities. The differences from business are not enough, and from other utilities too great, to justify this attempted classification, which sets them apart from business as a whole and yokes them with other utilities.
The disadvantages complained of as to fare limitations are applicable only to the corporation, a single member of a class of utilities. It is quite fortuitous that this particular corporation must seek adjustments in fare in a peculiar way. "The legislature is not required to make meticulous adjustments in an effort to avoid incidental hardships." See Great Atlantic & Pac. Tea Co. v. Grosjean, 301 U. S. 412, 301 U. S. 424.
"If the accidents of trade lead to inequality or hardship, the consequences must be accepted as inherent in government by law, instead of government by edict."
Fox v. Standard Oil Co., 294 U. S. 87, 294 U. S. 102.
with disputes about permissible deductions, it has greater certitude and facility of administration than the net income tax, an important consideration to taxpayer and tax gatherer alike. And the volume of transactions indicated on the taxpayer's books may bear a closer relation to the cost of governmental supervision and protection than the annual profit and loss statement. In Clark v. Titusville, 184 U. S. 329, we rejected an equal protection objection to a license tax on merchants, which we said was "a tax on the privilege of doing business, regulated by the amount of sales, and . . . not repugnant to the Constitution of the United States." And we have heretofore had occasion to remark that gross receipts from an occupation constitutes an "appropriate measure of the value of the privilege" of engaging in that occupation. Western Live Stock v. Bingaman, 303 U. S. 250; American Manufacturing Co. v. St. Louis, 250 U. S. 459, 250 U. S. 463; Maine v. Grand Trunk Ry. Co., 142 U. S. 217, 142 U. S. 228.
of sales," the graduated tax under consideration exacted not only a larger gross amount, but one "larger in proportion to sales" (p. 294 U. S. 564).
upon one particular class of business, even though that class is in no different position in relation to the object sought to be accomplished than business in general."
"that there is a distinction between the ordinary excise tax with no specific purpose attached thereto, and a tax which is a part of a plan for the accomplishment of a specified object."
The "object of the legislation," to the taxpayer, is apparently the relief of unemployment.
"such a relationship between the subject of the tax (the exercise of the right to employ) and the evil to be met by the appropriation of the proceeds (unemployment)."
P. 301 U. S. 522. See also Cincinnati Soap Co. v. United States, 301 U. S. 308, 301 U. S. 313. The corporation suggests that, in the Carmichael case, there was a special relationship between the class taxed and the purpose for which the proceeds were spent, but the Court expressly said that this was something "the Constitution does not require." Page 301 U. S. 523. There need be no relation between the class of taxpayers and the purpose of the appropriation.
was said that "the object of the act . . . simply is to secure revenue." In Stebbins v. Riley, 268 U. S. 137, Royster Guano Co. v. Virginia, 253 U. S. 412, and Air Way Electric Appliance Corp. v. Day, 266 U. S. 71, the rule contended for by the corporation was recognized, but with no intimation that the "object" was considered to be the purpose for which the proceeds of the tax were spent. The "object" of the Local Laws under consideration, as in the case with most tax statutes, was obviously to secure revenue. In some cases, a classification of taxpayers may be upheld as having a fair and substantial relation to a constitutional nonfiscal object (Alaska Fish Salting & By-Products Co. v. Smith, 255 U. S. 44, 255 U. S. 48; Quong Wing v. Kirkendall, 223 U. S. 59, 223 U. S. 62-63; Aero Mayflower Transit Co. v. Georgia Public Service Commission, 295 U. S. 285, 295 U. S. 291), but it is not constitutionally necessary that the classification be related to the appropriation. In United States v. Butler, 297 U. S. 1, also relied upon by the corporation, the attack on the federal statute was successful because the tax was said to be a part of an unconstitutional scheme to regulate production through expenditures. It was not held invalid because there was no relation between the taxpayer and the appropriation. See Cincinnati Soap Co. v. United States, supra. We conclude, therefore that the provisions of the legislation earmarking the funds collected are not of importance in determining whether or not the classification of the challenged acts is discriminatory.
What we have said in showing that the Local Laws do not deny the equal protection of the laws also disposes of the corporation's contention that the Local Laws constitute a deprivation of due process, as being measured without regard to the net income of or ruinous effect on the taxpayers, and as laying on a particular class a burden which should be borne by all.
IV. Contracts Clause. [Footnote 8] The corporation contends that, in contravention of the Constitution, Article 1, § 10, the Local Laws impair the obligation of the contract known as contract No. 4, entered into March 19, 1913, between its predecessor and the City, under which it operates its owned and leased properties in New York.
"1. Rentals actually paid by Lessee under leases approved by the Commission;"
"2. Taxes [the full provision as to 'taxes' is set forth later];"
"3. Operating expenses exclusive of maintenance;"
"4. Charges for maintenance of both the Railroad and the Existing Railroads [Railroad refers to the system to be constructed by the City; Existing Railroads refers to the company-owned lines as they existed at the time of execution of the contract];"
"5. Charges for depreciation of the Railroad, the equipment, and the Existing Railroads;"
"6. To be retained by the Lessee: 1/4th of $3,500,000, representing the average income from operation of the Existing Railroads;"
"7. To be retained by the Lessee: 1/4th of 6% per annum on (a) the Lessee's contribution to cost of construction of the Railroad, (b) cost of equipment furnished by the Lessee, (c) cost of extensions and additional tracks constructed by the Lessee, and (d) cost of reconstruction of Existing Railroads (out of which quarterly payments the Lessee is required to amortize such costs);"
"8. To be retained by the Lessee: 1/4th of the actual annual interest payable by Lessee upon the cost of additional equipment, plus an amortization charge;"
"9. To be paid to the City: 1/4th of the annual interest payable by it upon its share of the cost of construction of the Railroad plus an amortization charge;"
"10. To be paid to the City: 1/4th of the annual interest payable by the City upon cost of construction of additions to the Railroad plus an amortization charge;"
"11. 1% of the gross receipts, to be paid into a contingent reserve fund. "
"In connection with the above allocation provisions, Contract No. 4 provided (Art. LI, p. 66) that if in any quarter the gross receipts should be insufficient to meet the various obligations and deductions above recited, the deficits should be cumulative, and payment thereof should be made in the order of priority above set forth."
"may not, in the exercise of its governmental power, subject appellant to the payment of a tax on or measured by the gross receipts of the combined system of railroads,"
"by providing in specific terms for the disposition and allocation of the entire gross receipts, the parties necessarily precluded any kind of tax or charge by the City which would directly and specifically alter such disposition and allocation, to appellant's prejudice, except insofar as any such tax or charge may clearly be said to have been provided for in the contract provisions as to the disposition of gross receipts."
The corporation further complains that the tax payments deprive it of "a substantial part of the interest and sinking fund allowance to which it was entitled" under deductions Nos. 7 and 8 set out above. The loss thus suffered was alleged to total more than $600,000.
"We must look for the exemption in the language of the instrument, and if we do not find it there, it would be going very far to insert it by construction."
is made must be clear and unmistakable." At the present term, the Court has reiterated that contracts of tax exemption are "to be read narrowly and strictly." Hale v. State Board, 302 U. S. 95, 302 U. S. 109. See also Pacific Co. v. Johnson, 285 U. S. 480, 285 U. S. 491; Puget Sound Power & Light Co. v. Seattle, 291 U. S. 619, 291 U. S. 627.
"all taxes . . . of every description (whether on physical property, stock or securities, corporate or other franchises, or otherwise) assessed or which may hereafter be assessed against the Lessee in connection with . . . the operation of the . . . Railroads."
The taxes under discussion clearly come within its terms.
provision limited to taxes of the type which the City could have imposed in 1913.
There is no reason to limit the ordinary meaning of words used in a contract by men prepared to invest under its terms.
"A business proposition involving the outlay of very large sums cannot be and is not taken by the parties concerned according to offhand impressions; it is scrutinized phrase by phrase and word by word."
New York ex rel. Interborough Rapid Transit Co. v. Sohmer, 237 U. S. 276, 237 U. S. 284; cf. 57 U. S. Co. v. Debolt, 16 How. 416, 57 U. S. 435.
"any new form of tax or additional charge that may be imposed by any ordinance of the City or resolution of the Board upon or in respect of the franchise . . . shall be deducted from the compensation payable to the City hereunder."
which were a part of the land. Where one relies upon an exemption from taxation, both the power to exempt and the contract of exemption must be clear. Any doubt or ambiguity must be resolved in favor of the public."
Admitting that, with respect to a franchise contract silent as to taxes, the City may validly impose a license tax on the privilege of doing business, since "surrender of the state's power to tax the privilege is not to be implied from the grant of it," Puget Sound Power & Light Co. v. Seattle, 291 U. S. 619, 291 U. S. 627, it is urged by the corporation that here the City is violating the affirmative covenants of a contract -- namely, the provisions for allocation of revenue. The contention is made that these provisions preclude an "alteration" by virtue of a gross receipts tax.
This Court, in construing a contract to determine whether or not legislation is violative of its provisions within the meaning of the contract clause of the Constitution, will examine for itself the existence and meaning of the contract, as well as the relation of the parties and the circumstances of its execution. Appleby v. City of New York, 271 U. S. 364, 271 U. S. 379-380; Funkhouser v. J. B. Preston Co., 290 U. S. 163, 290 U. S. 167; Violet Trapping Co. v. Grace, 297 U. S. 119, 297 U. S. 120. But, of course, in so doing, we "lean toward agreement with the courts of the state, and accept their judgment as to such matters unless manifestly wrong." Hale v. State Board, 302 U. S. 95, 302 U. S. 101; Tampa Waterworks v. Tampa, 199 U. S. 241, 199 U. S. 243-244; Southern Wisconsin Ry. Co. v. Madison, 240 U. S. 457, 240 U. S. 461. In this case, the Court of Appeals of New York, 275 N.Y. 258, 268, 9 N.E.2d 858, 861, has determined that "the right to tax cannot be lost by such tenuous implication" -- i.e., on the theory that the tax enables the City to secure a portion of the gross income in contravention of the contract.
We see no reason for disagreeing with the conclusion of the Court of Appeals of New York upon this point.
In effect the corporation is urging that a constructive condition restricting the City's power of taxation should be incorporated in the contract, by speculation as to what the parties must necessarily have intended, despite the longstanding rule that exemptions must be "clear and unmistakable." Erie R. Co. v. Pennsylvania, 21 Wall. 492, and other cases, all cited supra.
The corporation professes to dread an interpretation of the contract and the legislation which will put it "wholly at the mercy" of the City, under which the corporation's "gross receipts would be disposed of not as Contract No. 4 provides, but as the City may from time to time in its wisdom determine." The corporation is not deprived of its right to resist on constitutional or legal grounds whatever tax or assessment may be imposed upon it or its property. The City cannot lay a gross receipts tax on the corporation unless it selects a class of taxpayers which meets the requirement of the equal protection to the laws. The provisions of the contract as to taxes are certainly not sufficiently explicit to justify us in denying to the City the right to collect such taxes as those involved in this litigation. The danger which the corporation sees from what it considers to be a violation by legislation of its contract rights is a danger which every utility, with a franchise which does not protect its property from additional taxation, must endure.
does in the present case. The act established a "fund commissioner" and provided that the railroad company should pay over to this commissioner "all the gross earnings and daily receipts." It was provided that the commissioner should first pay amounts required for "actual current expenditures;" should then make other specified deductions, and lastly, should apply any excess to certain first mortgage bonds and then against the railroad's debt to the state.
Subsequently, the State Constitution was amended to provide that an annual tax of 10 percent of the gross receipts should be levied on the North Missouri Railroad Company and two other named corporations. The state court held that the earlier statute constituted a contract, but considered the payment of taxes to fall within "current expenditures in carrying on the ordinary business." In this Court, the company argued that the tax constituted a violation of this contract, since it overturned the allocation of receipts and had the effect of converting the state from a junior creditor to a first mortgagee.
"Further examination of those provisions is certainly unnecessary, as it is too plain for argument that they do not afford the slightest support to the views of the plaintiffs. On the contrary, they are entirely silent upon the subject of taxation, and fully justify the remarks of the State court when they say that the subject of taxation forms no part of the contract contained in the act under consideration. "
"Nothing is said about taxation, and it does not seem to have entered into the contract between the parties, but was obviously left where the law had placed it before the act was passed, nor was any provision made for the payment of taxes unless it may be held that the disbursements for that purpose may fairly be included in such as are required to pay the current expenditures in carrying on the ordinary business of the corporation."
* Together with No. 436, Brooklyn & Queens Transit Corp. v. City of New York, also on appeal from the Supreme Court of New York.
Utilities subject to the supervision of the department of public service pay three percent. of their "gross income," as defined by § 1(c); the other utilities pay three percent. of their "gross operating income," as defined by § 1(d).
N.Y.Laws 1934, c. 873, authorized any city of a million inhabitants to impose for purposes of unemployment relief any tax within the powers of the state Legislature, including a tax on gross income or gross receipts of those doing business in the city. The act specifically provided (§ 2) that the revenues shall be deposited in a separate bank account and used solely for the relief purposes. The authority granted by this statute expired December 31, 1935, but was extended, with certain restrictions not material here, until July 1, 1936, by N.Y.Laws 1935, c. 601.
Others are the production and/or furnishing of gas, electricity, steam, and water, communication by telegraph or telephone, omnibus transportation. New York Public Service Law, §§ 64, 78, 89-a, 90, 60.
New York Public Service Law, Laws 1910, c. 480, as amended: § 53 (railroad; street railroad); § 63-d (omnibus); § 68 (gas; electricity); § 81 (steam); § 89-e (water); § 99(1) (telephone and telegraph).
Operating revenues are reported by railroads. See, e.g., Transit Commission, Summary of Reports of Rapid Transit, Street Surface Railway and Bus Companies operating in the City of New York for the Quarter April-June, 1935, and for the Fiscal Year Ended June 30, 1935; id., Quarter, April-June, 1936, and for the Fiscal Year Ended June 30, 1936.
City of New York, Local Law No. 16, p. 106, of 1925.
The argument is applicable in No. 436. There, the limitation on fare exists in a franchise, alleged in the complaint to be beyond the regulatory power of the transit commission.
"An Act to enable, temporarily, any city of the state having a population of one million inhabitants or more to adopt and amend local laws, imposing in any such city any tax and/or taxes which the legislature has or would have power and authority to impose to relieve the people of any such city from the hardships and suffering caused by unemployment and to limit the application of such local laws. . . ."
"§ 2. Revenues resulting from the imposition of taxes authorized by this act shall be paid into the treasury of any such city and shall not be credited or deposited in the general fund of any such city, but shall be deposited in a separate bank account or accounts and shall be available and used solely and exclusively for paying the principal amount of any installment of principal and of interest due during the aforesaid period on account of the ten-year serial bonds sold to obtain moneys to pay for home relief and work relief in any such city in the month of November, nineteen hundred thirty-three, and for the relief purposes for which the said taxes have been imposed under the provisions of this act."
"A local law to relieve the people of the city of New York from the hardships and suffering caused by unemployment and the effects thereof on the public health and welfare, by imposing an excise tax on the gross income of every person doing business within such city and subject to supervision of either division of the department of public service, and of any and all other utilities doing business within such city to enable such city to defray the cost of granting unemployment work and home relief"
"§ 14. Disposition of revenues. -- All revenues and monies resulting from the imposition of the taxes imposed by this local law shall be paid into the treasury of the city of New York and shall not be credited or deposited in the general fund of the city of New York, but shall be deposited in a separate bank account or accounts, and shall be available and used solely and exclusively for the purpose of relieving the people of the city of New York from the hardships and suffering caused by unemployment including the repayment of moneys borrowed for such purpose."
In No. 436, the legislation is not challenged as an impairment of an obligation of contract. The Brooklyn and Queens Transit Corporation "does not operate under Contract 4, but under street railroad franchise from the City."
"Taxes, if any, upon property actually and necessarily used by the Lessee in the operation of the Railroad and the Existing Railroads, together with all taxes or other governmental charges of every description (whether on physical property, stock or securities, corporate or other franchises, or otherwise) assessed or which may hereafter be assessed against the Lessee in connection with or incident to the operation of the Railroad and the Existing Railroads. Also such assessments for benefits as are not properly chargeable to cost of construction or cost of equipment."