Western Pac. R. Corp. v. Western Pac. R. Co. Metzger v. Western Pac. R. Co.

(dissenting).

Since any action taken by the division is, under this order, “to he in conformity with this court’s Rule 23, as amended,” this means that if the division is of the same opinion it was before then the case is at an end. When the various petitions presently remaining undisposed of were filed, amended Rule 23 was not in effect. Normally such a rule should operate prospectively, and upon future petitions only. To apply such procedure retrospectively in the circumstances of this case would in my opinion be an abdication of the duty which this court owes to these litigants.

I think our duty is a very simple one. It is solely to do the best we can. By that I mean that it is the duty of this court, as now constituted, to spare no effort to bring this important litigation to a right conclusion. We have here a case involving an apparently novel point of law. To date the judges who have considered its merits are equally divided as to who should win. Mr. Justice Jackson and Judge Fee think the plaintiff should prevail. Judge Healy and Judge Byrne think otherwise. There remain six judges of this court whose power to break this tie is clear. The question is, is it our duty to do…

On or about January 3, 1951, a division of this court consisting of Circuit Judge Healy and District Judges Fee and Byrne-was designated and assigned to hear and decide this case. For that purpose, the division constituted the court. The division heard the case on February 28, 1951, and decided it on October 29, 1951.

On December 17, 1951, three of the parties (Meredith H. Metzger, Henry Offer-man and J. S. Farlee & Company) filed a petition for a rehearing and a rehearing en banc. On December 18, 1951, two of the parties (Western Pacific Railroad Corporation and Alexis I. du P. Bayard) filed a petition for a rehearing and a rehearing en banc. On January 30, 1952, the division made and entered an order denying the peti-' tions of December 17, 1951, and December 18, 1951, for a rehearing and striking them in so far as they sought a rehearing en banc.

On March 10, 1952, Western Pacific Railroad Corporation and Bayard filed a petition for leave to file a motion (1) to vacate the order of January 30, 1952, and (2) to reinstate the petition of December 18, 1951. The division requested that the petition of March 10, 1952, be considered and acted upon by the court en banc. The…

(concurring).

In concurring with this order in which, th ; Court of Appeals en banc divests itself of its jurisdiction of this appeal, it should be mad; clear that the question of a rehearing e 1 banc is to be considered de novo by the division consisting of Judges Healy, Byrne an I Fee. That that division has not yet considered the merits of the motion for such a rehearing en banc appears from that division’s refusal to consider that motion in the following language:

This de'novo consideration may lead' to the conviction that, while it'is useless fer the same three judgqs themselves to rehear the case, nevertheless the case is of suci significance that it deserves the attention of the court en banc. This appears from the following language of the Supreme Court’s decision 73 S.Ct. 656 , at page 664:

It should also be clear to the division tha t the court en banc ha§ returned the case t> the division without passing on or expressing any opinion on whether the following factors in the case are or are not sufficient to warrant a rehearing en banc. These factors are:

(a) That the case is described by the Supreme Court as “difficult and complicated litigation”, 73 S.Ct. at page 666…

205 F.2d 374 WESTERN PAC. R. CORP. et al. v. WESTERN PAC. R. CO. et al. METZGER et al. v. WESTERN PAC. R. CO. et al. No. 12506. United States Court of Appeals Ninth Circuit. June 12, 1953. Herman Phleger, Moses Lasky, Brobeck, Phleger & Harrison, San Francisco, Cal., Frank C. Nicodemus, Jr., Norris Darrell and Mahlon Dickerson, New York City, Le Roy R. Goodrich, Oakland, Cal., for appellant Western Pac. R. Corp. Herman Phleger, Moses Lasky, Brobeck, Phleger & Harrison, San Francisco, Cal., for appellant du P. Bayard, Receiver. Julius Levy, Webster V. Clark, Rogers & Clark, San Francisco, Cal., Pomerantz, Levy, Schreiber & Haudek, New York City, David Freidenrich, San Francisco, Cal., for appellants Metzger and others. Allan P. Matthew, James D. Adams, Robert L. Lipman, Burnham Enersen, Walker, Lowry, McCutchen, Thomas, Matthew, Griffiths & Greene, San Francisco, Cal., for appellee Western Pac. R. Co. and others. Everett A. Mathews, Pillsbury, Madison & Sutro, San Francisco, Cal., A. Donald MacKinnon, Milbank, Tweed, Hope & Hadley, Forbes D. Shaw, Whitman, Ransom, Coulson & Goetz, New York City, for appellee Western Realty Co. Before DENMAN, Chief…