1. The petition for rehearing is granted; the order entered
October 17, 1955, denying certiorari is vacated; the petition for
certiorari is granted; and the judgment of the Court of Claims is
reversed on the authority of
United States v. Allen-Bradley
Co., 352 U. S. 306 and
National Lead Co. v. Commissioner, 352 U.
S. 313. Pp.
353 U. S.
98-99.
2. The interest in finality of litigation must yield when the
interests of justice would make unfair the strict application of
the Rules of this Court. P.
353 U. S.
99.
131 Ct.Cl. 95, 129 F. Supp. 215, reversed.
PER CURIAM.
On June 11, 1956, we unanimously vacated
sua sponte our
order of December 5, 1955, 350 U.S. 919, denying the timely
petition for rehearing in this case, 351 U.S. 980, so that this
case might be disposed of consistently with the companion cases of
United States v. Allen-Bradley Co., 352 U.
S. 306, and
National Lead Co. v. Commissioner,
352 U. S. 313, in
which we had granted certiorari the same day,
viz., June
11, 1956. 351 U.S. 981. If there is to be uniformity in the
application of the principles announced in those two companion
cases, the judgment below in the instant case cannot stand.
Accordingly we now grant the petition for rehearing, vacate the
Page 353 U. S. 99
order denying certiorari, grant the petition for certiorari, and
reverse the judgment of the Court of Claims on the authority of
United States v. Allen-Bradley Co., supra, and
National Lead Co. v. Commissioner, supra.
We have consistently ruled that the interest in finality of
litigation must yield where the interests of justice would make
unfair the strict application of our rules. This policy finds
expression in the manner in which we have exercised our power over
our own judgments, both in civil and criminal cases.
Clark v.
Manufacturers Trust Co., 337 U.S. 953;
Goldbaum v. United
States, 347 U.S. 1007;
Banks v. United States, 347
U.S. 1007;
McFee v. United States, 347 U.S. 1007;
Remmer v. United States, 348 U.S. 904;
Florida ex rel.
Hawkins v. Board of Control, 350 U. S. 413;
Boudoin v. Lykes Bros. S.S. Co., 350 U.S. 811;
Cahill
v. New York, N.H. & H. R. Co., 351 U.
S. 183;
Achilli v. United States, 352 U.S.
1023.
Reversed.
MR. JUSTICE BRENNAN and MR. JUSTICE WHITTAKER took no part in
the consideration or decision of this case.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE
BURTON join, dissenting.
The Court's action in overturning the judgment of the Court of
Claims in this case, nearly a year and a half after we denied
certiorari, and despite the subsequent denial of two successive
petitions for rehearing, is so disturbing a departure from what I
conceive to be sound procedure that I am constrained to
dissent.
This is a tax case involving the right of the War Production
Board to certify that only part of the actual cost of wartime
facilities, constructed by a taxpayer at the instance of the
Government, was necessary in the national defense, and hence
subject to accelerated amortization
Page 353 U. S. 100
under § 124(f) of the Internal Revenue Code of 1939. [
Footnote 1] Claiming that the War
Production Board had no power to certify less than the full cost of
such facilities, the Ohio Power Company sued the Government in the
Court of Claims to recover an alleged overpayment of taxes,
asserting that it was entitled to accelerated amortization of the
full cost of wartime facilities which it had constructed, and not
merely of that part of the cost which the War Production Board had
certified as necessary in the interest of national defense. The
Court of Claims, sustaining this contention, entered judgment in
favor of the taxpayer on March 1, 1955. [
Footnote 2]
On August 12, 1955, the Government petitioned for certiorari,
its time for filing having been duly extended. We denied the
petition on October 17, 1955. 350 U.S. 862. On November 10, 1955,
the Government filed a timely petition for rehearing, requesting
that its consideration be deferred until the case of
Commissioner v. National Lead Co., [
Footnote 3] involving this same tax question, had
been decided by the Court of Appeals for the Second Circuit. We
denied this petition on December 5, 1955. 350 U.S. 919. On February
14, 1956, the Court of Appeals decided
National Lead in
favor of the Government, [
Footnote
4] and, on April 3, 1956, the Court of Claims, in
Allen-Bradley Co. v. United States, [
Footnote 5] decided the same tax question
favorable to the taxpayer, as it had already done in the
Ohio
Power case. This, then, provided the Government with the
"conflict" which had been lacking at the time when the Court denied
its petition for certiorari in the present case. On this basis, the
Government, on
Page 353 U. S. 101
May 3, 1956, petitioned for certiorari in
Allen-Bradley, [
Footnote
6] and at the same time petitioned for leave to file a second
petition for rehearing in the
Ohio Power case. On May 28,
1956, the Court denied that petition because it was both long out
of time and "consecutive," [
Footnote 7] 351 U.S. 958, and thus, for the third time,
refused to take the case. Nevertheless, two weeks thereafter, on
June 11, 1956, the Court, incident to its grants of certiorari in
the
Allen-Bradley and
National Lead cases,
vacated
sua sponte its order of December 5, 1955 denying
the Government's original timely petition for rehearing in the
Ohio Power case. 351 U.S. 980. And today the Court grants
that petition, some 16 months after it had originally been denied,
and reverses the Court of Claims' judgment in favor of the
taxpayer.
I
In my opinion, today's order reversing the Court of Claims
violates our own Rules. That order is based upon the Court's order
of June 11, 1956, which vacated the order of December 5, 1955
denying the Government's first petition for rehearing of the denial
of certiorari.
Page 353 U. S. 102
This June 11 order thus purported to continue consideration of
the original petition for rehearing, which is now granted. Under
our Rules, I think the order of June 11 was improvidently issued.
[
Footnote 8] Had the
Government, just prior to June 11, 1956, petitioned to vacate the
order of December 5, 1955, the petition would have violated Rule 58
of our Revised Rules, whether considered as, in effect, a petition
for rehearing of that order, in which case it would have been out
of time, or as a petition for rehearing of the original denial of
certiorari, in which case it would have been both out of time and
"consecutive." [
Footnote 9] To
say that the order of June 11 could escape Rule 58 because it was
made on the Court's initiative seems to me to involve the most
hypertechnical sort of reasoning.
If we are to follow our Rules the order of June 11, and with it
today's order, must fall, for this litigation must be considered to
have been closed on December 5, 1955, when the Court denied the
Government's first petition for rehearing.
II
Rule 58, by marking the end of a case in this Court, is intended
to further the law's deep-rooted policy that adjudication must at
some time become final. I think we should follow it. Prior to 1948,
the outside limit of rules of finality in the federal courts was
the end of the term, because, except for the extraordinary writs,
federal courts were considered to have no power to deal with
their
Page 353 U. S. 103
judgments after the end of the term at which they were rendered.
Bronson v. Schulten, 104 U. S. 410,
104 U. S. 415.
In 1948, Congress abolished the "end of term" rule by a statute, 28
U.S.C. § 452, [
Footnote 10]
which was expressly made applicable to this Court. 28 U.S.C. § 451.
The effect of § 452 was to leave the federal courts untrammeled in
establishing their own rules of finality. But the history of § 452
indicates that the courts were to have no power to reexamine their
judgments otherwise than in accordance with their established rules
or statutes. Section 452 was modeled on Rule 6(c) of the Federal
Rules of Civil Procedure. [
Footnote 11]
See the Reviser's Note to § 452, 28
U.S.C., p. 4142. As originally promulgated in 1938, Rule 6(c) had
referred only to the "expiration of a term," and not to its
"continued existence." In 1944, this Court held that a District
Court had inherent power to vacate a judgment and enter a new one,
with the effect of extending a party's right to appeal,
notwithstanding such action was not authorized by any rule of the
District Court, because the term had not yet expired.
Hill v.
Hawes, 320 U. S. 520,
320 U. S. 524.
Thereafter, Rule 6(c) was amended to provide that the
"
continued existence or expiration" of the term should not
affect the power of a court. The purpose was
"to prevent reliance upon the continued existence of a term as a
source of power to disturb the finality of a judgment upon grounds
other than those stated in these rules."
Advisory Committee on Rules of Civil
Page 353 U. S. 104
Procedure, Report of Proposed Amendments to Rules, H.R.Doc. No.
473, 80th Cong., 1st Sess. 50 (1946). The "continued existence or"
language of amended Rule 6(c) was taken bodily into § 452.
The history of § 452 thus casts grave doubt, to say the least,
on the power of the Court to do what it has done in this case, for
its action was certainly not taken "upon grounds . . . stated in
[its] rules." [
Footnote 12]
I recognize that § 452 does not prevent the Court from changing its
Rules, but, if the statute means what its history suggests, such
changes should be made on a general, and not
ad hoc,
basis, lest cases which are alike be treated differently. [
Footnote 13]
This Court, however, has never faced the problems raised by §
452, but has proceeded on the assumption that the statute does not
affect the Court's inherent power over its judgments; in other
words, that, by resorting to such power, the Court may affect
judgments by action which would otherwise be out of time under the
Rules. If that view be correct, it follows that finality of
adjudication in this Court ultimately depends on the Court's
self-restraint. That, and the doubtful meaning of § 452,
Page 353 U. S. 105
seem to me in any event to argue strongly against departures
from Rule 58 -- the only Rule of finality in this Court -- except
in rare instances. I now turn to the question of whether this is
such a case.
III
The past practice of the Court shows that its inherent powers
have always been exercised most sparingly. Thus, prior to enactment
of § 452 in 1948, the Court, so far as I can discover, had never in
its history departed from the "end of term" rule by granting a
petition for rehearing after the end of the term at which a
judgment had been rendered. [
Footnote 14] Between 1948 and the effective date of Rule
58 (July 1, 1954), one of whose purposes was to tighten the rules
ending litigation in this Court, I can find only four cases in
which untimely relief was granted:
Clark v. Manufacturers Trust
Co., 337 U.S. 953,
vacated and remanded sub nom. McGrath
v. Manufacturers Trust Co., 338 U. S. 241;
Goldbaum v. United States, 347 U.S. 1007; 348 U.S. 905;
Banks v. United States, 347 U.S. 1007; 348 U.S. 905;
McFee v. United States, 347 U.S. 1007; 348 U.S. 905.
[
Footnote 15] Of these, only
Clark bears any similarity to this case. [
Footnote 16]
Goldbaum, Banks, and
McFee were
Page 353 U. S. 106
criminal "net worth" tax cases in which the Court,
sua
sponte, restored the cases to the docket pending decision of
Holland v. United States, 348 U.
S. 121, the cases thereafter being remanded for
reconsideration in light of
Holland. I need hardly say
that the granting of untimely relief in criminal cases presents
considerations not found in civil cases.
Of particular significance here is what has happened since Rule
58 became effective. From then until today. I have discovered but
three cases in which the Court has granted rehearing out of time,
all involving situations quite dissimilar to that presented here:
Remmer v. United States, 348 U.S. 904;
McNally v.
Teets, 352 U.S. 886;
Achilli v. United States, 352
U.S. 1023. [
Footnote 17]
Remmer was a criminal case which had been remanded to the
lower court for further proceedings, and where the petition for
Page 353 U. S. 107
rehearing raised questions which could again be brought to this
Court on certiorari; rehearing thus served to avoid the delay and
expense of further intermediate proceedings below, and hardly could
be claimed to conflict with the policy of finality.
McNally, also a criminal case, simply involved
clarification of the Court's earlier order denying certiorari, in
order to make clear that it covered two judgments below against the
petitioner instead of only one. For lack of such a clarification,
the petitioner's application for habeas corpus had been denied by a
federal district court on the ground that, having failed to
petition for certiorari from one of the two state decisions against
him, he had not fully exhausted his state remedies.
Achilli presented the same features as
Remmer, in
that it was a criminal case presenting a question that could again
be raised in proceedings below and then brought to this Court in
due course on certiorari. Indeed, exactly that happened in the
Achilli case: petitioner, not anticipating this Court's
willingness to reconsider its original denial of certiorari, raised
the same question a second time before the District Court, obtained
a new decision, and petitioned successfully for certiorari. 353
U.S. 909. The net effect of the Court's untimely order, therefore,
was to bring here more quickly a question that would arrive
eventually in any case. Three other cases during this period,
though not arising on petition for rehearing, may be considered to
have involved out-of-time action by the Court:
Florida ex rel.
Hawkins v. Board of Control, 350 U. S. 413;
Boudoin v. Lykes Bros. S.S. Co., 350 U.S. 811, and
Cahill v. New York, N.H. & H. R. Co., 351 U.
S. 183. All of them, however, involved the correction of
errors in the Court's own mandates, and not, as here, the
overturning of another court's decision that had long since been
permitted to become final.
The other side of the coin is also illuminating. I find that,
since 1948, there have been some 191 untimely applications
Page 353 U. S. 108
for rehearing, or the equivalent, [
Footnote 18] as against only 10 instances of untimely
action, 6 in response to applications and 4 on the Court's
initiative. Since the adoption of Rule 58 in 1954, the Court has
been asked on 40 occasions to grant rehearing out of time of orders
denying certiorari, [
Footnote
19] and, with the exception of
McNally v. Teets and
Achilli v. United States, supra, cases that may fairly be
described as unique, and that are certainly unlike this one, each
time it has refused . In 13 of the 40 cases, relief was denied
despite the claimed development of a conflict.
Page 353 U. S. 109
See Fraver v. Studebaker Corp., 348 U.S. 939;
Powell v. United States, 348 U.S. 939;
Cowles Pub. Co.
v. Labor Board, 348 U.S. 960;
Jones v. Lykes Bros. S.S.
Co., 348 U.S. 960;
Lopiparo v. United States, 349
U.S. 969;
Mondakota Gas Co. v. Montana-Dakota Utilities
Co., 349 U.S. 969;
Zientek v. Reading Co., 350 U.S.
960;
Preferred Ins. Co. v. United States, 351 U.S. 990;
International Molders & Foundry Workers v. Western Foundry
Co., 352 U.S. 860;
Fairmont Aluminum Co. v.
Commissioner, 352 U.S. 913;
Bernstein v. United
States, 352 U.S. 977;
Mekolichick v. United States,
352 U.S. 977;
Consolidated Edison Co. of N.Y., Inc. v. United
States, 352 U.S. 1019. [
Footnote 20]
This history of past practice justifies the assertion that the
Court has exercised its inherent power with a sharp eye to the
"principle that litigation must at some definite point be brought
to an end,"
Federal Trade Comm'n v. Minneapolis-Honeywell
Regulator Co., 344 U. S. 206,
344 U. S. 213,
and, in recent years, at least, has acted only where it felt that
the interests of justice plainly outweighed considerations of
finality.
What about this case? There is nothing to distinguish it from
any other suit for a money judgment in which a conflict turns up
long after certiorari and rehearing have been denied. The most that
can be said in justification of the Court's action is that,
otherwise, Ohio Power would not have to pay taxes which
Allen-Bradley and National Lead must pay as a result of the much
later decisions in their cases. Yet the Court twice faced and
rejected that very possibility many months ago, (1) when it denied
the Government's timely petition for rehearing, despite the request
that consideration of it be deferred until the Court of Appeals had
decided the National Lead case, and (2) when it denied the
Government's second, and
Page 353 U. S. 110
untimely, petition for rehearing in the face of the conflict
with
National Lead. And, in any event, this is surely not
the kind of injustice that warrants overriding the policy of
finality of adjudication. What has happened here is commonplace;
indeed, it arises in every instance where the Court grants
certiorari to settle any but the most recent conflict. Perhaps
out-of-time action may be justified in some instances where the
time interval between a finally decided case and a subsequent
contrary decision of this Court is short. But we do not have that
situation here, where more than 15 months elapsed between the
denial of certiorari in
Ohio Power (October 17, 1955) and
our decisions in
Allen-Bradley and
National Lead
(January 22, 1957), and where, in the interval, the Court had twice
denied rehearing, with the very factors before it which are now
said to justify its present action. If the rules of finality are to
have real significance in this Court, I submit that, by every
token, the taxpayer here was entitled to believe that its had been
irrevocably closed.
There is an additional reason why this case should not now be
reopened. Had this case come to us from the Tax Court, our Court
would have had no power to do what it has done, it being well
established that, when certiorari has been denied, the power of
this Court to affect decision of the Tax Court ends with the denial
of a petition for rehearing, or, where no such petition has been
filed, with the running of the 25-day period within which rehearing
may be sought. Internal Revenue Code of 1939, § 1140, now Internal
Revenue Code of 1954, § 7481(2)(B);
R. Simpson & Co. v.
Commissioner, 321 U. S. 225;
and see Helvering v. Northern Coal Co., 293 U.
S. 191. It is an odd circumstance that the Court should
have reaffirmed this rule only a few weeks ago.
Lasky v.
Commissioner, 352 U.S. 1027. The undesirability of according
different treatment to tax cases arising from different
Page 353 U. S. 111
sources scarcely requires comment. For me, this consideration
alone is a sufficient reason for denying relief in this case.
For the reasons given, I must dissent. I can think of nothing
more unsettling to lawyers and litigants, and more disturbing to
their confidence in the evenhandedness of the Court's processes,
than to be left in the kind of uncertainty which today's action
engenders, as to when their cases may be considered finally closed
in this Court.
[
Footnote 1]
54 Stat. 998-1003, as amended, 26 U.S.C. §§ 23(t), 124.
[
Footnote 2]
131 Ct.Cl. 95, 129 F. Supp. 215.
[
Footnote 3]
230 F.2d 161.
[
Footnote 4]
Ibid.
[
Footnote 5]
134 Ct.Cl. 800.
[
Footnote 6]
On May 29, 1956, National Lead Company likewise filed its
petition for certiorari to the Court of Appeals for the Second
Circuit in the case which it had lost.
[
Footnote 7]
Rule 58, par. 2, of this Court's Revised Rules provides:
"A petition for rehearing of orders on petitions for writs of
certiorari may be filed with the clerk . . . subject to the
requirements respecting time . . . as provided in paragraph 1 of
this rule."
Paragraph 1 of Rule 58 provides:
"A petition for rehearing of judgments or decisions other than
those denying or granting certiorari, may be filed with the clerk .
. . within twenty-five days after judgment or decision, unless the
time is shortened or enlarged by the court or a justice
thereof."
There was, of course, no enlargement of the time here. Paragraph
4 of Rule 58 provides: "Consecutive petitions for rehearings, and
petitions for rehearing that are out of time under this rule, will
not be received."
[
Footnote 8]
The writer of this opinion, and those who join him, share in the
responsibility for the issuance of the order of June 11.
[
Footnote 9]
Under the old Rules, it was not thought possible to petition for
rehearing of a denial of rehearing. Such petitions were treated as
miscaptioned untimely petitions for rehearing of the original
order. Presumably the same practice obtains under the Revised
Rules. Otherwise, an endless procession of "timely" petitions for
rehearing could be filed, one every 25 days
ad
infinitum.
[
Footnote 10]
So far as pertinent, § 452 provides: "The continued existence or
expiration of a term of court in no way affects the power of the
court to do any act or take any proceeding."
[
Footnote 11]
"The period of time provided for the doing of any act or the
taking of any proceeding is not affected or limited by the
continued existence or expiration of a term of court. The continued
existence or expiration of a term of court in no way affects the
power of a court to do any act or take any proceeding in any civil
action which has been pending before it."
[
Footnote 12]
Text writers have disagreed as to the effect of § 452.
Compare Wiener, The Supreme Court's New Rules, 68
Harv.L.Rev. 20, 84-86 (1954),
with Stern & Gressman,
Supreme Court Practice (2d ed. 1954), 349, 355.
[
Footnote 13]
It may be suggested that, because this Court has no rules
comparable to Fed.Rules Civ.Proc., 60(a) and (b), permitting
applications for subsequent changes in judgments to be made on
various grounds, it would be unfortunate to construe § 452 as
prohibiting this Court from exercising inherent power to correct
judgments out of time for such things as fraud, mistake, and
clerical error. To my way of thinking, it would be preferable to
meet this problem by adding to our Rules, rather than by making
ad hoc exceptions to Rule 58. The latter course, I fear,
is bound to lead to the sort of thing that has happened in this
case, leaving litigants in uncertainty as to when they may safely
consider their cases closed in this Court.
[
Footnote 14]
See Charles Elmore Cropley, Report of Survey by the
Clerk of Rules and Practice in Relation to Petitions for Rehearing,
Prepared by Direction of the Chief Justice, with Suggestions and
Supporting Data (January 7, 1947).
[
Footnote 15]
See also California v. Zook, 337 U.S. 921, in which a
motion for leave to file a petition for rehearing out of time was
granted, apparently on grounds of excusable neglect, and the
petition was simultaneously denied; and
Land v. Dollar,
341 U. S. 737,
341 U. S. 738,
in which a belated "motion for leave to file a motion for
reconsideration" of a denial of certiorari was continued on the
docket. The motion was ultimately withdrawn. 344 U.S. 807.
[
Footnote 16]
Clark involved questions under the Trading with the
Enemy Act, an untimely petition for rehearing of the denial of
certiorari being granted because of a subsequently arising
conflict. Unlike the present case, there was no other pending case
through which the question could be settled by this Court for the
future, because the "conflict" case was never appealed.
See
McGrath v. E. J. Lavino & Co., 91 F. Supp.
786,
787.
More recently the Court has consistently denied belated petitions
for rehearing based upon claimed subsequent conflicts.
See
the cases cited at pp.
353 U. S.
108-109,
infra, and particularly
Mondakota
Gas Co. v. Montana-Dakota Utilities Co., 349 U.S. 969, where
the Court denied leave to file an untimely petition for rehearing
even though the decision below had been expressly disapproved by an
intervening and controlling decision of this Court.
See Parissi
v. Telechron, Inc., 349 U. S. 46,
340 U. S. 47.
The
Clark case is not a persuasive precedent on any of
the legal questions involved in this case, because, for all that
appears, neither side called the attention of the Court to the then
recent enactment of § 452 and its possible restrictive effects on
prior rules relating to rehearings.
[
Footnote 17]
Cf. Born v. Laube, 348 U.S. 932;
Bernstein v.
United States, 352 U.S. 977;
Mekolichick v. United
States, 352 U.S. 977;
Cliett v. Scott, 353 U.S. 918,
in which the Court simultaneously granted motions for leave to file
petitions for rehearing out of time and denied the petitions for
rehearing.
See also Smith v. United States, 353 U.S.
921.
[
Footnote 18]
The count includes untimely petitions for rehearing, successive
petitions for rehearing, motions for leave to file petitions for
rehearing, motions for leave to file successive petitions for
rehearing, and motions and petitions for reconsideration of denial
of rehearing or of leave to file petitions for rehearing.
See 335 U.S. 838 (two cases), 855, 864 (six cases), 888,
894 (two cases), 899, 900; 336 U.S. 911, 915 (four cases), 921, 929
(two cases), 932 (two cases), 941, 955, 963, 971; 337 U.S. 911,
920, 921 (two cases), 934, 950 (three cases), 953 (two cases), 961
(five cases); 338 U.S. 841 (four cases), 863, 882, 889, 939, 940,
953; 339 U.S. 906, 916, 926, 936, 950, 954, 972, 973 (three cases),
992 (two cases); 340 U.S. 846, 848, 898, 907, 918, 939, 940; 341
U.S. 917, 928, 933, 937, 956 (four cases); 342 U.S. 842, 844, 856,
874, 880, 895, 899 (two cases), 907 (two cases), 915; 343 U.S. 917
(two cases), 931, 932, 952, 959 (two cases), 989 (three cases); 344
U.S. 848, 849, 850 (two cases), 882, 905; 345 U.S. 914, 931 (two
cases), 937 (two cases), 945, 960, 961, 971, 1003, 1004; 346 U.S.
841, 843 (two cases, total of three petitions), 880 (three cases),
881, 904, 905 (two cases), 917, 918; 347 U.S. 908 (two cases), 911
(two cases), 924 (three cases), 940, 1007 (three cases), 1021; 348
U.S. 851 (two cases), 853 (two cases), 889, 904, 932, 939 (three
cases), 940, 960 (two cases); 349 U.S. 917, 925, 918, 969 (two
cases);
350 U. S. 413,
811, 854, 856, 919, 920, 955, 960, 976;
351 U.
S. 183, 915 (two cases), 928, 929, 958, 990; 352 U.S.
860, 861 (four cases), 886, 913, 950, 977 (two cases), 1019, 1023;
353 U.S. 918, 921.
[
Footnote 19]
See 348 U.S. 851 (two cases), 853 (two cases), 889,
932, 939 (three cases), 940, 960 (two cases); 349 U.S. 917, 925,
948, 969 (two cases); 350 U.S. 854, 920, 955, 960, 976; 351 U.S.
915 (two cases), 928, 929, 958, 990; 352 U.S. 860, 861 (three
cases), 886, 913, 977 (two cases), 1019, 1023; 353 U.S. 918,
921.
[
Footnote 20]
As to Bernstein and Mekolichick,
see note 17 supra.