[ContraryMary]

I think you've forgotten that Birch wrote a DISSENTING opinion. In other words, it was not the ruling of the court and holds no effect in law.

[AndrewC]

I think you've forgotten that Birch wrote a DISSENTING opinion. In other words, it was not the ruling of the court and holds no effect in law.

I think you haven't read the decision, because, among other things, Justice Birch is the writer concurring with the MAJORITY opinion("BIRCH, Circuit Judge, specially concurring:").