Earl Warren: Number 1, Robert Aquilino and Joseph Spero, Home Maintenance Company, Incorporated, Petitioners, versus United States of America.
Charles S. Friedman: Mr. Chief Justice --
Earl Warren: Mr. Friedman.
Charles S. Friedman: -- may it please the Court. For some three days, this Court which have listened to a contest between giants here, that it listened to the United States Government has one contest with five different States over property that amounts -- will eventually amount to billions of dollars. We're engaged in a contest here between that -- one of those giants to wit, the United States and two small subcontractors from the State of New York. The amount of money involved is small. It's only $2200. The Government tax reached that far. It has been awarded to them and they claimed of it's -- and it's been awarded to them upon the basis that it was property of the taxpayer under 3670 of the Internal Revenue Code. We claim that the property belongs to these subcontractors under the law of the State of New York. Some brief reference of the facts is essential. In 19 -- in December 1951, and again in March of 1952, the Government filed two assessment liens for small amounts with the collector of Internal Revenue in Albany, New York. That lien may be -- what has been very amply described as the secret pernicious lien of the United States Government to wit, it's one of those liens that nobody, except the United States Government and the collector knows about it.
Speaker: Made so by the decisions of this Court, I suppose you might. [Laughs]
Charles S. Friedman: That may be so, Your Honor. Sometime thereafter, totally unaware of this lien and totally unconnected with the tax -- delinquent taxpayer, a Mrs. Bottone bought some rail property in Westchester County. She bought this property in July of 1942. Some seven months after the Government filed its first lien. She intended to conduct a business thereon and have some remodeling work and intended to have some remodeling work done. She employed the delinquent taxpayer here, Fleetwood Paving Company, to do that work. Prior to that, Fleetwood Paving have no real business relationship with her, nor with the subcontractors, who I represent the petitioners herein. Fleetwood Paving Corporation thereupon, entered into contracts with the two petitioners herein as subcontractors, to wit, Aquilino and Colonial Sand Company. Both these subcontractors very promptly and quickly performed their subcontracts and completed their work. They remain unpaid to this date. Now, I mentioned these dates despite the fact that in our opinion, these dates are unimportant, unimportant for this reason. The question is whether or not this is property of this -- of the delinquent taxpayer, the general contractor. We say that that isn't. And therefore, the time of filing by anybody is unimportant. Now, we say it isn't because whether or not this is property of the taxpayer and therefore, reachable by the Government's lien, is a matter purely of state law. And this Court has so set in the decision last June, United States versus Bess 357 U.S. 51. Therein --
Earl Warren: Is there any difference of opinion between the parties on that score?
Charles S. Friedman: I'd -- I'm sorry.
Earl Warren: Is there any difference of opinion between the parties on that score?
Charles S. Friedman: No.
Earl Warren: As to what's --
Charles S. Friedman: No.
Earl Warren: Well --
Charles S. Friedman: I'm just getting to that. [Laughter] The point is that the Government agrees as they've stated in their brief on pages 13 and 7. Petitioner recognized as indeed they must and then they cite U.S. versus Bess that whether Fleetwood had any property interest in the sum due from Bottone is a question of law. And on page 7, they set forth the same recognition of that being the question. Now, it's regrettable that this Bess case wasn't decided before the Aquilino case, on which we are here now.
Speaker: (Inaudible) no question of competing lien.
Charles S. Friedman: Your Honor, we do not consider that this is a question of competing liens. We only give in to the question of competing liens, if and when you're discussing the question of property that's admittedly the tax --
Speaker: (Inaudible) words in your mouth that this follow the question of competition between creditors involved here?
Charles S. Friedman: No. We say there is no question of competition. We say that this property under the law of the State of New York belongs to these subcontractors.
Charles E. Whittaker: When -- when you say property, as I understand, you limit yourself to the chosen action under this contract. You pose to him be -- avail of the contract, is that it?
Charles S. Friedman: I don't say that we limit ourselves to that. I say that all moneys due to the general contractor including his cause of action against the owner for the moneys that either, are due or are to be become due, are part of the trust under the New York law. And as long as they are part of the trust and these sub -- subcontractors are the sole beneficiaries of that trust, that is not property of the -- of the general contractor and is not reachable by the tax lien.
Charles E. Whittaker: In other words, this property of the trustee is not properly have been issued?
Charles S. Friedman: That's right. It's just -- it's just as simple as that. And we say that it is not the property of the trustee. The -- most that could ever be said with respect to the trustee is that he held bare legal title. He had no beneficial interest whatsoever.
Charles E. Whittaker: Now, do you mean that interest -- you mean in your title -- in essence of title of the trustee, but in his individual capacity, he is only conditional, is that what you think?
Charles S. Friedman: No. Not the -- not the general contractor --
Charles E. Whittaker: No, the trustee.
Charles S. Friedman: Well, the trustee -- the general contractor would be the trustee. But such title as he had would be solely a bare legal title as trustee for the benefit of the subcontractors or the beneficiaries as set forth in the statute in the State of New York.
Speaker: New York Court of Appeals (Inaudible)
Charles S. Friedman: No. I don't agree with that, Your Honor. I think that the New York Court of Appeals did not decide that and that's why the issue is here.We say that the Court of Appeal avoided a determination as to whether or not, this was property of the -- of the delinquent taxpayer, the general contractor herein. And we say -- and we think it's crystal clear that they avoided it for this reason. And I'd like to read you a part of their decision. It's in the record on page 68, “It is by now exceedingly well settled that no state-created rule may defeat the paramount right of the United States to levy and collect taxes, uniformly throughout the land.” With which we agree. Then it goes on to say, “That being so, if powers of the provisions on this State's Lien Law to which the responded points that funds received by a contractor from the owner for the improvement of real property shall be deemed “trust funds” for the payment of the subcontractors, and then here's the key line, “May not be construed to affect the rights of the Government or the priority of its tax lien.” Now, I don't think with that phraseology, there can be any question that they were deferring to the federal -- to federal decisions, which they cite as -- as precluding them from determining under the law of the State of New York, whether or not this was property of the general tax of the --
William J. Brennan, Jr.: I gather your point is that they, suppose if you have appreciated that this was the decision of the -- made on state law, whether the property --
Charles S. Friedman: That's right.
William J. Brennan, Jr.: -- the result (Inaudible) difficult.
Charles S. Friedman: That's exactly what we say and as a matter of fact, it's our contention that the Court's own footnote to that statement in their opinion, eliminates and accentuates that very question because in their footnote to that statement, they say, “To the extent that Cranford-Leopold, which was a Court of Appeals' decision earlier, just contrary to what it's contented they held here, to the extent that Cranford-Leopold suggest the contrary, it must give way to more recent federal decisions. Now, we think that its -- that makes it very clear that they did not pass on the question as to whether or not, this was property of the general -- of the general contractor under New York State law.
Felix Frankfurter: Well, the -- the utmost thing that you could ask from this Court or is it the utmost thing that -- which indicates back to the Court of Appeals to have them ascertain, it's a little presumptuous to tell, for us, to tell them they should have statements to New York law and so Judge Fuld and company wouldn't have pursued that.
Charles S. Friedman: That would -- that would be an alternative disposition, Justice Frankfurter, but --
Felix Frankfurter: Another one is that we should decide what New York law is.
Charles S. Friedman: Well, we think that this Court has the power to decide what New York law and -- is and could therefore, reverse it rather than remand for --
Felix Frankfurter: It would require for us to decide New York law which, for some reason or other, the New York Court of Appeals, in your point of view, it wouldn't do, is that right?
Charles S. Friedman: That may be so. Of course, we contend -- we contend that if the Court of Appeals had to -- we contend exactly as was stated in the opinion in the Durham case, which is to be heard immediately following us. In the Durham case there, the Court of Appeals for the Fourth -- Fourth Circuit there, I don't have that phraseology immediately at hand, but they -- but they said, “That had the Court of Appeals, in the Aquilino case, given further consideration or given proper consideration to the law of the State of New York, they probably would've disposed of it definitely.”
Speaker: (Inaudible)
Charles S. Friedman: Justice Harlan, I'm very -- I'm very happy that you -- that you've drawn attention of that for this reason.
Speaker: Which is then?
Charles S. Friedman: This is the reference that the Government makes to the fact that -- they -- they claim that the Government's lien attached to the contractual obligation of the owner to the general contractor and not for the real property. And I think that that's immaterial, but in order to -- let's see how the Government gets away from that -- supports that question. They say -- they say that two decisions of the Court of Appeals of the State of New York to wit, a so-called Raymond case, 288 N.Y. 452 and a Sulphur case, 290 N.Y. 903 held that the contractual obligation of an owner to a general contractor was -- was property of the general contractor was that and could therefore, be reached by judgment creditors or Federal Government lien or whatnot. The fact remains that those decisions may have, despite the fact that I disagree with it, they may have been good law because -- but they were based and founded on a -- upon a construction of the law prior to the 1942 Amendment, which amendment -- which amendment included the contractual obligation as part of the trust. So that -- I -- I'm quite surprised that those two cases have been cited by the Government here, because they have attention withdrawn to them. They were criticized and they were explained in a dissenting opinion in the Gramatan-Koslow case just the year, 1957. And it's very obvious that they don't apply at all.
William O. Douglas: Well, we have -- we have your (Inaudible) state law, don't we? That they -- they construe it this way because under the compulsion and reading the federal statute that it would be unconstitutional to construe it any the other way.
Charles S. Friedman: No, I -- I don't see it that way, Your Honor. I don't think that the Court of Appeals of New York appreciated that they had the right to dispose of this on a basis of what the state law was. They were under the impression that they were precluded from determining that. And the -- the strange part of it is that another case in which this Court has just granted cert in a -- the so-called Coblentz case. They decided on the basis of this law of the State of New York that an attorney's lien under the judiciary law of the State of New York did constitute property of Coblentz, the attorney and wasn't -- and was superior to the lien of the Government. So, now, as to whether or not this is property of the -- whose property this is against which the Government has filed the lien or claim the lien? Let's look to the law of the State of New York, both the legislative and judicial history of that law. I happen to have been practicing prior to -- in New York prior to the time that this law was passed in 1929. Prior to that time, there was nothing to stop a general contractor from performing a contract with an owner, collecting all the money that was due and then absconding, leaving the subcontractors and the materialmen high and dry. We finally got pretty fed up with that situation and amend the Lien Law so as to provide that a contractor who collected money from an owner or an owner who collected money from a mortgagee -- from a mortgagee and who did not use the moneys for the purpose of paying subcontractors and materialmen, was guilty of a diversion and guilty of a crime. I'll put a stop to a great deal of it, but then as usual, they found ways and means of avoiding that and so we have continuously amended the law right down to date, so that we believe that under the law of the State of New York, there was a complete valid trust for the benefit of subcontractors, materialmen and the few others mentioned of the statute. Now, with respect to the elements of this trust, first of all, it identifies the trust assets, and I'm reading from the statute now. It says that the funds received by a contractor from an owner, from an owner for the improvement of real property. So we have no question as to the identification of the corpus of the trust. Then it designates a place of beneficiaries and it specifically says subcontractors, laborers, materialmen and it list others. Then it designates the trustee and it says, “That the funds constituting this trust shall -- are hereby declared to be trust funds in the hands of such contractor.” So we now have a trustee. Other sections of the statute which we inadvertently did not have pointed, specifically requires them to keep books and records and as a matter of fact, the statute very elaborately says why he shall keep in the books and records and how he shall keep that. It requires him to furnish an accounting to anyone of the beneficiaries of this trust anytime upon 10 days notice. Now, it has -- it -- it also authorizes any beneficiary to examine the books and records, to examine checkbooks, any of the ledger accounts, specifically set forth in the statute. So that we have every single essential element of a vital trust in this situation. Now --
William J. Brennan, Jr.: Mr. Friedman, may I ask what do you say about the State (Inaudible) if federal lien by a government inserted against factual obligation that is conformed with (Inaudible) I gather that some (Inaudible)
Charles S. Friedman: I say that that, Your Honor, at the misconstruction of the New York statute because the New York statute specifically says that that property is part of the trust here.
William J. Brennan, Jr.: No, it isn't. What I meant here is whether (Inaudible) translation on the New York Court of Appeals (Inaudible) New York statute.
Charles S. Friedman: Well, the fact of the matter is that whether it is personal property or not, it's still part of the corpus of this trust for the benefit -- benefit of these beneficiaries and it's therefore, not reachable by the Government, if it isn't the taxpayer's property, if it isn't the delinquent taxpayer's property, whether it's personal property, whether real property, whether it's a hybrid.
William J. Brennan, Jr.: (Inaudible)
Charles S. Friedman: No. But then we come to the 1942 Amendment, Your Honor. And that 1942 Amendment specifically says that for the purposes of any action, “The trust fund shall include the right of action upon an obligation for moneys due or to become due to a contractor, as well as money actually received by him.” So it would seem to me that the so-called contractual obligation referred to in -- in what you have just read, is part and partial of the trust for the benefit of these beneficiaries.
Felix Frankfurter: Couldn't -- what the Court of Appeals what Justice Fuld said the (Inaudible) means that the kind of -- of interest that the subcontractor has or the kind of obligations which the contractor holds under the New York law is not competent or rather is proper that the -- that that (Inaudible) contractor had, although he may hold them in trust, as you say to the subcontractor in the -- into the labor and so on, is not called property under 3670. And therefore, they're construing not the New York law, but they're construing the federal law as to what constitutes profit and they exclude therefrom ownership, title ownership though is subject to a trust, is not -- is nevertheless property in that sense, in the federal sense. Is that what they are doing? And thereby, construing a federal statute which is open to (Inaudible) here --
Charles S. Friedman: Frankly. Frankly --
Felix Frankfurter: (Voice Overlap) --
Charles S. Friedman: -- Your Honor, we're -- we're somewhat puzzled as to what the Court of Appeals are trying to say.
Felix Frankfurter: It's unlikely.
Charles S. Friedman: And I think the Court of Appeals is somewhat puzzled and we're -- we're more convinced to that in reading two subsequent decisions of theirs in which they have circumvented this very -- this very question.
William J. Brennan, Jr.: Well, it has what Mr. Justice Frankfurter suggested (Inaudible) what they are opposing from is -- it's not the New York statute, possibly (Inaudible) Section 3670 of the United States Code.
Charles S. Friedman: Yes. They're trying to define --
Speaker: (Voice Overlap) --
Charles S. Friedman: -- they're trying to define property not according to the state law, but according to the -- according to federal law which we say is wrong. We say that this property, this --
Felix Frankfurter: Whether it's wrong or not, it is not a determination which forecloses us from reconsidering it.
Charles S. Friedman: That's right. Now -- now, there is one single decision in the State of New York in which this trust has been denied full force and effect as a good and valid trust. There was also -- I also direct your attention to the -- to some of the federal cases involved here, particularly, those in bankruptcy, one case to which Boiler versus Godfrey 121 F. -- F.2d 415 in which this Court 314 U.S. denied cert. The question arose there as to where or not the property of a -- whether or not funds receivable by a bankrupt in connection with work performed under this same Lien Law, whether or not they were reachable by the trustee in bankruptcy for the benefit of general creditors and the Court held that they were not. They were not reachable under -- under the Bankruptcy Act, the trustee had no title to them they had no right to them. So that we have a good and valid trustee here and we have the Court of Appeals not determining what the subcontractors' rights were hereunder. Thus, the legislature of the -- of the State of New York by statute and the judiciary of the State of New York have held by their decisions that -- and are not accepting Aquilino that this is a good and valid trust. And that the only persons that have any right title or interest are the beneficiaries set forth in the statute. Now, this brings us to one unusual situation. The Government, in its brief, accedes to the fact that private individuals can avoid the consequences of this Act. On page 22 in their brief, in commenting upon the decision of (Inaudible) in the Second Circuit which this Court cited with approval in U.S.-Bess, they said that for assuming the correctness of (Inaudible) it is not unusual that parties by contract may change their respective rights. Now, would be anomalous to say the least, that parties to a contract could -- could prevent the United States Government from collecting taxes against to delinquent taxpayer by putting the proper clause in a contract, but that the State of New York with its sovereign power and through his judiciary, cannot protect the subcontractor from the Government coming in and taking its moneys as they have here. I say that this is not property of the delinquent taxpayer. It's solely the property of the subcontractors here not reachable by the Federal Government's lien under 3670 and that there should be either a reversal or that the case should be remanded to the Court of Appeals for further consideration on the basis of New York state law.
Speaker: (Inaudible) the State wants to characterize the first problem, the problem whether you can attach (Inaudible) and the owner in your case, the general contractor, it can defeat the lien priority which otherwise would attach if it's denominated his lien under our Bess decision as the practical effect to the lien --
Charles S. Friedman: I say that the --
Speaker: -- from your position.
Charles S. Friedman: Yes. I say that the State has a right to do that within certain limitation. It cannot, of course, be obvious that the purpose of it was to defeat the United States Government in any respect.
Speaker: Well, a State would never (Inaudible)
Charles E. Whittaker: Well, do -- do you really concede that it's a matter of nomenclature, whether the State merely puts a trust label on it --
Charles S. Friedman: No.
Charles E. Whittaker: -- or not?
Charles S. Friedman: I -- no, Your Honor. I don't think it's a -- it's a question of the label that you put on it. I say that under the law of the State of New York, it's very clear that this is a good and valid trust. They have gone to extreme lengths to define the trust, the nature of it, the trust assets, the beneficiary, they've imposed criminal sanctions, civil sanctions.
Charles E. Whittaker: You say, in other words, in the brief, that it's not a trust in label or form alone but it's the trust -- a true trust in facts.
Charles S. Friedman: That's right. That's exactly what we contend and that this -- and that this general contractor has no right title or interest there except there legal title for the benefit of the beneficiaries, if and when, the money comes into his hands.
Felix Frankfurter: But it wouldn't help you, and the New York Court of Appeals unambiguously had disagreed with. But my reading of it, they do not unambiguously disagree with you, but they say this kind of interest is not property within the federal statute.
Charles S. Friedman: That's right. They say, “We have no right to consider whether or not as property of the general contractor.” Thank you, Your Honor.
Earl Warren: Mr. Heffron.
Howard A. Heffron: Mr. Chief Justice, may it please the Court. We have here two creditors of a general contractor. The creditors are competing for something. They're competing for the proceeds of the construction contract. One creditor, the United States, asserts that its tax lien which here arose prior to the proceeds of the construction contract becoming due, gives it prior rights to this fund. The other group of creditors, subcontractors, asserts that the trust fund provisions of New York State law give them a prior right. Now, the chronology, we submit, is important. The tax lien arose first. It was followed by the taxpayer entering into a contract to do some construction work. He proceeded to complete that contract to the satisfaction of the owner. Shows in action arose at that time. This was property of the taxpayer, and it was this shows an action to which the tax lien attached. A New York law provides that the funds which a contractor has due to him on a construction contract shall, to the extent that any subcontractors are unpaid at that time, be held in trust for their benefit. And that is where the basis for the competing claims of the subcontractors derived from. Now, what is it that we're dealing with? The New York State statute provides that the subcontractors have this trust right only to the extent that there is any debt owing from the owner of the property to the general contractor taxpayer. The effect of the decision below in which the owner turned into court the funds which was still owing to the contractor, was to discharge the owner from any further liability to the contractor. The basis for the subcontractors' claims here is that there was money due and owing to the contractor which is held in trust. This is the basis, the foundations with the trust under New York State law. The trust does not arise unless moneys are owing to the contractor. The complaint here, which was filed by each of these subcontractors in the lower court, alleges that as a necessary allegation of their cause of action. Moneys were due to the contractor. The contractor earned these moneys. There is no defense to the contractors claim by the owner. Therefore, under New York law, we have prior rights. Now, we submit that in that context while the subcontractors here may choose to use a verbal variant of the contentions which have presented -- have been presented to this Court in previous cases that this is precisely the same kind of issue which this Court has had before, many times in the past. In essence, the subcontractors are arguing here that because under the provisions of New York law, their rights are impregnable to those of any other creditors of the taxpayer. For that reason, they must also come prior to the reach of the federal tax lien. Now, that is precisely the kind of argument which this Court has rejected in the past. It rejected it through in situations where the security which the subcontractor was asserting with a lien on real estate. Here, the security which the subcontractor asserts is, in essence, a lien on a chose in action. Under New York law, he has the right to reach this chose in action and apply it in satisfaction of his claim. The Government submits that it makes no difference whether the property of the taxpayer be real estate or whether it be a chose in action. The principle which this Court has defined in the past are equally applicable here. Now, this Court has reached the issue of the rights of mechanic's liens as against those of the United States in many situations. It has reached that, for example, in the White Bear case, where the mechanic's lien preceded was antecedent to the federal tax lien and where everything had been done under state law, which would render the mechanics' rights impregnable to attack. Nevertheless, this Court held that the federal tax lien was superior. It had reached --
Earl Warren: Mr. Heffron, may I ask you this. If suppose the New York court had held against you, held that the taxpayer had no right in this property under this statute, would you be here?
Howard A. Heffron: Yes, we would.
Earl Warren: You --
Howard A. Heffron: Mr. Chief Justice.
Earl Warren: In other words, you feel that New York cannot -- does not have the constitutional right to so find.
Howard A. Heffron: Well, we -- we would -- we would submit this in answer to that --
Earl Warren: Yes.
Howard A. Heffron: -- question, sir. That New York cannot adopt a statute which, in effect, is a priority statute and which gives a creditor of the taxpayer a preferred position. And then under the guise of saying, “Well, since no other creditor under New York law can reach this property, the taxpayer has no property. Therefore, the Government can't reach it.” We submit to characterize it in term, what is, in essence, a preference statute in terms of property doesn't -- doesn't solve the question. The realities of the situation would govern here and in terms of the rights and liabilities of the parties, we have here a situation where the subcontractors are seeking to reach a debt owed to the taxpayer. Now, we would say that if New York law characterized the rights of the subcontractors as -- as so concrete and fixed that the taxpayer had no property interest, that that would not bind this Court because, in essence, the New York court would be saying that the security device which we've created to benefit the subcontractors is sufficient to defeat the federal tax lien.
William J. Brennan, Jr.: Do I understand the Government (Inaudible) the general contractor by agreement, a provision of their contract might have accomplished precisely this -- that the claim of the subcontractors would be honored as against something which the taxpayer (Inaudible)
Howard A. Heffron: No, Your Honor. We -- we do not concede that. We distinguish the case in our brief which had arisen in the Second Circuit, which involved a contract provision under which it was provided that if the contractor failed to comply with certain conditions, he would have no right to the balance due. And we distinguish that case.
William J. Brennan, Jr.: Well, in that -- in that -- under such provision, you're saying that the Federal Government that brings out the subcontractors?
Howard A. Heffron: No, Your Honor. We say that would be a harder case and the question would then arise whether this Court would characterize that device which would again be an essence of method for preferring a creditor of the taxpayer --
William J. Brennan, Jr.: (Voice Overlap) didn't held.
Howard A. Heffron: I beg your pardon, sir?
William J. Brennan, Jr.: The Government didn't held.
Howard A. Heffron: The Government did lose in that case, but that case, Mr. Justice Brennan, involved a surety who held.
William J. Brennan, Jr.: It did lose out (Inaudible)
Howard A. Heffron: No, we did not. Now, that case involved a complicated contract with the City of New York. A surety who had -- had an agreement with the contractor, performance bonds and payment bonds and complicated contractual provisions which were designed to protect the City of New York from litigation which might ensue over public housing project. And in that case, the contractor couldn't complete his contract and the surety took over for him and on the facts of that case, the Government did not feel that the result was wrong.
Speaker: Judge Medina, in that case, rightly or wrongfully, thought it was distinguishable under the Kings County case, which was written by Judge Clark.
Howard A. Heffron: Yes, sir. I was going to point out that --
Speaker: (Voice Overlap) he'd better not, he didn't think he was changing the law of a previous panel.
Howard A. Heffron: In -- in --
Speaker: The Kings County case is flattening in your favor.
Howard A. Heffron: That is right. There is a case in the Second Circuit which involves precisely this issue. In fact, it involves a better case for the subcontractors because in the Kings County case, the trust fund arose prior to the federal tax lien coming into existence. Surely, if they were --
Speaker: (Voice Overlap) the Court of Appeals on (Inaudible)
Howard A. Heffron: Yes, it is. But the Court of Appeals was well aware of the subsequent decision in the surety case, which Your Honor has alluded to.
William J. Brennan, Jr.: (Voice Overlap) the Second Circuit is that on this question.
Howard A. Heffron: None that I am aware of, sir.
Felix Frankfurter: You have said some time that a device for avoiding the power to the Federal Government. Does one have to characterize the protection of -- of the interest of people like subcontractors and laborers and devices may they not be -- didn't the question really whether, if a state court works how to scheme of fiduciary relations of a trust, thereon social interest which the State may protect, although in consequence, the Government priority maybe secondary. Why do you call it a device?
Howard A. Heffron: It may be that the -- the word “device” was inappropriate.
Felix Frankfurter: No, but that's in the back of your mind as to what these things are.
Howard A. Heffron: No. What is in the back of my mind, sir, is that -- that semantics should not govern here.
Felix Frankfurter: I'm not talking about semantics either. I'm taking about the real social policy by a State to fix the dedicate trust interest upon funds like this in order to protect people, in the opinion of the legislature of a State, may need protection.
Howard A. Heffron: And -- I -- I would answer to that, sir, that precisely that kind of social interest was embodied in the various lien statutes of Mississippi, Colorado --
Felix Frankfurter: I'm not talking about lien statute. Doesn't -- that may be the purpose of the lien statute, but the question is, a construction whether on words, property, preclude honest to God, trustees that he could trust interest.
Howard A. Heffron: Well, I --
Felix Frankfurter: It does in an ordinary trust, does it? I mean, as I know of their trust, I mean a conventional trust. Is the -- is the trustee's property of pure trust or naked trust, if you will? Is that the trustee's property for -- for 3670 purposes?
Howard A. Heffron: No. It probably would not be in the ordinary case.
Felix Frankfurter: All right. So we start from there and then the question is whether the -- a State like New York cannot create -- cannot impose all the interest and incidence of a trust relationship of moneys going through of -- of person like a contractor?
Howard A. Heffron: Well, I -- I would have -- I would have two answers for that, sir. First, I think the question would be whether after the federal tax lien has arisen and a chose of action in favor of the taxpayer has come into existence, a State may, at that time, by a statute, provide that that cause of action shall be held in trust for a creditor of the taxpayer other than the United States.
Felix Frankfurter: I'm not interested in that particular question. That's -- that's a -- a minor question is referred to make a redraft of arrangements whether it creates retroacted community. But suppose you have an outstanding state statute which governs by which even just the creating. And if one couldn't say that either a device is by the State, but at least they're honest to God, need of creating an -- a conventional trust relationship. Would that be -- the question would be where this property under 3670.
Howard A. Heffron: Of course, we -- we would not conceive that the relationship created by New York law here is a conventional trust relationship.
Felix Frankfurter: I understand that. Either to conceive, I don't know what -- I don't quite understand that close opinion. That's my difficulty or in the language of the Minnesota tax case, it's obscure.
Howard A. Heffron: Well, we -- we read Judge Fuld's opinion as holding that the trust fund is, in essence, another method for assuring security to the subcontractors and that as a method which assures security, it must be tested by the rules which this Court has laid down in determining the validity of other state methods for assuring security to subcontractors. And I've tried to point out --
Hugo L. Black: Are you taking -- this is your view that if this New York statute should be held sufficient, it defies the Government of its lien? Every State could adopt the same kind of law which would -- and substituted for that Lien Law for the same purposes and thereby, rendered the statute in effect, the federal statute in effect?
Howard A. Heffron: That certainly could be done, if -- if the statute --
Hugo L. Black: Your view -- your view is that this is -- whatever it is, it's a method of trying to give security some credit, which defies the Government of the security which the federal statute has shared or given it when the States used the term “liens” instead of “trust”.
Howard A. Heffron: That is precisely our position, sir. If we examined the nature --
Earl Warren: Then -- then it is your -- it is your position, I -- I take it, that -- that the States cannot determine who has property in this -- in these bonds. That it must leave them with the contractor and that if Judge Fuld had decided otherwise, he would have been -- he would have been wrong and you'd be entitled to be here anyway then reverse.
Howard A. Heffron: We would say that under the New York statutes as they presently exist that Judge Fuld had decided that this was not property within the meaning of the federal statute that he would have erred as a matter of federal law.
Hugo L. Black: But assume your fist argument is that he -- he assumed to decide -- interpret the state statute, we ought to follow it like you do in other case?
Howard A. Heffron: That would be our fist position, the argument which --
Felix Frankfurter: I think you can get a unanimous court on that. [Laughter]
Earl Warren: Well, I -- I --
Felix Frankfurter: I'm not sure.
Earl Warren: I thought, Mr. --
Hugo L. Black: (Inaudible) to that.
Earl Warren: I thought, Mr. Heffron, that -- that counsel said that you agree that the State did have the right to declare the property rights and I thought you cited Bess and other cases in your -- in your opinion or in your brief to that effect. But I thought that you relied on -- on Judge Fuld's opinion to the effect that New York law did not confer this property right on the subcontractors --
Howard A. Heffron: No.
Earl Warren: -- and therefore, we should affirm him.
Howard A. Heffron: We agree with the petitioners here that New York law defines the rights and liabilities of the parties. From there, we --
Earl Warren: No, does that mean property rights on the parties?
Howard A. Heffron: Well, we -- we would submit that whether the rights and liabilities which exist under state law is property within the meaning of the federal statute, is the federal question which is before this Court. And we say that Judge Fuld examined the rights and liabilities of the parties under New York law, as he had the right to do. He observed that the trust which New York law creates is predicated upon the existence of a debt to the taxpayer and that is his word in his opinion, “There is a debt to the taxpayer,” he said in the opinion, examining the nature of the rights and liabilities which are created under New York law and finding as he have to that there was a debt owing to the taxpayer, he came to the conclusion that the trust fund provisions of New York law just as the mechanic's lien provisions of New York law and the laws of the other States, was simply another way of preferring a class of creditors to the detriment of the Federal Government. And he came to the conclusion that under the decisions of this Court, he could not give effect to the trust fund -- fund provisions where the federal tax lien had already attached to this debt, which was owing to the contractor, taxpayer here.
Earl Warren: And it's your position that he could arrived no other conclusion that if he had, you would have been wrong and should have been reversed by us.
Howard A. Heffron: Yes. That would be our position, sir.
Earl Warren: Yes. Does -- does your brief say that?
Howard A. Heffron: Well, I think it -- it's a --
Earl Warren: Doesn't your -- I thought your brief said in several places here which you call Bess case and other cases that the State had the right to determine in whom the property --
Howard A. Heffron: Well --
Earl Warren: -- was.
Howard A. Heffron: The State -- we -- we set in our brief and we intended to say, Mr. Chief Justice, that the State has the right to determine the rights and liabilities of the party. But whether or not to characterize the resulting conglomeration of rights and liabilities as property or not is the federal question which is before this Court. If we examine the trust fund provisions of New York law, we -- we find that what we have here is an animal which is very far from being related to a conventional trust. The trust fund provisions of New York law provide, for example, that the trust shall arise --
Hugo L. Black: What difference would that make? That's not a conventional trust. I thought you're arguing for is that they can't do this under the name of the lien, although a lien has a very high stakes in the law, mechanic, laborers and so forth. Since they can't do it in the lien rather preference speaks now by the federal statute, if they do it on the name of the trust.
Howard A. Heffron: No. I did not mean to detract from the force of that argument, sir. I was really addressing myself now to an additional position which we have here and that is that even under New York law, the rights of the subcontractors are not fixed within the requirements of the decisions of this Court, so that this is an additional reason why they could not supersede the federal tax lien here. Now, I --
Speaker: Your position doesn't involve attributing anything sinister and devious in New York, doesn't it?
Howard A. Heffron: No, it does not. I -- that was inappropriate use of language. I simply meant to suggest that -- that if an argument could prevail here to the effect that a security interest under state law had become so perfected and so fixed that the taxpayer no longer had any property to which the federal lien could reach, whether on the decisions of this Court could be undone in precisely the same situations where this Court has upheld the reach of the federal tax lien. That is essentially what the argument of the petitioners comes down to. This is a security provision of New York law. Some of the courts have said the subcontractors in New York have a double security. They have the lien on the real estate of the owner and they have the trust right to the debt owing to the contractor. But in essence, these are both security methods by which the subcontractors can be assured of payment. And what is he assured of payment from? He is assured of payment from the chose in action which he holds against the owner. The owner is discharged here.
Charles E. Whittaker: I can assume that (Inaudible) power over the State to do, does not the State has such interest to continue of materialmen and mechanics before the parties have been taken for the initial payment of tax, that it can't be in trust by (Inaudible)
Howard A. Heffron: Well, we would say to that where the federal tax lien has attached to a debt which admittedly is owing to the taxpayer, that the State could not thereafter require that that fund be held in trust for another creditor of the taxpayer.
Charles E. Whittaker: How can, in this case (Inaudible) were the tax lien had (Inaudible) of making a contract, then when the materialmen are not paid and the fund that it was set up by (Inaudible) is used by the Government in his (Inaudible) who are paying tax of the (Inaudible)
Howard A. Heffron: Well, of course, that is an equitable consideration which is involved. I'd like to point out that we're here dealing with withholding and social security taxes which were withheld from the wages of employees of the taxpayer. And we know in the enforcement of the revenue laws, the great delinquency is over $200 million which now exist in withholding and social security taxes and we know that the pattern in the construction industry is for contractors to take this withheld taxes, which themselves are trust funds under federal law and use them to operate there business. Now, we can't trace these taxes into the hands of any particular subcontractors, but I don't think we're -- we're dealing with a situation were the Federal Government doesn't have some right to pursue tax dollars which the contractor withheld from his employees and to take them.
Earl Warren: Mr. Heffron, I understand that the Government made this assessment against the taxpayer -- against the contractor before he entered into this contract with Mrs. Bottone. But that -- that fact was not known to anyone, but the Government. And there was no way that materialmen or laborers could -- could determine whether that assessment had been made and that thereafter, this contractor entered into the contract for this improvement and these materialmen and laborers, put there materials and their labor into this job. Now, if the federal assessment against this taxpayer was more than he had coming from the -- from the owner of the property or the judge. Do you say is a practical matter that the State could not protect those workmen and those materialmen to such an extent that they could get that from that transaction, the value of the property and the value of the labor that they put into it that they'd be entirely wiped out?
Howard A. Heffron: Well, that is the result of this Court's decisions --
Earl Warren: Yes.
Howard A. Heffron: -- in a great --
Earl Warren: Do you believe that --
Howard A. Heffron: -- line of cases.
Earl Warren: Do you believe the State is deprived to that power to do that?
Howard A. Heffron: The -- the first case in which the secret lien which we're allegedly dealing with here arose with the Snyder case in 149 U.S., where a bona fide purchaser of the property without notice, was held to have rights inferior to the federal tax lien which was not recorded and which under state law as an unrecorded lien could have no effect. Nevertheless, this Court held that the federal tax lien was superior. Now, this prompted Congress to grant relief and Congress has provided that federal tax liens must be -- must be filed, if they are to be valid against four categories of claimants, judgment creditors, purchasers, mortgagees and pledgees. And this Court has noted in the prior decisions that mechanic's lienors are not within the class of persons protected by the filing requirements of federal law.
William J. Brennan, Jr.: In those cases were usually a mechanic's lien holders (Inaudible) were they not only cases which there's any doubt taxpayer had property in the thing they thought -- which they thought to have liens? The issue here is whether or not there was any property in the taxpayer with which the lien was taxed.
Howard A. Heffron: Well, of course, in this other cases, Justice Brennan, the mechanics were, in essence, claiming that lien had so fixed upon the property that there was nothing left for --
William J. Brennan, Jr.: The fact is --
Howard A. Heffron: -- the tax lien to reach.
William J. Brennan, Jr.: The fact is, however, no issue. I impose there are a great number, but I don't believe there is any which was not in fact -- that there was property of the taxpayer and the thing in which the lien attached and the conflict then arose between other lien claimants and the federal claim. Here, the basic question, as I understand it, is whether in fact there was any property at all of this taxpayer to which any lien could tax, isn't that it?
Howard A. Heffron: Well, that is the issue as formulated by the petitioners. We submit that there clearly is property here.
William J. Brennan, Jr.: Well --
Howard A. Heffron: It is the debt owing to the contractor.
William J. Brennan, Jr.: (Voice Overlap) happens (Inaudible) property of course, that the issue is for us.
Howard A. Heffron: But just --
William J. Brennan, Jr.: But the New York Court of Appeals --
Howard A. Heffron: Of course --
William J. Brennan, Jr.: -- had finally decided.
Howard A. Heffron: In the other cases which this Court has passed on. There was much language in the lower state court opinions which said, "Under our law, the mechanic's lien has divested the taxpayer of his interest. Therefore, the federal tax lien can't attach." So, this argument has worked in the record of these cases, and it could've been pulled out at any time as the grounds for invalidating the federal tax lien. It never was. It lurked in the record in the Kings County case in the Second Circuit. And the court there went on to say that although your -- the trust fund provisions of New York law apply first in time here, the trust had arisen first.
William J. Brennan, Jr.: But is that (Inaudible) where we have (Inaudible) tax lien on the state law, the property of the taxpayer?
Howard A. Heffron: Well, I think those were the first cases in the lien field which have held that property must be taken to refer to interest created and defined by provisions of state law. Now, of course, the -- the thrust of petitioner's argument here is to place him in a position, theoretically, which is even more favorable than the position which Congress has placed judgment creditors, mortgagees, pledgees and purchasers. Because if his argument should be accepted at anytime that the trust fund may arise even subsequent to the filing of the tax lien, a time when all the cases have assumed that at anytime the Government's rights were set, it was when the tax lien was recorded and filed. If this argument is accepted, even those provisions will not support the reach of the tax lien, because the argument will be -- well, under federal -- under state law, you taxpayer have no property because your -- your creditor who is subsequent to the tax assessment and who is subsequent to the recording of the tax lien, has taken the property. Now, we -- we submit that that result is foreclosed by the provisions of the statute itself, which indicate those classes of persons who are protected from unfiled federal tax lien.
Hugo L. Black: What do you say if it's a very bad thing if we've decided and probably this much argument on that side. Why shouldn't we overrule it, rather than to leave a system in existence, were some States can protect their mechanics and some cannot, until they changed their laws with reference to lien?
Howard A. Heffron: Well --
Hugo L. Black: Would you say to the -- do you think the Court's opinions are right that have held that this secret right lien for the Government can be enforceable against a mechanic for his -- rather than to have a preference over mechanic's lien? Do you think they're sound?
Howard A. Heffron: I think that under the logic of the decided cases, the Court could've come to know other conclusion in the mechanic's lien cases.
Hugo L. Black: That's logical.
Howard A. Heffron: And we submit that it can come to know other conclusion in this case.
Hugo L. Black: That you -- you're talking about the (Inaudible) case.
Speaker: I have to (Inaudible)
Howard A. Heffron: Well, I'd like to point out, Mr. Justice Black, that the criticism which has been levied against the federal tax lien as usually been -- been brought to bear in a situation where the lien under state law comes first. And then the persons who've developed the expectancy are divested by a -- by a subsequently accruing lien. We have here a case where the federal lien is antecedent to all the interests, which have been created under state law. So that even the -- those --
Felix Frankfurter: If the state law preceded the lien, then the interest is not antecedent. And the lien is not antecedent as the practical proposition. If the State has fabulous statute providing that all these moneys should go to the Farmers' Loan and Trust Company that -- or some other trust company, would you then say it was just like a lien? Actually, there is a difference between creating a lien and creating a trust. And you don't have to say that one equals the other.
Howard A. Heffron: No, they don't necessarily have to equal the other. But when one is used to secure creditors of a taxpayer, the payment of his debt to them in addition to the lien it -- it -- in substance, reaches the same result.
Felix Frankfurter: I know, but the law of property is full of different regards being reached for the same result than outward being reached by different method that condemn even assignments and creation of interest. You can't just wipe out and say wherever a result is the same, therefore, all legal instrumentalities are the same.
Howard A. Heffron: No. But this Court has pointed out that it will look at the realities of the situation --
Felix Frankfurter: I know reality --
Howard A. Heffron: -- in the --
Felix Frankfurter: -- is a big word.
Howard A. Heffron: Well, in the Gilbert Associates case --
Felix Frankfurter: One of the realities -- these are -- the trust is a very --
Howard A. Heffron: Well --
Felix Frankfurter: -- different thing from a lien. That's one of the great realities in which the law has been doing business --
Howard A. Heffron: Well --
Felix Frankfurter: -- for hundreds of years.
Howard A. Heffron: Of course --
Felix Frankfurter: (Voice Overlap) --
Hugo L. Black: (Voice Overlap) --
Howard A. Heffron: -- we --
Hugo L. Black: -- to argue that the Court can't just wipe out all the decisions it did accept -- it made which is declined to give mechanics preference over the Government, under the government statute.
Howard A. Heffron: Well, I have -- I -- I hope that I have reached that point and if I may answer --
Earl Warren: You may answer.
Howard A. Heffron: If I may answer your question, Mr. Justice Frankfurter, in terms of the realities of interest under state law and the Gilbert Associates case, which dealt with the question of who was a judgment creditor within the meaning of the federal statute. Your opinion says that we must not look to the label which is placed by state law in this interest. We must look to the actual rights and liabilities as defined.
Felix Frankfurter: Because Gilbert went that way, it doesn't mean that you say there's no difference, I repeat, that there's no difference between the creation of a lien and the creation of a bona fide trust.
Howard A. Heffron: Well, I would accept that statement because it's our position that this is not a bona fide trust.
Felix Frankfurter: Very well, I understand that too.
Howard A. Heffron: Thank you.
Earl Warren: We'll recess now.


William C. Wines: -- inability of providing the fullest possible review for all persons accused of crime including free transcripts for the indigent at least, including perhaps the very best of counsel. The question here, as I was stating, is an important one, a deep one but it in one sense a narrow one as due process or the equal protection of the laws require with constitutional authority the affording of transcripts free of charge to those convicted persons who have not the means of otherwise procuring them. Before I address that question, I shall do my best to answer two questions, factual questions, not factual about this case but about the Illinois practice as to Mr. Horsky by Mr. Justice Reed. And as I understood it in slightly different fashion by Mr. Justice Frankfurter with respect to the so-called bystanders' bill of exceptions or the bill of exceptions prepared from someone's memory in condensed and narrative form and certified to by the trial judge. As to whether that's available in Illinois, I can say that everybody out there understands that it is but nobody has heard of its ever being actually used in a criminal case in Illinois in recent years. I think if you went back before the days of court reporting, you would find some but none today. And I will say that Illinois has not suggested in the brief that such a narrative transcript would necessarily or even generally be the equivalent of a verbatim transcript of all of the trial. I should also like to explain, so there can't be any misunderstanding about it, a little more amply than did Mr. Horsky, although his statements were quite accurate as far as they went, how transcripts are procured when they are procured under the Illinois Post-Conviction Remedies Act. That Act, if Your Honors please, is a statutory innovation in Illinois enacted, it's no secret in response to Your Honors decisions in cases from Illinois and other States in which Your Honors declared that the States must afford someway whereby in certain -- where there is a substantial claim of denial of due process, prisoners rich or poor must be afforded the means to attack their convictions collaterally by matters (Inaudible) the record when for some reason or other a transcript of the record would not make apparent those errors. Well, under the Illinois Post-Conviction Remedies Act, a prisoner is required to file a petition. It must be sworn to at least by himself and accompanied by such other affidavits as are available or his own affidavit as to why such other affidavits are not available. And if that question -- if that petition and its accompanying affidavits, when taken as true, make a substantial showing of denial of a constitutional right -- of a constitutional right then it's within the discretion of the trial court to require a county expense, a transcript of all or of such portions of the record of the proceedings at the original trial as may be necessary to present in whole or to support in part the claims of constitutional denial by the prisoner. That remedy is available only to those imprisoned in the penitentiary. We understand it wouldn't be available to a person who has served his term but wanted relief from some kind of civil disabilities so that he could hold office or vote or something of that kind, its means of restoring liberty and not full civil rights. Now, then the situation in Illinois with this slight amplification is exactly as Mr. Horsky has described it to Your Honors in his brief and at the bar this afternoon. Now, we address first the contention -- prisoners make two contentions with respect to denial of due process. The first contention that they make is that equal protection and due process are denied because Illinois does afford a free transcript to all indigent prisoners who have received the sentence of death. I don't mean in all cases in which capital punishment might be inflicted but has not given in a particular case. In all cases where the death sentence has been imposed, Illinois does provide a free transcript. Well, the petitioners say that as long Illinois provides free transcripts to indigent prisoners sentenced to death, it denies equal protection if it doesn't provide free transcripts to indigent prisoners who are not sentenced to death. Frankly, I don't think that question need detain the Court very long with very commendable fairness. Mr. Horsky concedes in his brief that that question is not as important as the one whether the review by -- of convictions of prisoners who have not been sentenced to death or who have the money to get a transcript denies equal due -- protection or due process when no corresponding right is given to non-capital prisoners who have no money with which to procure a transcript. Your Honors have declared as recently as the last term in Williams against Georgia that in Your Honors own language, "The difference between capital and non-capital offenses is the basis of differentiation in law in diverse ways in which the distinction becomes relevant." And I think that the differences between a man who is facing death and one who is facing even imprisonment for the rest of his life are of such substantial significance that equal protection or due process is not denied if the one is given -- the first is given and the second is not given a free transcript of proceedings. The cases on the right to counsel alone are sufficient to make that clear. Beginning with Powell against Alabama, at the latest in cases where the death sentence has -- where capital punishment may be inflicted and with Betts against Brady in cases in which the death penalty may not be inflicted, this Court has consistently and steadfastly held, although not without powerful dissent, that the requirement of counsel in a case where the death penalty can be inflicted is categorical, it can't be withheld unless the prisoner knowingly and wait and understandingly waives it whereas in cases -- in state cases I mean, not federal cases in which the death penalty may not be imposed, due process is not denied by the denial of counsel unless there is a special showing of particular circumstances why counsel is needed. Well, as long as Your Honors hold that the right to counsel is imperative and categorical in capital cases and as contingent upon action will mean. In non-capital cases, certainly the right to a transcript or gratuitous bill of exceptions is not of anything like the moment or at least has never been felt throughout the civilized world to be of anything like the moment as is the right to counsel. So I shall not, unless requested to do so, argue further the question whether the fact that we do give free transcripts to those sentenced to death operates to deny equal protection to the indigent defendant, not capitally sentenced who does not have such a record. I now address the second question in our brief which is this. Illinois conceded --
Felix Frankfurter: You wouldn't mean -- I don't know why you'd insisted -- why you think that those complicated (Inaudible) Illinois tomorrow could abolish a review of a criminal consistent of appellate review in criminal cases (Voice Overlap) --
William C. Wines: That's right.
Felix Frankfurter: -- take away from everybody --
William C. Wines: That's right.
Felix Frankfurter: -- they wouldn't dream of doing it I suppose.
William C. Wines: No, but --
Felix Frankfurter: They wouldn't dream of doing it.
William C. Wines: No, but they -- under Your Honors declarations, they could without denying any federal right.
Felix Frankfurter: I could say --
William C. Wines: Yes.
Felix Frankfurter: -- they do.
William C. Wines: Yes.
Felix Frankfurter: Well, they wouldn't dream of it. Why wouldn't they dream of doing it? Because it seems essential to the fair administration of justice, short of it, isn't it, that's true?
William C. Wines: That's true.
Felix Frankfurter: And yet you say that there is an obvious discrimination and an obvious differentiation between a fellow who might go to death and a fellow who -- he go to get 20 years or 10 years or 5 years or 7 years. That's your position. Is that the fair classification?
William C. Wines: Yes. Yes, I think Illinois --
Felix Frankfurter: I think --
William C. Wines: I beg your pardon?
Felix Frankfurter: If I was to think that that what you deem vital to our sense of justice, it is a man who might go to his death is irrelevant in a case of a man short of that, wouldn't you?
William C. Wines: Well, let me --
Felix Frankfurter: Well, that's what you must say that it's not irrelevant, a fair thing to give him a capital -- a capital offender, the opportunity of having the appellate court look at it but for the rest to leave to the nisi prius court.
William C. Wines: I think, Your Honor --
Felix Frankfurter: That's what your -- that's what (Voice Overlap) --
William C. Wines: -- that's -- that is what I'm arguing -- that is what I'm arguing and I -- I don't wish to dissemble the fact. I will put it in a -- I'll put it in this fashion, if I may, with Your Honors indulgence. I think so far as the Fourteenth Amendment or any other federal constitutional right is concerned, if Illinois chose to do so, it could tomorrow abolish all appellate review except in capital -- in cases where the death sentence had been imposed. And I certainly think it could do something -- and I certainly think it could do something else that it might do as it is now all felony cases go directly to the Supreme Court of Illinois with no -- with no stop at our intermediate appellate court. All misdemeanor cases, unless they involve constitutional questions that are substantial, go to the appellate court and then to the Supreme Court. I certainly think that Illinois could if it chose, if she chose tomorrow, limit appellate review to the appellate courts of Illinois except in cases where the death penalty had been imposed and there give either -- give a review by the Supreme Court either after or without the appellate court's intermediacy.
Felix Frankfurter: I'm not trying to take that position (Inaudible)
William C. Wines: And actually, the truth about the matter is in Illinois that the right to a writ of error is a review by the Supreme Court of Illinois on some kind of a record, common law or full stenographic record is absolutely and everything except capital cases because there is no such right in capital cases unless you'll get a stay of proceedings from the Supreme Court before execution and you are not entitled to that stay as a matter of right and until quite recently it was frequently denied. So the actual practice in Illinois, I am sorry to say but it is a fact, has been that the fellow who has a transcript and gets life is sure of a review by Supreme Court of Illinois but the fellow who has the transcript and gets death has to get a stay of the sentence and he's not entitled to it as a matter of right and it has been denied.
Felix Frankfurter: Well, that simply means the Court has made a reconnaissance review and decides (Inaudible)
William C. Wines: That's right. But it isn't the full review by all of the justices that you would otherwise get.
Felix Frankfurter: One thing a judge can decide that Congress says or a court?
William C. Wines: He has to get the concurrence of four to grant.
Felix Frankfurter: (Inaudible)
William C. Wines: Yes, but --
Felix Frankfurter: (Inaudible)
William C. Wines: Yes. Now, I turn to what everybody, I believe, recognizes as the even more serious question here through -- rises from the fact that take now only non-capital cases. The Illinois prisoner who can afford a bill of exceptions can obtain it and if he is convicted of a felony or of a misdemeanor in which there is a question of the constitutionality of the statute or some other substantial constitutional question, he may go by a writ of error directly to the Supreme Court of Illinois and illicit that Court's review. On the record, Illinois practice requires that the record be abstracted by counsel but the actual record is also supplied, briefs of counsel and oral argument if requested. If he is convicted of a misdemeanor with no constitutional question involved, he goes first to the appellate court. And if he suffers affirmance there, he has a writ of error which is a writ of right to the Supreme -- from the Supreme Court of Illinois where he may go without the equivalent of petition for certiorari but by the equivalent of direct appeal. Now, by and large, there isn't any way that an Illinois convicted person can -- in a non-capital case can obtain a bill of exceptions without paying for it.
Hugo L. Black: May I ask you a (Voice Overlap) --
William C. Wines: Yes, Your Honor.
Hugo L. Black: -- if Mr. Horsky is right in saying that under the law, as he has to construe it now, Illinois is bound to provide a full review of trial error in every defendant convicted in the State that has enough money to buy a bill of exceptions --
William C. Wines: That's right.
Hugo L. Black: -- but denied it to every person who is too poor to buy it?
William C. Wines: That last statement is almost correct.
Hugo L. Black: What's wrong?
William C. Wines: The only exception is we've mentioned that Mr. -- Mr. Horsky and I have both mentioned and that is under the Post-Conviction Remedies Act.
Hugo L. Black: Well, can he get it under the Post-Conviction Remedies Act?
William C. Wines: He -- if he can make a substantial showing to the trial judge that his conviction was a result of a denial of constitutional rights.
Hugo L. Black: I understand that --
William C. Wines: It's within the discretion of the trial judge to order the entirety or so much as he deems necessary of the transcript at the county's expense.
Hugo L. Black: But it is then correct as I understand it, Illinois permits every person who has the money, enough money to buy a bill of exception who has been convicted of a crime --
William C. Wines: Any crime.
Hugo L. Black: -- outside the capital to get -- to take it to the Supreme Court to have trial errors reviewed, both constitutional and all other kinds of it. But if he's too poor to buy one, he cannot have trial -- any trial error reviewed however grave it is unless it's a constitutional question.
William C. Wines: That is correct.
Felix Frankfurter: Am I right in my impression that this is -- not a reasonable impression that is that I think we think before us, on the whole -- the overwhelming regarded cases that do go up for review, the equivalent cases do not raise a statute -- a constitutional question could go up on error.
William C. Wines: That's true.
Felix Frankfurter: Is that correct?
William C. Wines: That's true.
Felix Frankfurter: Is that -- that would -- would I still find that if I went to the (Voice Overlap) --
William C. Wines: I think so, Your Honor. I don't know overwhelming might be too strong a word but certainly the majority. I don't know whether it would be an overwhelming majority but it would be a majority.
Felix Frankfurter: Well, I do not claim, if I did I didn't mean it. Preponderance to the federal (Inaudible)
William C. Wines: Yes.
Stanley Reed: How in this -- in this present case, was a relief sought on the constitutional ground?
William C. Wines: No, Your Honor, this -- this petition is -- is -- presents the question in a --
Stanley Reed: Well, then what -- what is the statement on page 2 of the record mean? The plaintiff in error was denied a hearing relief for constitutional error.
William C. Wines: Page 2 of the record?
Stanley Reed: First full paragraph.
William C. Wines: I take that to mean and Mr. Horsky takes it to mean from his statement at the bench -- at -- at the bar this morning that the prisoners do not contend that their conviction up to the time of the return of the verdict and the imposition of sentence was infected with a constitutional error, that it was of a non-constitutional or as that the error of complaint, now, which is nowhere specified, was of a non-constitutional or perhaps you can coin the words sub-constitutional --
Stanley Reed: Well, let's say it was a constitutional error which occurred in the proceeding.
William C. Wines: Well, I think --
Stanley Reed: You -- you interpret that to mean (Voice Overlap) --
William C. Wines: When they were denied a transcript, I -- I take it to mean if they have a constitutional right to present sub-constitutional errors if anybody else has that right. In other words, I understand the man to say whether my -- the error that I'm complaining of is or is not a constitutional error. If it's an error at all, I have a constitutional right to a transcript to show it as long as I could get such a transcript if I had the means to procure it. And at least that's the way it's treated by the petitioners in this Court.
Stanley Reed: Yes, that's right. Now, where is the authority that would give them a right to their record if they alleged a constitutional error?
William C. Wines: Well --
Stanley Reed: You say it's in the post -- post-conviction statute but I --
William C. Wines: And the -- that -- and -- and the --
Stanley Reed: Or is it by a decision of the Court, Supreme Court of Illinois?
William C. Wines: It's by decisions of the courts under the post-conviction statute.
Stanley Reed: It's not provided for in the statute?
William C. Wines: Not in so many terms -- words, no.
Stanley Reed: But it is provided for by a decision of the Supreme Court?
William C. Wines: Yes and by the practice and Mr. -- since Mr. Horsky concedes it, I haven't reach the --
Stanley Reed: (Voice Overlap) --
William C. Wines: -- the particular cases that -- that recognized it but there's no doubt that it's there. Now, Your Honors, addressing the question that I have stated. It's an unfortunate fact that in very many respects those accused and convicted of crime suffer palpable and grave disadvantages in proportion to the paucity of their means. One of the first distinctions recognized frankly in the petitioner's brief and mentioned in the respondent's brief is the matter of bail. But the very Constitution of the United States, the -- in its text, not in -- it's glossed by this Court but in its text provides that excessive bail shall not be required. Well, a man with no money, no friends with money, can't give any bail, he can't give a bail of a dollar and there's many -- a literally penniless man picked up on the streets for small offenses no doubt but nevertheless picked up who couldn't give a bail of 25 cents. Other gives bail as high as a $100,000, I've even heard of a sum of half a million or my memory may claim me false there. So right in the four corners of the Constitution of the United States is a recognition, a distinction between the impecunious and the opulent.
Hugo L. Black: Why does that problem, Mr. Wines, might the amount of bail depend somewhat, at least I have thought it did but it would seem a judge would decide it, on how much bail the man --
William C. Wines: Oh, yes.
Hugo L. Black: -- could give in consideration of his poverty or his --
William C. Wines: That's right.
Hugo L. Black: -- life stability.
William C. Wines: Yes and also his standing in the community.
Hugo L. Black: And sometimes he gets recognized without bail because he's unable to make it I suppose? I've seen that happen in the (Voice Overlap) --
William C. Wines: Oh, I have to. Yes.
Hugo L. Black: So I wouldn't suppose that you could say that that inequality is required by the Federal Constitution provision that excessive bail shall not be (Inaudible).
William C. Wines: I don't say that it's required. I say that it's recognized and -- and indirectly condoned, certainly by -- by the Constitution. I don't say that the Constitution says that the -- the Court shall discriminate against the poor but it -- it recognizes a practice and we all know that as a practical matter, the impecunious have more trouble generally in giving bails than do the opulent. That is certainly true. There are exceptional cases where a penniless person is so well-thought of by his community that anybody will give bail for him and somewhere a -- a rich man is such a miscreant that nobody would sign his bail. But I'm not talking about the -- the exceptional case anymore than Mr. Horsky is talking about the exceptional case where the American Civil Liberties Union might get the fellow a transcript as they have done in some cases. But in the -- in the ordinary case, certainly, the wealth of a defendant isn't financial means has a great deal to do with whether he makes bail or not.
Hugo L. Black: Well, I imagine that usually when that statement was made in this country, it's probably made whether pretty severe criticism of -- of any system that permits that, is it not? I have heard it said that the charge, frequently that in certain places and under certain circumstances the -- the rich have an easier chance to get out in the floor, but I've heard others better to deny that under our system that certainly it's what they intended that way. Do you think that could recognize that it was accepted among the people whether desirable or governmental practice or one --
William C. Wines: No. The desirable, no.
Hugo L. Black: -- or one which will be tolerated if the people could get a chance to speak their voice?
William C. Wines: The latter, I can't say so much about what would be tolerated, but the -- but the desirable, no. I -- I want to make it clear that to the extent that things -- it -- it's regrettable that financial embarrassment can play any part in the assertion or vindication of any right in any criminal or civil case. I -- I don't want again say that for a moment, but I am -- the argument that I'm pursuing is whether the Constitution requires a giving of a bill of exceptions and I have mentioned the matter of bail as one example where the Constitution at least contemplates the solvency on the part of the defendant or his friends as a condition to his release unless the judge happens to want to release him on his own recognizance. Another distinction that I should like to mention that is certainly tolerated not only throughout the United States but throughout the rest of the civilized world and that is the matter of the expiation of offenses by imprisonment where the defendant doesn't have the means to pay a fine. Now, under Illinois law, for example and this is regrettable, fineable offenses are atoned for an imprisonment for a dollar-and-a-half for -- a day and a -- a days imprisonment for every dollar-and-a-half of the fine. Well, we have computed that an indigent defendant in Illinois who is fined $10,000 has to serve 17 years in the county jail and I'm not aware of any means for cutting that down. There may be one sort of a pardon. But at least --
Hugo L. Black: The governor has the right to do something, doesn't he?
William C. Wines: He can pardon. He can pardon the man for not having a free transcript too. The governor's pardon is -- is always there to correct any injustice, but I don't think then of itself suffices to assure equal protection or due process since there's no constitutional right to pardon. Now, there are other ways in which the indigent suffer. We'll take the case of a man who's indicted for an offense. We'll make it a non-capital offense so we don't have this complicating factor of a free bill of exceptions if he's sentenced to be electrocuted and not if he isn't. The first thing, Illinois law guarantees that he'd be furnished the names of the -- of the jurors, the panel of the jury, so that he can investigate to find out whether there are type or a like to be prejudiced for him or against him or neutral and those investigations are very expensive, particularly if the crime or alleged crime is one that's attracted a lot of attention and that's a small county and everybody in the county has read and heard about it. Well, to the defendants, many of these cases, many of the crimes arise out of labor violence where labor leaders are indicted and they have the -- plenty of money behind them. They investigate every juror. The man in jail without bond, perhaps a lawyer hasn't even been appointed for him and isn't appointed until the term of court where he's arraigned, commences which maybe some weeks off down state has no means of investigating those jurors, none whatever except to ask other prisoners in the cell block if they ever heard of any them, that's the limit of his means of investigating, whereas the affluent defendant can employ counsel. I'm talking only about legitimate investigations, not any -- any illegitimate approaches to jurors. He can -- he can employ train investigators. He can ransack everything from their birth certificates to their eighth grade diplomas and that sort of thing is done and for prying an important criminal trial especially down the State in Illinois.
Earl Warren: Mr. Wines, what do you have to say about the statement of Mr. Horsky that the mere fact that there are certain inequalities and opportunities of indigent defendants to defend themselves which the State has been unable to iron out and to make equal that that is no reason why we should maintain one that -- that is manifestly unfair according to both counsel in this case and that the State can with propriety and with ease remedy?
William C. Wines: Did Your Honor finish the question?
Earl Warren: Yes.
William C. Wines: Thank you. All right, my answer to it will be direct but it will take me three or four sentences and those sentences are as follows. And answering your question to which I was just coming anyway was mentioning the fact that the impecunious don't in general have the means of getting evidence particularly in this connection documentary exhibits that the affluent or opulent has. Now, as we say in our brief, if you look at it functionally and in terms of its operation and not its characterization, a stenographic transcript is simply one species of evidence. It's evidence in the reviewing court of what occurred in the lower court. It's like any other documentary evidence. The reviewing court wants to know what happened in the trial court, evidence to the reviewing court of what happened in the trial court is called variously a bill of exceptions, report of proceedings, stenographer's transcript or what not. Now, since it's not suggested by anyone, certainly not by petitioner to Mr. Horsky in this case, that a defendant is entitled to have any other documentary evidence compiled, may be he can subpoena if it's there and within the jurisdiction of the Court. But since he's not entitled to have witnesses brought from -- without the State at State expense or he's not entitled to have any other kind of documentary evidence prepared with stenographic services supplied free. He is not entitled, we say as a constitutional one, to have this particular species of evidence, namely, the evidence to the reviewing court of what happened in the lower court compiled rates. Now, Your Honor has said that the --
Earl Warren: Well, aren't you using evidence in two different senses there?
William C. Wines: Technically, yes. In -- in practical logic, I don't -- I don't think so, Your Honor. Now, Your Honor has indicated there, Your Honor --
Earl Warren: The whole record, this evidence, according to your concept before the -- the Court of Appeals --
William C. Wines: That's right.
Earl Warren: -- could it deny poor people every record, every bit of evidence of that character? Could it deny him the indictment or the arraignment proceedings and the other things which we now do provide?
William C. Wines: Well, my --
Earl Warren: Constitutionally?
William C. Wines: -- my -- the -- the logic of my position forces me to answer that question, yes. We say --
Earl Warren: That would mean absolutely no review, wouldn't it?
William C. Wines: That --
Earl Warren: No trial at -- no --
William C. Wines: No appellate review.
Earl Warren: -- no appellate review for him at all if he was impecunious?
William C. Wines: Now, in as much as due process doesn't require appellate review, I do not -- at all I do not see why equal protection requires it to be provided free of charge unless equal protection requires that all other advantages that affluent or opulent defendants enjoy so requires. And I would like to -- still answering the Court's question at the same time resuming the main burden of my argument. I would like to call attention to the fact that as shown in the appendix -- now, Mr. Horsky has corrected it but in a way that I don't quite understand. The appendix in Mr. Horsky's brief at page 84 contains this heading, the following States provide free transcripts to all paupers convicted of felonies. Now, he says at the bar that he doesn't mean felonies and that it -- it has to do with all convictions.
Earl Warren: In -- in some cases?
William C. Wines: In some cases --
Earl Warren: In some cases?
William C. Wines: -- and at 85, the following stanza states --
Felix Frankfurter: In all cases, all conviction in some cases, what -- what would be in some cases?
William C. Wines: I don't understand Your Honor.
Speaker: In some cases all convictions.
Felix Frankfurter: (Voice Overlap) cases qualify that except for that -- that all paupers to all convictions as an indigent defendant, is that right? Is that the way directively?
William C. Wines: I'm not quite sure how he did correct. Maybe I --
Felix Frankfurter: (Voice Overlap) --
William C. Wines: -- maybe I could yield him -- could I yield a minute of my time so that he could -- Mr. Chief Justice.
Earl Warren: You may.
Charles A. Horsky: Like I said, Your Honor, was that it applies both to felonies and misdemeanor.
William C. Wines: In all of these states?
Charles A. Horsky: Unless as in the -- on page 85 or rather 85 at the bottom where the sentence is death or convicted of murder, it's specifically is limited to a particular kind of a crime.
Felix Frankfurter: While you're on your feet, Mr. Horsky, it so happens that I look at the canvas --
Charles A. Horsky: Yes.
Felix Frankfurter: -- I will be glad to hear that I think you ought to bring the correction on the bottom page 86, (Inaudible) by an Act of 1953 thus furnish transcripts to -- in capital cases (Inaudible)
Charles A. Horsky: I'm happy to have the correction, Your Honor. Thank you.
William C. Wines: Well, it appears from page 85 that six States restrict the grant of a free transcript for certain types of cases. Now, I submit that if there is virtue and merit at all in petitioner's contention, it must apply not only to all cases of felony. I submit that if there's virtue and merit at all in petitioner's contention, it must apply not of only to all cases of felony but certainly to all cases that may ultimate an imprisonment whether either by direct mandatory sentence of imprisonment or by imprisonment as alternative to an unpaid and unpayable fine. Now, the Chief Justice's question, as I understood it and I'm sure he will correct me if I have misphrased the question, indicates that the situation in the particular case of free transcripts is one that might be procured readily or easily. Let me assure the Court that (Inaudible) is familiar from the case particularly if, as I think the logic of Mr. Horsky's argument requires, we take into account all cases where imprisonment may eventuate. In Illinois, there are official court reporters who take down the shorthand but they'll transcribe without paying them in all felony cases. Now, Mr. Horsky is mistaken about misdemeanor cases at least in the municipal court of Chicago and in numerous -- perhaps not in magnitude of sentences but in numbers of persons convicted, more people are sentenced to some kind of confinement from the municipal court of Chicago, I'm quite sure, than from any other court in the State.
Speaker: Do you have any idea what your number of indigent defendants annually runs to in your court's record?
William C. Wines: No, Your Honor, and there wouldn't be any means that I would -- that I would know of or finding out indigent in this respect. The fact that a man has a lawyer to represent him on the trial doesn't necessarily mean that he has the money for a transcript. So I do know this that lawyers fees being what they are, the number of indigent prisoners after conviction is considerably larger than the number of indigent prisoners before conviction because in between times they pay attorney's fees.
Felix Frankfurter: Mr. Wines, this -- the first presents (Inaudible) concern in my mind which I should like to put to you therefore it doesn't put you off or prior to the Attorney General to state. I should like before you sit down to have you address yourself to a problem of the consequences of a reversal of stating the position of the petitioner, not in this case, not what would happen in this case in (Inaudible) now in Joliet and elsewhere.
William C. Wines: I'll do that right now, Your Honor. It's very important and naturally it's a matter to which I have given great thought which does not mean that --
Felix Frankfurter: You've just said that they couldn't tell how many indigent (Voice Overlap) --
William C. Wines: No way in the world they could tell --
Felix Frankfurter: -- and therefore that means your answer will be speculative.
William C. Wines: If we -- if we knew the number who appeared without counsel, we wouldn't know how many of them wanted counsel and how many of them didn't and if we knew -- knew the number who had counsel on a trial, we wouldn't know how many had -- had enough money after paying their lawyer to get a bill of exceptions and they wouldn't do it and there wouldn't be any reliable way of finding out. Now, with respect to the consequences of a -- of a reversal --
Felix Frankfurter: (Inaudible)
William C. Wines: I'm -- I'm sorry?
Felix Frankfurter: Contention of mine does not necessarily reach the rights and the wisdom, the -- the correctness of the position you're taking on due process and legal protection you made there on -- as far as I'm concerned on how you should go about it in case we take a view different from yours.
William C. Wines: I understand Your Honor. First, may I say that I think it does bear very cogently upon the constitutional question itself for this reason, that while there are some constitutional commands such as from the Federal Constitution that must have a trial by jury or the private property may not be taken without just compensation that it have to be where the -- if the Constitution commands something, that command must abided regardless of cost, therefore, I think everyone knows. But whether the Constitution does command something, when that is in doubt, may well depend upon practical feasibility because the fact that it can't be supposed that the framers of the -- of the Fourteenth Amendment attended -- intended to create any right that they may have known would not be feasible of realization. So for that reason, I think practical consequences are of constitutional moment on this argument. Well, Your Honor -- if Your Honors should reverse this case and say that every prisoner was entitled either to a free transcript or to his liberty which is what Mr. Horsky asks --
Felix Frankfurter: He modified that as I understood him.He said he's entitled to the means whereby to get an effective review.
William C. Wines: Well --
Felix Frankfurter: As I understood him.
William C. Wines: -- if you said it means whereby he can get an effective review, he would first get -- you would first reach the question what would be equal protection assuming that a bystanders' bill of exception is available and would satisfy due process that it satisfy equal protection when the opulent defendant can get the full transcript? But let's suppose for a moment that he's entitled to exactly the same thing that the -- that the opulent defendant is which is a complete merit whether he needs it or not, then you would have as practical matter, Your Honor, to answer your question as honestly as I can, you would have -- I would say several thousand Illinois prisoners, certainly many hundreds who are now indigent -- who are now indigent, the times of their conviction would range from two or three weeks ago to as long as 20 years or 30 years ago. Most of those indigent prisoners would not have made a motion as did these indigent prisoners for a bill of exceptions within the time allowed by Illinois law which is not -- is 100 days. But then you would get to the question if their pauperism deprived them not only of this bill of exceptions but of counsel to advise them of the need for it, you would then get -- you would then have this kind of a situation, you would have a prisoner who was convicted in 19 -- make it 10 years ago, he was convicted in 1945 and he's been given life for burglary, at that time he didn't have a lawyer. He -- the 100 days in which he can ask for a bill of exceptions has long since gone by and he didn't ask what within the 100 days, but he now says, “Well, I was poor, I was a pauper and I not only should have had a bill of exceptions, I should have had a lawyer to advise me that I have a right to a bill of exceptions and that totals 100 days.” And you would then get that problem if I make the problem clear without expecting the emanation of any answer to it. So you couldn't just say, if you just chopped it off with the right to a transcript, every prisoner who's been in there more than 100 days and hasn't move for transcript has waived his rights, but he will say, “Well, I didn't know I had. I think the reason I didn't know I had any was I didn't have a lawyer and the reason I didn't have a lawyer was I'm too poor to get one.”
Felix Frankfurter: Well, I had a lawyer who greatly respected constitutional laws of Illinois.
William C. Wines: Well, if he had a lawyer of his own choice --
Felix Frankfurter: Yes.
William C. Wines: -- and that lawyer didn't advise him, we have an entirely different situation, entirely different. I'm talking now about the -- the --
Felix Frankfurter: I can see a lawyer -- I can see a lawyer saying -- now say the Supreme Court of the United States would expect -- we didn't expect every lawyer in Illinois to challenge a law that's a part of Illinois courts and these lawyers thought was constitutional. They're not answering it, but I could --
William C. Wines: I can imagine that argument too. So I will say this. That in the case of many -- of the -- I'm -- I'm dealing with practicalities because as to in the case of many of the men who have been there a long time and whose behavior hasn't been such as to earn them any parole or consideration from anybody, there won't be any way to get them a transcript because the court reporter will have died or lost the ability to read notes or the notes will not be available or removed. The older transcripts -- how long you can get a transcript just depends on how long the stenographer is available to transcribe his or her notes, when that's gone, the transcript is gone for all practical --
Stanley Reed: Well, what do you --
William C. Wines: -- purposes.
Stanley Reed: -- what do you say about the right to a bystander's bill in the Illinois courts.
William C. Wines: Everybody --
Stanley Reed: Do you -- do you accept the argument of Mr. Horsky that the Court has said that they wouldn't hear it on bystanders' bill?
William C. Wines: No, I don't know of any case where a bystanders' bill is actually been tendered to the judge, trial judge for approval. The cases -- and I don't mean to think Mr. Horsky said exactly that, I think what Mr. Horsky said, I'm sure what he meant was this. There are a number of cases in Carter against Illinois, which reached this Court, was one of them where the prisoners have themselves written out a narrative --
Stanley Reed: Tell me you've cited, what was it, La Fano or La Fada?
William C. Wines: La Frana, L-A-F-R-A-N-A.
Stanley Reed: La Frana -- La Frana.
William C. Wines: La Frana.
Stanley Reed: And since he was precluded by indigence from securing a direct review of his conviction, what do you say to that?
William C. Wines: Well, that means that he couldn't get a full stenographic transcript. I'm quite sure that the Supreme Court of Illinois would take a bystanders' bill if the trial judge would certify it. I'm not so certain that the trial judges in Illinois would actually certify it not because they want to hurt poor people but because it'd be very difficult to draw up one that would satisfy the judge as being a complete statement of the case and even if he did --
Stanley Reed: They mean he -- draw it up himself?
William C. Wines: Well, even if he did that it wouldn't be the equivalent of a -- of a stenographic transcript.
Stanley Reed: No, but the argument here is not what kind of an appeal you're entitled to or what kind of a -- of a record but that you're entitled to something, you're entitled to some way to make your appeal and to have a bill of exceptions to raise the points that you have in mind. That's -- that's all I understand they say.
William C. Wines: Well --
Stanley Reed: Not -- not that you're entitled to all cases and everytime to have a bill of exceptions.
William C. Wines: I'm quite certain that if this Court ever held that as long as equal -- as long as anybody could get a stenographic bill of exceptions, everybody is entitled to at least a bystanders' bill that it wouldn't be long until those bystanders' bills would be recognized in -- by the Illinois courts. This Court should so hold but at present, as I say, I have never heard it. I see that my time has very nearly expired unless Your Honors have some further questions, I'll submit the --
Earl Warren: Thank you. Mr. Horsky.
Charles A. Horsky: I have but one very minor point. I think I could correct what I think was an inadvertence on the part of Mr. Wines. You asked Mr. Justice Reed whether the procuring of transcripts under the Post-Conviction Hearing Act was by statute or by decision and Mr Wines, I think, replied that it was by decision. If you would look on page 77 of our brief, you will find that it appears in the part of the Illinois Code dealing with the duties of the official court reporter, hence, 163 (f) provides in the statute that in cases arising under the Act there specified, which is the Post-Conviction Hearing Act, in which the presiding judge has determined that the post-conviction petition is sufficient to require an answer, it shall be the duty of the official court reporter to transcribe in whole or in part the stenographic notes and so forth, and it provides later on that it shall be paid for by the State. I think that was an inadvertence on his part. I thought it should be corrected.
Earl Warren: Mr. Horsky, on behalf of the Court, I should like to thank you for -- for your diligence in this matter for having accepted the assignment, for having served this indigent defendant as you have and for the enlightenment you have given the Court.
Charles A. Horsky: Thank you, Your Honor.
Earl Warren: That's all.