Alexander

Judges Denman,'Stephens and Orr think that the judgments in these cases should be reversed. Judges Mathews, Healy and Bone think that the judgments should be affirmed. The judgments are, therefore, affirmed by an equally divided court.

(dissenting).

This is a case in which the constitutional questions are of such importance that the court, sua sponte, ordered that it be heard in banc. When heard a vacancy existed, and the court was composed of six judges. By an even division of view of the six judges, there is. an affirmance.

Now at the time of decision the vacancy has been filled, and this is a court of seven judges. Though .of such importance that the appeal required a hearing before six judges, and though the result is such a judicial futility, the court nevertheless refuses to have a decision on the merits by a hearing before seven judges.

I dissent from the court’s refusal to set aside its submission and order a rehearing td the end that the important issues before it be decided on the merits of the contentions urged by the litigants. My views, in such a situation, of the court’s obligations to its litigants and the law of the circuit will be more fully expressed in an opinion to follow.

March 21, 1949.

This is (A) a. dissent from the failure to set aside our submission and order a rehearing in banc of seven judges, and (B) a full statement of my reaspns for a reversal of the district court, which the…