boe v. hughes

7/31/2019 BOE v. Hughes

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Board of Ed. of Montgomery County v. Hughes, 317 A.2d 485, 271 Md. 335 (Md., 1974)

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Page 335

271 Md. 335

317 A.2d 485BOARD OF EDUCATION OF MONTGOMERY COUNTY

v.

Herbert H. HUGHES et al.

No. 154.Court of Appeals of Maryland.

March 29, 1974.

Page 336

[317 A.2d 486] Roger W. Titus and RobertS. Bourbon, Rockville, (John T. Horton,Rockville, on the brief), for appellant.

Carl Harrison Lehmann, Upper Marlboro,for appellees.

Argued before MURPHY, C. J., andBARNES, * SINGLEY, SMITH, DIGGES,LEVINE and ELDRIDGE, JJ.

SMITH, Judge.

In what will be an unsuccessful attempt toobtain a new trial on the issue of damages in acondemnation proceeding, appellant, the Boardof Education of Montgomery County (the

Board), here objects to testimony of the owneras to what he paid for the whole tract and, also,to testimony of one of the owner's appraisersrelative to what he considered to be an integralpart of fair market value, namely the value of theincome to be derived from the land pending itsfull development. The amount of damages is theonly point at issue, since public necessity for theacquisition was admitted by the owner andstipulated to at the trial.

Herbert H. Hughes, one of the appellees,owns the land in question. The other appelleesare the trustees of a deed of trust which is a lienon the subject property. Hughes, therefore, is theone vitally interested. His 10.4 acre tract of landis located between Germantown andGaithersburg in the Middlebrook area ofMontgomery County, between Maryland Route355 and Route I-70S In fact, Route 355 is theeastern boundary of the whole parcel. The Board

sought to condemn the back 3.4789 acres for thesite of a future school to be known as UrbanaElementary School. The property owner retainedthe portion of the land fronting on

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the highway. In essence, it may be said theBoard's chief complaint is its state of shock at ajury verdict of $83,500, or about $24,000 peracre, which seems a bit high to it forunimproved back land in Montgomery Countyeven in this present day and age.

Since this is an eminent domain case in

which the points raised on appeal have to dowith the admission of evidence, we shallevaluate the objections in the light of Hance v.State Roads Comm., 221 Md. 164, 156 A.2d 644(1959), where Judge Prescott said for the Court:

'Courts are reluctant to set aside verdicts forerrors in the admission or exclusion of evidenceunless they cause substantial injustice. This isespecially true in condemnation proceedings.Such cases usually consume much time in trial,and are expensive in nature. As a rule, they aredetermined by a myriad of different items ofevidence. The exclusion or admission of smallitems of evidence of doubtful materiality are notlikely to be of great importance in the outcomeof the case, and most courts refuse to set aside averdict in cases of this kind, for error in therulings on questions of evidence, unless, asindicated above, substantial prejudice be shown.


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5 Nichols, (Eminent Domain), Sec. 18.1(2).' Id.at 176, 156 A.2d at 650.

To like effect see Md. Community Dev.,Inc. v. S. R. C., 261 Md. 205, 208, 274 A.2d 641(1971); Belworth, Inc. v. City of Baltimore, 256

Md. 369, 372, 260 A.2d 284 (1970); First Nat'lRealty v. S. R. C., 255 Md. 605, 610, 258 A.2d419 (1969); and State Roads Comm. v. Kuenne,240 Md. 232, 235, 213 A.2d 567 (1965).

i

Under the provisions of Maryland Code(1957, 1973 Repl.Vol.) Art. 21, 12-104, [317A.2d 487] the value of the land was determinedas of the date of trial, June 5, 1973, since therehad been no prior taking. The Board complainsbecause the owner was permitted to testify, overobjection, that he paid $247,500 for

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the whole tract when he bought it in December,1965. It urges that this testimony was notadmissible since 'the sale occurred seven andone-half years prior to the time of taking and didnot cover substantially the same property whichis the subject of the condemnation proceedings.'

In Baltimore City v. Schreiber, 243 Md.546, 551, 221 A.2d 663 (1966), we permitted aproperty owner to testify as to the purchaseprice. Judge Marbury there reviewed theauthorities for the Court. The Board regards assignificant his statement for the Court:

'The general rule in this country and in this stateis that 'evidence of the price paid for condemnedreal property on a sale prior to eminent domainproceedings is admissible in the proceedings atleast where the sale is voluntary, is not too

remote in point of time, or is not otherwiseshown to have no probative value.' (Emphasisadded.) Anno. 55 A.L.R.2d 793-812, and casestherein cited at pages 794-797.' Id. at 551, 221A.2d at 665.

It also sees significance in the furtherstatement in that case:

'(T)he better rule seems to be that if, in thesound discretion of the trial judge, the time isnot so remote as to destroy its probative value in

regard to the issue of present fair market value,then he should admit the testimony and leave theweight of the evidence for the consideration ofthe jury, along with such distinguishing factorsas may be brought to the attention of the jurorson cross-examination or otherwise.' Id. at 552,221 A.2d at 666.

In Schreiber, the Court held that evidenceof the purchase price 10 years prior tocondemnation as to one parcel and nine yearsbefore that date as to another was not 'so remote

in point of time as to have no probative force inregard to present fair market value, and thus (itfound) no abuse of discretion on the part of thetrial judge in failing to sustain objections to thistestimony.' The Board suggests, however,

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that in this case 'a new condition is presentedwhich has not heretofore been considered by thisCourt.' It says that here 'evidence was introduced

as to the seven-and-one-half-year old purchaseprice of the 10.04-acre tract of which the subjectproperty was only a small part. Furthermore, theentire tract contained far more desirable land atthe time of the earlier sale fronting on a stateroad and was improved by and benefited fromthe operation of a trailer park and restaurantbusiness.'

The ancient Preacher of more than 2000years ago, said by some to have been KingSolomon, 1 one of the wisest and noblest of men,

and said by others to have written as much as700 years after Solomon, 2 said, '(T)here isnothing new under the sun.' 3 Just a bit less than200 years ago the similar observation was made,'There is nothing new except what has beenforgotten.' 4 [317 A.2d 488] Thus, it is notsurprising that the Board's proposition here is


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not new and that our earlier consideration of ithas been overlooked or forgotten.

In Williams v. New York, P. & N.R.R., 153Md. 102, 137 A. 506 (1927), cited in Schreiber,a railroad company sought to condemn land near

Salisbury in Wicomico County. The trial courtexcluded testimony of one of the defendants 'inregard to a recent sale to him of a portion of theland sought to be condemned, and the priceagreed to be paid by him, and his payments onaccount of the purchase money.' Judge Adkinssaid for the Court:

'There was reversible error in these rulings. Itwas said in Baltimore v. Smith, 80 Md. 458, 31A. 423: 'We think,

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therefore, that the prices realized at sales of theland in question and of similar land in itsvicinity, made within a reasonable period oftime theretofore, being voluntary and not forcedsales, are admissible in evidence, either on director cross-examination of witnesses conversantwith the facts.' There is nothing in the record toindicate that this sale was not made in goodfaith; and if it was, there could not well be more

relevant testimony as to the value of theproperty.' Id. at 110, 137 A. at 509.

The objection of the Board here overlooksthe measure of damages in a partial taking, apoint that did not escape the trial judge(McAuliffe, J.). He said:

'The valuation schedule formula requires aconsideration of the value of the entire tractbefore the taking and after the taking. Therefore,the value of the entire tract is relevant to theproceedings, is it not?'

Chief Judge Brune said almost precisely thesame thing for the Court in Baltimore v. StateRoads Comm., 232 Md. 145, 192 A.2d 271(1963):

'(I)n condemnation cases, the value of what istaken is ordinarily to be determined in a case ofpartial taking by the difference between the fairmarket value of the entire tract before the takingand the fair market value of what is left after thetaking. See Veirs v. State Roads Comm., 217

Md. 545, at 554-555, 143 A.2d 613, at 617-618,and cases there cited . . ..' (Citing cases.) 235Md. Id. at 152, 192 A.2d at 276.

The elapsed time between the date ofpurchase in this case and the date as of whichfair market value was to be determined was lessthan that approved by us in Schreiber. Evidenceas to the purchase price of the entire tract wasrelevant, since the jury was obliged to determinethe difference between the fair market value ofthe entire tract before the taking and the fair

market value of the remaining

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tract after the taking. Accordingly, there was noabuse of discretion on the part of the trial judgein admitting into evidence the testimony of theowner as to the sum he paid for the purchase ofthe whole tract at a time seven and one-halfyears prior to the date of trial.

ii

The second point of controversy concernstestimony of an expert for the landowner.

At the time of trial the whole tract waszoned R-R. Under the Montgomery Countyzoning ordinance the R-R zone generally calledfor single-family, detached dwellings on lotshaving a minimum size of 20,000 square feet.The area involved is covered by theGermantown Master Plan. It recommends futureR-30 zoning for part of the tract and R-20zoning for the remainder. Both zones permitmultiple family residential construction. The R-30 zone allows a maximum of one dwelling unitper 3,000 square feet of land. The R-20 zoneallows a denser construction of one dwellingunit per 2,000 square feet of land.


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Appraisers for the Board and the ownerwere in agreement that there was a reasonableprobability of a change in the zoningclassification within a reasonable time. [317A.2d 489] See Hutchison v. Balto. Gas & Elec.,241 Md. 329, 332-333, 216 A.2d 573 (1966).

The testimony of all appraisers was that thehighest and best use for the whole tract wasmulti-family residential development in linewith those envisioned changes.

The owner's expert testified that in hisopinion the value of the whole tract before thetaking was $276,100 and that the value of theportion remaining after the taking was $180,500,a difference of $95,600 or about $27,500 peracre for the land taken. Further inquirydeveloped the hypotheses upon which he rested

his opinion. He testified relative to sales withunit values of $33,850, $26,500, $24,713, and$24,047 per acre; that his 'adjusted' unit valuesfor the same sales were $26,400, $21,700,$23,452, and $21,414; and that in makingadjustments he considered time, zoning status,and location. Without objection, he testified thatthe average of

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his adjusted values was $23,250 per acre. Fromthis it developed that he had used a 'unit rate' forsubject land of $22,500 per acre and that he hadadded to this the sum of $5,000 per acre to reachhis appraisal of $27,500 per acre as the presentfair market value. This $5,000 was based uponincome derivable from the use then being madeof the land as a trailer park, etc. He said aprospective purchaser normally would retaintitle to any given tract of land until it wasdeveloped by him to its highest and best use andthat the expense of taxes, mortgage interest,

possible mortgage repayment, and possibleinsurance in the interim would all be considereda burden. He claimed that a purchaser wouldtake into consideration in his valuation of thewhole that income which might be produced inthe interim which he could apply to thoseexpenses.

Two bases for the objection are advanced.The first is that the income data relied upon was'from a two-year-old tax return.' This objectionwent to the weight of the evidence rather than toits admissibility. The Board was in a position tofollow up on this on cross-examination and it

did. Of course, the age of that data was availableto counsel for comment in their argument to thejury.

The second basis for objection seems to bethat the approach 'seeks to allow the propertyowner to have his cake (value for the highest andbest use) and eat it too (add an incremental valuefor income derived from present use).' TheBoard further states:

'As was readily admitted by (the appraiser), the

improvements on the eastern portion of the tractwould have no value for the highest and best useof the property. Only by his ingenious 'back-door' method was he able to testify concerningvalue attributable to income from improvementswhich would have to be destroyed under thehighest and best use of the property.'

It contends that this is but a piling of valueonto value, most recently considered andrejected by us in Mont. Co. v. Old Farm SwimClub, 270 Md. 708, 313 A.2d 458 (1974), and

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previously considered in Smith v. State RoadsComm'n, 257 Md. 153, 161, 262 A.2d 533(1970). In Smith, the trial court was held to haveproperly excluded testimony regarding the valueof sand and gravel deposits separate and apartfrom the value of the land. We do not see thosecases as applicable to this situation.

In Old Farm Swim Club an expert had beenpermitted to testify as to the value of certainshade trees. He described a formula used by theInternational Shade Tree Conference as a basisfor valuation. Through the application of thatformula he then valued 28 trees at more than$11,000. On cross-examination he conceded thathe was not a land value expert and that his


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determination as to the value of the trees had norelationship to the value of the land. JudgeSingley pointed out for the Court that theexpert's testimony had the effect of 'completelyobscuring the true test-the extent to which thetrees enhanced the value of the property taken,

an element [317 A.2d 490] to be taken intoaccount, as we assume it was, in the experts'opinion of the value of the property condemned.'

Smith is likewise distinguishable. In thatcase the trial court 'excluded testimony beforethe jury as to the value of the mineral depositsseparate and apart from the value of the land as awhole.' As Judge Finan there put it, 'the expertwitness (had) sought to testify before the juryhow he arrived at his evaluation of the mineraldeposits by determining what was the unit value

of the minerals in place and multiplying thatvalue times the quantity.' He said for the Court:

'We think such testimony is not only highlyspeculative, but if a jury is to intelligentlyanalyze it without accepting the gratuitousassumptions inherent in such testimony, itrequires them to reach separate conclusions on agallimaufry of collateral issues which are moreapt to confuse than enlighten. We think thedanger in such testimony was set forth withclarity in United States ex rel. TVA v. Indian

Creek Marble Co., 40 F.Supp. 811(D.Tenn.1941), wherein the Court rejecting suchtestimony stated:

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'Fixing just compensation for land taken bymultiplying the number of cubic feet or yards ortons by a given price per unit has met withalmost uniform disapproval of the courts. This istrue because such valuation involves all of the

unknown and uncertain elements which enterinto the operation of the business of producingand marketing the product. It assumes not onlythe existence, but the continued existence of astable demand at a stable price. It assumes astable production cost and eliminates the risksall business men know attend the steps essential

to the conduct of a manufacturing enterprise. Iteliminates the possible competition of bettermaterials of the same description and of thepossible substitution of other and more desirablematerials produced or possible of production byman's ingenuity, even to the extent of rendering

the involved material unmarketable. It involvesthe assumption that human intelligence andbusiness capacity are negligible elements in thesuccessful conduct of business. It would requirethe numeration of every cause of businessdisaster to point out the fallacy of using thismethod of arriving at just compensation. Noman of business experience would buy propertyon that theory of value.

'Values fixed by witnesses on such a basis arepractically worthless, and would not be

accepted.' Id. 40 F.Supp. at 822.' 257 Md. Id. at160-161, 262 A.2d 533, 536-37.

'The meaning which we extract from the casesrepresenting the majority view is that, the expertwitness may definitely take into consideration asone of the factors in reaching his evaluation ofthe land as a whole the quantity and quality ofthe minerals present, and the value which theygive to the land considered as a whole.However, in making

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this appraisal he must not value the mineralsseparate and apart from the land or aggregate thevalue of the minerals and the value of the land.Furthermore, it is our view that the expertwitness should not utilize the in place unit value,or any unit value of the mineral, multiplied bythe quantity in order to arrive at the evaluationof the minerals, as we think the result thusobtained would be too speculative for the

reasons which have been heretofore expressed inthis opinion.' 257 Md. Id. at 163, 262 A.2d at536-37.

Fair market value is what the landownerwas entitled to receive. That term is defined inCode (1957, 1973 Repl.Vol.) Art. 21, 12-


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106(a) as the 'price as of the valuation date forthe highest and best use of such property whicha seller, willing but not obligated to sell, wouldaccept for the property, and which a buyer,willing but [317 A.2d 491] not obligated to buy,would pay therefor,' excluding and adding

factors not here applicable.

In order to form an opinion as to fairmarket value of a tract of land, an expert mustplace himself in the position of such a buyer andseller. Indeed, that is precisely what a jury mustdo in order for it to fix damages in an eminentdomain proceeding. No one parcel of land isexactly the same as another. Each parcel isunique. Nevertheless, a potential developer of atract such as this, in order to determine its fairmarket value, would first work out what he

conceived to be the value per acre of an idealpiece of clear land. Then, inevitably, he wouldmake a number of additions to and subtractionsfrom that ideal price in his effort to ascertain thefair market value of any given tract. If therewere buildings on the land of no possible use tohim in his development, he certainly wouldsubtract from his ideal value the cost ofdemolition of those buildings and the cost ofclearing the site. If substantial grading of a sitewere necessary, then obviously this potentialdeveloper would take that cost into

consideration in his determination of value. Hewould look more favorably upon soils known byhim to be capable of bearing the weight of thebuildings he

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contemplated erecting than soils known by himto require pilings for foundation purposes. If thetract were covered with timber, he would deductfrom his ideal price per acre the cost of clearing

the land in order to render the site ready forbuilding. He undoubtedly would take intoconsideration the sum or sums he might expectto derive from the sale of that timber, dependentupon whether it had a value merely forpulpwood, whether it had a value for piling,whether it had a value for sawtimber, or whether

the potential was for a combination of the three.He conceivably would be prepared to pay morefor a tract covered with large, old growth timber,simply because of the revenue he mightreasonably expect to derive from it. Likewise, anowner, in setting his sale price, would take into

consideration the amount which he thought hemight obtain from the sale of timber. If heowned two parcels of land of equal size, equallygood location and equally favorable terrain, oneof which was covered with scrub pine and theother with good timber for piling, he wouldexpect to sell at a higher price the tract with thepotential piling. These are not mere add-onfactors, as was the case in Old Farm Swim Club,but elements to be considered in reaching aconclusion as to value. We are of the opinionthat the concept expressed by the expert of value

as a result of the use of the condemned landbetween its acquisition by a potential purchaserand the beginning of construction by suchpurchaser is no new concept, but reflects anelement of his opinion in regard to fair marketvalue analogous to the ones we have mentioned.

In Brack v. M. & C. C. of Balto., 125 Md.378, 93 A. 994 (1915), our predecessors said:

'The rule is that the market value of the land is tobe estimated with reference to the uses and

purposes to which it is adapted, and that anyspecial features which may enhance itsmarketability may properly be considered.' Id. at381, 93 A. at 995.

To like effect see M. & C. C. of Balto. v.Carroll, 128 Md. 68, 73, 96 A. 1076 (1916).

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In State Roads Com. of Md. v. Novosel,

203 Md. 619, 102 A.2d 563 (1954), the Statecomplained relative to an appraisal which theState said should have been excluded because itwas based upon business profits. Chief JudgeSobeloff there said for the Court:

'The appellant concedes that it is proper toconsider profits in computing damages from the


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taking of business property, but urges thatprofits should not be permitted to be the sole orprincipal consideration.

'In the condemnation of an interest in land thelaw is careful to avoid the capitalization[317

A.2d 492] of profits derived from a businessoccupying such land; for that which is beingtaken and for which compensation is due is theland, and not the business. Business profits, it iswell recognized, are no sure test of land valuefor they depend not only on location but on otherfactors; the same location may be fruitful ofprofit to one and not so to another. This does notmean, however, that in determining the value ofthe land no consideration is to be given to itsproductive capacity which, in suchcircumstances as are present in this case, has an

important bearing on value. 4 Nichols onEminent Domain (3rd Ed.), 12.3121(1); 5Nichols, 19.3(1), and (4); 1 Orgel on Valuationunder Eminent Domain (2nd Ed.), 164.

'As a practical matter, a prospective purchaserwould hardly fail to consider whether or not thebusiness conducted on the premises had provedprofitable, for this would be a measure of thedesirability of the location, if not to him then toother purchasers. The precise weight to beaccorded to this factor is a matter of judgment

on which experts may differ, and of this the juryis the final judge. In this case we find that Mr.Bandiere did inquire into the productivity of thepremises, and particularly into the question ofbusiness profits, although in his testimony hewas not permitted to

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give the figures. He did not, however, confinehimself to profits for he testified, 'I have made

several visits to the property and measured thevalue of that type of business to the locationwith respect to vehicular traffic, the type ofhighway, the fact that the highway is aconnecting link and is what has now become aneastern coastal highway from Maine to Florida; Ihave considered the income of the lease; I have

studied volumes of business, profits therefrom; Ihave studied the processes through which youevaluate leases and arrive at conclusions.'

'With the increasing vogue of leases of businessproperty reserving rentals computed on a

percentage of the volume of business transactedby the tenant, it would be artificial and illusoryto reject an expert opinion of rental value thattakes into account the volume of business whichexperience has shown a particular piece ofproperty is capable of producing; and, of course,the resulting profits may be, if anything, evenmore pertinent to the question of value. We findno basis for the objection . . . to the testimony ofthe expert . . ..' Id. at 623-624, 102 A.2d at 565.

To like effect see Lustine v. State Roads

Comm., 217 Md. 274, 280, 142 A.2d 566(1958).

In State Roads Comm. v. Halle, 228 Md.24, 178 A.2d 319 (1962), the Court held theestimate of development costs was a properfactor to be considered by the jury indetermining the fair market value of the propertytaken, and the injury, if any, to the remainingproperty of the landowner. In that opinion JudgePrescott said for the Court:

'Of course, there has never been evolved a

method by which the value of land can becomputed with accuracy and certainty. Evenimmediately after a cash sale has beenconsummated and the purchase price paid to theseller, that purchase price represents the value ofthe land to the seller

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when he sold it; but the value of the land to thenew owner-whether he will sustain a loss, obtainan equal price therefor, or realize a profit-issomething that cannot be definitely stated untilthere is another sale. As a necessaryconsequence, it follows that the triers of fact in acondemnation case, who are called upon to fixthe fair market value of the land taken andconsequential damages, if any, to that remaining


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in the owner, must estimate as accurately as theycan what that fair market value is. Experiencehas demonstrated that there are manyfactors[317 A.2d 493] that aid in determiningsuch value with reasonable definiteness, andCourts have long recognized that the triers of

fact frequently can be aided by the opinions ofpersons, who, because of their special, peculiaror technical knowledge or experience, areparticularly well qualified to estimate andcalculate land values with reasonable accuracy.'Id. at 28, 178 A.2d at 321.

The problem here is similar to that whichwould exist in the matter of vegetable growth. In4 Sackman, Nichols on Eminent Domain 13.21(3d ed. 1971), it is stated:

'(T)he value of all vegetable growth upon landtaken by eminent domain may be consideredinsofar as the existence of such growth has abearing upon the enhancement in market valueof such land. Conversely, the rule has beenstated that such growth cannot be separatelyevaluated independently of the value of the land.Nevertheless, the value of crops and trees hasbeen held relevant, although potential profitstherefrom have been excluded.' Id. at 13-86-13-90.

The trial judge properly evaluated thesituation when he said in ruling upon thisevidence:

'It indicates to me that what is being done here,or the substance of the testimony of this expert isnot to add on top of the highest and best use orfair

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market value as determined by the highest andbest use, an amount equal to the income, butrather that in determining the current fair marketvalue, the witness has looked at not only thehighest and best use, but has considered that thatis deferred to some time in the future and has,therefore, considered interim uses of theproperty in determining what a reasonably

prudent purchaser in the marketplace would payfor the property.

'It seems eminently reasonable to the Court thata prudent purchaser would want to haveinformation, including financial data, on

expenses and income and capital improvementsfor any such interim use before he decidedwhether to buy the property, although the onlyreal long range or moderately short rangeobjective was for a completely different use.

'It may be a tax carrier, and certainly it entersinto a consideration of current fair market value.

'I don't understand that that is adding on top ofcurrent fair market value. It is rather aningredient of current fair market value as,indeed, is the potential highest and best use.

'They are separate, not mutually exclusiveingredients going into make up current fairmarket value.

'As I understand the testimony of this witness,implicit in his testimony is, he considers this tobe good appraisal practice. I think that issufficient.'

No objections are raised before us to theinstructions to the jury. If we were to assume

arguendo that the jury was not properlyinstructed, the point is not before us andtherefore cannot be considered. We note,however, that the jury was specificallyinstructed:

'I would advise you further that this matter ofincome or capitalization of income, by thedefinition I have given you, you will see is not tobe added on top of fair market value.

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'It is to be considered if you find it anappropriate consideration in determining whatthe fair market value is as of today. So it is notin addition to, but a part of the determination offair market value of the land.'


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That instruction was consistent with ourconception of the law.

In this case it is obvious that the jury in itsdeliberations and its determination of value didnot merely accept, without question, the

testimony of the landowner's expert,[317 A.2d494] since the jury verdict of approximately$24,000 per acre was much closer to the expert'sadjusted unit average for comparable sales of$23,250 per acre than to his total value of$27,500 per acre, which latter figure rested inpart upon his reasoning relative to the disputedvalue attributable to income from the landpending final development. While it may be thatthe expert witness might have been wise to haveexpressed himself in a somewhat differentfashion in giving the bases for his opinion as to

value, we do not find that the trial judge in thiscase abused the discretion lodged in him whenhe permitted the evidence to come before thejury and then refused to strike it out, since it isobvious that the expert in offering his opinion asto the fair market value of the land in questionwas considering 'special features which (might)enhance its marketability' in his evaluation ofthe whole.

Judgment affirmed; appellant to pay thecosts.

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* BARNES, J., participated in the hearing of the caseand in the conference in regard to its decision, but didnot take part in the adoption of the opinion since hehad resigned from the court prior to the filing of theopinion.

1 H. Halley, Bible Handbook 274 (24th ed. 1965).

2 H. Gehman, The New Westminster Dictionary ofthe Bible 238, 892 (1970), and F. Eiselen et al., TheAbingdon Bible Commentary 614 (1929).

3 Ecclesiastes 1:9 (RSV). The complete quotation is:

'What has been is what will be,

and what has been done is what will be done;

and there is nothing new under the sun.

Is there a thing of which it is said,

'See, this is new'?

It has been already,

in the ages before us.

There is no remembrance of former things,

nor will there be any remembrance

of later things yet to happen

among those who come after.'

4 Attributed to Mlle. Bertin, Marie Antoinette'smilliner, about 1785.

boe v. hughes

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