*1 4=97 court However, since court below. had Treasury Department that the decided harm no the contract to cancel
good cause permit- States done to United
was tried, and to be ting issue indicated per- as to receipt of evidence though was side futility neither was a
formance thereby.
endamaged Fos judgment support of the
In asserts, case, contract as is
ter therefore, was to if it has no term and giv to be had reasonable notice terminated established, 12 principle is well This en. Contracts, Am.Jur., Section doctrine with But the quarrel it. do not here, contract, as pertinent where the providing for termina language contains per unsatisfactory any time”
tion “at Arti ambiguity exists No formance. Treasury by it. The 3 or is created ticle give required
Department of the termination notice
advance agreement was the Such
contract. necessary, the parties. Though, was at least gave Director’s letter
Regional days notice.
seven foregoing,
Quite aside from one who
however, perceive we do how contract clearly in breach of his consequential, or special, damages,
claim
otherwise, special term of some unless recovery. None authorizes such
instrument pro and we can find to us here cited justify could such a result.
vision which the cause is reversed and judgment the court tbe direction
is remanded in favor of the to enter
below States.
United CON UNIVERSALIST
MASSACHUSETTS & v. HILDRETH VENTION CO. ROGERS
No. 4477. Appeals Court of
United States Circuit. First July 7, 1950. *2 Shattuck, Boston,
Mayo Adams Mass. (Lewis Wadsworth, Jr., L. A. Ingham Bicknell, Haussermann, Davison & Shattuck, Mass., all of Boston him on with brief), appellant. Fly, City Lawrence York New James Donovan, Mass.,
(James Lawrence, A. Fitts, Jr., City, C. William New York Shuebruk, Fly, Fitts & New York City, brief), appellee. him on MAGRUDER, Judge, 'Chief Before FRANK, Judg- Circuit WOODBURY es. duty be a defendant’s
PER violation of CURIAM. operate its Federal Act Communications controversy out case arose asks public station in interest. Plaintiff to allow the the refusal the defendant injury by it damages for suffered station on use the facilities its radio *3 facili- provide requiring order defendant to 1949, 17, April for the Sunday, Easter on next ties for the broadcast of the sermon representative the broadcasting by a Sunday. moved to Easter Defendant has plaintiff, Con- Massachusetts Universalist jurisdiction and for fail- dismiss for lack of vention, sermon, is of a the text of which relief upon can ure to state a claim which A appended at mo- opinion. the end of this granted. be allowed, having the tion to dismiss been complaint not clear that the is court a dis- “It is district entered appeal merely a common law from which intended to assert missal this is taken. contract, over action for cause breach express agreement with the jurisdiction, which court this would have by the district memorandum of decision filed present citizenship diversity is not since court, 822, 823, F.Supp. 87 follows: rely on fact solely here. Nor does it “Ford, Judge. District may raise a defense to that defendant duty “Plaintiff, the action based on defendant’s under a charitable cor- Massachusetts Gully the Federal Act. v. poration devoted to the diffusion of reli- Communications Bank, 109, First 57 brings National 299 U.S. S.Ct. knowledge, action for gious this 96, 81 made injunction against by L.Ed. 70. claim damages and an defend- theory ant, corporation, engaged plaintiff clearly predicated on the a Massachusetts that, made, broadcasting radio business and once contract has been it its positive operate right, a duly to radio broadcast- has a under the Fed arising licensed Lawrence, Massachusetts, ing eral station Communications Act and enforceable court, call letters WLAW. with the this its sermon broadcast the defendant. Whether or by not the complaint alleges “The that the action correct, plaintiff’s contention is the com the Federal arises under Communications plaint squarely question does raise on a 1934, seq. 151 et It Act of 47 U.S.C.A. § merits, depends the solution which on the a under which forth contract defend- sets proper interpretation given to be a federal its broadcasting was to furnish facilities ant law. a When such is thus raised by plain- prepared series of sermons for a by complaint, and is not insubstantial tiff, providing paragraph contract frivolous, merely nor immaterial and by prepared agen- ‘Broadcasts that 6(b) purpose obtaining juris raised for the subject approval of the cy are sta- diction, jurisdiction this court has then over both as to artists to broadcast con- tion Hood, 678, Bell action. v. 327 U.S. 66 alleged pursuant It is further tent.’ 773, complaint 939. S.Ct. 90 L.Ed. con plaintiff submitted defend- to the contract no allegation tains as to the amount in con manuscript of one of these sermons ant troversy, necessary this since but Sunday, 17, given April on Easter be regulating case is one law arising a expressed pre- what is This sermon 1949. 28 commerce. 1337. Weiss v. U.S.C.A. § the Universalist doctrine which sumably Angeles Co., Cir., Broadcasting Los 9 163 accept the Resurrection of Christ does 313, F.2d fact, gives and historical but physical as á pure- story the question of the Resurrection “There remains to the metaphorical spiritual significance. or complaint on ly states claim which relief alleges granted. that defendant refused Plaintiff be Plaintiff’s contention is for broadcasting facilities ser- the Communications provide that under Act the mon, justification that defendant radio broadcasting business of is affected that, that-the public claimed broadcast of this interest its action conse- would, particular on day quence, sermon contracts between the owner of a religious expressed, broadcasting persons seeking reason views station and shocking general public sensibility, and to broadcast are likewise affected with a therefore, that, Therefore, broadcasting public plaintiff of it urges interest. imposing Act, “This freedom of the licensee
that the Communications pub- programs in the- what his station shall duty licensees a to broadcast determine interest, not, course, by implication, confers on those broadcast is an lic absolute right, contracting right time a broadcasting' unfettered one. The exercise provisions subject notwithstanding administrative contractual review rejection agency, programs, Com the Federal Communications except content years material broadcast when the mission. At least once three interest. public of the broadcast is not in the must determine whether a Commission right, argued, public This it is is enforceable renewal of the license is in the inter est, court to action in this court and it is for the review U.S.C.A. § rejected program is decide whether or not selecting pro the action of the licensee in *4 public in the interest. any grams proceedings at time under Albuquerque 47 U.S.C.A. 312. Broadcast § interpretation of the “Such an ing Regents New Mexico College v. of ' Co. rejected. Act must be Communications Agriculture Arts, D.C., of and Mechanic Certainly expressly con the Act does F.Supp. 198, 202. The enforcement of 70 any anyone any right fer to broadcast on development concept of the Act the the time, any or not it has material at whether public of interest under the are thus en Act Nor a for such a broadcast. does contract primarily agen administrative trusted implica there seem to be basis for an any cy. The function of the courts in the right. nothing in the tion o-fsuch a There is Act is the of enforcement of the exercise that the mere fact that one Act to indicate right to enforce or review orders of the the under the party the contract is a licensee of party Commission under Sections 401 402 gives Act to the other contracting any those which the law Wm. Penn Broadcast greater rights than the Act. McIntire v. parties a ordinarily gives to to contract. Philadelphia, Cir., of 151 F.2d 3 ing Co. 597. “It is true that licensees under of light “In the the scheme of en operate duty
the Act have sta means of an by administrative forcement public so as serve the interest. ‘The tions Congress select, agency which has chosen to duty determining has the what licensee Congress held that it cannot be intended to shall be broadcast over his sta programs implication rights by additional such lawfully (cid:127)create facilities, cannot dele tion’s plaintiff those for which contends. ‘The gate the control of his duty or transfer designed pri is not Communications Act directly indirectly the network or station adjustment marily new code for the as a agency. He law advertising to an cannot private rights through adjudica accept conflicting fully programs bind himself expresses it a desire tion. Rather on the sustain case where he cannot the bur maintain, Congress ap part through proof program. has better den of that he control, propriate a grip administrative on obliged to himself licensee is reserve to The aspects dynamic the of radio transmission.’ programs decision as to what will the final n Commissio Federal Communications v. public interest. We conclude best serve Co., 134, Broadcasting Pottsville 309 fulfilling U.S. obliga a licensee is 437, 439, 138, 84 L.Ed. interest, S.Ct. 656. The operate public in the 60 and is tions to of the Act enforcement Commission in accordance the ex operating hindered rather than would be aided if the requirements of the Communications press plaintiff’s contentions were -correct. Act, accept programs any agrees to if he ‘public problem of defining interest’ own un than his reasonable deci basis other appropriately left programs satisfactory.’ der the Act one to the 'are that the sion rather than in first instance Re Commission Communications Commission Federal courts, one 2, 1941, it is which is Broadcasting, compli to the May port on Chain peculiar to problems the radio in cated Broadcasting v. quoted in National Co. number of States, 190, 205, dustry. channels available 63 S.Ct. 319 U.S. United broadcasting is limited techni- 997, for radio 87 L.Ed.
501 law, herein dismissal Hence, considerations. cal right prejudice to the public interest was therefore without is in the determining, what any such cause litigate any giv- plaintiff deciding one simply forum. appropriate inter- in an state public in the action is not en broadcast or is rather It absolute sense. est complaint and without On face of the n questionof whether the allocation trial, the federal necessity going to given time any at facilities available adversely to adjudicated claim was con- is more any given circumstances circumstances, plaintiff. Under the other than some public interest ducive to opinion concurring indicated in the reasons Act that the To hold -possible allocation. Palmer, 1949, F. Cir., v. Strachman rights in any vested to create intended 431, below though the 2d court make and to broadcast the making adjudicate “jurisdiction” have had the courts rights enforceable in such im pendent of action common law cause action of Commis- limit freedom complaint, plicit allegations of the opera- thus defeat the successful sion and declin committed abuse discretion enforcement. tion of administrative ing to not think decision so. We do do con breach of of a common law claim for argued has that on “Plaintiff *5 turn, up indirectly, necessarily tract would complaint, a cause allegations it has of the in the question as what is aon federal to right of to of for its action the violation the of “public meaning the interest” within speech religion of of freedom freedom For all Act. Federal Communications to Consti under the First Amendment the know, escape by might be read the clause only the tution. But this Amendment limits re the station meaning state court as that of the 'Congress agencies action of or of manuscript reject any right serves the to corpo private government federal and not which, in the honest broadcasting of the here. rations such as defendant McIntire licensee, incompati might be opinion the of Broadcasting v. Wm. Penn Co. of Phila the license. obligations ble with its supra, delphia, page 151F.2d at 601. law, question of state There also be would “Therefore, the conclusion must be ques contract in the fact that the in view of complaint that the sets no claim under forth limi expired its own time apparently tion upon the Federal Constitution or laws 1949, May a court of whether tation on granted. (cid:127)which relief be can Where such a specific the equity give event would n decision disposes, case, at the outset of the (which requested is ob relief mandatory jurisdic the federal upon which ground viously plaintiff’s in this chief concern the based, tion proper it is to dismiss the case namely, order that the de litigation), an whole, .as a determining without provide required fifteen min be “to fendant complaint the states common cause of law broadcasting time on next Easter utes of ju .action over which the court have Sunday appropriate time the an for at only by risdiction the virtue of fact that it sermon hereto attached.” broadcast the was involved with right a claim of federal much we feel that the de However which has been determined be to unfounded. broadcasting the refusal to allow fendant’s opinion Concurring Magruder, J., Ch. temperate, dignified sincere and ser of the Palmer, Strachman v. 26, 1949, October 1 question per was a sorry mon in indeed Cir., F.2d 427. formance, think the nevertheless we that motion to dismiss is al- judge was unreasonable con district "Defendamos lowed.” to appropriate it was more cluding that adjudication courts to the state leave appears As from the last paragraph of plaintiff rights might have of whatever Judge opinion, Ford’s the district court did of contract. for breach purport adjudicate to the merits of a The of the District is af- Court possible common law cause of for action firmed.1 breach of contract under the Massachusetts hope immortality long has sermon for as follows: parson* W* “Is tha mankind Jesns Risen burner! 7" early earth; Christians, years upon several cen- after live so few competition many persecution, flesh is so leave so turies insecure. managed stamp to out the There are followers tasks unfinished we die. when saviors, gods many things like the other are these so that we would history in, names now but dead our children and continue see religions. story proceed lives, But death friends watch in their Jesus, burial, pageant unfold, of his to see resurrection nations great mysteries is still nature will the central belief of a what further religious Hymns by advancing still movement. are be uncovered science. When sung Christ, pulse quiets evi- flesh cools risen and the and the yet through dence of held we are not love and his resurrection still by harbinger millions as a of resurrection Will another life life. beyond there be grave. from be the this? this death Can breathing? knowing end of our pushed Was stone aside angel many they morning that men on Easter Modest will that ádmit ago? they dilemma, arise from the no answer to centuries Did Jesus beyond penetrated to walk life. dead forth from the tomb on that the realms morning? early disciples? life, seen his- Men are creatures of with senses Was he ways experience Did into and prehend com- he ascend heaven right heavenly living at to sit hand of his crea- world father, persists there to for- If intercede tures. some soul after the decays eyes sharp giveness rection, he, body enough of men? Did in his resur- we have not supernatural powers to- move- furnish form and discover its through speaking his followers so ments. from If church there is a voice power passed beyond grave ears eternal fife is we have not upon sharp enough True, all who believe him? His mul- the words. catch titudes of things. have faith these some claim spiritual world, able to followers contact They find evi- us seem to sufficient are but most dence in their own hearts. unconvinced the evidence with which *6 acquainted. arewe are others us who con- There of must mystery to them- Unable this of solve that we do know. cannot fess not We sought penetrate superstitious selves men have revelation the dim and world spiritual supernatural powers. from and for sure in which Jesus lived to know what is fact They sought thinking being have a knowl- whose and what is wishful edge perfect, would be and about omniscient in the stories that have come down power almighty, who who of whose would be We cannot make much Jesus. hereafter, assure as we could them of Testament the world New match open an eternal could to them the door to it. miracles seem to us know be gods incredible, Many and and life. been the in this world of science have imagine people rising from saviors to whom men have looked for we cannot any supernatural way. im- of in There their intimations and securities mortality. the dead many has is one of have cases when a heart that Jesus but been yearning beating again started thousands of from whom has been saviors ceased by being humanity drug has faith and as- the shock of or attained a possessed People surance; many massaged by surgeon. a have who have others revived, supernatural power breathing and sufficient have been but virtue ceased immortality body provide all has been who called we also know that if the upon upon very at- than minutes their name. More have called dead more a few upon futile, tempts does Amitahba than have called at restoration are nor Buddha many supernatural bring any power it from the the name of years For Christ Jesus. Mithra, Jesus, used of us so than was the dead. Some have become rather temper god living a in such natural salvation Roman world. of main Christianity longer early faith have In that we can no the time there world supernatural dozens events associated were Empire of saviors Roman that happenings. We Jesus were actual who were believed to have died with great reinterpret deal had to a and have had his from the dead. Each have risen history light following religious later in of ancient knowledge. savior who people baptized mysteries, say, of those “The into his who ate were facts, .things to be his blood in times believed these of his flesh and drank of they likely thereby rites, mistaken.” were most who re- but and communion likely try immortality, what we to reconstruct food of and believed Then ceived dealing always they happen, but we are did also rise from the dead that guesses. savior-god. not were with The’ ancients had their as they historians; Perhaps knew seldom false saviors and accurate these were history fancy only followers, tell and how to fact from His Jesus true one. carry people. imagination. gospel legend in his to the Scientific order to and from activity danger; he most recent He flee because refused to historical accomplishment put body was men. must an- the life of the second he So we killed, question, body risen ?” was swer “Is Jesus killed. The but Jesus, answer, himself “We do not know.” The for he had immortalized a in who seems to render the lives of those evidence insuflicient and memories him. had followed after verdict. great encouragement know Isn’t it a in But there another manner which beings have them the that human within truly risen, and find this Jesus we loving spirit, goodness intelligence, and way its intimation to be not insight ap- recognize a Jesus when he immortality truly promise a but pears great among them? Is it not a immortality. or not Whether kind of commentary on the worth of inherent that walked from the tomb on Jesus was human nature to know that Jesus away morning, very in a real sense far to remain in the tomb but allowed kept He he did die. alive people was raised from the dead of his hearts followers. minds brought themselves, his resur- who forth they parables recalled his Whenever Perhaps own in their lives? rection teachings, they whenever remember- flesh; perhaps his Jesus did rise in not, own love, actions, face, his his his Jesus ed arose do know: he but them, was reborn within he was recovered millions of his brothers the flesh of grave. His from followers at first They given their sisters. scattered, believing seemed that so far to his use as their knowl- bodies edge great to restore the dream of movement enabled them. and love have Wheth- failed, fate Israel had afraid that supernatural power us er can raise might his as- Jesus be visited on dead, us fellows who love from the our they sociates, very but soon recovered humanity so do. And to know that Very soon their they profited faith and confidence. beautiful, simple, as as will one choose teachings of Jesus sacrificing as to immortalize Jesus carry they his that must saw they lives; him will treasure kingdom of build the God. labors others of in their hearts above countless much was risen because Jesus great en- lesser worth —is implanted and wisdom was character couragement in mankind? faith disciples. They, him, like in his became important question is more There martyrs fol- stuff some asking whether or not ourselves than ways persecution him in the lowed Jesus from the tomb which the arose death for the sake the truth. *7 him. Roman soldiers had buried As to greatness of the resurrection of nothing to It not to have do. is we spirit nobility flaming and of Jesus he whether did or not. We credit writing gos- in be discovered looking ourselves; into is should be pels. nothing wrote down himself. Jesus respon- lives which we are motley our own sayings His were scattered should and with which we be con- up simple working sible group, largely made overly should surely cerned. Nor we be con- disciples were folk. His about or not we can ex- cerned scholars; there was no Boswell band of pect immortal life. That would mark us carefully among his them to record yet selfish and self-centered. as his and words were conversations remembered, Is You can repeated risen? know this Jesus over, and over and only surely you if have him raised within in at last and endured their written yourself. yourself ask imperishable beauty for two millenia. brought is this: Have I Jesus life great the wisdom fact is tribute to This spirit my They within me? Does his work in goodness simple people. and thoughts, my my feelings? ways, they greatness and when saw heard knew it; my courage courage? Does his survive Through genera- they remembered. something you Is Jesus risen? That they persecution remembered tions of you. know, message and through loyalty the you example preserved. Is He if risen? are of Jesus was Jesus you perish peace. Through He maker of is if love them his life did body. your enemies, you forgive if labor of his the crucifixion you things right prize flesh; to make between Jesus was not one your you body prized Ho He does if meant little to him. brothers. his truth, righteousness. conquered your peace, love, He hatred hearts security replaced you gave up He it with love. does if and comfort goodness your home, body punished with all love truth and he wilder- roadways your thoughts and all actions. Jesus ness and Palestine FRANK, Judge (concurring). Circuit concur of the court.
I in the
However, adjudicating in the matter
pendent' for breach common law claim
contract, obliged in the would not feel I indicated
Second to follow the rule Circuit opinion
in the v. in Strachman concurring approved by
Palmer this court now
the ease at bar.
FAST, Incorporated et v. al. SHANER
No. 10218. Appeals
United Court of States Third Circuit.
Argued June July 6, 1950.
Decided you people memory re- if look at and are risen Over battle field the Jesus, way you wanders, lonely, lost, minded somewhat Jesus dead. Over memory live. slums our cities the poorly, wanders, refuse, poverty, so so Jesus risen? Oh Is of Jesus amid poorly. delinquency, neglect, of him have left so much and in a faint voice ye hear, In his life he said that the son buried. of man had not where to “Inasmuch have not head; lay his done it unto one of the these least of *8 my ye brethren, our now shut him out of and even unto have not done it ourselves; lives, every spitefulness we will not In out of and me.” anger, home of give are him a home within us. We and where husband wife torture laboring, up busy piling other, treasure too each where children are broken insecurity lovelessness, rust eaten and worm. and soon busy power seeking corpse every lies, and the We are too of Jesus unrisen. In banquet prison asylum pun- are at the table. We chief seat and where men are busy prides treasuring neglected our and rather too our hatreds and our fears. We ished and than be- ing restored, are too healed and Jesus wanders planes stockpiling guns prison busy forgotten, “I' dead. was in ye bombs; church, we have time to stock- full atom visited not.” In me forgiveness empty show, prayers, pile love and our hearts. ostentatious busy building glory, around us a We are too and vain there is no home for that steel; journeyman suspicion humbl-e, preacher the walls named' fence are too gentle lesus, pulpit hear his thick and we cannot whose roadside. seeking into Jesus Look at knock an entrance Is risen? the world you yourself. are our lives. We around answer the hard house of power busy pacts your making risen? Is Jesus Look into own- too and dividing your mind, investigate fear, heart, house of man search own your against life, ques- make' a will we own then answer itself. When yourself. pact? pact peace, pacific tion to