text:
The Power of the Dog: A Novelby Thomas Savage, Annie Proulx
First published in 1967, Thomas Savage's western novel about two brothers and the competition between them when one marries now includes an afterword by Annie Proulx.
Editorial Reviews
Product Details
- 9780316082709
- Publisher:
- Little, Brown and Company
- Publication date:
- 09/26/2009
- Sold by:
- Hachette Digital, Inc.
- Format:
- NOOK Book
- Pages:
- 304
- Sales rank:
- 225,735
- File size:
Read an Excerpt
Phil always did the castrating; first he sliced off the cup of the scrotum and tossed it aside; next he forced down first one and then the other testicle, slit the rainbow membrane that enclosed it, tore it out, and tossed it into the fire where the branding irons glowed. There was surprisingly little blood. In a few moments the testicles exploded like huge popcorn. Some men, it was said, ate them with a little salt and pepper. "Mountain oysters," Phil called them with that sly grin of his, and suggested to young ranch hands that if they were fooling around with the girls they'd do well to eat them, themselves.
Phil's brother George, who did the roping, blushed at the suggestion, especially since it was made before the hired men. George was a stocky, humorless, decent man, and Phil liked to get his goat. Lord, how Phil did like to get people's goats!
No one wore gloves for such delicate jobs as castrating, but they wore gloves for almost all other jobs to protect their hands against rope burns, splinters, cuts, blisters. They wore gloves roping, fencing, branding, pitching hay out to cattle, even simply riding, running horses or trailing cattle. All of them, that is, except Phil. He ignored blisters, cuts and splinters and scorned those who wore gloves to protect themselves. His hands were dry, powerful, lean.
The ranch hands and cowboys wore horsehide gloves ordered out of the catalogues of Sears, Roebuck and Montgomery Ward-Sears and Sawbuck and Monkey Ward, as Phil named those houses. After work or on Sundays when the bunkhouse was steamy with the water for washing clothes or shaving, fragrant with the odor of bay rum on those about to go into town, they would struggle with their order blanks, hunched over like huge children, biting the end of the pencil, frowning at their crabbed handwriting, puzzling over the shipping weight and the location of their postal zone. Often they gave up the struggle, sighed and turned the job over to one more familiar with writing and numbers, some one among them who had got as far as high school, one who sometimes wrote letters for them to fathers and mothers and remembered sisters.
But how marvelous to get the order into the mails, how delicious and terrible to wait for the parcel from Seattle or Portland that might include with the new gloves, new shoes for town, phonograph records, a musical instrument to charm away the loneliness of winter evenings when the winds howled like wolves down from the mountain peaks.
Our very best guitar. Play Spanish-style music and chords. Wide ebony fingerboard, fine resonant fan-ribbed natural spruce top, rosewood sides and back, genuine horn bindings. This is a real Beauty.
Waiting for their order to get to the post office fifteen miles down the road, they read again and again such descriptions, reliving the filling out of the order blank, honing their anticipation. Genuine horn bindings!
"Well, you fellows looking over the old Wish Book?" Phil would ask, standing by the stove and stamping the snow off his feet. He would look out into the room, spraddle-legged, his bare hands clasped behind him. Over the years a few of the young men tried to imitate his habit of going bare-handed, maybe seeking his approving smile or nod, but their imitations went unnoticed and at last they took up their gloves again. "Looking over the old Wish Book?"
"Sure thing, Phil," they'd say, proud to call him by his first name, but closing the catalogue under cover of conversation that he might not see them lusting after the pert women who modeled corsets and underwear. How they admired his detachment! Half-owner of the biggest ranch in the valley, he could afford any damned thing he wanted, any automobile, Lozier or Pierce-Arrow, say, but he desired no car. His brother George had once expressed a wish to buy a Pierce, and Phil had said, "Want to look like some Jew?" And that was the end of it. No, Phil didn't drive. His saddle, hanging by a stirrup from a peg in the big long log barn, was a good twenty years old; his spurs were of good plain steel-no fancy silver inlays, not such spurs as crowded the dreams of others; he wore plain shoes instead of boots, scorned the trimmings and trappings of the cowboy, although in his younger days he was as good a rider as any of them, a better roper than George. With all his money and family, he was just folks, dressed like any hired hand in overalls and blue chambray shirt; three times a year George drove him into Herndon for a haircut; he sat in the front seat of the old Reo stiff as an Indian in his stiff town suit, his imperious nose hawklike under the slate-gray fedora, his jaw jutting. So he sat in Whitey Judd's barber chair, his long, thin, weathered hands motionless on the cool arms of the chair while his accumulated hair fell in piles to the white-tiled floor around him.
A drummer, a natty dresser with a flashing stickpin, had once chuckled and questioned Whitey.
"Wouldn't laugh, if I was you, mister," Whitey remarked. "He could buy and sell you fifty times over, or anybody else in the valley except his brother. I'm proud to have him sit in my chair, mighty proud." Snip, snip, snip.
"Him and his brother are partners."
Just so they were, and more than partners, more than brothers. They rode together at roundup time, talked together as if they'd met for the first time, talked of the old days in high school and at a California university where George, as a matter of fact, had flunked out the same year that Phil was graduated. Phil recalled tricks he'd played on other students, friends they'd had-high jinks. Phil had been the bright one, George the plodder.
It was something of a joint decision when they sold their steers each fall or bought a Morgan stud to improve the saddle stock. Each year Phil looked forward to hunting in October when the willows along the creeks had turned a rusty red and the haze from distant forest fires hung like veils over the mountain peaks. You saw the two of them with their packhorses riding across the flats toward the mountains, Phil with his stubby carbine, or with his thirty-caliber. It was not unusual to see such a relationship between brothers, Phil tall and angular, staring with his day-blue eyes into the distance, then at the ground close by; George stocky and imperturbable, jogging along on a stocky and imperturbable bay horse. They made wagers -who would sight and shoot the first elk? How Phil did relish a meal of elk liver! At night they made camp below timberline and sat cross-legged before the fire talking of the old days and of plans for a new barn that never materialized because that would mean tearing down the old one; they unrolled their beds side by side and together listened in the dark to the song of a tiny stream, no wider than a man's stride, the very source of the Missouri River. They slept, and woke to find hoarfrost.
So it had been for years, Phil now just forty. So too they slept in the room they had as boys, in the very brass beds, rattling around now in the big log house since those Phil referred to as the Old Folks had taken off to spend their autumn years in a suite of rooms in the best hotel in Salt Lake City. There the Old Gent dabbled in the stock market and the Old Lady played mah-jongg and dressed for dinner as she always had. Closed off, the Old Folks' bedroom gathered dust kicked up by the automobiles-more and more of them every day-that putt-putted up the road out front. In that room the air grew stale, the Old Lady's geraniums died, the black marble clock stopped.
The brothers kept Mrs. Lewis, the cook, who lived in a cabin out back, and she found time to clean the house after a fashion, complaining at every movement of the broom. Gone now was the girl, last of a series, who had waited table and slept upstairs in a tiny room. Her presence might have looked strange in a bachelor establishment, but still the brothers comported themselves with almost shocking modesty as if women still stalked the house. George bathed once a week, entering the bathroom fully clothed, locking the door behind him; silently he bathed, with small splashing and no song; fully clothed he emerged, but followed by the telltale steam. Phil never used the tub, for he did not like it known he bathed. Instead, he bathed once a month in a deep hole in the creek known only to George and to him and, once, one other. He looked around before he went there, should there be prying eyes, and he dried himself in the sun, for carrying a towel would have cried out his purpose. In the fall and spring he had sometimes to break a crust of ice. In the winter months he didn't bathe. Never had the brothers appeared naked before each other; before they undressed at night they snapped off the electric lights -the first in the valley.
Nowadays they ate their breakfast with the hired men in the back dining room, but took their dinner and supper as before in the front dining room off white linen, and the tools they used were sterling. It is not easy or desirable to slough off old habits, or to forget who you are, a Burbank with the best connections in Boston, back East in Massachusetts.
It sometimes worried Phil that George got a far-off look, rocking in his chair, for George's eyes would suddenly stare out across to the mountain called Old Tom thirty miles away and twelve thousand feet, a beloved mountain, and George would rock and rock and rock, looking across the flat.
"What's the matter, old-timer?" Phil would ask. "Old mind wandering again?"
"What's that?"
"I say, your mind wandering again?"
"No, no." George would slowly cross his heavy legs.
"How about a little cribbage?" They had kept careful score over the years.
To Phil, George's trouble was that he didn't engage his mind. George was no great reader, like Phil. To George, the Saturday Evening Post was the limit; like a child, George was moved by stories of animals and nature. Phil read Asia, Mentor, Scientific American and books of travel and philosophy the fancy relatives back East sent by the dozen at Christmastime. His was a keen, sharp, inquiring mind-an engaged mind-that confounded cattle-buyers and salesmen who supposed that one who dressed as Phil dressed, who talked as Phil talked, must be simple and illiterate, one with such hair and such hands. But his habits and appearance required strangers to alter their conception of an aristocrat to one who can afford to be himself.
George had no hobbies, no lively interests. Phil worked in wood. He constructed the derricks that stacked the wild hay-timothy, redtop and clover-hewing out the huge beams with adze and plane. With those clever naked hands he carved those tiny chairs no higher than an inch in Sheraton or the style of Adam; his fingers moved like spiders' legs, paused briefly sometimes as if to think, for Phil's fingers had a private intelligence lodged, perhaps, in their padded tips. Seldom did his knife slip, and if it did, he scorned the iodine or Phenol-Sodique, two of the few medicines in the house, for as a family the Burbanks did not believe in medicine. His little wounds healed rapidly once he had wiped them with the blue bandanna he stuffed in a rear pocket.
Some who knew Phil said, "What a waste!" For ranching was no demanding or challenging occupation, once you had the ranch, and required brawn but little brain. Phil, people marveled, might have been anything-doctor, teacher, artisan, artist. He had shot, skinned and stuffed a lynx with skill that would have abashed a taxidermist. Easily he solved the mathematical puzzles in the Scientific American; his pencil flew. From the pages of the encyclopedia he taught himself chess, and often passed an hour solving the problems in the Boston Evening Transcript that arrived two weeks late. At the forge in the black smith shop he designed and hammered out intricate pieces of ornamental iron, firedogs, pokers shaped like swords and tridents; he wished he could have shared his gifts with George, who never caught fire, seldom even smoked, so to speak, who looked forward no longer even to the trips he made to Herndon in the Reo for the bank directors' meetings and lunch later at the Sugar Bowl Cafe.
"How about teaching you chess, Fatso?" Phil once asked, looking ahead to evenings before the fireplace. The name Fatso got George's goat.
"No, I don't think so, Phil."
"Why not, Fatso? Think it'd be a little tough for you?"
"I never was much of a one for games."
"You used to play cribbage. Pinochle, sometimes?"
"That's right, I did, didn't I?" And George would pick up the Saturday Evening Post and lose himself in some cheap fantasy.
Phil was a whistler, and a good one, his tone accurate as a flute's; he would whistle a merry tune and go into the bedroom and get out his banjo and pick away at "Red Wing" or "Hot Time in the Old Town." He had taught himself to play and it was fine to see those fingers leaping on the strings. Once it was not unusual, when he played, for George to pad quietly into the room and lie on the other brass bed and listen. But not lately.
Lately after a tune or two, Phil would get up from the edge of the bed where he sat playing, stand straight, put away the banjo and walk the path through the rustling ryegrass to the bunkhouse.
"Well, fellows," he would say, blinking his eyes against the white glare of the gas lamp.
Once one of the hired hands always rose to give him a chair, some cast-off chair from the Big House.
"Hey-don't bother," Phil always said, but someone always did bother-and fruitlessly, for Phil would accept neither chair nor gift from anybody. His visitations interrupted some discussion of whores, politics, horses or love and caused a silence that lasted until the clunk! of a length of firewood shifting in the stove emphasized that silence, and some man, terrified of silence, felt bound to speak.
"What you think of this Coolidge?" a man might ask, for eventually the Transcript found its way to the bunkhouse where it was used as waste and tinder, but only incidentally to read.
Then Phil would frown and roll a perfect cigarette with one hand. He knew the value of the pointed silence. "Well, I'll say one thing for him." Lighting the cigarette. "He's got the gumption to keep his trap shut." And Phil would laugh, and there would be a halting conversation, perhaps of Coolidge. Then maybe one of the younger fellows, hoping to flatter, would ask advice about ordering a saddle. Did Phil think a center-fire or a three-quarter rig the better? Was the Visalia saddle all it was cracked up to be?
At last Phil would look a little wistful. "Well, I guess you fellows must want to roll in."
"Oh, hell no, Phil." And there would follow more talk, perhaps of the work the next day, the overhauling of the mowing machines if the time was spring, the whereabouts of a bunch of wild horses, or Phil might tell an anecdote of Bronco Henry, that best of riders, that best of cowboys, who had taught Phil the art of braiding rawhide. Recently, having finished telling the fellows a story, Phil looked suddenly out the window over the top of the whispering ryegrass to the lighted bedroom window of the Big House. As he watched, the window went suddenly dark. George had not waited up!
"Well, fellows," he said with a sad grin, "got to hit the hay."
When he had gone, one of the new loudmouthed young cowhands spoke right up. "Hey-he's sort of a lonely cuss, ain't he? Like about what we was saying before he come in, do you guess anybody ever loved him? Or maybe he ever loved anybody?" The oldest man in the bunkhouse stared at the young fellow. What the young fellow had said was unsuitable, even ugly. What had love to do with Phil? The oldest man in the bunkhouse reached down and patted the head of a little brown bitch that slept close. "I wouldn't want to be saying nothing about him and love. And if I was you, I wouldn't call him a cuss. It don't show respect."
"Well, hell," the young fellow said, blushing.
"You got to learn to show respect. You got an awful lot to learn about love."
In the fall the brothers with their hired hands trailed a thousand head of steers twenty-five miles down the road to the stockyards in the tiny settlement of Beech. Unless the weather was miserable, the rain beating out of the north, the sleet cutting the face or the cold hindering the circulation of the blood, the event had something of the quality of an outing, or picnic; the young fellows thought of the lunches Mrs. Lewis the cook had put up to be eaten at noon when the shadows hid under the sagebrush; they thought of the saloon across the highway from the yards and of the rooms over the saloon where the whores lived.
When the sun rose red and the frost fled from the surface of the short, dry grass, the herd was already lined out over the length of a half mile; caught under the bewitching spell of the dark and that holy quality of the dawn that turns men in upon themselves, the cowhands were silent and the brothers were silent, listening to the step-step-step Of the cattle and the crackling sound of sagebrush crushed under cloven hoofs; squeak-squeak-squeak of saddle leather and the ringing of German silver bit chains. The new sun rising above the eastern hills showed a world so vast and hostile to individual hope that the young cowhands clung to memories of home, kitchen stoves, mothers' voices, the cloakroom at school and the cries of children let out at recess. Raising their chins, they fixed their eyes now on an abandoned log shack, opened to the weather, where stray horses in summer sought a little shade, where years before a man like them had failed; where the road wandered near a barbed wire fence, a rusty sign peppered with bullet holes urged them to chew a brand of tobacco that no longer existed; ahead, hunched over the pommel of his saddle, rode the oldest man in the bunkhouse, gray, lined of face, one who like them must have once dreamed of a little place, a few acres, a homestead, a few cattle, a green meadow, a woman to be a wife; God knew, maybe a child.
Then the sun loomed higher out of the hills and the new warmth nourished their hopes and they talked, laughed, joked; their plans would materialize; when they got to be old like that fellow up there hunched over his saddle, they would have a little place. They would have their money; they would make plans. In the meantime the nose of their horse was pointed toward the stockyards, to the saloon, to the women upstairs.
The brothers, too, had been silent in the darkness, known to each other only by their shapes, the lean one and the stocky one-by their shapes and the long familiar squeak of the other's saddle. So, thought Phil comfortably, they had always been silent at the beginning of a drive, thoughts turned inward upon the past, and the silence now told him that the past had not changed, not changed much. Yes, he did resent the stage, the dark green Stearns-Knight that nowadays blatted its way headlong through the herd of cattle-much too fast, if you asked Phil. Once the driver had dared sound his horn, and the noise had so frightened the cattle that Phil rode right over to the creeping car and, towering up there on his sorrel horse, he gave the driver a good piece of his mind. You should have seen the passengers in the back seat make themselves small!
"God damn scissorbills," he growled. "George, did you hear that son of a bitch honk his horn. Dear good Jesus, they don't give a good hot damn how much weight they run off your stock. Like to see every damn car blowed up."
But George, loyal to the Reo (as he was loyal to all he owned), looked ahead over the backs of the cattle. "Hell," he said. "Oh hell, Phil, man's got to go with the times."
"The times!" Phil said, and spit. Ten years before there was a proper stage with a real man there on the box, handling the reins, fine four-horse rig. "What was the driver's name, Fatso?" Phil asked George. He seldom forgot a name, but here was a way to launch into the new morning's conversation.
"Harmon," George said.
"By God, you're right." That got them back into the past, to when they were kids, got them back to where they could reminisce about Bronco Henry, back to the time of the last stinking Indians before the government got onto itself for a change and shipped them off to the reservation. Phil recalled to this day the swaybacked old horses the Indians rode away on, the rickety old buggies the old Indians piled themselves into. All one week the Indians had straggled past the ranchhouse on their way down to the reservation in southern Idaho, stirring up the dust and making the ranch dogs bark. Only the chief was not with them, that shifty old character. He had died.
Phil liked to recall to George the many times while trailing cattle down that his sharp eyes had fixed on Indian arrowheads which he picked up and added to his remarkable collection He couldn't recall that George had ever found an arrowhead. Phil grinned to himself. How could he? For George always looked straight ahead, as he did now, over the dusty backs of the cattle.
Now exactly, Phil wondered, where should he begin the day's conversation? So special a day, this day. Should he begin with Bronco Henry? Or with an incident of last year- the car, trying to get through the river of cattle, that ran off the side into a ditch? Two women and a man, all in knickerbockers, damnedest thing you ever saw, and then there they gauped at the car tipped almost on its side, them just looking Phil had been glad that George was in the lead of the herd, for George would have hooked onto the car with his rope and pulled them out, and they wouldn't have learned their lesson.
Or begin this morning with the most important fact, that this was the twenty-fifth year they had been together driving cattle? Twenty-five years! How proud they had felt that time, and how old! To Phil there was some kind of stuff in the fact that they made the first round trip in the nice round year of nineteen hundred, nineteen hundred and naught. Jesus! Jesus! Bronco Henry wasn't older then than he and George were now-not much older, to tell the truth, than the young fellows with them today, dressed up in their fancy duds. They didn't know who the hell they were any more, the young fellows-cowhands or moving picture people. Phil had never seen a moving picture and by God never would, but these young fellows had magazines about the moving pictures in the bunkhouse, and a fellow name of W.S. Hart had got to be sort of their God. Look how they creased their hats now, look at the silk bandannas they knotted around their necks, and the fancy chaps! He'd heard that one of them had sent away for made-to-order boots with fancy inlays-spent a month's pay on some damn thing to put on his feet. And then wondered why they ended up on the county! Well, Phil mused, there you were. The more ignorant people were, the more they felt they had to decorate their backs.
George had sort of moseyed over to the right, and now Phil moved diagonally through the plodding cattle, humming soothingly so they wouldn't get their dander up. "Well, Georgie boy," he grinned, "I guess this is it."
For brothers, they rode differently, sat so differently on their saddle horses, the one slouching easily, the reins loose in his naked hands; the other straight, rigid in the saddle, gut pulled in, looking straight ahead. "It?" George asked, turning his head. "What's it, Phil?"
"What's it? What's it, Fatso boy? Today is twenty-five years. Nineteen hundred and nothing. Nineteen naught, naught. Recall that?"
"Fact is, I forgot," George said.
Now, how could he have forgot, Phil wondered. What had he thought about all year? "Twenty-five years. Sort of makes it sort of a silver anniversary, or whatever," Phil said, "don't it?" In jocular or angry moods, Phil used bad grammer to point up his words.
"Long time ago," George remarked.
"Well," Phil said, "not too God damned long." He had not mentioned the matter to emphasize how long it had been since they were kids. Phil himself didn't feel a year older than when he was twelve and George ten-only one hell of a lot smarter. 'But I'll tell you one thing, George, we had some great old times."
"I guess we did at that." George reached in his shirt pocket for his Bull Durham sack; he looped both reins around the saddle horn, removed his gloves and rolled a cigarette; he rolled a thick, funnel-shaped cigarette.
Phil looked at it and snorted. Damned if he was going to carry the whole burden of the anniversary conversation. What ailed George? Gut hurting him? Swell fellow to camp with this fall! Been funny all summer. "Say, Fatso," he remarked. "You never did learn to roll a smoke with one hand." And with that, Phil rode abruptly through the herd to talk to the young fellows, moving his lips as he prepared to tell them of how Bronco Henry, sick with fever, had made one of the prettiest rides a fellow ever saw-at age forty-eight. God damn it-sometimes he longed to tell the whole story. One reason he hated booze, he was afraid of it, afraid of what he might tell.
Now a small gray bird whirred out of the brush. Phil's sorrel shied and stumbled. Phil felt a sudden fury, and anguish like nausea. "God damned old fool!" he cried, yanking up the sorrel's head, giving him a good sharp jab with the spurs. Twenty-five years since he'd ridden side by side with Bronco Henry.
Now the sun was high, the shadows shortened, the hours ahead were hot and long. Yes, and so were the years long, Phil thought, and the shadows they cast.
If the wind was right and your nose was keen, you might smell the stockyards at Beech long before you saw them; they lay close to the river that was almost dry this time of year, shrunk away from its banks and so placid the surface reflected the arching and empty sky, sometimes the magpies that flapped across, searching out carrion, gophers and rabbits dead of tularemia or a calf dead and bloated with what they called blackleg in that country. Yes, if the wind was right and your nose was keen you got the odor of water and of the sulfur-and-alkali stink of the sluggish creek that there at the yards met the river and polluted it.
If the sun was right and your eyes sharp, you sometimes saw the settlement first appear as a mirage floating just above the horizon, the yards, the stockcars spotted at the chutes, the two false-fronted saloons with rooms upstairs, the shabby white school with the short bell tower-all surrounded by sagebrush and a bare spot where the boys played ball and the girls skipped rope. Across from that bare spot was the building called The Inn, and behind it rose a bare hill on whose slopes thin wild horses grazed, the perpetual wind worrying their tangled manes and tails. Summer and winter that wind howled, shrieking down the slope of the hill over the graveyard at the base where rusty barbed wire and rotting posts kept stray animals from trampling the graves and toppling the fruit jars that often held flowers-Johnny-jump-ups in spring, Indian paintbrush later, but only the recent dead could be certain of flowers. Flowers wilted suddenly in that sun and their message was ephemeral, and quickly the stems festered in the fruit jars.
He was a clever one who thought to decorate one recent grave with paper flowers, and over them to turn a fruit jar upside down, against the rain.
Hearts always beat a little faster in Beech when word got around that someone had seen dust rising off the flat, that a bunch of cattle were being trailed in by a bunch of free-spending cowhands; in the two saloons the bartenders1ooked to the level of the rotgut in the bottles behind the bar and set out the real whiskey, down from Canada, for those with the wherewithal-the ranchers who liked to make big gestures.
"I'm telling you," a bartender said to a drummer who had blown in the night before on the train from Salt Lake city. "Stay off the highway and don't go gawking at the cattle when they trail in, or you'll like to spook them and they'll have trouble gettin' 'em in the yards. Coupla years ago they shot right over the head of a fellow gawkin' around spookin' the cattle. Christ, you should a seen him run for cover, coattails a-flappin'!"
"Sounds like the Wild West," the drummer said sarcastically. He had meant to sell small electric light plants to the saloons, to the school and to the hotel called The Inn, but had no takers.
"Hell, it is the Wild West," the bartender said. "Far as I know, the only electric lights in the valley are up to the Burbank ranch. The rest of us use lamps."
"The Burbank ranch," the drummer said, and looked at the girlie calendar behind the bar. You could see her garter.
"It's their outfit coming in this afternoon. Thousand head. Eight, ten cowhands. And the brothers. Take my advice and stay inside and don't cause a stampede. What'll it be, Dolly?" he asked a blonde. "My, but you smell pretty."
"Thanks," she said. "Florida water it is, and my drink is gin as you right well know."
"The Burbank outfit's on the way in."
"I seen them from the upstairs," Dolly said. "And oh how I dread it."
"Well, you got your friend now to help out."
"Lot a good she is. She's sick."
"Hey? She got the same thing old Alma had, remember?"
"T.B.? Oh, hell no. She's got her usual flowers."
Hearts beat a little faster, too, in the only dining room in town at the small hotel called The Inn The dining room was ready and the beds upstairs. The register at the desk was open to a clean new page and beside it, smelling of cedar wood, was a fresh-sharpened pencil.
Copyright (c) 1967 by Thomas Savage
What People are Saying About This
(Larry Watson, author of Montana 2948 and Justice)
(Joanna Scott, author of Make Believe)
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This is a beautifully written story of two brothers. It deals with the complexities of love, family, revenge and redemption. It's driven by the western landscape and surviving against the extremes of nature. A wonderful read.


text: Barnacles, one of Darwin's first study organisms. Photo by Minette Layne.The 32nd Carnival of Evolution, collecting online writing about exactly what it says on the tin, went live yesterday at Genome Engineering, with contributions from yours truly, Zen Faulkes, Bite Sized Biology, Dr. Bik, and Kevin Zelnio. Go have a look!

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decided: August 19, 1988.
JOHN KENNEDY, CITIZEN, AND BERTRAM W. OLLEY AND DANIEL L. SCHUBERT, PETITIONERSv.COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS
Original Jurisdiction in the case of John Kennedy, citizen, and Bertram W. Olley and Daniel L. Schubert v. Commonwealth of Pennsylvania et al.
John Kennedy, with him, Bertram W. Olley and Daniel L. Schubert, for petitioners.
Gregory R. Neuhauser, Senior Deputy Attorney General, with him, John G. Knorr, III, Chief Deputy Attorney General, Chief of Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent, Commonwealth of Pennsylvania, and The State Treasurer.
C. Clark Hodgson, Jr., with him, Ursula B. Bartels, Stradley, Ronon, Stevens & Young, for respondents, The Senate and The House of Representatives of the Commonwealth of Pennsylvania, Robert C. Jubelirer, K. Leroy Irvis, James J. Manderino, Max Pievsky, Matthew J. Ryan, Richard A. Tilghman, F. Joseph Loeper and J. William Lincoln.
President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and McGinley. Opinion by Judge Doyle. Dissenting and Concurring Opinion by Judge Craig. Judge MacPhail joins this dissent.
[ 119 Pa. Commw. Page 26]
Before us for disposition are preliminary objections in the nature of demurrers filed by the House of Representatives and the Senate of Pennsylvania and certain officers thereof (collectively the Legislature) and by the Commonwealth and the State Treasurer (collectively the Commonwealth) to a complaint addressed to our original jurisdiction. That complaint was filed by Representative John Kennedy, Bertram Olley and Daniel L. Schubert (collectively Petitioners) who brought suit as citizens and taxpayers of the Commonwealth. In their complaint they seek to challenge, on various grounds, the constitutionality of House Bill No. 1288 which later became Act 28 of 1987 (Act). More precisely, they challenge
[ 119 Pa. Commw. Page 27]
an amendment to that bill which, inter alia, increased the salaries of the judiciary, certain Commonwealth officials and members of the Legislature and certain officers thereof. The bill did not provide an increase in salary for those individuals currently serving in the Legislature; it did, however, provide for such an increase effective after the next election which necessarily included some of the members of the Legislature who voted upon the legislation. With respect to those members who were serving a current term, the bill provided for unvouchered expense increases of $1,000 per month for the period from July 1, 1987 through November 30, 1988. This $1,000 per month unvouchered expense increase is the identical amount of the salary increase which was to become effective after the election. The bill also contained other unvouchered expense allowances for certain officers of the Legislature. Finally, the bill contained a severability provision declaring that if any portion of the Act were held invalid, the entire Act would be void. As noted above, this bill was enacted into law.
Petitioners challenge this piece of legislation on various grounds, viz., that the unvouchered expenses actually constitute a salary and that raising the salary of legislators while they are in office is forbidden by the Pennsylvania Constitution; that the members who voted on the bill did not first disclose their pecuniary interests in the matter and that they voted on the legislation where they had such an interest in violation of the Pennsylvania Constitution; and that the nonseverability clause is violative of the Pennsylvania Constitution in that (a) it effectively denies those seeking to challenge it legal representation, (b) it exerts political pressure upon the judiciary, and (c) it is, in any event, void as against public policy. Petitioners seek as relief (1) a declaration that the pay raises and unvouchered expense allowances
[ 119 Pa. Commw. Page 28]
to the Legislature are unconstitutional, (2) an order directing repayment to the Commonwealth Treasury of any payments made to members under the Act, (3) an order granting interest on the money and costs for the lawsuit, (4) an order restraining the Treasurer of the Commonwealth from making any more payments to the Legislature from the Commonwealth Treasury, and (5) an order directing the members of the Legislature to reimburse the Commonwealth immediately for all payments received pursuant to the Act.
Separate preliminary objections in the nature of demurrers were filed, one by the Legislature and one by the Commonwealth. The Legislature maintains that as to it the instant suit is barred by the Speech or Debate Clause of our State Constitution. The Commonwealth contends that Petitioners' complaint fails to state a cause of action and that the Commonwealth defendants are "immune by virtue of sovereign and official immunity from an order directing repayment with interest." We shall address each of the demurrers separately keeping in mind that when ruling upon preliminary objections in the nature of a demurrer we must accept as true all material and relevant facts that are well pled in Petitioners' complaint and all inferences reasonably deducible therefrom, but not conclusions of law. Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675 (1977).
The Legislature's Preliminary Objections
The Legislature asserts that with respect to it the instant suit is barred by the Speech or Debate Clause of Article II, Section 15 of the Pennsylvania Constitution. That provision pertinently provides:
The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office, and breach or surety of the
[ 119 Pa. Commw. Page 29]
peace, be privileged from arrest during their attendance at the sessions of their respective Houses and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place.
In Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986), certain taxpayers challenged on constitutional grounds an act establishing the salaries and compensation of, inter alia, the Legislature. As here, the taxpayers there sought to have the act declared unconstitutional and requested both recoupment by the Commonwealth of monies paid and an injunction enjoining further payment. And, as here, the Legislature maintained that the Speech or Debate Clause barred the suit. In addressing this issue, Chief Justice Nix wrote:
In Consumer Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675 (1977), we determined that the Pennsylvania Speech and Debate Clause, like its federal counterpart, should be broadly interpreted to protect legislators from judicial interference with their legitimate legislative activities, and that even where the activity questioned is not literally speech or debate, a court must determine whether it falls within the 'legitimate legislative sphere.' . . . We further reasoned . . . that although we are not bound by the cases interpreting the federal speech and debate clause, those cases provide guidance in formulating the policy considerations underlying the Pennsylvania Speech and Debate Clause. . . . We set forth those federal policy considerations we deemed relevant to an analysis under the Pennsylvania Speech and Debate Clause:
[ 119 Pa. Commw. Page 30]
. . . The Supreme Court has stated that the Clause is designed to protect 'the independence and integrity of the legislature.' . . . The legislative immunity created by the Clause 'insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation.'
We believe that nothing is more basic to the independence and integrity of the legislature than its ability to pass legislation. Should we hold today that legislators can be held personally liable for disbursements under a duly enacted bill subsequently challenged as unconstitutional, it would indeed impede the ability of the legislators to represent the interests of their constituents because of the fear that they will be later called to task in the courts for that representation. . . . As noted by the Commonwealth Court, '[c]learly, nothing is more with the legitimate legislative sphere than the process leading up to and the passage of legislation.'
[T]he very core of the Speech and Debate Clause is the protection of 'the integrity of the legislative process by insuring the independence of individual legislators.' . . . To permit Article III, section 15 to be effective in its purpose, the immunity of the legislators must be absolute as to their actions within the 'legitimate legislative sphere.' To accomplish this we must not only insulate the legislator against the results of litigation brought against him for acts in the discharge of the responsibilities of his office, but also relieve him of the responsibility of defending against such claims. . . .
[ 119 Pa. Commw. Page 31]
The basis of appellant's argument is that the increased expense allowance during the legislative term provided for in the Compensation Act is additional 'salary.' This argument ignores the clear distinction between salary and expense allowances. 'Salary' has been defined as 'a fixed payment at regular intervals for services, especially when clerical or professional.' . . . We have long recognized that salary is compensation for services performed. . . . In contrast, an expense allowance is an amount furnished to pay for expenses incurred in the performance of those services. . . . An expense allowance for legislators has been provided for by statute since 1956. . . . Moreover, an augmentation of the expense allowance during term is hardly without precedent. The General Assembly has periodically increased the allowance to be received during its existing term. . . .
Consumer Party, 510 Pa. at 184-85, 507 A.2d at 336-37 (citations omitted). The Supreme Court then discussed the bookkeeping disadvantages of requiring a vouchered procedure and concluded that "[a] system which provides for unvouchered expense allowances largely avoids such disadvantages." Id. at 186, 507 A.2d at 337. The Court then explained that as long as the expense allowance is reasonably related to the actual expenses, a lack of mathematical precision does not present a problem. It also noted that in Consumer Party there was no evidence to show that the expense allowance was unreasonable. Further, the Court made it clear that the burden of proving unreasonableness is upon the taxpayers. In this case Petitioners' complaint does not plead that the $1,000.00 expense increase is unreasonable and that a lesser amount would be reasonable. Instead, it attacks, on constitutional grounds, the increase in its entirety
[ 119 Pa. Commw. Page 33]
as one which is, in reality, a salary hike. We conclude that the above-quoted language is controlling upon the issue presented here and, thus, fatal to Petitioners' theory of a constitutional violation of Article II, section 8.*fn2
As to the questions of whether there has been a constitutional violation of Article III, section 13, where members have not disclosed their own pecuniary interest in a bill and have not abstained from voting upon it, that, too, was considered in Consumer Party where the Court held:
Appellants also allege a violation of Article III, section 13 of the Pennsylvania Constitution, which provides:
A member who has a personal or private interest in any measure or bill proposed or pending before the General Assembly shall disclose the fact to the House of which he is a member, and shall not vote thereon.
[ 119 Pa. Commw. Page 34]
Appellants argue that in voting for S.B. 270 the members of the General Assembly impermissibly voted on a bill in which they had a personal interest. This contention is absurd. Article III, section 24 of our state Constitution provides that '[n]o money shall be paid out of the treasury, except on appropriations made by law. . . .' Pa. Const. Art. III, § 24. Pursuant to Article II, section 1, the legislative power is vested in the General Assembly. If appellants' theory were correct, the expense allowances of the members of the General Assembly could never have been established, let alone increased. Such an interpretation of Article III, section 13 is manifestly unreasonable. By requiring disclosure of a 'personal or private interest,' Article III, section 13 makes clear that its prohibition relates to the type of interest of which other members would not be generally aware.
Consumer Party, 510 Pa. at 187 n.18, 507 A.2d at 338 n.18. Based upon this language, we must conclude that no cause of action is pled with respect to the Article III, section 13 claim.
Finally, we consider the challenge to the nonseverability provision. This provision states, "The provisions of this act are non-severable. If any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void." Petitioners assert that this provision has the effect of holding the judiciary hostage because if it strikes down the Legislature's unvouchered expenses, its own salary increase will be void as well. Petitioners also contend that because their position would be unpopular with the judiciary it is unlikely that any attorney would represent them for fear of alienating the judiciary.*fn3
[ 119 Pa. Commw. Page 35]
They further contend that the nonseverability provision has "effectively closed the courts to a party seeking to challenge the legislators' chicanery." They reason that this effective closure of the courts violates their constitutional rights under Article I, section 11 of the Pennsylvania Constitution. Petitioners also assert that placing such pressure on the judiciary contravenes the spirit of Article III, section 27 of the Pennsylvania Constitution and that, in any event, the clause is void as against public policy.
Article I, Section 11 provides:
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
As to the claim that this provision precludes access to the courts, we cannot help but note first that Petitioners are here. And, we believe that the focus of Article I, section 11 is upon a fair and open trial and not upon the difficulties attendant upon the burdens of proof in a particular lawsuit.*fn4 We thus conclude that Petitioners have not stated a cause of action under this constitutional provision.
[ 119 Pa. Commw. Page 36]
Next we consider Petitioners' public policy argument. It is true, as Petitioners contend, that public policy favors severability. Department of Education v. Page 36} First School, 471 Pa. 471, 370 A.2d 702 (1977). But, we believe that severability becomes an issue only if a substantive portion of the legislation is held unconstitutional. We note that the Legislature enjoys a heavy presumption that it did not intend to violate the Constitution, Consumer Party, and its acts enjoy a strong presumption of constitutionality. Id. One seeking to negate that presumption bears a heavy burden of persuasion and legislation will not be invalidated unless it clearly, palpably and plainly violates the Constitution. Id. Petitioners have failed to meet this burden to demonstrate a constitutional violation in any substantive provision of the act.
While the motives of the Legislature could be viewed as self-serving, we do not believe it is our province to inquire into those motives absent a substantive constitutional violation, even where there may be a negative impact upon the public. Indeed, in Brookins v. O'Bannon, 699 F.2d 648 (3d Cir. 1983), where welfare recipients challenged the nonseverability of certain amendments to the Public Welfare Code because the nonseverability provision precluded a successful challenge to one portion of the amendment without losing the benefit of another portion of the amendment, the court of appeals upheld the district court's finding of no constitutional violation. We must, thus, conclude that a negative effect caused by a nonseverability provision does not, in and of itself, create a constitutional violation.
Finally, there is the question of whether the nonseverability provision violates the spirit of Article III, section 27 of the Pennsylvania Constitution by providing for the possible diminution of judicial salaries. Article III, section 27 states, "No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment." In light
[ 119 Pa. Commw. Page 37]
of our resolution of the other issues, we believe that this question is now rendered moot and, hence, decline to decide it.*fn5
Based upon the foregoing opinion, we shall sustain the Commonwealth's and the Legislature's preliminary objections and dismiss the complaint.
Now, August 19, 1988, the preliminary objections of the Legislature in the nature of a demurrer are sustained. Further, it is ordered that the preliminary objections of the Commonwealth in the nature of a demurrer are sustained. Petitioners' complaint is dismissed with prejudice.
Preliminary objections in nature and its members. Preliminary objections in nature of demurrers sustained. Complaint dismissed with prejudice.
Dissenting and Concurring Opinion by Judge Craig:
Everyone is entitled to a day in court in the sense of a chance to present proof in support of a legally sufficient claim. Dismissal of this case without allowing the presentation of evidence is not warranted.
The petitioners have pleaded facts to allege that the unvouchered expense increase given to incumbents in their current terms, in the identical amount of their after-election salary hike, constitutes a salary raise contrary to Pennsylvania Constitution art. II, § 8, which forbids salary increases during the term of a legislator.
Precisely because a dismissal upon demurrer cuts a plaintiff off from the right to prove the case, the courts
[ 119 Pa. Commw. Page 38]
will sustain such a preliminary objection only when the basis for doing so is certain. Any doubt should be resolved in favor of overruling the demurrer. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976).
Here there has been no hearing, no stipulation, no deposition, and no sworn document other than the petition itself. Hence Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986) provides no authority for dismissing this case without some factual record. In Consumer Party, the Chief Justice's opinion pointed out that:
The parties agreed to have the case resolved upon stipulated facts and cross-motions for summary judgment. (Emphasis added.)
510 Pa. at 166, 507 A.2d at 327. The litigants in Consumer Party thus chose to rest the factual issues upon a stipulation in place of a hearing.
Here the petitioners also proposed a stipulation, but the respondents rejected that Consumer Party approach to making a record. Thus there has been no mutual willingness to decide this case upon summary judgment, and hence no waiver of the basic right to a hearing.
The Supreme Court opinion in Consumer Party rules out any contention that the constitutional question is purely one of law to be decided upon the bare words of the statute. That cannot be so because the Supreme Court said:
As long as the expense allowance fixed is reasonably related to actual expenses, the lack of mathematical precision inherent in such a system does not present a problem.
510 Pa. at 186, 507 A.2d at 337. Obviously, determination of the reasonableness of the expense allowance in relation to actual expenses requires some factual record within which such actualities can be proved.
[ 119 Pa. Commw. Page 39]
Also, the Supreme Court in Consumer Party, referring specifically to the claim "that the allowance is in reality a veiled salary increase," held that the attackers must bear "a heavy burden of proof . . . ." Id. To meet a burden of proof, there must be an opportunity to submit proof.
With the stipulation before it, the Supreme Court held that the attackers there "utterly failed to make any showing that the expense allowance is a sham." 510 Pa. at 187, 507 A.2d at 337 (emphasis added). That case had a stipulation which provided a fact record in which a "showing" could have been made. And the expense allowance was different.
In this case there is no fact record of any kind. Thus this court cannot dispose of this present case by the statement that Consumer Party "noted that . . . there was no evidence to show that the expense allowance was unreasonable." A concept of "evidence" in that other case cannot be controlling here, when this case has no evidence.
Certainly, we cannot dismiss this case on the basis of "no evidence" when the dismissal itself forever would bar the petitioners from presenting any evidence.
At this point, on preliminary objections, the fundamental and unchanging rule is that this court must accept the factual averments as if they were true, in deciding the demurrer. The Supreme Court, like this court, has repeatedly said:
For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts . . . and every inference fairly deducible from those facts.
County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985) (citations omitted).
[ 119 Pa. Commw. Page 40]
On the key question of whether the unvouchered expense allowance here is a payment which in fact constitutes salary, the petition pleads, among other matters, that the payment is "not in any way related to expenses actually incurred, and is completely devoid of any showing that an increase in 'expenses' is necessary." (Petition, para. 50)
That point of pleading alone makes the petition legally sufficient because it proposes to address the very fact which the Supreme Court in Consumer Party, quoted above, described as the test of a constitutional expense allowance -- "[a]s long as the expense allowance fixed is reasonably related to actual expenses . . . ."
Accordingly, with respect to the Article II, section 8 constitutional question, there should be no dismissal of the case against the Commonwealth, and the Commonwealth should be required to file an answer.
On the other hand, sustaining the separate objections based on the Speech and Debate Clause is supported by a distinctly different aspect of the Consumer Party decision, where the Supreme Court affirmed this court's order sustaining preliminary objections as a matter of law on that point only, sharply distinguishable from the grant of summary judgment with reference to the other questions.
The petitioners' contentions relating to the non-severability clause should be rejected as premature. The petitioners claim that non-severability denies them access to the courts. Apparently, at least in part, their theory is that the judiciary would be disinclined to hold a statutory provision invalid if it put their own salary increase at risk. That is an unwarranted and gratuitous insult to the integrity of the judiciary. However, it is not germane to this case because judicial salaries are not involved here.
[ 119 Pa. Commw. Page 41]
If any portion of the statute is invalidated at any stage in this case, the question of the non-severability clause might become ripe for decision thereafter, but only in some later case questioning the survival of other provisions of the statute.
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text:
Chicken Casserole
|Frozen chopped broccoli
|10 Ounce
|1⁄4 Cup (4 tbs)
|All purpose flour
|1⁄4 Cup (4 tbs)
|1 1⁄2 Teaspoon
|1⁄4 Teaspoon
|Lemon pepper
|1⁄2 Teaspoon
|Chicken broth
|1 Cup (16 tbs)
|2 Cup (32 tbs)
|7 Ounce, cooked, drained
|Cut up cooked chicken/Cut up cooked turkey
|2 Cup (32 tbs)
|Canned sliced mushrooms
|3 Ounce, drained
|Sliced ripe olives
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|Dry bread crumbs
|1⁄2 Cup (8 tbs)
|1 Tablespoon, melted
Rinse frozen broccoli with small amount of running cold water to separate and remove ice crystals; drain.
Melt 1/4 cup butter in large saucepan over low heat.
Stir in flour and seasonings.
Cook over low heat, stirring constantly, until mixture is smooth and bubbly.
Remove from heat; stir in broth and milk.
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Boil and stir 1 minute.
Stir in spaghetti, chicken, broccoli, mushrooms and olives.
Pour into ungreased baking dish, 8X8X2 inches.
Toss crumbs in melted butter; sprinkle crumbs on top.
(Can be baked immediately.) Cover and refrigerate.
Rate It
Nutrition Rank
Nutrition Facts
Serving size
Calories 420 Calories from Fat 180
% Daily Value*
Total Fat 20 g31.3%
Saturated Fat 9.5 g47.6%
Trans Fat 0 g
Cholesterol 69.9 mg23.3%
Sodium 839.1 mg35%
Total Carbohydrates 40 g13.2%
Dietary Fiber 1.9 g7.7%
Sugars 4.5 g
Protein 22 g44.2%
Vitamin A 37.9% Vitamin C 72.5%
Calcium 15.1% Iron 15.1%
*Based on a 2000 Calorie diet


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text:
7233 Lewis Ridge Parkway, Edina, MN 55439
About the Listing
Sought after Lewis Ridge corner unit! Lofty and bright entertainment sized rooms. One level living with MBR suite with bath & walk-in closet; 1st Fl Laundry, Formal DR and lge kitchen with customized builtins; 1/2 Bath. Upstairs-2 BRs, bath and lounge area overlooking LR is a great place for visiting family and friends. The light filled lower level offers a family room, 4th BR, office and a bath w/sauna. You will also find more than ample storage space!
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Property Details for 7233 Lewis Ridge Parkway, Edina, MN 55439
Bedrooms: 4
Bathrooms: 2 Full | 1 Three-Qtr | 1 Half
Lot Size: 0.09 Acres
Lot Dimensions: 35x116
Year Built: 1996
Garage Dimensions: 2 car
Garage: Attached Garage
Style: (TH) Side x Side
Neighborhood: Lewis Ridge Townhomes
Water: City Water/Connected
Sewer: City Sewer/Connected
Square Feet: 3900
Above Ground Sq Ft: 2410
Below Ground Sq Ft: 1490 (approx)
Room Information for 7233 Lewis Ridge Parkway, Edina, MN 55439
Main Floor
Living Room: 29.8x14
Dining Room: 14x11.6
Kitchen: 22x12
Bedroom 1: 17x14
Sun Room: 14x8
Laundry: 10.6x6
Lower Floor
Family Room: 31x13.6
Bedroom 4: 18x10
Office: 14x13
Storage Room: 35x14
Upper Floor
Bedroom 2: 13.6x10
Bedroom 3: 13x13
Loft: 14x12
Dining Room Description: Separate/Formal Dining Room, Eat In Kitchen
Family Room Characteristics: Lower Level
School Information for 7233 Lewis Ridge Parkway, Edina, MN 55439
School District: Edina
School District Phone: 952-848-3900
Interior Features for 7233 Lewis Ridge Parkway, Edina, MN 55439
Appliances: Range, Cooktop, Wall Oven, Microwave, Exhaust Fan/Hood, Dishwasher, Refrigerator, Washer, Dryer
Air Cond: Central
Heating: Forced Air
Fireplaces: Yes
Basement: (1490 sq Finished) Full, Partial Finished, Day/Lookout Windows, Egress Windows
Exterior Features for 7233 Lewis Ridge Parkway, Edina, MN 55439
Lot Dimensions: 35x116
Zoning: Residential-Single
Financial Considerations for 7233 Lewis Ridge Parkway, Edina, MN 55439
Tax Amount: $6,448
Taxes w/Assessments: $6,448
Tax/Property ID: 0811621130180
Tax Year: 2016
Monthly Payment = $0
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United States District Court, E.D. New York
June 14, 2004.
JAQUIONE JOHNSON, Plaintiff,
BRYCO ARMS, et al., Defendants. JOAN TRUMAN SMITH, Plaintiff, v. BRYCO ARMS, et al., Defendants. CITY OF NEW YORK, Plaintiff, v. BERETTA U.S.A. CORP., et al., Defendants.
On May 19, 2004 Magistrate Judge Pollak issued an order denying
the motion of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives ("BATF") to quash the subpoenas of plaintiffs Johnson,
Smith and the City of New York for certain firearms tracing and
licensing data that BATF maintains in federal databases. City of
New York v. Beretta U.S.A. Corp., No. 00-CV-3641, slip op. at 36
(E.D.N.Y. May 19, 2004) ("May 19, 2004 Order"). BATF had asserted
that a provision of the Consolidated Appropriations Act of 2004,
Pub.L. No. 108-99, 118 Stat. 3 (2004), codified as amended at
28 U.S.C. § 530C ("2004 Act"), prevented it from disclosing this
The Magistrate Judge held that the 2004 Act does not prevent
BATF from disclosing firearms data to civil litigants pursuant to
subpoena when that data will remain subject to a protective
order. May 19, 2004 Order, slip op. at 28. Even if the 2004 Act
did apply, the Magistrate Judge found that it would only limit
BATF's power to expend appropriated funds to disclose firearms
data and thus would not be implicated if the expense of the data
production was borne by the parties. Id. at 28 n. 19.
BATF appealed. On June 8, 2004, after a hearing, this court
issued a brief order affirming the Magistrate Judge's decision
and staying the order to enable an appeal to the Court of Appeals
for the Second Circuit. This memorandum and order supplements the
June 8, 2004 order.
1) The Magistrate Judge's order of May 19, 2004 is affirmed for
the reasons stated on the record and below. 2) This court has an obligation, independent of any privilege
or statute, to ensure that its discovery and litigation
procedures are not abused to the benefit of criminals and to the
detriment of law enforcement. There is no evidence that the BATF
data released under the terms of the protective order in NAACP
v. Acusport Corp., 210 F.R.D. 268 app. B (E.D.N.Y. 2002), had an
adverse effect on police investigations or prosecutions. See
Transcript of June 8, 2004, at 9, 13. Adequate steps were taken
to ensure that sensitive data was kept confidential. The BATF
trace and licensing data released in the instant cases would have
similar protections.
There is no danger that the investigation into the Wendy's
massacre would be compromised. The two gunmen have already been
tried and sentenced. See Tr. at 18.
3) There is no indication that any privilege, law enforcement
or otherwise, would be affected by the release of the requested
data pursuant to the terms of a protective order. The Magistrate
Judge and this court will issue orders as needed to protect any
4) This court will not seal these proceedings without a clear
showing that the threat of open court hearings to law enforcement
is serious enough to outweigh the public's right of access to the
courts. Cf. The Hartford Courant Co. v. Pellegrino, ___ F.3d
___, 2004 WL 1244075, at *11 (2d Cir. June 8, 2004) (noting that
the openness of the courts to the public "greatly enhances the
appearance of fairness" in judicial proceedings). No such showing
has yet been made.
5) BATF first took the position that it could not disclose any
crime-gun trace data in open court. Tr. at 22-23. It subsequently
argued that it could release data in a criminal proceeding, but
not a civil one. Tr. at 24. To the extent that the 2004 Act could
be interpreted to prevent the cooperation of BATF with the courts
in amassing evidence in a murder prosecution, it would clearly
frustrate the ends of justice a result inconsistent with
congressional design. Similar considerations prevail in the instant cases which, although
civil, present substantial law enforcement concerns.
6) Whether or not the 2004 Act directly applies to disclosures
pursuant to judicial subpoena and subject to a protective order,
it is, by its terms and context, a cost-preserving provision. By
preventing the expenditure of "funds appropriated under this or
any other Act" to disclose firearms trace and licensing data to
the public, it is designed to protect the entire public fisc, not
simply the BATF's purse. Pub.L. No. 108-99, 118 Stat. 3 (2004)
(emphasis added). This court has the power to require that the
parties to a civil action reimburse a third party for its
expenses in producing subpoenaed data. See Fed.R.Civ.P.
45(c)(1) (persons subject to subpoena are to be protected from
undue burden or expense). In view of the serious economic
pressures on the public fisc, this court will provide for
reimbursement to the government by the parties using the data for
the costs expended by BATF in producing the requested data.
© 1992-2004 VersusLaw Inc.
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Sector-15, Chandigarh, India- 160015.
Class Location:
#65, Prikanko colony
Sector-15, Chandigarh, India- 160015. .
attended in Jul,2014
posted on 27 May, 2016
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attended in Jul,2009
posted on 27 May, 2016
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April 7, 2005
Appeal from the Superior Court of the District of Columbia (No. CA4401-03). (Hon. Tim Murphy, Trial Judge).
Before Ruiz and Washington, Associate Judges, and Kern, Senior Judge.
Submitted March 10, 2005
On May 29, 2003, appellant, proceeding pro se, filed in the Civil Division of the trial court pursuant to D.C. Code §§ 16-2501 et seq. (2001) an Application for Change of Name. Appellant in the two-page printed Application form sought to change his name from Peter Robert Phillips to Jesus Christ and asserts: "A common law name change in D.C. was done previously." The record does contain the following documents that were attached to the Application: a photocopy of a United States Passport issued January 11, 2000, containing a photo, apparently of appellant, and depicting his name as "Jesus Christ;" a Social Security card issued by the Social Security Administration to and signed by "Jesus Christ;" and a District of Columbia Driver's License issued January 11, 2001, to "Jesus Christ" at his address in Northeast Washington; and a photocopy of a Florida birth certificate, recording the birth of Peter Robert Phillips, Jr. The birth date on the Florida birth certificate matches the birth date on the United States Passport as well as the District of Columbia driver's license issued to "Jesus Christ." Seven days later, on June 5th, the trial court denied appellant's request for an order of publication as well as the Application on the ground "that taking the name of Jesus Christ may provoke a violent reaction or may significantly offend people."
This court has stated that "[u]nder the common law, any adult or emancipated person could change his . . . name at will, without any legal proceedings, simply by adopting another name, as long as he did not do so for a fraudulent or criminal purpose." Brown v. Brown, 384 A.2d 632, 632 (D.C. 1977). We noted that "a statute which sets forth a procedure by which a person can petition a court for a change of name . . . [does] not abrogate the common law right." We went on to state: "The use of a statute . . . has advantages in that it is 'speedy, definite and a matter of record, so as to be easily proved even after the death of all contemporaneous witnesses.'" Id. at 632-33.
The D.C. Code provides in §§ 16-2501 through -2503 a procedure for effecting a name change. Specifically, the statute requires the applicant to be a resident of the District, to set forth the name desired to be assumed and the reasons therefor, to file notice of the application and to publish such notice in a newspaper in general circulation once a week for three consecutive weeks. The statute authorizes the court to change the applicant's name "[o]n proof of the notice prescribed" and "upon a showing that the court deems satisfactory . . . ." D.C. Code § 16-2503.
The Superior Court has adopted Rule 205, denominated "Change of Name," which provides in subsection (b) that "[a]t the time of filing of an application for change of name, the Court shall (I) require the applicant to make a prima facie showing of the applicant's right to relief, (ii) set a date for the final hearing, and (iii) inquire who, if anyone, is entitled to notice of the application and of the final hearing. Notice of said hearing, together with a copy of the application shall within 10 days thereafter be served personally upon the persons designated by the Court or shall be sent by the applicant . . . by registered or certified mail . . . ." (Emphasis added.) Subsection (d) of Super. Ct. Civ. R. 205 provides in pertinent part: "A final hearing shall be held on a date set by the Court. Upon proof of notice . . . the Court may enter an order changing the name of the applicant." (Emphasis added.)
The record in this appeal does not reflect that a proof of publication was made and does not contain a transcript of any hearing that might have been held by the court.*fn1 We are constrained upon the record presented to vacate the trial court's Order and remand the appellant's Application for Change of Name to the trial court so that his Application can proceed and be determined in accordance with the dictates of the applicable statute and the rules of the Superior Court.
So ordered.
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Since November 2008 Danny Ward has been travelling Great Britain, often in his T reg Polo, sometimes on the coach, entertaining audiences with his unique style of observational humour.
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Randy Travis Whisper My Name
"Whisper My Name" is a song by American country singer Randy Travis from the album This Is Me. The single reached the Billboard Top Country Songs chart.
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Doughnut Glaze
Total Time
Prep 10 mins
Cook 0 mins
I got this recipe from a friend. I have not made it yet, but have eaten her doughnuts with it on them--YUM! I plan to use it the next time I make doughnuts.
Ingredients Nutrition
- 0.5 (1/4 ounce) package unflavored gelatin
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Lisa Nousek
t: 914 749 8352
f: 914 749 8300
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Area of Practice
University of Virginia School of Law, J.D., 2005; Editorial Board, Virginia Tax Review; Senior Dillard Fellow for the Legal Research and Writing Program
Harvard University, B.A., magna cum laude, Earth and Planetary Sciences, 2002
Hon. Steven M. Colloton, United States Court of Appeals for the Eighth Circuit, 2005-2006
New York
United States District Court: Southern District of New York
United States Court of Appeals: Ninth Circuit
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- Defense of American Express in the first phase of the bench trial of a nationwide consumer class action seeking over $500 million for alleged unfair business practices, breach of contract and conversion in connection with travel insurance services offered to cardmembers. The Court entered judgment in favor of American Express on all claims and ordered the class representatives to pay almost $400,000 in costs.
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In 2005, Ms. Nousek received an award from the Food and Drug Law Institute for her article entitled Industry Self-Regulation of Direct to Consumer Prescription Drug Advertising: Promoting Consumer Knowledge and Safety.
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The BSF Report: Spring 2013 (03.08.2013)
After Opening Statement, BSF Wins Product Liability Suit for Pfizer (Winter 2010)
BSF Wins Appellate Reversal of District Court's Reduction of Jury's Punitive Damages Award (Winter 2010)
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Firm Report: January 2008 (Vol. 3, Issue I) (01.22.2008)
BSF Wins Jury Trial in Las Vegas Federal Court (December 15, 2007)
Firm Report: November 2006 (Vol. 1, Issue III (11.01.2006)


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|The stupid question is the question not asked
Re^2: Algorithm: point with N distance of a line between two other pointsby japhy (Canon)
|on Nov 03, 2010 at 18:41 UTC ( #869290=note: print w/replies, xml )
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