Earl Warren: -- States, Appellant, versus John Hancock Mutual Life Insurance Company, et al. Mr. Doub.
George Cochran Doub: Mr. Chief Justice, members of the Court. This is an appeal from the -- a decision of the Supreme Court of Kansas refusing to recognize a federal right of redemption granted the United States in a federal statute, refusing to do -- sell in a mortgage foreclosure case where the United States held a junior lien and was wiped out by the foreclosure sale of the first mortgage. Now, the appeal presents for the first time, the interpretation to be accorded 28 U.S.C. 2410 (c), and whether it's explicit ground of this redemption right was intended to apply when in conflict with state law and if so, is the directive of the federal statute balanced? Now these questions were not determined in your recent decision in the Brosnan case. There, you dealt with the scope of 2410 and drastically limited its application. Here we deal with the interpretation of the statute where it was expressly invoked to subject the United States to process in a state court. I'd like to call your attention to the language of the statute before dealing with the facts. It's found in our main brief at page 33. And just to remind you of the terms of the statute, in paragraph (a) it waives the sovereign immunity of the United States and provides that under the conditions defined in the statute, the United States maybe made a party in a suit to acquire a title or to foreclose a mortgage upon property in which the Government claims an interest. And (b) paragraph defines how that service will be effective, machinery. And the (c) paragraph with which we deal here, says that the judicial sale of the property will have the same effect as to discharging the Government's lien as state law might provide. And then it contains this sentence on page 34, where a sale of real estate is made to satisfy a lien prior to that of the United States. The United States shall have one year from the date of sale within which to redeem. Now, you'll notice there is only one condition prescribed for the application of that clear and unequivocal directive. And that is where that the sale is made to satisfy a lien prior to that of the United States. Now, the facts in this case where these. The Farmers' Home Administration, an agency of the Department of Agriculture, under a loan program for the benefit of livestock farmers who could not obtain loans elsewhere, may -- four loans to a farmer in Kansas. Now, three of the loans were unsecured, one of the four notes involved was secured by a second lien subject to a $25,000 mortgage on the farm held by the John Hancock Insurance Company. Now, I'd like to point out this, that there are 10 federal agencies making loans to assist farmers and -- and business. They are all serving a public purpose. They're not private loans for profit. In other words, we -- this -- this little agency alone and the Department of Agriculture has made loans totaling 81 million as I am told. But the loans, the Commodity Credit Corporation, the ICC, the RFC, Maritime Administrators, small business administration, about five others, totaling a billion and they all have authority to loan on second liens. So the question here is one of considerable significance to the United States. Now, the first lien money lender instituted a foreclosure proceeding on its defaulted first mortgage. And unlike the situation in Brosnan, Kansas law required the junior leinors be made parties to the proceeding of the insurance company made service a process upon the United States under 2410, which was the only way to do so. And it's conceded by the appellees in their brief at page 5 that 2410 was invoked.
John M. Harlan II: Could there have been a valid foreclosure under Kansas law without making the United States a party, a valid foreclosure against (Inaudible)
George Cochran Doub: No. Now, in its answer, the Government prayed that its claim be recognized as a second -- let me say this Mr. Justice Harlan, if -- if there was no notice given the second lienor and we were not made parties to the case, then the sale would've been subject to a -- would not have wiped out our lien.
John M. Harlan II: That's what I'm getting at.
George Cochran Doub: That -- that's -- now, in our answer when we were brought into this case, we set up our debt, we asserted, we asked that our claim be recognized as a second lien, that any excess mortgage proceeds derived from sale and you are -- to our benefit. Well, there were no excess proceeds. First mortgage (Inaudible) been in the property of the sale, were the amount of his debt. Now, four and a half months thereafter, bear in mind, the statute said, we had 12 months. Well, four and half months later, the Government attempted to redeem the property. And we tendered the redemption money in accordance with the -- the federal statute and -- and we followed the procedure.
Speaker: (Inaudible)
George Cochran Doub: Well, under state law, the mortgagor has an explicit right to redeem for 12 months. Kansas law says that his right is ex -- his right is exclusive during that period, so there's a direct conflict between the Kansas statute.
Speaker: (Inaudible)
George Cochran Doub: No, now that I'm coming to it. Then, if no redemption is made by the mortgagor, during that 12 months period, a junior lienor during a three months period that is after the 12 months, he may redeem.
Potter Stewart: Would the Government have had the power to buy in the property of the sale without additional authorization?
George Cochran Doub: The -- this particular federal agency claims that it has the legal right to bid in a mortgage foreclosure sale. And that is true in a number of federal agencies, some I -- in (Inaudible) There's always the problem of where the money comes from.
William O. Douglas: It depends on the agency rather than on the state law?
George Cochran Doub: Oh, yes. It depends on the federal agency involved and also --
William O. Douglas: With the permission -- the state law (Inaudible)
George Cochran Doub: I think anyone is free to bid in -- on a foreclosure sale.
Speaker: (Inaudible)
George Cochran Doub: There's a problem with these federal agencies however, first, do they have the legal right to bid and most of them do. But then there's a second question, do they need a -- an appropriation from the Congress to collect the money because of course, when the -- when they bid, they've got to pay off the -- all the (Inaudible)
William O. Douglas: Under this Kansas law, there was no provision for the Government -- for giving the Government a certificate of redemption, is that right?
George Cochran Doub: Well, that's --
William O. Douglas: (Inaudible)
George Cochran Doub: That's true, Mr. Justice.
William O. Douglas: Yes.
George Cochran Doub: No, there's no --
William O. Douglas: And the total result of all this is that if the Government is -- Federal Government does not have the right to redeem, then its junior lien subsists, I suppose.
George Cochran Doub: No, we were wiped out. We concede that this foreclosure sale wiped us out. Now, when -- do say this, in answer to the --
William O. Douglas: If you have the right to redeem, it does but if you don't -- if we should hold -- you -- you do not, under -- the state law has a right to redeem, your lien would still be valid, wouldn't it
George Cochran Doub: Well, that's -- that's what I was going to come to.
William O. Douglas: No, no --
George Cochran Doub: That's my answer to --
William O. Douglas: No, let me -- let me --
George Cochran Doub: -- this alleged --
William O. Douglas: -- assert your argument.
George Cochran Doub: -- constitutional argument where they say that if there's a conflict between the federal and the state law, state law -- law must control. If that occur, then you would have to look, the constitutional question would be, can Congress waive the sovereign immunity of the United States (Inaudible) upon the -- this condition that it have the right of redemption. In other words, can Congress impose a not unreasonable condition to waiver of sovereign immunity? And when you cast the constitutional question in those terms, you find there is no constitutional question involved. Now, the Supreme Court of Kansas on the appeal held first that -- that the Government's motion had properly raised its right to redeem and the trial court had, in fact, assumed jurisdiction and that it overruled their motion. I might say that after we attempted to redeem, the Clerk refused to take our money, we then filed a motion in the Kansas for -- for recognition of their right and that was denied. And as the -- the Supreme Court of Kansas also, as I interpreted the opinion which is not very clear and I think is ambiguous, it ruled that the Government's redemption rights are governed by state and not by federal law because 2410 gave the Government no rights that were superior to those of private citizens. Now, what did 2410 accomplished and what is the pertinency of your decision in Brosnan? It's our position that since the plaintiff utilized 2410 to subject us to process, and this was the only method by which we could -- be brought in to that foreclosure case, the Government was guaranteed its one year redemption right as the statute put it for its protection. And as a matter of fact, the opinion in the Brosnan case says that very thing that the Government is guaranteed a right of redemption. And we say that this is a categoric imparity by the Congress. It -- it couched in clear and unequivocal language. There's no condition that we think can be read into it. And it's inconceivable that Congress could've intended that this right should be dependent upon a state law. As a matter of fact, the -- the legislative history shows that Congress is perfectly aware that in most states, no such right existed. And if there had been a uniform policy of the states to provide such a right in junior lienors or even a general right, there would have been no need for the statute.
John M. Harlan II: Is there any question of the sufficiency of your tender under -- in this case they've --
George Cochran Doub: No, certainly no.
John M. Harlan II: -- held under Kansas law?
George Cochran Doub: No. No, Your Honor.
Speaker: (Inaudible)
George Cochran Doub: Well, it's our position that we would be entitled to redeem from him. And if we redeem before he did, he would be entitled to redeem for us -- from us. And we -- we claim that very clearly, I think, in our -- in our brief. In other words, we don't contend that this federal redemption right causes the loss of redemption rights by anybody else under state law. We say that it's -- it's an added co-existent right. And for instance, all we are entitled to is our money. And if we redeem within 12 months and the mortgagor comes in within the time Kansas allows and says he wishes to redeem, he can redeem for months. All he has to do is reimburse us just like we have paid and what we have in the property.
Potter Stewart: Just take away the exclusive nature of this trial.
George Cochran Doub: Yes, it does. It does. But I don't think it's a devastating variance in the state law. There's no doubt that it is a change, it is a conflict with state law but I don't think the consequences are really doubtful and that it's really very painful. Now, what are the contentions of appellee? We first say this mandatory directly as to this redemption right does not apply because the United States sought a permanent relief in the foreclosure case. And that was after we've been brought into this case and of course, we attempted, we had to attempt to defend our interest. We did ask the -- as it's been brought in. We did ask that the Court recognize our junior lien that any excess proceeds that you are -- they are our benefit and we didn't ask for it, the Court gave us judgment on our claims which is the standard procedure in Kansas. But --
Charles E. Whittaker: May I ask you (Inaudible)
George Cochran Doub: The foreclosure case started as you'll see from the petition of the insurance company, its petition for foreclosure. Now then -- and they brought us into the case under 2410. In our answer, all we ask for was that -- that our claim to be recognized with the second lien in any excess proceeds be distributed to us. But, under Kansas law, the Court entered judgment on all claims. Insurance companies' claims and our claims and they also foreclosed both mortgages. So there was a foreclosure of both the first and the second mortgage. But that, I had no practical significance whatsoever Mr. Justice Whittaker, as a matter of fact, this statute expressly authorizes us in the very next sentence to take a primary relief.
Charles E. Whittaker: (Inaudible)
George Cochran Doub: That's right.
Charles E. Whittaker: The condition is, it has a right to redeem (Inaudible) acquire a lien.
George Cochran Doub: Alright.
Charles E. Whittaker: Would you discuss that?
George Cochran Doub: We certainly do. I can't conceive of a -- of a more obvious case. In a clear case, Mr. Justice Brennan, that's -- you're right in that. Certainly, we point out that in the sentence following the redemption when it says in any case for the (Inaudible) United States, view, United States led by way of affirmative relief for the foreclosure and between. Now their second contention is that the -- the federal redemption right doesn't apply on any excess proceeds of the sale might possibly or conceivably be -- be applied under state law of the junior lien claim of the United States. Well, of course there weren't any excess proceeds in this particular case but it is the norm, usual, established policy in an interstate foreclosure laws for any excess proceeds to go to junior lien creditors. So if such a condition were written into this federal statute, the redemption right would come so sterilized as to be completely (Inaudible) Now, we say there is no such proviso or limitation in the statutes. And it cannot be read into it. The appellee insert that the redemption right was not intended to apply whenever it conflicts with state law. And they rely upon the first sentence of 2410 (c) saying that a judicial sale shall have the effect of -- with respect to the discharge of lien as local law provides. Well, under that provision, of course we were wiped out. And the fact general provision dealt with the -- wiped out consequences of a foreclosure sale. But the third sentence of the paragraph deals with a specific redemption right. And under elementary statute principle, the statutory interpretation and general provision yields through a specific provision. So obviously, that first sentence deals with an entirely different subject from the redemption provision. So we say that while Congress might have chosen to subject our redemption right to state law and clearly did not do so in this case. And because whenever Congress did not wish us to have this redemption right, they said so. Their statute which we cite in our brief for that Congress said, "We will not have it." We shall not have this right in certain specific situation. I'm reminded of what the British (Inaudible) said in quoting our petition, a British Judge in the pleading cases of the common law because I think he summed up a good deal of the law, of statutory interpretation. It says if Parliament did not mean what he said -- it should -- it should have said so. And I think that principle here is quite applicable. And the final -- their final contention is that if the federal statute conflicts with state law, state law controls in spite of the Supremacy Clause of the Constitution. I'd like to just point out that when the United States enters into contracts of this kind, informed programs of this kind, do not deserve a commercial purpose, not to enter into private business but to perform a great social public function in exercising a constitutional power and the contract including the notes, the mortgages are means of executing those federal laws. But as I -- as I pointed out in answer to Mr. Justice Douglas' question, the -- the constitutional question cannot be cast merely in terms of this redemption right, it has to be cast in terms of 2410 as a whole. Whether Congress has the power to waive immunity and enable the United States to be subject in the state process upon a condition which is not unreasonable or capricious, we say that question answers itself. I'd like to save my time (Inaudible)
Earl Warren: You may.
Speaker: (Inaudible)
George Cochran Doub: I think it varies from agency to agency. Now this particular agency has some kind of a fund which it has dedicated to certain purposes including this one. And what -- what's in that fund, one never knows apparently.
Speaker: (Inaudible)
George Cochran Doub: It would have to go to Congress and of course in -- in the big -- particularly in large mortgages perhaps the Interstate Commerce Commission, I think it's made secondly in mortgages to the New Haven Railroad and other railroads to help them from -- avoid -- threaten bankruptcy.
Speaker: (Inaudible)
George Cochran Doub: They couldn't be. (Inaudible) foreclosure sale involving millions of dollars (Inaudible)
Potter Stewart: Now, Mr. General, (Inaudible) doesn't subparagraph (c) of this very statute give general power to the Government to (Inaudible)
George Cochran Doub: It has no -- it's a -- it's limited -- you'll notice, Mr. Justice Stewart. It says the United States -- the United States may did --
Potter Stewart: It says that, where a property is sold to satisfy it personally and held --
George Cochran Doub: Held by the United States.
Potter Stewart: The Unites States, (Inaudible)
George Cochran Doub: Personally had held those.
Potter Stewart: I see.
Earl Warren: Mr. Hobson.
Harry L. Hobson: Mr. Chief Justice, may it please the Court. It seems to me that the practice of this matter surrounds a fact which has been under emphasized to say the least insofar as the Government's argument is concern. At the time the United States step put inside the courthouse door in Edwards County, Kansas it did so in accordance with our argument not so much as a party defendant but as a party plaintiff seeking affirmative relief against a codefendant. The record indicates and Mr. Douglas indicated in his oral argument that the United States did not merely answer but it filed its classification seeking specific affirmative relief against the Hetzels, the appellees here. It seems to me then that if a condition upon the waiver of sovereign immunity of United States is a right of redemption that that right of redemption is lost when the United States seeks to assert itself as a plaintiff rather than merely as a defendant. And it is our argument that that is precisely what the United States did when it went into the District Court in the State of Kansas. The question argued by the Government might better be here had they not sought the affirmative relief on the three unsecured notes that are now a part of the subject matter of this action when the John Hancock Mutual Life Insurance Company filed a suite, it did in fact bring the United States in the pursuant to 28 U.S.C. 2410. But it brought it in only because it held a lien on a piece of property involved. But when the United States filed its answer in its cross petition it was not satisfied to merely answer and concern itself with the piece of the property involved but rather it's opted to seek affirmative relief on three additional notes. Mr. Doub has indicated that those were all Farmers' Home Administration notes. Actually though perhaps the governor of the Farm Credit Administration was in a sense a predecessor of the Farmers' Home Administration. It was the governor of the Farm Credit Administration who in fact made the loans for which the promissory notes were issued by the Hetzels. One of those was made back in 1934, one of them was made in 1936 and the other in 1954. None of those notes had the least thing to do with the piece of property that was being traditionally foreclosed. So it is our argument then that when the United States sought affirmative relief in the courts of Kansas it subjected itself to the rules and procedures of the State of Kansas. A long line of cases from this Court and from other courts indicate that a sovereign is in no different position than any other litigant when it goes into the forum of another sovereign and seeks affirmative relief.
Felix Frankfurter: Regardless of what (Inaudible) it was.
Harry L. Hobson: Mr. Justice Frankfurter, the act of Congress related to appearance in the foreclosure portion of this action. It's our position that the United States abandoned that position when it saw fit to seek affirmative relief on these other notes that had no relationship to the foreclosure action that had been brought by the John Hancock Company.
Felix Frankfurter: And no relation to the property of the (Inaudible) trying to have its redemption rights.
Harry L. Hobson: Those three notes had no relation whatsoever concerning the property that we're now talking about. They were wholly on security except that one of the three was secured by a chattel mortgage but it had nothing whatsoever to do with --
Felix Frankfurter: But it was seeking the redemptive rights on the basis of those notes.
Harry L. Hobson: It is seeking the redemptive right on the basis of all four notes. Now, they did in fact have a lien, a second mortgage on a piece of property as security for one of the four notes. But there was no security insofar as this property was concerned for the remaining three notes.
Earl Warren: Would you have any quarrel with the Government, Mr. Hobson if the -- if they were just insisting upon their actual lien on the property (Voice Overlap) --
Harry L. Hobson: We would still quarrel with the Government Your Honor, although I --
Earl Warren: You would still be in a quarrel with them?
Harry L. Hobson: We would still -- still quarrel with them as to the application of this right of redemption for the 12-month period for -- for other reasons not related to the argument that I'm now making. Our -- our position now is merely that when the Government sought affirmative relief in the courts of Kansas, it subjected itself to the rules and procedures and the laws of the State of Kansas. Now the laws of the State of Kansas provide for an exclusive right of redemption for the landowner mortgagor during the first 12 months following a judicial sale. The Government would have a right of redemption in Kansas between the 12th and the 15th month, so that they're not left entirely without a right of redemption.
Felix Frankfurter: Well, on what field is the Government going against this property to enforce its claim against three unrelated unsecured notes?
Harry L. Hobson: The Government asked Mr. Frankfurter in its cross petition that the indebtedness indicated by those four promissory notes be declared a lien on this real estate. Now it's true as Mr. Doub says that in so many words they did not ask for personal judgments against the Hetzels on those four notes, however in Kansas before the indebtedness, the notes becoming lien on the property personal judgments must be rendered. Our general statutes, Section 3107 of Chapter 60 which is included in the appendix of the governor's -- Government's brief indicate that a personal judgment must in fact be made before the lien is imposed on the property that's being judicially foreclosed.
Felix Frankfurter: So if the lien, as I thought, that the lien was derived from the adjudication of a judgment in favor of the United States on its claims which did not by -- of course of the original arrangement operator's lien.
Harry L. Hobson: That is right Your Honor. And that picks us into another portion of the appellees argument concerning whether or not this sale was made to satisfy a lien prior to that of the United States. Mr. Justice Whittaker's question brought this out. The statute says that the Government shall have its right of redemption at such time as a sale is made, a judicial sale is made to satisfy a lien prior to that of the United States. It is appellees' position that the sale here was not made just to satisfy a lien prior to that of the United States, but were made to satisfy the lien of the United States as well. That's clearly indicated in the judgment of the District Court as shown in page 24 of the record in this case. The District Court indicated that following the sale the proceeds were to go first to pay the cost of the actions and to pay the taxes then to pay the first mortgagor, the John Hancock Mutual Life Insurance Company and then to pay the second lien in favor of the defendant to the United States of America. So that this then was not a sale made solely to satisfy an entire lien but it was a sale made to satisfy the lien of the United States as well. Then if there were excessive funds they were to be paid out in accordance with the direction of the Court. But it seems to me to be clear from the judgment of the District Court that the sale was made for the purpose of satisfying both the prior lien and the lien of the United States. Now there is a means that a junior lien holder can protect himself in Kansas and that is by appearing in bidding into sales. Our Supreme Court in the State of Kansas is often held that that is the only way the junior lien holder can be assured that he's not going to lose his interest in the piece of property, because if he should not appear and if the proceeds from the sale did not bring enough money to pay for the junior lien holder's interest and if the defendant mortgagor does redeem the property then the junior lien holder is without any redress as far as that particular piece of property is concern.
Speaker: (Inaudible)
Harry L. Hobson: That is true Your Honor. It would not give effect to that but again, 2410 provides that it shall apply when the sale is made to satisfy a lien prior to that of the United States. It is our position that this sale was made to satisfy a prior lien yet, but the lien of the United States as well. The first sentence of the statutory section with which we are dealing says that, in the event of a foreclosure sale the effect of such sale shall discharge liens or encumbrances held by the United States just as it would. Liens are encumbrances held by any other junior lien holder. It's our position that if we read only that much of the statute the answer to our whole problem is obvious that the United States, by virtue of its nonappearance at the sale and its failure to bid at the sale, and the subsequent redemption by the landowner mortgagor has lost of its -- lost its interest in the property. That's the effect of Kansas law by the judicial sale. Then the question is whether or not the United States could have appeared at the sale and bid had it chosen to do so. And it's our position that they most certainly could and it's in my understanding from what Mr. Doub had said that he admits that at the Farmers' Home Administration sought to appear at the sale and bid they could have done so. Well that is a means by which the Farmers' Home Administration could have protected its interest in this property. The mortgage instrument itself provided that in the event of foreclosure sale the mortgagee, the FHA in this case could have appeared and bid. Moreover 7 U.S.C. 1025 specifically applies to this situation that it -- it permits the Secretary of Agriculture to bid at a foreclosure sale in order that a loan made under any program administered by the Farmers' Home Administration can be protected. So that it seems to me that there is no question here that if the United States had sought to comply with the normal rules and procedures in the State of Kansas, it could have done so without any difficulty. Why they didn't choose to do that? We don't know, but it does seem to us that when the United States sought affirmative relief in the courts of Kansas they were obligated to comply with the rules and regulations and laws of the State of Kansas.
Felix Frankfurter: I didn't -- do I have -- if I understand you, I probably don't, but I understand your (Inaudible) covered here that the lien which is served on which that they said claimed, is the lien came into being not through an arrangement between the United States and the property in Kansas or (Inaudible) but to an adjudicatory (Inaudible) of Kansas court.
Harry L. Hobson: That is right Your Honor, at least so far as three-fourths of that lien is concern --
Felix Frankfurter: Well, I'm talking about the (Voice Overlap) --
Harry L. Hobson: I -- I don't know how we -- how we divide this lien in -- into parts.
Felix Frankfurter: So that's really a controversy to what -- what the applicable facts to that statute is, you don't challenge the validity of the statutes insofar as Congress has asserted power of -- of giving the lienor including the United States' claims in the property (Inaudible) of sale, do you?
Harry L. Hobson: We do challenge that Your Honor as parts of the third and fourth arguments in our brief. It --
Felix Frankfurter: But up to that volume --
Harry L. Hobson: It seems thought --
Felix Frankfurter: -- you haven't challenged --
Harry L. Hobson: No.
Felix Frankfurter: (Inaudible)
Harry L. Hobson: It -- it seems to me that the Court can decide the case without reaching a question such as they had posed, without reaching any constitutional issue and because the Court normally would avoid a constitutional issue with it to do so, it seems to be that the case can well be decided on these prior arguments as to the applicability of this right of redemption at all. It seems to the appellees that the statute has no application. I think we -- in that regard should refer to the legislative history of the statute. Mr. Doub has indicated that as he reads that legislative history it makes clear what the Congress had in mind. As we read the history, it's not at all clear. This Court had an opportunity to review that history just last spring in the Brosnan opinion and as I read that opinion it was the determination of the Court that 2410 was passed because of all the difficulty that senior lien holders were having insofar as the existence of junior government lien. Now it's true that certain protections were provided the United States perhaps certain conditions although as I've indicated I don't think that this right of redemption is one of those conditions. Mr. Doub indicates in his oral argument that the history indicates that Congress well knew that there were states that had no right of redemption whatsoever. And it is our opinion that it was those states in which the Congress was concerned in order to be assured that United States would have some means of protection. Well the State of Kansas provides a means of protection to the United States by first requiring that it be made a party if its encumbrance is to be discharge as a result of the sale. We're not going to be faced with any problem as Mr. Justice Clark suggested in his dissent in Brosnan that some morning the Government will wake up having lost its interest in the property without ever having any knowledge of the existence of any judicial or non-judicial proceeding. That can happen in Kansas, because before the lien can possibly be discharged the Government, the United States must be made a party. Well, if they're made a party then they know what's happening, they know what the laws in the State of Kansas are, they know that if they want to be assured of protecting their interest in that property, the thing to do is appear on the courthouse steps when the property is sold and make their bid in an amount sufficient to protect their interest, although there was nothing in the world that kept the United States from doing that in this case.
Felix Frankfurter: And the fact that (Inaudible) isn't it?
Harry L. Hobson: In order to discharge the second mortgage, the United States had to be brought in.
Felix Frankfurter: (Inaudible) the other argument that had such weight in Brosnan namely that the United States maintained (Inaudible)
Harry L. Hobson: No, I -- I think not Your Honor. There were -- there were ample means for the United States to protect itself. It seems to me that if the United States can loss its lien without a judicial sale when it has no knowledge of the fact that the sale is being held then it surely could loss its lien when it does have knowledge when it knows exactly what's going on when it knows what the procedure is to be followed when it has statutory authorization to follow that procedure. Unfortunately again, I think for the United States they simply fail to follow that -- that procedure. The legislative history of this section again seemed to me to indicate nothing more than that what the Congress was concerned with was to assure that United States some right of redemption in those states where a right is not otherwise it did. Now Mr. Doub in his oral argument and in his reply brief has argued that when the Congress did not intend the right of redemption to acquire, it was very specific in saying so. He says that the Congress used an ambiguous language and he has referred to two specific statutes in his reply brief. One of those statutes as I recall is 50 stat 706 now as amended 12 U.S.C. 640L. I haven't had an opportunity since receipt of the reply brief to study that as thoroughly as I should like to. But I have read and reread and reread Section 640L A2 of 12 U.S.C. and the way I read it, it has no application in this matter at all. It provides that Farm Credit Administration or the Federal Land Bank rather may acquire and dispose a property in the transaction of business. And that laws which might otherwise be applicable are not applicable to the Federal Land Bank when it is concern with acquiring or disposing of property under that subsection. It doesn't have anything to do with loans so far as I can determine. There surely is no unambiguous language in that section concerning the waiver of a right of redemption. There is no -- there is nothing concerning a right of redemption at all. Now the Government relies on that statute for another purpose but we have suggested in our principle brief that from time to time the United States through one of its agencies has appeared in the courts of Kansas and has recognized the exclusive right of United States to redeem during the first 12 months following a foreclosure period or a foreclosure sale. Now it happens that the two cases to which we make reference in our brief are both cases concerning the Federal Land Bank. And the Government argues that the Federal Land Bank by statute is excluded from relying on the benefits of the right of redemption in 2410 (c). Again, a careful reading of that statutory second indicates nothing about any right of redemption. Now I'm not prepared to say whether or not the Federal Land Bank by some other statute has in fact waived its right if it is a right to rely on the right of redemption in 2410 (c). At any rate it appears to me that the Government has in Kansas at least taken an inconsistent position in the past by recognizing the exclusive right of the defendant mortgagor to redeem during the first 12 months. Again, this is not a case where the United States has no rights of redemption whatsoever. We have a fairly complex set of statutes regarding judicial foreclosure sale, mortgage foreclosures in Kansas. A junior lien holder has from the 12th to the 15th month to redeem in the event the defendant landowner has not previously exercised his right to redeem. It's for that reason that our State Supreme Court has time and again declared that the manner by which the defendant mortgagor protects himself as to appear at the sale and bid in the property. Now the United States says actually that the fact that the property sold for just the amount of the lien of the insurance company indicates that the sale was made solely for that purpose. I don't think it so indicates at all it merely indicates that nobody else appeared who is sufficiently interested in that piece of property to bid any larger sum of money. The fact that it only brought enough to -- to pay off the person in does not showed that the sale was made solely to satisfy that lien, has already been indicated from the judgment of the District Court as shown in the record, the sale was made to satisfy more than just the lien of the first mortgagee it was made to satisfy the lien from United States as well. Now it seems to me that --
Hugo L. Black: Does the record show what happened after the (Inaudible)
Harry L. Hobson: The opinion of the State Supreme Court indicates, Mr. Justice Black that the defendant landowner shortly before the expiration of the one year period did in fact redeemed the land and received his certificate of redemption. That's not shown otherwise to my knowledge in the record although the Supreme Court in State of Kansas does make reference to that fact and I'm sure that counsel has agreed that that is -- is what happened. Just a few days before the expiration of the 12 months period Mr. Hetzel remained to be pertinent in the District Court in Edwards County and tendered to the sum necessary to pay the cost to Texas and the amount of first mortgage and now has possession of the -- of the property.
Hugo L. Black: What -- what did the law provide? How much (Inaudible)
Harry L. Hobson: The law requires that he pay first the costs, the taxes, the amount of such mortgages as are -- as (Inaudible) In other words, you've got to pay the amount, bid at the sale plus cost and taxes. If the --
Hugo L. Black: Anything else?
Harry L. Hobson: If the purchaser at the sale is required to ensure the property for example by statute, the defendant mortgagor is required to pay those insurance premiums. He has to pay interest on all of these sums of -- sums of money.
Hugo L. Black: What of it?
Harry L. Hobson: The interest that the --
Hugo L. Black: (Inaudible)
Harry L. Hobson: I beg your pardon?
Hugo L. Black: What is the (Inaudible)
Harry L. Hobson: No penalty. I would have to refer Your Honor to the -- to the statute, I know that he must pay interest and I'm sure it would be at the rate of 6% since that the standard rate where no other rate is made applicable in Kansas, he would have to pay that on the amount that the successful purchaser at the sale had to pay to the clerk of the District Court -- to the sheriff rather at the time of the purchase of property.
Hugo L. Black: It was deemed -- how long after the Government has (Inaudible)
Harry L. Hobson: About seven months, because the Government as Mr. Doub has indicated appeared some four and a half months after the sale and the defendant mortgagor appeared shortly before the expiration of the one year period during which he had the exclusive right to redeem. So there was a lapse of, I would suggest about -- about seven months. I don't know what it is (Inaudible)
Hugo L. Black: The situation is now (Inaudible) the Government, the money on it, redeemed it, paid the money and has gotten its title back to it?
Harry L. Hobson: He paid the money that had been bid at the sale. Now because the Government failed to appear at the sale not enough was bid to pay off the Government mortgage.
Hugo L. Black: I understand that.
Harry L. Hobson: But -- yes, the -- the man who originally owned the property, George Hetzel, is now back in possession of the property. He has the title to it.
Hugo L. Black: Under a deed executed by the --
Harry L. Hobson: By the sheriff as a result of the sale and he is --
Hugo L. Black: So, that's the insurance company got its (Inaudible)
Harry L. Hobson: No. The -- the purchaser in Kansas gets a certificate of purchase and he retains that certificate of purchase during the period of redemption. After the redemption then a bid is executed to the -- to the redeeming party. In this case the defendant mortgagor.
Hugo L. Black: Had he not redeemed, it would've been executed to the company.
Harry L. Hobson: Had -- had he not redeemed then the Government could have redeemed between the 12th and 15th months then the right reverts back to the landowner mortgagor in Kansas between the 15th and 18 months. We have a general 18 --
Hugo L. Black: In Kansas law.
Harry L. Hobson: Right. We have a general 18-month period of redemption and there's no question about what the state of legislature in Kansas has been as liberal with landowners in Kansas as it -- as it could possibly be by granting this exclusive right to the landowner mortgagor during the first 12 months and then getting in that right again between the 15th and 18th month but there is a period between the 12th and 15th when a junior lien holder can redeem if the mortgagor has not redeemed it in the meantime.
Hugo L. Black: But the sum total --
Speaker: (Inaudible)
Hugo L. Black: The sum total of the difference is, what it is now, what you're claiming, what it would have been, the Government would (Inaudible) The Government's right of redemption was actually cut off under Kansas law by the redemption of the mortgagor.
Harry L. Hobson: That is right Your Honor. That's right.
Hugo L. Black: But the (Inaudible) could have redeemed had he not redeemed it himself.
Harry L. Hobson: That is right. Or the Government could have protected itself by appearing and bidding at the sale in accordance with its statutory authorization.
Hugo L. Black: You're attacking -- how -- how do you -- why do you say (Inaudible) granting the Government the right to redeem, how do you escape the constitutional question or do you or can you?
Harry L. Hobson: Well I -- I would escape it first by saying that the matter can be decided on an issue other than the constitutional argument. Then the question --
Hugo L. Black: (Inaudible)
Harry L. Hobson: I beg your pardon?
Hugo L. Black: A construction of the statute?
Harry L. Hobson: No. Not -- not entirely Your Honor. Although, I think the legislative history might implicate a construction of the statute other than that which the Government has suggested but there is an additional argument concerning the authority of the Congress to enter the field of property relationships.
Hugo L. Black: Well, that's constitutional.
Harry L. Hobson: Yes. Yes Your Honor.
Hugo L. Black: So how do you escape the constitutional question (Inaudible) does not -- giving the Government the right under the clause the Government relies on to redeem that?
Harry L. Hobson: I would escape it by saying that the Government waives that as a condition when it appears in the courts of the State of Kansas seeking affirmative relief. I think that the Government is subject --
Hugo L. Black: On the notes?
Harry L. Hobson: Yes, on the notes. I think that the Government subjects itself --
Hugo L. Black: Were the notes sold under the mortgage, any mortgage?
Harry L. Hobson: No, Your Honor. All the Government asked was that the indebtedness indicated by those notes be made a lien on the property. Now by --
Charles E. Whittaker: Now, I don't understand. Now I (Inaudible) I don't understand that statement. It was an action on the notes and only one of them was secured by the mortgage. So how could the plain -- the Government get a lien except the judgments put in with respect to the three notes that were not mortgage notes?
Harry L. Hobson: It received a judgment lien on those notes.
Charles E. Whittaker: A judgment lien.
Harry L. Hobson: Yes, Mr. Justice.
Charles E. Whittaker: But the mortgage lien with respect to the fourth note.
Harry L. Hobson: That is right. It had no mortgage lien on the three notes. It had a mortgage lien only by virtue of the one note on which it was initially brought in to the Court.
Charles E. Whittaker: Then how is the judgment lien involved in the redemption factor?
Harry L. Hobson: It is our argument, Mr. Justice Whittaker that when the United States sought that judgment lien, when they sought the affirmative relief in the courts of Kansas, they waived whatever conditions may have been imposed on their initial appearance there. They subjected themselves into Kansas statutes, rules, and procedures. The Kansas procedure provides that the defendant mortgagor shall have the first 12 months exclusively in which to redeem. And I think that the Government waived its 12-month right by seeking affirmative relief.
John M. Harlan II: In relation to another (Inaudible) note?
Harry L. Hobson: Yes, Your Honor.
Charles E. Whittaker: In other words, that argument doesn't apply at all to the person (Inaudible)
Speaker: To the mortgage?
Harry L. Hobson: No, that argument would --
Charles E. Whittaker: That does not apply --
Harry L. Hobson: -- would not apply to the first note except that it seems to me this may be akin to a party who tries to especially appear in an action and then when it gets in there, asks for some affirmative relief. But when it gets in there, it subjects itself and generally to all of the rules and procedures --
Charles E. Whittaker: But I don't -- I don't see how you -- how the Government (Inaudible) the right it would have, if it didn't (Inaudible) then to the other two. If it made no claim to the additional notes affirmatively, in what you call an affirmative action, it's merely would be coming in under its right under the statute, 2410 and under Kansas law that you must bring the United States in. If you must bring the United States in, then you can't subject to any claim of waiver of coming in from (Inaudible) with all -- with all the burdens of Kansas law requires, because it's (Inaudible) as I get your argument as to the three notes, they didn't (Inaudible) it brings itself in.
Harry L. Hobson: That is right.
Charles E. Whittaker: Then it's just the litigant like any other litigant. That's your argument.
Harry L. Hobson: That's right. That is my argument.
Earl Warren: As to those three notes and also those -- the actual lien, is that your --
Harry L. Hobson: I don't think Mr. Chief Justice that we can separate the four notes.
Earl Warren: Yes.
Harry L. Hobson: Once they get into the courthouse --
Earl Warren: Well, that --
Harry L. Hobson: -- in one action, I don't think --
Earl Warren: Yes.
Harry L. Hobson: -- we can separate --
Hugo L. Black: Suppose it (Inaudible) -- suppose it was two actions, those of United States and (Inaudible) file an entirely separate suit on these notes against (Inaudible)
Harry L. Hobson: Then I would be forced to rely on some of the other arguments, I could not rely on -- on this initial argument, that they waived that -- that condition (Voice Overlap) --
Hugo L. Black: It all depends by your waiver (Inaudible) and the facts that the Government instead of filing a separate suit in and under the laws of Kansas permitted to do and the same (Inaudible)
Harry L. Hobson: Right. If it had filed that separate suit, it would clearly have been subjected to the rules and procedures of Kansas. The fact that it filed --
Hugo L. Black: With reference -- with reference to those notes.
Harry L. Hobson: With reference to those notes. Yes, Your Honor.
Charles E. Whittaker: May I ask you one more question?
Harry L. Hobson: Please do.
Charles E. Whittaker: If the Government had been permitted to redeem as it asked to do, then you sought later to redeem from it, could the Government have required you to pay anything more than the amount due on the mortgage note, plus the amount you had to pay on the first mortgage? In other words, could it -- the Government have included the amount of its general judgment lien on the three unsecured notes?
Harry L. Hobson: I -- I don't know that I can answer that Your Honor, because that whole thing is foreign to the procedures in the State of Kansas. There's no provision for redemption from a landowner, mortgagor or from the landowner-mortgagor redeeming from somebody who has in turn redeemed during the first 12 months. I am of the opinion that the mortgagor would have had to pay the entire amount that was sought by the Government when it filed its cross petition and the lien was made. That was for some $12,000 or $14,000 as I recall, all four notes combined. I think that the Government -- that the mortgagor would have had to pay that entire amount, not just so much of the amount as related to the piece of property involved.
Charles E. Whittaker: In other words, you got to pay a general, unsecured judgment in order to redeem from a mortgage judgment. Is that right?
Harry L. Hobson: The way this took place in accordance with the prayer of the Government in the District Court of Edwards County, I think that's right, yes.
Felix Frankfurter: May -- may I ask this question before you sit down? Suppose when it's with you on the three notes, the three notes by which the affirmative (Inaudible) suppose one is with you of those three notes, (Inaudible) on the notes -- on the notes that initially had with it, the lien for the Government. What is one to do?
Harry L. Hobson: I don't know Your Honor. I am -- I'm happy that we're not faced with that particular --
Felix Frankfurter: Why not?
Harry L. Hobson: -- problem.
Felix Frankfurter: Why not? (Inaudible) with reference to your position?
Harry L. Hobson: Will you -- will you repeat --
Felix Frankfurter: I'm (Voice Overlap) --
Harry L. Hobson: -- those Your Honor?
Felix Frankfurter: Suppose I'm with you on the argument, that if the Government is -- has brought a separate action in a Kansas court, where enforced it -- on those three notes and sought a lien could be imposed as a result of getting an adjudication on the face of those notes, do you say that then -- would the whole -- the whole Kansas team of legislation come into play and the United States would be subject to -- to burden (Inaudible) of any other litigant. Suppose I'm with you on that. Suppose as to the first note, which was initially (Inaudible) -- initially operated as a lien on the property. And the United States came in because under Kansas law, it has to be brought in, in order to adjudicate the rights that a mortgagor-mortgagee and is therefore, you can't make the argument that United States was subject to Kansas law as a litigant. It's an enforced litigant who is not subject to extend on its construction of the priority on -- of the redemptive right under the statute.
Harry L. Hobson: My argument would be, Mr. Justice Frankfurter that --
Felix Frankfurter: Well, what -- what would you do if you couldn't find yourself in that situation?
Harry L. Hobson: One is to affirm the judgment of the Supreme Court of the State of Kansas because I do not feel that you can split this thing into -- into two parts.
Felix Frankfurter: Why not?
Harry L. Hobson: The Government was there asking affirmative relief. I don't think that a party, be it the Government or --
Felix Frankfurter: Ask affirmative relief with reference to those three notes.
Harry L. Hobson: Those three notes but if we were to --
Felix Frankfurter: Which is entitled -- and it's entitled to be protected as to the first note.
Harry L. Hobson: It is entitled to do so --
Felix Frankfurter: (Inaudible)
Harry L. Hobson: If -- if it is entitled as far as that first note, I think it can waive that entitlement by its action once it gets inside the courthouse.
Felix Frankfurter: What -- why does it waive if what is entitled under the first note because it makes new independent claims as the three notes before -- in a different status than the first note
Harry L. Hobson: Because I can't grasp the concept of dividing this particular foreclosure action --
Felix Frankfurter: But suppose is that -- suppose it has intended the claim on those three notes, what was in (Inaudible)
Harry L. Hobson: Then the argument that the United States has in fact made I think would -- would more clearly be before this Court.
Felix Frankfurter: Then tell me how that argument would evaporate because it has the assumption it couldn't get.
Harry L. Hobson: It did get what it asked for.
Felix Frankfurter: No, it didn't. (Inaudible)
Harry L. Hobson: Well --
Felix Frankfurter: Redemptive rights under the first note.
Harry L. Hobson: It -- it got personal judgments against the Hetzels which as a matter of fact it still retained.
Felix Frankfurter: (Inaudible)
Harry L. Hobson: It hasn't lost its --
Felix Frankfurter: But it certainly got the right that it's been stand on and would have had if it had been brought the count of these independent (Inaudible) on the three new notes, wouldn't it?
Harry L. Hobson: Insofar as my first argument --
Felix Frankfurter: Yes.
Harry L. Hobson: -- is concerned, yes. Yes.
John M. Harlan II: Do you say that one problem (Inaudible) whether the facts by virtue of the mortgage was (Inaudible) three notes, they all end up with the same piece of property?
Harry L. Hobson: It's all one piece of property. It's all in one --
John M. Harlan II: (Voice Overlap) --
Harry L. Hobson: -- foreclosure actually.
John M. Harlan II: (Inaudible)
Harry L. Hobson: Yes, Your Honor.
Felix Frankfurter: So does this follow that you have -- that you must have the same right on -- on the position claimed? I don't understand that. Even those rights to property (Inaudible) And they have none in the (Inaudible)
Harry L. Hobson: But when they assert that interest and seek affirmative relief, all in one foreclosure.
Felix Frankfurter: (Inaudible) -- all they got nothing, was that it?
Harry L. Hobson: I would say yes.
Earl Warren: Yes.
Speaker: (Inaudible)
Earl Warren: Alright. (Inaudible) Mr. Doub.
George Cochran Doub: The Kansas law specifically provides that in actions to enforce a mortgage, a personal judgment or judgments shall be rendered for the amount due as well to the plaintiff as other parties to the action having liens upon the mortgage premises. Now --
Felix Frankfurter: Have you had liens on the mortgaged premises on those three notes? They didn't have them under -- the Kansas court gave it to you?
George Cochran Doub: Well the -- apparently the -- this agency thought that it did, but the Court held that its lien was confined to one of the four notes. But certainly that was the place for them to find out. And they did. And its completely unsound to suggest that the application of 2410 in this redemption right should be dependent upon the refinement of the defensive measures taken by the United States when it's been hauled into a state court under 2410.
Felix Frankfurter: (Inaudible) -- I don't understand why you called it a refinement whether you have a lien or you haven't. That's a pretty (Inaudible)
George Cochran Doub: No, I -- I was talking to another point, Mr. Justice Frankfurter. I was talking to the point that the appellees contend that because we took a -- some defensive measures here, they say affirmative re -- we asked for affirmative relief. If you look at page 13 you'll see exactly what the affirmative relief was in its -- its most innocuous. And it's obviously of the character that any junior lienor would have to --
Felix Frankfurter: Suppose --
George Cochran Doub: assert.
Felix Frankfurter: (Inaudible) with my mind that -- that I don't see it that way. What you're saying is that you were pulled in on a note which gave you a lien but you had three other notes which didn't give you (Inaudible) And therefore you entered the court, you have a lien derived from the notes. Now, you may say these are wrong about that. This will be a --
George Cochran Doub: Well, all they --
Felix Frankfurter: If they're wrong about it, and it isn't a refinement, if you had a lien to start with and you had no lien to start with, that is a refinement.
George Cochran Doub: Well first, if the Court please, we were brought into this case under 2410. Now we will -- what was (Voice Overlap) --
Felix Frankfurter: (Inaudible) on which you were brought in.
George Cochran Doub: The -- the --
Felix Frankfurter: On one note.
George Cochran Doub: Well, it was -- no, it was a state foreclosure case to which we had to be a party no matter how many notes we had, whether we had one or a hundred.
Charles E. Whittaker: Yes but you had to be a party only in respect with the one mortgagor.
William J. Brennan, Jr.: That's the fact of it though.
George Cochran Doub: Yes. That's --
William J. Brennan, Jr.: You didn't have to be a party in respect to these three unsecured notes.
George Cochran Doub: No, that's what --
William J. Brennan, Jr.: You're only brought in respect to the lien.
George Cochran Doub: That's true.
William J. Brennan, Jr.: Well, now why -- I -- I'm just -- I'm puzzled. (Inaudible)
George Cochran Doub: But here --
William J. Brennan, Jr.: You -- you call it a defensive measure
William J. Brennan, Jr.: What you did as I understand it then is that -- that instead of having (Inaudible) your lien in the amount of the one note, you asked for a lien on the very property in the amount of the aggregate of the fourth note, is it?
George Cochran Doub: Yes, and --
William J. Brennan, Jr.: This is what you --
George Cochran Doub: And the court held the lien was confined to the one note very properly (Inaudible)
Speaker: And you agree with that?
George Cochran Doub: I certainly do. Well as I read the record, (Inaudible)
Felix Frankfurter: Well then, and that confirms Mr. Hobson, you don't think that we agree with him, that you had only one more with the notes on the three non-mortgage notes --
George Cochran Doub: As I --
Felix Frankfurter: Now, the mortgage notes which Justice Brennan just dictated, you had to come in under Kansas law. But on the three non-mortgage notes, there were no compulsion at all.
George Cochran Doub: That's right. I think I think in determining our redemption right, it should be limited to that note.
Speaker: To the mortgage note?
George Cochran Doub: To the first note.
Earl Warren: Yes, yes.
George Cochran Doub: To the mortgage note.
John M. Harlan II: And your invited in.
George Cochran Doub: Right. But actually what is -- what is before you, and why were here doesn't involve money. In this case, we're here on the major principle, the interpretation of this statute.
Felix Frankfurter: But we can't do that in the abstract.
George Cochran Doub: No. Not --
Felix Frankfurter: Nobody knows that better than you.
George Cochran Doub: And for that reason, I would like to submit to the court that you have a difficult question on the mandate assuming you agree with the Government's position. We've given (Inaudible) to what the mandate should be. And since my time is up, I would like to submit it to you or if I have some left (Voice Overlap) --
Earl Warren: Please, do it.
William J. Brennan, Jr.: (Inaudible)
George Cochran Doub: This Court should reverse and remand the Kansas Supreme Court with directions that one, the certificate of redemption issued to the mortgagor be cancelled. Two, the motion made by the United States in the trial court for redemption be granted nunc pro tunc and the certificate of redemption be issued to the United States upon the proper -- by the United States of the appropriate amount under Kansas law. Three, this should be without prejudice to the general equity power of the Supreme Court of Kansas to extend the dates for redemption and re-redemption by the mortgagor or other lien creditors as provided under Kansas law.
Speaker: Are you going to submit that?
George Cochran Doub: I thought -- I think I'd like to submit to the --
Earl Warren: Of course, you do.
Hugo L. Black: Do you think (Inaudible)
George Cochran Doub: No, I didn't do that. I left it open, Mr. Justice Black.
Speaker: Mandate for us --
George Cochran Doub: Paragraph 3. This should be without prejudice to the general equity power of the Supreme Court of Kansas to extend the date for redemption and re-redemption by the mortgagors. And the reason I say that, the Kansas court has done that very thing in other cases where there was a dispute as to who was entitled to redeem under Kansas law in cases not involving the United States and where it was necessary to act on a nunc pro tunc basis and to fix new dates since the other dates have long transpired.
Earl Warren: Mr. -- Mr. Doub, then your -- the interest of the Government has to do only with this first note that was an actual lien on the property, is that correct?
George Cochran Doub: That's correct.
Earl Warren: Yes.
George Cochran Doub: That's correct.
Earl Warren: Now, you may submit that for that mandate and Mr. Hobson, you may respond to it if you wish.
Harry L. Hobson: (Inaudible)
Earl Warren: Yes. And -- and if there's any Kansas law relevant to it, would you submit that also.
George Cochran Doub: Thank you.
Harry L. Hobson: Thank you.
Earl Warren: (Inaudible)


Earl Warren: Mr. Bernstein, you may proceed.
Eugene Bernstein: Mr. Justice Black made a query before us whether a finding of the fact was made in the cases in issue. It wasn't a direct finding of fact only by implication that the words necessary and ordinary or it can be limited by a legality of the expenses incurred.
Hugo L. Black: Well, I'm talking about findings of fact. There was any findings of fact as to whether this particular is what's necessary for him to run his business.
Eugene Bernstein: There was no such a finding of facts.
Hugo L. Black: No finding, one way or the other?
Eugene Bernstein: Not all on that particular issue. Your Honor, the -- the doctrines of independently illegal has been applied in certain types of cases. It was pointed out in the lobbying cases, critical favors, bribery, crimes and penalties. It will be Your Honor in the Textile case is strongly relied upon by counsel.We still don't find the strong language, the denial as indicated. It is said in view of the fact that Congress has not provided for this deduction, but the general policy came into play.And by inference, one would assume that our Congress provided the deduction involving the expense. The general policy would not have been given consideration. Now, we find in this particular section, there is a specific provision for the allowance of salaries and rents incurred in this trade or business. Now, a particular proposal suggested by Senator (Inaudible) who was rejected by the Senate and by the Congress rather, were caused of the desire or its realization for the treasury department will be called upon to interpret the laws of the various station and also public policy. And counsel suggested that was not our intent. Now, it's very obvious that counsel is not acquainted with Illinois law. I'm not sure of the language, Your Honor, but it's obviously -- it states on his brief that the respondent, its employees and lessors will be guilty of a violation of the conspiracy section of the Criminal Code of the State of Illinois. Our Supreme Court in Dorman versus rather People versus Dorman in 415 Illinois cited in our brief has held that the conspiracy section was not applicable to gain the act. It was a misdemeanor. That is not now per se that (Inaudible) prohibited and that the penalty in the -- the conspiracy section was far in excess of that, provided under the Wagering Act. And we're also rather doubtful as to what position the Illinois courts would take as to the liability of a landlord for violation of any statute that we just set forth in our brief. Now, the inconsistency of the Commissioner as known as not being one of its virtues, rather, it doesn't fall consistently in theory. Now, we have it in the cases preceding our, Tank Truck Rentals. He argues the -- the point is independently illegal. I don't know what could be more independently illegal, Your Honor, whether the employees are specifically told to go out and violate the law. It's specifically told that no withholding and then Your Honor, we don't find the Commissioner consistently disallowing the salaries of those employees. Objectively, Your Honor, the purpose is only to get the certain types of business as annunciated by the Attorney General. Now, Your Honor, it is not uniformly applied in one of the general rules of taxation, is that a law should be uniformly applicable and it should be applied against one type of taxpayer as against business (Inaudible). Now, Your Honor, in the -- the case that I cited before about the lobbying, fines and penalties, the -- under the theory annunciated by the Commissioner. These types of expenses are not allowed to those engage in the gaming industry. On the (Inaudible) case, it pointed out the distinction between that type of expense and the type of expense that it can be deducted. It specifically points out to bribery and fixing. Those are not allowable expenses. Now, in the long line of decisions of the Tax Court and even including the Silverman case relied upon by the Commissioner in 44 BTA. That case did not specifically disallow the deduction of salaries and rents. It disallowed the taxpayer the right to claim the deduction of the excess losses, which he derived in the gambling business against income from legal sources. On the other hand, we do find all these other cases up to including Doyle or the Tax Court that was up to 1954 has consistently held that these types of expenses were deductible and the first time we find the change of that position is in 1954, subsequent of the time when the Attorney General had made a statement that he (Inaudible) highly cooperation of the treasury department in invoking this particular provision. Now, Your Honor, the original letter of the assessment (Inaudible) in Sullivan as in Doyle. There was no disallowance of salaries or rent. By the time the petitions failed.
Earl Warren: In what case you would describe?
Eugene Bernstein: In either the Doyle or in this -- in the lost Sullivan case.
Earl Warren: Yes, yes.
Eugene Bernstein: At the time the petition was filed, it did not involve that issue. It was only when it was reached at the trial calendar, that the Commissioner came and asked for leave to amend this petition -- to amend those answers to set up a perimeter of the matter. In both of those cases, the first time it was developed, that was in 1954, which gives the import to a particular position taken by the department. I'm not opposed to the decision taken they have that right to take the position but there is no consistency of it and we find the first time it was served in the Massei case. It was only 45 days before the Attorney General indicated what the position of he -- and the Commissioner of Internal Revenue were relative to his expenses, where in time for the formulation of the opinion between the two departments. Now, public policy, Your Honor maybe resulted to interpret an ambiguous or vague statute. Now, we don't have that vagueness in this statute. We find incidentally -- I can't help but comment on the ease at which counsel tries to obviate to the faith in Congress of 1913. Says, it did not apply to the gaming statute. May I read from the Congressional record 3849, 1913 reference to which we made in our brief? Senator Williams said this." The object that this built is to tax a man's net income." That is to say what he has at the end of the year after deducting from his receipts of the expenditures or losses. It is not to reform men's moral characters. That is not the object of the bill. The tax is not levied for the purpose of -- people from betting on horses or upon futures, but the tax is plain for the purpose on making a man pay upon his net income, his actual profit during the year. The law does not share where he got it from, so far as the tax is concerned, although the law may very properly appear in another way. Counsel somewhat slips over that, as was well as he did to Senator (Inaudible). In Senator (Inaudible) proposal which are followed by the treasury department and rejected by Congress, it would make the gaining deductions much easier of determination. All that the Commissioner would have to determine -- that Congress from -- Senator (Inaudible) amend and accepted was whether or not the business was illegal or a lawful one. We're under the theory annunciated by the Commission of independently illegal. It will be necessary to determine whether each item of expense claimed for deduction would come within the purview of Section 23 (a) (1) (A). As I've indicated, Your Honor, here, we have a specific provision of the statute, permitting a deduction, permitting the deduction of all necessary. There is no limitation. There is no limitation as -- let me quote from the decision in Commissioner versus Heininger that Judge (Inaudible) held. He said this is -- we are asked in the guise of construing the words ordinary and necessary to amend the statute, in other words, to engage in a little judicial legislation. We declined the invitation. And then also indicating that decision of a change was to be made, it was to be made by Congress. He pointed out specifically all that Congress had to do was to add in one word in between ordinary and necessary business expense is lawful. All we have to make out lawful expense as incurred in any trade or business and this Congress repeatedly rejected it. It rejected it even the first income tax law passed in 1913. And incidentally, there was one of the amendments was proposed in the 1913 Act, to act -- to provide that all -- only deduction maybe plain and lawful business and that suggestion of Senator Sterling was rejected, same as the similar efforts of Senator (Inaudible) were to amend the bill, the wagering excise tax. Your Honor, as we pointed out, we have not only that gross tax on wagering under the Wagering Act, a little more so in determining gross ordinarily you will take the total amount wagered, plus the amount paid off on the wagers, known as the (Inaudible) and then the balance of the gross. But here, we taxed the total amount, not gross under the Wagering Act. Now, with this contention of the Commission is to be adhered to, we find another gross tax with a mere deduction of small items with 22% of the total expense would result in a tax of net income. Well, I'll leave that to the Court to determine.
Hugo L. Black: May I ask you? You read it from the statement of Senator Williams?
Eugene Bernstein: That's right, Your Honor.
Hugo L. Black: What was his connection with the bill?
Eugene Bernstein: He was on the -- he was on the Senate, Your Honor.
Hugo L. Black: I understand he's in the Senate.
Eugene Bernstein: Yes, it was indicated -- I couldn't answer that, Your Honor. I believe he was a member of the -- of the Committee on the taxation (Inaudible) drive that from the general debates. Well, I have here in commerce. Now, I will move to that technically in the brief when I give the citation. I believe, Your Honors has pointed out (Inaudible) I'm not over squeamish. I had trouble in -- the Commission of Internal Revenue has recently held that sums expended by American businessmen providing foreign officials as well as for paying rebates to representatives of foreign governments by American businessmen, constitute of deductible expense. That was a recent ruling that he gave, I believe it was Senator Williams if I'm not mistaken (Inaudible), the Chairman of the Committee that appears in (Inaudible) in 1957. However, a similar deduction launched to American businessmen are not -- is not allowed for that type of expense paid to domestic officials. Now, Congress is the -- pointed out as a sole authority to modify the law but not to the courts or to the Commissioner even though they may improve upon the scheme of taxation. And another theory of taxation, Your Honor, is that the income tax law should be equal in its administration and you had that U.S versus (Inaudible), Burnet versus Harmel, and Your Honor, in the case of -- justice -- well, the justice of our Supreme Court versus Dolman if I recall. And that case, Your Honor, was the -- the judge of the Supreme Court held that the provisions of the income tax law will not (Inaudible) and that it had violated the Constitution of the State of Illinois. The Constitution provided for the (Inaudible) could not be diminished or increased during his term of office. That the imposition of this tax will tend to diminish his salary, (Inaudible) made short statement on that and held that the federal laws were not depending upon state constitutions or upon state laws and their application. That was (Inaudible) and I cite that in my brief. Now, Your Honor, in conclusion, may I make this observation? This should be allowed as a deduction, all the cost and expenses necessarily incurred in the production of that income. That is the cost and expenses which are interwoven in the fabric of the business to make fictitious any net income computed without regard to such dispersions.
Earl Warren: Mr. Solicitor General.
J. Lee Rankin: Mr. Chief Justice, I understand I have about a minute left. I'd like to be sure to make clear to the Court that the Government does not think there is a limitation on the power of the United States to levy a gross income tax. Now, the Constitution does not prohibit the levying of a gross income tax. Now, we do have problems in regard to classification of due process, if the classification is not a reasonable classification. But it's the position of the Government in this case that whether a person is in a legal or in illegal activity that he could not deduct for the expenses that he incurred in inducing someone else to commit a crime. And we do not think that the wagering tax is a tax, only the better for wager at all. It's a tax on the man who gives the -- the money to the bookmaker and the bookmaker is merely a collector of that tax, but it is a gross tax.
William O. Douglas: -- Internal Revenue opposed the ruling that makes the federal excise tax (Inaudible) on this problem do you think just a congressional policy contrary to your argument?
J. Lee Rankin: We don't think that it does. We think that the attitude of Congress is evidenced over the years by the fact that this position has been taken constantly by the courts.
William J. Brennan, Jr.: Mr. Solicitor, what is the difference in the expenses for wire services and such which justifies their allowance and the disallowance of the --
J. Lee Rankin: I think those are described in the Lilly case under the terminology that they're incidental to the illegal acts.
William J. Brennan, Jr.: Well, as I understand it, these -- these were the scratch pads upon which I gather the bets are recorded.
J. Lee Rankin: That's right, but they're now --
William J. Brennan, Jr.: And it's only the fellow who records them is disallowed, but the expense of purchasing the pad is allowed.
J. Lee Rankin: Well, the statute doesn't say that purchasing a pad as such is illegal, but it does say recording a better wager is illegal. So, the act of these men were being paid for is independently illegal. It's just like you would ask someone to go out and commit a crime for you and you pay him $100. That is exactly what it is. Now, if you go out and ask him to buy you a pad and you want to commit some kind of a crime, that's what's involved in the other and it's more remote. This Court dealt in the Heininger case with the fact that where it's more remote and different problem and the one -- the Government isn't saying that all of that type of expenses could in all cases be recognized, but they aren't involved in this case. This is case where it's a direct violation of the state law, a very act that he's paid for. And there was no showing that these acts were not for this very purpose of recording the bets. Under our theory, if you could separate them out and show that a portion of his time was devoted to some other purpose, then we would -- I would assume at least that that part could be separately deducted. But in this case, there was no such showing and it was -- that he was engaged in this unlawful activity and the Court specifically found that this were acts that were in violation of these state statutes.