201 Pa. Superior Ct. 484 (1963)
Commonwealth
v.
Camp, Appellant.
Superior Court of Pennsylvania.
Argued June 10, 1963.
September 12, 1963.
*485 Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Francis X. Hope, Jr., with him Alan B. Portnoff, for appellant.
Norman J. Pine, Assistant District Attorney, with him Samuel J. Halpren, District Attorney, for Commonwealth, appellee.
OPINION BY WRIGHT, J., September 12, 1963:
This is an appeal by G. Rex Camp, Jr. from an order of the Court of Quarter Sessions of Chester County, entered October 31, 1962, requiring him to pay the sum of $600.00 per month for the support of four children. The contentions advanced are (1) that the lower court erred "as a matter of law" in holding that appellant's son, G. Rex Camp, III, who was then aged eighteen years and had finished high school, should be included in the order; and (2) that the amount of the order was an abuse of discretion.
The instant proceeding had its inception in a petition filed by appellant's former wife on August 8, 1962, requesting an increase in an existing support order of $70.00 per week. Appellant and his wife, now divorced, *486 had four children, G. Rex, III, born April 12, 1944; James, born February 9, 1947; DeMaree, born March 8, 1948; and Emily, born April 19, 1949. Prior to the opening of the school year in the fall of 1962, appellant took G. Rex Camp, III, who had graduated from high school as "no more than an average student", to the Goldey Beacom School in Wilmington, Delaware, enrolled him in the two-year business course, paid the registration fee, and arranged for the boy to live at the Y.M.C.A. Appellant did not pay for tuition, books, or room and board, and his former wife was required to defray these expenses from her own funds. The court below concluded that appellant was "of sufficient ability to support a minor son attending business school beyond the high school level", and that it was "clearly within his own, his former wife's, and his son's contemplation that he would do so".
I. There is no question that a father's obligation to support his children includes the duty to provide a public school education. See Commonwealth v. Wingert, 173 Pa. Superior Ct. 613, 98 A. 2d 203. A recurring problem has arisen concerning a father's duty to furnish support for a child pursuing his education beyond high school. In Commonwealth ex rel. Martin v. Martin, 196 Pa. Superior Ct. 355, 175 A. 2d 138, the law was summarized as follows: "In the absence of an express contract, and unless the circumstances warrant it, a parent is not liable for the support of a child attending college . . . On the other hand, where there is an agreement to support, and it is within the contemplation of the parties, a father may be liable to support and furnish his child with a college education". In Commonwealth ex rel. Howell v. Howell, 198 Pa. Superior Ct. 396, 181 A. 2d 903, we held that the existence of a child's educational endowment policy indicated that higher education was within the contemplation of the parties, and was a circumstance warranting the *487 action of the court below in directing that the father should pay college tuition. Similarly, in the case at bar, we are fully in accord with the position of President Judge GAWTHROP that the conduct of this appellant in connection with his son's enrollment in business school demonstrated that higher education was contemplated, and was a circumstance warranting the inclusion of the son in the support order.
It should be further noted that, in the most recent opinion of this court on the subject, it is expressly stated as a matter of law that, under appropriate circumstances, an order may be entered against a father for the support of his child attending college. "We believe that the law of this Commonwealth requires a father, under certain circumstances, to support a child while attending college": Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Superior Ct. 640, 190 A. 2d 182. The opinion in the Ulmer case had not been handed down at the time the instant proceeding was decided by the lower court. Under the rule announced therein, it is clear that appellant's first contention must be rejected.
II. Appellant's second contention gives us more concern. His principal source of income is the Campex Corporation, a real estate and insurance business which he owns and controls. It is unnecessary to burden this opinion with a detailed financial analysis. The court below determined that appellant's annual income was $10,905.00. As calculated in appellant's brief, the figure should be $7,905.00. The expense of maintaining the four children, according to their mother's testimony, is $121.00 per week, to which was added $134.00 per month to cover the school expenses of G. Rex Camp, III. The court below found that the total sum needed was "at least $618.00 per month".
We are all of the opinion that the amount of the order should be reduced. The asserted needs of the *488 children must be equated with the father's ability to pay. Even if we assume an income of $10,905.00, as found by the court below, an order of $7,200.00 per year appears to us to impose an unreasonable burden. The purpose of a support order is the welfare of the child and not punishment of the father. It must be fair and not confiscatory in amount, being intended to provide such allowance for support as is reasonable, considering the property, income and earning capacity of the father, and the condition and station in life of the family: Commonwealth ex rel. Warner v. Warner, 194 Pa. Superior Ct. 496, 168 A. 2d 755. It is our view that the order in the instant case should be reduced to $425.00 per month.
As thus modified, the order of the court below is affirmed.


493 U.S. 40 (1989)
CHESAPEAKE & OHIO RAILWAY CO.
v.
SCHWALB ET AL.
No. 87-1979.
Supreme Court of United States.
Argued October 3, 1989
Decided November 28, 1989[*]
CERTIORARI TO THE SUPREME COURT OF VIRGINIA
*41 William T. Prince argued the cause for petitioners in both cases. With him on the briefs were Edward L. Oast, Jr., John Y. Richardson, Jr., and Joan F. Martin.
Christine Desan Husson argued the cause pro hac vice for the United States as amicus curiae urging reversal. With her on the brief were Acting Solicitor General Bryson, *42 Deputy Solicitor General Shapiro, Allen H. Feldman, and Charles I. Hadden.
Bruce A. Wilcox argued the cause for respondents in both cases and filed a brief for respondent in No. 88-127. With him on the brief were Richard J. Tavss and Ray W. King. C. Gerald Thompson filed a brief for respondents in No. 87-1979.[]
JUSTICE WHITE delivered the opinion of the Court.
Nancy J. Schwalb and William McGlone, respondents in No. 87-1979, were employees of petitioner Chesapeake and Ohio Railway Company (C & O), and were injured while working at petitioner's terminal in Newport News, Virginia, where coal was being loaded from railway cars to a ship on navigable waters. Robert T. Goode, respondent in No. 88-127, was injured while working for petitioner Norfolk and Western Railway Company (N & W) at its coal loading terminal in Norfolk, Virginia. If respondents' injuries are covered by the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), 44 Stat. 1424, as amended, 33 U. S. C. §§ 901-950 (1982 ed. and Supp. V), the remedy provided by that Act is exclusive and resort may not be had to the Federal Employers' Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §§ 51-60 (1982 ed. and Supp. V), which provides a negligence cause of action for railroad employees. The Supreme Court of Virginia held in both cases that the LHWCA was not applicable and that respondents could proceed to trial under the FELA. We reverse.

I
At the C & O facility, a mechanical conveyor-belt system transports coal from railroad hopper cars to colliers berthed at the piers. The loading process begins when a hopper car *43 is rolled down an incline to a mechanical dumper which is activated by trunnion rollers and which dumps the coal through a hopper onto conveyor belts. The belts carry the coal to a loading tower from which it is poured into the hold of a ship. The trunnion rollers are located at each end of the dumper. Typically, some coal spills out onto the rollers and falls below the conveyor belts during the loading process. This spilled coal must be removed frequently to prevent fouling of the loading equipment. Respondents Nancy Schwalb and William McGlone both worked at C & O's terminal as laborers doing housekeeping and janitorial services. One of their duties was to clean spilled coal from the trunnion rollers and from underneath the conveyor belts. Both also performed ordinary janitorial services at the loading site. McGlone's right arm was severely injured while he was clearing away coal beneath a conveyor belt. Schwalb suffered a serious head injury when she fell while walking along a catwalk in the dumper area. At the time, she was on her way to clean the trunnion rollers.
At N & W's terminal, a loaded coal car is moved to the dumper where it is locked into place by a mechanical device called a "retarder." The dumper turns the car upside down. The coal falls onto conveyor belts and is delivered to the ship via a loader. Respondent Robert Goode was a pier machinist at N & W's terminal. His primary job was to maintain and repair loading equipment, including the dumpers and conveyor belts. Goode injured his hand while repairing a retarder on one of N & W's dumpers. Loading at that dumper was stopped for several hours while Goode made the repairs.
The three respondents commenced separate actions in Virginia trial courts under the FELA. Petitioners responded in each case by challenging jurisdiction on the ground that the LHWCA provided respondents' sole and exclusive remedy. See 33 U. S. C. § 905(a) (1982 ed., Supp. V). All three trial courts held evidentiary hearings and concluded that respondents were employees covered by the LHWCA. The suits *44 were dismissed and respondents appealed. The Supreme Court of Virginia consolidated the appeals of Schwalb and McGlone and reversed the dismissals. 235 Va. 27, 365 S. E. 2d 742 (1988).
Relying on one of its earlier decisions, White v. Norfolk & Western R. Co., 217 Va. 823, 232 S. E. 2d 807 (1977), the court stated that the key question was whether an employee's activities had a realistically significant relationship to the loading of cargo on ships. 235 Va., at 31, 365 S. E. 2d, at 744. Pointing to expressions in our opinion in Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 (1977), that landward coverage of the LHWCA was limited to the " `essential elements' " of loading and unloading, the court concluded that "the `essential elements' standard is more nearly akin to the `significant relationship' standard we adopted in White" than the broader construction argued by C & O. 235 Va., at 33, 365 S. E. 2d, at 745. Applying the White standard, the court ruled that employees performing purely maintenance tasks should be treated no differently under the Act than those performing purely clerical tasks and held that Schwalb and McGlone were not covered. The court later dealt with the Goode case in an unpublished order, relying on its decision in Schwalb and reversing the trial court's judgment that an employee who repairs loading equipment is covered by the LHWCA. No. 870252 (Apr. 22, 1988), App. to Pet. for Cert. in No. 88-127, p. 17A.
Because the Supreme Court of Virginia's holding in these cases was contrary to the position adopted by Federal Courts of Appeals, see, e. g., Harmon v. Baltimore & Ohio R. Co., 239 U. S. App. D. C. 239, 244-245, 741 F. 2d 1398, 1403-1404 (1984); Sea-Land Services, Inc. v. Director, Office of Workers' Compensation Programs, 685 F. 2d 1121, 1123 (CA9 1982) (per curiam); Hullinghorst Industries, Inc. v. Carroll, 650 F. 2d 750, 755-756 (CA5 1981); Garvey Grain Co. v. Director, Office of Workers' Compensation Programs, 639 F. 2d 366, 370 (CA7 1981) (per curiam); Prolerized New England *45 Co. v. Benefits Review Board, 637 F. 2d 30, 37 (CA1 1980), we granted certiorari to resolve the conflict. 489 U. S. 1009-1010 (1989).

II
For the LHWCA to apply, the injured person must be injured in the course of his employment, 33 U. S. C. § 902(2) (1982 ed.); his employer must have employees who are employed in maritime employment, § 902(4); the injury must occur "upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel)," 33 U. S. C. § 903(a) (1982 ed., Supp. V); and the employee who is injured within that area must be a "person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include  " certain enumerated categories of employees, § 902(3). It is undisputed that the first three of these requirements are satisfied in these cases. The issue is whether the employees were engaged in maritime employment within the meaning of § 902(3).
The employment that is maritime within the meaning of § 902(3) expressly includes the specified occupations but obviously is not limited to those callings. Herb's Welding, Inc. v. Gray, 470 U. S. 414, 423, n. 9 (1985); P. C. Pfeiffer Co. v. Ford, 444 U. S. 69, 77-78, n. 7 (1979). The additional reach of the section has been left to the courts sitting in review of decisions made in the Department of Labor, which is charged with administering the Act. In the course of considerable litigation, including several cases in this Court, it has been clearly decided that, aside from the specified occupations, cland-based activity occurring within the § 903 situs will be deemed maritime only if it is an integral or essential part of loading or unloading a vessel. This is a sensible construction *46 of § 902(3) when read together with § 903(a), particularly in light of the purpose of the 1972 amendments to the LHWCA which produced those sections.
Prior to 1972, the Act applied only to injuries occurring on navigable waters. Longshoremen loading or unloading a ship were covered on the ship and the gangplank but not shoreward, even though they were performing the same functions whether on or off the ship. Congress acted to obviate this anomaly: § 903(a) extended coverage to the area adjacent to the ship that is normally used for loading and unloading, but restricted the covered activity within that area to maritime employment. Pub. L. 92-576, 86 Stat. 1251. There were also specific exclusions in both § 902(3) and § 903; those exclusions were expanded in 1984. See Pub. L. 98-426, § 2(a), 98 Stat. 1639.
In Northeast Marine Terminal Co. v. Caputo, supra, we held that the 1972 amendments were to be liberally construed and that the LHWCA, as amended, covered all those on the situs involved in the essential or integral elements of the loading or unloading process. Id., at 267, 268, 271. But those on the situs not performing such tasks are not covered. Id., at 267. This has been our consistent view. P. C. Pfeiffer Co. v. Ford, supra, held that workers performing no more than one integral part of the loading or unloading process were entitled to compensation under the Act. Id., at 82. We also reiterated in Herb's Welding, Inc. v. Gray, supra, that the maritime employment requirement as applied to land-based work other than longshoring and the other occupations named in § 902(3) is an occupational test focusing on loading and unloading. Those not involved in those functions do not have the benefit of the Act. Id., at 424.
In the cases before us, respondents were connected with the loading process only by way of the repair and maintenance services that they were performing when they were injured. There is no claim that if those services are not *47 maritime employment, respondents are nevertheless covered by the LHWCA. See Northeast Marine Terminal Co. v. Caputo, 432 U. S., at 272-274. Only if the tasks they were performing are maritime employment, are respondents in these cases covered by the Act.
Although we have not previously so held, we are quite sure that employees who are injured while maintaining or repairing equipment essential to the loading or unloading process are covered by the Act. Such employees are engaged in activity that is an integral part of and essential to those overall processes. That is all that § 902(3) requires. Coverage is not limited to employees who are denominated "longshoremen" or who physically handle the cargo. Nor are maintenance employees removed from coverage if they also have duties not integrally connected with the loading or unloading functions. Someone who repairs or maintains a piece of loading equipment is just as vital to and an integral part of the loading process as the operator of the equipment. When machinery breaks down or becomes clogged or fouled because of the lack of cleaning, the loading process stops until the difficulty is cured. It is irrelevant that an employee's contribution to the loading process is not continuous or that repair or maintenance is not always needed. Employees are surely covered when they are injured while performing a task integral to loading a ship.
Our conclusion that repair and maintenance to essential equipment are reached by the Act is buttressed by the fact that every Court of Appeals to have addressed the issue has arrived at the same result. See the cases cited supra, at 44-45. As evidenced by the amicus brief of the United States filed in these cases, the Secretary of Labor also agrees that such repair and maintenance employees are engaged in maritime employment within the meaning of § 902(3), and the Benefits Review Board also has consistently taken this view, see, e. g., Wuellet v. Scappoose Sand & Gravel Co., 18 BRBS 108, 110-111 (1986); De Robertis v. Oceanic Container Service, *48 Inc., 14 BRBS 284, 286-287 (1981); Cabezas v. Oceanic Container Service, Inc., 11 BRBS 279, 283-288 (1979), and cases cited therein.

III
Applying the standard expressed in our cases, we conclude that each of the respondents is covered by the LHWCA. The Supreme Court of Virginia held that Goode was not covered because in its view repair of equipment essential to the loading process was not maritime employment. This was error. It makes no difference that the particular kind of repair Goode was doing might be considered traditional railroad work or might be done by railroad employees wherever railroad cars are unloaded. The determinative consideration is that the ship loading process could not continue unless the retarder that Goode worked on was operating properly. It is notable that the loading actually was stopped while Goode made the repairs and that one of his supervisors apparently expressed the desire that Goode hurry up so that the loading could continue.
Respondents Schwalb and McGlone also were performing duties essential to the overall loading process. There is testimony in the record that if the coal which spills onto the rollers is not periodically removed, the rollers may become clogged and the dumper will become inoperable. App. 57, 92. The same is true of the coal that falls beneath the conveyor belts. Ibid. Testimony indicated that a buildup of such coal could eventually foul the conveyors and cause them to be shut down. Equipment cleaning that is necessary to keep machines operative is a form of maintenance and is only different in degree from repair work. Employees who are injured on the situs while performing these essential functions are covered by the LHWCA.

IV
For the reasons given above, the judgments of the Supreme Court of Virginia are reversed.
It is so ordered.
*49 JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and JUSTICE O'CONNOR join, concurring.
Although I join the opinion of the Court, I write separately to emphasize that I do not understand our decision as in any way repudiating the "amphibious workers" doctrine this Court articulated in Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 272-274 (1977). We hold today that respondents Schwalb, McGlone, and Goode are covered by the LHWCA since they were injured while performing tasks essential to the process of loading ships. In light of Northeast Marine Terminal Co., however, it is not essential to our holding that the employees were injured while actually engaged in these tasks. They are covered by the LHWCA even if, at the moment of injury, they had been performing other work that was not essential to the loading process.
As the Court explained in Northeast Marine Terminal Co., Congress, in amending the LHWCA in 1972, intended to solve the problem that under the pre-1972 Act employees would walk in and out of LHWCA coverage during their workday, if they performed some tasks over water and other tasks ashore. Congress wanted
"to provide continuous coverage throughout their employment to these amphibious workers who, without the 1972 Amendments, would be covered only for part of their activity. It seems clear, therefore, that when Congress said it wanted to cover `longshoremen,' it had in mind persons whose employment is such that they spend at least some of their time in indisputably longshoring operations and who, without the 1972 Amendments, would be covered for only part of their activity." Id., at 273.
Later, in P. C. Pfeiffer Co. v. Ford, 444 U. S. 69 (1979), we said that the "crucial factor" in determining LHWCA coverage "is the nature of the activity to which a worker may be assigned." Id., at 82 (emphasis added). Although the employees in Pfeiffer were actually engaged in longshoring work *50 at the time of their injuries, we noted: "Our observation that Ford and Bryant were engaged in maritime employment at the time of their injuries does not undermine the holding of Northeast Marine Terminal Co. . . . that a worker is covered if he spends some of his time in indisputably longshoring operations. . . ." Id., at 83, n. 18.
To suggest that a worker like Schwalb, McGlone, or Goode, who spends part of his time maintaining or repairing loading equipment, and part of his time on other tasks (even general cleanup, or repair of equipment not used for loading), is covered only if he is injured while engaged in the former kind of work, would bring the "walking in and out of coverage" problem back with a vengeance. We said in Northeast Marine Terminal Co. that "to exclude [a worker] from the Act's coverage in the morning but include him in the afternoon would be to revitalize the shifting and fortuitous coverage that Congress intended to eliminate." 432 U. S., at 274.
I join the Court's opinion on the specific understanding that it casts no shadow on the continuing validity of Northeast Marine Terminal Co.
JUSTICE STEVENS, concurring in the judgment.
Had this case arisen in 1977, I would have subscribed to the interpretation of the Longshore and Harbor Workers' Compensation Act that the Supreme Court of Virginia adopted in White v. Norfolk & Western R. Co., 217 Va. 823, 232 S. E. 2d 807, cert. denied, 434 U. S. 860 (1977). I continue to believe that the text of the Act "merely provides coverage for people who do the work of longshoremen and harbor workers  amphibious persons who are directly involved in moving freight onto and off ships, or in building, repairing, or destroying ships," and that the Act's history in no way clouds the text's plain import. See Director, OWCP v. Perini North River Associates, 459 U. S. 297, 328, 342 (1983) (STEVENS, J., dissenting). The White opinion reaches a similar conclusion. See White, 217 Va., at 833, 232 S. E. 2d, at 813 (employing a "direct involvement" test).
*51 Yet, as the majority correctly observes, ante, at 44-45, the Federal Courts of Appeals have consistently interpreted the Act's status requirement to encompass repair and maintenance workers. That uniform and consistent course of decision has established a reasonably clear rule of law that I feel bound to respect. Cf. Commissioner v. Fink, 483 U. S. 89, 102-103 (1987) (STEVENS, J., dissenting). I therefore concur in the Court's judgment.
NOTES
[*]  Together with No. 88-127, Norfolk & Western Railway Co. v. Goode, also on certiorari to the same court.
[]  Stephen A. Trimble, John M. Clifford, and John J. Delaney filed a brief for the Association of American Railroads et al. as amici curiae urging reversal.


                                   UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT

                                       No. 15-1806

KIMMY MCNAIR; LARRY MCNAIR,

            Plaintiffs – Appellants,

v.

JOHNSON   &   JOHNSON,    a  foreign  corporation;    JANSSEN
PHARMACEUTICALS, INCORPORATED, a foreign corporation; ORTHO-
MCNEIL PHARMACEUTICAL, INCORPORATED, a foreign corporation,

            Defendants – Appellees.

Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:14-cv-17463)

Argued: January 25, 2017                                        Decided: July 18, 2019

Before NIEMEYER, TRAXLER, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Richard David Lindsay, TABOR LINDSAY & ASSOCIATES, Charleston,
West Virginia, for Appellants. John Winter, PATTERSON BELKNAP WEBB &
TYLER LLP, New York, New York, for Appellees. ON BRIEF: Matthew C. Lindsay,
TABOR LINDSAY & ASSOCIATES, Charleston, West Virginia, for Appellants. Daniel
R. Higginbotham, THOMAS COMBS & SPANN, PLLC, Charleston, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

                                            2
PER CURIAM:

       Janssen Pharmaceuticals held the patent for the drug levofloxacin, which Janssen

marketed under the trade name of Levaquin. Kimmy McNair developed acute respiratory

distress syndrome (“ARDS”) after taking a generic version of the drug levofloxacin

manufactured by Dr. Reddy’s Laboratories. As required by federal law, the warnings

included with the generic drug taken by McNair were prepared by Janssen.

       Kimmy and Larry McNair subsequently filed an action in West Virginia state

court against Janssen. They alleged that Janssen was aware that ARDS had been linked

to the use of levofloxacin but negligently failed to include this fact in its warnings. The

McNairs contended that Janssen had exclusive control of the content of the warnings that

went out to the public and to health care providers for both the name brand drug and the

generic forms and that Janssen was therefore liable for injuries caused by the lack of

warning that levofloxacin might induce ARDS.

       After the case was removed to federal court on diversity grounds, the district court

granted summary judgment in favor of Janssen.         The district court held that West

Virginia law does not permit a plaintiff who consumes a generic drug to sue the

manufacturer that developed the original brand-name drug and warning label.            The

McNairs appealed the district court’s judgment to this court. We certified the following

question to the Supreme Court of Appeals of West Virginia: “Whether West Virginia

law permits a claim of failure to warn and negligent misrepresentation against a branded

drug manufacturer when the drug ingested was produced by a generic manufacturer.”

McNair v. Johnson & Johnson, 694 F. Appx. 115, 121 (4th Cir. 2017).

                                            3
       The West Virginia court accepted the certified question and answered it in the

negative, holding that “there is no cause of action in West Virginia for failure to warn and

negligent misrepresentation against a brand-name drug manufacturer when the drug

ingested was produced by a generic drug manufacturer.” McNair v. Johnson & Johnson,

818 S.E.2d 852, 867 (W. Va. 2018).

       The parties agree that the West Virginia decision is dispositive and that no viable

claims remain after the court’s ruling. Accordingly, the district court’s judgment granting

summary judgment to Janssen is hereby affirmed.

                                                                               AFFIRMED

                                             4


878 F.2d 1252
Diana WEBB, in her capacity as personal representative ofthe Estate of George Schultz, Plaintiff-Appellee,v.Donald P. HODEL, Secretary of the United States Departmentof the Interior;  David K. Grayson, Assistant RegionalSolicitor, United States Department of the Interior;  RobertF. Burford, Director, Bureau of Land Management, UnitedStates Department of the Interior;  Roland Robison, UtahState Director, Bureau of Land Management, United StatesDepartment of the Interior;  and the United StatesDepartment of the Interior, Defendants-Appellants.
No. 87-1997.
United States Court of Appeals,Tenth Circuit.
June 19, 1989.

Craig S. Cook, Salt Lake City, Utah, for plaintiff-appellee.
Sarah P. Robinson, Dept. of Justice, Washington, D.C.  (Roger J. Marzulla, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., Brent D. Ward, U.S. Atty., and Kathleen B. Barrett, Asst. U.S. Atty., Salt Lake City, Utah, Gerald S. Fish, and Martin W. Matzen, Dept. of Justice, Washington, D.C., with her on the briefs), for defendants-appellants.
Before McKAY, SETH and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.

1
This case arose out of the Bureau of Land Management's (BLM) voiding of 359 unpatented mining claims which belonged to George R. Schultz, because of Schultz's location of the claims while he was married to a BLM employee violated 43 U.S.C. Sec. 11 (1976) and 43 C.F.R. Sec. 20.735-24 (1982).  Schultz appealed the agency decision to the Interior Board of Land Appeals (IBLA), which affirmed.    George R. Schultz, 92 Interior Dec. 83, 85 IBLA 77 (1985).  Schultz next sought judicial review from the United States District Court for the District of Utah.  The government moved for summary judgment contending the agency action was supported by a reasonable interpretation of the statute and regulations.  The district court denied the government's motion and granted judgment for Schultz finding the agency action voiding Schultz's claims was in excess of the statutory authority granted by Congress in 43 U.S.C. Sec. 11 (1983).  The government appeals.  We AFFIRM.

Facts

2
Diana Webb has been an employee of the Moab District of the Utah State BLM since November 5, 1978.  On February 16, 1979 she married Schultz.  From 1982 to 1983 Schultz entered the public lands administered by the Moab District of the BLM under the Department of Interior, and the federal lands administered by the Forest Service under the United States Department of Agriculture, and located unpatented mining claims pursuant to the mining laws contained at 30 U.S.C. Sec. 22 (1983).  These claims were properly marked and recorded under the applicable state and federal mining laws.  In July 1982 Schultz formed Chinle Associates, a sole proprietorship, to manage his claims.  Webb had no role in Chinle Associates.  Complaint paragraphs 9-15.

3
On December 21, 1983 the Utah State BLM Office issued a first decision declaring 353 of the claims void ab initio, stating "the attempted mining locations by a spouse of a [BLM] employee is a violation of [43 U.S.C.] Sec. 11 (1976) and [43 C.F.R.] Sec. 20.735-24 (1982)...."    Complaint exhibit C.  On January 10, 1984 the Utah State BLM office issued a second decision declaring the remaining three claims void ab initio for the same reason stated in the first decision.  Complaint exhibit D.

4
Schultz filed a timely appeal with the Department's Interior Board of Land Appeals (IBLA).  On February 14, 1985 the IBLA issued a decision affirming the BLM decisions, George R. Schultz, 92 Interior Dec. 83, 85 IBLA 77 (1985).  The IBLA found the evidence inconclusive as to whether Webb had indirectly purchased or become interested in any public lands as prohibited under the terms of the statute.    Id. 85-86.  Rather the IBLA found Schultz's holding of mining claims while his wife was employed by the BLM was proscribed by the Department regulations, stating:

5
43 CFR 20.735-24(b)(1) prohibits a "member" of BLM from "voluntarily acquiring a direct or indirect interest in federal lands."    "Indirect interest" is defined to include "[h]oldings in land, mineral rights, grazing rights or livestock which in any manner is connected with or involves the substantial use of the resources or facilities of the federal lands" and specifically includes "[s]ubstantial holdings of a spouse."    43 CFR 20.735-24(a)(4).

6
Id. at 86.  It concluded under the regulations Webb had "acquired an indirect interest in Federal lands via her spouse's locating a substantial number of mining claims" making the claims void.  Id. at 88.

7
On November 22, 1985 Schultz appealed the IBLA decision to the United States District Court for the District of Utah pursuant to 28 U.S.C. Sec. 1331 (1982).  While the appeal was pending Schultz died and Webb was substituted as plaintiff in her capacity as general personal representative of the estate.1   The government moved for summary judgment contending its decisions were supported by a reasonable interpretation of the governing statute and regulations.  The district court denied the government's motion holding the agency action was in excess of the statutory authority granted the Department by Congress.  The court set aside the action voiding the claims and remanded the case to the IBLA for action consistent with its opinion.

8
The government appeals and asserts the following issue for review:

9
Whether the location of 359 mining claims on federal lands by the spouse of an employee of the Bureau of Land Management (BLM) violates 43 U.S.C. 11 which prohibits BLM employees from, inter alia, "directly or indirectly purchasing or becoming interested in the purchase of any of the public land" and the Department of Interior's conflict of interest regulations, 43 C.F.R. Part 20, which implement, inter alia, 43 U.S.C. 11, and, if so, whether the mining claims are void ab initio.

10
Appellants Brief at 2.

Analysis

11
On appeal from a district court's review of an agency's action, the appellate court " 'must render an independent decision on the basis of the same administrative record as that before the district court;  the identical standard of review is employed at both levels;  and once appealed, the district court decision is accorded no particular deference.' "    Brown v. United States Dept. of Interior, 679 F.2d 747, 748-49 (8th Cir.1982) (quoting First Nat'l Bank of Fayetteville v. Smith, 508 F.2d 1371, 1374 (8th Cir.1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975)).  The facts in this case are undisputed.  The issues posed for review are strictly legal ones.  In our review of the IBLA's application of legal concepts to the undisputed facts, it is the duty of this court to set aside the decision of the IBLA if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."    5 U.S.C. Sec. 706(2)(A) (1983);  Hurley v. United States, 575 F.2d 792, 793 (10th Cir.1978).  Review under the "arbitrary and capricious standard" requires the court to decide whether the agency acted within the scope of its authority, whether the actual choice made was based on a consideration of the relevant factors, whether there has been a clear error of judgment, and whether the agency's action followed the necessary procedural requirements.  Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-17, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971).  Applying this standard we conclude, like the district court, that the IBLA decision must be reversed.

12
The issue in this case involves statutory construction.  The court is required to give substantial weight to the interpretation made by the agency which is charged with the statute's administration.  Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S.Ct. 849, 854-55, 28 L.Ed.2d 158 (1971).  We are obligated to regard as controlling a reasonable, consistently applied interpretation of the government.  Ehlert v. United States, 402 U.S. 99, 105, 91 S.Ct. 1319, 1323, 28 L.Ed.2d 625 (1971).  While administrative agency regulations are entitled to judicial deference, they are not legally binding on the court.  Newmon v. Delta Air Lines, Inc., 374 F.Supp. 238, 245 (N.D. Ga.1973).  Regulations are entitled to no deference if they are inconsistent with congressional intent, Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94, 94 S.Ct. 334, 339, 38 L.Ed.2d 287 (1973), or if there are compelling indications that the regulations are wrong.  Red Lion Broadcasting Co. v. Federal Comm. Comm'n, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969).

13
In construing a statute, the court must begin with the statutory language itself.  United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981);  Wilson v. Stocker, 819 F.2d 943, 948 (10th Cir.1987).  If the statute is unambiguous, the literal language of the statute controls.  Glenpool Util. Servs.  Auth. v. Creek Co. Rural Water Dist. No. 2, 861 F.2d 1211, 1214 (10th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2068, 104 L.Ed.2d 633 (1989).  43 U.S.C.A. Sec. 11 (1986) states:

14
The officers, clerks, and employees in the Bureau of Land Management are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land;  and any person who violates this section shall forthwith be removed from his office.

15
A plain reading of this statute indicates its prohibitions are directed at BLM officers, clerks, and employees.  Herbert McMicken, 11 Interior Dec. 96, 98 (1890).  The BLM is given no jurisdiction over the spouses of BLM officers, clerks, and employees.  If Congress had intended the prohibitions of this statute to apply to the spouses of BLM employees, it would have explicitly included spouses.  See e.g., 18 U.S.C. Sec. 208 (1983) (any executive employee who participates in a government matter in which, to his knowledge, his spouse has a financial interest shall be fined or imprisoned).  Under a plain reading of the statute, the BLM was without statutory authority to void Schultz's claims.

16
This construction is consistent with the revised agency regulation which no longer prohibits spouses of BLM employees from acquiring interests in federal lands.  In 1981 the BLM regulations on conflicts of interest were revised.  The provisions of 43 C.F.R. Part 7 were modified and incorporated into 43 C.F.R. Part 20.  46 F.R. 58420.  At the time of incorporation, 43 C.F.R. Sec. 7.3 stated in pertinent part:

17
(a) An employee and the spouse of an employee ... are prohibited from:

18
(1) Voluntarily acquiring an interest in the lands or resources administered by the Bureau of Land Management....

19
(Emphasis added.)    The revised section deletes the prohibition against the spouse and reads in pertinent part:

20
(a)(4) "Indirect interest in federal lands" means any ownership or part ownership of an interest in federal lands by an employee in the name of another where the employee still reaps the benefits.  Indirect interest in federal lands also includes:

21
....(ii) Substantial holdings of a spouse or dependent child.

22
(b) Prohibitions.    (1) The Director and members of the ... Bureau of Land Management ... are prohibited from:

23
(i) Voluntarily acquiring a direct or indirect interest in federal lands....

24
43 C.F.R. Sec. 20.735-24 (1986).  The revised regulation is consistent with the original regulation which recognized the statute gave the agency no authority to void the claims of spouses, but cautioned the spouse's purchase of federal lands would be cause for dismissal of the employee.2

25
The government argues Schultz's claims are void because Webb acquired a prohibited indirect interest in the claims by virtue of her marriage to Schultz at the time of the location of the claims.  Although the IBLA was aware that W. William Howard and James L. Schultz received deeds dated July 18, 1983, from George R. and Mary Schultz, "husband and wife," quitclaiming undivided interest in several of the claims, 92 Interior Dec. at 84, n. 1, it did not find under the statute that Webb had an indirect interest in the claims.  92 Interior Dec. at 85-86.  The district court agreed with this conclusion.  Memorandum Opinion and Order.  Based on the record presented on appeal by the parties we also agree.

26
The phrase "indirectly purchasing or becoming interested in the purchase of any of the public land" is not defined in the statute.  Nor have we found help in review of the legislative history3 or the case law. The government suggests this case is controlled by Waskey v. Hammer, 223 U.S. 85, 32 S.Ct. 187, 56 L.Ed. 359 (1912), and Prosser v. Finn, 208 U.S. 67, 28 S.Ct. 225, 52 L.Ed. 392 (1908).  Both cases are distinguishable because they involve an employee's direct acquisition of mining claims while employed by the General Land Office (reorganized as the Bureau of Land Management).  Neither case defines an indirect interest nor do they involve actions by the spouse of an employee.

27
The only case on indirect interest the parties cited is United States v. Mississippi Valley Generating Co., 364 U.S. 520, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961).  The Supreme Court was called on to construe a similar term in a general, government conflict of interest statute.  The government sought to avoid a contract because the government agent, Wenzell, who negotiated the terms of the contract was "directly or indirectly" interested in the contract, a violation of 18 U.S.C. Sec. 434.4   Id. at 524, n. 2, 81 S.Ct. at 296, n. 2.    In determining whether Wenzell's activities fell within the prohibitions of the statute the Court stated:

28
We think that the findings of the lower court demonstrate that, at the very least, Wenzell had an indirect interest in the contract which the sponsors were attempting to obtain.  That interest may be described as follows:  Wenzell was an officer and executive of First Boston;  he not only shared in the profits which First Boston made during the year, but he also received a bonus for any business which he brought to the firm;  if a contract between the Government and the sponsors was ultimately agreed upon, there was a substantial probability that, because of its prior experience in the area of private power financing, First Boston would be hired to secure the financing for the proposed Memphis project;  if First Boston did receive the contract, it might not only profit directly from that contract, but it would achieve great prestige and would thereby be likely to receive other business of the same kind in the future;  therefore, Wenzell, as an officer and profit-sharer of First Boston, could expect to benefit from any agreement that might be made between the Government and the sponsors.

29
364 U.S. at 555, 81 S.Ct. at 312.  The Court's analysis focuses on the benefits Wenzell would receive as a result of his negotiation of a government contract that would benefit First Boston.  These benefits flow directly from his interest in First Boston as a profit sharer.

30
The evidence in the record before us fails to establish Webb's relationship to Schultz's claims through their marriage created a substantial likelihood that Webb would reap benefits from these claims.5   There is no evidence that Webb was a locator, co-owner or owner of any of the claims, or that she had any other business relationship to the claims which would result in her receipt of income or other benefits from the claims.  We are not persuaded that Webb had an indirect interest under the statute.

31
The IBLA's conclusion that Webb had an indirect interest is based solely on the regulation defining "indirect interest" as "substantial holdings of a spouse", 43 C.F.R. 20.735-24(a)(4)(ii).  92 Interior Dec. at 86.  The government contends the financial interdependence of spouses under state law amply supports the agency's determination that an employee is indirectly interested in the property of her spouse.  Appellant's Brief at 24.  This contention is based on Utah statutes which provide:  spouses are jointly liable for family expenses (Utah Code Ann. Sec. 30-2-9);  each spouse has the duty to support the other in time of need (Utah Code Ann. Secs. 78-45-3 and 78-45-4);  upon divorce marital property is distributed as reasonable and necessary (Utah Code Ann. Sec. 30-3-5);  and upon death the surviving spouse has an elective share of the estate (Utah Code Ann. Sec. 75-2-201).  Appellant's Brief at 25.  We do not agree that these state statutes give the spouse an indirect interest in an unpatented mining claim.

32
The locator of an unpatented mining claim, properly located, has a vested property interest.  Cole v. Ralph, 252 U.S. 286, 295, 40 S.Ct. 321, 325, 64 L.Ed. 567 (1920);  Shell Oil Co. v. Andrus, 591 F.2d 597, 603 (10th Cir.1979), aff'd, 446 U.S. 657, 100 S.Ct. 1932, 64 L.Ed.2d 593 (1980).  The Supreme Court rejected the argument that a Montana statute, which gave a widow an elective share in her husband's estate under dower, gave the widow a right of dower in an unpatented mining claim that her husband had owned during their marriage.  Black v. Elkhorn Mining Co., 163 U.S. 445, 16 S.Ct. 1101, 41 L.Ed. 221 (1896).  In coming to this conclusion the Court recognized that the states treat a locator's possessory interest in an unpatented mining claim as property which may be sold, mortgaged or inherited.  Id. at 449, 16 S.Ct. at 1102.    However, the Court relied solely on the federal laws to determine the rights of the locator and his spouse, stating:

33
It does not by its terms grant any right to the wife of the locator either present or contingent.  Being the owner of the lands, the government could of course impose its own terms upon which to grant any right, whether of possession or of purchase.

34
Id. at 448, 16 S.Ct. at 1102.    The Court concluded, "[w]e do not think that under the Federal statute the locator takes such an estate in the claim that dower attaches to it."    Id. at 450, 16 S.Ct. at 1103.    Based on the reasoning in Black, we are not persuaded that a spouse's rights in a locator's unpatented mining claim may be defined by state law.

35
The regulation prohibits an employee from "[v]oluntarily acquiring a direct or indirect interest in federal lands."    43 C.F.R. Sec. 20.735-24(b)(i).  Our review of the record presented on appeal fails to establish Webb voluntarily participated in the acquisition of Schultz's mining claims.

36
There is no evidence that Webb directed Schultz to locate the claims on her behalf or participated in the location of the claims.  The regulation defines indirect interest as the ownership of an interest in federal lands by an employee in the name of another where the employee reaps the benefits.  43 C.F.R. Sec. 20.735-24(a)(4).  This requirement that the employee reap the benefits applies to an employee's indirect interests held by the employee's spouse.  Without a showing that Webb is entitled to reap the benefits of her spouse's holdings, we cannot conclude that their relationship alone causes Webb to have an indirect interest.  The mere ownership of the claims by Webb's spouse standing alone is not enough to establish an indirect interest.

37
Where the IBLA determined there was not sufficient evidence in the record to establish Webb's indirect interest under the statute, it would be arbitrary and capricious to find sufficient evidence of her indirect interest under the regulation.  To support a finding of an employee's indirect interest under the statute or regulation the agency must establish the employee is entitled to receive the benefit of the interest in the federal lands.

38
The government argues that if Webb has an indirect interest in a claim, then the claim is void ab initio.    If it were determined that Webb was the sole owner and beneficiary of an indirect interest in a claim held in the name of another, then the entire claim could be voided, as provided in Waskey, 223 U.S. at 94-95, 32 S.Ct. at 189, because the other party's interest in the claim is a mere subterfuge.  However, if it is determined that Webb's indirect interest is that of a co-owner, then only Webb's interest can be voided and the other co-owner's interest remains intact.  Floyd v. Montgomery, 26 Interior Dec. 122, 139 (1898) (Co-owner of undivided one-twentieth interest in a mining claim, who was a deputy mineral surveyor at the time of acquisition, was not permitted to patent the claim.  Co-owner's name was stricken from the entry and the patent was issued to the others.);    Alfred Baltzell, 29 Interior Dec. 333, 334 (1899) (Baltzell was a deputy mineral surveyor at the time he made a mineral entry for himself and the California Consolidated Iron Mine.  His name was stricken from the entry and omitted from the patent.)    If Webb has an indirect interest in the claims as a co-owner, then the proper remedy is to void her interest while leaving Schultz's interest intact.  If the BLM finds the administration of Schultz's mining claims creates a conflict of interest, it may still remove Webb according to its procedures.

39
We AFFIRM the district court decision and REMAND to the District Court with instructions to order the claims reinstated.

1
 Nothing in the record presented to us indicates any interest Webb acquired in the mining claims by virtue of Schultz's death.  We will refer to Schultz in discussing the interests of his estate and only refer to Webb in her individual capacity unless otherwise specified

2
 On May 12, 1906 the Department of Interior approved a circular on the "Right of Wife of Employee of General Land Office to Purchase Public Land" which stated in part:
While section 452 of the Revised Statutes [recodified as 43 U.S.C. Sec. 11] does not prohibit the acquisition of title to the public lands of the United States under appropriate laws by the wives of officers, clerks, and employees of the land department it is not deemed advisable or proper in the interest of good administration that they should do so.  Accordingly, such officers, clerks, and employees, are advised that the application, entry, purchase, or acquisition of title, directly or indirectly, to any of the public lands by their wives, prior to the separation from the service of such officers, clerks, or employees, will be deemed a sufficient cause upon which to base a recommendation for removal or dismissal from the service of the officer, clerk, or employee whose wife acquires or seeks to acquire title to any of the public lands.
Circulars and Regulations of the General Land Office, at p. 1026 (1930) (also reported as 34 Land Dec. 605).

3
 This statute was originally enacted in 1812, Act of April 25, 1812, ch. 68, Sec. 10, 2 Stat. 717, and has remained substantially unchanged over the years.  The original prohibition in the Act stated:
That no person appointed to an office instituted by this act, or employed in any such office, shall directly or indirectly be concerned in the purchase of any right, title or interest, in any public land, either in his own right, or in trust for any other person, or in the name or right of any other person in trust for himself, nor shall take or receive any fee or emolument for negotiating or transacting the business of the office.  And any person offending in the premises against the prohibitions of this act, shall forfeit and pay one hundred dollars;  and, upon conviction, shall be removed from office.
An Act for the establishment of a General Land Office, Act of April 25, 1812, ch. 68, Sec. 10, 2 Stat. 717.  This provision was adopted without comment in the debates of Congress.  23 Annals of Congress 1108, 1240, 1327, 1329;  12 Cong., 1st Sess.  (1812).
The Act of 1812 was superseded when the General Land Office was reorganized in the Act of July 4, 1836, ch. 352, Sec. 14, 5 Stat. 112.  The new Act contained the following modified language:
That all and every of the officers whose salaries are hereinbefore provided for, are hereby prohibited from directly or indirectly purchasing, or in any way becoming interested in the purchase of any of the public land;  and in case of a violation of this section by such officer, and on proof thereof being made to the President of the United States, such officer, so offending, shall be forthwith removed from office.
Id.  This section was adopted when the House committee considered this bill from the Senate, "Mr. HAWES submitted an amendment prohibiting officers of the General Land Office from purchasing public lands.  Agreed to."    67 Debates of Congress 4606, 24th Cong., 1st Sess.  (1836).
The Revised Statutes Sec. 452, adopted December 1, 1873, enlarged upon the language of Sec. 14 of the Act of 1836 and provided:
The officers, clerks and employees in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land;  and any person who violates this section shall forthwith be removed form his office.
The language of Sec. 452 remained substantially without change when it was recodified at 43 U.S.C. Sec. 11.

4
 The statute reads as follows:
Whoever, being an officer, agent or member of, or directly or indirectly interested in the pecuniary profits or contracts of any corporation, joint-stock company, or association, or any firm or partnership, or other business entity, is employed or acts as an officer or agent of the United States for the transaction of business with such business entity, shall be fined not more than $2,000 or imprisoned not more than two years, or both.
(Section repealed October 23, 1962.)

5
 The district court's opinion indicates at the hearing on summary judgment the government presented evidence that Webb possessed some direct interest in the claims, specifically a check addressed to George and Mary Schultz for $15,000 from the lessees of some of the claims.  There is no indication in the record that this evidence was ever presented to the BLM or IBLA.  Generally, under an "arbitrary and capricious" review the courts are not entitled to review evidence beyond the administrative record.  See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973);  Asarco Inc. v. U.S. Environmental Protection Agency, 616 F.2d 1153, 1158-60 (9th Cir.1980).  We are bound by the IBLA's conclusion that the evidence was insufficient to establish Webb's interest under the statute.  92 Interior Dec. at 85-86


802 F.2d 462
Wadev.Ponder
86-1005
United States Court of Appeals,Eighth Circuit.
7/7/86

1
E.D.Ark.

AFFIRMED


983 F.2d 236
U.S.v.Munoz-Cadavid*
NO. 91-5645
United States Court of Appeals,Eleventh Circuit.
Dec 30, 1992

1
Appeal From:  S.D.Fla.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3


                                           No. 04-764

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 157

HELEN EVES, individually and as personal
representative of the Estate of Zachary Eves Bear
Don’t Walk, Deceased, and for the heirs of said Estate,

               Plaintiff and Appellant,

         v.

ANACONDA-DEER LODGE COUNTY,
and John Does 1 through 10,

               Defendants and Respondents.

APPEAL FROM:          The District Court of the Third Judicial District,
                      In and For the County of Deer Lodge, Cause No. DV 2003-12,
                      Honorable Ted L. Mizner, Presiding Judge

COUNSEL OF RECORD:

               For Appellant:

                      Edward Moriarity and Shandor Badaruddin, Moriarity, Gooch,
                      Badaruddin & Booke, Missoula, Montana

                      Ann Moderie & James Manley, Manley Law Firm, Polson, Montana

               For Respondents:

                      Thomas M. Welsch, Poore, Roth & Robinson, Butte, Montana

                                                          Submitted on Briefs: May 11, 2005

                                                                    Decided: June 21, 2005
Filed:

                      __________________________________________
                                        Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Helen Eves, on behalf of her deceased son Zachary Eves Bear Don’t Walk (Zachary),

appeals from the grant of summary judgment to Anaconda-Deer Lodge County (County).

We affirm.

¶2     We address the following issue on appeal:

¶3     Whether a special relationship existed between the County and Zachary such that the

County had a duty to protect him from harm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     Zachary voluntarily committed himself to the Montana State Hospital (Hospital) at

Warm Springs in late 1996. On March 3, 1997, Zachary, without telling anyone, left the

hospital grounds and walked into the countryside. The temperature that day was approxi-

mately 37 degrees, and snow was on the ground. Once the Hospital’s staff discovered

Zachary had left, the nursing supervisor telephoned local law enforcement to report his

disappearance. She reported to the dispatcher that she was concerned with Zachary’s ability

to care for himself and asked if county police could locate him. The dispatcher told the

nursing supervisor that, because Zachary was a voluntarily committed patient, the police had

no legal basis to stop and detain him. County police officer Daniel Blume was notified of

Zachary’s disappearance, but he did not initiate a search. Instead, Blume kept lookout for

Zachary during his routine patrol of the general area where Zachary was believed to be.

Blume did not see any signs of Zachary. The nursing supervisor did not ask for a search and

                                             2
rescue operation, nor is there any indication that the dispatcher advised against such a

request.

¶5     Zachary’s body was found several weeks later in a field approximately six miles from

the Hospital. An autopsy report stated that he died of exposure one to three days after he left

the Hospital.

¶6     Helen Eves brought this suit against the County asserting wrongful death and

survivorship claims against the County. She argued that the County owed a duty to try to

find Zachary and that it breached that duty. The County moved for summary judgment, and

the District Court granted its motion. Eves now appeals.

                                STANDARD OF REVIEW

¶7     We review a grant of summary judgment de novo. We apply the same criteria as the

district court according to Rule 56, M.R.Civ.P. Gullett v. Van Dyke Const. Co., 2005 MT

105, ¶ 11, 327 Mont. 30, ¶ 11, 111 P.3d 220, ¶ 11. Summary judgment shall be granted if

the evidence filed with the court “show[s] that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c),

M.R.Civ.P.

                                       DISCUSSION

¶8     Whether a special relationship existed between the County and Zachary such that the

County had a duty to protect him from harm.

¶9     Generally, government officials do not owe a duty to specific members of the public,

but only to the public as a whole. This rule of law is known as the “public duty doctrine.”

                                              3
Nelson v. Driscoll, 1999 MT 193, ¶ 21, 295 Mont. 363, ¶ 21, 983 P.2d 972, ¶ 21. Ordinarily

the County would not have owed Zachary a duty, such as searching for him and making sure

no harm came to him. However, this Court has recognized exceptions to the doctrine.

Specifically, an exception “arises when there exists a special relationship between the police

officer and an individual giving rise to a special duty that is more particular than the duty

owed to the public at large.” Nelson, ¶ 22 (citations omitted). We have recognized four

circumstances where a “special relationship” may arise. Nelson, ¶ 22.

¶10    Eves argues that County officials established such a relationship under two of these

circumstances, namely “when a government agent undertakes specific action to protect a

person or property,” and “by governmental actions that reasonably induce detrimental

reliance by a member of the public . . . .” Nelson, ¶ 22 (citations omitted). Nelson v.

Driscoll informs our decision regarding both of these claims.

¶11    In Nelson, an officer stopped a motorist and sought to administer a sobriety test, but

due to inclement weather conditions was unable to do so. Nelson, ¶¶ 8-10. Although the

officer did not believe he had probable cause to arrest the driver, Trina, he advised her that,

given the weather and that she had been drinking, he did not think it safe for her to drive

home. Nelson, ¶ 10. Trina and her husband then exited the car and stated that they would

call a friend for a ride. The officer then drove around the block three times to check on them

before leaving the couple for good. Soon afterwards a motorist struck and killed Trina as she

walked between lanes of traffic on the highway. Nelson, ¶¶ 12-13.

                                              4
¶12    We concluded that, in pulling Trina over and directing how she and her husband could

go home, the officer assumed a duty to protect her from harm. Nelson, ¶ 40. The County’s

actions in this case, however, were qualitatively different. Officer Blume did undertake to

look for Zachary during his routine patrol. However, since Blume did not see or have any

contact with Zachary, his actions did not influence how Zachary behaved, as in Nelson, nor

did Zachary rely, to his detriment, on Blume’s actions. The same is true for the actions of

the dispatcher.

¶13    Eves additionally argues that the dispatcher misinformed the Hospital in stating that

the County had no authority to detain Zachary if an officer found him. She contends that

under § 53-21-129, MCA (1995), in an emergency “a peace officer may take any person who

appears to be seriously mentally ill and as a result of serious mental illness to be a danger to

others” and briefly detain them to assess their mental health. Without ruling on whether this

provision could have applied if a County peace officer had found Zachary, we note that, even

if a peace officer could have detained Zachary under this statute, the statement by the

dispatcher to the nursing supervisor would still not have created a special relationship

between the County and Zachary because Zachary was in no way involved in this exchange.

The reliance exception to the public duty doctrine quoted above would not apply because it

would have been the Hospital which relied on the statement, not Zachary.

¶14    Therefore, we conclude that there was no special relationship that arose out of the

actions of County officials such that those officials owed a duty to Zachary.

                                               5
                                   CONCLUSION

¶15   The judgment of the District Court is affirmed.

                                               /S/ W. WILLIAM LEAPHART

We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS

                                           6


Order entered November                    ,2012

                                              In The
                                     Court of Appeals
                           ifth istritt of gtxas at allas
                                      NO. 05-12-00904-CR

                               ANDRES HERRERA, Appellant

                                                  V.

                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 265th Judicial District Court
                                     Dallas County, Texas
                             Trial Court Cause No. F08-11091-R

                                             ORDER

       The Court REINSTATES the appeal.

       On October 10, 2012,          ordered the trial court to make findings regarding why

appellant’s brief has not been filed. We ADOPT the findings that: (1) appellant has been

removed from the country and returned to his native country; and (2) appellant has not

communicated with counsel regarding the appeal. Based on the findings, we conclude appellant

no longer desires to pursue the appeal.
            ORDER the appeal submitted, without briefs and argument, as of the date of this

order, to a panel consisting of Justices Richter, Lang-Miers, and Myers. See Tex. R. App. P.
38.80 ).

           DAVID L. BRIDGES
           JUSTICE


131 F.2d 93 (1942)
CULP
v.
UNITED STATES.
NANCE
v.
SAME.
MILLER
v.
SAME.
Nos. 12219-12221.
Circuit Court of Appeals, Eighth Circuit.
November 4, 1942.
*94 *95 Charles D. Frierson, of Jonesboro, Ark. (Wils Davis, of Memphis, Tenn., and John A. Fogleman and James C. Hale, both of Marion, Ark., on the brief), for appellants.
Leon B. Catlett and W. H. Gregory, Asst. U. S. Attys., both of Little Rock, Ark. (Sam Rorex, U. S. Atty., of Little Rock, Ark., and Thomas J. Dodd, Sp. Asst. to Atty. Gen., on the brief), for appellee.
Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.
*96 SANBORN, Circuit Judge.
The appellants and others were indicted under § 88, 18 U.S.C.A.,[1] for having conspired to commit an offense defined in § 52, 18 U.S.C.A.[2] These appeals are from judgments of conviction entered upon verdicts of a jury. The questions for review, are, broadly, (1) whether the indictment charged a conspiracy "to commit any offense against the United States," and (2) whether the appellants were denied a fair trial for any of the reasons asserted by them.
The defendants named in the indictment are Howard Curlin, Sheriff of Crittenden County, Arkansas, Omer Curlin, a Deputy Sheriff of that County and keeper of the county jail at Marion, Arkansas, C. C. Culp, a Deputy Sheriff of Crittenden County and City Marshal of the city of West Memphis, Arkansas, Harold D. Holland, a patrolman of the Arkansas State Police, Cecil B. Nance, a practicing attorney of Marion, Arkansas, and Jim Miller, an inmate of the Crittenden County Jail in Marion.
The indictment charges that the defendants Howard Curlin, Omer Curlin, C. C. Culp and Harold D. Holland were law enforcement officers of the State of Arkansas and of the County of Crittenden and of the governmental subdivisions thereof; that from on or about January 1, 1937, "up to and including on or about the 1st day of January, 1941," all of the defendants conspired to violate § 52, 18 U.S. C.A., in that they would, under color of specified laws of the State of Arkansas, of specified ordinances of the city of West Memphis, Arkansas, and of Marion, Arkansas, and under color of custom, subject certain named citizens and inhabitants of Arkansas, Tennessee and other States and inhabitants and citizens of various States whose names are unknown, all such persons, named and unnamed, being referred to collectively as "victims," to the deprivation of rights, privileges and immunities secured to them and protected by the Constitution and laws of the United States  "to-wit: the right and privilege of being free from arrest and restraint of their liberty, save and except by due process of law, the right and privilege of being free from unlawful intimidation and unlawful assault on their persons, the right to be free from the infliction of cruel and unusual punishment upon their persons, the right to have a speedy and public trial, the right to be confronted with the witnesses against them, the said victims; the right to be admitted to bail; the right and privilege of being secure in their persons, property, and effects;"  by causing such inhabitants and citizens to be arrested without cause, to be imprisoned in the jail at West Memphis or at Marion, to be falsely charged with violations of the laws of Arkansas or the ordinances of West Memphis or of Marion, to be unlawfully held in jail for long periods of time without being permitted to communicate with any persons outside of jail, and to be beaten and assaulted for purposes of extortion; that, after the "victims" had been held in jail and assaulted, they would be advised that they could secure their release only by communicating with the defendant Nance; that Nance, when conferred with by the "victims," would tell them that they could be released only upon payment of large sums of money to Nance or to another of the defendants; that, after conferring with Nance, the "victims" would be permitted to communicate with relatives or friends to obtain the funds demanded for the release of the "victims;" and that, when the money had been obtained or delivered to Nance or one of the other defendants, the "victims" would, in many instances, be taken before local magistrates, who would be directed by one or more of the defendants to enter upon their (the magistrates') dockets the imposition of certain fines or pretended fines *97 based upon false charges of crimes and misdemeanors filed by the defendants against the "victims" for the purpose of extorting money from them. The indictment then alleges that, in furtherance of the conspiracy, twenty-six overt acts were committed by one or more of the defendants. The overt acts include arrests and imprisonments of "victims," without cause, by Culp and Holland, and assaults committed upon "victims" by those officers, the receipt of money from "victims" by Nance and by Howard Curlin, paid to them by "victims" in order to secure release from imprisonment, the receipt by Jim Miller of money from "victims," paid to him "as the operator of a kangaroo court then and there conducted in the Crittenden County jail at Marion" and in order to avoid being beaten by him, extortion of money by Miller and Omer Curlin from a "victim" under threat of assault, the extortion of money from a "victim" by Nance, Culp and Holland, and an assault and beating committed upon a "victim" by Miller while the "victim" was in the Crittenden County jail at Marion.
All of the defendants entered pleas of not guilty. Howard Curlin, the Sheriff of Crittenden County, died prior to the trial.
Since the appellants do not argue, in their brief, that the evidence of the Government was insufficient to sustain their convictions, a detailed discussion of the evidence is unnecessary. It is enough to say that the Government produced some fifty witnesses to sustain its charges, and that their evidence tended to prove a confederation of the defendants to procure the arrest and imprisonment, under color of state law, without cause, of inhabitants of the United States, and to abuse and mistreat them in order to induce them to purchase their release, and to make it appear upon the dockets of local magistrates that such inhabitants had entered pleas of guilty to, and had been fined for, offenses which they had not committed; that Culp, Holland, Howard Curlin, and Omer Curlin were officers of the State; that they, or some of them, would make the false arrests under color of state law and would abuse and beat the "victims" while arresting them and taking them to jail; that Omer Curlin was the keeper of the jail at Marion; that Jim Miller was an inmate of the jail and was the head of a "kangaroo court," and, as such, imposed small fines or fees upon the "victims;" that if they were unable or unwilling to pay these fines or fees, they were beaten with a leather strap; that Nance was the only lawyer and the only person, outside the jail, with whom the "victims" were initially allowed to communicate; that, after the "victims" had been advised by Nance of the amount of money required to secure their release, they were permitted to communicate with friends and relatives in order to secure the funds required; and that, when the money was paid over to Nance, the release of the "victims" followed.
The evidence of the defendants tended to show, in substance, that there was no collusion between them to have anyone falsely arrested or falsely imprisoned under color of state law; that the "victims" were all law violators, properly arrested and imprisoned, none of whom was assaulted unless in resisting arrest; that the "victims," if sober, were not prevented from communicating with friends, relatives and lawyers other than Nance; that the "victims" were not beaten or abused while in jail; that the activities of Jim Miller were confined to making voluntary collection of small sums to be used for the benefit of all inmates of the jail at Marion; and that Nance was regularly retained as a lawyer by the "victims" and acted as their counsel without any agreement with the other defendants as to splitting fees.
The jury acquitted Omer Curlin and Holland, but found the other defendants, who are the appellants here, guilty.
The first contention of the appellants is that the court had no jurisdiction to try them, because the offense which they are charged with having conspired to commit was not an offense against the United States. They argue that any rights of which the "victims" may have been deprived are not "rights, privileges, or immunities secured or protected by the Constitution and laws of the United States" within the meaning of § 52, 18 U.S.C.A.
The due process clause of the Fourteenth Amendment to the Constitution of the United States prohibits any state from depriving any person of life, liberty, or property, without due process of law. Section 5 of the Fourteenth Amendment provides that "the Congress shall have power to enforce, by appropriate legislation, the provisions of this article." It is true that the Fourteenth *98 Amendment added nothing to the rights of one citizen or inhabitant of the United States as against another. It furnished "an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society." United States v. Cruikshank, 92 U.S. 542, 554, 23 L.Ed. 588. The right to the enjoyment of life and liberty and the right to acquire and possess property are fundamental rights of the citizens of the several states and are not dependent upon the Constitution of the United States or the Federal Government for their existence. Hodges v. United States, 203 U.S. 1, 15, 27 S.Ct. 6, 51 L.Ed. 65. The due process clause of the Fourteenth Amendment, however, proscribed state action which deprives a person of his fundamental rights without due process of law. The words of the Amendment are prohibitory, "but they contain a necessary implication of a positive immunity, or right." Strauder v. West Virginia, 100 U.S. 303, 307, 310, 25 L.Ed. 664. "A right or an immunity, whether created by the Constitution or only guaranteed by it, even without any express delegation of power, may be protected by Congress." Strauder v. West Virginia, supra, 100 U.S. page 310; United States v. Reese, 92 U.S. 214, 217, 23 L.Ed. 563. The states, in adopting the Fourteenth Amendment, expressly delegated to Congress the power to provide for the enforcement of its provisions by appropriate legislation. Sec. 52, 18 U.S.C.A., Sec. 20 of the Criminal Code, was enacted in the exercise of that power. That this section has not lost any of its vitality since it was originally enacted, is indicated by the recent opinion of the Supreme Court of the United States in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368. At page 326 of 313 U.S., at page 1043 of 61 S.Ct., the Supreme Court, speaking of this section, said: "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law. Ex parte [State of] Virginia, 100 U.S. 339, 346, 25 L.Ed. 676; Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 287 et seq., 33 S.Ct. 312, 314, 57 L.Ed. 510; Hague v. C. I. O., 307 U.S. 496, 507, 519, 59 S.Ct. 954, 960, 965, 83 L.Ed. 1423; cf. Id., 3 Cir., 101 F.2d 774, 790." The Supreme Court also said, on page 327 of 313 U.S., at page 1043 of 61 S.Ct., 85 L.Ed. 1368, that § 52 authorizes the punishment of two different offenses. "The one is willfully subjecting any inhabitant to the deprivation of rights secured by the Constitution; the other is willfully subjecting any inhabitant to different punishments on account of his color or race, than are prescribed for the punishment of citizens."
We do not doubt that the immunity of an inhabitant of the United States from a deprivation of life, liberty, or property by state action not amounting to due process of law is an immunity secured and protected by the due process clause of the Fourteenth Amendment. See opinion of Mr. Justice Stone in Hague v. C. I. O., 307 U.S. 496, 524-527, 59 S.Ct. 954, 83 L.Ed. 1423.
It is our opinion that a state law enforcement officer who, under color of state law, willfully and without cause, arrests and imprisons an inhabitant of the United States for the purpose of extortion, deprives him of a right, privilege, and immunity secured and protected by the Constitution of the United States, and commits one of the offenses defined in § 52, 18 U.S.C.A. It necessarily follows that an agreement between state law enforcement officers and others to extort money from inhabitants of the United States by causing their arrest and imprisonment, without justification, by such officers and under color of state law, would be a conspiracy under § 88, 18 U.S.C.A. We think that the District Court did not err in taking jurisdiction of this case.
The next point argued by the appellants is that the indictment was invalid because "the alleged overt acts concerning kangaroo court are not based upon any allegation in the conspiracy charge of the indictment and because no act of any state officer under color of any state law or city ordinance is alleged as to the assaults and batteries by Jim Miller, and he, himself, is not an officer."
The indictment, as has already been shown, sufficiently described the nature of the conspiracy, its object, and the means which were to be employed in executing it. There is no requirement that the overt acts charged in a conspiracy indictment must be described in that part of the indictment which charges the conspiracy. The purpose of alleging in a conspiracy indictment that one or more overt acts were committed in execution *99 of the conspiracy, is to show that it is the kind of conspiracy denounced by § 88, 18 U.S.C.A. "An indictment attempting to charge conspiracy is sufficient if it follows the language of the statute and contains a sufficient statement of an overt act to effect the object of the conspiracy, excepting where the object of the conspiracy is in itself lawful, and in such case the means must be set forth with such particularity as to disclose their illegality and the intended criminal intent, * * *." Jelke v. United States, 7 Cir., 255 F. 264, 275. If it were true that some of the overt acts referred to in the indictment were insufficiently or improperly alleged, that would not invalidate the indictment, since the commission of other overt acts was properly and sufficiently charged. That Jim Miller was not, and was not alleged to be, a state officer would not affect the validity of the indictment, since the fact that he could not commit the offense which was the alleged object of the conspiracy would not prevent him from agreeing with those who could commit it that the offense should be committed. United States v. Rabinowich, 238 U.S. 78, 86, 35 S.Ct. 682, 59 L.Ed. 1211; Coffin v. United States, 162 U.S. 664, 669, 16 S.Ct. 943, 40 L.Ed. 1109; Curtis v. United States, 10 Cir., 67 F.2d 943, 946; Carter v. United States, 8 Cir., 19 F.2d 431, 433.
It is next asserted by the appellants that the court sustained an uncertain and indefinite indictment by upholding the jurisdiction of the federal court "to supervise and try anew in criminal proceedings misdemeanor charges of which mayors and magistrate courts of Arkansas had assumed jurisdiction." This assertion, we think, misconceives the nature of the offense charged in the indictment. The appellants were charged with a conspiracy to violate § 52, 18 U.S.C.A., and over that offense no court or magistrate of Arkansas had, or had assumed, any jurisdiction. That the dockets of magistrates in Arkansas indicated that some of the "victims" of the conspiracy had entered pleas of guilty to violations of the laws of Arkansas or of ordinances of West Memphis or Marion, did not preclude the Government from alleging and proving that the "victims" of the conspiracy had been deprived of rights and immunities secured and protected by the due process clause of the Fourteenth Amendment, and that the proceedings before the magistrates were a mere pretense brought about by the unlawful acts of the defendants in furtherance of the conspiracy charged.
The appellants contend that the court erred in refusing to strike the evidence of Arthur Hall Patterson, a witness for the Government, because it appeared that he was not arrested nor fined and because his evidence has no probative value. Patterson, a resident of Memphis, Tennessee, testified that on or about July 20, 1940, when he was twenty years of age, he accompanied Leland Watts in an automobile on a trip to West Memphis, Arkansas; that they left Memphis about 11:30 at night and went to a place in or near West Memphis, where "they sell beer and dance," and stayed there about two hours; that they then started back toward Memphis; that he (Patterson) fell asleep in the car; that Watts was driving; that "the first thing I knew I was pulled out of the car and someone was hitting me. I did not make any fight. I pulled away from the man because I didn't know what else to do and I did not know he was an officer, nor had he told me he was. I ran away and was shot and fell down. I was shot in the back." The Government proved by Leland Watts that both he and Patterson were asleep in the automobile off of the highway near "Sam's place" in or near West Memphis, Arkansas; that the appellant Culp arrived on the scene; that he first woke Watts and asked what he had been drinking; that Culp then woke Patterson by shaking him, hit him over the head with a blackjack, and jerked him out of the car and "went to hitting him, and in the meantime this boy [Patterson] jerked loose and ran, and had run some twenty or twenty-five feet and that is when Mr. Culp shot three times, and one of them hit him and he fell." The Government's evidence also showed that Culp and a filling station attendant, after Patterson fell, dragged him over to Culp's car, in which were two negro boys who had been arrested by Culp; that they were in the back seat, and that Culp put Patterson on the floor between the back and front seats. There are other revolting details of the treatment accorded Patterson by Culp, but it is not necessary to refer to them. Patterson was taken to the City Hall or jail in West Memphis, where he lapsed into unconsciousness, and was then released and sent to a hospital, where he finally recovered. His companion, Watts, was sent to the jail at Marion and was released the next day, after "seeing *100 Mr. Nance." The Government's evidence showed that neither Watts nor Patterson was drunk or had created any disturbance. We think that the facts that Patterson was not formally placed under arrest, that he was not imprisoned, and that no charge was filed against him before any magistrate, had not the slightest effect upon the competency of his evidence. According to the Government's evidence relating to this incident, Patterson was taken into custody, deprived of his liberty without cause, and very nearly deprived of his life, by Culp. The appellants' version of this occurrence, of course, differed from that of the Government, but, for purposes of review we are required to regard the evidence in the light most favorable to the Government. Galatas v. United States, 8 Cir., 80 F.2d 15, 23; Marx v. United States, 8 Cir., 86 F.2d 245, 250; Walker v. United States, 8 Cir., 93 F.2d 383, 392.
The appellants contend that the court erred "in permitting a number of witnesses to testify, although they were not named as `victims' nor in overt acts;" and assert: "The only victim under Sec. 52, Title 18 U.S.C.A., must be some identified resident of some state, but the jury was left to convict on such incidents as the Millsaps case and others without any notice from the indictment." This point and the supporting argument are too vague and general to call our attention to any specific action of the court which it is claimed was erroneous, or to invoke from us any detailed discussion of what the appellants refer to as the Millsaps case, which, according to the Government's evidence, involved the beating of a colored boy by Culp and Holland for the purpose of compelling him to testify that his father, who had been accused of murder, had told the boy that he (the father) had committed the murder. The Millsaps case also involved the collection by Nance, from the father, of a fee of eleven hundred dollars, or more, after Nance had agreed to defend him against all charges, civil and criminal, for seven hundred and fifty dollars. The Government's evidence relating to the Millsaps case was not irrelevant, and the conduct of Culp, Holland and Nance, as disclosed by the evidence relative to that case, was similar to their dealings with other "victims." The fact that evidence was received from "victims" other than those specifically named in the indictment did not affect the competency of that evidence. Overt acts not alleged in a conspiracy indictment may be proved upon a trial. Worthington v. United States, 7 Cir., 1 F.2d 154, 155. The Government was, of course, not required to plead all of its evidence in the indictment. Conspiracies can usually be proved only by showing what the conspirators did in execution of them. "Necessarily the existence of the conspiracy in most cases can be made to appear only inferentially from the acts of the parties committed in furtherance thereof." Feigenbutz v. United States, 8 Cir., 65 F.2d 122, 124. See also: Devoe v. United States, 8 Cir., 103 F.2d 584, 588, 589; Ryan v. United States, 8 Cir., 99 F.2d 864, 869; Galatas v. United States, 8 Cir., 80 F.2d 15, 22-24, and cases cited; Jelke v. United States, 7 Cir., 255 F. 264, 280, 281.
It is asserted by the appellants that the court erred in giving the following instruction to the jury: "Now in this case there are some issues that need give you no concern, and the Court instructs you as a matter of law that whatever was done in this case was done within the jurisdiction and venue of this Court, and within the period of the statutes of limitation, and that this Court has jurisdiction of the offense in this case, if one has been committed;" and in refusing to strike evidence of overt acts occurring more than three years before the indictment was returned. There is no merit in this assertion. The indictment alleged that the conspiracy continued from on or about January 1, 1937, to on or about January 1, 1941. The overt acts, evidence of which was objected to by the appellants, all occurred after the alleged commencement of the conspiracy. That there could have been no prosecution for a substantive offense charged as an overt act, because the statute of limitations had run, would not prevent the Government from showing the commission of the overt act in furtherance of the conspiracy or as indicating that the conspiracy commenced and continued as alleged in the indictment. Shaw v. United States, 5 Cir., 41 F.2d 26. Such a conspiracy as is charged in this indictment is a continuing one, and the statute of limitations does not commence to run against it until the last overt act leading to its accomplishment is committed. United States v. Kissel, 218 U.S. 601, 607, 608, 609, 610, 31 S.Ct. 124, 54 L.Ed. 1168; Brown v. Elliott, 225 U.S. 392, 400, 401, 32 S.Ct. 812, 56 L.Ed. 1136; Lonabaugh v. United States, 8 Cir., 179 F. 476, 478; *101 Breese v. United States, 4 Cir., 203 F. 824, 830; Shaw v. United States, supra, 41 F.2d page 27; Eldredge v. United States, 10 Cir., 62 F.2d 449, 450; compare Eaker v. United States, 10 Cir., 76 F.2d 267, 269. The last overt act alleged in the indictment and proved by the Government's evidence occurred in 1940. Therefore the conspiracy charged in the indictment was not barred by limitations. We have already ruled that the court had jurisdiction.
The appellants complain of the court's refusal to give twelve of the instructions requested by them. The requested instructions, so far as they were accurate and appropriate, were, in substance, included in the court's charge to the jury. We regard the instructions given by the court as entirely fair and adequate, and are satisfied that there was no prejudicial error committed in the denial of any of the appellants' requests for instructions.
The appellants contend that "the court erred in instructing the jury urging that they agree upon a verdict after the jury had disagreed for some hours." The record indicates that the case was submitted to the jury on January 26, 1942, and that on the following day they reported that they were unable to agree; that the court then delivered a supplemental charge, impressing upon the jurors the importance of agreeing upon a verdict, if possible. The supplemental charge was the usual charge given by trial courts to juries under such circumstances. See United States v. Allis, C.C., 73 F. 165, affirmed Allis v. United States, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91. The supplemental instructions given by the court were entirely impartial. They contained no intimation as to what verdict should be rendered. No juror was asked to surrender his judgment or to violate his oath. The instructions were fair to the appellants and to the Government. Moreover, after the supplemental charge was given, the court's previous instructions were read to the jury. We are satisfied that the court did not abuse its discretion in giving the supplemental charge, and should be commended, rather than criticised, for doing so. The supplemental charge was nothing more than an earnest request to the jurors to attempt to reconcile their differences and to agree upon a verdict if they could conscientiously do so. Compare Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528; Boehm v. United States, 8 Cir., 123 F.2d 791, 812; Hewitt v. United States, 8 Cir., 110 F.2d 1, 10, certiorari denied 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409; United States v. McGuire, 2 Cir., 64 F.2d 485, 493; Dwyer v. United States, 2 Cir., 17 F.2d 696, 697, 698.
The judgments appealed from are affirmed.
NOTES
[1]  "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both."
[2]  "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both."