xt7msb3wtd0h_10 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Associate Justices - Stanley Reed text Associate Justices - Stanley Reed 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_162/Folder_2/Multipage1394.pdf 1946-1952 1952 1946-1952 section false xt7msb3wtd0h_10 xt7msb3wtd0h "\an


May 7, 1947.


I have had presented to me petitions for leave to appeal a*
judgment of the Supreme Court of Michigan. It is the practice of that
court to refuse all such applications for leave to appeal a case here.

Petitioners are Jehovah's Witnesses. Cpon complaint of the police
they were arrested and tried before the Recorder's Court of Detroit on
the charge of'allowing their minor children to accompany'and assist them
in selling watchtower magazines on the streets of the city, in violation
of a city ordinance which makes it a misdemeanor for a parent to "suffer,
permit, allow, or induce" a minor to engage in a "street trade,n which
includes, so far as is relevant here, "distributing, selling or offering
for sale . . . any . . . printed or written material . . . .“ Upon con-
viction and fine they applied for certiorari to the Circuit Court, which
granted and affirmed. The Supreme Court allowed an application for an
appeal and affirmed the Circuit Court. Petitioners challenged the ordi-
nance as in violation of the constitutional guaranty of freedom of
religion, but the supreme Court gave the contention short shrift, saying

that Prince v. fiasgachusetts, 321 U. S. 158, governed.


There is no doubt that the griggg case is squarely in point, and I
do not think the question is substantial enough to terrant an appeal
unless the Conference desires to reexamine the issue. The 222222 case
was decided 5—4 January 31, 1944, and since then there have been changes

on the Court. Mr. Covington explicitly calls for a reexamination of the

‘\ question, arguing that personnel of the Court has changed and that the

decision in Prince was negregiously erroneous and has worked evil results."
I desire to call up the question of appeal at the next Conference
and am circulating this memorandum that the members may have the question

in mind.


 fiwgtcme Gnurt nf the Hnitph fitates
fiashingfnn, E. GE.

Octob r

Dear Chief:

No. 144, Seifing V. Barclay Thite Co., is on
the special list.

taat a federal question was raised
probably correct as depending
is so close to an interpreta—
tion of a federal law and results in such fiivergencies
of unemployment benefits of the several states that it
should be discussed.



 K]. "


October 16, 1947

RE: No. 217, Bracey v. Luray.

In this case the petitioners recovered judgments for overtime and
liquidated damages against the respondent. After the recovery of the judg-
ments, the respondent made representations to petitioners that it was insol-
vent and unable to pay the damages in full. Thereupon a compromise was made
under which the respondent agreed to pay the overtime, attorneys' fees, and
a nominal amount of liquidated damages in settlement of the judgments.

A question arose as to whether or not a provision of the compromise
that failure to make further payments on time invalidated the entire contract.
'The lower courts held that the action of the petitioners in accepting the
delayed payments constituted a waiver of the failure to pay on time. This,

I think, was sound and I shall not consider it further.

After the payment of the compromise sums, the petitioners had execu—
tions and attachments issued to secure the difference between the compromise
sums and the original judgment on the theory that the agreement to compromise
was invalid under O'Neil, 324 U. S. 697, and Schulte, 328 U. S. 108. This
present proceeding developed from a motion of respondent to quash the attach-
ments and to mark the original judgments satisfied because of the compromise
agreement. No question is raised as to the actual insolvency of the respondent
at the time that the compromise agreement was made. Therefore, it was_not
necessary to make such a showing. '

Neither O'Neil nor Schulte dealt with this problem. O'Neil dealt
with the problem of a compromise of liquidated damages and Schultg dealt with
a compromise of a bona fide dispute over the scope'of coverage of the wage-
Hour Act. Neither case dealt with the problem of a compromise of a judgment
on account of the debtor's insolvency or on other grounds. Despite Fort Smith
v. Mills, 253 U. S. 206, if the Portal to Portal Act had not been passed, I
would think we should take cert to inquire whether or not a compromise of a
judgment was ineffective to release the employer under the O'Neil and Schulte
cases, whether or not the right to overtime and liquidated damages was a
unitary or divided claim.

The question of the compromise is no longer important. The Portal
to Portal Act, U.S.C.A., July 1947, p. 289, Tit. 29, §253, permits compromise.
Sec. 3(b) provides that an employee may hereafter waive his right under the
FLSA to liquidated damages in whole or in part with respect to activities
engaged in prior to the enactment of the amendment, and §3(d) provides that
the terms of the section ”shall also be applicable to any compromise or waiver
heretofore so made or given." Sec. 3(c) states that a compromise, in the
absence of fraud or duress, shall be "a complete bar to any action based on
such cause of action."

The subsequent enactment of the Portal to Portal sections does not
bar its retroactive application. Carpenter v. Wabash RR., 309 U. S. 23, 26;
Vandenbark v. Owenszgllinois Glass Co., 311 U. S. 538.

Therefore to take this case to decide whether the judgment was
correct before the Portal to Portal Act is not important for the future. It
is hardly necessary to send the case back for consideration of the applica—
bility of these sections of the Portal to Portal Act to the past as they seem
clearly applicable and the C.C.A. would make the same decision as it has in

its present ruling.


 5/7 2

March ,6, IMCEWED

h 5 9 51 at am

_ cmergusgfie
Epon examination of the petition for rehearing in o. ' ,


Grand River Dam Authority v. Grandfldro, I am inclined to believe that
we should reconsider our denial of certiorari. I should appreciate
hearing the views of the Conference on the matter. .

The effect of the decision below is to require a licensee of
the Federal Power Commission to pay a landowner a greatly increased sum
based on the value of the land for use for power purposes. Infinite;
£13529 v.'Chandler-Dunbar Water Power 00., 229 H. S. 53, we held that
in condemnation proceedings instituted by the United States such elements
of value should be disregarded. If in establishing a rate base and in
setting the recapture price of a power project after 50 years the Federal
Power Commission allows the extra cost to the licensee for water power
value to be included, the rule in Chandler-Dunbar is avoided; if the
Commission disallows such items of value the solvency of licensees my
be seriously threatened. For the reasons elaborated in First Iowa hydro—
electric Cooperative v. Federal Power Commission, I think that federal
law, not state law, should control.

I The court below apparently considered the question of valuation
in condemnation proceedings as determined solely by state law. Petitioner
made timely exception to the introduction of evidence relating to the
value of the land for dam purposes (R. 321, 31.5, 361, 387) and by its
requested charges to the jury , refused by the trial court, continued to
urge that such elements of value should be disregarded (R. 604, 607-13) .
The same issue was properly raised in the petition for certiorari and
the argument here outlined is developed in the government's amicus brief.
I believe an expression by this Court would be helpful in establishing a
rule of law which could be invoked in future cases of acquisition of

lands by Federal Power Commission licensees for power purposes.



March .22, 1948.


Judge McColloch of the District Court for the District of Oregon
has raised the question of the propriety of our disposition of United
‘States v. Pallets, No. 1160; United States v. Kramer, No. 1101; United
Statg v. Uhe 1bar er, No. 1334; United States v. Rambeau, No. 1335;
United States v. Levin, No. 1336; United" States v. Sagner, No. 1341:
all of the 1946 Term. In all of these cases a prosecution for violation
of the Emergency Price Control Act was brought after the expiration of
that Act on June 30, 1946. The indictments were dismissed by the trial
judges. In Nos. 1100 and 1101, the opinion of the district judge indi-
cates that his action was based upon the conclusion that, in the absence
of an applicable saving clause, the prosecutions collapsed after the
expiration of the statute upon which they were based. . Judge McColloch
was the district judge in Nos. 1334—36 and 1341. His opinion dismissing
the indictments indicates a strong dislike of the GPA in general and the
rule in Yakus' case in particular. He fails, however, to present any
legal arguments to explain his action. The Government, taking advantage
of the Crimiml Appeals Act, brought direct appeals to this Court. Nos.
1100 and 1101 arrived first and were summarily reversed in a per curiam:

. . . Appeals from the District Court of the United States
for the Eastern District of Pennsylvania. April '7, 1947. 22;:
Curiam: The judgments are reversed. 56 Stat. 23, E7 §1(b)
{en-amended, 50 11.5.6. App. (SHE; v, 1946) §901(b); 1 a. 3.
no, as amended, 58 Stat. 113; 1 Great Northern R. Co. v.
United States, 208 U. S. 452; United States v. Reisinger, 128
U. S. 398. e o 0

Our per curiam indicates that we held that the saving clause of the
Emergency Price Control Act and the general saving clause of 58 Stat.
118 extended the vitality of the indictments beyond the life of the
Act upon which they had been based. Nos. 1334-86 and 1341 were also
sunmarily reversed in a per curiam:

. . . hppeels from the District Court of the United States
for the District of Oregon. June 2, 1947. Per Curiam: The
judgments are reversed. United States v. Pallets, 330 U. S.
812, and authorities cited. . . .

Judge McColloch argues that our disposition of the above cases deprived
the criminal defendants of their constitutional rights.


1 ”The provisions of this Act, and all regulations, orders, price
schedules, and requirements thereunder, shall terminate on June 39, 1946,
or upon the date of a proclamation by the President, or upon the date
specified in a concurrent resolution by the two Houses of the Congress,
declaring that the further continuance of the authority granted by this
Act is not necessary in the interest of the national defense and security,
whichever date is the earlier; except that as to offenses committed, or
rights or liabilities incurred, prior to such termination date, the pro-
visions of this Act and such regulations, orders, price schedules, and
requirements shall be treated as still remaining in force for the purpose
of sustaining any proper suit, action, or prosecution with respect to any I
such right, liability or offense.‘I - _;

2 'The repeal of am statute shall not have the effect to release or
extinguish any penalty, forfeiture, or liability incurred under such'
statute, unless the repealing Act shall so expressly provide, and such
statute shall be treated as still remining in force for the purpose of
sustaining any proper action or prosecution for the enforcement of such
penalty, forfeiture, or liability. The expiration of a temporary statute
shall not have the effect to release or extinguish any penalty, forfeiture,
or liability incurred under such statute, unless the temporary statute skull


In a petition for rehearing filed May 2, 1947, counsel in
Palletz' case argued the same point that McColloch raises.

'3. Inasmuch as the judgment of the District Court was
rendered in a criminal proceeding against appellee and the
judgment dismissed the criminal information against appellee,
the reversal of that judnent without hearing, to the great
prejudice of appellee, constitutes a denial of due process.‘'

That we were unimpressed by the argument then is indicated by our denial
of the petition.

.112 the time tint we acted in the above cases there were no prece-
dents to support summary reversal of an appeal brought by the Government
in a criminal case. The only argument to support our action is that
reversal was so clearly indicated that argument would have been useless.

I do not believe that the Constitution requires us to impose the financial
burden of argument before this Court upon the Government and criminal
defendants when the Conference is unanimous in holding that a judgment
should be reversed and is of the opinion that argument is unnecessary.

One can understand, however, the feeling of an accused who has
beenvsuccessful in securing the dismissal of an indictment that he
should have an opportunity to be heard on the controlling issue before

An appeal differs from a petition for certiorari in that no answer
to the” merits is required or expected to the Statement as to Jurisdiction
where jurisdiction is clear. .



so expressly provide, and such statute shall be treated as still re-

mining in force for the wee of sustaining any proper action or
prosecution for the enforcement of such penalty, forfeiture, or
liability." '

__, wow

 n {‘3 L-‘J

MAR 22 4 10 PH ’48

§uprcme (Emmi of the 111131?! EiakUéTl C E

March 22, 19489

Dear Chief;

Judge McColloch sent letters also
to Frankfurter, J., and Rutledge, J. It
seems to me that before we answer him the
question is Worth a Conference discussion.
If you agree, will you put it on the agenda.

, 320425,

The Chief Justicem






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CHA- .ouCEVLTElHE‘ mflfibnmnmflC.
CHAMBERS OF Jan 12’ 1949


Dear Fred:

In connection with the argument of No. 336, American Communications
Association v. Douds, I have just seen the petition for certiorari and
the memorandum of the National Labor Relations Board in N0. 431, United
Steelworkers of America v0 NLRB. Both cases involve the issue of the
validity of the Taft—Hartley Act‘s requirement of filing of affidavits
by union officers to the effect that they are not members of the Communist
Party, etc. It may be too late to shift the argument of No. 336, but if
it is not it seems to me that it would be worth while to postpone it until
consideration could be given to the petition in No. 431 and, if that
petition should be granted, to set the two cases for argument together.
I am inclined to think that the issue is important enough to have all
the light we can get on it and that the situation presented in No. 431

may be sufficiently different to justify hearing that case independently

and preferably in conjunction with the argument in No. 336.



The Chief Justice



v! 7 "- ’ it
“011’ If. 3 ‘43 PH L November- 12, 1949-


CHMEBE;;S m 'i m;

The following notes add to the information on the Eisler case.


1. The subsequent history of Smith v. [1.8. , 94 U.;S. 97, is as represented


in the motion to dismiss. the order apparently differing from
the opinion.
2. In the Bohanan case, however, the order corresponded to the opinion:
a. Minutes for Monday, Oct. 17, 1887:
. . . It is ordered that the submission of the cause he
set aside and that unless the plaintiff in error be brought
or comes within the jurisdiction and under the control of
the Court below on or before the last day of this term
the cause he thereafter left off the docket until directions
to the contrary . . . .E‘
b. On May 14, 1888, the last day of the term, in correspondence
with the order of Oct. 17, 1887, the case was stricken
from the docket.

c. The Bohanon case is square authority for the Eisler order.

3. The four state cases cited in the Smith case throw no light on this


Court’s intention in that case. They are obviously cited for the
proposition— -which was the real holding of the caseo—thnt the court
would not hear the case if the defendant were absent. The context
and orders in the state cases vary sharply, and were not being relied
upon for learning with regard to the proper mandate.

4. There is one fact which may be of some significance. Referring to
the order of Nov. 27, 1876, ordering them cause "dismissed"

(quoted in the present Motion, p. 4), the clerk entered on the docket


(1876 Dock. #2) that the case was ”to be stricken from the docket after"


the date set. And again, when the case was carried over as #1 on the
1877 Docket, the entry by the clerk referring to the ism-culled "dis-
missel" order reeds: "Ordered that unless Plaintiff in Error submit
himself to jurisdiction on or before the first day of next term the

case to be stricken from docket after that time. "

 It seems to me that no particular significance was attached
to the different terms used in the opinion, the order, "and the clerk's
entry. It may be argued that in any case the terms Were being used
synonymously, but it seems to me to be equally true that 110 one was
thinking particularly about the exact way in which the case should be
handled. There had never been a U. S. decision before that the case
should not be heard if the defendant had fled custody and was not before
the court, and all attention seems to have been directed to that one
essentiel issue. The secondary issue of the precise mandate was
apparently more explicitly considered in the Bohemian case, and there

the court decided and ordered exactly as in Eisler.



No. 262. .\II.\'('.A0C"I‘OBER TERM. Itl4tl.

I’rank Hynes. Regional Direc-
TUI‘. EUR PCUUOW‘IK Motion for Leave to File
1'. Petition for Writ of
The Hon. Harry VIC. I’ratt. ‘ Mandamus.
Judge. lite.

[January —. 19.30]!

Memorandum of Mn. .Il‘H'I‘ICl‘Z III-LILY).

The Government in No. 262 Miso. Hyun- \'. Pratt,
Distrid Judge. -llas/ca, (‘t (11., has filed a motion for leave
to file a petition for writ of mandamus petition for writ
of mandamus. and brief in support thereof. Inasmuch
as the case that gave rise, to this motion. Hyues v. Grinu N
Par/ring ('o.. 337 l'. S. St}. was written by me, I thought-
a statement as to my eonsideration of the requested
mandamus might be useful.

It, will be recalled that we deeided two questions in the
Ilynes case: (1) That an Indian reservation had been
properly ereated by the Secretary of the Interior and in—
eluded not only land on Kodiak Island. but also a de—
scribed area of water. extremely valuable as a fishery;
and (‘2) that a partieular regulation of the Secretary of
the Interior under the White Act was invalid. This reg—
ulation marked the water area of the reservation as a
preserve, and prohibited eommereial fishing in the wa—
ters. We held that it violated a provision of the White
-\et heeause it exeepted from the prohibition a particular
elass. the natives and their licensees. and we determined
that the entire regulation t'ell with the exception.


 ‘262 AllSC‘.w~—':\IEA\IO.


Our opinion concluded as follows (1). 120‘):

“This is an equitable proceeding in which the re,—
spondcnts seek protection against unlawful action
by petitioner, the Regional Director of the Fish and
Wildlife Service of the Department of the Interior.
The interests of respondents, the lndians of Karlnl:
leservation, and the efforts of the Department of
the Interior to administer its responsibilities fairly
to fishermen and Indians are involved. These are
questions of public policy which equity is alert to
protect. This Court is far removed from the locality
and cannot have the understanding of the practical
difficulties involved in the conflicts of interest that. is;
possessed by the District Court. Therefore we think
it appropriate for us to refrain from now entering a
final order disposing definitely of the controversy.
With our conclusion on the law as to the establish—
ment of the reservation and the invalidity of the regu—
lation before them. the Department and the parties
should have a reasonable time. subject to the action
of the District Court on the new proposals, to adjust
their affairs so as to comply with our determinations.

“We therefore vacate the decrees of the District
(‘ourt and the Court of Appeals and remand this pro—
ceeding to the District (,‘ourt with directions to allow
thirty days from the issuance of our mandate for
the Secretary of the Interior to give consideration
to the eti‘ect of our decision. l'nless steps are taken
in this procewling the District (hurt. on the, expira—
tion of thirty days. shall enter a decree enjoining the
defendant Hynes and all acting in concert with him,
substantially as ordered in the permanent injunction
entered November ti. 1946. lf timely steps are,
taken. the District (‘ourt will. of course, be free to
enter such orders as it may deem proper and not in—


 202 Misc.——MEMO.

consistent with the present decision. Pending the
entry of further orders by the District Court, the
preliminary injunction entered July 18, 1946, shall
apply to protect the rights of the respondents.”

On the first day of July, 1949, the mandate in Hyncs v.
Grimes Packing Co. issued from this Court. It vacated
the judgments of the District Court and the Court of
Appeals, and it. concluded:

“And it is further ordered, That this cause he, and
the same is hereby. remanded to the District Court
for the Territory of Alaska with directions and for
proceedings in conformity with the opinion of this
(‘ourt [of May 31. 1949!.

“You. therefore, are hereby commanded that such
proceedings be had in said cause, in conformity with
the opinion and judgment of this Court, as according
to right and justice. and the laws of the United
States. ought to be had, the said writ of certiorari

After our decision the Secretary deleted the ofl'ending
regulation. (Motion. p. .3.) He also attempted to make
an arrangement. with the packing companies providing
for fishing.r rights in the reservation waters. This attempt
failed. Within the thirty days allowed by our opinion,
the council of the Native Village of Karluk issued an
amended ordinance (Motion. p. 29) which in substance
put the right to fish in the reservation waters on a license
basis. The fees were designed purportedly to pay no
more than the costs of policing the area to prevent the
abuse of fishing rights. Any resident of Alaska could
get a license if he paid a fee of $2; any nonresident if
he paid 353 Sec Haat‘i/g v. iillas/L‘ai Parr/((125 4.3311,, 263
l'. S. .310. The proposed permit contained a provision
that it was revocable in the discretion of the council


 202 Misc—MEMO.

(Motion. 1). 28). It was provided that anyone violating
the ordinance. e. (1., fishing without a. permit. could be
treated as a trespasser and removed from the reservation.
Anyone \vhose permit was revoked would be “ineligible
in the future to obtain a permit." (Motion. p. 29.)

Prior to the expiration of the thirty days: specified
in the last paragraph of our opinion. the Government
moved in the District Court for an order dismissing the
action on the ground that the deletion of the regulation
made unnecessary the injunctive relief that had been
sought. In its amended form. the motion also asked for
a dissolution of the temporary and permanent injunctions
entered by the trial court in the first stages of the, case,
(p. 38). The packers then countered with a, motion for
a decree enjoining llynes “in accordance with the terms
of the permanent injunction." So far as app ftII‘S no one,
directed the attention of the District Court to the ordi-
nance of the Village of Karluk which had been passed
subsequent to our decision and prior to the motion of
the I'nited States.

The district judge on September 10 entered a judgment
declaring “that no steps were. taken: in this proceeding
in accordance with the decision of the Supreme Court
and the mandate entered thereon and that the only action
taken by the defendant above named “as to file a. motion
for an order of dismissal. which said motion has llCl'ClO-
fore on this date been denied.” (Motion. p. 30.) He
then ordered

“that a permanent injunction . . . is hereby granted
enjoining the defendant l’rank llynes. Regional l')i-
rector of the Fish and Wildlife Service. Department
of the Interior. his agents. servants. employees. at—
torneys. and all other persons in active concert and
particijmtitni with him from enforcing or attempt—
ing to enforce. or seizing any boats, . . . by way
of enforcing. the restrictive provisions of Section


 262 Mis('.~—.\ll:.\10.

any other regulations of like or substantially like
import. which may hereafter he promulgated or at—
tempted to he promulgated liy the Department of
the Interior of the l‘nited States of America througl
its Fish and Wildlife Service or otherwise." (Mt,—
tion. pp. 30—40.)

Two questions arise on this motion for mandamus:
(I) Did the judgment ot‘ the District (hurt. including
the injunctions set- forth above. comply with our man—
date'.’ (ll) ls mandamus a proper method for deciding
that question. or should the (fiovernment have to proceed
liy appeal‘.J

208.23 tr) of the . . . Fisheries . . . Regulations or


lt is clear that, on a mandate carrying reversal in some
particular. the court receiving the mandate cannot “vary
it, or examine, it. for any other purpose than execution
or give any other or further relief or review it even for
apparent error upon any matter decided on appeal; or
intermeddle with it further than to settle so much as
has l)(‘(‘ll remanded.” In re Sanford/70145 d" Tool ('o.,
ltlt) l'. S. 247. 12.37): In re Louisville. 231 1'. S. 63$). (543.
(34.3: l’l/ilntlt‘l/inia ("1). v. N. Louis. 240 l'. H. 134. 1433,
H4: see Dun/op v. Hepburn. 3 Wheat. 231. Our man—
date ot' vacation restored to the District (‘ourt power
to act “it" timely steps are taken.” 337 l'. S. 127. lti
necessarily permitted the District (‘ourt to determine
whether steps were taken. As to matters upon which

the trial court was left free to act. it- might act in its own
discretion. In I'(' Sanford. sup/“n. 2-30: t'niled Sta/(s v.
'l't'rminn/ If. ('t).. Zilti l'. S. 1H4. fill]. 203: ('ni/ed States-
\'. .l/(‘liison. 7'. d" 5'. I". 11’. ('n.. 154 ll. 5. (337.

t.\) The Meaning of the Original l’ermanent Injunc—

In our opinion we said that uttless steps were taken
in thirty days the District ('ourt was to enter a decree


 262 .\Iis(‘.i.\IEA\IO.

enjoining llynes and those acting on concert with him
“substantially as ordered in the permanent injunction
entered November 6. 1940fr To determine whether the
most recent. action of the District (‘ourt complied with
our mandate. we must examine what we, thought tlze
permanent injunetion ordered.

The pertinent portion of the in‘iunetion reads:

“It Is Ilerebv ()rdered That a permanent injurie-
tion be, and the same is hereby. granted. enjoiningr
the defendant. Frank lIvnes. Regional Director of
the Fish and Wild Life Service. Department of the
Interior. his agents. servants. employees. attorneys.
and all other persons in aetive eoneert and partiei-
pation with him from enforeingi' or attempting to en—
force the restrietive provisions of Seetion 208.2? ll")
of the Alaska Fisheries (leneral Jwe'tilations and from

seizing anv boats. seines. nets. or other gear and

applianee used or employed in fishing by the plain—
tiffs in the waters in and adjaeent to the Karlul;
Indian Reservation situated on Kodiak Island.
Alaska. three thousand feet siaward from the shore
at mean low tide or any fish taken therewith. or
from arresting: any of plaintiffs fishermen who earrj.‘
on fishing operations in said waters."
The addition of the words “under that Regulation" at
the end of the quoted seetion would have made its mean-
ing less equivoeal. but the allegations and the findings
would indieate that the injunetion properly is to be read
as a prohibition of seizure and arrest under the White
.\et rather than a prohibition of sanetions whieh might
be imposed under some other power to proteet the

The paekers asked in their original petition for orders
deereeing void not only §2tl,\‘.‘_‘3 (rt of the Alaska I"l.‘i|-

eries tleneral Regulations. but also I‘ublie Land ()rder


 2(32 .\Its<‘.~.\lli.\l0.

No. 128. which made the water of the Karluk Fishery
part of a reservation. In their prayer for an injunction.
however. the paekers asked only that llynes he enjoined
from doing anything to earry out. the provisions of the,
regulation. (1’. 14. ()rig. ’teeord.) They did not ask
that. llynes he enjoined from attempting to stop packer
fishing through the exereise of any authority he might)
have apart from the White .\et to protect a validly ere—
ated reservation whieh ineluded the fishery.

To justify the requested injunetion the paelt'ers al-
leged threats hy llvnes to seize the eateh and the hoats:
“ineluded within the purported Karluk Indian Reserva-
tion hy l’uhlie Land Order No. 128.“ The reservatitm
and the regulation eovered the same. waters. All the
threats that appear. however. are threats to enforee the
White Aet regulation with White _\et sanetions as ex—
pressed in phrases like "defendant's threatened aetion in
utilizing the enforeetnent powers. partieularly the seizure
powers. tutder said White .\et." ttlrig. ll. p. 123.) There
was no allegation of a threat hv llvnes to interfere with
paeker fishing in any way other than under the regulation.

The statement in our opinion (33? I”. F. at ttti) that
the paekers sought an injunetion “on the ground that
neither regulation §2tl823 (r) nor l’uhlie Land Order No.
1128’ legally elosed the fishery of the eeastal waters" to the
paekers is eorreet. The inunediate attack of the pat-hers
was two-told: they wanted hoth the regulations and the
land order held invalid. The llt‘ptlt'tttlt‘ttt of the ln-
terior had relied in part on what it asserted to he a

validly created reservation to sustain its power to Hake
a regulation eontaining an exeeption for the lndians and
their lieensees. Thus. even if the regulation eould not.
he invalidated direetlv. the paelters thought they inight’
upset it hv pulling out from heneath it the prop of the
land order. The Distriet (‘ourt agreed with the paekers
on hoth eounts. when it held hoth the regulations and the


 :2ti2 Mme—MEMO.

land order invalid. But just as there had been no allega—
tion of a, threat hv llynes to do anything other than
under the regulation. the District (‘ottrt made no finding
of any other threat. The injunction must have meant.
to restrain only the enforcement of a White Act, regula-
tion. Without. an allegation of a threat by Hynes to
interfere liv virttte of power over reservation waters. the
trial court. cottld not have properly enjoined llynes from
such action.

(ll) The Meaning of ottr Mandate.

We wottld not have authorized the entry of an injunc—

tiott containing terms “substantially as ordered iii the

permanent injunction” it we ltad construed the perma-
nent injunction to do more thatt enjoitt entorcetnent,
under a White Act regulation. When the case came to
Its we decided tltat the District (‘ottrt was right when it.
held that this kind of regttlation could not be promulgated

tntder the White Act. but wt also held that the District
(‘otn't was wrong when it said that a valid reservation.
including surrounding waters. had not been created. We
said that ”no injunction