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R. Miškinis, B. Malyško, D. Smirnov, E. Urba, A. Burokas, P. Laud, M. Oit, F. Zuliani, M. Messineo, A. Fanelli, J. Nawrocky, P. Nogas, L. Bandzaityte, V. Simanavicius. BALTICTIME - the demonstration of open source technologies for legal and accountable digital time-stamping. In P. Cunningham, M. Cunningham, eds., Collaboration and the Knowledge Economy: Issues, Applications, Case Studies, v. 5 of Information and Communication Technologies and the Knowledge Economy, pp. ?-?. IOS Press, 2008.
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Defense at Helsinki Univ. of Techn., 25 Apr. 2008. Supervisor K. Nyberg (Helsinki Univ. of Techn.), opponent S. Vaudenay (EPF Lausanne).
Defense at Tallinn Univ. of Techn., 15 Dec. 2008. Supervisor J. Tepandi (TUT), consultant P. Laud (Cybernetica AS). Opponents C. Fournet (Microsoft Research, Cambridge), V. Vene (Univ. of Tartu).
Defense at Tallinn Univ. of Techn., 21 June 2010. Supervisors A. Buldas (Tallinn Univ. of Techn.), J. Willemson (Cybernetica AS). Opponents S. Mauw (Univ. of Luxembourg), T. Tammet (Tallinn Univ. of Techn.).
Defense at Univ. of Tartu, 20 May 2011. Supervisor A. Buldas (Tallinn Univ. of Techn.). Opponents B. Schoenmakers (Eindhoven Univ. of Technology), H. Lipmaa (Tallinn Univ.).
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Defense at Univ. of Tartu, 28 Feb. 2013. Supervisor S. Laur (Univ. of Tartu). Opponents N. P. Smart (Univ. of Bristol), B. Schoenmakers (Eindhoven Univ. of Techn.).
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matches: V. v. V. V. V. V.


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The assessee claimed an amount of Rs. 2,24,204/- as foreign traveling expenses in respect of its Directors’ wives who traveled with the Directors while they were on business tours. The Assessing Officer noted that the assessee had given a note in the auditors report that this expenditure was incurred under the contractual obligations and under normal business practice. The Assessing Officer rejected the same as being unsatisfactory.
Whether a Director’s spouse has traveled with him for business purpose or not, is essentially a question of fact not only in respect of each year but in respect of each tour. One visit may be for business purpose and another visit may not be for any business purpose whatsoever.
The burden of proving the same is, however, on the assessee. The respondent has not established such a case.The question is, therefore, answered in favour of the appellant/Department. The decision of the Assessing Officer to delete the disallowance is upheld.
Zora Singh Klar, Sr. Standing Counsel for the Appellant. Akshay Bhan Sr. Adv. and Alok Mittal, Adv. for the Respondent.
S.J. Vazifdar, CJ. – This is an appeal against the order of the Income Tax Appellate Tribunal in respect of the assessment year 1991-92.
2. The assessee filed its return of income declaring an income of about Rs. 10.78 crores. The assessment was completed under section 143(3) of the Income Tax Act, 1961 (for short ‘the Act’). The Assessing Officer made several additions. The Commissioner of Income Tax (Appeals) sustained the additions in some respects and deleted certain other additions. The Department and the assessee filed appeals before the Tribunal. The Tribunal by the impugned order allowed the assessee’s appeal and dismissed the appeal filed by the revenue.
“(i) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in holding the amount of Rs. 1,18,408/- spent on articles presented to dealers as an allowable business expenditure?
(ii) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in deleting expenses on foreign travel of Directors wives?
(iii) Whether on the facts and in the circumstances of the case, the ITAT was right in law in holding that interest from others and also from IDBI constitute profit of the business for the purpose of computing deduction under section 80HHC?
(iv) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in deleting the addition of Rs. 77,85,059/- made on account of advances of interest free loans to the associated concerns whereas the assessee company was paying huge interest on the borrowed?
(v) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in deleting the proportionate management expenses allocated against dividend income for purpose of computation of deduction u/s 80M?
4. The appeal was admitted by an order dated 07.03.2003. We presume, therefore, that it was admitted on all the questions of law raised by the appellant. We will deal with each of them separately. We will deal with questions (ii) and (v) at the end.
5. It was agreed that this question is liable to be answered in favour of the assessee in view of the judgments of this Court in CIT v. Avery Cycle Industries Ltd.  296 ITR 393 , Avon Cycles (P.) Ltd. v. CIT  238 ITR 85 and the judgment dated 30.01.2015 passed by a Division Bench of this Court in ITA No. 192 of 2001 CIT (Central)v. Hero Cycles Ltd.
Question No. (i) is accordingly answered in favour of the assessee.
6. It was agreed that the answer to this question follows our decision in the assessee’s case in ITA No. 52 of 2003 CIT v. Hero Cycle Ltd.. The question is accordingly answered in favour of the department. The Assessing Officer is directed to pass a fresh assessment order considering the interest under the head “Income from other sources” for all purposes.
7. It is agreed that the answer to this question follows the decision of this Court dated 30.01.2015 in ITA No. 119 of 2004 CIT (Central) v. M/s Hero Cycles Ltd..
8. The question is, therefore, answered in the same terms, namely, that the order of the Tribunal setting-aside the disallowance is set-aside and that of the CIT(A) is restored. The Assessing Officer is directed to consider the disallowance in terms of the order of the CIT (A) after examining the nexus between the borrowed funds and the diversion thereof in the form of interest free loans.
9. It is agreed that this question ought to be answered in favour of the appellant and against the assessee in view of the judgment of the Division Bench of this Court dated 30.01.2015 in ITA No. 68 of 2001 in CIT (Central) v. Highways Cycle Industries Ltd.  232 Taxman 302. It is clarified, however, that the assessee shall be entitled for any adjustment or benefit on account thereof.
10. Mr. Klar, learned counsel appearing on behalf of the appellant-Department agreed that the traveling expenses of a Director’s spouse may constitute business expenses if business expediency for the same is established. He, however, contended that the assessee had not produced any evidence to establish the same.
11. The assessee claimed an amount of Rs. 2,24,204/- as foreign traveling expenses in respect of its Directors’ wives who traveled with the Directors while they were on business tours. The Assessing Officer noted that the assessee had given a note in the auditors report that this expenditure was incurred under the contractual obligations and under normal business practice. The Assessing Officer rejected the same as being unsatisfactory.
The CIT(A) noted that the assessee had not furnished any details as to the tour on which the Directors’ wives had accompanied them, as to which of the Director’s wife had undertaken the tour and whether or not the business of the assessee necessitated the Directors’ wives undertaking the tour. It was rightly observed that whether the expenditure incurred is for the purpose of the business or not would depend on the facts of each case.
The Tribunal reversed this decision and directed the Assessing Officer to delete the disallowance on the ground that it had dealt with the similar issue in ITA Nos. 990 of 1993 and 1054 of 1993 in respect of the assessment year 1990-91.
12. We are unable to uphold the decision of the Tribunal in this regard. The issue cannot be decided on the basis of the result of the assessment proceedings relating to the same question in another assessment year. Whether a Director’s spouse has traveled with him for business purpose or not, is essentially a question of fact not only in respect of each year but in respect of each tour. One visit may be for business purpose and another visit may not be for any business purpose whatsoever. The decision of the Tribunal, therefore, is incorrect for the nature and purpose of the visits that the Tribunal considered in respect of the assessment year 1990-91, would be different from the visits that the Tribunal had to consider in respect of the present assessment year.
13. We hasten to add that there may be cases where the tour in a given year may be of the same nature in another year or other years. That would also depend upon the facts of each case. The burden of proving the same is, however, on the assessee. The respondent has not established such a case.
14. The question is, therefore, answered in favour of the appellant/Department. The decision of the Assessing Officer to delete the disallowance is upheld.
(ii) In the case of any other domestic company, so much of the amount of income by way of dividends from another domestic company as does not exceed the amount of dividend distributed by the first mentioned domestic company on or before the due date.
16. Admittedly, Section 80M applies only to income from other sources. Both the counsel agreed that in view of the judgment of the Supreme Court in Distributors (Baroda) (P.) Ltd. v. Union of India  155 ITR 120 , it is the net dividend on which the deduction is to be determined for the purpose of Section 80M. Therefore, in the first instance, the assessee’s dividend income would have to be computed under section 56. From that the deductions permissible under sections 57 to 59 would have to be determined. The difference between the two would yield the net dividend. In other words, the benefit under section 80M would be to the extent that the net dividend received by the assessee does not exceed the dividend distributed.
17. The assessee received dividend of Rs. 6,60,000/- from M/s Munjal Showa Ltd and Rs. 16,61,398/- from M/s Hero Honda Motors Ltd. According to the assessee, no interest had been paid in the assessment year in question, namely, 1991-92 as the loans had been repaid before 1st April, 1990.
18. Mr. Mittal contended that in the present case the assessee’s gross dividend is also the net dividend as the assessee has not incurred any expenses for earning the dividend received. No amount had been borrowed and no interest was paid in connection therewith.
“(iii) Whether on the facts and law, the hon’ble income-tax Appellate Tribunal was justified in holding that deduction under section 80M was to be allowed without allocating personal and administrative and financial expenses proportionately for computing the net dividend income referred to in section 80AA of the Income tax Act?
20. The CIT (Appeals) upheld the Assessing Officer’s decision to consider the management expenses as well as the computation thereof. The CIT (Appeals) observed that after having made an investment, the process does not come to an end, as the investments have to be monitored constantly in order to safeguard the interest of the investors, i.e. the assessee.
21. The Tribunal observed that as per Section 14 the income under the Act had to be computed under different heads; that deduction of expenditure allowable under each head of income had been provided for separately under the respective heads of income in Chapter IV; that dividend income is assessable under the head ‘income from other sources’ as per section 56(1) and that deductions under this head are allowable under section 57. Section 57(1) as it stood at the relevant time provided that the income chargeable under the head from other sources shall be computed after making the deductions mentioned therein. In the case of dividends, section 57(i) provided for the deduction inter-alia of any reasonable sum paid by way of commission or remuneration to a banker or any other person for the purpose of realizing such dividend on behalf of the assessee. In the case of dividends section 57(iii) further provided for a deduction inter-alia of any other expenditure (not being in the nature of capital expenditure) laid out or expended wholly and exclusively for the purpose of making or earning such income.
22. The Tribunal then observed that the assessee had not incurred any expenditure to earn the dividend income and that it had not even incurred any expenditure for the purpose of realizing the dividend. It was further observed that the assessee had not claimed any deduction under section 57 of the Act and that the Assessing Officer had not allowed any deduction while computing income by way of dividend.
Additions are thereafter made and deductions as per Chapter VIA are noted. The assessment order does not indicate any bifurcation of the expenses for the investments.
23. The Tribunal thereafter held that section 80(M) does not authorize an Assessing Officer to estimate the expenditure and recompute the income by way of dividend for the purpose of deduction allowable under section 80(M) of the Act.
24. Where the assessee does not provide any bifurcation of the expenditure incurred in respect of its income, the Assessing Officer has no option but to estimate the expenditure and to recompute the income by way of dividend to arrive at the deduction that may be allowed under section 80M of the Act. Assuming that some portion of the expenditure is attributable to the dividend earned, the Assessing Officer must estimate the extent thereof. If the assessee furnishes proof or details of such expenditure to the satisfaction of the the Assessing Officer he may accept the same. however, the assessee does not furnish a bifurcation of the expenses or any reasonable basis for arriving at the same, the Assessing Officer has no option but to make a reasonable estimate of the same.
25. The Tribunal’s observation that when an assessee claims that it has not incurred any expenditure for earning the dividend income, the onus of proof lies on the Assessing Officer to prove otherwise namely that the assessee has incurred the expenditure is correct. The Tribunal’s further observation that the Assessing Officer had not brought out any material or evidence on record which may establish that the assessee had incurred any expenditure for the purpose of earning the dividend, is, however, incorrect. In cases such as this, the Assessing Officer is justified in presuming that some expenditure had been incurred for the purpose of earning the dividend. Even if the investments yielding the dividend are in group companies, it cannot be said that no expenditure for making the investments which yielded the dividend had been incurred. For instance there is a decision making process that is undertaken before making the investment. Group companies do not blindly invest in each other. Even the decision whether or not to invest in the group companies requires application of mind. If the investment is merely to yield the dividend the management of the investing company is bound to apply its mind as to whether it would be a prudent investment or not. Even if an investment is only for the larger benefit of the group itself or for the benefit of the particular company in the group, the management of the investing company would have to apply its mind on a variety of issues including as to whether the investment would serve this purpose; whether the investment would be detrimental to the investing company and to weigh the pros and cons of such investment for itself and for the members of the group. Further the management of the funds on a regular basis and monitoring the investment even in group companies would be imperative. It is not even the assessee’s case that there was an over all policy decision by which the investments had to be made irrespective of the facts and circumstances obtaining at any given point of time. Indeed it would be difficult to envisage such a situation. In cases such as this, therefore, there would arise a justifiable presumption that some expenditure would be required for the purpose of earning dividend on such investments. The onus would then shift to the assessee to establish that no expenditure whatsoever was incurred for earning the dividend. The Assessing Officer was, therefore, justified in coming to the conclusion that the assessee had incurred expenditure towards earning the said dividend. The assessee has not furnished any material in this regard. As we observed earlier, the Assessing Officer must, therefore, estimate the same if he satisfied that some expenditure for earning the dividend had been incurred.
26. The manner in which the expenditure is computed by the Assessing Officer cannot be faulted.
The only question is whether the management expenses incurred were correctly computed. For this purpose the Assessing Officer noted the management expenses incurred by the assessee under the head “administrative expenses (Annexure XVII) which relate to dividend income also are as under:-……………….”. He has then tabulated such expenses. We set out the table earlier while referring to the assessment order. The assessment order at the foot of the table states that the total management expenses are Rs. 32,59,658/-. It was not contended on behalf of the assessee that these are the total management expenses. In other words it was not contended that the assessee did not incur any management expenses other than in the sum of Rs. 32,59,658/-. We presume, therefore, that the management expenses worked out by the Assessing Officer were those relating only to the investment business.
27.-28. Lastly, the Tribunal held that the Assessing Officer cannot be permitted to take a contrary stand while computing the income from dividend under section 56 and by allowing deductions under section 80M.
29. Mr. Mittal, the learned counsel appearing on behalf of the assessee supported this findings by contending that the management expenses had already been deducted by the Assessing Officer in the computation of income under the head “profits and gains of business or profession”. He contended that having done so the same cannot be taken into consideration while computing deductions under section 80M which relate only to income from other sources.
30. We are unable to agree. The deductions under section 80M must be computed in accordance with the provisions of section 80M. If the Appellate Authorities find that the expenses liable to be deducted have been considered under the wrong head, they must direct the Assessing Officer to rectify that error for all purposes. We have by our judgment passed today in ITA No. 52 of 2003 Hero Cycles Ltd.’s case (supra), held that where income is considered under the wrong head in the computation of income, the Assessing Officer must be directed to pass a fresh assessment order after considering it under the correct head for all purposes including for the purpose of computation of income for deductions under section 80HHC. It would follow then that the same rule ought to apply also to expenses which are entitled to be deducted. They must be deducted qua/in respect of the correct head of income. In the present case the expenditure incurred to yield dividend under section 80M must be deducted under section 57(i)(iii) of the Act.
31. In the circumstances question (v) is answered in favour of the department and against the assessee.
32. The appeal is accordingly disposed of.

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


(C) an employee excluded by regulation of the Office of Personnel Management under section 8716(b) of this title.
(b) Notwithstanding subsection (a) of this section, the employment of a teacher in the recess period between two school years in a position other than a teaching position in which he served immediately before the recess period does not qualify the individual as an employee for the purpose of this chapter. For the purpose of this subsection, "teacher" and "teaching position" have the meanings given them by section 901 of title 20.
In the case of any former employee entitled to coverage under this chapter, the term means the basic insurance amount applicable for the employee at the time the insurance to which the employee is entitled as an employee under this chapter stops pursuant to section 8706(a) of this title.
(ii) who is 22 years of age or older and is incapable of self-support because of a mental or physical disability which existed before the child became 22 years of age.
(2) For the purpose of this subsection, "dependent", in the case of any child, means that the individual involved was, at the time of the child's death, either living with or contributing to the support of the child, as determined in accordance with the regulations the Office shall prescribe.
(a) 2 U.S.C. 126. Sept. 1, 1954, ch. 1208, §603, 68 Stat. 1116 .
5 U.S.C. 2091(a) (1st sentence, less words between 6th and 7th commas), (b), (d) (1st sentence, less words between 1st and 2d commas). Aug. 17, 1954, ch. 752, §2(a) (1st sentence, less words between 6th and 7th commas), (b), 68 Stat. 736 .
Aug. 1, 1956, ch. 837, §501(c)(1) (as applicable to §2 (b)), 70 Stat. 882 .
Aug. 2, 1956, ch. 901, §1, 70 Stat. 955 .
July 1, 1960, Pub. L. 86–568, §115(c) "(d) (1st sentence, less words between 1st and 2d commas)". 74 Stat. 302 .
Aug. 31, 1964, Pub. L. 88–531 §2, 78 Stat. 737.
[Uncodified]. Aug. 25, 1958, Pub. L. 85–745, §1(b) (last sentence, as applicable to the Federal Employees' Group Life Insurance Act of 1954), 72 Stat. 838 .
(b) 5 U.S.C. 2358(c) (less applicability to the Civil Service Retirement Act). July 17, 1959, Pub. L. 86–91, §10(c) (less applicability to the Civil Service Retirement Act), 73 Stat. 217 .
The definition of "Congressional employee" in section 2107 of this title includes an Official Reporter of Debates of the Senate and an individual employed by an Official Reporter of Debates of the Senate so that the inclusion of "a Congressional employee" in subsection (a)(3) provides the coverage for those individuals which was given by former section 126 of title 2.
The definition of "employee" in section 2105 of this title is broad enough to cover the officers and employees set out in former section 2091(a) with the exception of Members of Congress, the President, individuals employed either by the government of the District of Columbia or by Gallaudet College, and United States commissioners. Accordingly, these have been added specifically in paragraphs (2), (4), (5), (6), and (7).
In subsection (a) (B), the words "United States" are substituted for "a State of the United States or the District of Columbia".
Subsection (a)(C) is added for clarity.
In subsection (b), the last sentence is added on authority of former section 2351, which section is scheduled for transfer to section 901 of title 20.
Act of August 25, 1958 (72 Stat. 838), referred to in subsec. (a)(9), is Pub. L. 85–745 and is set out as a note under section 102 of Title 3, The President.
Section 5 of the Presidential Transition Act of 1963, referred to in subsec. (a)(10), is section 5 of Pub. L. 88–277, which is set out as a note under section 102 of Title 3, The President.
Subsec. (a)(10). Pub. L. 114–136 substituted "section 5" for "section 4".
1998-Subsec. (c). Pub. L. 105–311, §3(1), substituted a period for comma after "$10,000" in par. (2) and struck out "except that the amount of insurance may not exceed the annual rate of basic pay payable for positions at level II of the Executive Schedule under section 5313 of this title, rounded to the next higher multiple of $1,000, plus $2,000." before last sentence.
Subsec. (d)(1)(B). Pub. L. 105–311, §4, inserted "or foster child" after "stepchild" in two places in introductory provisions.
1988-Subsec. (a)(10). Pub. L. 100–679 added par. (10).
1986-Subsec. (a)(6). Pub. L. 99–335 amended par. (6) generally, substituting "first employed" for "employed" and inserting "before October 1, 1987".
1984-Subsec. (a)(5) to (9). Pub. L. 98–353 added par. (5) and redesignated former pars. (5) to (8) as (6) to (9), respectively.
1980-Pub. L. 96–427, §2(a)(1), substituted "Definitions" for "Definition" in section catchline.
Subsec. (c). Pub. L. 96–427, §2(a)(2), added subsec. (c).
Subsec. (d). Pub. L. 96–427, §8(b), added subsec. (d).
1979-Subsec. (a)(7) to (9). Pub. L. 96–54 struck out cl. (7) which related to coverage within term "employee" of a United States Commissioner, and redesignated cls. (8) and (9) as (7) and (8), respectively.
Subsec. (a)(B). Pub. L. 96–70 inserted provisions relating to an individual who was an employee for the purpose of this chapter on Sept. 30, 1979, by reason of service in an Executive agency, the United States Postal Service, or the Smithsonian Institution in the area which was then known as the Canal Zone.
1978-Subsec. (a)(C). Pub. L. 95–454 substituted "Office of Personnel Management" for "Civil Service Commission".
1973-Subsec. (a)(B). Pub. L. 93–160 excluded from definition of "employee" persons who are not nationals of the United States and whose permanent duty station is outside the United States and the Panama Canal Zone.
1970-Subsec. (a)(B). Pub. L. 91–418 excluded from definition of "employee" a noncitizen employee whose permanent duty station is outside the Panama Canal Zone.
Gallaudet College, referred to in subsec. (a)(7), redesignated Gallaudet University by section 101(a) of Pub. L. 99–371, which is classified to section 4301(a) of Title 20, Education.
"(a) In General.-Except as otherwise provided in this Act [see Short Title of 1998 Amendment note below], the amendments made by this Act shall take effect on the date of enactment of this Act [Oct. 30, 1998].
"(b) Maximum Limitation on Employee Insurance.-Section 3 [amending this section and section 8714b of this title] shall take effect on the first day of the first applicable pay period beginning on or after the date of enactment of this Act.
"(c) Erroneous Coverage.-Section 5 [amending section 8706 of this title] shall be effective in any case in which a finding of erroneous insurance coverage is made on or after the date of enactment of this Act.
"(d) Direct Payment of Insurance Contributions.-Section 6 [amending sections 8707 and 8714a to 8714c of this title] shall take effect on the first day of the first applicable pay period beginning on or after the date of enactment of this Act.
"(1) In general.-Section 7 [amending section 8714b of this title and enacting provisions set out as a note under section 8714b of this title] shall take effect on the first day of the first pay period that begins on or after the 180th day following the date of enactment of this Act, or on any earlier date that the Office of Personnel Management may prescribe that is at least 60 days after the date of enactment of this Act.
"(B) continued additional optional insurance pursuant to section 8714b(c)(2) as in effect immediately before such effective date.
"(f) Improved Optional Life Insurance on Family Members.-The amendments made by section 8 [amending section 8714c of this title] shall take effect on the first day of the first pay period which begins on or after the 180th day following the date of enactment of this Act or on any earlier date that the Office of Personnel Management may prescribe.
"(2) follows a pay period in which the employee was in a pay and duty status."
"(a) Unless otherwise specified, this Act [see Short Title note below] shall take effect on the date of the enactment of this Act [Oct. 10, 1980] and shall have no effect in the case of an employee who died, was separated, or retired before the date of enactment.
"(b) The amendment made by subsection (d) of section 2 of this Act [amending section 8704 of this title] shall apply with respect to premium pay payable under section 5545(c)(2) of title 5, United States Code, from and after the first day of the first pay period which begins on or after the date of the enactment of this Act [Oct. 10, 1980].
"(c) The amendment made by section 3 of this Act [amending section 8706 of this title] shall apply only in the case of an employee who retires or become entitled to receive compensation for work injury on or after the 180th day following the date of the enactment of this Act [Oct. 10, 1980], or any earlier date that the Office of Personnel Management may prescribe which is at least 60 days after the date of enactment.
"(d) The amendments made by sections 7 and 8 of this Act [enacting sections 8714b and 8714c of this title and amending this section] shall take effect on the first day of the first pay period which begins on or after the 180th day following the date of the enactment of this Act [Oct. 10, 1980], or on any earlier date that the Office may prescribe which is at least 60 days after the date of enactment, and shall have no effect in the case of an employee who died, was finally separated, or retired before the effective date."
Pub. L. 105–311, §1, Oct. 30, 1998, 112 Stat. 2950 , provided that: "This Act [amending this section and sections 7703, 8706, 8707, and 8714a to 8714c of this title and enacting provisions set out as notes under this section and sections 7703 and 8714b of this title] may be cited as the 'Federal Employees Life Insurance Improvement Act'."
Pub. L. 103–409, §1, Oct. 25, 1994, 108 Stat. 4230 , provided that: "This Act [enacting section 8714d of this title and provisions set out as notes under this section and sections 8704, 8714, and 8901 of this title] may be cited as the 'FEGLI Living Benefits Act'."
Pub. L. 96–427, §1, Oct. 10, 1980, 94 Stat. 1831 , provided that: "This Act [enacting sections 8714b and 8714c of this title, amending this section and sections 8704, 8706, 8707, 8709, and 8714a of this title, repealing section 8713 of this title and enacting provisions set out as notes under this section and sections 8704 and 8714a of this title] may be cited as the 'Federal Employees' Group Life Insurance Act of 1980'."
"(1) United States magistrate judges.
"(2) Bankruptcy judges appointed under chapter 6 of title 28, United States Code.
"(3) Judges of the District Court of Guam, judges of the District Court for the Northern Mariana Islands, and judges of the District Court of the Virgin Islands.
"(4) Bankruptcy judges and magistrate judges retired under section 377 of title 28, United States Code.
"(5) Judges retired under section 373 of title 28, United States Code."
Pub. L. 110–177, title V, §502(b), Jan. 7, 2008, 121 Stat. 2542 .
"(2) may, if currently insured for optional life insurance on family members, elect an amount above the minimum insurance on a spouse."
"(B) such other elections as the Office allows may be made.
"(2) The Office shall take such action as may be necessary to ensure that employees and any other individuals who would be eligible to make an election under this subsection are afforded advance notification to that effect."
For provisions relating to treatment of certain Federal employees of Saint Elizabeths Hospital under certain Federal employee benefit programs, see section 207(o) of Pub. L. 99–335, set out as a note under section 8331 of this title.
1 See Change of Name note below.


Tomasek v. Monongahela Railway Co.
Negligence — Contributory negligence — Grade crossing collision — Stop, look and listen rule — Passengers in vehicle — Duty to warn operator of vehicle — Evidence — Presumptions — Due care of decedent.
1. In these appeals from judgments entered on verdicts in favor of the defendant railroad and from orders granting new trials following verdicts in favor of the defendant estate, in which it appeared that on a winter night the decedent approached a railroad grade crossing in his motor vehicle with which his two front seat passengers were familiar; that he did not stop, look and listen and was killed in a resulting collision with the front end of a locomotive and his passengers were seriously injured, it was Held, in the circumstances, that (1) decedent was contributorily negligent as a matter of law; (2) the evidence was sufficient to support findings that the passengers were personally guilty of contributory negligence in not warning decedent of the presence of the railroad crossing and in not protesting his action; (3) the trial court did not err in its charge to the jury; and (4) the court below erred in granting the passengers new trials against decedent's estate.
Mr. Justice EAGEN and Mr. Justice ROBERTS would affirm the order of the court below granting new trials to the two passengers against the decedent's estate.
Appeals, Nos. 164, 165, 182, 183 and 184, March T., 1966, from judgments and orders of Court of Common Pleas of Fayette County, Sept. T., 1963, No. 1132, Dec. T., 1963, Nos. 195 and 596, in cases of Marlene Tomasek v. Monongahela Railway Company and John Tomasek, administrator of estate of Harry E. Tomasek, deceased; William L. Tomasek v. Same; and John Tomasek, administrator of estate of Harry E. Tomasek, deceased v. Monongahela Railway Company. Judgments affirmed; orders reversed.
Trespass actions consolidated for trial. Before FEIGUS, J.
Verdicts entered in each case for defendant railroad and additional defendant and against plaintiffs; plaintiffs' motions for new trial as to defendant railroad denied but motions for new trial as to additional defendants granted. Plaintiffs and additional defendants appealed.
Herman M. Buck, with him Harry Humbert, and Ray, Buck, John Hook, for appellant.
Fred C. Adams, with him Coldren Adams, for appellants. Herbert Margolis, for appellant.
Thomas A. Waggoner, for appellee.
On January 28, 1963, Harry E. Tomasek (decedent) was operating his motor vehicle in an easterly direction on the Republic-New Salem highway in Fayette County and in the front seat of that motor vehicle were Tomasek's wife, Marlene Tomasek, and his brother, William Tomasek. At approximately 8:40 p.m., while the Tomasek motor vehicle was entering upon a grade railway crossing of the Monongahela Railway Company (Railway) in Newboro, Fayette County, the right front end of the Tomasek motor vehicle collided with the left front end of a locomotive of the Railway and, as a result of that collision, decedent was killed and his wife and brother seriously injured.
Three trespass actions were instituted in the Court of Common Pleas of Fayette County: (1) Marlene Tomasek sued the Railway and John Tomasek, decedent's personal representative; (2) William Tomasek sued the Railway and decedent's personal representative; (3) John Tomasek, decedent's personal representative, sued the Railway. All three actions were consolidated for trial and, after trial, the jury returned verdicts in favor of the Railway in the three actions against it and for the decedent's personal representative in the two actions wherein he was an additional defendant. The court below denied new trials as against the Railway but granted new trials against decedent's personal representative in the two actions wherein he was an additional defendant. In granting the new trials, the trial court was of the opinion it had erred in certain instructions to the jury.
From the judgments entered on the verdicts in favor of the Railway Marlene Tomasek, William Tomasek and decedent's personal representative have appealed; from the orders granting Marlene Tomasek and William Tomasek new trials, decedent's personal representative has appealed.
The facts and considerations attendant on each appeal and the evidence must be evaluated.
The Republic-New Salem road in Newboro is intersected at a 23° angle by a railroad crossing which is marked by an "X" railroad sign. The train of the Railway approached this grade crossing, at a speed of approximately 15-18 miles per hour, from a southerly direction. South of the highway and west of the Railway right-of-way is a building which to some extent obstructs observation of a train approaching the highway intersection from the south to a motorist approaching the crossing from the west; at a distance of 150 feet from the railroad crossing the view south along the Railway right-of-way is obstructed but, at a distance of 10 feet west of the railroad crossing, there is an unobstructed view for a distance of 2100 feet. At the time of the accident, the weather was cold, the highway relatively clear and visibility good.
Decedent was travelling at approximately 30 miles per hour and he had slowed down his motor vehicle "to practically a stop" at a point 100 yards from the railroad crossing and then had accelerated his speed but he did not stop prior to entering upon the crossing. The Estate's principal contention is that the evidence of decedent's failure to stop, look and listen should not preclude him, under the circumstances, from recovery against the Railway.
Under our case law, the driver of a motor vehicle must stop, look and listen before entering upon a railroad crossing ( Riesberg v. Pittsburgh Lake Erie Railroad, 407 Pa. 434, 440-442, 180 A.2d 575 (1962); Geelen v. Penna. R.R. Co., 400 Pa. 240, 247, 248, 161 A.2d 595 (1960)) and he must continue to look and listen until he has passed over the crossing ( Kolich v. Monongahela Ry. Co., 303 Pa. 463, 154 A. 705 (1931)); a failure to do so constitutes contributory negligence as a matter of law.
Where the driver of a motor vehicle is killed at a railroad crossing a presumption arises that he exercised due care and did stop, look and listen before committing himself to the crossing ( Pennsylvania R.R. Co. v. Weber, 76 Pa. 157, 170 (1875); Schum v. Pennsylvania R.R. Co., 107 Pa. 8, 12 (1884); Travis v. Pennsylvania Railroad Co., 377 Pa. 537, 541, 542, 105 A.2d 131 (1954); Keasey v. Pittsburgh Lake Erie R.R. Co., 404 Pa. 63, 68, 69, 170 A.2d 328 (1961)). However, this presumption is rebuttable and, when the evidence or circumstances incontrovertibly reveal that decedent did not stop, look and listen, the presumption becomes inapplicable: Christy v. Pennsylvania Railroad Co., 283 Pa. 538, 542, 129 A. 575 (1925); Weber v. Pittsburgh W. Va. Ry., 300 Pa. 351, 354, 150 A. 624 (1930); Zotter v. Lehigh Valley R.R. Co., 280 Pa. 14, 21, 22, 124 A. 284 (1924); Grimes v. Pennsylvania Railroad Co., 289 Pa. 320, 325, 326, 137 A. 451 (1927).
In the case at bar, decedent's personal representative contends he is entitled to a new trial because the record does not warrant a finding that the Railway was free of negligent conduct and the presumption that decedent exercised due care was applicable under the circumstances. Of course, we have no way of knowing whether the jury believed that the Railway was negligent or that decedent was contributorily negligent, or both; to evaluate the verdict, as decedent's personal representative would suggest, would involve only speculation and conjecture.
Our review of the instant record indicates the complete absence of any testimony that decedent stopped, looked and listened and, on the contrary, the uncontradicted testimony and physical circumstances reveal that decedent did not do so. Under such circumstances, the presumption that decedent did exercise due care does not avail his personal representative. On the basis of the present record the trial court would have been justified in not submitting the personal representative's case to the jury on the ground that decedent was unequivocally guilty of contributory negligence. The court below properly refused decedent's personal representative a new trial against the Railway.
Whether Marlene and William Tomasek are entitled to a new trial against the Railway presents a slightly different question. Marlene Tomasek and William Tomasek were passengers in the front seat of decedent's motor vehicle, in which, except for a small opening in one wing window, all the windows were closed. Both Marlene and William Tomasek testified that, for a distance of at least 200 feet from the crossing, there had been no conversation between decedent, William and/or Marlene Tomasek and that they saw no light nor did they hear any whistle or bell warning from the locomotive.
William Tomasek testified that decedent's motor vehicle, as it approached the crossing, was travelling about 25-30 miles per hour and that it did not slow up as it approached the crossing; that he lived approximately one mile from the crossing and he knew that a train traversed the crossing between 8:20 and 8:40 each evening; that, although decedent was not intimately familiar with the crossing, he was familiar with its location and that he, William Tomasek, had not informed decedent of the presence of the crossing or of the approximate time the evening train traversed the crossing. Marlene Tomasek testified that she knew the location of the crossing but had never paid much attention to it; that she had traversed the crossing about an hour and a half prior to the accident; that the decedent was "not that much" familiar with the crossing; that she did not warn decedent of the railroad crossing and that, although she had been looking ahead for some distance, she failed to see the railroad crossing sign.
William Majesky and Ronald Kaufman who were following decedent's motor vehicle at a distance of 200 feet, had the car radio on and believed that their car windows were closed. Majesky testified that decedent was driving between 40-45 miles per hour and that he did not stop or slow down as he approached the crossing. As to the blowing of a whistle or the ringing of a bell on the locomotive, Majesky testified "there might have, but I didn't hear it". Majesky agreed with Kaufman's testimony that the locomotive's headlight was operating. Kaufman testified that, while the whistle and bell could have been sounded, he did not hear either. Mary Staron and Jerome Bykowski, who were seated in a parked car near a store adjacent to the crossing which car was facing in the direction of the approaching train, stated they saw the "big light" in the front of the train and heard the train whistle blowing. Six Railway employees, who were either working or travelling on the train, testified they heard the bell ringing and the whistle blowing 1,000 feet from the crossing.
The duty of guest passengers, such as were William and Marlene Tomasek, when the motor vehicle in which they are passengers approaches a railroad crossing, has been set forth in Highton v. Penna. R.R. Co., 132 Pa. Super. 559, 565, 1 A.2d 568 (1938): ". . . a guest passenger, if he is aware of the existence of a railroad crossing, is, like the driver, required, himself, to obey, and do what he can under the circumstances to see that the driver obeys, the peremptory rule requiring all persons about to enter upon a railroad track to stop, look and listen" (p. 565) and "[a] guest in an automobile who sits beside the driver with full knowledge of the surroundings and makes no protest, joins in testing the danger and is charged with contributory negligence: [citing authorities]". Burkman v. Anderson, 324 Pa. 206, 210, 188 A. 287 (1936) and cases therein cited. Both William and Marlene Tomasek knew of the existence of this crossing, William being the more familiar with its site and surroundings. William Tomasek knew the approximate time to expect a train to traverse the crossing and both Marlene and William were of the opinion that the decedent was not familiar with the crossing. Under such circumstances, whether Marlene and William Tomasek were contributorily negligent in not warning decedent of the presence of the railroad crossing so that he could stop, look and listen and in not protesting decedent's action was a question for determination by the jury. The jury might well have found, under these circumstances, that both William Tomasek and Marlene Tomasek were contributorily negligent.
Marlene and William Tomasek, taking the position that, as a matter of law, they were not contributorily negligent, contend that the trial court should not have instructed the jury on the duty of a guest passenger when the motor vehicle in which he is a passenger approaches a railroad crossing. Our view of the factual situation portrayed by this record indicates that the instructions were proper in this respect and that the question of whether Marlene and William Tomasek, or either, were contributorily negligent was, under the evidence, for determination by the jury and had the trial court not so charged it would have erred under the circumstances.
The grant or refusal of a new trial is within the sound discretion of the trial court and we will not reverse the action of the trial court unless the record shows that the court committed an error of law or clearly and palpably abused its discretion. See: Zeman v. Canonsburg Borough, 423 Pa. 450, 454, 223 A.2d 728 (1966); Burd v. Penna. R.R. Co., 401 Pa. 284, 290, 164 A.2d 324 (1960), and cases therein cited. We find neither a commission of legal error nor an abuse of discretion in the refusal of new trials to Marlene Tomasek and William Tomasek against the Railway.
Decedent's personal representative contends that the court below erred in granting new trials to Marlene and William Tomasek against him. The court below, granting new trials, believed that it had erred in instructing the jury as follows: "Now in the two cases in which John Tomasek, Administrator of the Estate of Harry E. Tomasek, deceased, is the additional defendant, that is in the two actions in which William Tomasek and Marlene Tomasek are plaintiffs, respectively, you are instructed to disregard their testimony, that is William Tomasek's and Marlene Tomasek's testimony entirely in arriving at your determination of the claims against the Estate [of the decedent] . . . and should confine yourselves to the testimony of the remaining witnesses. There is a strict statutory prohibition of the use of their testimony by reason of Harry E. Tomasek's death and subsequent inability to testify in his own behalf, and it would serve no useful purpose to explain the policy or logic reflected by this statute. It requires that you disregard the testimony of surviving interested parties to the accident in the status of Marlene Tomasek and William Tomasek."
The court below correctly charged that, in the actions of William and Marlene Tomasek against decedent's personal representative, the jury could consider all of the testimony except that of Marlene and William Tomasek, although the court did not exclude the jury from considering their testimony in their actions against the Railway. The court below was of the opinion the instruction was erroneous in not eliminating the issue of contributory negligence from the jury's consideration. We disagree. The physical circumstances surrounding the accident plus testimony other than that of Marlene and William Tomasek clearly raised the question of contributory negligence.
The only objection at trial to the competency of Marlene and William Tomasek was that such testimony offended the so-called Dead Man's Act (Act of May 23, 1887, P. L. 158, § 5, 28 P. S. § 322) and such objection was made by counsel for decedent's personal representative. The trial court properly held that the testimony of both William Tomasek and Marlene Tomasek would offend the so-called Dead Man's Act in their actions against the personal representatives but would not offend such statute in their actions against the Railway.
The thrust of the argument of Marlene and William Tomasek which prompted the court below to grant them new trials against the personal representative was that the court should have stated to the jury that, since their testimony was inadmissible against the personal representative and since their testimony alone raised the issue of contributory negligence on their part, such issue should not have been considered. Such charge would not have been consonant with the record.
Moreover, counsel for Marlene and William Tomasek at trial did not specifically object to the charge in this respect nor did they give the trial court an opportunity to cure the alleged infirmity in the charge by calling it to the court's attention. It is not urged in this respect that the trial court erred in what it did say but in what it did not say to the jury. Reading the instructions in their entirety we feel that the jury were given to understand that as against the Estate all the testimony of both Marlene and William Tomasek was excluded on whatever phase of the accident; our examination indicates that the court made clear that all, not some, of their testimony was inadmissible against the Estate. Had the court eliminated in their actions against the personal representative the question of contributory negligence, arising from the circumstances and testimony other than their testimony, it would have been in error. Moreover, the failure of trial counsel to specifically except to the alleged deficiency in the charge was fatal. See: Lobalzo v. Varoli, 422 Pa. 5, 6, 7, 220 A.2d 634 (1966). Under the instant circumstances, the court below erred in granting new trials.
Judgments entered on the verdict in favor of the Railway are affirmed. The orders of the court below granting new trials to William Tomasek and Marlene Tomasek against the decedent's personal representative are reversed and judgments should be entered on the verdicts in such actions.
Mr. Justice EAGEN and Mr. Justice ROBERTS would affirm the order of the court below granting new trials to Marlene and William L. Tomasek against John Tomasek, Personal Representative of the Harry E. Tomasek Estate.


Anthony P. Capozzi, Fresno, CA, for the defendant-appellant.
Sheila K. Oberto, Assistant United States Attorney, Fresno, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CR-99-05275-OWW.
This appeal presents the question whether materiality is an element of the crime of making a false statement in an application for a United States passport in violation of 18 U.S.C. § 1542. We have implicitly indicated that it is not, see United States v. Suarez-Rosario, 237 F.3d 1164, 1167(9th Cir.2001), and now explicitly hold that proof of materiality is not required for this "false statement" offense.
Ellenrose Hart appeals her conviction, following a jury trial, on one count of violating § 1542. She contends that the district court erred by failing to instruct the jury that materiality was an element.
Section 1542 criminalizes "willfully and knowingly mak[ing] any false statement in an application for passport with intent to induce or secure the issuance of a passport." The text makes no mention of materiality, nor has the phrase "false statement" accumulated settled meaning requiring proof of materiality under common law. Accordingly, as the Supreme Court has stated, the term "does not imply a materiality requirement." Neder v. United States, 527 U.S. 1, 23 n. 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (citing United States v. Wells, 519 U.S. 482, 491, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997)). The Eleventh Circuit, which is the only other circuit directly to address whether materiality is necessary for conviction under § 1542, has also held that it is not. See United States v. Ramos, 725 F.2d 1322, 1323 (11th Cir.1984). We join it now.
Hart's remaining argument, that there was insufficient evidence for a rational jury to find beyond a reasonable doubt that she violated § 1542, is unavailing. She falsely stated in her passport application that she had no social security number and had never been issued a United States passport. There was ample evidence that her false statements were made willingly and knowingly, as she had requested numerous changes of name on her social security card over the years and had used her United States passport to travel three times in 1997 and 1998. Finally, Hart followed up on the false application by calling the National Passport Information Center as well as two senators and a congressman, thereby manifesting her intent to secure issuance of the passport.
I agree with the views expressed by Justice Stevens in his dissent in United States v. Wells.1 The statute before us is among those, which, at footnote 8, Justice Stevens thought implied a materiality requirement.2 Those views, however, were expressed in a dissent, not a majority opinion. I do not see a principled way to distinguish the statute before us from the one construed in Wells, and under Wells, materiality is not an element. So I am compelled to conclude that because of Wells, the statute before us has no materiality element.
United States v. Wells, 519 U.S. 482, 500, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (Stevens, J., dissenting).
Wells, 519 U.S. at 505 n. 8, 117 S.Ct. 921 (Stevens, J., dissenting); see also United States v. Gaudin, 28 F.3d 943, 959-960, n. 4 (9th Cir.1994) (Kozinski, J., dissenting).


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Jason SCHWARTING, appellee v. NEBRASKA LIQUOR CONTROL COMMISSION, appellant.
HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and HANNON, Judge, Retired. Jon Bruning, Attorney General, and Milissa Johnson-Wiles for appellant. Andrew W. Snyder, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, for appellee.
Donald Schwarting, the former owner of the Arrowhead Inn, an off-sale, beer-only business, was convicted of a Class IV felony, thereby prohibiting him from holding a liquor license under Neb.Rev.Stat. § 53-125 (Reissue 2004). His son, Jason Schwarting, took steps to purchase the business. Jason applied for a liquor license with the Nebraska Liquor Control Commission (the Commission), but his application was denied due to Jason's two prior liquor license violations while employed by Donald and the Commission's belief that Donald maintained an ownership interest in the business. Jason appealed, and the district court reversed the order of the Commission. The Commission appeals.
The Arrowhead Inn is an off-sale, beer-only business in Whiteclay, Nebraska, that was started by Jason's grandfather in 1980 or 1981. In 1996, Jason's father, Donald, purchased the business, and in 1998, Jason began working as a clerk at the store. Jason was cited for two liquor license violations while working as a clerk: selling to an intoxicated person in June 1998 and selling on credit in August 2001. The Arrowhead Inn was penalized accordingly.
In 2003, Donald was convicted of a Class IV felony for selling more than eight used vehicles without a dealer's license and was fined $1,000. Subsequently, Jason began operating the Arrowhead Inn under a temporary agency agreement. In addition, Jason purchased the land, building, inventory, and equity composing the business. Jason purchased the real estate from Donald and assumed a promissory note previously owed by Donald to Jason's grandfather. After Donald filed a chapter 13 bankruptcy proceeding, Jason petitioned for and was granted permission to purchase the assets of the Arrowhead Inn.
previously as an employee sold alcohol to an intoxicated person 6/23/98, and sold alcohol on credit 8/27/01 which may reflect upon his willingness to abide by the rules and regulations of the Liquor Control Act; and further, to determine what if any involvement or financial interest the previous owner, Donald Schwarting, convicted of a Class IV Felony, will have.
During a hearing before the Commission, Jason testified that Donald was working part time as a clerk at the Arrowhead Inn, selling beer, pop, and cigarettes, and was paid an hourly wage of $5.25. However, Jason explained that Donald did not perform any managerial duties, including bill paying, ordering, and hiring and firing, and did not share in the profits or losses of the business. Furthermore, Jason testified that if the Commission was concerned about Donald's position as a clerk at the Arrowhead Inn, Jason would be willing to terminate Donald's employment.
a) That [Jason] is not of good character and reputation in the community.
b) That his previous actions where he was an employee who violated aspects of [the Act] show that he is unable to conform to all provisions of [the Act].
c) That the Commission is unconvinced that Donald Schwarting does not continue to have an ownership interest in the Arrowhead Inn.
On appeal, the district court reversed the determination of the Commission, finding no evidence in the record of a hidden ownership arrangement between Jason and Donald and determining that the evidence of Jason's two prior violations did not support a finding that Jason is not of good character or reputation. The Commission appeals the judgment of the district court.
The Commission assigns that the district court erred in finding that the evidence did not support the Commission's conclusion that Jason was unable to conform to all provisions of the Act.
In its appellate brief, the Commission also assigned that the court erred in finding that the evidence did not support the Commission's conclusion that Donald continued to have an ownership interest in the business. However, at oral argument, the Commission withdrew this assignment of error; thus, we will not consider it.
A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Neb.Rev.Stat. § 84-918 (Reissue 1999); Nebraska Liq. Distrib. v. Nebraska Liq. Cont. Comm., 269 Neb. 401, 693 N.W.2d 539 (2005). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.
In its order, the Commission determined that Jason was “not fit, willing, and able to properly provide the service proposed within the community where the premises described in the application are located” and that he “can not [sic] conform to all provisions and requirements of and rules and regulations adopted pursuant to [the Act].” The Commission stated that it based those conclusions on additional findings that Jason is not of good character and reputation in the community and that his prior license violations show his inability to conform to the provisions of the Act. In addition, the Commission stated that it was unconvinced that Donald no longer held an ownership interest in the business.
We note that the order to show cause issued by the Commission prior to the hearing listed just two matters of concern: Donald's involvement and interest in the business, and Jason's two previous violations and their relevance to his willingness to abide by the provisions of the Act. The order to show cause did not mention the issue of Jason's character and reputation, and the hearing was not directed at that issue. In fact, neither party presented evidence regarding Jason's reputation in the community. However, at the conclusion of the hearing, one of the commissioners stated, “I vote to deny it based on character and reputation also.” The hearing officer then stated, “Just to make sure the rationale for the record is-you're voting-you believe that there is a hidden ownership and that the applicant is not fit and willing and able to conform ․ [t]o the rules and regulations.” The commissioner agreed, stating, “Right, that's correct․ That would be the reason.” Nevertheless, the Commission's order included among its findings that Jason was not of good character and reputation.
On appeal, the district court found no evidence to support the Commission's belief that Donald maintained an ownership interest in the business. In addition, the district court found Jason's two prior license violations to be insufficient to support the Commission's determination that Jason is not of good character or reputation. The district court couched its analysis of Jason's two previous violations in the context of their reflection on his character and reputation. However, we conclude that implicit in the court's judgment to reverse the order of the Commission is a determination that Jason's two previous violations were also insufficient to support the Commission's finding that Jason was unable to abide by the provisions of the Act.
We agree that the record presents insufficient evidence to conclude that Jason is not of good character and reputation in his community; as stated above, no such evidence was presented at the hearing by either party. In addition, during oral argument, the State withdrew its assignment of error regarding any alleged interest that Donald may have in the business. Thus, the only issue remaining for our consideration is whether the district court's conclusion that there was insufficient evidence to support the Commission's findings that Jason was unable to abide by the provisions of the Act is supported by competent evidence.
The Commission assigns that the district court erred in finding insufficient evidence to support the Commission's conclusion regarding Jason's inability to abide by the Act. The Commission asserts that the two license violations attributable to Jason during his employment at the Arrowhead Inn reflect his inability to conform to the provisions of the Act. In contrast, Jason argues that the district court correctly determined that two “stale” license violations do not indicate an unwillingness to abide by the provisions of the Act.
The Commission is vested with discretion in the granting or denial of retail liquor licenses, but it may not act arbitrarily or unreasonably. As in the case of other administrative bodies, the Commission, after an administrative hearing, must base its findings and orders on a factual foundation in the record of the proceedings, and the record must show some valid basis on which a finding and order may be premised. J K & J, Inc. v. Nebraska Liquor Control Commission, 194 Neb. 413, 231 N.W.2d 694 (1975), overruled in part on other grounds, 72nd Street Pizza, Inc. v. Nebraska Liquor Control Commission, 199 Neb. 729, 261 N.W.2d 614 (1978).
Proceedings for review of a final decision of the Commission are to the district court, which shall conduct the review de novo on the record of the agency. See Lariat Club v. Nebraska Liquor Control Comm., 267 Neb. 179, 673 N.W.2d 29 (2004). In a review de novo on the record, the district court is not limited to a review subject to the narrow criteria found in Neb.Rev.Stat. § 84-917(6)(a) (Reissue 1999), but is required to make independent factual determinations based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue. See Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995). The district court is not required to give deference to the findings of fact made by the Commission, but it may consider the fact that the Commission, sitting as the trier of fact, saw and heard the witnesses and observed their demeanor while testifying and may give weight to the Commission's judgment as to credibility. See Stejskal v. Department of Admin. Servs., 266 Neb. 346, 665 N.W.2d 576 (2003).
Upon appeal from the district court, our review is limited to error on the record, in which our inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. See Nebraska Liq. Distrib. v. Nebraska Liq. Cont. Comm., 269 Neb. 401, 693 N.W.2d 539 (2005). An appellate court, in reviewing a district court judgment for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports those findings. See id. Based on the record before the district court and our narrow standard of review, we conclude that the district court's order following its de novo review, reversing the judgment of the Commission, is supported by competent evidence.
Jason testified at the hearing that he was willing to abide by the rules and regulations of the Commission and of the State, and he introduced evidence that he had completed a course offered by the Commission and the Nebraska State Patrol regarding alcohol server training. Evidence was presented of Jason's two violations in the form of administrative citations. In addition, a report completed by an investigator with the State Patrol was presented, detailing the events of the violation concerning the sale of alcohol on credit. In its order, the district court emphasized the fact that the violations occurred 3 and 6 years prior to Jason's application. The district court also evidently was influenced by the fact that the Commission had made findings on other issues, such as Donald's ownership interest in the business and Jason's character and reputation, that were so unsupported by evidence as to be unsustainable.
Although different decisionmakers might reach an opposite result in reviewing the record, we simply cannot say that the district court's judgment, following its de novo review, is unsupported by any competent evidence, nor can we say that the judgment is arbitrary, capricious, or unreasonable. Given the statutory standard of review, we conclude that the district court committed no reversible error based on this record.
For the foregoing reasons, we conclude that the district court's judgment reversing the order of the Commission is supported by competent evidence; we affirm.

matches: v. § 53 § 84 v. v. v. v. § 84 v. v. v.


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MICHAEL REDER vs. JOSEPH KUSS & others.
In a proceeding in equity it was not a violation of the parol evidence rule to show that two purchasers of real estate both intended that it be so held that the survivor of them would become the sole owner, but that by mutual mistake the property was conveyed to them as tenants in common; and upon a finding of such facts on adequate evidence after the death of one of them it was proper to enter a decree ordering the heirs of the decedent to convey all interest in the property to the survivor.
PETITION IN EQUITY filed in the Probate Court for the county of Bristol on January 19, 1962.
David Entin for the respondents Joseph Kuss & others.
Anna F. McManus for John A. Reder, administrator.
William A. Torphy & Frederic J. Torphy, for the petitioner, submitted a brief.
SPIEGEL, J. This is an appeal from a decree of the Probate Court ordering the respondents, who are the heirs at law of one Anna Kuss, to convey to the petitioner all of their right, title and interest in certain real estate which stood in the names of the petitioner and Anna Kuss "as tenants in common." The trial judge made a "voluntary report of material facts," and the evidence is reported.
Polish. He told the lawyer that he was buying the property "so that it would be him and her." The property was purchased by a deed dated June 19, 1928, for the sum of $15,200. Sixty-two hundred dollars was paid in cash, of which sum the petitioner paid $4,600 (which he withdrew from his account in a savings bank) and Anna Kuss paid $1,600. "[T]hey both assumed a mortgage for $9,000 to make the $15,200. The petitioner testified that "[t]here was talk and understanding that if he [the petitioner] died she [Anna Kuss] would get the property." After the purchase Anna lived in a tenement on the property with her mother. The petitioner also lived there. He managed the property, and paid for repairs, taxes, insurance and other costs of maintenance out of his own funds. Anna died in December, 1961. John Reder, a nephew of both the petitioner and Anna Kuss, testified that shortly before she died, Anna Kuss told him that she said to the petitioner, "After I am gone, the house is yours," and "You will have both houses when I am gone and you will have the social security to take care of yourself." Various relatives of Anna Kuss offered testimony which was inconsistent with the foregoing.
The judge found that the petitioner "was certain in his own mind that having both names on the deed was all that was sufficient to insure having the property pass to him if Anna Kuss died, and that she believed the same thing." The judge further found that "there was a mutual mistake, made by non-English speaking, uneducated immigrants, who, in many respects, acted like a married couple, and both of them expected to become sole owner of the property if the other died."
The respondents contend that the findings of the judge are incorrect, and that "there is not an iota of evidence that Anna Kuss thought she was entering into any agreement other than that set out in the deed." We are of opinion that the evidence supports the findings of the judge.
to vary, alter and contradict the terms of a complete and integrated written instrument, thus violating the parol-evidence rule."
In Goode v. Riley, 153 Mass. 585, 587, Mr. Justice Holmes said, "[I]t is settled, at least in equity, that this particular kind of parol evidence, that is to say, evidence of mutual mistake as to the meaning of the words used, is admissible" to show "that neither party has purported or been understood to express assent to the conveyance as it stands."
"[T]he reformation of instruments that fail to express the agreement and intention of the parties" is "a familiar branch of equity jurisdiction." Raymond v. Jackson, 297 Mass. 509, 512. "[A] mistake in the legal effect of a description in a deed, or in the use of technical language, may be relieved against, upon proper proof." Canedy v. Marcy, 13 Gray 373, 377. Stockbridge Iron Co. v. Hudson Iron Co. 107 Mass. 290, 319. Holdsworth v. Tucker, 143 Mass. 369, 375. Goode v. Riley, 153 Mass. 585, 587. Franz v. Franz, 308 Mass. 262, 266. See White v. White, 346 Mass. 76, 80.

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On May 1, 1984, the United States Department of Justice Civil Rights Division informed the Governor of Connecticut that it would investigate the living conditions at Southbury Training School, an institutional care facility for people with intellectual disabilities (ICF/MR) in Southbury, Connecticut, pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997 et seq. On September 11, 1985, the Department of Justice announced its findings. Three lawsuits, including this CRIPA lawsuit, followed. A class action, Messier v. Southbury Training School, ID-CT-0003 in this Clearinghouse, appears to have been treated as a companion case at some points during litigation. Another private action, McCoy v. Belmont, ID-CT-0006, appears to have been separately litigated. Judge Ellen B. Burns of the United States District Court for the District of Connecticut adjudicated all or part of these three lawsuits.
The United States filed this lawsuit against the State of Connecticut, its Department of Mental Retardation, and the Director of Southbury on July 25, 1986. The United States alleged that living conditions at Southbury placed residents in grave danger of bodily harm and death. According to the Complaint, the individuals with developmental disabilities placed at Southbury were subject to systematic abuse and neglect. Southbury did not provide adequate medical and psychological care and employed too few medical and direct care staff. In addition, Southbury's facilities were unsafe and unsanitary. Instead of offering residents individualized habilitative programming, Southbury used physical and chemical restraints to control most residents' behavior.
On July 25, 1986, the parties also entered a consent decree, under which the State admitted no wrongdoing but agreed to dramatically change Southbury's operations. For instance, the State agreed to institute individualized habilitation programming for all residents and to only use chemical and physical restraints in emergencies or when medically or therapeutically indicated. In addition, the State agreed to improve medical care by hiring more medical staff, developing a medical recordkeeping system, and improving the availability and overall quality of medical care and physical therapy. In addition, the state agreed to improve staff-to-resident ratios by either hiring and training more direct care staff or reducing the number of Southbury's residents (in 1986, Southbury had over one thousand residents). In addition, Southbury agreed to strategically address any new deficiencies or risks to residents' health or lives. Although the consent decree could only be enforced by those party to it, the defendants agreed to submit quarterly progress reports to the court. The court approved the consent decree on December 26, 1986, just four days after denying the Messier plaintiffs' petition for intervener status.
Connecticut's compliance with the consent decree was rocky from the start. On July 28, 1987, the State petitioned the court to extend some of the consent decree's original deadlines because approval of the remedial plan was taking longer than expected. The court did not approve the remedial plan until July 22, 1988. On April 24, 1990, the court issued a remedial order directed to deficiencies in individualized planning, program staffing, medical treatment, and mental health care. Under the 1990 remedial order, Southbury's staff was required to monitor medicated residents for side effects, especially tardive dyskinesia. In addition, the court mandated monthly human rights reviews for residents with aggressive or self-injurious behaviors and for residents on psychotropic medications. Finally, the State was instructed to hire more physicians (general practitioners and specialists) and nurses to serve residents at Southbury. On December 1, 1991, the court modified the 1990 remedial order.
Dissatisfied with the effects of the consent decree, Southbury's residents filed Messier v. Southbury Training School in 1994. On March 5, 1996, the court denied the Messier plaintiffs' motion to consolidate their lawsuit with United States v. Connecticut. The court, however, agreed that Southbury was still not providing adequate services to persons with developmental disabilities. On June 19, 1996, the court held the State in contempt of the consent decree, remedial plan, and remedial orders and appointed a Special Master (David Ferleger) to oversee compliance. United States v. Connecticut, 931 F. Supp. 974 (D. Conn. 1996), appeal dismissed, No. 96-6218, 1997 WL 321594 (2d Cir. June 13, 1997). The court was especially concerned by the rates and causes of mortality at Southbury. For instance, one resident died from severe burns after he lit his clothes on fire while smoking. The court noted that Southbury knew that the resident smoked unsafely, but neither taught him how to smoke safely nor observed him when he smoked.
Between July 30, 1997, and February 22, 2006, the Special Master submitted twenty-six status reports, sixty-three topic-specific reports, and numerous other reports, recommendations, and analyses. Based on the docket, it appears that the Special Master addressed (1) individualized planning, (2) community placement policies, (3) abuse and neglect, (4) the rights of persons with disabilities, (5) human rights and behavioral programming reviews, (6) occupational and physical therapy, (7) medical and dental care, (8) dosage benchmarks, (9) physical restraint techniques and standards, (10) mortality investigations, (11) case management and advocacy, (12) quality assurance plans, (13) facility upkeep, safety, and sanitation, (14) transportation, (15) employment of direct care staff, medical professionals, and specialized therapists, and (16) staff development. The defendants contested most of the Special Master's reports, but the court ultimately accepted all of them. For instance, on February 22, 2004, the court accepted and adopted the Special Master's report on Southbury's development of mortality review procedures.
It appears that the court began removing components of the consent decree from active judicial oversight in August 2000. On November 22, 2002, the Messier plaintiffs again requested intervener status, but the court denied their request on January 7, 2003. On June 24, 2004, the court similarly denied a motion by the Messier plaintiffs to file an amicus curiae brief about compliance with the consent decree.
On June 20, 2005, the parties filed a revised joint settlement agreement, which would have released all outstanding elements of the consent decree from active judicial oversight. The court, however, refused to endorse the agreement on July 21, 2005. The court was apparently concerned about continued deficiencies in habilitation programming and medical care. On September 16, 2005, the State filed a notice of appeal to the United States Court of Appeals for the Second Circuit, but did not request that the district court proceedings be stayed. On January 17, 2006, the Special Master reported that the State had successfully implemented comprehensive habilitation programming for all persons served at Southbury. On February 26, 2006, the Special Master's medical consultant issued a similar report regarding the adequacy of medical care.
On March 25, 2006, the court issued an order purging the defendants of contempt and concluding judicial oversight of the consent decree and remedial plan. The court, however, retained jurisdiction over the consent decree and remedial order for enforcement purposes. Between March 24 and June 25, 2006, the court declared all outstanding motions moot, finalized payment to the Special Master, and ordered the return of unused Special Master funds to the State. On June 25, 2006, Connecticut withdrew its joint settlement agreement appeal. Today, Southbury's website embraces the philosophy of community placement and acknowledges that future challenges will require Southbury to continue to grow and develop. On November 2, 2009, the Court granted a joint motion to dismiss the case because the parties agreed that the consent decree and remedial plan were fully implemented.
Plaintiff Description United States Department of Justice, on behalf of residents of an institution for people with intellectual disabilities.


Final settlement of a contractor's account within the meaning of the Act of August 13, 1894, c. 280, 28 Stat. 278, as amended February 24, 1905, c. 778, 33 Stat. 811, is not when the final payment is made, but is the final administrative determination by the proper authority of the amount due; in this case, held that a suit by a subcontractor against the surety commenced six months after date of such determination, but less than six months after payment, was not prematurely brought, no action having been brought meanwhile by the United States.
Where the action on the contractor's bond was brought within the proper time, an amendment made after the expiration of such time, which does not set up a new or different cause of action, but merely corrects a defective statement, may be allowed. Texas Cement Co. v. McCord, 233 U. S. 157.
The contested liability of a surety on a contractor's bond is not to be determined in equity; the action under the Act of 1894 as amended in 1905 is one at law.
If the surety does not contest, but pays into court the full amount of liability, discharging all liability as provided by the statute, the proceeding is simply one for distribution of a fund in court.
Where a sub-contractor was not one of the original plaintiffs and there was no intervention on its behalf, held that a judgment could not be rendered in its favor more than a year after final settlement of the contractor's claim; nor does the fact that one claiming, but not proving such claim, to be its assignee was made a party plaintiff amount to a sufficient and timely filing of the claim of such a subcontractor.
215 F. 334 modified and affirmed.
The facts, which involve the construction of the Materialmen's Acts of 1894 and 1905 and the rights of subcontractors thereunder, are stated in the opinion.
This action was brought by subcontractors under the Act of August 13, 1894 (c. 280, 28 Stat. 278), as amended by the Act of February 24, 1905 (c. 778, 33 Stat. 811), in the name of the United States to recover upon a contractor's bond. The contract was for the construction of a post office building in Aiken, South Carolina (Act of March 30, 1908, c. 228, 35 Stat. 526, 528), and the Illinois Surety Company (plaintiff in error) was the surety. The summons and complaint were filed on March 4, 1913. Motion to dismiss was made on September 22, 1913, upon the ground that the complaint did not allege that there had been a completion and final settlement of the contract between the contractor and the United States, or that there had been such completion and settlement more than six months, and within one year prior to the commencement of the action.
"furnished to it a certified copy of the contract and bond, and that, on the 6th day of March, 1913, . . . the present action was instituted by the filing. . . . and by service of summons and complaint on defendant Surety Company."
It also appeared that no action had been instituted by the United States upon the bond within the six months allowed by the statute.
The district court gave judgment for amounts found to be due to those for whose benefit the action was brought, and to certain interveners, and this judgment was affirmed by the circuit court of appeals, 215 F. 334. The contentions presented are: (1) that the action was instituted prematurely, (2) that the amendment of the complaint was improperly allowed, (3) that there was no right of action at law, and (4) that the court erred in giving judgment for the Carolina Electrical Company, one of the subcontractors.
"If no suit should be brought by the United States within six months from the completion and final settlement of said contract, then the person or persons supplying the contractor with labor and materials shall, upon application therefor, and furnishing affidavit . . . be furnished with a certified copy of said contract and bond, upon which he or they shall have a right of action, and shall be, and are hereby, authorized to bring suit in the name of the United States . . . against said contractor and his sureties, and to prosecute the same to final judgment and execution; Provided, That . . . it shall not be commenced until after the complete performance of said contract and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract, and not later."
for payment to the contractor on September 11, 1912, and that, in this view, the action was brought too soon.
It was evidently the purpose of the Act of 1905 to remedy the defect in the Act of 1894 by assuring to the United States adequate opportunity to enforce its demand against the contractor's surety, and priority with respect to such demand. Mankin v. Ludowici-Celadon Co., 215 U. S. 533, 215 U. S. 538; United States v. Robinson, 214 F. 38, 39-40. Accordingly, it was provided that, if the United States sued upon the bond, the described creditors should be allowed to intervene and be made parties to the action, but subject "to the priority of the claim and judgment of the United States." And it was only in case the United States did not sue within the specified period that the creditors could bring their action. With this object in view -- to protect the priority of the United States and at the same time to give a remedy to materialmen and laborers on the contractor's bond and a reasonable time to prosecute it (Bryant v. N.Y. Steamfitting Co., 235 U. S. 327, 235 U. S. 337) -- it was natural that the time allowed exclusively for action by the government should begin to run when the contract had been completed, and the government, in its final adjustment and settlement according to established administrative methods, had determined what amount, if any, was due. Then the government would have ascertained the amount of its claim, if it had one, and could bring suit if it desired. As such determinations are regularly made in the course of administration, nothing would seem to be gained by postponing the date, from which to reckon the six months, to the time of payment. Indeed, if an amount were found to be due from the contractor, and he was insolvent, there might be no payment, and if payment were essential, there would be no date from which the time for the bringing of the creditors' action could be computed.
"all claims and demands whatever, by the United States or against them, and all accounts whatever in which the United States are concerned either as debtors or as creditors, shall be settled and adjusted in the Treasury Department."
"Thus, it is seen that all claims against the United States are to be settled and adjusted 'in the Treasury Department,' and that is located 'at the seat of government.' The assistant treasurer in New York is a custodian of the public money, which he may pay out or transfer upon the order of the proper department or officer, but he has no authority to settle and adjust -- that is to say, to determine upon the validity of -- any claim against the government. He can pay only after the adjustment has been made 'in the Treasury Department,' and then upon drafts drawn for that purpose by the treasurer."
"the balances which may from time to time be certified by the auditors to the Division of Bookkeeping and Warrants or to the Postmaster General upon the settlements of public accounts shall be final and conclusive upon the executive branch of the government,"
"any person accepting payment under a settlement by an auditor shall be thereby precluded from obtaining a revision of such settlement as to any items from which payment is accepted,"
and to have failed to pay the amount of their indebtedness into the Treasury.
We should not say, of course, that instances may not be found in which the word "settlement" has been used in acts of Congress in other senses, or in the sense of "payment." But it is apparent that the word "settlement" in connection with public contracts and accounts, which are the subject of prescribed scrutiny for the purpose of ascertaining the rights and obligations of the United States, has a well defined meaning as denoting the appropriate administrative determination with respect to the amount due. We think that the words "final settlement" in the Act of 1905 had reference to the time of this determination when, so far as the government was concerned, the amount which it was finally bound to pay or entitled to receive was fixed administratively by the proper authority. It is manifestly of the utmost importance that there should be no uncertainty in the time from which the six months' period runs. The time of the final administrative determination of the amount due is a definite time, fixed by public record and readily ascertained. As an administrative matter, it does not depend upon the consent or agreement of the other party to the contract or account. The authority to make it may not be suspended or held in abeyance by refusal to agree. Whether the amount so fixed is due in law and fact undoubtedly remains a question to be adjudicated if properly raised in judicial proceedings, but this does not affect the running of the time for bringing action under the statutory provision.
"The Department treats as the date of final settlement mentioned in said acts [referring to the Acts of 1894 and 1905, supra] the date on which the Department approves the basis of settlement under such contract recommended by the supervising architect, and orders payment accordingly."
and in this there was no error. Rev.Stat. § 954; Missouri, Kans. & Tex. Ry. v. Wulf, 226 U. S. 570, 226 U. S. 576.
"The allowance of a docket fee of $10 to each claimant appears to us to be correct. Rev.Stat. § 824. The claims are several, and represent distinct causes of action in different parties, although consolidated in a single suit."
In the circuit and district courts and in the circuit courts of appeals, while it seems that objection has rarely been made, there has been almost complete uniformity in treating the creditors' action under the Act of 1905 as one at law. See United States v. Winkler, 162 F. 397; Stilzer v. United States, 182 F. 513; United States v. Boomer, 183 F. 726; United States v. Illinois Surety Co., 195 F. 306; Baker Contract Co. v.
United States, 204 F. 390; Eberhart v. United States, 204 F. 884; United States v. Bailey, 207 F. 783; Vermont Marble Co. v. National Surety Co., 213 F. 429; United States v. Robinson, 214 F. 38; United States v. Massachusetts Bonding Co., 215 F. 241; United States v. Emery, 225 F. 287; United States v. Illinois Surety Co., 226 F. 653. It was expressly held to be an action at law in United States v. Stannard, 207 Fed.198, 202. The contrary conclusion was reached in United States v. Wells, 203 F. 146, 147; Illinois Surety Co. v. United States, 212 F. 136, 139, and United States v. Scheurman, 218 F. 915, 919. The point was raised on rehearing in United States v. Illinois Surety Co., but, as it came too late, it was not decided.
"the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor and materials in the prosecution of the work provided for in such contract."
thereon." If the United States does not sue within the time specified, they may bring action on the bond in the name of the United States, and "prosecute the same to final judgment and execution." Any creditor who duly presents his claim in such an action becomes a party thereto with a distinct cause of action. Title Guaranty Co. v. Crane Co. , supra. The obligation of the surety thus enforced in a single action is a legal obligation to the United States for the use and benefit of the several claimants. We do not regard the requirements that "the claim and judgment of the United States" shall have priority, and that the aggregate recovery shall not exceed the penalty on the bond, as insuperable obstacles to proceeding at law. It is the case of an undertaking for the payment of many claims, not to exceed the specified penalty. If the total amount due exceeds the penalty of the bond, it is provided that "judgment shall be given to each creditor pro rata of the amount of the recovery." This, however, merely requires an arithmetical calculation after the different causes of action have been passed upon, and the amount due upon each determined. We see no ground upon which the conclusion can be justified that the liability of the surety on its bond is to be determined in equity. The contrary has been the generally accepted, and we think the correct, practice.
It should be added that a different situation would arise if the surety, availing itself of the statutory privilege, should pay into court the full amount of its liability, to-wit, the penalty on the bond, for distribution. In that case, the legal obligation of the surety would be discharged by the express terms of the statute, and the proceeding would be simply for the distribution of a fund in court.
Engineering & Contracting Company, assignee of Joseph B. Cheshire, Jr., receiver of the Carolina Electrical Company." The complaint set forth that the Carolina Electrical Company (a North Carolina corporation) had furnished to the contractor certain material and labor for which there remained unpaid the sum of $498.69; that, on October 4, 1912, Joseph B. Cheshire, Jr., was appointed receiver of that company, and that, on March 1, 1913, its claim had been "assigned and transferred for value" to the above-named plaintiff by the receiver, and that the plaintiff was the sole owner of the account, and had succeeded to all the rights incident thereto which had belonged to the Carolina Electrical Company. The alleged transfer was denied. Evidence was introduced to show the incorporation and the appointment of the receiver. The district judge found that the order proved was insufficient to establish the authority of the receiver to assign the claim, but held that the proceeding in the case was a sufficient filing of the claim on behalf of the Carolina Electrical Company. Judgment was awarded in favor of that company, with direction that it should be paid "only to such person as may be authorized by law to receive it for said Carolina Electrical Company," and the judgment to this effect was affirmed.
& Contracting Company, was not a nominal party, nor was the action in any sense brought for the benefit of the Carolina Electrical Company. The record shows that it was brought, so far as this claim is concerned, solely for the benefit of the Electrical Engineering & Contracting Company upon the allegation that the claim had been assigned to it for value, and that it was the exclusive and beneficial owner. According to the record, the Carolina Electrical Company was not made a party at any stage of the action unless this was accomplished by the decision and the judgment. But, at the time of the decision, November 10, 1913, by reason of the express limitation of the statute, it was too late for that company to intervene.
The judgment is modified by striking out the provision in favor of the Carolina Electrical Company, and, as thus modified, is affirmed.
* The statute is set forth in full in the margin of the opinion in the case cited.