1. A statute of Louisiana provides that a person who has produced oil under a lease granted by the last record owner holding under a deed sufficient in terms to transfer title shall, in the absence of a suit to test title, be presumed to be the true owner of the oil; that it shall be unlawful for a purchaser of oil from such a person to withhold payment therefor, and that a purchaser making payment to such a person shall be fully protected against all other claimants. Held that, upon the facts of this case, a purchaser thus required to make payment was not deprived of any rights under the Constitution of the United States. P. 304 U. S. 198.
Though the purchaser here claimed that it would be left liable to the "true owner," it appeared that there had elapsed nearly eleven years since the deed was made to the last record owner, and four years since the oil was purchased and delivered; it did not appear that there was any other claimant, nor that the purchaser had tendered payment into court for the benefit of the "true owner," as it might have done under the state law.
2. A constitutional question will not be decided unless its decision be necessary on the record before the Court. P. 304 U. S. 202.
Appeal from the affirmance of a judgment sustaining a judgment in favor of the relator in an action to recover the value of oil sold and delivered.
. . . in the manner relied upon . . . , would require . . . [appellant] to pay to . . . [appellee] the value of property which did not belong and never has belonged to . . . [appellee], thereby leaving [appellant] responsible and liable to the true owner of such property for the value thereof, and in that manner depriving . . . [appellant] of its property without due process of law, and denying to it the equal protection of the laws contrary to the provisions and requirements in the Constitution of the United States and of the Louisiana."
of conveyance is sufficient to pass title in Louisiana, and in the absence of any suit filed to test the title of the land or oil or due notice by registered mail of the filing of such suit. Section 3 authorized purchasers to delay payment for purchases previously made until a lapse of 60 days after effective date of the act (August 1, 1934), and denied protection to purchasers who paid the "last record" owner before the expiration of that period. The Louisiana Court of Appeal decided this 60-day period was, in effect, a short statute of limitations as against any possible owners not shown of record.
The district court of Caddo parish rendered judgment for appellee. The Louisiana Court of Appeal, Second Circuit, sustained, [Footnote 2] and the Supreme Court of Louisiana denied certiorari. The presiding judge of the Louisiana Court of Appeal granted an appeal to this Court under authority of 28 U.S.C. § 344(a).
". . . the said lands, having been forfeited to the Louisiana for nonpayment of taxes on July 31, 1915, as appears from the forfeiture . . . are the property of the State of Louisiana."
"We experience little difficulty in determining the legislative intent in adopting this act. It supplied a long felt need, and in its operative effect will serve to prevent imposition upon and unjust discrimination against those whom it was intended to protect. The act establishes a rule of conduct for the protection of lessors and their assigns under oil and gas leases, and also a rule of security and safety for lessees and those holding under or purchasing from them. . . . The act was designed also to protect those persons whose rights arose from or are based upon contracts with the last record owner of the lands covered thereby, and to those who deal with or acquire from such persons."
"Over eight years had elapsed when this suit was filed, and the company [transferor in the deed of record], the only person to complain, had not raised its voice in protest of its officers' action."
"protects the purchaser in paying the price to the one from whom the oil has been purchased, and, under the express declarations of the Act, no recourse may thereafter be had by any third person or adverse claimant against such buyer."
Muslow in 1933 and 1934 will not deprive appellant of any rights under the Federal Constitution.
"It is matter of common occurrence -- indeed, it is almost the undeviating rule of the courts, both state and Federal -- not to decide constitutional questions [of the validity of a State Act] until the necessity for such decision arises in the record before the court."
Baker v. Grice, 169 U. S. 284, 169 U. S. 292. We see no such necessity here. The judgment appealed from is affirmed.
"Any person, firm or corporation that has actually drilled or opened on any land in this State, under a mineral lease granted by the last record owner, as aforesaid, of such land or of the minerals therein or thereunder if the mineral rights in and to said land have been alienated, who holds under an instrument sufficient in terms to transfer the title to such real property, any well or mine producing oil, gas or other minerals shall be presumed to be holding under lease from the true owner of such land or mineral rights and the lessor, royalty owner, lessee or producer, or persons holding from them, shall be entitled to all oil, gas or other minerals so produced, or to the revenues or proceeds derived therefrom, unless and until a suit testing the title of the land or mineral rights embraced in said lease is filed in the district court of the parish wherein is located said real property. A duly recorded mineral lease from such last record owner shall be full and sufficient authority for any purchaser of oil, gas or other minerals produced by the well or mine aforesaid to make payment of the price of said products to any party in interest under said mineral lease, in the absence of the aforementioned suit to test title or of receipt, by such purchaser, of due notification by registered mail of its filing, and any payment so made shall fully protect the purchaser making the same, and so far as said purchaser is concerned as against all other parties, the producer of such oil, gas or other minerals shall be conclusively presumed to be the true and lawful owner thereof."
State v. Louisiana Oil Rfg. Co., 176 So. 686.
The Louisiana Oil Refining Corporation went through reorganization proceedings under § 77B of the Bankruptcy Act after suit was originally filed against it by Muslow. The Arkansas Fuel Oil Co. succeeded to its asserts and liabilities, and was substituted as defendant.
State ex rel. Boykin v. Hope Producing Co., 167 So. 506, 510.
Acts of La. No. 123 of 1922, La.Gen.Stat. (Dart) §§ 1556-1563; cf. Shell Petroleum Corp. v. Carter, 187 La. 382, 175 So. 1; see Cassard v. Woolworth, 165 La. 571, 575, 115 So. 755.


2016—Pub. L. 114–328, div. A, title V, § 502(p)(3), (r)(3), Dec. 23, 2016, 130 Stat. 2104, substituted “Army Medical Specialist Corps: organization; Chief” for “Army Medical Specialist Corps: organization; Chief and assistant chiefs” in item 3070 and “Chief of Veterinary Corps” for “Chief of Veterinary Corps: grade” in item 3084.
2002—Pub. L. 107–314, div. A, title V, § 504(b)(2), Dec. 2, 2002, 116 Stat. 2531, added item 3084.
1997—Pub. L. 105–85, div. A, title V, § 596(b), Nov. 18, 1997, 111 Stat. 1766, added item 3083.
1996—Pub. L. 104–201, div. A, title V, § 502(c)(1), Sept. 23, 1996, 110 Stat. 2511, substituted “Chief and assistant chief; appointment; grade” for “chief and assistant chief; appointment” in item 3069.
1994—Pub. L. 103–337, div. A, title X, § 1070(a)(16), title XVI, § 1672(b)(1), Oct. 5, 1994, 108 Stat. 2856, 3015, struck out items 3076 “Army Reserve: composition”, 3077 “Army National Guard of United States: composition”, 3078 “Army National Guard: when a component of Army”, 3079 “Army National Guard of United States: status when not in Federal service”, and 3080 “Army National Guard of the United States: authority of officers with respect to Federal status”, struck out “3082.” before “Army” in item 3082, and then struck out item 3082 “Army National Guard combat readiness reform: annual report”.
1993—Pub. L. 103–160, div. A, title V, § 521(b), Nov. 30, 1993, 107 Stat. 1655, added item 3082.
1980—Pub. L. 96–513, title V, § 502(3), Dec. 12, 1980, 94 Stat. 2909, struck out item 3066 “Generals and lieutenant generals”.
1978—Pub. L. 95–485, title VIII, §§ 805(b)(2), 820(b), Oct. 20, 1978, 92 Stat. 1622, 1627, struck out item 3071 “Women’s Army Corps: Director; Deputy Director; other positions” and added item 3081.
1968—Pub. L. 90–329, June 4, 1968, 82 Stat. 170, substituted “Army Medical Department” for “Army Medical Service” in item 3067.
1967—Pub. L. 90–130, § 1(8)(D), Nov. 8, 1967, 81 Stat. 375, substituted “composition; chief and assistant chief” for “Chief” in item 3069.
1960—Pub. L. 86–603, § 1(2)(B), July 7, 1960, 74 Stat. 357, added item 3080.
1957—Pub. L. 85–155, title I, § 101(3), Aug. 21, 1957, 71 Stat. 376, substituted “Army Medical Specialist Corps” for “Women’s Medical Specialist Corps” in item 3070.


1. A respondent in certiorari who did not seek review for himself is not entitled to question the correctness of the decree of the court below. P. 279 U. S. 576.
2. Semble that the amount realized by an insured, over and above premiums paid, when, by exercising an option in his policy, he receives in his lifetime the amount of the policy plus accumulated dividends, is within the provisions of § 213 of the Revenue Act of 1918 taxing "gains or profits and income derived from any source whatever," and not exempted as such by any other provision of the Act. Id.
3. That part of the gain so received which is attributable to and accrued during the period before the effective date of the Sixteenth Amendment (February 25, 1913), and of the first law taxing the income of individuals (March 1, 1913), must be deemed an accretion to capital not taxable by the income tax acts enacted after the Amendment. P. 279 U. S. 577.
4. In determining what part of such total gain accrued to the taxpayer after March 1, 1913, provisions of the taxing statute enacted as aids in arriving at the answer must be so construed as to avoid doubts as to its constitutionality. Id.
5. The purpose of ascertaining the value of a taxpayer's property on March 1, 1913 (Revenue Act of 1918, § 202(A)(1)), is to measure that part of his total gain which had arisen or accrued after the enactment of any of the statutes taxing income, and thus to arrive at his gain taxed as income. Value as of that date may be disregarded unless it serves that purpose. P. 279 U. S. 578.
6. In applying § 202(A)(1) to an insurance policy having no market value, which was liquidated by the insured, its value on March , 1913, need not be determined by making a prediction as of that time based upon an estimate of future possibilities; the 1913 value is, at most, but a method of allocating a known income to the periods in which it actually accrued. P. 279 U. S. 579.
7. The taxpayer insured his life in 1899 under deferred dividend policies which he fully paid up by 1908. Dividends were payable only if he were living and the policies in force twenty year from date of issue. At the end of that period (1919), exercising an option, he discontinued the insurance and received the face value of the policies and the accumulated dividends.
(1) That the value of the policies as of March 1, 1913, was not their cash surrender or loan value on that date, nor was the taxable gain the amount by which the proceeds of the policies exceeded the total premiums paid. P. 279 U. S. 578.
(2) That (upon the evidence presented and for the purposes of this case), the value which had accrued on March 1, 1913, could be taken as the total of the insurance reserve liability and dividend accumulations provisionally apportioned to the policies on the company's books at that date. P. 279 U. S. 580.
Certiorari, 278 U.S. 594, to review a judgment of the circuit court of appeals which affirmed a judgment recovered by A. J. A. Alexander in the district court, 21 F.2d 68, in an action for money illegally collected as income taxes. The present respondents were substituted in this Court, as executors, after the plaintiff's death.
Revenue of federal income taxes alleged to have been illegally exacted.
On May 19, 1899, respondents' testator procured two life insurance policies for $50,000 each upon his own life and payable to his estate. On May 19, 1908, they became fully paid-up policies, upon the payment of the last of ten annual premiums aggregating, for both policies, $78,100. Each policy stipulated that, in the event of death within ten years, the amount payable should be $50,000 and, from the eleventh to the twentieth year, inclusive, an annually increasing amount ranging from $50,700 in the eleventh year to $72,150 in the twentieth year. The death benefit on each policy during the year ending May 19, 1913, was $59,300. The policies participated in the surplus of the company, and "dividends" properly allocable to each were set aside or ascertainable on its books each year, but were payable only at the end of the tontine period of 20 years and only to holders of policies still in force at that time.
The insured was given an option at the end of the period of receiving on each policy the sum of $50,000 "and in addition the cash dividend then apportioned by the company." The insured elected to exercise this option May 19, 1919, receiving as proceeds of the two policies $120,797, representing $100,000 face value plus $20,797 dividends. The gain to him over his total premium expenditure was thus $42,697. The commissioner assessed this amount as taxable income under the Revenue Act of 1918, c. 18, 40 Stat. 1057.
applicable to the two policies on that date was $13,600, and that it was then evident that the rate of accumulation, although not certain, would probably be greater during the later years of the tontine period than before March 1, 1913. Even at the same rate, the accumulation at the end of the period would amount to $19,428.57. Both courts therefore concluded that the insured might reasonably have anticipated that the policies would have been worth on their maturity date, if then in force, their face value plus the anticipated accumulations, or a total for both policies of $119,428.57. Since, under the sliding scale, the death benefits would have been even proportionately larger had the insured died before the end of the period, they decided that the combined value of the policies on March 1, 1913, was the smaller amount discounted at the rate of 4 percent compounded annually to that date, or $93,587.81. The taxable gain on the policies accordingly was taken to be the difference between this amount and the actual proceeds of the policies, or $27,209.19. A recovery was allowed of the difference between the tax as assessed and that as computed on the gain after March 1, 1915, so ascertained.
As respondents did not ask certiorari, we may disregard their argument that the judgment below was erroneous in that the proceeds of an insurance policy paid to the insured are not taxable income except as the determination of that question may be involved in passing upon the assignments of error of petitioner. See Federal Trade Commission v. Pacific Paper Assn., 273 U. S. 52, 273 U. S. 66.
was whether insurance upon the life of a corporate officer, paid at his death to the corporation, could be constitutionally subjected to a tax on income. Here, the amount paid was not a death benefit or in the nature of a gift to a beneficiary, and was in no sense an indemnity for, or repayment of, an economic loss suffered by the insured, but was a profit or gain upon his premium investment, and would seem to be plainly embraced within the provisions of § 213 taxing "gains or profits and income derived from any source whatever," and not exempted as such from tax by any other provision of the Act. See Penn. Mutual Co. v. Lederer, 252 U. S. 523, 252 U. S. 532, 252 U. S. 534; Eisner v. Macomber, 252 U. S. 189, 252 U. S. 207; Merchants' Loan & Trust Co. v. Smietanka, 255 U. S. 509, 255 U. S. 518.
But, of this total gain received by the insured, a part is attributable to and accrued during the period before the effective date of the Sixteenth Amendment (February 25, 1913), and of the first law taxing the income of individuals (March 1, 1913), and hence, for income tax purposes, must be deemed an accretion to capital not taxable by the income tax act enacted under the Sixteenth Amendment. See Southern Pacific Co. v. Lowe, 247 U. S. 330, 247 U. S. 334; cf. Doyle v. Mitchell Bros. Co., 247 U. S. 179; Lynch v. Turrish, 247 U. S. 221. Whether or not such accretions may be constitutionally subjected to tax we have no occasion to decide. The present Act, at least, does not attempt it. But the question presented necessarily involves a determination of what part of the total gain received by the taxpayer accrued to him after March 1, 1913. In answering it, provisions of the taxing statute enacted as aids in arriving at the answer must be construed with an eye to possible constitutional limitations so as to avoid doubts as to its validity. United States v. Delaware & Hudson Co., 213 U. S. 366, 213 U. S. 407-408; United States v. Standard Brewery, 251 U. S. 210, 251 U. S. 220; Texas v. Eastern Texas R.
Co., 258 U. S. 204, 258 U. S. 217; Bratton v. Chandler, 260 U. S. 110, 260 U. S. 114; Panama R. Co. v. Johnson, 264 U. S. 375, 264 U. S. 390.
"(a) That, for the purpose of ascertaining the gain derived or loss sustained from the sale or other disposition of property, real, personal, or mixed, the basis shall be:"
"(1) In the case of property acquired before March 1, 1913, the fair market price or value of such property as of that date."
The government insists that the policies, being nonassignable except to persons having an insurable interest in the life of the insured, had no market price, and their combined value as of March 1, 1913, did not exceed their loan or cash surrender value on that date, which alone could be realized on them, of $74,600, Regulations 45 (1920) Art. 87, and that any greater value assigned to them as of that date must be rejected as contingent and speculative. But, in view of the provisions of § 213(b)(2) of the Act, see Regulations 45 (1920) Art. 72(b), exempting from taxation the return of premiums on the maturity of the policy, it concedes that the taxable gain of the insured may be taken at the amount, fixed by the Commissioner, by which the proceeds of the policies exceeded $78,100, the total premiums paid.
Plainly, in the present case, the $42,697 gained over premium cost of the two policies, which accrued to the taxpayer through a period of 20 years, did not all accrue in the six years following March 1, 1913. If the value on that date, for the purpose of ascertaining taxable gain, was greater than the total premium expenditure which had been completed more than four years before, there is no reasonable basis for determining the taxable gain which accrued after March 1, 1913, by deducting from the total amount received the total premium payments.
exceed their loan value as of that date. The purpose of ascertaining the value of the taxpayer's property on March 1, 1913, is, as § 202 states, to measure that part of his total gain which has arisen or accrued after the enactment of any of the statutes taxing income, and thus to arrive at his gain which may be taxed as income. Lynch v. Turrish, supra. Value as of that date may be disregarded unless it serves that purpose. United States v. Flannery, 268 U. S. 98; Goodrich v. Edwards, 255 U. S. 527; Walsh v. Brewster, 255 U. S. 536.
Under the statute, market price of the taxpayer's property on that date, where ascertainable, may be resorted to as generally a sufficiently definite and trustworthy gauge of the gain which has later accrued. But where the property has no market value, the statute must be interpreted in the light of its purpose to ascertain taxable gains accruing since March 1, 1913. Hence, in such a case, its fair value on the critical date is not necessarily what might then have been realized upon it by a forced liquidation by accepting the unfavorable loan or cash surrender value. Having in mind the purpose of the statute, we think it must be taken rather to be that part of the amount actually realized by the taxpayer which, by the use of appropriate accounting methods, can fairly be said to have accrued before March 1, 1913 -- its value then, as compared with the value in fact later realized by the taxpayer taken as a standard.
In applying § 202(a)(1) to an insurance policy having no market value, we are not required either by circumstances or any positive provision of statute to determine its value on March 1, 1913, by making a prediction as of that time based upon and estimate of future possibilities, as is the case in valuing for purposes of inheritance tax an interest of uncertain duration passing at the death of the testator. See Ithaca Trust Co. v. United States, ante, p. 279 U. S. 151.
There, the value as of the date of death is the very thing taxed, and can usually be determined only by speculation as to future events. Here, 1913 value is, at most, merely a method of allocating a known income to the periods in which it actually accrued. It is never necessary to speculate, as did the court below, as to what might later be realized from his property by the taxpayer, nor as to what might have been realized if, on March 1, 1913, he had made some forced disposition of the property which would have precluded any taxable gain. For the necessity of ascertaining value as of March 1, 1913, can never arise until some later date when income has been produced by converting the property into money or money's worth and the amount actually realized is known, and then, as we have said, only for the purpose of apportioning the total gain which has accrued between the periods before and after March 1, 1913.
each policy, for the former $50,000 and for the latter $10,398.50, which, taken together, made up the total payment received by the taxpayer on each policy. They constitute a complete record and determination of the actual economic gain annually accruing upon the policies which was ultimately realized by the taxpayer, and they provide an adequate basis for ascertaining the proportion of the total value realized which had accrued on March 1, 1913. The sum of the insurance reserve liability and the dividend accumulations provisionally apportioned to the two policies on March 1, 1913, their accrued value on that date, was $94,800. As that valuation is larger than that found by either of the lower courts, and is supported by reliable data, we may, in the absence of other evidence, accept it as sufficiently establishing that the value found below was not more than that required to be ascertained by the statute, and so did not prejudice the rights of petitioner. It is unnecessary to consider the question mooted whether, upon other evidence not here presented, a larger value as of March 1, 1913, might have been found.


text:
The Eugene V. Debs Foundation is saddened to report the passing of Professor J. Robert Constantine, the last surviving founder of the Eugene V. Debs Foundation, who passed away at his home in Austin, Texas, on Thursday, May 25, 2017, at the age of 93. In 1962, he was the member of a small group who raised money and negotiated the purchase of the Debs Home from a local developer, thus saving the home from the wrecking ball. Bob served as Foundation Secretary from 1962 until 1983 and was a long time professor of American History at Indiana State University, retiring in 1989.
Professor Constantine edited the 3 volume “Letters of Eugene V. Debs”, published by the University of Illinois Press in 1990, and prepared an abridged 1 volume edition, “Gentle Rebel” that was released in 1995. He was also the author of numerous articles.
In his role as a founder and the organization’s first secretary, Bob worked tirelessly to restore and preserve the Debs Home, raised funds and built up the foundation’s membership. For more than 20 years, he organized Debs Award dinners, handled the groups correspondence as well as completing numerous administrative functions and doing this all without a salary!
Ben Hanford, the 1904 & 1908 Socialist Party Vice Presidential nominee created a fictional character known as “Jimmie Higgins”. It was “Jimmie” that performed the silent, unglamorous, behind the scenes work that allowed the party to achieve its success. Bob Constantine was a scholar, a friend and through his tireless efforts for the Eugene V. Debs Foundation, he was our “Jimmie Higgins”!
Thank you Bob and rest in peace.
The home and museum dedicated to the memory of Terre Haute’s own Eugene V. Debs (1855-1926) stands in the heart of Indiana State University. I remember the home, when it housed the Theta Chi Fraternity. It is amazing that the beautiful oak woodwork and glassed enclosed bookcases, which frame the fireplace in the parlor are so well-preserved, surviving fraternity party life.
A few days ago, I decided to visit the Debs home after learning that my favorite professor from my ISU years, Dr. J. Robert Constantine, had passed away at 93 in his home in Austin, TX on May 25, 2017. Dr. Constantine taught history; I had him for numerous undergraduate and graduate course, since I majored in history and have my Master’s in American history.
Dr. Constantine retired from ISU in 1989. For a number of years, I lost track of him when he moved to College Station, TX. However, in the late nineties we reconnected, when I visited him during one of my preaching engagements at Texas A&M. I was pleased that he was interested enough in my mission that he came out to campus to listen for about an hour. This began an annual visit with the professor, which continued after he moved to Austin; there we had dinner together whenever I was speaking at UT.
Dr. Constantine was the foremost Debs scholar and was the last living founder of the Debs Foundation, which owns the Debs home and museum. I concluded that a visit to the Debs Memorial was a fitting tribute to my late friend and old mentor.
One of the bedrooms is dedicated to James Whitcomb Riley; it contains Riley memorabilia, including poems of Riley and correspondence between Riley and Debs, carefully preserved. Riley stayed in the Debs’ home, when visiting Terre Haute.
I asked my knowledgeable tour guide about the friendship between the sentimentalist Hoosier Poet, Riley and America’s most renown socialist, Debs. She said, Debs had the ability to “forge friendships” with people with other points of view.
On the top floor, the walls are covered with murals painted by Terre Haute artist, the late John Laska, which depicts leading progressives, socialists and communists, including Karl Marx. However, in the midst of the pictures is a dignified portrait of Terre Haute’s leading industrialist and philanthropist, Herman Hulman. Below the portrait is a plaque which reads, HERMAN HULMAN MEMORIAL AUDITORIUM The Gift of His Grandson, Anton Hulman, Jr. 1975.
I said to my tour guide, “Isn’t it ironic that the Hulman family, Terre Haute’s most notable capitalists, contributed the money to finance this auditorium with these impressive murals of radicals?” She reminded me that Debs in his twenties had worked for Herman Hulman’s wholesale grocery house for five years. Then again, she reiterated how Debs had a talent for “forging friendships” with men with whom he had political differences and that his views became more radical with the passing of his years. However, there was a mutual respect between Hulman and Debs, until Hulman’s passing in 1913.
Earlier during the tour, I had remarked that Dr. Constantine did not admire President Wilson, who had Debs imprisoned for opposing the draft in WWI; he was found guilty of sedition. It was a Republican president, Harding, who commuted Debs’ sentence, which Wilson refused more than once. After Debs’ release, Harding invited Debs to the White House upon receiving him, he said, “Well, I’ve heard so damned much about you, Mr. Debs, that I am now glad to meet you personally.” Debs was not a sour socialist; he had a warm charismatic personality. Evidently, Harding respected Debs for his willingness to go to prison for his convictions. During his imprisonment, Debs made one of his five runs for the presidency on the Socialist Ticket.
Even though Dr. Constantine and I were at different ends on the political spectrum, we always were able to enjoy one another’s company in our dinner conversation. Sometimes after the passing of his wife instead of going out, he would fix me a sandwich in his home. Dr. Constantine said more than once, “Jed and I don’t agree on a lot of things but that does not make any difference.” I was proud that he would say that I was the best student he ever had, sometimes he would qualify that and say, “one of the best.” He once said that he admired “my moxy” for standing up for what I believed.
We talked some politics and history but mostly about Terre Haute, ISU and mutual friends and acquaintances. When I turned 70, he remarked, “You know you are getting old, when one of your students is 70.” He was 89 then. He said to me, “Call me Bob.” But I never felt comfortable being so familiar, so I addressed him as “Doctor.” I usually would bring up the saving grace of Christ at some point in our conversations; he listened patiently for he was not a particularly religious man; nevertheless, he was a kind man and always a gentleman. Although he was raised a Catholic, he was not practicing. He always allowed me to say grace over our meals and sometimes I would even conclude our visits in prayer.
Dr. Constantine in our correspondence referred to me as “old friend.” At my last call to my old friend this past winter, I had my wife, Cindy, with me. The last few years he was in assisted living so we would just visit in his room. His short-term memory was not so good by now but long-term memory was still intact. He always recognized me and my wife. My last picture of him is concluding our visit with prayer. As we all bowed our heads, my wife and I recited the Lord’s prayer, he repeated it with us.
The Mr. Hulman, and Mr. Riley connections with Mr. Debs set a good example, that men should not allow different politics from hindering a friendship. Friendship should trump politics.
When I walked into the Deb’s memorial, I had to hold back my eyes from a-leakin’ over the passing of my old friend, Dr. Constantine. Yet, I was encouraged by the visit to this interesting and appropriate Terre Haute historical sight.
Donations to the Eugene V. Debs Foundation are being accepted in his memory.

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


D.C. Law Library - Subchapter IV. Obscured Vision.
↪ Subchapter IV. Obscured Vision.
Subchapter V. Automated Traffic Enforcement.
§ 50–2207.02. Tinted windows prohibited.
Definitions applicable: For definitions applicable in this section, see § 50-2201.02.
(B) A rear windshield or rear side windows that allow less than 50% light transmittance.
(B) A rear windshield or rear side windows that allow less than 35% light transmittance.
(b) A motor vehicle may be operated or parked upon the public streets of the District of Columbia with a front windshield that allows less than 70% light transmittance above the AS-1 line, or within 5 inches from the top of the windshield.
(c) Any person who operates or parks a motor vehicle in violation of subsection (a) of this section shall be issued a $50 citation.
(d)(1) Except as provided by subsection (f) of this section, any motor vehicle found to violate subsection (a) of this section shall be required to be inspected at an official District Inspection Station within 5 business days after the finding.
(2) If the motor vehicle is not brought into compliance with subsection (a) of this section by the end of the 5-day period, the owner of the vehicle shall be fined not more than $1,000.
(e)(1) Except as provided by subsection (f) of this section, any motor vehicle found to violate subsection (a) of this section on a second or subsequent occasion shall be required to be inspected at an official District Inspection Station within 5 business days after the second or subsequent finding.
(2) If the motor vehicle is not brought into compliance with subsection (a) of this section by the end of the 5-day period, the owner of the vehicle may be fined not more than $5,000.
(f) Any police officer or other authorized government agent of the District may order the immediate removal of a motor vehicle from the public streets to an official District Inspection Station if the police officer or other authorized government agent determines that the health and safety of the public is at risk due to window tinting in violation of subsection (a) of this section.
(g) No person shall install window tinting on a motor vehicle which is not exempt pursuant to subsection (h) of this section, in the District of Columbia which would cause the motor vehicle to violate subsection (a) of this section if the vehicle were operated or parked on the public streets of the District of Columbia.
(5) Vehicles exempted by the Director of the Department of Motor Vehicles because the owner of the vehicle has a medical condition requiring windows which allows less light than permitted pursuant to subsection (a) of this section.
(i) Nothing in this subchapter shall be construed to modify or affect any federal law concerning the window tinting of motor vehicles that is applicable to manufacturers, importers, dealers, or motor vehicle repair businesses for new or used motor vehicles and equipment.
(j) The Director of the Department of Motor Vehicles is authorized to promulgate rules to implement the provisions this section and to amend existing provisions of Title 18 of the District of Columbia Municipal Regulations to conform to its requirements. Rules promulgated or amended pursuant to this section shall be submitted to the Council for a 45-day period of review, excluding Saturdays, Sundays, holidays, and days of Council recess.
(k) Notice of an infraction issued pursuant to subsections (d)(2) or (e)(2) of this section shall be mailed by U.S. mail to the owner’s last known address in the Department of Motor Vehicles’ records.
(l) Violations of subsections (d)(2) and (e)(2) of this section shall be adjudicated as moving violations.
(m) Answers to notices sent pursuant to subsection (k) of this section shall be in accordance with § 50-2302.05(a), (b), (c), and (e)), and subsection (n) of this section.
(n)(1) A person to whom a notice of infraction has been issued shall answer within 30 calendar days of the date the notice was mailed or within a greater period of time as prescribed by the Director by regulation.
(2) If a person fails to answer the notice within the 30-day period or within the period of time prescribed by the Director, the person’s registration certificate shall be suspended. The notice of the suspension shall be mailed by U.S. mail to the person’s address on the Department’s records. Suspension shall take effect 15 days after the date the notice of suspension was mailed.
(3) The possession by the Department of a copy of the notice of suspension addressed to a person or a copy of the certificate or affidavit provided for in 18 DCMR § 307.7 shall establish a rebuttable presumption that the notice of suspension was received by the person by the date the suspension became effective.
(4) A suspension resulting from a failure to answer shall remain in effect until the person answers the notice, except that once the offense is deemed admitted the suspension may be lifted only by payment of the fine for the offense and any additional penalties imposed pursuant to § 50-2301.05, for failure to answer within the time required by paragraph (1) of this subsection.
(o) The Director shall reject any vehicles appearing for inspection pursuant to Chapter 11 of this title whose window tint violates subsections (a) or (b) of this section.
(p) No points shall be assessed for any violation of this section.
D.C. Law 13-289 rewrote subsecs. (a) and (h); and added subsec. (j).
D.C. Law 15-307 added subsecs. (k) to (p).
For temporary amendment of section, see § 1002 of the Fiscal Year 1999 Budget Support Emergency Act of 1998 (D.C. Act 12-401, July 13, 1998, 45 DCR 4794), § 1002 of the Fiscal Year 1999 Budget Support Congressional Review Emergency Act of 1998 (D.C. Act 12-564, January 12, 1999, 46 DCR 669), and § 1002 of the Fiscal Year 1999 Budget Support Congressional Review Emergency Act of 1999 (D.C. Act 13-41, March 31, 1999, 46 DCR 3446).


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Argued and Submitted Jan. 17, 1941.
Petitioner is the receiver of the Lee County National Bank of Marianna, Arkansas, which in 1933 was declared by the Comptroller of the Currency to be insolvent. On November 6, 1935, the Comptroller assessed its shareholders fifty per centum of the par value of their shares. The assessment was required to be paid on or before December 13, 1935, and the receiver gave notice accordingly. As respondent failed to pay, the receiver brought suit on December 7, 1938, in the District Court of the United States for the Eastern District of Arkansas to recover the amount assessed. Respondent pleaded the Arkansas statute of limitations which provides that such an action must be commenced 'within three years after the cause of action shall accrue'. Pope's Digest of Statutes of Arkansas (1937), Sec. 8928. The District Court sustained the plea and its judgment was affirmed by the Circuit Court of Appeals. Futrall v. Ray, 8 Cir., 111 F.2d 695. Because of a conflict of decisions we granted certiorari. See Strasburger v. Schram, 68 App.D.C. 87, 93 F.2d 246; Reich v. Van Dyke, 3 Cir., 107 F.2d 682; Haight v. First Trust & Deposit Co., 2 Cir., 112 F.2d 572; MacPherson v. Schram, 5 Cir., 112 F.2d 674.
The state statute of limitations is applicable. McDonald v. Thompson, 184 U.S. 71, 72, 22 S.Ct. 297, 46 L.Ed. 437; McClaine v. Rankin, 197 U.S. 154, 158, 25 S.Ct. 410, 411, 49 L.Ed. 702, 3 Ann.Cas. 500. The question is whether the statute began to run on the date of the assessment, as held by the court below, or on the date fixed for payment. The words 'after the cause of action shall accrue' in the Arkansas statute have their usual meaning and refer to 'a complete and present cause of action'. Holloway v. Morris, 182 Ark. 1096, 1099, 34 S.W.2d 750, 752.
The question as to the time when there was a complete and present cause of action so that the receiver could enforce by suit the liability imposed by the Comptroller's assessment is a federal question and turns upon the construction of the assessment and the authority of the Comptroller to make it under the applicable federal legislation.
While the assessment was made on November 6, 1935, it was expressly made payable on or before December 13, 1935. Respondent was allowed until that date to pay and prior thereto suit could not be maintained against him. Hence the statute of limitations did not begin to run until December 13, 1935, and the suit was in time.
The case of Pufahl v. Estate of Parks, 299 U.S. 217, 57 S.Ct. 151, 81 L.Ed. 133 (upon which the court below relied) is not to the contrary. The question now presented was not there involved. In that case, after the death of a stockholder of a national bank, and after the expiration of one year from the date of letters testamentary, the Comptroller of the Currency made an assessment upon the decedent's estate. The state court, applying a state statute, had disallowed the receiver's claim upon the assessment as against undistributed assets in the hands of the executors, which had been inventoried within a year from the date of letters testamentary, because the claim did not accrue and was not presented to the probate court within that period, but allowed the claim as to assets not inventoried within the year. We affirmed the judgment. We said that where an assessment had been made in the decedent's lifetime an accrued and provable debt existed against his estate, and that if the assessment were made after his death a claim against the funds and assets of the estate accrued as of the date of the assessment. Further, that the claim of the receiver, although based upon a federal statute, could be enforced only in conformity with the law of the forum governing the recovery of debts of like nature (Id., 299 U.S. at pages 224, 225, 57 S.Ct. at pages 155, 156, 81 L.Ed. 133) and that the non-discriminatory legislation of Illinois where the suit was brought was controlling. We observed that the contingent obligation of a stockholder to pay an assessment was rendered absolute by the Comptroller's action in ordering one and that from the moment of the order of assessment the receiver had a claim which would support an action at common law against a living stockholder or the executor of a deceased stockholder; that if the assessment were made after the estate had been distributed, the receiver could recover from the distributees or heirs if and up to the extent they were liable under the applicable local law. Id., 299 U.S. at pages 222, 223, 57 S.Ct. at pages 154, 155, 81 L.Ed. 133.
In all this we were not considering or deciding the question of the application of a statute of limitations to a suit against a stockholder upon an assessment made by the Comptroller where payment was not required before a specified date, prior to which no suit could be maintained.
We find no ground for questioning the authority of the Comptroller in making an assessment to fix a later date for its payment. The federal legislation does not impose or suggest any such limitation upon the exercise of his power. 12 U.S.C. §§ 63, 64, 191, 192, 12 U.S.C.A. §§ 63, 64, 191, 192. What was done in the instant case appears to be in accord with a practice of long standing.
The judgment of the Circuit Court of Appeals is reversed and the cause is remanded to the District Court for further proceedings in conformity with this opinion.

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UNITED STATES of America, Appellee, v. Terrell LUCAS, aka Ruger Rell, Michael Glover, aka Mike–Mike, James Hardy, aka Light, Defendants–Appellants, Preston Hardy, aka Peanut, James Glover, aka Tone, Terrance Gonzalez, aka Gucci, aka Geeze, Audai Howard, aka Buck, Joshua Jenkins, Miguel Marquez, aka Mikey, aka Corleone, Gene Thomas, AKA J–Biz, Shawn Thomas, aka Bigs, Brandon Williams, aka Big Boy, Defendants.
Docket Nos. 12–4840–cr (Lead), 13–743–cr (Con), 13–1075–cr (Con).
Before: PARKER, LYNCH, and DRONEY, Circuit Judges. Richard Palma, Esq., New York, NY, for Defendant–Appellant Terrell Lucas. Paul P. Rinaldo, Esq., Grossman & Rinaldo, Forest Hills, NY, for Defendant–Appellant Michael Glover. Francisco E. Celedonio, Esq., Law Office of Francisco Celedonio, New York, NY, for Defendant–Appellant James Hardy. Andrew Bauer, Assistant United States Attorney (Justin Anderson, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.
Defendants–Appellants pled guilty in the Southern District of New York (Cathy Seibel, Judge ) to conspiring to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a), 841(b), and 846, and to using and carrying a firearm during and in relation to that conspiracy in violation of 18 U.S.C. § 924(c). The district court sentenced all three defendants to the mandatory minimum term of imprisonment on both counts, ten years for the drug charge,1 and five years for the gun charge. At issue in this sentencing appeal is whether the district court had authority to impose less than the mandatory minimum sentences by running those sentences concurrently to completed prison terms appellants previously served on related state charges.
Appellants all participated in the charged conspiracy for several years prior to their federal indictment. All served time in state prison for crimes that were part of the conspiracy and those offenses were “relevant conduct” under U.S.S.G. § 1B1.3 for the federal crimes. All finished serving those sentences before they pled guilty in federal court. But at sentencing, the district court concluded that it did not have authority to adjust appellants' sentences by running those sentences concurrently to those discharged terms.
The Sentencing Guidelines instruct district courts to run a prison term “concurrently to the remainder of [any] undischarged term of imprisonment” if the recommended “term of imprisonment resulted from another offense that is relevant conduct to the ․ offense of conviction.” U.S.S.G. § 5G1.3(b). In other words, when the defendant is serving time on a prior conviction that relates to the new charge, the Guidelines direct that the defendant serve the new sentence parallel to the old.2 The Sentencing Commission grounds the Guideline in the power vested in district courts by 18 U.S.C. § 3584(a). See § 5G1.3 cmt. background. That statute gives district courts discretion to run a sentence concurrently where “a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment,” although the statute also makes clear that a court retains the discretion to run terms consecutively when it sees fit. In United States v. Rivers, 329 F.3d 119 (2d Cir.2003), we held that a 46–month sentence did not dip below the mandatory 60–month statutory minimum because it actually reflected a 64–month sentence imposed concurrently with an undischarged state term of imprisonment where the defendant had already served 18 months. The adjustment for the 18 months already served was “similar to that of a credit,” and was “no less proscribed by the statutory minimum than where the prisoner is credited by the BOP for time already served.” Id. at 122.
On appeal, as before the district court, appellants argue that the principle embodied in § 5G1.3(b) and applied in Rivers applies with equal force to prison terms that defendants have already served. In other words, appellants urge this court to stretch the meaning of “undischarged term of imprisonment” in § 5G1.3(b) to encompass discharged terms of imprisonment. Were we to interpret § 5G1.3(b) as appellants suggest, the district court would be authorized to sentence all three appellants to serve less time in federal prison than the mandatory 15–year terms imposed by the court.
We reject appellants' argument.3 Section 5G1.3(b) cannot be interpreted to mean more than it says. The text refers only to “undischarged” prison terms.4 Even if that word were ambiguous, which it manifestly is not, the Guideline would still be constrained by the limits of its enabling statute. As the First Circuit has explained, “[a] defendant's eligibility for [a benefit under § 5G.1.3(b) ] is derivative of his eligibility for a concurrent sentence” under 18 U.S.C. § 3584. United States v. Ramirez, 252 F.3d 516,519 (1st Cir.2001). And § 3584 delineates two categories of defendants who qualify for a concurrent sentence: those subject to “multiple terms of imprisonment ․ imposed ․ at the same time,” and those who are “already subject to an undischarged term of imprisonment.” Nothing in the statute authorizes the district court to extend the benefit of a concurrent sentence to a third category of defendants, those who have previously served sentences, now completed, for related crimes.
Our decision in Rivers offers appellants no comfort. As noted above, we held there that adjusting a sentence to run concurrently with an undischarged term of imprisonment is “no less proscribed by the statutory minimum than where the prisoner is credited by the BOP for time already served.” 329 F.3d at 122. But as that passage from Rivers suggests, absent express statutory authority, a statutory minimum term of imprisonment does “proscribe” the conferral of a sentencing break.5 A district court must impose a mandated minimum unless a more specific statutory provision allows the court to impose a lower sentence. As we explained in United States v. LabeilleSoto, 163 F.3d 93 (2d Cir.1998), § 3584(a) does not provide courts with such a power in this case: “From th[e] section's use of the modifier ‘undischarged,’ it may reasonably be inferred that Congress did not intend to allow the court to make a new prison term run concurrently with a prison term that has already been completed.” Id. at 98.
Lucas (but not the other appellants) argues that our reading of U .S.S.G. § 5G1.3(b) and 18 U.S.C. § 3584 may lead to irrational results. A defendant who finishes serving a state term while awaiting a hearing date in federal court, for example, will not receive the benefit of a concurrent sentence even though he might have qualified for one had the federal case proceeded more quickly. Lucas argues that this renders the statutory distinction between undischarged and discharged sentences unconstitutional under the equal protection component of the Fifth Amendment's due process clause. But as Lucas concedes, the distinction between unfinished and completed sentences need only survive rational basis review to pass constitutional muster. See Griffin v. Mann, 156 F.3d 288, 291 (2d Cir.2008) (applying rational basis scrutiny to sentencing enhancements). Under that generous standard of review, the “differential” between sentences “must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” United States v. Thomas, 628 F.3d 64, 70 (2d Cir.2010) (brackets omitted).
Therefore, in order to prevail on this claim, Lucas must overcome the “challenged classification['s] strong presumption of validity” by rebutting “every conceivable basis which might support it.” Id. at 70–71 (internal quotation marks omitted). Lucas has not met this considerable burden. While Lucas has suggested that his individual circumstances do not present the same concerns that might have motivated Congress to distinguish between discharged and undischarged sentences,7 he fails to demonstrate that there are no plausible reasons for Congress to have drawn the distinction at issue. See FCC v. Beach Commc'ns, 508 U.S. 307,313–14 (1993).
In sum, we hold (1) that neither U.S.S.G. § 5G1.3 nor 18 U.S.C. § 3584 authorizes a district court to run a term of imprisonment concurrently with a discharged term of imprisonment on related charges, and (2) that those provisions' distinctions between discharged and undischarged terms are not irrational.
We have reviewed appellants' remaining arguments and conclude they are without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
1. Given the nature and quantity of drugs involved, appellants would normally have faced five-year mandatory prison sentences, but because all three appellants had prior drug-related felony convictions, the minimum was increased to ten years of imprisonment. See 18 U.S.C. § 841(b)(1)(B).
2. The language of § 5G1.3(b) is mandatory. However, as will be seen below, we can dispose of this case without expressing any view as to the extent to which that guideline retains mandatory force after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
3. This is not the first time we have addressed that argument. We have rejected it in nonprecedential summary orders, essentially for the same reasons set forth in this opinion. See United States v. Hill, 455 F. App'x 121,124–25 (2d Cir.2012); United States v. Strand, 336 F. App'x 99, 101 (2d Cir.2009); United States v. Wint, 142 F. App'x 11, 13 (2d Cir.2005).
4. Our sister circuits have repeatedly emphasized that § 5G1.3 does not apply to discharged terms of imprisonment. See Hasan v. Sniezak, 379 F. App'x 232, 235 (3rd Cir.2010) (explaining that “reliance on § 5G1.3 (b) is mistaken” where defendant has already completed his prior prison sentence); United States v. Carpenter, 359 F. App'x 553, 557–58 (6th Cir.2009) (concluding that neither subsection (b) or (c) of § 5G1.3 applies to discharged sentences); United States v. Fay, 547 F.3d 1231, 1236 (10th Cir.2008) (reasoning that district court lacked authority to impose a sentence to be served concurrently with a discharged state sentence), United States v. Cole, 416 F.3d 894, 897–98 (8th Cir.2005) (holding that defendant no longer qualified for a concurrent sentence credit where his state term of imprisonment expired between his original sentencing date and his resentencing); United States v. Ramirez, 252 F.3d 516, 518–19 (1st Cir.2001) (explaining that plain language of § 5G1.3(b) cannot be stretched to cover discharged sentences); United States v. Turnipseed, 159 F.3d 383, 387 (9th Cir.1998) (same).
5. Of course, in the absence of a mandatory minimum sentence, the district court retains the discretion to take into account any prior discharged sentences served by a defendant to the extent that the fact of such a prior sentence bears on the determination of what sentence is sufficient, but not more than necessary, to serve the purposes of punishment set forth in 18 U.S.C. § 3553(a). Indeed, the Guidelines recommend that the district court consider lowering a sentence where a defendant has completed a term of imprisonment on a related crime. Although a vestige of the days when a guidelines sentence was mandatory absent grounds for departure, the current version of § 5K2.23 still instructs district courts that “[a] downward departure may be appropriate if the defendant (1) has completed serving a term of imprisonment; and (2) subsection (b) of § 5G1.3 ․ would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense.” But neither a non-guidelines sentence nor a § 5K2.23 departure may go below a statutory minimum absent specific statutory authorization.
6. Our analysis is consistent with that of the Seventh Circuit. That court too has held, as we did in Rivers, that a sentencing court could comply with a mandatory minimum sentence by adjusting that sentence to reflect time already served on an undischarged state sentence with which the federal sentence could be made to run concurrently. United States v. Ross, 219 F.3d 592 (7th Cir.2000). The court later ruled that such an adjustment was not available where a defendant's prior state sentence was discharged, because § 3584(a) would not permit concurrent sentencing. United States v. Cruz, 595 F.3d 744, 746–47 (7th Cir.2010).
7. See e.g., United States v. Dunham, 295 F.3d 605, 611 (6th Cir.2002) (“That distinction ensures that if two defendants who are convicted of identical state law crimes are subsequently convicted on a federal charge for the same conduct ․ then those two defendants will serve an equal term of imprisonment upon their conviction․”); United States v. Otto, 176 F.3d 416, 418 (8th Cir.1999) (holding that allowing for concurrent sentences when the defendant is subject to an undischarged term of imprisonment is rational because with undischarged sentences there is uncertainty as to the amount of time a defendant will actually serve whereas there are no such contingencies in regard to a discharged sentence).


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WILLIAM DAMIANO, trustee in bankruptcy, vs. NATIONAL GRANGE MUTUAL LIABILITY COMPANY.
Present: FIELD, C.J., LUMMUS, QUA, DOLAN, RONAN, WILKINS, & SPALDING, JJ.
An order sustaining a demurrer to a declaration on one of several assigned grounds sustained it as a unit; a further provision in the order overruling the demurrer "otherwise" was surplusage.
All grounds assigned in a demurrer in an action at law are open on appeal from an order on the demurrer.
on account thereof," and that the defendant undertook such a defence but did so "negligently, fraudulently and in bad faith," sufficiently set forth a breach by the defendant of that provision of the policy.
A declaration which sufficiently sets out a breach by the defendant of a contract between the parties is not demurrable for want of an allegation that damage resulted from the breach, since, upon proof of a breach, the plaintiff would be entitled to nominal damages at least.
In an action against an insurance company for breach of a provision of a policy, an allegation in the declaration that the defendant "issued" the policy sufficiently imported that there was consideration for it.
A declaration upon a policy of insurance setting forth the legal effect of the part of the policy relied on by the plaintiff was not bad upon demurrer although it did not set forth a copy of the policy or of any part thereof.
A declaration in one count in an action of contract or tort that contained allegations of facts which might be construed as setting forth either a claim in contract or one in tort was not open to demurrer on the ground that the plaintiff had attempted to join in one count a cause of action in contract with one in tort in violation of G. L. (Ter. Ed.) c. 231, Section 7, Fourth, Sixth.
CONTRACT OR TORT. Writ in the Superior Court dated January 30, 1943.
There was a hearing on demurrer by Brogna, J.
In this court, the case was argued at the bar in December, 1943, before Field, C.J., Donahue, Lummus, Qua, & Cox, JJ., and after the retirement of Donahue & Cox, JJ., was submitted on briefs to Dolan, Ronan, Wilkins, & Spalding, JJ.
H. F. R. Dolan & B. D. Levinson, for the plaintiff, submitted a brief.
J. P. Sullivan, (J. B. Ely with him,) for the defendant.
brought suit against Callahan in Suffolk County. The defendant "undertook to defend said suit in the name and behalf of" Callahan. As the result of a trial, judgment was entered against Callahan for $11,587.15, which was more than twice the amount of the policy. Consequently Callahan was compelled to file a voluntary petition in bankruptcy.
The declaration alleged that the defendant "defended said suit . . . negligently, fraudulently and in bad faith." It contained no allegation that anyone has paid anything upon the judgment.
The defendant demurred to the declaration on three grounds, (1) that the matters set forth in the declaration are insufficient in law to enable the plaintiff to maintain his action; (2) that the plaintiff is relying upon a written instrument and has not set forth a copy of said instrument or stated the legal effect thereof, as required by G. L. (Ter. Ed.) c. 231, Section 7, Eleventh; and (3) that the plaintiff has attempted to join in one count a cause of action in action in contract with one in tort, in violation of G. L. (Ter. Ed.) c. 231, Section 7, Fourth, Sixth.
The judge made the following order upon the demurrer. "After hearing the demurrer is sustained on ground #1, and is otherwise overruled." A demurrer is a unit, and cannot be sustained on one ground and overruled on others. Ratte v. Forand, 299 Mass. 185, 187. In effect the judge sustained the demurrer. The rest of his order may be disregarded as surplusage. The plaintiff's appeal under G. L. (Ter. Ed.) c. 231, 96, brings the case here. In this court all three grounds of demurrer are upon. Ratte v. Forand, 299 Mass. 185, 187. Daddario v. Pittsfield, 301 Mass. 552, 554. Walter v. McCarvel, 309 Mass. 260, 263. Becker v. Calnan, 313 Mass. 625, 626. Revere v. Blaustein, 315 Mass. 93, 94, 95. Siegel v. Knott, ante, 526. Compare Gillis v. Bonelli-Adams Co. 284 Mass. 176, 180.
The demurrer cannot be sustained on the first ground of demurrer. The basis of the alleged duty of the defendant is an agreement contained in the policy. Abrams v. Factory Mutual Liability Ins. Co. 298 Mass. 141, 144. The plaintiff's cause of action arises out of the breach of that agreement.
"By the express terms of the policy the defendant obligated itself to defend lawsuits. If it did not settle, it was bound to defend. . . . When a party binds himself by contract to do a work or to perform a service, he agrees by implication to do a workmanlike job and to use reasonable and appropriate care and skill in doing it. . . . The plaintiff . . . can . . . maintain an action of contract if the defendant defended negligently." Abrams v. Factory Mutual Liability Ins. Co. 298 Mass. 141, 143. It was not necessary for the plaintiff to allege any damage resulting from the breach of the agreement properly to defend. When a contract has been broken by a defendant, the plaintiff "is entitled to a verdict for nominal damages for the breach, if nothing more. For every breach of a promise made on good consideration, the law awards some damage." Hagan v. Riley, 13 Gray 515, 516. Holtz v. Western Union Telegraph Co. 294 Mass. 543, 549. In Sherlag v. Kelley, 200 Mass. 232, 235, that doctrine was applied to a contract to perform professional services with skill and care. See also McCarthy v. Boston Elevated Railway, 223 Mass. 568, 573, 574, an action of tort. Of course a declaration is good against demurrer if it states a case for any relief, even nominal damages. Clark v. Gulesian, 197 Mass. 492.
105 Mass. 149, 160. Some of the statutory forms of declarations upon insurance policies under G. L. (Ter. Ed.) c. 231, Section 147, contain no reference to consideration beyond the statement that the defendant "made" a policy of insurance, or "insured" the plaintiff.
As to the second ground of demurrer, it was not necessary to set out a copy of the policy or of any part of it. It was enough to set out "the legal effect thereof," that is to say, of the policy or of such part of it as was relied on. G. L. (Ter. Ed.) c. 231, Section 7, Eleventh. Higgins v. McDonnell, 16 Gray 386. Suffolk Bank v. Lowell Bank, 8 Allen 355. Pierce v. Charter Oak Life Ins. Co. 138 Mass. 151, 159, 160. Newton Rubber Works v. Graham, 171 Mass. 352. Gillis v. Bonelli-Adams Co. 284 Mass. 176, 181. "The statute does not require that in an action upon a written contract all the details contained in the contract shall be set out, but only that the substantive facts necessary to constitute the cause of action shall be stated, and that those shall be stated concisely and with substantial certainty." Saco Brick Co. v. J. P. Eustis Manuf. Co. 207 Mass. 312, 315. We think that the declaration conformed to the statute in this respect.
The declaration contained only one count. Whether it be construed as in contract or in tort, the declaration was not open to demurrer on the third ground assigned.

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38. The Court reiterates that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set out in paragraph 1. In the circumstances of the case it finds it unnecessary to examine the applicant’s allegations separately from the standpoint of paragraph 3 (b), since they amount to a complaint that he did not receive a fair trial. It will therefore confine its examination to the question of whether the proceedings in their entirety were fair (see Edwards v. the United Kingdom, 16 December 1992, §§ 33-34, Series A no. 247-B, and Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 59, ECHR 2000-II).
39. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6 § 1 requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused (see, mutatis mutandis, Rowe and Davis, cited above, § 60, with further references).
40. However, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see, mutatis mutandis, Rowe and Davis, cited above, § 61, with further references).
41. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. In any event, in many cases, such as the present one, where the evidence in question has never been revealed, it would not be possible for the Court to attempt to weigh the public interest in non-disclosure against that of the accused in having sight of the material. It must therefore scrutinise the decision-making procedure to ensure that, as far as possible, it complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (see, mutatis mutandis, Rowe and Davis, cited above, § 62).
42. More specifically, Article 6 § 3 (b) guarantees the accused “adequate time and facilities for the preparation of his defence” and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Can v. Austria, no. 9300/81, § 53, Commission’s report of 12 July 1984, Series A no. 96, and Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008). Furthermore, the facilities which should be enjoyed by everyone charged with a criminal offence include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (see C.G.P. v. the Netherlands, (dec.), no. 29835/96, 15 January 1997, and Galstyan v. Armenia, no. 26986/03, § 84, 15 November 2007).
43. Failure to disclose to the defence material evidence, which contains such particulars which could enable the accused to exonerate himself or have his sentence reduced would constitute a refusal of facilities necessary for the preparation of the defence, and therefore a violation of the right guaranteed in Article 6 § 3 (b) of the Convention (see C.G.P., cited above). The accused may, however, be expected to give specific reasons for his request (see Bendenoun v. France, 24 February 1994, § 52, Series A no. 284) and the domestic courts are entitled to examine the validity of these reasons (see C.G.P., cited above).
44. Turning to the present case, the Court observes that the number of the destroyed recordings, or the contents thereof, cannot be verified from the material submitted. The Government have not, however, contested the applicant’s submission that the amount of such recordings was of some significance. Nor have they been able to provide any specific information about their contents.
45. As to the Government’s contention that the applicant had only pleaded the relevance of the destroyed recordings after having submitted his letter of appeal to the Court of Appeal, the Court notes that under domestic law the Court of Appeal was empowered to consider questions of both fact and law, and it was still open to the applicant to request new evidence to be produced at that stage. Moreover, the Government have not argued that the requested recordings would, in fact, have been available in the District Court proceedings, any more than in the proceedings before the Court of Appeal. The Court notes in this connection that, although the actual time of destruction of the recordings in question remains unclear, it had presumably taken place in the course of the pre-trial investigation. In this respect the Court refers to the relevant provision of the Coercive Measures Act in force at the relevant time (see paragraph 21 above). As to the Government’s argument that the applicant could have described the contents of the destroyed recordings, the Court considers that the applicant could not have been expected to announce his alleged involvement in a different offence, punishable by law, prior to any charges having been brought against him.
46. The Court reiterates that the requirements of Article 6 presuppose that having given specific reasons for the request for disclosure of certain evidence which could enable the accused to exonerate himself, he should be entitled to have the validity of those reasons examined by a court. Although the applicant, in this case, must have known the contents of the destroyed recordings, as far as they involved him, and even if he had been able to put questions during the trial concerning all of the conversations with the other defendants, the Court points out that the national courts did not find the defendants’ allegations about the purchase of illegal weapons credible, for lack of other supporting evidence (see paragraphs 12 and 17 above). Furthermore, the Court of Appeal did not refuse to order the disclosure of the requested recordings on the ground that the applicant had not given specific and acceptable reasons for his request. Instead, it declined to render a decision in that respect, as the recordings had been destroyed and could thus not have been disclosed to the defence or produced to the court (see paragraphs 15 and 16 above).
47. Even though the police and the prosecutor were obliged by law to take into consideration both the facts for and against the suspect, a procedure whereby the investigating authority itself, even when co-operating with the prosecution, attempts to assess what may or may not be relevant to the case, cannot comply with the requirements of Article 6 § 1. Moreover, it is not clear to what extent the prosecutor was, in fact, involved in the decision to destroy those recordings which were not included in the case file. In this case, the destruction of certain material obtained through telephone surveillance made it impossible for the defence to verify its assumptions as to its relevance and to prove their correctness before the trial courts.
48. The Court finds that the present case is different from, inter alia, Fitt v. the United Kingdom [GC] (no. 29777/96, ECHR 2000-II) and Jasper v. the United Kingdom [GC] (no. 27052/95, 16 February 2000) where the Court was satisfied that the defence were kept informed and were permitted to make submissions and participate in the decision-making process as far as possible and noted that the need for disclosure was at all times under the assessment of the trial judge, providing a further, important, safeguard. In those cases the Court found no violation under Article 6 § 1 (see Fitt, §§ 48-49, and Jasper, §§ 55-56). The Court recalls that, in this case, the decision regarding the undisclosed evidence was, presumably, made in the course of the pre-trial investigation without providing the defence with the opportunity to participate in the decision-making process.
49. In the present case the Court further notes that the contested measure stemmed from a defect in the legislation, in that it failed to offer adequate protection to the defence, rather than any misconduct of the authorities, who were obliged by law, in force at the time, to destroy the impugned recordings (see paragraph 21 above). The Court observes that in the Government Bill for the amendment of the Coercive Measures Act it was considered problematic that information supporting the innocence of the suspect could be destroyed before the resolution of the case (see paragraph 22 above). The relevant provision was amended with effect from 1 January 2004 with a view to better safeguarding the rights of the defence. This amendment, however, came too late for the applicant.
50. Having regard to the above considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention taken together with Article 6 § 3 (b) of the Convention.
52. The Government contested that argument.
53. The Court reiterates that, as a general rule, it is for the national courts to assess the evidence before them, while it is for the Court to ascertain that the proceedings considered as a whole were fair, which in the case of criminal proceedings includes the observance of the presumption of innocence. Article 6 § 2 requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. Thus, the presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence (see Telfner v. Austria, no. 33501/96, § 15, 20 March 2001, with further references).
54. The Court observes that, in this case, and subject to its above findings on the applicant’s complaint under Article 6 §§ 1 and 3 (b) of the Convention, the District Court convicted the applicant after adversarial proceedings, in which he had the possibility to challenge the evidence produced against him. The applicant’s conviction was upheld by the Court of Appeal after a full review of the case in an oral hearing. Both courts gave reasons for their decisions. Having regard to the facts of the case, and given its subsidiary role regarding the assessment of evidence, the Court cannot conclude that the prosecutor had failed to establish a convincing prima facie case against the applicant. There is no indication that the domestic courts had a preconceived idea of the applicant’s guilt. In these circumstances it cannot be said that the domestic courts had shifted the burden of proof to the defendant (see, a contrario, Telfner v. Austria, cited above, § 18). It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.