UNITED STATES REPORTS VOLUME 304 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1937 From April 12, 1938, to and Including May 31,1938 (End of the Term) ERNEST KNAEBEL REPORTER UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON: 1938 For sale by the Superintendent of Documents, Washington, D. C. - Price $2.00 (Buckram) JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS 1 CHARLES EVANS HUGHES, Chief Justice. JAMES CLARK McREYNOLDS, Associate Justice. LOUIS D. BRANDEIS, Associate Justice. PIERCE BUTLER, Associate Justice. HARLAN FISKE STONE, Associate Justice. OWEN J. ROBERTS, Associate Justice. BENJAMIN N. CARDOZO, Associate Justice.1 2 HUGO L. BLACK, Associate Justice. STANLEY REED, Associate Justice. RETIRED WILLIS VAN DEVANTER, Associate Justice. GEORGE SUTHERLAND, Associate Justice. HOMER S. CUMMINGS, Attorney General. ROBERT H. JACKSON, Solicitor General. CHARLES ELMORE CROPLEY, Clerk. FRANK KEY GREEN, Marshal.3 THOMAS ENNALLS WAGGAMAN, Marshal.3 1 For allotment of the Chief Justice and Associate Justices among the several circuits, see next page. 2 Mr. Justice Cardozo was absent from the bench, on account of illness, during the period covered by this volume. 8 Mr. Frank Key Green, Marshal of the Court, died April 26, 1938 (see announcement by the Chief Justice, post, p. v). On May 2, 1938, Mr. Thomas Ennalls Waggaman was appointed Marshal of the Court. in SUPREME COURT OF THE UNITED STATES. Allotment of Justices It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, agreeably to the acts of Congress in such case made and provided, and that such allotment be entered of record, viz: For the First Circuit, Louis D. Brandeis, Associate Justice. For the Second Circuit, Harlan F. Stone, Associate Justice. For the Third Circuit, Owen J. Roberts, Associate Justice. For the Fourth Circuit, Charles Evans Hughes, Chief Justice. For the Fifth Circuit, Hugo L. Black, Associate Justice. For the Sixth Circuit, James C. McReynolds, Associate Justice. For the Seventh Circuit, Benjamin N. Cardozo, Associate Justice. For the Eighth Circuit, Pierce Butler, Associate Justice. For the Ninth Circuit, Stanley Reed, Associate Justice. For the Tenth Circuit, Pierce Butler, Associate Justice. February 7, 1938. IV SUPREME COURT OF THE UNITED STATES. Tuesday, April 26, 1938. Present: The Chief Justice, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice Butler, Mr. Justice Stone, Mr. Justice Roberts, Mr. Justice Black, Mr. Justice Reed. The Chief Justice said: . “It is my sad duty to announce that Mr. Frank K. Green, the Marshal of the Court, died this morning. His life was spent in the service of the Court. He entered that service as a page boy over 46 years ago. Ten years later, in 1901, he became Librarian and, soon after, crier. He was appointed Marshal in 1915 and for over 23 years has acted in that capacity. Throughout this long period he has served the Court with the utmost fidelity, bringing to the discharge of his duties not only the advantages of his ability and thorough acquaintance with the work of the Court but an unfailing tact and kindliness which won the esteem of those who have been brought into contact with his office. His name belongs in the honor roll of those who have given themselves through long years to the service of the Court with complete devotion to its interests. As a token of our respect for his memory, we shall do nothing today but hear motions and finish the cause on argument, and we shall then adjourn until tomorrow morning.” Mr. Green was bom, October 21, 1876, at “Forrest HUI,” the home of his father, George Forrest Green, in the District of Columbia. This was part of a place near Georgetown, called Rosedale, which is said to have been purchased by his great-grandfather, Uriah Forrest, in 1790. He received his general schooling in Georgetown and a legal degree from the law school of Georgetown University. Funeral services were held at Holy Trinity Church on Thursday, April 28,1938, and interment was in Cedar Hill Cemetery, Washington, D. C., on the same day.—Reporter. TABLE OF OASIS REPORTED Page. Aberdeen Motor Supply Co. v. Cleveland Trust Co.. 587 Adams Mfg. Co. v. Stören...................... 307 Aderhold, Sischo v............................ 558 Aetna Insurance Co. v. United Fruit Co........ 430 Alamo National Bank v. Commissioner....... 577, 590 Alexander v. Commissioner................. 577,590 All Continent Corp., Steelman v............... 554 Allen, Conway v........................... 547, 558 Allen v. Regents of the University System. 439, 590 Alloy Cast Steel Co., Brammer v............... 558 Alloy Cast Steel Co., Noggle v................ 558 American Lecithin Co. v. Ferguson Works........ 573 American National Bank v. Ames.............. 543, 577 American Surety Co., Mosher v................. 550 American Woolen Co. v. United States.......... 581 American Writing Paper Co., Holyoke Co. v...... 574 Ames, American National Bank v............ 543,577 Arizona Publishing Co. v. O’Neil.............. 543 Arkansas Fuel Oil Co. v. Louisiana ex rel. Mus- low..................................... 197,589 Arkansas Louisiana Gas Co. v. Dept, of Public Utilities................................... 61 Armstrong v. Virginia Iron, Coal & Coke Co..... 563 Arn v. Dunnett............................... 577 Atchison, T. & S. F. Ry. Co. v. Taylor...... 560 Atlantic City, Kelley v....................... 588 Avery Brundage Co., Harris v.................. 557 Baltimore & Ohio R. Co. v. United States....... 58 Bankers Mortgage Co. v. Motter................ 568 Bank of Commerce & T. Co., Union Central Co. v.. 570 Bartolini v. Massachusetts.................... 565 VII VIII TABLE OF CASES REPORTED. Page. Bekins, Lindsay-Strathmore Irrigation Dist. v... 27, 589 Bekins, United States v................. 27, 589 Bentley v. Helvering............................ 571 Bergson v. Fidelity-Philadelphia Trust Co....... 563 Berman v. Illinois Bell Tel. Co................. 549 Black Diamond S. S. Corp. v. Labor Board........ 579 Blair, Ex parte................................. 579 Blair v. McClintic.............................. 580 Blumgart v. St. Louis-S. F. Ry. Co.............. 567 Bolin, Sovereign Camp W. 0. W. v................ 557 Bonet v. Bowie................................ 569 Bonet v. Quiles................................. 588 Bonet v. Valiente & Co.......................... 588 Boston Insurance Co. v. United Fruit Co......... 430 Bowie, Bonet v.................................. 569 Bowman, Mutual Benefit Assn, v.................. 549 Bradshaw v. Eastus.............................. 576 Brammer v. Alloy Cast Steel Co.................. 558 Breen v. United States.......................... 585 Briggs & Stratton Corp., Quick Action Co. v....... 588 Brittain v. Louisville & Nashville R. Co.........572 Broderick, Industrial Trust Co. v................. 572 Brooklyn & Queens Transit Corp. v. New York..... 588 Brooklyn Trust Co., Callaghan v .i........ 585 Brownsville District, St. Louis, B. & M. Ry. Co. v.. 295 Brummitt, Ex parte.............................. 545 Brundage (Avery) Co., Harris v.................. 557 Brunswick-Balke-Collender Co., Davilla v......... 572 California, Clark v............................. 574 California Water Service Co. v. Redding......... 252 Callaghan v. Brooklyn Trust Co.................. 585 Carlisle Lumber Co. v. Labor Board.............. 575 Carnevale v. New York........................... 580 Carolene Products Co., United States v.......... 144 Carolina Power & Light Co. v. S. C. Authority...578 Carpenter, Neblett v............................ 555 Central Executive Council v. Labor Board........ 585 TABLE OF CASES REPORTED. ix Page. Central Trust Co., Morehead v.................. 584 Century Indemnity Co. v. Standard Cahill Co..... 570 Champlin Refining Co. v. Ryan.................. 549 Chase National Bank, Millhiser v............... 571 Chicago v. Joseph.............................. 578 Christian v. Waialua Agricultural Co........... 553 Christian, Waialua Agricultural Co. v.......... 553 Clark v. California............................ 574 Clarke v. Martin............................... 584 Cleveland Trust Co., Aberdeen Motor Co. v........ 587 Cleveland Trust Co., Rowe Sales Co. v...........587 Cleveland Trust Co., Schriber-Schroth Co. v........ 587 Coe, U. S. ex rel. Société de Condensation v....589 Cohen v. Swift & Co............................ 561 Collins v. Yosemite Park & Curry Co............ 518 Collins, Zerbst v............................ 359 Colorado National Bank v. Commissioner......... 556 Commercial Trust Co., Oil Shares Inc. v........ 551 Commissioner, Alamo National Bank v........ 577, 590 Commissioner, Alexander v.................. 577,590 Commissioner, Colorado National Bank v......... 556 Commissioner, Consumers Construction Co. v...... 577 Commissioner, Davidson v..................... 554,569 Commissioner, Lang v........................... 264 Commissioner, Taft v........................... 351 Commissioner, Wiese v...................... 562,589 Connecticut Co., Connecticut Ry. & L. Co. v.... 571 Connecticut Ry. & Lighting Co. v. Connecticut Co.. 571 Consolidated Edison Co. v.t Labor Board........ 555 Consumers Construction Co. v. Commissioner......577 Continental National Bank & T. Co., United States v........................................... 554 Conway v. Allen............................. 547, 558 Conway Road Estates Co. v. First National Bank... 578 Cook, Oklahoma ex rel. Johnson v........ ■......387 Copsey, Hines v.................................574 County of Westchester v. Montrose Contracting Co. 561 x TABLE OF CASES REPORTED. Page. Cox v. McElligott........................... 564 Crescent Wharf & Warehouse Co. v. Pillsbury....571 Crown Cork &' Seal Co. v. Gutmann Co....... 159,552 Crummer, Florence v........................ 563, 589 Current News Features, Pulitzer Pub. Co. v..... 570 Davidson u Commissioner.................... 554, 569 Davilla v. Brunswick-Balke-Collender Co........572 Davis v. Davis................................ 552 Davis, Davis v................................ 552 Deitrick v. Standard Security & C. Co......... 588 Delaware, New Jersey v........................ 590 Denver Union Stock Yard Co. v. United States...470 Department of Public Utilities, Arkansas Gas Co. v.. 61 Doll v. Johnston.............................. 574 Donnelly Co., Garment Workers’ Union v........ 243 Dorsey, Spruill v........................... 565, 590 Dromey v. Wisconsin Tax Comm’n................ 548 Dunnett, Arn v................................. 577 Dupont (E. I.) de Nemours & Co. v. Waxed Prod- ucts Co.................................... 575 Eastus, Bradshaw v...................... j. .... 576 E. I. DuPont de Nemours & Co. v. Waxed Products Co......................................... 575 Electrical Workers v. Labor Board............. 555 Eppley Hotels Co. v. Lincoln.................. 576 Equitable Life Ins. Co. v. Germantown Trust Co.... 562 Erie Railroad Co. v. Tompkins.................. 64 Eureka Productions v. Lehman...................541 Evans, Ex parte................................ 541 Ex parte. See name of party. Federal Power Comm’n v. Metro. Edison Co... 375, 553 Federal Trade Comm’n v. Goodyear Tire & R. Co.. 257 Ferdinand Gutmann Co., Crown Cork Co. v.... 159, 552 Ferguson (J. C.) Mfg. Works, American Lecithin Co. v................................... 573 F. E. Rowe Sales Co. v. Cleveland Trust Co.... 587 Fidelity-Philadelphia Trust Co., Bergson v..... 563 TABLE OF CASES REPORTED. xi Page. First National Bank, Conway Road Estates Co. v... 578 First National Bank & Trust Co. v. Uhl........ 584 Florence v. Crummer....................... 563,589 Fort Worth v. Lone Star Gas Co............ 562, 589 Fort Worth v. McCamey......................... 571 Fowler, Ex parte.............................. 551 Fowler v. Seymour............................. 580 Fox & London, Inc. v. Pennsylvania R. Co....... 566 Franklin Life Ins. Co. v. Staats.............. 560 Garment Workers’ Union v. Donnelly Co......... 243 General Electric Co. v. Wabash Appliance Corp.... 364 General Talking Pictures Corp. v. Western Elec- tric Co............................. 175,546,587 George E. Warren Corp. v. United States....... 572 Georgia v. Tennessee Copper Co............ 546, 551 Georgia University System, Allen v........ 439, 590 Gerhardt, Helvering v......................... 405 Germantown Trust Co., Equitable Life Ins. Co. v.. 562 Gilmore v. United States...................... 569 Globe Indemnity Co. v. United States.......... 575 Goldstone v. Payne............................ 585 Golightly, New York Life Ins. Co. v........... 566 Goodyear Tire & R. Co., Federal Trade Comm’n v.. 257 Gorney v. Trustees of Orphans Board........... 559 Gottlieb, Stoll v............................. 554 Gruelle, Molly-Es Doll Outfitters v............... 561 Guaranty Trust Co. v. United States........... 126 Gulf Refining Co. v. Norton................... 566 Gunnarson, Robert Jacob, Inc. v............... 588 Gutmann (Ferdinand) Co., Crown Cork Co. v.. 159,552 Hakanson, Illinois ex rel., v. Palmer......... 561 Harger v. Oklahoma Gas & Electric Co.......... 569 Harris v. Avery Brundage Co................... 557 Hartford Transportation Co. v. Lee Transit Corp.. 573 Heiner v. Mellon.............................. 271 Helvering, Bentley v. 571 Helvering v. Gerhardt......................... 405 XII TABLE OF CASES REPORTED. Page. Helvering v. Kings County Development Co....... 559 Helvering v. Mulcahy............................ 405 Helvering v. National Grocery Co................ 282 Helvering v. Wilson............................. 405 Hendler, United States v........................ 588 Hicks v. Indiana................................ 564 Highway Engineering & Construction Co. v. Hillsborough County.............................. 560,589 Hillsborough County, Highway Co. v.......... 560, 589 Hinderlider v. La Plata River Co................. 92 Hines v. Copsey................................. 574 Hines v. Lowrey................................. 555 Hoey, Lyeth v................................... 557 Holyoke Water Power Co. v. American Writing Paper Co.......................................... 574 Hudson v. Moonier............................... 397 Hughes v. Wisconsin Tax Comm’n................. 548 Humble Oil & Refining Co., United States v...... 156 Ickes, Tennessee Electric Power Co. v........... 541 Igleheart Brothers, Inc., Johnson v............... 585 Illinois Bell Telephone Co., Berman v........... 549 Illinois ex rel. Hakanson v. Palmer............. 561 Indiana, Hicks v................................ 564 Industrial Trust Co. v. Broderick............... 572 In re. See name of party. International Brotherhood of Electrical Workers v. Labor Board................................... 555 International Ladies’ Garment Workers’ Union v. Donnelly Co................................... 243 International Mercantile Marine Co. v. Lowe.....565 Interstate Circuit v. United States.............. 55 Iowa, Missouri v............................... 549 Italia Flotte Riunite Cosulich v. Katz.......... 559 Jackson, New York Life Ins. Co. v............... 261 Jacob (Robert), Inc. v. Gunnarson............... 588 J. C. Ferguson Mfg. Works, Am. Lecithin Co. v.... 573 J. D. Adams Mfg. Co. v. Stören................. 307 TABLE OF CASES REPORTED. xm Page. Johnson v. Igleheart Bros.......................585 Johnson v. Zerbst.... ......................... 458 Johnson, Oklahoma ex rei., v. Cook............. 387 Johnston, Doll v............................... 574 Jones, Zerbst v................................ 359 Jorgensen, Tampa Interocean S. S. Co. v........ 566 Joseph, Chicago v.............................. 578 Joseph Triner Corp., Mahoney v............... 401 Kaplan, United States v........................ 195 Katz, Italia Flotte Riunite Cosulich v......... 559 Kelley v. Atlantic City........................ 588 Kellogg Co. v. National Biscuit Co............. 586 Kelly, U. S. ex ret. Reibeck v.................... 584 Kemp, Lynch v.................................. 589 Kidwell, Zerbst v359 Kings County Development Co., Helvering v...... 559 Klamath & Moadoc Tribes, United States v........ 119 Labor Board, In re......................... 486,547 Labor Board, Black Diamond S. S. Corp, v........579 Labor Board, Carlisle Lumber Co. v............. 575 Labor Board, Central Executive Council v.......... 585 Labor Board, Consolidated Edison Co. v..........555 Labor Board, Electrical Workers v.............. 555 Labor Board v. Mackay Radio & T. Co............ 333 Labor Board, Remington Rand v...................576 Laclede Gas Light Co. v. Public Service Comm’n... 398 Lang v. Commissioner........................... 264 La Plata River Co., Hinderlider v.. 92 Lee Transit Corp., Hartford Transportation Co. v... 573 Lehman, Eureka Productions v................... 541 Lincoln, Eppley Hotels Co. v................... 576 Lindsay-Strathmore Irrigation District v. Bekins. 27,589 Lindsey v. Washington.......................... 559 Littlejohn v. United States.................... 583 Little Rock, Mackey vti.582 Livermore v. Miller............................ 582 Live Stock National Bank, Schultz v.............590 XIV TABLE OF CASES REPORTED. Page. Lonergan v. United States...................... 581 Lone Star Gas Co., Fort Worth v............ 562, 589 Lone Star Gas Co. v. Texas............ 224,551,590 Louisiana ex rel. Muslow, Arkansas Oil Co. v... 197, 589 Louisville & Nashville R. Co., Brittain v...... 572 Lowe, Int. Mercantile Marine Co. v............. 565 Lowe Brothers Co. v. United States............. 302 Lowrey, Hines v................................ 555 Lyeth v. Hoey.................................. 557 Lynch v. Kemp.................................. 589 Mack, Pacific Steamship Lines v................ 582 Mackay Radio & T. Co., Labor Board v........... 333 Mackey v. Little Rock........................ 582 Mahoney v. Joseph Triner Corp.................. 401 Malone v. United States........................ 562 Marion Steam Shovel Co., Riffee v.............. 558 Martin, Clarke v............................... 584 Massachusetts, Bartolini v....................... 565 Massachusetts, Simpson v....................... 565 McAlvay v. Stockwell........................... 547 McCamey, Fort Worth v....................... 571 McCarthy, Ex parte........................ 545, 549 McCaughn v. Philadelphia Piers................. 581 McClintic, Blair v.............................. 580 McDonald v. United States...................... 564 McElligott, Cox v.............................. 564 Mellon, Heiner v............................... 271 Mellon v. United States........................ 586 Mershon v. Sprague Specialties Co.............. 561 Metropolitan Edison Co., Power Comm’n v.... 375, 553 Metropolitan Life Ins. Co., Smith v.............. 570 Meyers v. United States........................ 583 Miles, U. S. ex rel. Schmidt v..................... 583 Miller, Livermore v............................ 582 Millhiser v. Chase National Bank.............. 571 Mills-Alloys, Inc., Stoody Co. v............. 573 Milwaukee County Orphans Board, Gorney v...... 559 TABLE OF CASES REPORTED. xv Page. Missouri v. Iowa............................... 549 Molly-Es Doll Outfitters v. Gruelle............ 561 Montrose Contracting Co., County of Westchester v. 561 Moonier, Hudson v.............................. 397 Morehead v. Central Trust Co................... 584 Morgan v. United States.......................... 1 Mosher v. American Surety Co................... 550 Motor Wheel Corp. v. Rubsam Corp............... 560 Motter, Bankers Mortgage Co. v................. 568 Moyer, Mutual Benefit Assn, v.................. 581 Mulcahy, Helvering v.......................... 405 Murray v. New York City........................ 583 Muslow, Louisiana ex rel., Arkansas Oil Co. v.. 197, 589 Mutual Benefit, Health & A. Assn. v. Bowman..... 549 Mutual Benefit, Health & Accident Assn. v. Moyer.. 581 National Biscuit Co., Kellogg Co. v............ 586 National Carbon Co. v. Western Shade Cloth Co. 570, 590 National Grocery Co., Helvering v................. 282 National Labor Relations Board, In re....... 486, 547 National Labor Relations Board, Black Diamond S. S. Corp, v............................... 579 National Labor Relations Board, Carlisle Lumber Co. v........................................ 575 National Labor Relations Board, Central Council v. 585 National Labor Relations Board, Consolidated Edi- son Co. v.................................... 555 National Labor Relations Board, Electrical Workers v ........................................... 555 National Labor Relations Board v. Mackay Co..... 333 National Labor Relations Board, Remington Rand v............................................ 576 Neblett v. Carpenter........................... 555 Nebraska v. Wyoming......................... 544, 545 Ned v. Robinson................................ 550 New Jersey v. Delaware......................... 590 New Mexico, Texas v............................ 551 New Negro Alliance v. Sanitary Grocery Co....... 542 81638°—38——n XVI TABLE OF CASES REPORTED. Page. New York, Carnevale v.......................... 580 New York City, Brooklyn & Queens Transit Corp. v. 588 New York City, Murray v........................ 583 New York City, N. Y. Rapid Transit Corp, v.....588 New York City, Sandlofer v..................... 581 New York Life Ins. Co. v. Golightly............ 566 New York Life Ins. Co. v. Jackson.............. 261 New York Life Ins. Co., Odom v................. 566 New York Life Ins. Co., Rosenthal v............ 263 New York Life Ins. Co., Ruhlin v............... 202 New York, N. H. & H. R. Co., Sheehan v......... 560 New York Rapid Transit Corp. v. New York City... 588 Noggle v. Alloy Cast Steel Co.................. 558 Northern Pacific R. Co. v. Twohy Brothers Co...575 Northern Pacific R. Co. v. United States....... 545 Norton, Gulf Refining Co. v....i................. 566 Odom v. New York Life Ins. Co.................. 566 Oil Shares Inc. v. Commercial Trust Co......... 551 Oklahoma ex rei. Johnson v. Cook............... 387 Oklahoma Gas & Electric Co., Harger v.. ....... 569 Oliver-Sherwood Co. v. Patterson Ballagli Corp.... 573 O’Neil, Arizona Publishing Co. v............... 543 Owens, Zerbst v................................ 359 Pacific-Atlantic Steamship Co. v. Weyerhaeuser Co. 567 Pacific National Co. v. Welch.................. 191 Pacific Steamship Lines v. Mack................ 582 Palmer, Illinois ex rei. Hakanson v............ 561 Pan American Petroleum Corp., United States v.... 156 Paramount Pictures Distributing Co. v. United States........................................ 55 Patterson Ballagli Corp., Oliver-Sherwood Co. v.... 573 Payne, Goldstone v.............................. 585 Peel, Zerbst v.................................. 359 Pennsylvania Public Utility Comm’n v. Union Trac- tion Co....................................... 568 Pennsylvania Railroad Co., Fox & London v. 566 Peoples Life Ins. Co. v. Whiteside..............567 TABLE OF CASES REPORTED. xvii Page. Petroleum Exploration, Inc. v. Public Service Comm’n....................................... 209 Philadelphia v. Union Traction Co............... 543 Philadelphia Piers, Inc., McCaughn v............ 581 Pillsbury, Crescent Wharf & Warehouse Co. v.....571 Pillsbury Flour Mills Co. v. United States...... 582 Pittman, Texas Consolidated Theatres v.......... 556 Pollitt, Ex parte............................... 564 Power Commission v. Metropolitan Edison Co...... 553 Public Service Comm’n, Laclede Co. v............. 398 Public Service Comm’n, Petroleum Exploration v.. 209 Pulitzer Publishing Co. v. Current News Features.. 570 Quick Action Ignition Co. v. Briggs & Stratton Corp. 588 Quiles, Bonet v................................. 588 Redding, California Water Service Co. v......... 252 Regents of the University System, Allen v... 439, 590 Reibeck, U. S. ex rei., v. Kelly................ 584 Remington Rand v. Labor Board......."........... 576 Remington Rand v. United States................. 590 Remington Rand Employees’ Assns. v. Labor Board. 585 Reynolds (R. J.) Tobacco Co. v. Robertson.... 563, 589 Riffee v. Marion Steam Shovel Co................ 558 R. J. Reynolds Tobacco Co. v. Robertson..... 563,589 Robert Jacob, Inc. v. Gunnarson................. 588 Robertson, R. J. Reynolds Tobacco Co. v..... 563, 589 Robinson, Ned v................................. 550 Rosenthal v. New York Life Ins. Co.............. 263 Rowe (F. E.) Sales Co. v. Cleveland Trust Co.... 587 Rubsam Corp., Motor Wheel Corp, v............... 560 Ruhlin v. New York Life Ins. Co................. 202 Ryan, Champlin Refining Co. v................... 549 St. Louis, B. & M. Ry. Co. v. Brownsville Dist..295 St. Louis-San Francisco Ry. Co., Blumgart v.....567 Sandlofer v. New York City...................... 581 Sanitary Grocery Co., New Negro Alliance v...... 542 Scher v. United States.......................... 557 Schlotfeldt, Warkentin v........................ 563 XVIII TABLE OF CASES REPORTED. Page. Schmidt v. United States........................ 545 Schmidt, U. S. ex rel., v. Miles................ 583 Schriber-Schroth Co. v. Cleveland Trust Co...... 587 Schultz v. Live Stock National Bank............. 590 Schuyler, Ex parte.............................. 551 Seymour, Fowler v............................... 580 Shama v. United States.......................... 568 Sheehan v. New York, N. H. & H. R. Co........... 560 Shields v. Utah Idaho Central R. Co............. 556 Shoshone Tribe, United States v.................. Ill Silver Line, United States v.................... 576 Simpson v. Massachusetts........................ 565 Sischo v. Aderhold.............................. 558 650 Madison Ave. Corp., Wil-Low Cafeterias v...... 567 Smith v. Metropolitan Life Ins. Co.............. 570 Smith, Zerbst v................................. 359 Societe de Condensation, U. S. ex rel., v. Coe.. 589 South Carolina Electric & Gas Co. v. S. C. Authority. 578 South Carolina Power Co. v. S. C. Authority..... 578 South Carolina Public Service Authority, Carolina Power & L. Co. v............................. 578 South Carolina Public Service Authority, S. C. Electric Co. v..................................... 578 South Carolina Public Service Authority, S. C. Power Co. v........................................ 578 Sovereign Camp v. Bolin......................... 557 Sprague Specialties Co., Mershon v............. 561 Spruill v. Dorsey........................... 565,590 Staats, Franklin Life Ins. Co. v................ 560 Stahmann v. Vidal............................... 552 Standard Cahill Co., Century Indemnity Co. v.... 570 Standard Marine Ins. Co. v. Westchester Fire Ins. Co......................................... 588 Standard Security & Casualty Co., Deitrick v.... 588 Steelman v. All Continent Corp.................. 554 Stockwell, McAlvay v............................ 547 Stokes v. United States......................... 558 TABLE OF CASES REPORTED xix Page. Stoll v. Gottlieb............................. 554 Stone, Zerbst v................................ 359 Stoody Co. v. Mills-Alloys, Inc................ 573 Stören, Adams Mfg. Co. v....................... 307 Suhay v. United States......................... 580 Sullivan, Zerbst v............................. 359 Swift & Co., Cohen v........................... 561 Taft v. Commissioner........................... 351 Tampa Interocean S. S. Co. v. Jorgensen.........566 Tax Commission v. Wilbur....................... 544 Taylor, Atchison, T. & S. F. Ry. Co. v......... 560 Tennessee Copper Co., Georgia v............ 546,551 Tennessee Electric Power Co. v. Ickes.......... 541 Texas, Lone Star Gas Co. v............. 224,551, 590 Texas v. New Mexico............................ 551 Texas Consolidated Theatres v. Pittman......... 556 Tinkoff, Ex parte.................. 543,553, 573, 580 Tompkins, Erie Railroad Co. v................... 64 Triner (Joseph) Corp., Mahoney v............... 401 Trustees of Milwaukee County Orphans Board, Gorney v.................................... 559 Twohy Brothers Co., Northern Pacific Ry. Co. v.... 575 Uhl, First National Bank & T. Co. v............... 584 Union Central Life Ins. Co. v. Bank of Commerce & T. Co...................................... 570 Union Central Life Ins. Co., Wright v.......... 502, 542 Union Marine & General Ins. Co. v. United Fruit Co. 430 Union Traction Co., Penn. Comm’n v............. 568 Union Traction Co., Philadelphia v............... 543 United Fruit Co., Aetna Ins. Co. v............. 430 United Fruit Co., Boston Ins. Co. v............... 430 United Fruit Co., Union Marine & G. Ins. Co. v..430 United States, American Woolen Co. v............581 United States, Baltimore & Ohio R. Co. v........ 58 United States v. Bekins..................... 27, 589 United States, Breen v. 585 United States v. Carolene Products Co.......... 144 XX TABLE OF CASES REPORTED Page. United States v. Continental Nat. Bank & T. Co... 554 United States, Denver Union Stock Yard Co. v.... 470 United States, George E. Warren Corp, v........ 572 United States, Gilmore v....................... 569 United States, Globe Indemnity Co. v........... 575 United States, Guaranty Trust Co. v............ 126 United States v. Hendler....................... 588 United States v. Humble Oil & Rfg. Co.......... 156 United States, Interstate Circuit v............. t . 55 United States v. Kaplan........................ 195 United States v. Klamath & Moadoc Tribes........ 119 United States, Littlejohn v.......i.............. 583 United States, Lonergan v.... . i i\............... 581 United States, Lowe Brothers Co. v............. 302 United States, Malone v........................ 562 United States, McDonald v...................... 564 United States, Mellon v........................ 586 United States, Meyers v......................... 583 United States, Morgan v.......................... 1 United States, Northern Pacific R. Co. v....... 545 United States v. Pan American Petroleum Corp.... 156 United States, Paramount Pictures Distributing Co. v......................................... 55 United States, Pillsbury Flour Mills Co. v...... 582 United States, Remington Rand v.................. 590 United States, Scher v......................... 557 United States, Schmidt v........................ 545 United States, Shama v......................... 568 United States v. Shoshone Tribe................ Ill United States v. Silver Line................... 576 United States, Stokes v........ . i................ 558 United States, Suhay v............ ............ 580 United States, Valli v......................... 586 U. S. ex rel. Reibeck v. Kelly................ 584 U. S. ex rel. Schmidt v. Miles................. 583 U. S. ex rel. Societe de Condensation v. Coe.... 589 Utah Idaho Central R. Co., Shields v............ 556 TABLE OF CASES REPORTED xxi Page. Valiente & Co., Bonet v......................... 588 Valli v. United States.......................... 586 Vidal, Stahmann v............................... 552 Virginia Iron, Coal & Coke Co., Armstrong v.... 563 Wabash Appliance Corp., General Electric Co. v.... 364 Waialua Agricultural Co. v. Christian........... 553 Waialua Agricultural Co., Christian v........... 553 Warkentin v. Schlotfeldt........................ 563 Warren (George E.) Corp. v. United States...... 572 Washington, Lindsey v........................... 559 Waxed Products Co., DuPont Co. v.............. 575 Welch, Pacific National Co. v. 191 Westchester County v. Montrose Contracting Co... 561 Westchester Fire Ins. Co., Standard Ins. Co. v...588 Western Electric Co., General Pictures Corp, v..... 175, 546,587 Western Shade Cloth Co., Carbon Co. v...... 570, 590 Weyerhaeuser Timber Co., Pacific-Atlantic S. S. Co. v....................................... 567 White v. Wood................................... 578 White v. Youngblood......................... 583 Whiteside, Peoples Life Ins. Co. v................ 567 Wiese v. Commissioner....................... 562,589 Wilbur, Tax Commission v.................... 544 Wil-Low Cafeterias v. 650 Madison Ave. Corp. 567 Wilson, Helvering v............................. 405 Wisconsin Tax Comm’n, Dromey v.............. 548 Wisconsin Tax Comm’n, Hughes v................ 548 Wood, White v............................... 578 Woodmen of the World v. Bolin............... 557 Wright v. Union Central Life Ins. Co....... 502, 542 Wyoming, Nebraska v........................ 544,545 Yosemite Park & Curry Co., Collins v........ 518 Youngblood, White v......................... 583 Zerbst v. Collins........................... 359 Zerbst, Johnson v........................... 458 Zerbst v. Jones............................. 359 XXII TABLE OF CASES REPORTED Page. Zerbst v. Kidwell.............................. 359 Zerbst v. Owens................................ 359 Zerbst v. Peel................................. 359 Zerbst v. Smith................................ 359 Zerbst v. Stone................................ 359 Zerbst v. Sullivan............................. 359 TABLE OF CASES Cited in Opinions Page Acker v. United States, 298 U. S. 426 21 Adair v. Bank of America Assn., 303 U. S. 350 513-515, 517 Aetna Casualty & S. Co. v. Phoenix Nat. Bank & T. Co., 285 U. S. 209 436 Aetna Ins. Co. v. Hyde, 275 U. S. 440 484 Aetna Ins. Co. v. Kennedy, 301 U. S. 389 464 Agency of Canadian Car & F. Co. v. American Can Co., 258 F. 363 138,139 Alabama Power Co. v. Ickes, 302 U. S. 464 178, 253-255,541 Alameda Inv. Co. v. Mc- Laughlin, 33 F. 2d 120 195 Alice State Bank v. Hous- ton Pasture Co., 247 U. S. 240 161 Almours Securities, Inc. v. Commissioner, 91 F. 2d 427 286 Altoona Publix Theatres v. American Tri-Ergon Corp., 294 U. S. 477 374 American Cotton-Tie Sup- ply Co. v. Bullard, 1 Fed. Cas. 625 182 American Exchange Bank v. Rowsey, 144 Okla. 172 390 American Mfg. Co. v. St. Louis, 250 U. S. 459 310, 312,313,329 American Propeller Co. v. United States, 300 U. S. 475 115 American Tel. & Tel. Co. v. United States, 299 U. S. 232 237 Page Ames Baldwin Wyoming Co. v. Labor Board, 73 F. 2d 489 385 Anderson v. Corail, 263 U. S. 193 361 Anniston Mfg. Co. v. Davis, 301 U. S. 337 456 Anraku v. General Electric Co., 80 F. 2d 958 365 Arkansas v. Kansas & Texas Coal Co., 183 U. S. 185 217 Arkansas v. Tennessee, 246 U. S. 158 103 Arkansas Louisiana Gas Co. v. Dept, of Public Utilities, 304 U. S. 61 218 Arlington Hotel v. Fant, 278 U. S. 439 529 Aschenbrenner v. U. S. Fidel- ity & G. Co., 292 U. S. 80 206 Ashton v. Cameron County Dist., 298 U. S. 513 45, 49,50,54 Associated Press v. Labor Board, 301 U. S. 103 543 Atchison, T. & S. F. Ry. Co. v. United States, 295 U. S. 193 477 Atkins v. Commissioner, 30 F. 2d 761 356 Atlantic City Railroad, In re, 164 U. S. 633 496,497 Atlantic Coast Line v. Flor- ida, 295 U. S. 301 483 Atlantic Refining Co. v. Vir- ginia, 302 U. S. 22 290 Atlantic Works v. Brady, 107 U. S. 192 174 Baker v. Grice, 169 U. S. 284 88,202 Baldwin v. G. A. F. Seelig, 294 U. S. 511 331 XXIII Page Baltimore Nat. Bank v. State Tax Comm’n, 297 U. S. 209 52,536 Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368 69, 76,78,84,86 Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66 76, 85,86 Baltimore & Ohio R. Co. v. U. S. ex rel. Pitcairn Coal Co., 215 U. S. 481 301 Bank v. Supervisors, 7 Wall. 26 412 Bankline OU Co. v. Commissioner, 303 U. S. 362 418 Bank of America v. Commissioner, 90 F. 2d 981 267 Bank of Hamilton v. Dudley’s Lessee, 2 Pet. 492 72 Banton v. Belt Line Ry., 268 U. S. 413 482,483 Barber v. Pittsburgh, F. W. & C. R. Co., 166 U. S. 83 76 Barron v. The Mayor, 7 Pet. 243 463 Bartels v. Iowa, 262 U. S. 404 153 Bass, Ratcliff & Gretton v. State Tax Comm’n, 266 U. S. 271 312 Bauer & Cie v. O’Donnell, 229 U. S. 1 185 Beatrice, The, 36 L. J. Rep. Adm. (N. S.) 10 134 Beaumont v. Helvering, 63 App. D. C. 387 289 Beaumont, S. L. & W. Ry. Co. v. United States, 282 U. S. 74 484 Beecher v. Wetherby, 95 U. S. 517 116 Bell v. Morrison, 1 Pet. 351 136 Bement v. National Harrow Co., 186 U. S. 70 181,182 Benedict v. Price, 38 F. 2d 309 281 Benson v. United States, 146 U. S. 325 529 Berizzi Bros. Co. v. S. S. Pesaro, 271 U. S. 562 134 XXIV TABLE OF CASES CITED. Page Beutler v. Grand Trunk Junction Ry. Co., 224 U. S. 85 _ 76 Biddle v. Commissioner, 302 U. S. 573 279 Black Diamond S. S. Corp. v. Labor Board, 94 F. 2d 875 336 Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518 69-91 Blair v. Commissioner, 300 U. S. 5 267 Bluefield Co. v. Public Service Comm’n, 262 U. S. 679 475, 485 Board of Commissioners v. New York Tel. Co., 271 U. S. 23 475 Board of Trustees v. United States, 289 U. S. 48 453 Bobbs-Merrill Co. v. Straus, 210 U. S. 339 185 Bogardus v. Commissioner, 302 U. S. 34 289 Boise Artesian Water Co. v. Boise City, 213 U. S. 276 218 Boone County v. Burlington & Mo. River R. Co., 139 U. S. 684 135 Borden’s Farm Products Co. v. Baldwin, 293 U. S. 194 153 Boston Pressed Metal Co. v. United States, 282 U. S. 409 306 Boston Sand & G. Co. v. United States, 278 U. S. 41 433 Boston Store v. American Graphophone Co., 246 U. S. 8 185 Bowers v. New York & Albany Lighterage Co., 273 U. S. 346 135 Boyce v. Tabb, 18 Wall, 546 75 Bradley Lumber Co. v. Labor Board, 84 F. 2d 97 222 Bradlie v. Maryland Ins. Co., 12 Pet. 378 435 Bretzfelder v. Commissioner, 86 F. 2d 713 355,357 TABLE OF CASES CITED. XXV Page British-American Oil Co. v. Board, 299 U. S. 159 116 British & F. Marine Ins. Co. v. Maldonado & Co., 182 F. 744 434 Brooklyn Bank v. Barnaby, 197 N. Y. 210 136 Brooks v. Fiske, 15 How. 212 369 Brown v. Helvering, 291 U. S. 193 275 Brush v. Commissioner, 300 U. S. 352 411,423-429 Brushaber v. Union Pacific R. Co., 240 U. S. 1 425 Buder, Ex parte, 271 U. S. 461 254 Buffington’s Iron Bldg. Co. v. Eustis, 65 F. 804 189 Builders’ Club v. United States, 14 F. Supp. 1020 446 Buono v. Yankee Maid Dress Corp., 77 F. 2d 274 374 Burgess v. Seligman, 107 U. S. 20 85 Burk-Waggoner Oil Assn. v. Hopkins, 269 U. S. 110 279 Burn a nd v. Rodocanachi Sons & Co., [1882] L. R. 7 App. Cas. 333 439 Burnet v. Coronado Oil & G. Co., 285 U. S. 393 92, 418,426 Burnet v. Harmel, 287 U. S. 103 279 Burnet v. Jergins Trust, 288 U. S. 508 418,421 Burnet v. Lexington Ice & C. S. Co., 62 F. 2d 906 276 Burnet v. Sanford & Brooks Co., 282 U. S. 359 275 Burnet v. Thompson Oil & Gas Co., 283 U. S. 301 275 Butterworth v. Hoe, 112 U. S. 50 171 Buttolph v. Commissioner, 29 F. 2d 695 195 Butz v. Muscatine, 8 Wall. 575 69 Calkins v. Smietanka, 240 F. 138 455 Page Campbell v. Haverhill, 155 U. S. 610 136 Canadian Car & F. Co. v. American Can Co., 258 F. 363 138,139 Capital City Dairy Co. v. Ohio, 183 U. S. 238 151 Carbice Corp. v. American Patents Corp., 283 U. S. 27 . 181,185 Carmichael v. Southern Coal & C. Co., 301 U. S. 495 154 Carney v. Benz, 90 F. 2d 747 357 Carolene Products Co. v. Banning, 131 Neb. 429 155 Carolene Products Co. v. Evaporated Milk Assn., 93 F. 2d 202 146 Carolene Products Co. v. McLaughlin, 365 Ill. 62 155 Carolene Products Co. v. Thomson, 276 Mich. 172 155 Carpenter v. Providence Washington Ins. Co., 16 Pet. 495 205 Carrau v. Superior Court, 30 Wash. 700 222 Cassard v. Wool worth, 165 La. 571 201 Castillo v. McConnico, 168 U. S. 674 290 Cayuga County v. State, 153 N. Y. 279 137 Central Lumber Co. v. South Dakota, 225 U. S. 157 151 Central Vermont Ry. Co. v. White, 238 U. S. 507 86 Chamber of Commerce v. Federal Trade Comm’n, 280 F. 45 222,385 Chamber of Commerce v. Federal Trade Comm’n, 13 F. 2d 673 260 Chapman v. Hoage, 296 U. S. 526 436 Chapman v. Wintroath, 252 U. S. 126 166,167 Charles River Bridge v. War- ren Bridge, 11 Pet. 420 52,87 XXVI TABLE OF CASES CITED, Page Chastleton Corp. v. Sinclair, 264 U. S. 543 153 Cheatham v. United States, 92 U. S. 85 456 Cheever v. Wilson, 9 Wall. 108 76 Cherokee Nation v. Georgia, 5 Pet. 1 117 Chicago v. Robbins, 2 Black 418 76 Chicago Board of Trade v. Johnson, 264 U. S. 1 279 Chicago, B. & Q. R. Co. v. Osborne, 265 U. S. 14 217 Chicago & G. T. Ry. Co. v. Wellman, 143 U. S. 339 87 Chicago, R. I. & P. Ry., Ex parte, 255 U. S. 273 496,497 Chicago, R. I. & P. Ry. Co. v. McGlinn, 114 U. S. 542 529 Chippewa Indians v. United States, 301 U. S. 358 123 Cissna v. Tennessee, 246 U. S. 289 110,111 City Bank Co. v. Schnader, 291 U. S. 24 217 Clark v. Williard, 294 U. S. 211 161 Clark Blade & R. Co. v. Gillette Safety Razor Co., 194 F. 421 165 Clark Distilling Co. v. West- ern Maryland R. Co., 242 U. S. 311 147 Cleveland, C., C. & St. L. Ry. C. v. Backus, 154 U. S. 439 479 Cochrane v. Badische Anilin 6 Soda Fabrik, 111 U. S. 293 374 Coffee v. Groover, 123 U. S. 1 107,110, 111 Cole v. Pennsylvania R. Co., 43 F. 2d 953 74,76 Collector v. Day, 11 Wall. 113 414r428 Colorado v. Kansas, 1937 Term, No. 6, original 105 Colorado v. La Plata River Co., 101 Colo. 368 109 Columbus Gas Co. v. Comm’n, 292 U. S. 398 483 Page Commissioner v. Bryn Mawr Trust Co., 87 F. 2d 607 355, 367 Commissioner v. Moore, 48 F. 2d 526; 284 U. S. 620 195 Commissioner v. Ten Eyck, 76 F. 2d 515 511 Commissioners v. Buckner, 48 F. 533 133 Compania Espanola v. The Navemar, 303 U. S. 68 134 Connecticut v. Massachu- setts, 282 U. S. 660 105,110 Continental Illinois Nat. Bank & T. Co. v. Chicago, R. I. & P. Ry. Co., 294 U. S. 648 47, 54,513,514,517 Continental Oil Co. v. United States, 299 U. S. 510 544 Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405 369 Coodley v. New York Life Ins. Co., 7 Cal. 2d 269 207 Cook v. Pennsylvania, 97 U. S. 566 312 Cooke v. United States, 91 U. S. 389 135 Cooney v. Mountain States Tel. Co., 294 U. S. 384 312 Corbin Cabinet Lock Co. v. Eagle Lock Co., 150 U. S. 38 173 Corliss v. Bowers, 281 U. S. 376 279 Com-Planter Patent, The, 23 Wall. 181 189 County of Mobile v. Kim- ball, 102 U. S. 691 332 Craig v. United States, 298 U. S. 637 544 Crandall v. Nevada, 6 Wall. 35 428 Crew Levick Co. v. Pennsyl- vania, 245 U. S. 292 312,324 Crowell v. Benson, 285 U. S. 22 179 Crown Cork & S. Co. v. Gutmann Co., 304 U. S. 159 179,183 TABLE OF CASES CITED. XXVII Page Cudahy Packing Co. v. Minnesota, 246 U. S. 450 325 Cuddy, Petitioner, 131 U. S. 280 466,468 Cruickshank v. Bidwell, 176 U. S. 73 218 Curtis v. Cleveland, C., C. & St. L. Ry. Co., 140 F. 777 76 Cuyahoga Power Co. v. Northern Realty Co., 244 U. S. 300 544 Dalton Adding Machine Co. v. State Corp. Comm’n, 236 U. S. 699 219 Dartmouth College v. Woodward, 4 Wheat. 518 52 Davis, The, 10 Wall. 15 134 Davis v. Wallace, 257 U. S. 478 256 Davis Co. v. New Departure Co., 217 F. 775 371 Dayton-Goose Creek Ry. v. United States, 263 U. S. 456 326,483 Dayton Power & L. Co. v. Comm’n, 292 U. S. 290 237, 479,483,485 De Forest Co. v. United States, 273 U. S. 236 181 De Jonge v. Oregon, 299 U. S. 353 153 Denver v. Denver Union Water Co., 246 U. S. 178 479 Des Moines Gas Co. v. Des Moines, 238 U. S. 153 479 Dickerman v. Northern Trust Co., 176 U. S. 181 76 Di Giovanni v. Camden Insurance Assn., 296 U. S. 64 217,218 Dobbins v. Erie County, 16 Pet. 435 413 Dooley v. United States, 182 U. S. 222 143 Dorsey Rake Co. v. Bradley Co., 7 Fed. Cas. 946 181 Dougherty v. Equitable Life Assurance Society, 266 N. Y. 71 140 Downes v. Teter-Heany Development Co., 150 F. 122 374 Dows v. Chicago, 11 Wall. 108 218 Page Dresser v. United States, 55 F. 2d 499 289 Dr. Pepper Bottling Co. v. Commissioner, 69 F. 2d 768 196 Duke Power Co. v. Greenwood County, 299 U. S. 259 207 Duke Power Co. v. Greenwood County, 302 U. S. 485 255,541 Dunn Wire-Cut Lug Brick Co. v. Toronto Fire Clay Co., 259 F. 258 373,374 Eagan v. Commissioner, 43 F. 2d 881 279 Earle v. Commissioner, 38 F. 2d 965 280,281 East Ohio Gas Co. v. Tax Comm’n, 283 U. S. 465 236 Educational Films Corp. v. Ward, 282 U. S. 379 312,419 Edward Hines Yellow Pine Trustees v. Knox, 144 Miss. 560 222 Edwards v. Elliott, 21 Wall. 532 463 Edwards & Co. v. Motor Union Ins. Co., [1922] 2 K. B. D. 249 432 Eels v. St. Louis, K. & N. W. Ry. Co., 52 F. 903 75 Eisner v. Macomber, 252 U. S. 189 425 Electric Bond & Share Co. v. Securities & Exchange Comm’n, 303 U. S. 419 533 Elmhurst Cemetery Co. v. Commissioner, 300 U. S. 37 276,295 Ely Norris Safe Co. v. Mosier Safe Co., 62 F. 2d 524 189 Emperor of Brazil v. Robinson, 5 Dowl. Pr. 522 134 Erie R. Co. v. Tompkins, 304 U. S. 64 205, 208, 262,264,397,550 Evans v. Gore, 253 U. S. 245 425 Everett v. Judson, 228 U. S. 474 508 Exchange, The, 7 Cranch 116 134 XXVIII TABLE OF CASES CITED. Page Falchetti v. Pennsylvania R. Co., 307 Pa. 203 80,81 Fargo v. Michigan, 121 U. S. 230 312 Farmers & Merchants Bank v. Federal Reserve Bank, 262 U. S. 649 151 Farrington v. Tokushige, 273 U. S. 484 153 Federal Land Bank v. Priddy, 295 U. S. 229 412 Federal Trade Comm’n v. American Tobacco Co., 264 U. S. 298 155 Federal Trade Comm’n v. Claire Furnace Co., 274 U. S. 160 217,219 Ferguson v. Dickson, 300 F. 961 356 Fessenden v. Wilson, 48 F. 2d 422 171 Fidelity-Philadelphia Trust Co. v. Commissioner, 47 F. 2d 36 279 Fink v. O’Neil, 106 U. S. 272 132-135 First National Bank v. United States, 86 F. 2d 938 276 Fisher’s Blend Station v. State Tax Comm’n, 297 U. S. 650 312 Fiske v. Kansas, 274 U. S. 380 153 Fletcher v. Peck, 6 Cranch 87 52 Flint v. Stone Tracy Co., 220 U. S. 107 418,419 Florida v. Mellon, 273 U. S. 12 392 Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525 528,529 Fowler v. Lindsey, 3 Dall. 411 103 Fowler v. Pennsylvania R. Co., 229 F. 373 75 Foxcroft v. Mallet, 4 How. 353 76 Frank v. Mangum, 237 U. S. 309 466-468 Frasch v. Moore, 211 U. S. 1 171 Page French Republic v. Saratoga Vichy Spring Co., 191 U. S. 427 133 Fritz v. Commissioner, 76 F. 2d 460 279 Galveston Electric Co. v. Galveston, 258 U. S. 388 479 Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217 312,320 Gamewell Fire-Alarm Tel. Co. v. Brooklyn, 14 F. 255 181 Garcia v. Lee, 12 Pet. 511 107 Gardner v. Michigan Cent. R. Co., 150 U. S. 349 75, 76,86 Gayler v. Wilder, 10 How. 477 181 Gelpcke v. Dubuque, 1 Wall. 175 69,72,74,76 General Electric Co. v. Continental Lamp Works, 280 F. 846 182 Georgia v. Tennessee Copper Co., 206 U. S. 230 393,394 Gibbons v. Ogden, 9 Wheat. 1 147,319 Gibson v. Chouteau, 13 Wall. 92 133 Gilchrist v. Interborough Co., 279 U. S. 159 223 Gillespie v. Oklahoma, 257 U. S. 501 426,428 Giragi v. Moore, 301 U. S. 670 543 Girard Trust Co. v. United States, 270 U. S. 163 306 Gitlow v. New York, 268 U. S. 652 153 Glaser v. Commissioner, 69 F. 2d 254 357 Glenwood Light Co. v. Mutual Light Co., 239 U. S. 121 215 Godfrey v. Eames, 1 Wall. 317 165 Goldsborough v. Burnet, 46 ’ F. 2d 432 289 Gouge v. Hart, 250 F. 802; 251 U. S. 542 455 TABLE OF CASES CITED. XXIX Page Graham v. Commissioner, 95 F. 2d 174 267 Graham & Foster v. Good- cell, 282 U. S. 409 306 Grant v. Raymond, 6 Pet. 218 369 Great Northern Ry. Co. v. Merchants Elevator Co., 259 U. S. 285 301 Great Northern Ry. Co. v. United States, 277 U. S. 172 385 Greene v. Keithley, 86 F. 2d 239 76 Gregory v. Helvering, 293 U. S. 465 288 Greiner v. Lewellyn, 258 U. S. 384 419 Griffin v. Brewer, 167 Okla. 654 390 Grosjean v. American Press Co., 297 U. S. 233 153,543 Group No. 1 Oil Corp. v. Bass, 283 U. S. 279 418,421 Guarantee Veterinary Co. v. Federal Trade Comm’n, 285 F. 853 ' 260 Guaranty Trust Co. v. Com- missioner, 303 U. S. 493 275 Guise v. New York Life Ins. Co., 127 Pa. Super. 127 207, 208 Gulf Oil Corp. v. Lewellyn, 248 U. S. 71 288 Gulf Refining Co. v. Atlan- tic Mutual Ins. Co., 279 U. S. 708 434,435,438 Gully v. Interstate Natural Gas Co., 292 U. S. 16 251,252 Gunning v. Cooley, 281 U. S. 90 82 Gynex Corp. v. Dilex Insti- tute, 85 F. 2d 103 371 Hack v. State, 141 Wis. 346 464 Hale v. Iowa State Board, 302 U. S. 95 315 Hall v. Geiger-Jones Co., 242 U. S. 539 151 Hamilton v. Kentucky Distilleries & W. Co., 251 U. S. 146 147 Handly’s Lessee v. Anthony, 5 Wheat. 374 111 Page Hanley v. Kansas City S. Ry. Co., 187 U. S. 617 236, 238 Hanover National Bank v. Moyses, 186 U. S. 181 47,514 Harding, Ex parte, 219 U. S. 363 496 Harlan v. McGourin, 218 U. S. 442 465 Harrison v. Foley, 206 F. 57 75 Harrisonville v. Dickey Clay Co., 289 U. S. 334 223 Hart v. Commissioner, 54 F. 2d 848 279 Haver v. Yaker, 9 Wall. 32 143 Hawkins, Petitioner, In re, 147 U. S. 486 497 Hawkins v. Barney’s Lessee, 5 Pet. 457 72 Hawks v. Hamill, 228 U. S. 52 223 Healy v. Ratta, 292 ü. S. 263 216 Hebe Co. v. Shaw, 248 U. S. 297 148,151,154 Heiner v. Mellon, 304 U. S. 271 288 Heiner v. Tindle, 276 U. S. 582 289 Hellebush v. Commissioner, 65 F. 2d 902 276 Helvering v. Bankline Oil Co., 303 U. S. 362 426 Helvering v. Bliss, 293 U. S. 144 270 Helvering v. Gerhardt, 304 U. S. 405 452 Helvering v. Mitchell, 303 U. S. 391 289,290 Helvering v. Morgan’s Inc., 293 U. S. 121 275 Helvering v. Mountain Producers Corp., 303 U. S. 376 418,421,426,430 Helvering v. Powers, 293 U. S. 214 418, 419,426,451,457 Helvering v. Rankin, 295 U. S. 123 294 Helvering v. Therrell, 303 U. S. 218 429,453 Henrietta Mills v. Rutherford County, 281 U. S. 121 217 XXX TABLE OF CASES CITED. Page Herndon v. Lowry, 301 U. S. 242 153 Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U. S. 341 548 Hide-Ite Leather Co. v. Fiber Products Co., 226 F. 34 374 Hill v. Commissioner, 38 F. 2d 165 281 Hinderlider v. La Plata River Co., 291 U. S. 650 99 Hinderlider v La Plata River Co., 304 U. S. 92 52,528 Hipolite Egg Co. v. United States, 220 U. S. 45 147 Hodges v. Easton, 106 U. S. 408 464 Holden v. Joy, 17 Wall. 211 117 Holiday v. Mattheson, 24 F. 185 182 Holland Furniture Co. v. Perkins Glue Co., 277 U. S. 245 371,373 Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398 515, 516 Hope v. United States, 227 U. S. 308 147 Hope Natural Gas Co. v. Hall, 274 U. S. 284 310,313 Hough v. Railway Co., 100 U. S. 213 76,86 Houston, E. & W. T. Ry. Co. v. United States, 234 U. S. 342 320 Howard v. Ingersoll, 13 How. 381 110,111 Hubble v. Berry, 180 Ind. 513 509 Hulburd. v. Commissioner, 296 U. S. 300 294 Hump Hairpin Co. v. Emmerson, 258 U. S. 290 329 Hurn v. Oursler, 289 U. S. 238 256 Iglehart v. Commissioner, 77 F. 2d 704 270 Incandescent Lamp Patent, The, 159 U. S. 465 369 Page Indian Motocycle Co. v. United States, 283 U. S. 570 418-428 In re. See name of party. International Navigation Co. v. Atlantic Mutual Ins. Co., 100 F. 304; 108 F. 987 435 International Tooth Crown Co. v. Gaylord, 140 U. S. 55 190 Interstate Commerce Comm’n v. Chicago G. W. Ry. Co., 209 U. S. 108 482 Interstate Commerce Comm’n v. New York, N. H. & H. R. Co., 287 U. S. 178 497 Interstate Realty & Inv. Co. v. Bibb County, 293 F. 721 75 Irving v. Manning, 6 C. B. 391 435 Irwin v. Wright, 258 U. S. 219 444 Isbrandtsen-Moller Co. v. United States, 300 U. S. 139 254 Ives v. Sargent, 119 U. S. 652 169 Jackson v. Chew, 12 Wheat. 153 72 Jacobs v. United States, 290 U. S. 13 123,125 James v. Campbell, 104 U. S. 356 169 James v. Dravo Constructing Co., 302 U. S. 134 412, 421,426-430 Jefferson Branch Bank v. Skelly, 1 Black 436 52 Jeffery-DeWitt Insulator Co. v. Labor Board, 91 F. 2d 134 336 Johnson v. Chas. D. Horton Co., 159 F. 361 75 Johnson v. Manhattan Ry. Co., 289 U. S. 479 82 Johnson v. Maryland, 254 U. S. 51 428 Jones v. Meehan, 175 U. S. 1 116 TABLE OF CASES CITED. XXXI Page Jones v. Securities & Exchange Comm’n, 79 F. 2d 617; 298 U. S. 1 385,386 Jones v. United States, 137 U. S. 202 137,138 Kansas v. Colorado, 206 U. S. 46 102-105,110,394 Kansas v. United States, 204 U. S. 331 394,396 Kaplan v. United States, 18 F. Supp. 965 192 Keck Inv. Co. v. Commis- sioner, 77 F. 2d 244 286 Keeler v. Standard Folding Bed Co., 157 U. S. 659 185 Keene Five Cent Sav. Bank v. Reid, 123 F. 221 75 Keller v. Adams-Campbell Co., 264 U. S. 314 179 Kennebec Water Dist. v. Waterville, 97 Me. 185 479 Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U. S. 334 147 King v. Morrall, 6 Price 24 142 King of Spain v. Hüllet, 7 Bligh N. S. 359 135 Klamath Indians v. United States, 296 U. S. 244 122 Knewal v. Egan, 268 U. S. 442 465 Knights of Pythias v. Meyer, 265 U. S. 30 544 Knox & Lewis v. Alwood, 228 F. 753 76 Kohl v. United States, 91 U. S. 367 530 Koontz v. B. & O. R. Co., 309 Pa. 122 81 Kuhn v. Fairmont Coal Co., 215 U. S. 349 69, 76,79,85,91 Lafayette Worsted Co. v. Page, 6 F. 2d 399 446 Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101 76, 86 Lane v. Vick, 3 How. 464 69,76 Lane County v. Oregon, 7 Wall. 71 415 La Plata River Co. v. Hindernder, 93 Colo. 128 99 81638°—38----III Page La Prade, Ex parte, 289 U. S. 444 445 Lawrence v. St. Louis-S. F. Ry. Co., 274 U. S. 588 221 Lawrence v. State Tax Comm’n, 286 U. S. 276 548 Layne & Bowler Corp. v. Western Well Works, 261 U. S. 387 179 Leavenworth, L. & G. R. Co. v. United States, 92 U. S. 733 116 Lehigh Valley R. Co., Matter of, 265 U. S. 573 137 Lehigh Valley R. Co. v. State of Russia, 21 F. 2d 396 137- 139 Lehigh Valley R. Co. v. United States, 243 U. S. 412 385 Leitch Mfg. Co. v. Barber Co., 302 U. S. 458 181,185 Lever v. State ex rel. Shull, 157 Okla. 162 392 Levering & Garrigues Co. v. Morrin, 289 U. S. 103 255 L. E. Waterman Co. v. Kline, 234 F. 891 182 Lewis-Simas-Jones Co. v. Southern Pacific Co., 283 U. S. 654 300 Lindheimer v. Illinois Tel. Co., 292 U. S. 151 485 Lipke v. Lederer, 259 U. S. 557 455 Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397 75 Livingston v. Moore, 7 Pet. 469 72 Livingstone, The, 130 F. 746 438,439 Local Loan Co. v. Hunt, 292 U. S. 234 508 Lockwood v. McGowan, 86 F. 2d 1005 355,357 Lohre v. Aitchison, L. R. 2 Q. B. D. 501 435 London Street Tramways Co. v. London City Council, [1898] A. C. 375 92 XXXII TABLE OF CASES CITED. Page Los Angeles Gas Co. v. Railroad Cornm’n, 289 U. S. 287 475,479 Lottery Case, 188 U. S. 321 147 Louisiana v. Texas, 176 U. S. 1 395 Louisville Bank v. Radford, 295 U. S. 555 506, 510-515,517 Louisville & Nashville R. Co. v. Garrett, 231 U. S. 298 256 Lovell v. Griffin, 303 U. S. 444 152,153 Luckenbach S. S. Co. v. United States, 272 U. S. 533 115 Lusk v. Atkinson, 268 Mo. 109 399 Luther v. Sagor & Co., [1921] 3 K. B. D. 532 140 Lynch v. New York, 293 U. S. 52 544 Magdalen College Case, 11 Co. Rep. 66b, 74b 132 Magnum Import Cö. v. Coty, 262 U. S. 159 206 Mahn v. Harwood, 112 U. S. 354 169 Mahoney v. Joseph Triner Corp., 304 U. S. 401 538 Maine v. Grand Trunk Ry. Co., 142 U.S. 217 329 Manhattan Life Ins. Co. v. Schwartz, 274 N. Y. 374 207 Manley v. Georgia, 279 U. S. 1 155 Marine Ry. & Coal Co. v. United States, 257 U. S. 47 111 Marks v. United States, 18 F. Supp. 911 195 Martin v. District of Colum- bia, 205 U. S. 135 88 Mason v. United States, 260 U. S. 545 72,205 Massachusetts v. Mellon, 262 U. S. 447 . 393 Matson Navigation Co. v. State Board, 297 U. S. 441' 310 Matthews v. Rodgers, 284 U. S. 521 223 Page Maurer v. Dickerson, 113 F. 870 374 Mayer v. Prudential Life Ins. Co., 121 Pa. Super. 475 208 Mayfield, In re, 141 U. S. 107 466 McCardle v. Indianapolis Water Co., 272 U. S. 400 475, 480 McCarty v. Lehigh Valley R. Co., 160 U. S. 110 374 McChord v. Louisville & N. R. Co., 183 U. S. 483 218 McCiain v. Ortmayer, 141 U. S. 419 189 M’Cluny v. Silliman, 3 Pet. 270 136 McCormick & Co. v. Brown, 286 U. S. 131 147 McCormick Machine Co. v. Aultman, 169 U. S. 606 171 McCray v. United States, 195 U. S. 27 151 McCulloch v. Maryland, 4 Wheat. 316 153,411-416,428 McLoughlin v. Commissioner, 303 U. S. 218 422 McNamee v. United States, 11 Ark. 148 135 Merrill v. Yeomans, 94 U. S. 568 369 Messinger v. Anderson, 171 F. 785; 225 U. S. 436 76 Metcalf & Eddy v. Mitchell, 269 U. S. 514 416-427 Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580 152 Metropolitan R. Co. v. District of Columbia, 132 U. S. 1 135 Meyer v. Nebraska, 262 U. S. 390 153 Meyer v. Wells, Fargo & Co. 223 U. S. 298 312 Mid - Continent Petroleum Corp. v. Sauder, 67 F. 2d 9; 292 U. S. 272 76 Midland Valley R. Co. v. Jarvis, 29 F. 2d 539 76 TABLE OF CASES CITED. XXXIII Page Midland Valley R. Co. v. Sutter, 28 F. 2d 163 76 Mid-Northern Oil Co. v. Walker, 268 U. S. 45 532 Miles v. Dept, of Treasury, 209 Ind. 172 310 Miller v. Brass Co., 104 U. S. 350 169,189 Miller v. Milwaukee, 272 U. S. 713 413 Miller v. Standard Nut Margarine Co., 284 U. S. 498 449,454,455 Miller v. Wilson, 236 U. S. 373 151 Minnesota v. Northern Securities Co., 194 U. S. 48 217 Minnesota v. Wisconsin, 252 U. S. 273 105 Minnesota Rate Cases, 230 U. S. 352 238,312,475 Missouri v. Illinois, 180 U. S. 208 394 Missouri v. Kansas Natural Gas Co., 265 U. S. 298 236 Missouri Pacific R. Co. v. Boone, 270 U. S. 466 155 Missouri Pacific R. Co. v. Norwood, 283 U. S. 249 485 Missouri Pacific R. Co. v. Stroud, 267 U. S. 404 236,238 Mitchell v. Hawley, 16 Wall. 544 181,182 Mitchell v. Tilghman, 19 Wall. 287 373 Mitchell v. United States, 21 Wall. 350 549 Mobile, J. & K. C. R. Co. v. Tumipseed, 219 U. S. 35 155 Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584 438 Mooney v. Holohan, 294 U. S. 103 467 Moore v. Dempsey, 261 U. S. 86 467,468 Moore v. Marsh, 7 Wall. 515 181 Moore v. McGuire, 205 U. S 214 111 Moore Ice Cream Co. v. Rose, 289 U. S. 373 306 Page Morehead v. N. Y. ex rel. Tipaldo, 298 U. S. 587 161 Morf v. Bingaman, 298 U.S. 407 154 Morgan v. United States, 298 U. S. 468 14,15,23.351 Morgan v. United States, 304 U. S. 1 500,501 Morris v. Alabama, 302 U. S. 642 548 Morris v. Gilmer, 129 U S. 315 76 Morrisdale Coal Co. v. Pennsylvania R. Co., 230 U. S. 304 301 Moses v. United States, 61 F. 2d 791 304 Motion Picture Co. v. Universal Film Co., 243 U. S. 502 185,186,188 Mugler v. Kansas, 123 U. S. 623 404 Mutual Film Corp. v. Kansas, 236 U. S. 248 541 Mutual Film Corp. v. Ohio Industrial Comm ’n, 236 U. S. 230 541 Mutual Life Ins. Co. v. Johnson, 293 U. S. 335 85, 205,207,208 Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 221,222,385 Myers v. United States, 272 U. S. 52 88 National Carbon Co. v. Western Shade Cloth Co., 93 F. 2d 94 374 National Labor Board v. Bell Oil & Gas Co., 91 F. 2d 509 336,346 National Labor Board v. Carlisle Lumber Co., 94 F. 2d 138 336 National Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1 347 National Labor Board v. Mackay Radio & Tel. Co., 304 U. S. 333 26 National Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261 260,348 XXXIV TABLE OF CASES CITED. Page National Life Ins. Co. v. United States, 277 U. S. 508 419 National Waterworks Co. v. Kansas City, 62 F. 853 479 Natural Gas Co. v. Slattery, 302 U. S. 300 218 Near v. Minnesota ex rel Olson, 283 U. S. 697 153 Nebraska v. Wyoming, 295 U. S. 40 105 New Hampshire v. Louisiana, 108 U. S. 76 392,393,396 New Jersey v. New York, 3 Pet. 461 104 New Jersey v. New York, 283 U. S. 336 103,105,110 New Jersey v. Wilson, 7 Cranch 164 52 New Jersey Tel. Co. v. Tax Board, 280 U. S. 338 312 New Orleans Public Service v. New Orleans, 281 U. S. 682 484 New York v. Louisiana, 108 U. S. 76 392,396 New York v. New Jersey, 256 U. S. 296 105 New York Central & H. R. R. Co. v. County of Hudson, 227 U. S. 248 319 New York ex rel. Cohn v. Graves, 300 U. S. 308 330,548 New York ex rel. Rogers v. Graves, 299 U. S. 401 411,428 New York Life Ins. Co. v. Jackson, 304 U. S. 261 550 New York Life Ins. Co. v. Kaufman, 78 F. 2d 398 204 New York Life Ins. Co. v. Thomas, 27 D. & C. 215 207, 208 New’ York Life Ins. Co. v. Truesdale, 79 F. 2d 481 204 New York, O. & W. Ry. Co. v. United States, 14 F. 2d 850 385 New York & P. R. S. S. Co., In re, 155 U S. 523 496 Nielsen, Petitioner, 131 U. S. 176 467,468 Nielsen v. Johnson, 279 U. S. 47 143 Page Nixon v. Condon, 286 U. S. 73 153 Nixon v. Herndon, 273 U. S. 536 152,153 Norfolk & P. Traction Co. v. Miller, 174 F. 607 76 Norfolk & W. Ry. Co. v. West Virginia, 236 U. S. 605 482 North Dakota v. Minnesota, 263 U. S. 365 394 Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585 482 North of England I. S. S. Ins. Assn., v. Armstrong, (1870) L. R. 5 Q. B. 244 434, 437,438 Northwest Utilities Securities Corp. v. Helvering, 67 F. 2d 619 276 Norumbega Co. v. Bennett, 290 U. S. 598 256 Oakes v. Mase, 165 U. S. 363 84 Occidental Life Co. v. Powers, 192 Wash. 475 267 Oelrichs v. Spain, 15 Wall. 211 216 Oetjen v. Central Leather Co., 246 U. S. 297 140 Ohio v. Helvering, 292 U. S. 360 418,419,451,457 Ohio Bell Tel. Co. v. Public Utilities Comm’n, 301 U. S. 292 15,464 Ohio Tax Cases, 232 U. S. 576 326 Oklahoma, Ex parte, 220 U. S. 191 496 Oklahoma v. Atchison, T. & S. F. Ry. Co., 220 U. S. 277 394,396 Oklahoma Gas & E. Co. v. Oklahoma Packing Co., 292 U. S. 386 251,252,255 Oliver Iron Co. v. Lord, 262 U. S. 172 310,313 Olson v. United States, 292 U. S. 246 82 Omaha v. Omaha Water Co., 218 U. S. 180 479 TABLE OF CASES CITED. XXXV Page Osborn v. Bank of United States, 9 Wheat. 738 411 Osborne v. Mobile, 16 Wall. 479 323 Oswego & Syracuse R. Co. v. State, 226 N. Y. 351 137 Otho v. Wright, 6 Dowl. Pr. 12 134 Pacific Co. v. Johnson, 285 U.S. 480 413,419 Pacific National Co. v. Welch, 91 F. 2d 590 196 Packard v. Banton, 264 U. S. 140 216,219 Palko v. Connecticut, 302 U. S. 319 462 Palmer v. Bender, 287 U. S. 551 279 Panama R. Co. v. Johnson, 264 U. S. 375 155 Panhandle Oil Co. v. Knox, 277 U. S. 218 414 Parammo Lumber Co. v. Marshall, 18 F. Supp. 645 222 Parker v. Winnipiseogee Lake Cotton & W. Co., 2 Black 545 216 Parmenter v. State, 135 N. Y. 154 137 Patton v. Brady, 184 U. S. 608 305 Patton v. United States, 281 U. S. 276 463,464,468 Pease v. Peck, 18 How. 595 69 Peck & Co. v. Lowe, 247 U. S. 165 425 Pennoyer v. McConnaughy, 140 U. S. 1 444 Pennsylvania v. West Virginia, 262 U. S. 553 394 Pennsylvania v. Williams, 294 U. S. 176 223 Pennsylvania R. Co. v. Clark Coal Co., 238 U. S. 456 301 Penza, The, 277 F. 91 137,138 People v. Carolene Products Co., 235 Ill. 166 155 People v. Central Railroad, 12 Wall. 455 109,110 Peoples Natural Gas Co. v. Public Service Comm’n, 270 U. S. 550 236 Page Perkins v. Thomas, 86 F. 2d 954 ; 301 U. S. 655 276 Permutit Co. v. Graver Corp., 284 U. S. 52 369 Perry v. United States, 294 U. S. 330 52 Philadelphia Co. v. Stimson, 223 U. S. 605 444 Philadelphia & Southern S. S. Co. v. Pennsylvania, 122 U. S. 326 312, 322,323,328,331 Pickhardt v. Packard, 22 F. 530 374 Pierce v. Society of Sisters, 268 U. S. 510 153 Pitman v. Universal Marine Ins. Co., L. R. 9 Q. B. D. 192 435 Pittsburgh & W. Va. Ry. Co. v. Interstate Commerce Comm’n, 52 App. D. C. 40 222 Planing-Machine Co. v. Keith, 101 U. S. 479 170 Plummer v. Sargent, 120 U. S. 442 374 Poe v. Seaborn, 282 U. S. 101 267 Pokora v. Wabash Ry. Co., 292 U. S. 98 76,85,86 Pollitz, In re James, 206 U. S. 323 497 Pollock v. Farmers Loan & T. Co., 157 U. S. 429 417 Poole v. Fleeger, 11 Pet. 185 52,106,107, 111 Pope v. Commissioner, 39 F. 2d 420 281 Poresky, Ex parte, 290 U. S. 30 254 Porter v. Commissioner, 60 F. 2d 673 355,357 Porter Needle Co. v. National Needle Co., 17 F. 536 182 Post v. State, 106 Tex. 500 231 Postal Tel. Cable Co. v. Adams, 155 U. S. 688 310 Postal Tel. Cable Co. v. Alabama, 155 U. S. 482 217 Potomac, The, 105 U. S. 630 438 XXXVI TABLE OF CASES CITED. Page Powell v. Alabama, 287 U. S. 45 463 Powell v. Pennsylvania, 127 U. S. 678 151 Premier-Pabst Sales Co. v. Grosscup, 298 U. S. 226 404 Preobazhenski v. Cibrario, 192 N. Y. Supp. 275 137 Price v. Illinois, 238 U. S. 446 154 Prioleau v. United States, L. R. 2 Eq. 659 .134 Proctor & Gamble Co. v. United States, 225 U. S. 282 385 Public Service Comm’n v. Great ¡Northern U. Co., 289 U. S. 130 479 Puget Sound Stevedoring Co. v. Tax Comm’n, 302 U. S. 90 312 Pullman Co. v. Richardson, 261 U. S. 330 310 Purity Extract & T. Co. v. Lynch, 226 U. S. 192 151,333 Queen of Holland v. Druk-ker, (1928) Ch. 877 134 Queens Ins. Co. v. Globe & R. Fire Ins. Co., 263 U. S. 487 434,438 Radiant Glass Co. v. Burnet, 60 App. D. C. 351 196 Railroad Co. v. Lockwood, 17 Wall. 357 75 Railroad Commission v. Maxey, 281 U. S. 82 56 Railroad Comm’n v. Pacific Gas & E. Co., 302 U. S. 388 15,256 Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 154 Railway Co., Ex parte, 101 U. S. 711 497 Rainier Nat. Park Co. v. Martin, 302 U. S. 661 536 Rainier Nat. Park Co. v. Martin, 18 F. Supp. 481 529, 532,533,535 Ralston v. Heiner, 24 F. 2d 416 455 Read v. Bishop of Lincoln, [1892] A. C. 644 92 Page Read v. Yeager, 104 Ind. 195 315 Regal Drug Corp. v. Wardell, 260 U. S. 386 455 Reid v. Colorado, 187 U. S. 137 147 Reiman, In re, 20 Fed. Cas. 490 47,54, 514 Republic of Costa Rica v. Erlanger, L. R. 1 Ch. D. 171 135 Republic of Honduras v. Soto, 112 N. Y. 310 134 Republic of Peru v. Wegue- lin, L. R. 20 Eq. 140 135 Reynes v. Dumont, 130 U. S. 354 216 Rhode Island v. Massachusetts, 7 Pet. 651; 4 How. 591 105 Rhode Island v. Massachusetts, 12 Pet. 657 52,104,106 Ricaud v. American Metal Co., 246 U. S. 304 140 Rice, In re, 155 U. S. 396 496 Richison v. State ex rel. Bar- nett, 176 Okla. 537 391, 392,395 Richmond Co. v. United States, 275 U. S. 331 155 Robertson v. Carson, 19 Wall. 94 76 Rogdai, The, 278 F. 294 137, 138 Rose v. Grant, 39 F. 2d 340 195 Rosenberger v. McCaughn, 25 F. 2d 699 279 Rosenthal v. New York Life Ins. Co., 304 U. S. 263 550 Rossmoore v. Anderson, 1 F. Supp. 35; 67 F. 2d 1009; 76 F. 2d 520 277 Rothschild v. Queen of Portugal, 3 Y. & C. Ex. 594 134 Rowan v. Runnels, 5 How. 134 69,75 Royal Italian Govt. v. International Committee, 273 N. Y. 468 133 Rubber Co. v. Goodyear, 9 Wall. 788 181,182 TABLE OF CASES CITED. XXXVII Page Ruhlin v. New York Life Ins. Co., 304 U. S. 202 262, 264 Ruprecht v. Commissioner, 39 F. 2d 458 281 Russian Government v. Le- high Valley R. Co., 293 F. 133; 21 F. 2d 396 137- 139,141 Russian S. F. S. Republic v. . Cibrario, 235 N. Y. 255 134, 137 Rust Land & Lumber Co. v. Jackson, 250 U. S. 71 110 Saenger, Inc. v. Commis- sioner, 84 F. 2d 23 286,294 Safety Electric Products Co. v. Helvering, 70 F. 2d 439 196 Sage v. United States, 250 U. S. 33 305,306 St. Johns, The, 101 F. 469 438, 439 St. Joseph Stock Yards Co. v. United States, 298 U. S. 38 15,475,485 St. Louis v. Rutz, 138 U. S. 226 111 St. Paul Fire & M. Ins. Co. v. Pure Oil Co., 63 F. 2d 771 434 Salem Trust Co. v. Manufacturers’ Finance Co., 264 U. S. 182 85 Sapphire, The, 11 Wall. 164 134,137 Schmidt v. Merchants Despatch T. Co., 270 N. Y. 287 136 Schrader’s (A.) Sons, Inc. v. Wein Sales Corp., 9 F. 2d 306 190 Scott v. Donald, 165 U. S. 107 215 Seaman v. Guaranty Trust Co., 1 F. 2d 391 455 Securities & Exchange Comm’n v. Andrews, 88 F. 2d 441 385 Seven Cases v. United States, 239 U. S. 510 147 Shaffer v. Carter, 252 U. S. 37 330 Page Shannahan v. United States, 303 U. S. 596 385 Shannopin Country Club v. Heiner, 2 F. 2d 393 446 Shaw v. Cooper, 7 Pet. 292 190 Shaw v. Gibson-Zahniser Oil Corp., 276 U. S. 575 .412 Shell Petroleum Corp. v. Carter, 187 La. 382 201 Shelton v. Platt, 139 U. S. 591 218 Silas Mason Co. v. Tax Comm’n, 302 U. S. 186 528, 530 Simons, Ex parte, 247 U. S. 231 497 Singer Sewing Mach. Co. v. Benedict, 229 U. S. 481 217 Sir Edward Coke’s Case, Godb. 289 132 Siren, The, 7 Wall. 152 134 Slaughterhouse Cases, 16 Wall. 36 414,415 Smietanka v. Indiana Steel Co., 257 U. S. 1 305 Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486 374 Smith v. Illinois Bell Tel. Co., 282 U. S. 133 241 Smith v. Wilson, 273 U. S. 388 250 Smith & Griggs Mfg. Co. v. Sprague, 123 U. S. 249 190 Smoot Sand & G. Corp. v. Washington Airport, 283 U. S. 348 111 Snyder v. Bettman, 190 U. S. 249 419 Sonneborn Bros. v. Cureton, 262 U. S. 506 330,331 South Bend v. University, 69 Ind. 344 315 South Carolina v. Barnwell Bros., 303 U. S. 177 151, 153,154 South Carolina v. United States, 199 U. S. 437 417- 419,451-453,457 South Dakota v. North Car- olina, 192 U. S. 286 393 XXXVIII TABLE OF CASES CITED. Page Southern Pacific Co. v. Interstate Commerce Comm’n, 219 U. S. 433 260 Southern Pacific Co. v. Lowe, ■ 247 U. S. 330 288 Southern Pacific Terminal Co. v. Interstate Commerce Comm’n, 219 U. S. 498 260 Southern Power Co. v. N. C. Public Service Co., 263 U. S. 508 178 Spalding & Bros. v. Edwards, 262 U. S. 66 312 Spitteler, In re, 31 App. D. C. 271 171 S. S. Balmoral Co. v. Marten, [1902] App. Cas. 511 435 Standard Marine Ins. Co. v. Scottish M. Assurance Co., 283 U. S. 284 436 Standard Oil Co. v. California, 291 U. S. 242 529, 533,538 Standard Oil Co. v. Marysville, 279 U. S. 582 154 Starr v. Long Jim, 227 U. S. 613 116 State v. Hope Producing Co., 167 So. 506 200 State v. Louisiana Oil Rfg. Co., 176 So. 686 199 State Board of Equalization v. Young’s Market Co., 299 U. S. 59 403,404,537 State Corp. Comm’n v. Wichita Gas Co., 290 U. S. 561 237 State ex rel. Carrau v. Su- perior Court, 30 Wash. 700 222 State ex rel. Detroit-Chicago Motor Bus Co. v. Public Service Comm’n, 324 Mo. 270 399 State ex rel. Kansas City P. & L. Co. v. Public Service Comm’n, 335 Mo. 1248 399 State ex rel. Mothersead v. Kelly, 141 Okla. 36 390,395 State ex rel. Murray v. Pure Oil Co., 169 Okla. 507 390, 395 Page State ex rel. St. Louis v. Public Service Comm’n, 329 Mo. 918 399 State ex rel. Shull v. Mc- Laughlin, 159 Okla. 4 392 State of Russia v. Bankers’ Trust Co., 4 F. Supp. 417 139 State Railroad Tax Cases, 92 U. S. 575 326 State Tax Comm’n v. Inter- state Natural Gas Co., 284 U. S. 41 236 State Tax on Railway Gross Receipts, 15 Wall. 284 323 Steinberg v. New York Life Ins. Co., 263 N. Y. 45 297 Steinfur Patents Corp. v. William Beyer, Inc., 62 F. 2d 238 374 Sterling v. Constantin, 287 U. S. 378 256 Steward Machine Co. v. Davis, 301 U. S. 548 52,53 Stewart Dry Goods Co. v. Lewis, 294 U. S. 550 327 Stilz v. United States, 269 U. S. 144 179 Stone v. United States, 164 U. S. 380 115 Stone v. White, 301 U. S. 532 279 Stratton v. St. Louis S. W. Ry. Co., 282 U. S. 10 250 Straus v. Victor Talking Ma- chine Co., 243 U. S. 490 185 Stroehmann v. Mutual Life Ins. Co., 300 U. S. 435 205, 206 Stromberg v. California, 283 U. S. 359 152,153 Stuart v. Commissioner, 84 F. 2d 368 289 Surplus Trading Co. v. Cook, 281 U. S. 647 528,529 Swearingen v. United States, 11 Gill. & J. 373 135 Swift v. Tyson, 16 Pet. 1 69-91 Tagg Bros. & Moorhead v. United States, 280 U. S. 420 21 Taylor, Ex parte, 14 How. 3 497 TABLE OF CASES CITED. XXXIX Page Taylor Oil & Gas Co. v. Commissioner, 47 F. 2d 108 276 Tazewell Electric L. & Power Co. v. Strother, »4 F. 2d 327 276 Terrace v. Thompson, 263 U. S. 197 219 Texas v. New Mexico, 1937 Term, No. 11, original 105 Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 301 Texas & Pacific Ry. Co. v. American Tie Co., 234 U. S. 138 301 Thames & M. M. Ins. Co. v. British & C. S. S. Co., [1915] L. R. 2 K. B. 214 439 Thomas v. Perkins, 301 U. S. 655 279 Thomson v. Pacific Railroad, 9 Wall. 579 412,416 Tillman v. Guaranty Trust Co., 253 N. Y. 295 136 Todok v. Union State Bank, 281 U. S. 449 143 Topliff v. Topliff, 145 U. S. 156 169 Township of Pine Grove v. Talcott, 19 Wall. 666 87 Trainer v. Aetna Casualty Co., 290 U. S. 47 207 Trussell Mfg. Co. v. Wilson- Jones Co., 50 F. 2d 1027 373 Turner v. Commissioner, 85 F. 2d 919 355,357 Twist v. Prairie Oil & Gas Co., 274 U. S. 684 216 Tyler v. United States, 281 U. S. 497 279 Underhill v. Hernandez, 168 U. S. 250 140 Union Pacific Ry. Co. v. Bowers, 33 F. 2d 102 446 Union Trust Co. v. Wardell, 258 U. S. 537 305 United Business Corp. v. Commissioner, 62 F. 2d 754 286,287,290,293 United Gas Public Service Co. v. Texas, 303 U. S. 123 231 . Page United States v. American Sheet & Tin Plate Co., 301 U. S. 402 158 United States v. Arredondo, 6 Pet. 691 143 United States v. Atlanta, B. & C. R. Co., 282 U. S. 522 385 United States v. B. & O. R. Co., 17 Wall. 322 428 United States v. Barker, 12 Wheat. 559 135 United States v. Beebe, 127 U. S. 338 135 United States v. Bekins, 304 U. S. 27 514 United States v. Belmont, 301 U. S. 324 140 United States v. Buford, 3 Pet. 12 142 United States v. California, 297 U. S. 175 135 United States v. California & O. Land Co., 148 U. S. 31; 192 U. S. 355 122 United States v. Carolene Products Co., 7 F. Supp. 500 146 United States v. Chaves, 159 U. S. 452 135 United States v. Chemical Foundation, 272 U. S. 1 178 United States v. Cook, 19 Wall. 591 116,118 United States v. Corrick, 298 U. S. 435 251 United States v. Dallas Road Co., 140 U. S. 599 122 United States v. Delaware & Hudson Co., 213 U. S. 366 92,147 United States v. Farrell, 87 F. 2d 957 363 United States v. General Electric Co., 272 U. S. 476 181,182,369 United States v. Griffin, 303 U. S. 226 385 United States v. Hill, 248 U. S. 420 147 United States v. Hoar, Fed. Cas. No. 15,373 132,133 XL TABLE OF CASES CITED. Page United States v. Illinois Cen- tral R. Co., 244 U. S. 82 222, 384,386 United States v. John Gal- lagher Co., 83 F. 2d 368 304 United States v. Johnston, 268 U. S. 220 178 United States v. Kirkpatrick, 9 Wheat. 720 132 United States v. Knight, 14 Pet. 301 132,133,135 United States v. Los Angeles & S. L. R. Co., 273 U. S. 299 384,385 United States v. McGowan, 290 U. S. 592 178 United States v. Murray, 275 U. S. 347 363 United States v. Nashville, C. & St. L. R. Co., 118 U. S. 120 132,133 United States v. Oregon Lumber Co., 260 U. S. 290 136 United States v. Pettigrew, 81 F. 2d 666 195 United States v. Piedmont Mfg. Co., 89 F. 2d 296 304 United States v. Railroad Co., 17 Wall. 322 417 United States v. R. C. Tway Coal Co., 75 F. 2d 336 286, 294 United States v. Reeves Bros. Co., 83 F. 2d 121 304 United States v. Robbins, 269 U. S. 315 279 United States v. Shoshone Tribe, 304 U. S. Ill 123 United States v. Stinson, 197 U. S. 200 134 United States v. Swift & Co., 282 U. S. 468 306 United States v. The Thekla, 266 U. S. 328 134 United States v. Thompson, 98 U. S. 486 132,133 United States v. Trans-Mis- souri Freight Assn., 166 U. S. 290 260 United States v. Unzeuta, 281 U. S. 138 529 Page United States v. Verdier, 164 U. S. 213 134 United States v. Wagner, L. R. 2 Ch. App. 582 134 U. S. Express Co. v. Minne- sota, 223 U. S. 335 310, 325, 329 U. S. ex rel. Bemardin v. Butterworth, 169 U. S. 600 444 U. S. Glue Co. v. Oak Creek, 247 U. S. 321 312, 324, 330 U. S. Repair & Guarantee Co. v. Assyrian Asphalt Co., 183 U. S. 591 373 United Zinc Co. v. Britt, 258 U. S. 268 85 Utah Power & L. Co. v. Pfost, 286 U. S. 165 310 Utah Radio Products Co. v. Boudette, 78 F. 2d 793 167 Van Allen v. Assessors, 3 Wall. 573 411 Van Huff el v. Harkelrode, 284 U. S. 225 517 Veazie Bank v. Fenno, 8 Wall. 533 414 Villa v. Van Schaick, 299 U. S. 152 207 Virginia v. Rives, 100 U. S. 313 496 Virginia v. Tennessee, 148 U. S. 503 107 Vulcan Mfg. Co. v. Maytag Co., 73 F. 2d 136 182 Wagenhorst v. Hydraulic Steel Co., 27 F. 2d 27 167 Wainwright v. Parker, 32 App. D. C. 431 171 Wall v. McNee, 296 U. S. 547 251 Washington v. Oregon, 297 U. S. 517 103, 105, 110 Washington Coach Co. v. Labor Board, 301 U. S. 142 161 Waterman v. Mackenzie, 138 U. S. 252 181 Waterman Co. v. Kline, 234 F. 891 182 Watkins, Ex parte, 3 Pet. 193 465 TABLE OF CASES CITED. XLI Page Watson v. Tarpley, 18 How. 517 76 Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9 207 Wayman v. Southard, 10 Wheat. 1 92 Weaver v. Palmer Bros. Co., 270 U. S. 402 155 Webster Co. v. Splitdorf Co., 264 U. S. 463 164-170 Wedding v. Meyler, 192 U. S. 573 110 West v. Chesapeake & P. Tel. Co., 295 U. S. 662 479 Western & Atlantic R. Co. v. Railroad Comm’n, 261 U. S. 264 216 Western Distributing Co. v. Public Service Comm’n, 285 U. S. 119 237 Western Electric Co. v. General Talking Pictures Co., 91 F. 2d 922 165 Western Live Stock v. Bureau of Revenue, 303 U. S. 250 311, 312, 321, 322, 327,329 Western Lunatic Asylum v. Miller, 29 W. Va. 326 133 Western Union Tel. Co. v. Chiles, 214 U. S. 274 538 Western Union Tel. Co. v. Pennsylvania R. Co. 195 U. S. 540 117 Western Union Tel. Co. v. Speight, 254 U. S. 17 236,238 Westinghouse v. Boyden Power Brake Co., 170 U. 8. 537 373 West Ohio Gas Co. v. Comm’n, 294 U. S. 63 476 Weston v. Charleston, 2 Pet. 449 413, 416, 417 Wharton v. Wise, 153 U. S. 155 110 Wheeler Lumber B. & S. Co. v. United States, 281 U. S. 572 419,423 White v. State, 94 Okla. 7 392 Page White River Co. v. Arkansas, 279 U. S. 692 548 Whitney, Ex parte, 13 Pet. 404 497 Whitney v. California, 274 U. S. 357 153,154,548 Whitney Realty Co. v. Commissioner, 80 F. 2d 429 276 Wilber National Bank v. United States, 294 U. S. 120 135 Willcox v. Consolidated Gas Co., 212 U. S. 19 475,485 Willcuts v. Bunn, 282 U. S. 216 418,420,421,428 Williams v. U. S. Fidelity & G. Co., 236 U. S. 549 514 Williams Inv. Co. v. United States, 3 F. Supp. 225 286 Williamson v. Berry, 8 How. 495 69,76 Williamson v. Osenton, 232 U. S. 619 76 Winn, In re, 213 U. S. 458 496 Wirebounds Patents Co. v. Saranac Corp., 37 F. 2d 830; 65 F. 2d 904 167,168 Wisconsin v. Illinois, 278 U. S. 367 394 Wisconsin & M. Ry. Co. v. Powers, 191 U. S. 379 329 Wollensak v. Sargent & Co., 151 U. S. 221 169 Woodbridge v. United States, 263 U. S. 50 169,174 Woodruff v. Parham, 8 Wall. 123 328,332 Woolford Realty Co. v. Rose, 286 U. S. 319 275 Woolsey v. Best, 299 U. S. 1 465 Worcester v. Georgia, 6 Pet. 515 116,117 Worcester County Trust Co. v. Riley, 302 U. S. 292 154 Wourdack v. Becker, 55 F. 2d 840 446 Wright v. Ellison, 1 Wall. 16 216 Wright v. Union Central Life Ins. Co., 91 F. 2d 894 503 XLii TABLE OF CASES CITED. Page Wright v. Union Central Life Ins. Co., 212 Ind. 214, 563 507 Wright v. Vinton Branch, 300 U. S. 440 510,514-517 Wyoming v. Colorado, 286 U. S. 494 102,105,107 Yates v. Milwaukee, 10 Wall. 497 76 Page Yeates v. Illinois Cent. R. Co., 137 F. 943 76 Yellowstone Park T. Co. v. Gallatin County, 31 F. 2d 644 529,538 Young, Ex parte, 209 U. S. 123 219 TABLE OF STATUTES Cited, in Opinions (A) Statutes of the United States Page 1789, c. 20, § 34, 1 Stat. 73. 71 1850, Sept. 9, c. 50, 9 Stat. 452 .................. 523 1864, Mar. 25, c. 42, 13 Stat. 37.................... 121 1864, June 30, c. 184, 13 Stat. 325 ............ 523 1864, July 2, c. 213, 13 Stat. 355 .................. 121 1874, June 18, c. 305, 18 Stat. 80.............. 121 1874, June 22, c. 390, § 17, 18 Stat. 182........... 47 1897, Mar. 3, c. 391, 29 Stat. 692, 693 .......... 166,167 1903, Feb. 11, c. 544, 32 Stat. 823 56 1905, Mar/3,”c."i460,”33 Stat. 1033............ 124 1906, June 11, [No. 27], 34 Stat. 831..........523,527 1906, June 21, c. 3504, 34 Stat. 325 ... 122,124-126 1907, Mar. 2, c. 2564, 34 Stat. 1246............ 146 1908, Apr. 30, c. 153, 35 Stat. 70........... 124,125 1911, Mar. 3, c. 231, 36 Stat. 1093 ................. 305 1913, Oct. 3, c. 16, § 2A, 38 Stat. 166 ............ 288 1914, Sept. 26, c. 311, §§ 9, 10, 38 Stat. 722...... 219 1914, Oct. 15, c. 323, § 2, 38 Stat. 730 ............ 260 1916, Sept. 8, c. 463, § 3, 39 Stat. 756, 758 ....... 288 1916, Sept. 8, c. 463, § 203, 39 Stat. 756.......... 356 1919, Feb. 24, c. 18, 40 Stat. 1057 ............. 288,294 Page 1919, Feb. 24, c. 18, §§ 218, 224, 40 Stat. 1057.... 274 1919, Feb. 24, c. 18, § 403, 40 Stat. 1057 ........ 356 1920, May 26, c. 203, 41 Stat. 623 ............ 120 1920, May 26, c. 203, § 2, 41 Stat. 623.... 122,123,125 1920, June 2, c. 218, 41 Stat. 731........... 526-528,533 1921, Aug. 15, c. 64, 42 Stat. 159................. 13,15 1921, Aug. 23, c. 77, 42 Stat. 174 .................. 408 1921, Nov. 23, c. 136, 42 Stat. 311................... 305 1921, Nov. 23, c. 136, § 220, 42 Stat. 247........ 288 1921, Nov. 23, c. 136, § 403, 42 Stat. 227........ 356 1922, July 1, c. 277, 42 Stat. 822 .................. 409 1923, Mar. 4, c. 262, 42 Stat. 1486.................. 145 1924, June 2, c. 234, 43 Stat. 348................... 305 1924, June 2, c. 234, § 220, 43 Stat. 277 ....... 288 1924, June 2, c. 234, § 303, 43 Stat. 253 ............ 356 1925, Jan. 29, c. 110, 43 Stat. 796.................... 96 1925, Feb. 13, c. 229, 43 Stat. 936.. 56,445,548,549,550 1926, Feb. 26, c. 27, 44 Stat. 121....................305 1926, Feb. 26, c. 27, § 220, 44 Stat. 34......... 288 1926, Feb. 26, c. 27, § 302, 44 Stat. 9........ 266,358 XLIII XLIV TABLE OF STATUTES CITED. Page 1926, Feb. 26, c. 27, § 500, 44 Stat. 9.............442 1926, Feb. 26, c. 27, § 1102, 44 Stat. 112...........442 1926, Feb. 26, c. 27, § 1114, 44 Stat. 116.........442 1928, May 29, c. 852,45 Stat. 791....................192 1928, May 29, c. 852, § 104, 45 Stat. 814 ... 284,288 1930, May 23, c. 312, § 2, 46 Stat. 376........ 372 1932, Mar. 23, c. 90, 47 Stat. 70 ................... 247 1932, June 6, c. 209, § 22, 47 Stat. 169 ....... 420 1932, June 6, c. 209, § 104, 47 Stat. 195......... 288 1932, June 6, c. 209, § 711, 47 Stat. 169....... 442 1933, Mar. 3, c. 204, 47 Stat. 1467 ............... 514 1933, Mar. 3, c. 204, § 75 (c), 47 Stat. 1467... 511 1933, June 6, c. 90, 48 Stat. 200 .................. 253 1934, May 10, c. 277, § 102, 48 Stat. 702 ....... 288 1934, May 10, c. 277, § 607, 48 Stat. 680........ 443 1934, May 14, c. 283, § 1, 48 Stat. 775........ 214 1935, Apr. 8, c. 48, 49 Stat. U5.....................253 1935, July 5, c. 372, 49 Stat. 449 .................. 247 1935, July 5, c. 372, § 10, 49 Stat. 454 ....... 487 1935, Aug. 14, c. 531, §§ 903, 904, 49 Stat. 620...... 53 1935, Aug. 26, c. 687, § 209, 49 Stat. 853 ........ 378 1935, Aug. 26, c. 687, § 313, 49 Stat. 860......... 381 1935, Aug. 28, c. 792, 49 Stat. 942....... 506,508-510,542 1935, Aug. 28, c. 792, § 4, 49 Stat. 942 . 504,505,511 1936, May 15, c. 398, 49 Stat. 1276 ......... 120,124,125 1936, June 19, c. 592,49 Stat. 1526 ................. 258 Page 1936, June 19, c. 592, § 2, 49 Stat. 1526........... 259 1936, June 22, c. 690, § 102, 49 Stat. 1676...... 288 1937, June 29, c. 401, §§ 201-207, 50 Stat. 352. 253 1937, Aug. 16, c. 657, 50 Stat. 653............. 45 1937, Aug. 24, c. 754, 50 Stat. 751 ................. 45, 88,100,248,256,527,542 1937, Aug. 24, c. 754, § 1, 50 Stat. 751... 249,504 1937, Aug. 24, c. 754, § 2, 50 Stat. 751........ 245,249 1937, Aug. 24, c. 754, § 3, 50 Stat. 751........... 244, 245,250-254 1937, Aug. 24, c. 754, § 5, 50 Stat. 751............. 89 1937, Aug. 26, c. 815, § 201, 50 Stat. 818........288 Constitution. See Index at end of volume. Judicial Code...............217 § 24 (1)............. 215 § 24 (5)............. 305 § 24 (8)............. 296 § 24 (20)........ 303-306 §145 .................. 304 §237 (a).............. 109, 110,547,549,550 § 237 (c).............. 548 §238................... 526 §§239, 240 ............. 382 § 262 ............. 383,387 §266 ................. 210, 250,251,254,403,522,526 §267 .................. 216 Revised Statutes. § 3187 ................ 443 § 3224 ................ 445, 447-449,453,455 § 3477 ................ 447 § 4884................. 181 § 4886......... 166,168,183 § 4887...............’. 167 § 4888................. 368 §§ 4894, 4897........... 167 §4898.................. 181 § 4920............. 165,167 TABLE OF STATUTES CITED. XLV Page U. S. Code. Title 7, §§ 181-229............. 13 §211........... 15,472 §217........... 13,472 Title 15, c. 1...................247 § 13...............257 § 21...............259 Title 16, § 57 ....... 526 Title 18, § 682................. 146 §716 (b)...........360 §719...............363 §723 (c)...... 361,362 Title 21, §§ 61-63.......... 145 §§ 62,63........... 146 Title 26, §§ 494, 856, 921, 940-944 ........... 442 §§955, 956......... 455 § 960 ............ 442 § 1543.... 445,447,455 § 1551........ 443,455 § 1580 ........... 443 Title 28, § 41...............296 § 41 (1)...... 214,215 § 41 (5)...........305 § 41 (20)......... 304 § 44 ............. 472 § 47........... 13,384 § 47 (a)...........472 § 250............. 304 § 344 (a)......... 199 § 345.............. 56 § 346......... 266,382 § 347............. 382 § 380 ........ 250,522 § 384............. 216 § 401............. 504 § 451 et seq.......466 § 724............. 130 § 725.............. 71 § 780 ............ 445 Title 29, §§ 157, 158 (1), (3), Supp. 1.........339 §152(6) (7),Supp. II...............341 §160 (d) (e) (f), Supp. II.........487 Page U. S. Code—Continued. Title 31, § 203 ...... 447 Title 35, § 31...... 167,183,189 § 32.............. 167 § 33.......... 368,372 §§ 37,38........... 167 § 40........... 172,180 § 47.............. 181 § 64.............. 172 §69............... 167 Title 49, §§ 1 (3), (4), (11), 6 (1)......... 297 § 49.............. 296 Anti-Trust Acts.... 56,248,251 Bankruptcy Act.........45,47 § 73...................512 § 75.. 503,509,511,512,542 § 75 (n)...... 504,510-516 § 75 (s).. 505-512,515-517 § 77 ................. 298 § 77B.............. 199,200 ■ c. IX................48,50 c. IX, § 80 (k)........ 49 c. X.......... 45-48,50,51 c.X, §§83 (e), (i).... 49 Clayton Act............... 247 § 2............... 257,258 § 11.................. 259 Conformity Act.........130,133 Criminal Appeals Act, 1907. 146 Federal Power Act, § 209 ................ 378 § 307............. 386,387 § 313 ........ 381,383,384 Filled Milk Act, 1923.... 145, 148,150 Interstate Commerce Act... 158 § 1........... 297,299,300 § 3....................300 § 6 .............. 297,299 § 19a..................385 Johnson Act, 1934 ........ 214 Judiciary Act, 1789........ 73 § 34.......... 71,72,80-92 National Industrial Recovery A et ’Title II........... 253 National Labor Relations Act______............ 247,248 §2. J......... 344,345,349 XLVI TABLE OF STATUTES CITED. Page Nat. Labor Act—Continued. § 7................339-341 § 8............... 339-346 § 10 ..... 487-492,497-501 Norris-LaGuardia Act...... 247- 251,542 Packers and Stockyards Act. 13 § 310.................. 15 Reed Amendment..............404 Revenue Act, 1916, § 3....................288 § 203 ................ 356 Revenue Act, 1917.........422 Revenue Act, 1918.........268 § 212..................277 § 218 .... 274,278-280,288 § 219..................279 § 220 ............ 281,288 § 224................. 274 § 403 ................ 356 Revenue Act, 1921.... 268,269 §§ 218,220............. 288 § 403 ................ 356 Revenue Act, 1924 ... 268,305 § 220................. 288 § 303................. 356 Revenue Act, 1926. 267,270,305 § 220 ................ 288 § 301................. 268 § 302......... 266,268,358 § 303............. 352-357 § 500 ................ 442 § 502 ............ 442,454 § 607................. 455 (B) Statutes of the Alabama. Agri. Code, 1927, § 51, Art. 8.............. 150 A H7.ATKI Rev. Code, 1936 Supp., 943y.................. 150 Arkansas. Pope’s Dig. 1937, § 3103. 150 California. Constitution. Art. XX, § 22.... 533 Art. XXI, § 1......535 1891 Stat. c. 181......527 1891 Stat. c. 181, § 1... 523 1897 Stat., p. 254..... 45 1905 Stat. c. 60....... 527 1905 Stat. c. 60, § 1.... 523 1905 Stat. c. 60, § 3.... 524 Page Revenue Act, 1926—Continued. §§ 1102,1114........... 442 Revenue Act, 1928, § 22.............. 192,289 § 44............... 192,193 § 53.................. 194 § 104 .... 284,286-290,294 §§ 111,113............. 192 § 293 ................ 298 § 322................. 194 §§ 607,609 ............ 304 Revenue Act, 1932, § 22 ................. 420 § 104................. 288 § 112 ............ 288,289 § 116..................423 § 711................. 442 Revenue Act, 1934, § 102 ................ 288 § 112................. 289 § 607 ............ 443,454 Revenue Act, 1936, § 102 ................ 288 § 112.......,..... 288,289 Revenue Act, 1937, § 201... 288 Sherman Anti-Trust Act.... 247 Social Security Act, 1935, §§ 903,904 .......... 53 Tariff Act, 1913, § 2A.....288 Urgent Deficiencies Act, 1913 ............... 384 Webb-Kenyon Act............404 Wilson Act................ 404 TATES AND TERRITORIES California—Continued. 1919 Stat. c. 51..... 528- 530,533 1919 Stat. c. 51, § 1.... 525 1935 Stat. c. 330.. 521,533 1937 Stat. c. 681.... 521, 1937 Stat. c. 758.... 521, 532,533,537 1934 Laws, Ex. Sess., c. 4.................... 47 1934 Laws, Ex. Sess., c. 4, §§.1,3............ 48 Alcoholic Beverage Con- trol Act........... 521, 522,529,533, 538,539 § 2.......... 535,536 §3............... 533 TABLE OF STATUTES CITED. XLVII Page California—Continued. § 5........... 531,533 § 6................533 § 6.6..............534 §§ 10, 12, 13-17, 20y2 .............. 534 § 23 ..... 531,534-536 § 24.. 531,532,535,536 § 33.............. 536 §§ 49, 49.2 ....... 537 § 70............. 534 Deering’s Code, 1933 Supp., Tit. 149, Act 1943, p. 1302.... 150 Irrigation District Act, 1897 ................ 45 Colorado. Constitution, § 25............. 99 Art. XVI, §§ 2, 3, 5, 6............... 98 1921 L., e. 30, § 1007, р. 440............. 151 1921 Sess. Laws, p. 803 . 96 1923 Sess. Laws, p. 696. 96 Connecticut. Gen1. Stat. 1930, § 2487, с. 135............. 150 Delaware. Rev. Code, 1935, § 649. 150 Florida. Comp. Gen. Laws, 1927, §§ 3216, 7676....... 150 Georgia. Code, 1933, § 42-511... 150 Idaho. Code, 1932, Tit. 36, §§ 502-504....... 150 Illinois. Jones Stat. Ann., 1937 Supp., § 53.020...... 150 Indiana. 1903 Acts, c. CLXXIX, p. 322.......... 314,315 1919 Acts, c. 59........315 1919 Acts, c. 59, § 5, p. 203 ............. 314 1919 Acts, c. 59, § 25.. 315 1932 Acts, c. 10, p. 17.. 311 1933 Acts, c. 50... 308,316 1933 Acts, c. 50, p. 388 . 317 1933 Acts, p. 1085..... 317 81638°—38----iv Page Indiana—Continued. 1937 Acts, c. 117, p. 609 .................. 313 Ann. Stat. (Burns, 1933), c. 40........ 512 Ann. Stat. (Burns, 1933), §§ 2-3909, 2-4001 ............. 505 Ann. Stat. (Burns, 1933), § 64—2601 ff. 308 Bums Stat., 1933, § 35-1203 ................. 150 Gross Income Tax Act, 1933 ............. 314,317 §§ 1, 2, 6........ 308 Iowa. Code, 1935, § 3062..... 150 Kansas. Gen. Stat., 1935, c. 65, § 707............... 150 Kentucky. 1934 Acts, c. 145....211 1936 Acts, c. 92.....211 Stat. Ann. §§ 3952-13, 3952-14 .............. 220 §§ 3952-33 to 3952- 51................223 § 3952-44........ 222 § 3952-61........ 219 Stat. Ann. (Carroll’s 8th ed., Baldwin’s 1936 revision) §§ 3952-13, 3952-61............... 217 Louisiana. 1922, Act No. 123... 201 1934, Act No. 64.... 197 1934, Act No. 64, § 3.. 199 Gen. Stat. (Dart) § 1556-63 .............. 201 Maryland. Ann. Code, Art. 27, § 281................... 150 Massachusetts. Ann. Laws, 1933, § 17-A, c. 94........... 150 Michigan. Comp. Laws, 1929, § 5358 ................ 150, Minnesota. 1935, Act Apr. 29, c. 390 ................ 402 Mason’s Stat. 1927, § 3926 ................. 150 XLVIII TABLE OF CASES CITED. Page Missouri. Constitution, Art. II, § 30................... 248 Rev. Stat. 1929, § 5234.. 399 §§ 12408-12413..... 150 Montana. Rev. Code, Anderson & McFarland, 1935, c. 240, § 2620.39......... 150 Nebraska. Comp. Stat. 1929, § 81-1022 .................. 150 New Hampshire. 1926 Pub. L., v. 1, c. 163, § 37, p. 619....150 New Jersey. 1921 Laws, c. 151....408 1922 Laws, c. 9......408 1925 Laws, c. 37, § 7.. 410 1926 Laws, c. 6, § 7... 410 1927 Laws, c. 3, § 7... 410 1931 Laws, c. 4, § 14... 410 Comp. Stat., 1911-1924, §§ 81-8j, p. 1400.... 150 New Mexico. 1921 Sess. Laws, p. 322. 96 1923 Sess. Laws, p. 13.. 96 Ann. Stat. 1929, §§ 25-104, 25-108............ 150 New York. 1921 Laws, c. 154 .. 408 1922 Laws, c. 43 ... 408 1925 Laws, c. 210, § 7.. 410 1926 Laws, c. 761, § 7.. 410 1927 Laws, c. 300, § 7.. 410 1931 Laws, c. 47, § 14,. 410 Cahill’s Cons. Laws, 1930, § 60, c. 1.... 150 Civil Pract. Act, §48.............. 131 § 307............ 130 North Dakota. Comp. Laws, 1913-1925, Pol. Code, c. 38, § 2855 (a) 1............. 150 Ohio. Page’s Gen. Code, § 12725 ................. 150 Oklahoma. 1931 Stat. c. 40, art. 6.. 391 1931 Stat. § 144 ..... 391 Page Oklahoma—Continued. 1931 Stat. § 9130..... 388 1931 Stat. § 9168 et seq. 391 1931 Stat. § 9172. 388 1931 Stat. § 9173.. 388,391 1931 Stat. § 9174. 388 1931 Stat. § 9179 .... 389 Oregon. 1930 Code, v. 2, c. XII, §§ 41-1208 to 41-1210 ......... 151 Pennsylvania. 1915 Laws, No. 15, § 30. 277 Purdon, 1930, Ann. Stat., Tit. 59, § 92... 277 Purdon’s Stat., 1936, Tit. 31, §§ 553, 582.. 150 Uniform Partnership Act.................277 South Dakota. Comp. Laws, 1929, c. 192, § 7926-0, p. 2493 ................ 150 Tennessee. Williams Code, 1934, c. 15, §§ 6549, 6551.... 150 Texas. Rev. Civil Stats., Art. 6059 ........... 226 Vemon’s Pen. Code, Tit. 12, c. 2, Art. 713a... 150 Utah. Rev. Stat., 1933, §§ 3-10-59, 3-10-60.. 150 Vermont. 1933 Pub. L., Tit. 34, c. 303, § 7724, p. 1288 ........... 150 Virginia. Code, 1936, § 1197c. .. 150 Washington. Remington’s Rev. Stat., v. 7, Tit. 40, c. 13, §§ 6206, 6207, 6713, 6714, p. 360, et seq.. 151 West Virginia. Code, 1932, § 2036.... 150 Wisconsin. 1931 Stat., 11th ed. c. 98, § 98.07, p. 1156.. 150 TABLE OF STATUTES CITED. xlix (C) Treaties. Page Guadalupe Hidalgo, 9 Stat. 922 ........................ 523 1866, July 2, 16 Stat. 707, (Indian)................... 121 (D) Foreign Statutes. English. 1906, Act of Parliament, Dec. 31, § 4...............432 31 Car. II, c. 2....................................466 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1937. MORGAN et al. v. UNITED STATES et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI. No. 581. Argued March 10, 11, 1938.—Decided April 25, 1938. Petition for rehearing denied May 31, 1938. 1. An order of the Secretary of Agriculture fixing the maximum rates to be charged by market agencies (commission men) at stockyards held void for failure to allow the “full hearing” before the Secretary required by the Packers and Stockyards Act. Morgan v. United States, 298 U. S. 468. P. 13. 2. In administrative proceedings of a quasi-judicial character, the liberty and property of the citizen must be protected by the rudimentary requirements of fair play. These demand a fair and open hearing. P. 14. 3. In requiring a “full hearing,” the Packers and Stockyards Act has regard to judicial standards,—not in any technical sense, but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature. Those requirements relate not only to the taking and consideration of evidence but also to the concluding, as well as to the beginning and intermediate, steps in the procedure. P. 19. 4. The proceeding was begun by a general notice of inquiry into the reasonableness of the rates of market agencies at the Kansas City Stockyards. Thousands of pages of testimony were taken by an examiner and numerous complicated exhibits were introduced, bearing upon all phases of the broad subject of the businesses in question. Appellants’ request that the examiner prepare a tentative report, to be submitted as a basis for exceptions and 81638°—38-1 1 2 OCTOBER TERM, 1937. Syllabus. 304 U. S. argument, was refused. Oral argument, before an Assistant Secretary, was general and sketchy and did not reveal in any appropriate maimer the Government’s claims. The Government submitted no brief and furnished no statement of its contentions. Numerous and elaborate findings were prepared by subordinates who had conducted the proceedings for the Government, and were submitted to the Secretary, who accepted them, with certain rate alterations. No opportunity was afforded the appellants to examine the findings until they were served with the order fixing rates which they claim to be confiscatory. A rehearing was refused by the Secretary. The Secretary did not read the testimony, but examined it somewhat to get its drift; he did not hear the oral argument but read a transcript of it and the appellants’ briefs, and conferred ex parte concerning the findings with the subordinates who prepared them. Held: (1) The right to a “full hearing” embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command. P. 18. (2) No such reasonable opportunity was accorded in this case. P. 19. (3) In all substantial aspects, the proceeding was an adversary one—a prosecution by the Government of the owners of the market agencies threatening the existence of the agencies and the owners’ means of livelihood. P. 20. (4) An earlier order containing findings of facts and fixing a schedule of rates, which was set aside because of changes in economic conditions, could not avail to remedy the defects in the conduct of the latter proceeding here in question. P. 21. (5) The action of the Secretary in accepting and making as his own the findings which had been prepared by the active prosecutors for the Government, after an ex parte discussion with them and without according any reasonable opportunity to the respondents in the proceeding to know the claims thus presented and to contest them, was more than an irregularity in procedure; it was a vital defect. P. 21. MORGAN v. UNITED STATES. 3 1 Argument for Appellants. 5. A petition for rehearing based upon the grounds of inconsistency of the decision on this appeal with rulings on the earlier appeal, 298 U. S. 468, and upon the ground of surprise—is denied. P. 23. 6. Questions as to the disposition of moneys impounded in the District Court representing charges for market-agency services paid in excess of the rates fixed by the void order, are for that court to decide. P. 26. 23 F. Supp. 380, reversed. Appeal from a decree of the District Court, constituted of three judges, which dismissed the bills in fifty suits, consolidated for hearing, challenging the validity of maximum rates fixed by the Secretary of Agriculture for market agencies at the Kansas City Stock Yards. A former appeal is reported in 298 U. S. 468. The present report includes an opinion delivered May 31, 1938, denying a rehearing. Summaries of the arguments on the procedural questions are extracted from the main briefs used on the hearing. Messrs. Frederick H. Wood and John B. Gage, with whom Mr. Thomas T. Cooke was on the brief, for appellants. It is not necessary, in order to meet the requirements of a “full hearing,” that the Secretary, in person, should hear all of the evidence or that he should read it all. On the other hand, the requirements of a “full hearing” are not met if, as testified to by the Secretary in this case, the order merely represents his “independent conclusion as based upon the findings” of his subordinates, or his “own independent reactions to the findings of” such subordinates. It is not enough that he has exercised an independent judgment of his own predicated upon findings of fact made by others. Nor that he has satisfied himself, as an executive might, after making some inquiries of his subordinates, that he is willing to 4 OCTOBER TERM, 1937. Argument for Appellants. 304 U. S. adopt their findings. He is, as stated by this Courts “the trier of the facts” and as such required to weigh the evidence upon which the findings depend, and upon which, in turn, his conclusions and ultimate determinations are based. This duty may not be delegated to or performed by others. It is true that the “evidence . . . taken may be sifted and analyzed by competent subordinates,” 298 U. S. 481, but this clearly means that the sifting and analysis must be of the evidence as a whole upon any controverted issue of fact or in respect of which any ultimate findings of fact must be based. It may not be a one-sided analysis. If variant or contrary inferences may be drawn from the evidence, the subordinates may not choose between them but must fairly present both sides of the evidence, so that the authorized tribunal may make his choice. If an ultimate or evidentiary finding of fact, controversial in character, requires for its determination consideration of evidence relating to different but related subjects, without the weighing of all of which no ultimate or evidentiary finding may be made, then such analysis must fairly set forth these several descriptions of evidence and their relation to the possible ultimate or evidentiary inferences presented. To what extent the Secretary may rely upon such analyses without examination of the record himself in respect of controverted questions, it is unnecessary to discuss. This is so because it plainly appears from the record as a whole that no such analysis of the evidence was made and submitted to him by any subordinate. The law is not concerned with the mechanics employed. What it does require is that the findings of fact shall be those of the Secretary himself, made only after a weighing and appraisal of the evidence, however that evidence may be submitted to him for consideration. MORGAN v. UNITED STATES. 5 1 Argument for Appellants. In leaving the findings of fact to his subordinates, the Secretary proceeded upon the erroneous assumption that the delegation of the legislative power to fix rates was to the Department of Agriculture rather than to the Secretary in person. The evidence as to the manner in which the findings, submitted to the Secretary and accepted by him, were prepared, discloses the absence of any quasi-judicial weighing or appraisal of the evidence by those who prepared them. The record discloses that neither the evidence nor the argument was thereafter weighed or appraised by the Secretary. The findings prepared by the Secretary’s subordinates do not constitute such a “sifting and analyzing” of the evidence as to absolve the Secretary from weighing and appraising the evidence itself. The Secretary did not weigh and appraise the evidence concerning salesmanship performance, the findings concerning which are based on the flimsiest kind of evidence and are the most important of all. The Secretary accepted without change findings made by his subordinates in respect of sales performance, apparently under the misapprehension that they were supported by actual performance, without any examination of the evidence in respect thereof, which, if made, would have disclosed the contrary. The Secretary did not weigh and appraise the evidence upon which the order’s so-called reasonable cost assigned to business-getting and maintaining was predicated. The Secretary did not weigh and appraise the evidence bearing upon the reasonable cost of yarding or office salaries, but accepted the findings submitted upon a mis-understanding of their import. Neither the fragmentary oral statements of his subordinates as to what some of the evidence was nor the 6 OCTOBER TERM, 1937. Argument for Appellants. 304U.S. Secretary’s hit or miss “investigation into” the record is an acceptable substitute for his weighing and appraising the evidence as a whole. The altering by the Secretary of a few rates in the tentative order in no way tends to prove he weighed and appraised the evidence. Had he filled in a wholly blank schedule he would be no better off. The inexorable requirement of a fair trial before an impartial tribunal, which shall render judgment upon the evidence, is not met where, without any allegation that any rates are unreasonable, and without any disclosure of their contentions as to the ultimate facts proved or the principles intended to be applied to them, the findings and order to be made are prepared by opposing counsel and, without the knowledge of the appellants or their counsel, submitted to the trier of the facts who, after private unrecorded conferences with opposing counsel, issues an order in accordance therewith, without himself weighing or appraising the evidence upon controverted issues. There was no allegation or suggestion in the original order of inquiry that any of appellants’ rates were unjust, or unreasonable or discriminatory. The “Order Granting Rehearing” was not more explicit in these respects. Counsel for the Government, in his argument, presented no issues of fact. Where he did refer to individual agencies he paid them the highest possible compliment as to efficiency of operation. He stated that in his opinion the rates under investigation were not discriminatory and that none of the appellants were making too much money under the existing rates. Nothing occurred in the course of the oral argument to forecast the fact that the Assistant Secretary was not to pass upon the issues but was to retire from further con- MORGAN v. UNITED STATES. 7 1 Argument for Appellants. sideration of the case. No statement indicated that a tentative report was to be prepared by the attorneys for the Government and a Government economist, an important witness for the Government. It was not suggested that the proposed findings and order, without having been first served upon counsel for appellants, would be presented to the Secretary personally and discussed with him by the attorneys for the Government in unrecorded conferences, out of the presence of appellants’ counsel. Appellants’ counsel, without the benefit of a complaint containing specific allegations as to the unreasonableness of any rates, having before him in the evidence a cost study prepared after extensive audits by Government accountants showing experienced costs to be in excess of receipts under existing rates, and without any knowledge of the contents of the tentative report, prepared a brief which was filed with the Assistant Secretary. No briefs were filed or served by the Government. The proposed findings and order so prepared by the attorneys for the Government, together with certain memoranda prepared in part by the economist who was a Government witness in the case, was presented to the Secretary. The Secretary, according to his testimony, after examining the record casually, took the order, the briefs, and transcript of oral argument home with him. He states that he read the tentative order and part, at least, of the briefs. After discussing the matter with counsel for the Government in private unrecorded conferences, he changed, to an unimportant extent, a few figures expressing individual rates, and signed the order as proposed, otherwise unchanged, on June 14, 1933. This he did without weighing or appraising the evidence on controverted issues of fact and without familiarizing himself with any part thereof except as com- 8 OCTOBER TERM, 1937. Argument for Appellants. 304U.S. municated to him in ex parte oral conversations with his subordinates including the attorney prosecuting the case. No record was kept of these conversations, but it appears they were fragmentary and unaccompanied by any weighing and appraising of .the evidence by the Secretary. And this although the findings accepted are directly contrary to statements in appellants’ administrative briefs. Such a course of administrative procedure constitutes neither a full hearing nor due process of law. The more extensive the employment of the implement of the administrative tribunal becomes—and its use is daily becoming more widespread—and the more credit which is given to its decisions, the more important is it that strict regularity be observed in the conduct of its hearings and that all the elements of a full and fair bearing and of due process of law be accorded. See Lord Chief Justice Hewart, “The New Despotism,” pp. 50-51. It is not contended by appellants that in cases where a fair and proper method has been adopted for limiting the issues, whether it be a tentative report of the Examiner or otherwise, the tribunal passing judgment must review or appraise all of the evidence relating to non-controversial as well as controversial issues. Nor is it contended that in order that there be a full hearing, oral argument or oral presentation is essential in every instance— for by other methods the trier of the facts may become so adequately informed as to enable himself to properly appraise the evidence. Nor is it contended that the order is void solely by reason of the fact that the attorneys for the prosecution, assisted by a witness for the prosecution, prepared it,—for had such an order, so prepared, been followed by presentation of it to counsel for appellants with full opportunity to refute the conclusions expressed therein before him whose duty it was to resolve the evidence into findings, the requirement of a fair trial MORGAN v. UNITED STATES. 9 1 Argument for Appellants. could be met if the Secretary weighed and appraised all of the evidence upon the findings questioned by appellants’ counsel. A court or administrative tribunal may for its convenience require submission of issues upon written statement—if such written statements are, under conditions fairly permitting reply, made known to opposing parties. Evidence may for the assistance of the one charged with the responsibility of decision be fairly analyzed by impartial and competent assistants, unbiased by previous partisan connection with the proceeding. Where, however, issues are not defined and limited by means and methods fair to all persons affected or to be affected, fair analyses or synopses of the evidence are not prepared by impartial or competent assistants, and the one deciding the issues does not personally review and weigh and appraise the evidence, a full hearing is not had in accordance with statutory and constitutional requirements. Assuming that, as claimed, the Secretary read oral and written argument, nevertheless it is clear that he did not judicially weigh and appraise the same, since he admittedly adopted the vitally important inferences drawn by his subordinates from the evidence, and rejected the widely differing inferences asserted by appellants in their briefs, without weighing or appraising the evidence upon which either set of inferences was based. The order should be set aside because unsupported by essential findings of basic facts, because the fundamental findings of fact therein are not supported by substantial evidence, because based upon an erroneous conception of the law and of the powers of the Secretary, because based upon a departure from recognized and accepted standards, both of reasonableness and of administrative procedure, and because arbitrarily made. 10 OCTOBER TERM, 1937. Argument for Appellees. 304 U.S. Solicitor General Jackson and Mr. Wendell Berge, with whom Ass’t Solicitor General Bell, and Messrs. Hugh B. Cox, James C. Wilson, Edward J. Ennis, and G. N. Dagger were on the brief, for the appellees. The contention that the decision of a quasi-judicial officer, made upon a proper record after full hearing of argument, may be declared to be void on the ground that it was insufficiently considered is without precedent. In its prior decision, this Court held that where it was alleged that the Secretary heard neither evidence nor argument a case was made for judicial investigation. It did not hold that where he had heard argument, judicial investigation may test the adequacy of his further consideration of the case. The detailed facts of the Secretary’s physical examination of arguments and evidence and the detailed mental processes which he employed in reaching his determination are not a proper subject for judicial inquiry. Appellants’ contention is, in essence, an endeavor to avoid, by a novel doctrine of judicial review, the established rule that the findings of a quasi-judicial officer, made after hearing or reading full argument on a proper record submitted to him, can be attacked only by showing that the findings are in fact unsupported by the evidence. The question of the scope of the issue is not of controlling importance in the present case. Should this Court decide that it is free to look behind the fact that the Secretary read and considered appellants’ arguments, it will find that the evidence shows that the Secretary fully complied with any procedural standard that may reasonably be imposed. The Secretary made his decision on the basis of his own personal consideration and appraisal of the evidence and argument. The transcript of record was in his possession and, while he did not read it consecutively or in full, he MORGAN v. UNITED STATES. 11 1 Argument for Appellees. consulted it wherever in his judgment such consultation was necessary. As a guide to his examination of the record he studied the arguments of appellants directed to the evidence and compared them with the voluminous findings of fact, which constituted a summary and analysis of the evidence. Having read and considered the tentative findings of fact and the arguments of appellants, he made an investigation into the record—assisted by consultation with members of the Department—for the purpose of considering and appraising the evidence upon which the findings were made. Uncontradicted testimony establishes that the Secretary, in the exercise of his independent judgment, altered three of the most important items in the tentative schedule of rates. With respect to all the numerous questions raised by appellants, persuasive evidence exists to show independent inquiry and the exercise of independent judgment by the Secretary. By asserting that the Secretary did not give them a fair hearing, appellants have assumed the burden of proving by clear and convincing evidence that the Secretary did not consider their arguments or the evidence to which those arguments related. Appellants renew their objection that they were not given an opportunity to file exceptions to an examiner’s report or to tentative findings of fact, and to present argument in support of those exceptions. This Court has already passed on this argument. [Citing Morgan v. United States, 298 U. S. 468, 478.] The practice which the Court described as desirable has now been established in proceedings under § 307 of the Act. See Order of September 16, 1936, 1 Federal Register 1362. It remains true, however, that the failure to follow it is not fatal to the validity of the hearing. Appellants also complain that in his oral argument counsel for the Department did not apprise them of the 12 OCTOBER TERM, 1937. Argument for Appellees. 304U.S. issues which they might be expected to meet, and they refer to statements he made which were in agreement with their contentions. It is not to be supposed that the appellants were prejudiced by such friendly statements in oral argument or that appellants’ counsel needed the assistance of Government counsel, or of an examiner’s report, or of tentative findings of fact, to determine what the important issues in the proceeding were. It is common knowledge that often in ordinary litigation the argument addressed by counsel to the court is made before the submission of proposed findings of fact or conclusions of law, and that the argument of opposing counsel does not in every case disclose with clarity the issues on which the case is to be decided. Such circumstances when they exist can hardly be said to amount to a denial of a full hearing. Furthermore, it should be noted that, at the time of the oral argument and when petitioners filed their supplemental brief with the Secretary, they had before them an order, which had been signed on May 18, 1932, by the Secretary of Agriculture, containing findings of fact and fixing a schedule of rates. At the time the rehearing was granted, the Secretary had set this order aside. The record upon which that order had been made was a part of the record before the Secretary at the time of the rehearing, and the order served to inform the appellants of the nature of the issues involved. That it did so inform them is shown by the fact that much of appellants’ supplemental brief was devoted to a discussion of this order, and that in the course of that discussion they advanced most of the contentions which they make with respect to the order now under attack. Appellants attempt to distinguish this present situation from one in which a court adopts findings prepared by counsel on the ground that a court affords opposing MORGAN v. UNITED STATES. 13 1 Opinion of the Court. counsel an opportunity to submit findings of his own or to except to the findings which are adopted. There is no force in this distinction. Although the appellants were not given an opportunity to except to the tentative findings of fact, they had an unrestricted opportunity to submit findings of their own to the Secretary of Agriculture which he could have considered. They did not take advantage of that opportunity; but that is not a circumstance which can be held against the Secretary of Agriculture. There is no logic in appellants’ suggestion that the adoption of findings is done independently if opposing counsel has a chance to criticize those findings, but must be presumed not to have been done independently if the opportunity to criticize is not afforded. The order of the Secretary is based upon correct principles of law and is supported by substantial evidence. Mr. Chief Justice Hughes delivered the opinion of the Court. This case presents the question of the validity of an order of the Secretary of Agriculture fixing maximum rates to be charged by market agencies at the Kansas City Stock Yards. Packers and Stockyards Act, 1921, 42 Stat. 159; 7 U. S. C. 181-229. The District Court of three judges dismissed the bills of complaint in fifty suits (consolidated for hearing) challenging the validity of the rates, and the plaintiffs bring this direct appeal. 7 U. S. C. 217; 28 U. S. C. 47. The case comes here for the second time. On the former appeal we met, at the threshold of the controversy, the contention that the plaintiffs had not been accorded the hearing which the statute made a prerequisite to a valid order. The District Court had struck from plaintiffs’ bills the allegations that the Secretary had made the order 14 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. without having heard or read the evidence and without having heard or considered the arguments submitted, and that his sole information with respect to the proceeding was derived from consultation with employees in the Department of Agriculture. We held that it was error to strike these allegations, that the defendant should be required to answer them, and that the question whether plaintiffs had a proper hearing should be determined. Morgan v. United States, 298 U. S. 468. After the remand, the bills were amended and interrogatories were directed to the Secretary which he answered. The court received the evidence which had been introduced at its previous hearing, together with additional testimony bearing upon the nature of the hearing accorded by the Secretary. This evidence embraced the testimony of the Secretary and of several of his assistants. The District Court rendered an opinion, with findings of fact and conclusions of law, holding that the hearing before the Secretary was adequate and, on the merits, that his order was lawful. On this appeal, plaintiffs again contend (1) that the Secretary’s order was made without the hearing required by the statute and (2) that the order was arbitrary and unsupported by substantial evidence. The first question goes to the very foundation of the action of administrative agencies entrusted by the Congress with broad control over activities which in their detail cannot be dealt with directly by the legislature. The vast expansion of this field of administrative regulation in response to the pressure of social needs is made possible under our system by adherence to the basic principles that the legislature shall appropriately determine the standards of administrative action and that in administrative proceedings of a quasi-judicial character the liberty and property of the citizen shall be protected by the MORGAN v. UNITED STATES. 15 1 Opinion of the Court. rudimentary requirements of fair play. These demand “a fair and open hearing,”—essential alike to the legal validity of the administrative regulation and to the maintenance of public confidence in the value and soundness of this important governmental process. Such a hearing has been described as an “inexorable safeguard.” St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 73; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U. S. 292, 304, 305; Railroad Commission of California v. Pacific Gas & Electric Co., 302 U. S. 388, 393; Morgan n. United States, supra. And in equipping the Secretary of Agriculture with extraordinary powers under the Packers and Stockyards Act, the Congress explicitly recognized and emphasized this requirement by making his action depend upon a “full hearing.” § 310? In the record now before us the controlling facts stand out clearly. The original administrative proceeding was begun on April 7, 1930, when the Secretary of Agriculture issued an order of inquiry and notice of hearing with re- 1 Section 310 of the Packers and Stockyards Act (42 Stat. 159, 166; 7 U. S. C. 211) provides: “Sec. 310. Whenever after full hearing upon a complaint made as provided in section 309, or after full hearing under an order for investigation and hearing made by the Secretary on his own initiative, either in extension of any pending complaint or without any complaint whatever, the Secretary is of the opinion that any rate, charge, regulation, or practice of a stockyard owner or market agency, for or in connection with the furnishing of stockyard services, is or will be unjust, unreasonable, or discriminatory, the Secretary— “(a) May determine and prescribe what will be the just and reasonable rate or charge, or rates or charges, to be thereafter observed in such case, or the maximum or minimum, or maximum and mini-mum, to be charged, and what regulation or practice is or will be just, reasonable, and nondiscriminatory to be thereafter followed; . . .” 16 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. spect to the reasonableness of the charges of appellants for stockyards services at Kansas City. The taking of evidence before an examiner of the Department was begun on December 3, 1930, and continued until February 10, 1931. The Government and appellants were represented by counsel and voluminous testimony and exhibits were introduced. In March, 1931, oral argument was had before the Acting Secretary of Agriculture and appellants submitted a brief. On May 18, 1932, the Secretary issued his findings and an order prescribing maximum rates. In view of changed economic conditions, the Secretary vacated that order and granted a rehearing. That was begun on October 6, 1932, and the taking of evidence was concluded on November 16, 1932. The evidence received at the first hearing was re-submitted and this was supplemented by additional testimony and exhibits. On March 24, 1933, oral argument was had before Rexford G. Tugwell as Acting Secretary. It appears that there were about 10,000 pages of transcript of oral evidence and over 1,000 pages of statistical exhibits. The oral argument was general and sketchy. Appellants submitted the brief which they had presented after the first administrative hearing and a supplemental brief dealing with the evidence introduced upon the rehearing. No brief was at any time supplied by the Government. Apart from what was said on its behalf in the oral argument, the Government formulated no issues and furnished appellants no statement or summary of its contentions and no proposed findings. Appellants’ request that the examiner prepare a tentative report, to be submitted as a basis for exceptions and argument, was refused. Findings were prepared in the Bureau of Animal Industry, Department of Agriculture, whose representatives had conducted the proceedings for the Government, and were submitted to the Secretary, who signed them, with a few MORGAN v. UNITED STATES. 17 1 Opinion of the Court. changes in the rates, when his order was made on June 14, 1933. These findings, 180 in number, were elaborate. They dealt with the practices and facilities at the Kansas City livestock market, the character of appellants’ business and services, their rates and the volume of their transactions, their gross revenues, their methods in getting and maintaining business, their joint activities, the economic changes since the year 1929, the principles which governed the determination of reasonable commission rates, the classification of cost items, the reasonable unit costs plus a reasonable amount of profits to be covered into reasonable commission rates, the reasonable amounts to be included for salesmanship, yarding salaries and expenses, office salaries and expenses, business getting and maintaining expenses, administrative and general expenses, insurance, interest on capital, and profits, together with summary and the establishment of the rate structure. Upon the basis of the reasonable costs as thus determined, the Secretary found that appellants’ schedules of rates were unreasonable and unjustly discriminatory and fixed the maximum schedules of the just and reasonable rates thereafter to be charged. No opportunity was afforded to appellants for the examination of the findings thus prepared in the Bureau of Animal Industry until they were served with the order. Appellants sought a rehearing by the Secretary but their application was denied on July 6, 1933, and these suits followed. The part taken by the Secretary himself in the departmental proceedings is shown by his full and candid testimony. The evidence had been received before he took office. He did not hear the oral argument. The bulky record was placed upon his desk and he dipped into it from time to time to get its drift. He decided that probably the essence of the evidence was contained in appellants’ briefs. These, together with the transcript of the 81638°—38------2 18 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. oral argument, he took home with him and read. He had several conferences with the Solicitor of the Department and with the officials in the Bureau of Animal Industry and discussed the proposed findings. He testified that he considered the evidence before signing the order. The substance of his action is stated in his answer to the question whether the order represented his independent conclusion, as follows: “My answer to the question would be that that very definitely was my independent conclusion as based on the findings of the men in the Bureau of Animal Industry. I would say, I will try to put it as accurately as possible, that it represented my own independent reactions to the findings of the men in the Bureau of Animal Industry.” Save for certain rate alterations, he “accepted the findings.” In the light of this testimony there is no occasion to discuss the extent to which the Secretary examined the evidence, and we agree with the Government’s contention that it was not the function of the court to probe the mental processes of the Secretary in reaching his conclusions if he gave the hearing which the law required. The Secretary read the summary presented by appellants’ briefs and he conferred with his subordinates who had sifted and analyzed the evidence. We assume that the Secretary sufficiently understood its purport. But a “full hearing”— a fair and open hearing—requires more than that. The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government pro- MORGAN v. UNITED STATES. 19 1 Opinion of the Court. poses and to be heard upon its proposals before it issues its final command. No such reasonable opportunity was accorded appellants. The administrative proceeding was initiated by a notice of inquiry into the reasonableness of appellants’ rates. No specific complaint was formulated and, in a proceeding thus begun by the Secretary on his own initiative, none was required. Thus, in the absence of any definite complaint, and in a sweeping investigation, thousands of pages of testimony were taken by the examiner and numerous complicated exhibits were introduced bearing upon all phases of the broad subject of the conduct of the market agencies. In the absence of any report by the examiner or any findings proposed by the Government, and thus without any concrete statement of the Government’s claims, the parties approached the oral argument. Nor did the oral argument reveal these claims in any appropriate manner. The discussion by counsel for the Government was “very general,” as he said, in order not to take up “too much time.” It dealt with generalities both as to principles and procedure. Counsel for appellants then discussed the evidence from his standpoint. The Government’s counsel closed briefly, with a few additional and general observations. The oral argument was of the sort which might serve as a preface to a discussion of definite points in a brief, but the Government did not submit a brief. And the appellants had no further information of the Government’s concrete claims until they were served with the Secretary’s order. Congress, in requiring a “full hearing,” had regard to judicial standards,—not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature. If in an equity cause, a special master 20 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. or the trial judge permitted the plaintiff’s attorney to formulate the findings upon the evidence, conferred ex parte with the plaintiff’s attorney regarding them, and then adopted his proposals without affording an opportunity to his opponent to know their contents and present objections, there would be no hesitation in setting aside the report or decree as having been made without a fair hearing. The requirements of fairness are not exhausted in the taking or consideration of evidence but extend to the concluding parts of the procedure as well as to the beginning and intermediate steps. The answer that the proceeding before the Secretary was not of an adversary character, as it was not upon complaint but was initiated as a general inquiry, is futile. It has regard to the mere form of the proceeding and ignores realities. In all substantial respects, the Government acting through the Bureau of Animal Industry of the Department was prosecuting the proceeding against the owners of the market agencies. The proceeding had all the essential elements of contested litigation, with the Government and its counsel on the one side and the appellants and their counsel on the other. It is idle to say that this was not a proceeding in reality against the appellants when the very existence of their agencies was put in jeopardy. Upon the rates for their services the owners depended for their livelihood, and the proceeding attacked them at a vital spot. This is well shown by the fact that, on the merits, appellants are here contending that under the Secretary’s order many of these agencies, although not found to be inefficient or wasteful, will be left with deficits instead of reasonable compensation for their services and will be compelled to go out of business. And to this the Government responds that if as a result of the prescribed rates some agencies may be unable to MORGAN v. UNITED STATES. 21 1 Opinion of the Court. continue, because through existing competition there are too many, that fact will not invalidate the order. While we are not now dealing with the merits, the breadth of the Secretary’s discretion under our rulings applicable to such a proceeding (Tagg Bros. & Moorhead v. United States, 280 U. S. 420; Acker v. United States, 298 U. S. 426) places in a strong light the necessity of maintaining the essentials of a full and fair hearing, with the right of the appellants to have a reasonable opportunity to know the claims advanced against them as shown by the findings proposed by the Bureau of Animal Industry. Equally unavailing is the contention that the former Secretary of Agriculture had made an order in May, 1932, containing findings of fact and fixing a schedule of rates, of which appellants were apprised. Because of changes in economic conditions, the Secretary himself had set aside that order and directed a rehearing. This necessarily involved, as the Secretary found, a consideration “of changes both general and particular” which had “occurred since the year 1929” and brought up all the questions pertinent to the new situation to which the additional evidence upon the rehearing was directed. The former findings and order were no longer in effect and it is with the conduct of the later proceeding that we are concerned. The Government adverts to an observation in our former opinion that, while it was good practice—which we approved—to have the examiner, receiving the evidence in such a case, prepare a report as a basis for exceptions and argument, we could not say that that particular type of procedure was essential to the validity of the proceeding. That is true, for, as we said, what the statute requires “relates to substance and not form.” Conceivably, the Secretary, in a case the narrow limits of which made such a procedure practicable, might himself hear 22 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. the evidence and the contentions of both parties and make his findings upon the spot. Again, the evidence being in, the Secretary might receive the proposed findings of both parties, each being notified of the proposals of the other, hear argument thereon and make his own findings. But what would not be essential to the adequacy of the hearing if the Secretary himself makes the findings is not a criterion for a case in which the Secretary accepts and makes as his own the findings which have been prepared by the active prosecutors for the Government, after an ex parte discussion with them and without according any reasonable opportunity to the respondents in the proceeding to know the claims thus presented and to contest them. That is more than an irregularity in practice; it is a vital defect. The maintenance of proper standards on the part of administrative agencies in the performance of their quasijudicial functions is of the highest importance and in no way cripples or embarrasses the exercise of their appropriate authority. On the contrary, it is in their manifest interest. For, as we said at the outset, if these multiplying agencies deemed to be necessary in our complex society are to serve the purposes for which they are created and endowed with vast powers, they must accredit themselves by acting in accordance with the cherished judicial tradition embodying the basic concepts of fair play. As the hearing was fatally defective, the order of the Secretary was invalid. In this view, we express no opinion upon the merits. The decree of the District Court is Reversed. Mr. Justice Black dissents. Mr. Justice Cardozo and Mr. Justice Reed took no part in the consideration and decision of this case. MORGAN v. UNITED STATES. 23 1 On Petition for Rehearing. A Petition for Rehearing, Filed on May 20, 1938, Was Denied on May 31, 1938. Per Curiam. The Solicitor General moves for a rehearing of this case upon two grounds: First. The first ground is that the Court has reversed itself; that the present decision is “directly contrary to the law of the case” as established by the Court’s decision on the former appeal, Morgan v. United States, 298 U. S. 468; and that “a procedural omission” previously held “to be of no significance” is now regarded as “fatally defective.” These assertions are unwarranted. Not only are the two decisions consistent, but the rule announced in our former opinion was applied and was decisive of the present appeal. And the Government is in no position to claim surprise. The question whether there had been a fair hearing in the present case, in the light of the situation disclosed by the Secretary’s testimony and the other evidence, was fully argued at the bar. Appellants presented, both orally and in an elaborate brief, with copious references to the record, the contention which we sustained. The first appeal was brought to this Court because the plaintiffs had been denied an opportunity to prove that the Secretary of Agriculture had failed to give them the full hearing which the statute required. Their allegations to that effect had been struck out by the District Court. 8 F. Supp. 766. We held its ruling to be erroneous and that the question whether the plaintiffs had a proper hearing should be determined, saying: “But there must be a hearing in a substantial sense. And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them.” 24 OCTOBER TERM, 1937. On Petition for Rehearing. 304U.S. The case was then tried by the District Court upon that issue. From the Secretary’s frank disclosure it appeared that findings of fact necessary to sustain the order had not been made by him upon his own consideration of the evidence but as stated below. Because such action fails to satisfy the requirement of a full hearing stated in our first opinion and quoted above, we reversed the judgment of the District Court which sustained the order. Testimony of the Secretary and his associates, disclosed what had actually occurred. It appeared that the oral argument before the Assistant Secretary had been general and sketchy; that, aside from the oral argument, which did not reveal the claims of the Government in any appropriate manner, the Government had submitted no brief and no statement of its contentions had been furnished; that in this situation findings had been prepared in the Bureau of Animal Industry, Department of Agriculture, whose representatives had conducted the proceedings for the Government; that these findings, 180 in number, were elaborate, dealing with all phases of the practices and facilities at the Kansas City live-stock market, the services and methods of the plaintiffs, and the costs and profits which should be allowed them as reasonable. These findings, prepared not by the Secretary but by those who had prosecuted the case for the Government, were adopted by the Secretary with certain rate alterations. No opportunity was afforded to the plaintiffs for the examination of the findings thus prepared until they were served with the Secretary’s order and their request for a rehearing was denied. The statement made in the petition for rehearing that the present decision is contrary to the law of the case as declared in our first opinion is wholly unfounded. Our decision was not rested upon the absence of an examiner’s report. So far from departing from our former opinion, MORGAN v. UNITED STATES. 25 1 On Petition for Rehearing. or from the statement that the mere matter of the presence or absence of an examiner’s report was not itself determinative, we reiterated both that statement and the principle underlying it in our opinion on the present appeal. We said: “Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command. “No such reasonable opportunity was accorded appellants. . . . “The Government adverts to an observation in our former opinion that, while it was good practice—which we approved—to have the examiner, receiving the evidence in such a case, prepare a report as a basis for exceptions and argument, we could not say that that particular type of procedure was essential to the validity of the proceeding. That is true, for, as we said, what the statute requires ‘relates to substance and not form.’ Conceivably the Secretary, in a case the narrow limits of which made such a procedure practicable, might himself hear the evidence and the contentions of both parties and make his findings upon the spot. Again, the evidence being in, the Secretary might receive the proposed findings of both parties, each being notified of the proposals of the other, hear argument thereon and make his own findings.” And, then, pointing out the distinction and the serious defect in the procedure in the instant case, we added: “But what would not be essential to the adequacy of the hearing if the Secretary himself makes the findings is not a criterion for a case in which the Secretary accepts and makes as his own the findings which have been prepared by the active prosecutors for the Government, after 26 OCTOBER TERM, 1937. On Petition for Rehearing. 304U.S. an ex parte discussion with them and without according any reasonable opportunity to the respondents in the proceeding to know the claims thus presented and to contest them. That is more than an irregularity in practice; it is a vital defect.” The distinction was again brought out in our recent decision in the case of National Labor Relations Board v. Mackay Radio & Telegraph Co., post, p. 333, where the mere absence of an examiner’s report was found not to be controlling, as the record showed that in that case the contentions of the parties had been clearly defined and that there had been in the substantial sense a full and adequate hearing. The effort to establish a case for rehearing, either because of an asserted inconsistency in our rulings or because of lack of opportunity for full argument, is futile. Second. The second ground upon which a rehearing is sought is that there is impounded in the District Court a large sum representing charges paid in excess of the rates fixed by the Secretary. The Solicitor General raises questions both of substance and procedure as to the disposition of these moneys. These questions are appropriately for the District Court and they are not properly before us upon the present record. We have ruled that the order of the Secretary is invalid because the required hearing was not given. We remand the case to the District Court for further proceedings in conformity with our opinion. What further proceedings the Secretary may see fit to take in the light of our decision, or what determinations may be made by the District Court in relation to any such proceedings, are not matters which we should attempt to forecast or hypothetically to decide. The petition for rehearing is denied. Mr. Justice Black dissents. Mr. Justice Cardozo and Mr. Justice Reed took no part in the consideration of this petition. UNITED STATES v. BEKINS. 27 Syllabus. UNITED STATES v. BEKINS et al., TRUSTEES, ET AL. LINDSAY-STRATHMORE IRRIGATION DISTRICT V. BEKINS ET AL., TRUSTEES, et al. APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF CALIFORNIA. Nos. 757 and 772. Argued April 7, 1938.—Decided April 25, 1938. 1. Proceedings for voluntary composition of debts without adjudication of bankruptcy are within the scope of the bankruptcy power. P. 47. 2. California Law, 1934, Extra Sess., gave the State’s consent to the application to state “taxing districts,” of the Bankruptcy Act and amendments, including Chapter X, added to that Act Aug. 16, 1937. P. 47. 3. The omission from c. X of the Bankruptcy Act of a provision specifically requiring that the petition of a state taxing district under that chapter be approved by a governmental agency of the State, held unimportant in determining the validity of the legislation where the State has actually consented. P. 49. 4. In conditioning the confirmation of a plan of composition upon proof that the petitioning taxing district is “authorized by law” to take all action necessary to carry out the plan, c. X of the Bankruptcy Act refers to the law of the State. P. 49. 5. Chapter X of the Bankruptcy Act, adopted Aug. 16, 1937, empowers the courts of bankruptcy to entertain and pass upon petitions-by state taxing agencies or instrumentalities, including irrigation districts, for the composition of their indebtedness payable out of assessments or taxes levied against and constituting liens upon property in their districts or out of income derived therefrom or from sale of water, etc. The plan of composition must be approved by creditors owning not less than 51% of the securities affected by the plan and can not be confirmed unless accepted by creditors holding 66%% of the aggregate indebtedness of the district. There must be consent by the State; and the judge must be satisfied that the district is authorized by local law to carry out the plan. The statute aims to relieve serious distress existing in many such improvement districts where, because of economic conditions, property owners can not pay assessments, and taxation is useless, so that the districts can not meet 28 OCTOBER TERM, 1937. Argument of Mr. Sumners. 304U.S. their obligations and creditors are helpless. A remedy through composition of the debts of the district could not be afforded by state law unaided, because of the contract clause of the Federal Constitution. Held that the statute is a valid exercise of the bankruptcy power. Ashton n. Cameron County District, 298 U. S. 513, distinguished. P. 49. 6. The ability to contract and to give consents bearing upon the exertion of governmental power is of the essence of sovereignty. P. 51. 7. The reservation to the States by the Tenth Amendment, did not destroy, but protected, their right to make contracts and give consents where that action would not contravene the provisions of the Federal Constitution. P. 52. 8. Cooperation between Nation and State through the exercise of the powers of each, to the advantage of the people who are citizens of both, is consistent with an indestructible Union of indestructible States. P. 53. 9. Chapter X of the Bankruptcy Act, held not violative of the Fifth Amendment, as applied to creditors of a state irrigation district, which sought a composition of its debts under that chapter. P. 54. 21 F. Supp. 129, reversed. Appeals from a decree of the District Court dismissing a petition for confirmation of a plan of composition presented by the above-named Irrigation District under c. X of the Bankruptcy Act. The District and the United States, which had been notified and had intervened, took separate appeals. The following arguments are extracted from a stenographic report of the hearing. Mr. Hatton W. Sumners for the Committee on Judiciary of the House of Representatives of the United States, as amicus curiae, by special leave of Court. As we understand the issues here presented, there is no question involving the rights of individuals, and there is no question with regard to the mechanics of the law. The sole question is whether or not legislation embodied in §§ 81, 82 and 83 of the Bankruptcy Act, as amended, which sections we know as the Municipal Bankruptcy Act, impinges upon the sovereignty of the State. UNITED STATES v. BEKINS. 29 27 Argument of Mr. Sumners. In this particular litigation the question arises with reference to an irrigation district. Briefly visualizing the transactions with reference to that district and the character of the district, we observe that a group of farmers owning contiguous lands, desiring to cultivate those lands under irrigation, availed themselves of the facilities provided by the State of California for putting a blanket mortgage on those lands for the purpose of bringing water to those lands to aid them in the business of farming. That district exercised, under delegation from the State, power of eminent domain and power of taxation. It did not relieve the State of California of any governmental responsibility theretofore exercised by it. It seems to us that in so far as drainage and irrigation districts are concerned, they have more the characteristics of a railroad corporation than they do of an ordinary municipality. A railroad corporation, by delegation, exercises the right of eminent domain—probably as high a right and power as Government has—yet it does not thereby become a part of the State. But I do not desire to take the time of the Court in discussing the differences, whatever they may be, between an irrigation district and an ordinary municipality, because the provisions of this Act cover them all. When we come to examine what happened as the result of this legislation with reference to the sovereignty and dignity of the municipality, or of the State, however it may be considered, we discover that every debt which could be composed under this Act is a debt which, under the then existing law, would constitute a basis of litigation in an ordinary suit against the municipality. The municipality, therefore, before this law was enacted, could be brought into court for these same debts by the process of the court, against the will of the municipality, the issues tried as though the municipality were 30 OCTOBER TERM, 1937. Argument of Mr. Sumners. 304 U. S. an ordinary defaulter, judgment had in the ordinary way; and if the judgment of the court were not complied with, the municipality could be brought into court again and subjected to the coercion of the court, even to the extent of the incarceration of its officers. . . . In a similar situation this same municipality, which theretofore could be brought into court by the might of the court and without regard to its consent, under this Act comes into that court as a sovereign would come, a complete sovereign. It comes in under its own will. Nobody is compelling it to come. Nobody can compel it to come under this Act. In the exercise of its sovereign right to arrange its indebtedness—it had been sitting around a table with its creditors, and they had agreed. In the instant case 87 per cent, agreed that 59 cents on the dollar was the best thing for everybody concerned. So this municipality, by authority of this Act, goes into that same courthouse, before the same judge, leading a procession of its consenting creditors, and says to the judge, “We have entered into this agreement, 87 per cent. There are 13 per cent, who do not consent. Will you be good enough to examine to determine whether or not this agreement is fair to the 13 per cent, and that it does not do some other things provided against in the law.” It tells the court also, “I am here because, first, I was created by a sovereign State in the exercise of its sovereign powers. That sovereign gave me authority to come here. There is nowhere else myself and my creditors can go, and won’t you please write our agreement into the book of judgments.” Even if it were an ordinary lawsuit, as we understand it, there is no higher act of sovereignty than for the sovereign voluntarily to submit itself to the judgment of a UNITED STATES v. BEKINS. 31 27 Argument of Mr. Sumners. court. The Federal Government does it all the time, the States do it; and we have never understood that, when a sovereign voluntarily submits itself to trial and judgment, by that submission it impairs its sovereignty or thereby makes it possible to be sued without its will. May I respectfully submit to the Court that, instead of impinging upon the sovereignty of the State, this Act clearly is in line with the nature and philosophy of sovereignty of the State, and that to declare this Act unconstitutional would impinge upon the sovereignty of the State. Such a determination would deny to the State of California, in this matter, the right to have a sovereign will with reference to what it will permit its creatures to do. All the way down the line there has been consent. First, the consent of the creator, California; consent of the Congress, the policy-fixing agency of the Federal Government; consent of the municipality itself, and consent of the creditors. Now, if we are to deny these agencies, which speak the voice of sovereignty and the judgment and will of the private citizen, the right thus to speak, what becomes of their sovereignty? If the creditors consent, and the municipality consents, and the State consents, and the policy-fixing agency of the Federal Government consents, with all respect, whose else business is it, if they are sovereign? We respectfully submit that to deny to a sovereign the right to have a sovereign will and to make that will effective, denies to it the very essence of sovereignty. I am privileged to take a longer time of the Court, but I could not add to the substance of what I have said. We appreciate very much the Court permitting me to appear. 32 OCTOBER TERM, 1937. Argument for the United States. 304 U. S. Solicitor General Jackson, with whom Assistant Attorney General Whitaker, and Messrs. Vincent N. Miles, Warner W. Gardner, and Henry A. Jülicher were on the brief, for the United States in No. 757. The District is utterly unable to meet its obligations in due course, and it is authorized by law to carry out a plan of composition. It asks the bankruptcy court to serve the notice required by statute to bring in the dissenting creditors, to grant hearings, to hold inquiry as to the reasonableness and fairness of the plan, to stay all suits that might be brought to interfere with the District or its property meanwhile, and that the court, if it finally approves the plan, enter an order as provided for in the Act, discharging the District from all further obligations under these outstanding bonds which would be composed by a payment of 59 cents on the dollar. The measure received careful consideration before the committees of the House and Senate, amendments were made with a view to insuring constitutionality, and the Congress concluded after full discussion that the bill as enacted was free from the objectionable features which had been held fatal to the original Act. [c. IX. See Ashton v. Cameron County Dist., 298 U. S. 513.] The only jurisdiction that is conferred, is the jurisdiction to compose “. . . indebtedness of or authorized by any taxing agencies or instrumentalities hereinafter named, which are payable out of assessments or taxes or both, or out of property acquired by foreclosure by the District, or out of income by such taxing districts.” These districts are then enumerated in separate subdivisions. The purpose of the subdivisions and of the separability clause was clearly stated on the House floor by Judge Sumners. UNITED STATES v. BEKINS. 33 27 Argument for the United States. Mr. Sumners frankly stated that the sixth classification, the political subdivisions, implied proceedings that would be unconstitutional under the Ashton case. He felt, however, it was not only the right, but the duty of Congress to present the question once more to this Court, since the decision, if allowed to stand, threatened grave impairment to the powers of the States, in that it forbade them to authorize their political subdivisions to enter into bankruptcy proceedings. The case before this Court does not involve the sixth subdivision, but involves subdivision 1, so that if it be held that the law is constitutional in its application to this particular district, even though it could be held unconstitutional as applied to districts covered by subdivision 6, we are entitled to prevail. The power to legislate on the subject of bankruptcies frequently has been passed upon by this Court. And the constitutional development of this clause at the hands of this Court in over a century has followed out the general conception of the breadth and sweep of that power as it seems to have been entertained at the time the power was given. The whole method and purpose of bankruptcy has changed with that century of interpretation. Bankruptcy as it existed at the time, and as it existed in the first Bankruptcy Act passed by the Federal Government in 1800, was a remedy of the creditor, a further remedy, against the debtor. It is now a new opportunity in life, and a clear field for further efforts to the bankrupt, unhampered by the pressure and discouragement of preexisting debts. Certainly if that is the purpose of this Act, no reason appears why it should be extended to private debtors and not to public debtors. Many subdivisions of the bodies which composed the United States at the time of the Constitu- 81638°—38--3 34 OCTOBER TERM, 1937. Argument for the United States. 304U.S. tional Convention were themselves at that time in default, and in need, but there was no suggestion that public debtors should be excluded from the benefits of the bankruptcy power, although, we must grant, at that time the bankruptcy power was conceived to be a narrower power than it has since become. There is equal urgency for applying this Act to public debtors—an urgency equal to any that has ever existed for extending it to private debtors. The statistics are in the brief, and I will not dwell upon them at length, but over 2,000 improvement districts were in default in 1934. Cities as large as Detroit and Miami and Asheville were in default. 41 of the 48 States had defaults within their borders. The defaulted bonds were between one billion and two billion eight hundred million, and in 1938, when the Congress was reconsidering this matter, over 3,000 units of government were found to be in default. The creditors in those cases stood without a practicable remedy. There is usually no property of a district subject to execution. Taxpayers are not personally liable. Mandamus to lay taxes is futile, because it results only in assessments that are defaulted. Tax sales drive down the value of property, and add further tax delinquencies. The experience of those creditors—who were themselves largely instrumental in the pressure which brought about the enactment of these Acts—the experience of those creditors was that they were without practicable remedies. This was because, though the only possible remedy was a remedy by agreement, it was almost always subject to defeat. Even though a great majority of the creditors agreed with the district on a practical course to restore some value to the defaulted bonds and to rehabilitate the district so that it could go on and exercise its public functions, any creditor who had a high estimate of the nuisance value of his particular security was in a UNITED STATES v. BEKINS. 35 27 Argument for the United States. position to block the settlement, which required unanimous action. Therefore the only remedy available to districts, or available to creditors, is the practicable plan of composition, in which nuisance values shall be ruled out, and in which equality of treatment of these creditors will prevail. And it is clear that that power, as attempted to be exercised by this statute, is within the general bankruptcy power of the Congress. It is equally clear it is not within the power of the State. The States granted their power over bankruptcies to the Federal Government. They were expressly forbidden to pass laws impairing the obligation of contracts. It seems impossible to say that a statute of Congress which exercises a power twice denied to the States—denied once by delegation to the Federal Government, and denied once by express prohibition—can be an invasion of States’ rights. There is one thing the States can do. The State can connive at repudiation. It can refuse to extend remedies. It can fall back on its power to nullify a contract and refuse to approve. That, neither in point of good finance, nor of good morals, is a desirable situation. In order that the situation may be frankly faced, and that sounder remedies may be practicably applied, there must be an escape from the limitation imposed upon the State, and that escape must be found in the power of the Federal Government. This power not only was delegated to the United States, but it was denied to the States, and it is clear the Tenth Amendment under such circumstances has no function whatever to perform in this case. Once a delegated power is found there is then no room for the operation of the Tenth Amendment. There is then no question of state sovereignty involved, since we have a granted power. 36 OCTOBER TERM, 1937. Argument for the United States. 304U.S. Then there is the argument advanced here that from the necessities of our form of government, because of the dual nature of our system, there is a necessity to preserve the independence of the State and to protect its sovereignty, and that therefore this power, even though it be a delegated power, cannot be exercised if it impinges upon what would be called sovereign powers or independent powers of the State. I submit that the Tenth Amendment itself denies that argument. If the Federal Government must point out the delegation of its powers, the Tenth Amendment equally holds the advocates of the rights of sovereignty of the States to the wording of the instrument. It clearly prohibits using the theory of necessity, the theory of the nature of government, or other philosophical reasons, for cutting down granted powers. Now, there is an effort in the brief of our adversary to compare this power with the taxing power, and to hold that because there are certain immunities to the State and to state agencies under the taxing power, a similar immunity must be written into the bankruptcy power. That argument starts by asserting the theory that the bankruptcy power is found in the same subsection of the Constitution as the grant of the taxing power. So are the powers to regulate interstate commerce, and to punish counterfeiters. The taxing and bankruptcy powers are not parallel powers; and no argument based on the one can be applied to the other. The power of the Federal Government to tax is subject to qualification, and the bankruptcy power is not. The power to tax is to provide for the common defense and the general welfare, and hence it may very well be that where you have a plan of which the tax is a part, such as this Court held the Agricultural Adjustment Act to be, or the Child Labor Act, then you are led to an inquiry as to whether the taxing plan itself is local or is general, is national or UNITED STATES v. BEKINS. 37 27 Argument for the United States. is within powers reserved to localities. The very nature of the taxing power, as it exists in the Federal Government, may demand that inquiry; but there is no such qualification in the bankruptcy clause. That requires only uniformity. When we consider immunity as it exists in the States from federal taxes, and as it exists in the Government from state taxation, we are dealing with a totally different thing. The power of taxation derives from the relationship of sovereign and subject. That relationship derived originally from the duty of a sovereign to protect, and from the duty of the subject to assist the sovereign in maintaining that protection. We find no State has assumed such a duty toward the Federal Government; we find no State has assumed a relationship toward the Federal Government which in the nature of the taxing power makes it applicable, one to the other. The very nature of the taxing power implies that it is exerted by the sovereign against the citizen, and not against another governmental body, regardless of whether the relationship is that of an equal sovereign, or that of a subsidiary governmental group. Tax burdens, of course, are involuntary burdens and, as this Court has said, may be destructive. The power to tax may be the power to destroy, and it may be laid upon a State as a State only when it has assumed that obligation, or if the liability to taxation is to be implied from the nature of the activities of the taxpayer. Bankruptcy is an entirely different kind of power. It is merely the opening, in this case, of a forum to which this State may resort, as we may open a forum to which foreign creditors or foreign debtors may resort. No compulsion upon any State or State agency is here involved. This is a voluntary Act, and it raises no questions under the Eleventh Amendment. 38 OCTOBER TERM, 1937. Argument for the District. 304 U. S. This Court has held that, without any consent of a sovereign state, its taxing agencies may be sued. Mandamus may lie against a taxing district. And it has been held in one case that, where a state law provides a similar remedy, a receiver may be appointed to go into such a district and take over its affairs and operations. Even the taxing immunity can be waived. This Court has held that a State may waive the tax immunity of its agencies, and that the Federal Government may waive the tax immunity of the agencies which it creates. In this case this Bankruptcy Act can never apply to any district unless there is a finding that the law of the State authorizes it to seek that remedy and authorizes it to carry that remedy to completion. It is true we have a dual system of State and Federal Governments, but that does not mean that they can not cooperate for the common need. That question was settled by this Court in the Social Security cases. [301 U. S. 548, 619.] Now, we find the State and the Nation confronted with this difficulty arising out of the limitation of the power of the State to deal with its own taxing agencies and their debts. We find these defaulted bonds in the channels of trade. We find taxing districts impaired in their capacity to carry on and perform the very functions for which they were created, and we say that there is no difficulty in the two units, the State and the Nation, without either one of them in the least receding from its sovereignty, setting up together a common remedy. Acting Solicitor General Bell filed a memorandum for the United States in No. 757. Messrs. Guy Knupp and James R. McBride for appellant in No. 772. Mr. Knupp for the Irrigation District explained the character of the District, the history and extent of its UNITED STATES v. BEKINS. 39 27 Argument for Appellees. indebtedness and the hopelessness of its financial situation. The court below had misconceived the Ashton case and the nature and purpose of the new legislation. The present Act aims to avoid interference with governmental functions, public agencies, and their fiscal affairs. It deals with voluntary composition. Chapter IX gave power to the court to change the proposed plan of composition. Not so Chapter X. Chapter IX gave power to interfere with fiscal powers and policies of the public debtor. Wright v. Vinton Branch, 300 U. S. 440, is applicable. Messrs. W. Coburn Cook and Charles L. Childers, with whom Mr. Maurice E. Harrison was on the briefs, for appellees. Mr. Cook on behalf of appellees explained the peculiar importance of irrigation in California. The control of water is a public trust, embedded in the state constitution and executed through its laws. The work of the Irrigation District is work that the State might itself directly perform, without giving the land owners within the District any voice in the selection of managers and trustees. But California, in order that it might carry out what it conceived to be a state function, has permitted the organization of something like 100 irrigation districts in the State and has conferred upon those districts sovereign powers, the power of taxation, the power to borrow money. The legislature itself could perform those functions directly by some department of the State. Instead of that, it chose to give the people greater control, because they were vitally interested. It could have raised revenues by direct taxation upon the entire State, because the purpose would have been public. But realizing that greater justice would be done, it allocated the indebtedness to the districts more directly affected, and thereby 40 OCTOBER TERM, 1937. Argument for Appellees. 304U.S. permitted the people in those districts to have a voice in those affairs. One of the greatest powers is that of borrowing money. There is a misunderstanding here as to what fiscal power is affected by this Act. It is true that in the Act everything has been -done which could possibly have been thought of in order to relieve the court from the necessity of making a direct order on the district, but the effect upon the fiscal powers goes back to the time of the borrowing of the money. Each holder of a bond and coupon is entitled to payment out of the bond values of the district in the order in which his bond or coupon has been presented. That makes each bond and coupon a separate class, and the one presented today is entitled to payment before the one presented tomorrow. This Act would have the same effect as respects the fiscal powers of the district and State as would an exercise of powers to tax income from the bonds—it would tend much more to destroy, because under this Act you take the principal, whereas under the income act, you can take only a portion of the interest. If this power under this Act is sustained, our great cities,—all the taxing districts, sewer districts, road districts, reclamation districts of California—could be forced into bankruptcy. I believe it is true that a sovereign State as well as a sovereign nation does not have the right to abdicate any sovereign function which is essential to its sovereignty. Perry v. United States, 294 U. S. 330. The Eleventh Amendment gives us no help. The State may waive its right not to be sued. The fact that these districts can be brought into court under certain conditions in no manner detracts from any essential of sovereignty, because the plaintiff in such case brought against the State is merely permitted to obtain an adju- UNITED STATES v. BEKINS. 41 27 Argument for Appellees. dication of whatever rights he may have. He is not by waiver of the immunity against suit given the right to assert other or different rights. The Interstate Commerce Clause does not seem to us to be analogous. I know of no principle permitting state or federal governments to waive their power to tax,—a power essential to sovereignty. The bankruptcy power is not a power essential to the National Government. It was given to the National Government for convenience, for uniformity. It is a sort of regulatory or police power granted to the National Government, and therefore if it comes in conflict with the power of the State, which is essential to the maintenance of the sovereignty of the State, it must give way completely. This is a bankruptcy act, whether it be called readjustment, or whether it be called composition. The effect of it is to compel certain persons to accept something which they have not contracted to accept. The difference in nomenclature between calling this district a taxing agency or a political subdivision, it seems quite obvious could have no effect upon the inherent powers which Congress may have. Mr. Cook compared chapter X with chapter IX. One essential difference is that c. X does not require the consent of the State. The California Enabling Act authorized the filing of a petition under c. IX. Mr. Childers, on behalf of appellees, maintained that chapters IX and X were alike objectionable. The same classes of agencies are dealt with—arms of the sovereign power of the State. The Ashton case decides that the power of Congress does not extend over the sovereign function of a State. 42 OCTOBER TERM, 1937. Argument for Appellees. 304 U. S. If the power of bankruptcy extends over these state mandatories in a little way, that is, in a voluntary proceeding, it must follow that it may be exercised against these mandatories without their consent or without the consent of the State. The next logical step is to make that same power apply to the State itself. Congress must have all the power or none; and that is the principle that was announced in the Ashton case. We find nothing in this statute that would seem materially to differentiate it from the Ashton case. To the great powers assigned to the United States by the Constitution, the States are powerless to add. Those powers are quite sufficient in themselves. The powers not delegated have been reserved to the States and to the people, and as this Court said in United States v. Butler, the Tenth Amendment was to make doubly sure. It is the people who ultimately have the sovereign power; and the State is not in position to surrender those necessary elements of sovereignty by which it must exist. A State, through its legislature, may consent to be sued, may surrender its sovereignty in a suit, because that is one of the powers not prohibited, and the legislature has the right to speak for the people to that extent. But it is prohibited from passing any law impairing the obligations of contract. Bankruptcy is necessarily an impairment of contract obligations. The taxing power is one of the highest attributes of sovereignty. If the United States can apply the bankruptcy power to a State, then it can control in the fiscal affairs of the State. Though the Constitution does not expressly prohibit, State or Federal Governments may not tax each other’s instrumentalities, because that would be to affect their sovereign functions. It is not a question of the size of the tax. UNITED STATES v. BEKINS. 43 27 Argument for Appellees. This must be true of bankruptcy. As soon as it touches the State in the remotest degree, it would seem that the power could not exist. There surely cannot be a little bankruptcy. Surely Congress must have the whole power or none. The power in bankruptcy would seem to be much more sinister than the power to tax, because the power to tax operates ordinarily in an even, like manner. The State, of course, is prohibited by the contract clause from impairing the obligations of a contract. Now, it would seem that regardless of what sort of statute a State might pass, it can not add to or take away from the power of Congress in that regard. If a consent is needed to make an Act of Congress effective, then it must be that the power does not exist. If Congress must look to another sovereign for its power, it can not have the power. Irrigation districts in California exercise governmental functions. The legislature has plenary power over them. They are State agencies. The legislature can destroy them by simply repealing the Act under which they exist, and the State can go out and do the work itself, by its own agents directly. The better considered cases hold that the beneficial interest in the property acquired by one of these districts is in the State itself. It does not make much difference in this connection whether it is in the State or the land owner. The district, as a legal entity, is not the beneficial owner. If the beneficial interest is in the land owner, he must be brought into court. How could there well be a bankruptcy of one of these public agencies that can not respond to a judgment? It has no property that is subject to execution. In answer to questions from the Chief Justice, Mr. Childers conceded that, under chapter X, no plan of com- 44 OCTOBER TERM, 1937. Amici Curiae. 304U.S. position can go through unless approved by the district; and that the California Act of 1934 gave consent to the submission of such a plan under chapter IX, if not under chapter X; but he maintained that, even so, the federal bankruptcy power can not be applied. All the power of government, whether possessed by the Nation or a State, can not be asserted to effect the composition of an indebtedness of such a district. The Chief Justice. So that the State would be prohibited to effect a composition of 60 per cent., no matter how fair it is, and the Federal Government would be prohibited, although this district has an economic plight which needs relief for the benefit of the people of the district, and incidentally the people of the State. There is no power in the Government against a creditor to provide for that relief? Mr. Childers. That is right. And the remedy would be much worse, I believe, than the disease. The Chief Justice. Remedies often are. Mr. Justice McReynolds. What power is there in a State Government or Federal Government or any other government to repudiate debts? Mr. Childers. I think that is answered. I don’t think there is any power, and I don’t think the power ought to be there. As a matter of economics, I believe it would do much more harm to these districts than it could possibly do good. And if the power existed, the power might be exercised all the way. By leave of Court, briefs of amici curiae were filed by Messrs. U. S. Webb, Attorney General of California, Greek L. Rice, Attorney General of Mississippi, Ray McKittrick, Attorney General of Missouri, Gray Mashburn, Attorney General of Nevada, Frank H. Patton, Attorney General of New Mexico, I. H. Van Winkle, Attorney General of Oregon, and Ray E. Lee, Attorney UNITED STATES v. BEKINS. 45 27 Opinion of the Court. General of Wyoming, on behalf of those States; Messrs. G. W. Hamilton, Attorney General of Washington, and Fred J. Cunningham, on behalf of the State of Washington; and Messrs. Jack Holt, Attorney General of Arkansas, and Chas. D. Frierson, on behalf of the State of Arkansas and certain drainage districts thereof, all in support of appellant in No. 772; by Messrs. Cary D. Landis, Attorney General of Florida, and Giles J. Patterson, on behalf of the State of Florida, in support of appellant in No. 757; and by Messrs. Francis V. Keesling and Charles L. Childers, on behalf of the West Coast Life Ins. Co., in support of appellees. Mr. Chief Justice Hughes delivered the opinion of the Court. These are direct appeals from the judgment of the District Court for the Southern District of California under the Act of August 24, 1937, c. 754, 50 Stat. 751. They present the question of the constitutional validity of the Act of August 16, 1937, 50 Stat. 653, amending the Bankruptcy Act by adding Chapter X providing for the composition of indebtedness of the taxing agencies or instrumentalities therein described. A certificate was issued to the Attorney General and the United States intervened. The District Court held the statute invalid as applied to the appellant and dismissed its petition for composition. The court considered itself bound by the decision in Ashton v. Cameron County District, 298 U. S. 513. Appellant, the Lindsay-Strathmore Irrigation District, was or<’ A nized in the year 1915 under the California Irrigation District Act of March 31, 1897 (Cal. Stat. 1897, p. 254). It comprises about 15,260 acres in Tulare County. It is an irrigation district and taxing agency created for the purpose of constructing and operating irrigation projects and works devoted to the improvement of lands for 46 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. agricultural purposes. On September 21, 1937, it presented its petition for the confirmation of a plan of composition. The petition alleged insolvency; that its indebtedness consisted of outstanding bonds aggregating $1,-427,000 in principal, with unpaid interest of $439,085.15; that no interest or principal falling due since July 1, 1933, had been paid; that the low price of agricultural products had prevented the owners of land within the irrigation district from meeting their assessments; that upon the assessment levied by the District in the year 1932 there was a delinquency of 47 per cent, and that since that year there had been levied only an assessment of sufficient amount to maintain and operate its works; that the District’s plan for the composition of its debts provided for the payment in cash of a sum equal to 59.978 cents for each dollar of the principal amount of its outstanding bonds in satisfaction of all amounts due; that creditors owning about 87 per cent, in the principal amount of the bonds had accepted the plan and consented to the filing of the petition; and that payment of the amount required was to be made from the proceeds of a loan which the Reconstruction Finance Corporation had agreed to make upon new refunding serial bonds equal to the amount borrowed and bearing interest at four per cent. The District Court approved the petition as filed in good faith and directed the creditors to show cause why an injunction should not issue staying the commencement of suits upon the securities affected by the plan. The appellees as bondholders appeared and moved to dismiss the petition upon the ground that Chapter X of the Bankruptcy Act violated the Fifth and Tenth Amendments of the Federal Constitution. It appeared from the return to the order to show cause that these creditors had obtained an alternative writ of mandate from the state court directing the county board of supervisors to levy an assessment upon the lands within the District sufficient to pay UNITED STATES v. BEKINS. 47 27 Opinion of the Court. the amounts due the complaining creditors, and that the proceedings in that court had been suspended pending the proceeding in the bankruptcy court. First. Chapter X of the Bankruptcy Act is limited to voluntary proceedings for the composition of debts. Aside from the question as to the power of the Congress to provide this method of relief for the described taxing agencies, it is well settled that a proceeding for composition is in its nature within the federal bankruptcy power. Compositions were authorized by the Bankruptcy Act of 1867, as amended by the Act of 1874, c. 390, § 17, 18 Stat. 182. It is unnecessary to the validity of such a proceeding that it should result in an adjudication of bankruptcy. In re Reiman, 20 Fed. Cas. 490, 496, 497; Continental National Bank v. Chicago, R. I. & P. Ry. Co., 294 U. S. 648, 672, 673. In the Continental Bank case, in the course of a full consideration of the scope of the federal bankruptcy power and of the evolution of its exercise, we said : “The constitutionality of the old provision for a composition is not open to doubt. In re Reiman, 20 Fed. Cas. 490, 496-497, cited with approval in Hanover National Bank v. Moyses, supra. [186 U. S. at p. 187.] That provision was there sustained upon the broad ground that the /subject of bankruptcies’ was nothing less than ‘the subject of the relations between an insolvent or nonpaying or fraudulent debtor, and his creditors, extending to his and their relief.’ That it was not necessary for the proceedings to be carried through in bankruptcy was held not to warrant the objection that the provision did not constitute a law on the subject of bankruptcies.” Second. It is unnecessary to consider the question whether Chapter X would be valid as applied to the irrigation district in the absence of the consent of the State which created it, for the State has given its consent. We think that this sufficiently appears from the statute of California enacted in 1934. Laws of 1934, Ex. Sess., 48 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. ch. 4. This statute (§1) adopts the definition of “taxing districts” as described in an amendment of the Bankruptcy Act, to wit Chapter IX approved May 24, 1934, and further provides that the Bankruptcy Act and “acts amendatory and supplementary thereto, as the same may be amended from time to time, are herein referred to as the ‘Federal Bankruptcy Statute’.” Chapter X of the Bankruptcy Act is an amendment and appears to be embraced within the state’s definition. We have not been referred to any decision to the contrary. Section 3 of the state act then provides that any taxing district in the State is authorized to file the petition mentioned in the “Federal Bankruptcy Statute.” Subsequent sections empower the taxing district upon the conditions stated to consummate a plan of readjustment in the event of its confirmation by the federal court. The statute concludes with a statement of the reasons for its passage, as follows: “There exist throughout the State of California economic conditions which make it impossible for property owners to pay their taxes and special assessments levied upon real or taxable property. The burden of such taxes and special assessments is so onerous in amount that great delinquencies have occurred in the collection thereof and seriously affect the ability of taxing districts to obtain the revenue necessary to conduct governmental functions and to pay obligations represented by bonds. It is essential that financial relief, as set forth in this act, be immediately afforded to such taxing districts in order to avoid serious impairment of their taxing systems, with consequent crippling of the local governmental functions of the State. This act will aid in accomplishing this necessary result and should therefore go into effect immediately.” While the facts thus stated related to conditions in California, similar conditions existed in other parts of the UNITED STATES v. BEKINS. 49 27 Opinion of the Court. country and it was this serious situation which led the Congress to enact Chapter IX and later Chapter X.1 Our attention has been called to the difference between § 80 (k) of Chapter IX and § 83 (i) of Chapter X of the Bankruptcy Act in the omission from the latter of the provision requiring the approval of the petition by a governmental agency of the State whenever such approval is necessary by virtue of the local law. We attach no importance to this omission. It is immaterial, if the consent of the State is not required to make the federal plan effective, and it is equally immaterial if the consent of the State has been given, as we think it has in this case. It should also be observed that Chapter X, § 83 (e) provides as a condition of confirmation of a plan of composition that it must appear that the petitioner “is authorized by law to take all action necessary to be taken by it to carry out the plan,” and, if the judge is not satisfied on that point as well as on the others mentioned, he must enter an order dismissing the proceeding. The phrase “authorized by law” manifestly refers to the law of the State. Third. We are thus brought to the inquiry whether the exercise of the federal bankruptcy power in dealing with a composition of the debts of the irrigation district, upon its voluntary application and with the State’s consent, must be deemed to be an unconstitutional interference with the essential independence of the State as preserved by the Constitution. In Ashton v. Cameron County District, supra, the court considered that the provisions of Chapter IX authorizing 1 See Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 1868 and H. R. 5950, 1934, 73rd Cong., 2nd Sess.; Hearings before the House Committee on the Judiciary on H. R. 1670, etc., 1933, 73rd Cong., 1st Sess.; Ashton v. Cameron County District, 298 U. S. 513, 533, 534. 81638°—38-4 50 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. the bankruptcy court to entertain proceedings for the “readjustment of the debts” of “political subdivisions” of a State “might materially restrict its control over its fiscal affairs,” and was therefore invalid; that if obligations of States or their political subdivisions might be subjected to the interference contemplated by Chapter IX, they would no longer be “free to manage their own affairs.” In enacting Chapter X the Congress was especially solicitous to afford no ground for this objection. In the report of the Committee on the Judiciary of the House of Representatives,2 which was adopted by the Senate Committee on the Judiciary,3 in dealing with the bill proposing to enact Chapter X, the subject was carefully considered. The Committee said: “Compositions are approvable only when the districts or agencies file voluntary proceedings in courts of bankruptcy, accompanied by plans approved by 51 per cent of all the creditors of the district or agency, and by evidence of good faith. Each proceeding is subject to ample notice to creditors, thorough hearings, complete investigations, and appeals from interlocutory and final decrees. The plan of composition cannot be confirmed unless accepted in writing by creditors holding at least 66% percent of the aggregate amount of the indebtedness of the petitioning district or taxing agency, and unless the judge is satisfied that the taxing district is authorized by law to carry out the plan, and until a specific finding by the court that the plan of composition is fair, equitable, and for the best interests of the creditors. . . . “The Committee on the Judiciary is not unmindful of the sweeping character of the holding of the Supreme Court above referred to [in the Ashton case], and believes 2 H. Rep. No. 517, 75th Cong., 1st Sess. 8 Sen. Rep. No. 911, 75th Cong., 1st Sess. UNITED STATES v. BEKINS. 51 27 Opinion of the Court. that H. R. 5969 is not invalid or contrary to the reasoning of the majority opinion. . . . “The bill here recommended for passage expressly avoids any restriction on the powers of the States or their arms of government in the exercise of their sovereign rights and duties. No interference with the fiscal or governmental affairs of a political subdivision is permitted. The taxing agency itself is the only instrumentality which can seek the benefits of the proposed legislation. No involuntary proceedings are allowable, and no control or jurisdiction over that property and those revenues of the petitioning agency necessary for essential governmental purposes is conferred by the bill. . . . “There is no hope for relief through statutes enacted by the States, because the Constitution forbids the passing of State laws impairing the obligations of existing contracts. Therefore, relief must come from Congress, if at all. The committee are not prepared to admit that the situation presents a legislative no-man’s land. ... It is the opinion of the committee that the present bill removes the objections to the unconstitutional statute, and gives a forum to enable those distressed taxing agencies which desire to adjust their obligations and which are capable of reorganization, to meet their creditors under necessary judicial control and guidance and free from coercion, and to affect such adjustment on a plan determined to be mutually advantageous.” We are of the opinion that the Committee’s points are well taken and that Chapter X is a valid enactment. The statute is carefully drawn so as not to impinge upon the sovereignty of the State. The State retains control of its fiscal affairs. The bankruptcy power is exercised in relation to a matter normally within its province and only in a case where the action of the taxing agency in carrying out a plan of composition approved by the bankruptcy court is authorized by state law. It is of the es- 52 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. sence of sovereignty to be able to make contracts and give consents bearing upon the exertion of governmental power. This is constantly illustrated in treaties and conventions in the international field by which governments yield their freedom of action in particular matters in order to gain the benefits which accrue from international accord. Oppenheim, International Law, 4th ed., vol. 1, § § 493, 494; Hyde, International Law, vol. 2, § 489; Perry v. United States, 294 U. S. 330, 353; Steward Machine Co. v. Davis, 301 U. S. 548, 597. The reservation to the States by the Tenth Amendment protected, and did not destroy, their right to make contracts and give consents where that action would not contravene the provisions of the Federal Constitution. The States with the consent of Congress may enter into compacts with each other and the provisions of such compacts may limit the agreeing States in the exercise of their respective powers. Const., Art. I, § 10, subd. 3. Poole v. Fleeger, 11 Pet. 185, 209; Rhode Island v. Massachusetts, 12 Pet. 657, 725; Hinderlider v. La Plata River Co., post, p. 92. The State is free to make contracts with individuals and give consents upon which the other contracting party may rely with respect to a particular use of governmental authority. See Fletcher v. Peck, 6 Cranch 87, 137; New Jersey v. Wilson, 7 Cranch 164; Dartmouth College v. Woodward, 4 Wheat. 518, 643, 644; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 549; Jefferson Branch Bank v. Skelly, 1 Black 436, 446. While the instrumentalities of the national government are immune from taxation by a State, the State may tax them if the national government consents (Baltimore National Bank v. State Tax Comm’n, 297 U. S. 209, 211, 212) and by a parity of reasoning the consent of the State could remove the obstacle to the taxation by the federal government of state agencies to which the consent applied. UNITED STATES v. BEKINS. 53 27 Opinion of the Court. Nor did the formation of an indestructible Union of indestructible States make impossible cooperation between the Nation and the States through the exercise of the power of each to the advantage of the people who are citizens of both. We had recent occasion to consider that question in the case of Steward Machine Co. v. Davis, supra, in relation to the operation of the Social Security Act of August 14, 1935. 49 Stat. 620. The question was raised with special emphasis in relation to § 904 of the statute and the parts of § 903, complementary thereto, by which the Secretary of the Treasury is authorized to receive and hold in the Unemployment Trust Fund all moneys deposited therein by a state agency for a state unemployment fund and to invest in obligations of the United States such portion of the Fund as is not in his judgment required to meet current withdrawals. The contention was that Alabama in consenting to that deposit had “renounced the plenitude of power inherent in her statehood.” 301 U. S. at pp. 595, 596. We found the contention to be unsound. As the States were at liberty upon obtaining the consent of Congress to make agreements with one another, we saw no room for doubt that they may do the like with Congress if the essence of their statehood is maintained without impairment. And we added that “Nowhere in our scheme of government—in the limitations express or implied of our federal constitution—do we find that she [the State] is prohibited from assenting to conditions that will assure a fair and just requital for benefits received.” In the instant case we have cooperation to provide a remedy for a serious condition in which the States alone were unable to afford relief. Improvement districts, such as the petitioner, were in distress. Economic disaster had made it impossible for them to meet their obligations. As the owners of property within the boundaries of the district could not pay adequate assessments, the power of 54 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. taxation was useless. The creditors of the district were helpless. The natural and reasonable remedy through composition of the debts of the district was not available under state law by reason of the restriction imposed by the Federal Constitution upon the impairment of contracts by state legislation. The bankruptcy power is competent to give relief to debtors in such a plight and, if there is any obstacle to its exercise in the case of the districts organized under state law it lies in the right of the State to oppose federal interference. The State steps in to remove that obstacle. The State acts in aid, and not in derogation, of its sovereign powers. It invites the intervention of the bankruptcy power to save its agency which the State itself is powerless to rescue. Through its cooperation with the national government the needed relief is given. We see no ground for the conclusion that the Federal Constitution, in the interest of state sovereignty, has reduced both sovereigns to helplessness in such a case. Fourth. As the bankruptcy power may be exerted to give effect to a plan for the composition of the debts of an insolvent debtor, we find no merit in appellant’s objections under the Fifth Amendment. In re Reiman, supra; Continental National Bank v. Chicago, R. I. & P. Ry. Co., supra. The judgment of the District Court is reversed and the cause is remanded for further proceedings in conformity with this opinion. Reversed. Mr. Justice McReynolds and Mr. Justice Butler are of the opinion that the principle approved in Ashton v. Cameron County District, 298 U. S. 513, is controlling here and requires affirmation of the questioned decree. Mr. Justice Cardozo took no part in the consideration and decision of this case. INTERSTATE CIRCUIT v. U. S. 55 Opinion of the Court. INTERSTATE CIRCUIT, INC., et al. v. UNITED STATES.* APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS. No. 709. Argued April 5, 1938.—Decided April 25, 1938. 1. Under Equity Rule 70^2 it is the duty of the District Court to make special, formal findings of fact, and state separately its conclusions of law thereon, determining all the issues in the case. The opinion of that court in this case was not a substitute. 2. Compliance with this rule is particularly important in an antitrust case which comes to this Court by direct appeal from the trial court. P. 56. Decree in 20 F. Supp. 868, set aside and cause remanded for statement of findings of fact and conclusions of law. Messrs. George S. Wright and Thomas D. Thacher for appellants. Solicitor General Jackson, with whom Assistant Attorney General Arnold and Mr. Charles H. Weston were on the brief, for the United States. Per Curiam. The Government brought this suit for an injunction against the carrying out of an alleged conspiracy, in restraint of interstate commerce, between distributors and exhibitors of motion picture films. The restraint was alleged to consist in provisions in license agreements which prevented any “feature picture” of the distributors, which had been shown “first-run” in a theater of the defendant exhibitor at an admission price of 40 cents or more, from thereafter being exhibited in the same locality at an admission price of less than 25 cents or on the same program with another feature picture. *Together with No. 710, Paramount Pictures Distributing Co. et al. v. United States, also on appeal from the District Court of the United States for the Northern District of Texas. 56 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. The evidence was presented by an agreed statement of certain facts and by oral testimony on behalf of each party. The District Court entered a final decree adjudging that in making the restrictive agreements the distributors had engaged in a conspiracy with the exhibitor, Interstate Circuit, Inc. and its officers, in violation of the Anti-Trust Act and granting a permanent injunction against the enforcement of the restrictions. 20 F. Supp. 868. The case comes here on direct appeal. Acts of Feb. 11, 1903, c. 544, 32 Stat. 823; February 13, 1925, c. 229. 28 U. S. C. 345. Equity Rule 70^ provides: “In deciding suits in equity, including those required to be heard before three judges, the court of first instance shall find the facts specially and state separately its conclusions of law thereon; . . . “Such findings and conclusions shall be entered of record and, if an appeal is taken from the decree, shall be included by the clerk in the record which is certified to the appellate court under rules 75 and 76.” The District Court did not comply with this rule. The court made no formal findings. The court did not find the facts specially and state separately its conclusions of law as the rule required. The statements in the decree that in making the restrictive agreements the parties had engaged in an illegal conspiracy were but ultimate conclusions and did not dispense with the necessity of properly formulating the underlying findings of fact. The opinion of the court was not a substitute for the required findings. A discussion of portions of the evidence and the court’s reasoning in its opinion do not constitute the special and formal findings by which it is the duty of the court appropriately and specifically to determine all the issues which the case presents. This is an essential aid to the appellate court in reviewing an equity case (Railroad Commission v. Maxey, 281 U. S. 82, and cases INTERSTATE CIRCUIT v. U. S. 57 55 Opinion of the Court. cited) and compliance with the rule is particularly important in an anti-trust case which comes to this Court by direct appeal from the trial court. The Government contends that the distributors were parties to a common plan constituting a conspiracy in restraint of commerce; that each distributor would benefit by unanimous action, whereas otherwise the restrictions would probably injure the distributors who imposed them, and that prudence dictated that “no distributor agree to impose the restrictions in the absence of agreement or understanding that his fellows would do likewise”; that the restraints were unreasonable and that they had the purpose and effect of raising and maintaining the level of admission prices; that even if the distributors acted independently and not as participants in a joint undertaking, still the restraints were unreasonable in their effect upon the exhibitor’s competitors. Appellants, asserting copyright privileges, contend that the restrictions were reasonable; that they were intended simply to protect the licensee from what would otherwise be an unreasonable interference by the distributors with the enjoyment of the granted right of exhibition; that there was no combination or conspiracy among the distributors; that it was to the independent advantage of each distributor to impose the restrictions in its own agreement and that the contention that less than substantially unanimous action would have injured the distributors in making such agreements was contrary to the evidence; and that the restrictions did not have an injurious effect. We intimate no opinion upon any of the questions raised by these rival contentions, but they point the importance of special and adequate findings in accordance with the prescribed equity practice. The decree of the District Court is set aside and the cause is remanded with directions to the court to state 58 OCTOBER TERM, 1937. Syllabus. 304 U.S. its findings of fact and conclusions of law as required by Equity Rule 70^. It is so ordered. Mr. Justice Stone and Mr. Justice Black think that the findings in the opinion and decree below, while informal, are sufficient for purposes of decision, and that the case should therefore be decided now without further proceedings below; the more so because of the public interest involved. Mr. Justice Cardozo took no part in the consideration and decision of this case. BALTIMORE & OHIO RAILROAD CO. et al. v. UNITED STATES et al. appeal from the district court of the united states FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 638. Argued March 30, 1938.—Decided April 25, 1938. In a suit to set aside orders of the Interstate Commerce Commission affecting rates on coke, held: 1. Unnecessary to pass upon the validity of an order canceling certain schedules and fixing future maximum rates, which order had later been supplemented by another of the orders attacked. P. 59. 2. A construction of an order, adopted by the Commission, and rendering it valid, is to be accepted rather than another construction which extends it beyond the Commission’s jurisdiction. P. 60. 3. Objections to an order, that it is not supported by substantial evidence, disregards ordinary standards for determining reasonableness of rates, is not supported by necessary findings, and represents a mere attempt to equalize geographical and transportation disadvantages, fortune and opportunities, are answered in this case by findings of the court below, adequately supported. P. 60. Affirmed, B. & 0. R. CO. v. U. S. 59 58 Opinion of the Court. Appeal from a decree dismissing a bill to set aside orders of the Interstate Commerce Commission. Mr. Leo P. Day, with whom Messrs. Guernsey Orcutt and Anthony P. Donadio were on the brief, for appellants. Mr. J. Stanley Payne, with whom Solicitor General Jackson, Assistant Attorney General Arnold, and Messrs. Elmer B. Collins and Daniel W. Knowlton were on the brief, for the United States et al. Mr. J. V. Norman, with whom Mr. Hugh White was on the brief, for the Alabama Iron & Steel Shippers Conference. Messrs. William H. Swiggart, Charles Clark, and Elmer A. Smith submitted on brief for the Cincinnati, N. 0. & T. P. Ry Co. et al. , Mr. Justice McReynolds delivered the opinion of the Court. Appellants, nineteen railroads operating within what is known as Central Territory—Ohio, Indiana, Illinois and Michigan—by their bill filed in the District Court, Northern District of Illinois, July 22,1936, challenged the validity of two Interstate Commerce Commission orders affecting the rate structure on coke moving into that territory from southern points. Questions in respect of these rates have often been before the Commission. The court made findings of fact upon the evidence and dismissed the bill without opinion. The first challenged order, dated March 11, 1935, followed an earlier suspension of certain proposed schedules and an investigation. It cancelled these schedules and determined what thereafter would be maximum reasonable rates upon a mileage basis. Subsequently, the proceed 60 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. ings having been reopened, this order was modified and reaffirmed. In the circumstances, we think the court below properly declined to pass upon its validity. The second challenged order, April 30, 1936, followed one entered April 15, 1936, which upon petition and replies reopened the proceedings for reconsideration on the record as it then stood. The later order affirmed former findings that the schedules suspended by the one of March 11, 1935, had not been justified, and prescribed future maximum rates upon a mileage basis. These were lower (some ten per cent.) than those authorized prior to 1935. Here, counsel specially insist this second order exceeded the jurisdiction of the Commission since it undertook to determine rates concerning which there had been no proper notice or opportunity for hearing. But this contention rests upon an assumed construction of the order not obviously correct. The Commission has not so construed it, nor has that body been asked so to do, or for any further action in respect of it. Another construction brings the order clearly within the jurisdiction assumed by the Commission. In the circumstances appellants cannot prevail on this point. Appellants further urge that the order is contrary to the weight of the evidence, not supported by substantial evidence, disregards ordinary standards for determining reasonableness of rates, is not supported by necessary findings, and represents a mere attempt to equalize geographical and transportation disadvantages, fortune and opportunities. The findings by the court below we think are adequately supported by the record. They negative these claims and leave no sufficient basis for our interference with the action there taken. The challenged judgment must be Affirmed. Mr. Justice Black and Mr. Justice Cardozo took no part in the consideration or decision of this cause. ARKANSAS GAS CO. v. DEP’T. 61 Counsel for Parties. ARKANSAS LOUISIANA GAS CO. v. DEPARTMENT OF PUBLIC UTILITIES et al. APPEAL FROM THE SUPREME COURT OF ARKANSAS. No. 645. Argued March 31, 1938.—Decided April 25, 1938. 1. A corporation acquired natural gas in Louisiana, piped it into Arkansas, and there disposed of it, partly By selling it as a public utility to consumers in cities—an activity carried on through a special department of the corporate business—and partly by sales to selected industrial and other customers, under special contracts made in Louisiana, delivery of gas being made to them directly from the main pipeline, or through connecting spurs. Held, that a general order of an Arkansas state agency requiring all public utilities to file schedules of their rates is not unconstitutional when applied to the sales under the special contracts even though they be sales in interstate commerce. P. 62. In the circumstances it may be highly important for the State, which regulates local rates, to have information of all the operations. Merely requiring comprehensive reports of such operations would not materially burden or unduly interfere with interstate commerce. 2. The Court is not called upon to decide whether the sales under the special contracts are subject to rate regulation by Arkansas. P. 63. 194 Ark. 354; 108 S. W. 2d 586, affirmed. Appeal from a judgment which reversed that of a court of first instance holding invalid an order of the State Department of Public Utilities. The case got into the latter court by petition for a review of the order. Mr. H. C. Walker, Jr., with whom Mr. J. Merrick Moore 'was on the brief, for appellant. Messrs. Thomas Fitzhugh and John E. Benton for appellees. Mr. P. A. Lasley was on a brief with Mr. Fitzhugh. By leave of Court, Mr. Clyde 8. Bailey and Mr. Benton filed a brief on behalf of the National Association of Railroad and Utilities Commissioners, as amicus curiae, in support of appellees. 62 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. Mr. Justice McReynolds delivered the opinion of the Court. Appellant, a Delaware corporation, lawfully purchases and produces natural gas in Texas and Louisiana and thereafter transports and delivers it through pipe lines to selected industries and public utility distributing corporations—so-called “pipe line customers”—at points in Arkansas. These deliveries are made under contracts entered into at Shreveport, Louisiana, and are effected by tapping a main pipe line or through connecting spurs. They amount annually to some eight billion cubic feet. Appellant, by admission, also maintains a distribution department, through which it acts as a public utility, for the local sale and distribution of gas in many Arkansas towns; but this organization is distinct from the one which supplies pipe line customers. The Arkansas Department of Public Utilities, proceeding under a local statute, in April 1935 issued a general order (No. 13) requiring public utilities to file, upon specified forms, schedules of rates, charges, etc. Appellant presented such schedules for local utility service in the State, but declined to file copies of contracts, agreements, etc., for sales and deliveries to pipe line customers. Thereupon the Department issued an order to show cause for this failure. In response appellant “set forth that the sale and delivery of gas from its Texas and Louisiana fields to its pipe line and industrial customers in Arkansas constitute interstate commerce, and that in making such sales and deliveries it was and is not acting as a public utility, and that accordingly the sale and delivery of said gas and the rates, schedules and charges upon which the same is delivered and sold were and are not subject to the jurisdiction of the Department and are ARKANSAS GAS CO. v. DEP’T. 63 61 Opinion of the Court. beyond its power to regulate, and that Order No. 13 is not legally applicable to said business.” After a hearing upon the citation and response and much evidence, April 30, 1936, the Department ordered compliance with the general order. The matter then went for review to the Circuit Court, Pulaski County, and it held the challenged order invalid. Upon appeal, the Supreme Court ruled that the sales and deliveries in question were not free from state regulation because parts of interstate commerce, and directed compliance with the Department’s general order. The question for present determination is whether this general order, valid under the laws of the State, which only compels appellant to file certain designated information, amounts to an infringement of any right or privilege guaranteed to it by the Federal Constitution. And to this a negative answer must be given. If, as claimed, certain of appellant’s activities in Arkansas are parts of interstate commerce, that alone (and no other defense is relied upon) would not suffice to justify refusal to furnish the information presently demanded by the State. Appellant operates locally at many places in Arkansas, also delivers within the State great quantities of gas said to move without interruption from another State. In such circumstances it may be highly important for the state authorities to have information concerning all its operations. We are unable to see that merely to require comprehensive reports covering all of them would materially burden or unduly interfere with the free flow of commerce between the States. In case the Department undertakes by some future action to impose what may be deemed unreasonable restraint or burden upon appellant’s interstate business, through rate regulation or otherwise, that may be con 64 OCTOBER TERM, 1937. Syllabus. 304 U. S. tested. The rule here often announced is that no constitutional question will be passed upon unless necessary for disposition of the pending cause. The judgment of the Supreme Court must be Affirmed. Mr. Justice Cardozo took no part in the consideration or decision of this cause. ERIE RAILROAD CO. v. TOMPKINS. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 367. Argued January 31, 1938.—Decided April 25, 1938. 1. The liability of a railroad company for injury caused by negligent operation of its train to a pedestrian on a much-used, beaten path on its right-of-way along and near the rails, depends, in the absence of a federal or state statute, upon the unwritten law of the State where the accident occurred. Pp. 71 et seq. 2. A federal court exercising jurisdiction over such a case on, the ground of diversity of citizenship, is not free to treat this question as one of so-called “general law,” but must apply the state law as declared by the highest state court. Swift v. Tyson, 16 Pet. 1, overruled. Id. 3. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or “general,” whether they be commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern. P. 78. 4. In disapproving the doctrine of Swift v. Tyson, the Court does not hold unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. It merely declares that by applying the doctrine of that case rights which are reserved by the Constitution to the several States have been invaded. P. 79. 90 F. 2d 603, reversed. ERIE R. CO. v. TOMPKINS. 65 64 Argument for Petitioner. Certiorari, 302 U. S. 671, to review the affirmance of a judgment recovered against the railroad company in an action for personal injuries. The accident was in Pennsylvania. The action was in New York, jurisdiction being based on diversity of citizenship. Mr. Theodore Kiendl, with whom Messrs. William C. Cannon and Harold W. Bissell were on the brief, for petitioner. The Pennsylvania decisions denying permissive rights on longitudinal pathways as distinguished from crossings should have received due consideration in recognition of the elementary principle that the law to be applied is the lex loci delicti. Restatement, Conflict of Laws, § 380, p. 462. Whatever difficulties there may be in ascertaining the pertinent Pennsylvania law or in fixing the extent to which the federal courts are bound to recognize the pertinent decisions of the Pennsylvania courts, it is settled beyond question that it is the Pennsylvania law which the federal courts, quite as truly as the state courts, are bound to ascertain and apply. There is no such thing as a federal common law applicable in such cases. Bucher v. Cheshire Railroad Co., 125 U. S. 555, 583-584; Smith v. Alabama, 124 U. S. 465, 478-479. See also Carroll County v. Smith, 111 U.S. 556, 563; McGuire v. Sherwin-Williams Co., 87 F. 2d 112; Boston & Maine R. v. Breslin, 80 F. 2d 749, (cert, denied,- 297 U. S. 715); Moore v. Backus, 78 F. 2d 571, (cert, denied, 296 U. S. 640); Reed & Barton Corp. v. Maas, 73 F. 2d 359; Public Service Ry. Co. v. Wurst horn, 278 F. 408, (cert, denied, 259 U. S. 585); Keystone Wood Co. v. Susquehanna Boom Co., 240 F. 296, (cert, denied, 243 U. S. 655); Snare & Triest Co. v. Friedman, 169 F. 1, 11, (cert, denied, 214 U. S. 518). Although each State unquestionably has the power to determine the particular conception of the common law 31638°—38-------5 66 OCTOBER TERM, 1937. Argument for Petitioner. 304U.S. adopted by it, and although the common law is acclaimed as being adaptable to changing conditions, the opinion of the court below is an unqualified pronouncement that it is beyond the power of the Pennsylvania courts to determine or evolve the law of Pennsylvania as to permissive rights on railroad rights-of-way in Pennsylvania. It would seem clear that this is a sweeping repudiation of the principle that the law to be applied is that of the State. The Pennsylvania decisions should have been recognized as controlling because they had established the rule of law with sufficient definiteness and finality to constitute it a local rule of property, action or conduct, even though the question might otherwise have been regarded as mainly one of general law. We do not question the finality of the holding of this Court in Swtft n. Tyson, 16 Pet. 1, that the “laws of the several States” referred to in the Rules of Decision Act do not include state court decisions as such. But whether by virtue of the Act or of comity, it is well settled that such decisions are pertinent and, under certain circumstances, controlling in ascertaining or determining the law of the State. It would be idle to deny that this Court, in matters of a general nature, has exhibited a marked reluctance to recognize nonconformist state rules as settling the question of state law. But even in cases where an asserted rule of the state courts has been rejected, it has been stated or implied that the asserted rule would govern if sufficiently established. Expressions to this effect occur with such frequency and consistency that they must be recognized as forming a part of the general doctrine on the subject. As a matter of comity at least and by virtue of the Rules of Decision Act as well, the federal courts are bound to recognize an asserted rule of state law where ERIE R. CO. v. TOMPKINS. 67 64 Argument for Petitioner. the evidence in the form of state decisions is sufficiently conclusive, in other words, when the asserted rule is established with sufficient definiteness and finality. The implication from the Swift case would seem to be that the federal courts would follow the state rule if established with such definiteness and finality that the state courts would no longer resort to the general sources of the common law or to general reasoning and legal analogies, but would regard the question as foreclosed in the State. This Court has so indicated in many cases where the conclusion was that there was no state rule so firmly established as to exclude resort to general principles. Carpenter v. Providence Washington Ins. Co., 16 Pet. 495; Lane v. Vick, 3 How. 464; Chicago v. Robbins, 2 Black 418; Yates v. Milwaukee, 10 Wall. 497; New York Central R. Co. v. Lockwood, 17 Wall. 357; Burgess v. Seligman, 107 U. S. 20; Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368; Barber v. Pittsburgh, F. W. & C. Ry. Co., 166 U. S. 83; Kuhn v. Fairmont Coal Co., 215 U. S. 349; Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518. Obviously, a case is not regarded as depending “upon the doctrines of commercial law and general jurisprudence” when the applicable state rule is established by state statute, even though the statute deals with a matter which but for the statute would unquestionably come within the scope of commercial law and general jurisprudence. Burns Mortgage Co. v. Fried, 292 U. S. 487; Marine Bank v. Kalt-Zimmers Co., 293 U. S. 357. It would seem equally obvious that a case is not to be regarded as depending “upon the doctrines of commercial and general jurisprudence” when there is an applicable state rule of property, action or conduct, definitely and finally established as such by decisions of the highest state court, even though the decisions deal with a matter 68 OCTOBER TERM, 1937. Argument for Respondent. 304 U. S. which but for such established rule would unquestionably come within the scope of commercial law and general jurisprudence. Snare & Triest Co. v. Friedman, 169 F. 1, 12; 214 U. S. 518; Bucher v. Cheshire Railroad Co., 125 U. S. 555; Byrne v. Kansas City, Ft. S. & M. R. Co., 61 F. 605. The Pennsylvania decisions denying permissive rights on longitudinal pathways, as distinguished from crossings, declare a Pennsylvania rule sufficiently local in nature to be controlling, even though more definiteness and finality might be required in a rule of a more general nature. It rests expressly on a local policy relating to the efficient operation of railroads, a policy which presumably was dictated by local conditions. Mr. Fred H. Rees, with whom Messrs. Alexander L. Strouse and William Walsh were on the brief, for respondent. In cases involving questions of general law, federal courts will exercise their independent judgment. This doctrine, which is now elementary, found its inception in Swift v. Tyson, 16 Pet. 1; has constantly been reaffirmed by this Court and was most recently applied in the case of Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518. Decisions of this Court, as well as logic and reason, have established that questions of the type here presented, involving railroad accidents, are questions of general law, upon which independent judgment may be exercised by federal courts. [Citing Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, and many other cases.] There is no doctrine that where a rule is well established in a State, the question is one of local law and federal courts must follow the rule even though the rule might otherwise be regarded as one of general law. Even if a question of local law were here involved, the same result must be reached, since petitioner relies upon ERIE R. CO. v. TOMPKINS. 69 64 Opinion of the Court. a solitary Pennsylvania decision, clearly contrary to the weight of Pennsylvania decisions, and of doubtful applicability to the facts of the case at bar. Mr. Justice Brandeis delivered the opinion of the Court. The question for decision is whether the oft-challenged doctrine of Swift v. Tyson1 shall now be disapproved. Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation, or maintenance, of the train; that he was rightfully on the premises as licensee because on a commonly used beaten footpath which ran for a short distance alongside the tracks; and that he was struck by something which looked like a door projecting from one of the moving cars. To enforce that claim he brought an action in the federal court for southern New York, which had jurisdiction because the company is a corporation of that State. It denied liability; and the case was tried by a jury. 116 Pet. 1 (1842). Leading cases applying the doctrine are collected in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518, 530, 531. Dissent from its application or extension was expressed as early as 1845 by Mr. Justice McKinley (and Mr. Chief Justice Taney) in Lane v. Vick, 3 How. 464, 477. Dissenting opinions were also written by Mr. Justice Daniel in Rowan v. Runnels, 5 How. 134, 140; by Mr. Justice Nelson in Williamson v. Berry, 8 How. 495, 550, 558; by Mr. Justice Campbell in Pease v. Peck, 18 How. 595, 599, 600; and by Mr. Justice Miller in Gelpcke v. City of Dubuque, 1 Wall. 175, 207, and Butz v. City of Muscatine, 8 Wall. 575, 585. Vigorous attack upon the entire doctrine was made by Mr. Justice Field in Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 390, and by Mr. Justice Holmes in Kuhn v. Fairmont Coal Co., 215 U. S. 349, 370, and in the Taxicab case, 276 U. S. at 532. 70 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. The Erie insisted that its duty to Tompkins was no greater than that owed to a trespasser. It contended, among other things, that its duty to Tompkins, and hence its liability, should be determined in accordance with the Pennsylvania law; that under the law of Pennsylvania, as declared by its highest court, persons who use pathways along the railroad right of way—that is a longitudinal pathway as distinguished from a crossing—are to be deemed trespassers; and that the railroad is not liable for injuries to undiscovered trespassers resulting from its negligence, unless it be wanton or wilful. Tompkins denied that any such rule had been established by the decisions of the Pennsylvania courts; and contended that, since there was no statute of the State on the subject, the railroad’s duty and liability is to be determined in federal courts as a matter of general law. The trial judge refused to rule that the applicable law precluded recovery. The jury brought in a verdict of $30,000; and the judgment entered thereon was affirmed by the Circuit Court of Appeals, which held, 90 F. 2d 603, 604, that it was unnecessary to consider whether the law of Pennsylvania was as contended, because the question was one not of local, but of general, law and that “upon questions of general law the federal courts are free, in the absence of a local statute, to exercise their independent judgment as to what the law is; and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law. . . . Where the public has made open and notorious use of a railroad right of way for a long period of time and without objection, the company owes to persons on such permissive pathway a duty of care in the operation of its trains. ... It is likewise generally recognized law that a jury may find that negligence exists toward a pedestrian using a permissive path on the railroad right of way if he is hit by some object projecting from the side of the train.” ERIE R. CO. v. TOMPKINS. 71 64 Opinion of the Court. The Erie had contended that application of the Pennsylvania rule was required, among other things, by § 34 of the Federal Judiciary Act of September 24, 1789, c. 20, 28 U. S. C. § 725, which provides: “The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.” Because of the importance of the question whether the federal court was free to disregard the alleged rule of the Pennsylvania common law, we granted certiorari. First. Swift v. Tyson, 16 Pet. 1, 18, held that federal courts exercising jurisdiction on the ground of diversity of citizenship need not, in matters of general jurisprudence, apply the unwritten law of the State as declared by its highest court; that they are free to exercise an independent judgment as to what the common law of the State is—or should be; and that, as there stated by Mr. Justice Story: “the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was intended to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or 72 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. instrument, or what is the just rule furnished by the principles of commercial law to govern the case.” The Court in applying the rule of § 34 to equity cases, in Mason v. United States, 260 U. S. 545, 559, said: “The statute, however, is merely declarative of the rule which would exist in the absence of the statute.” 2 The federal courts assumed, in the broad field of “general law,” the power to declare rules of decision which Congress was confessedly without power to enact as statutes. Doubt was repeatedly expressed as to the correctness of the construction given § 34,3 and as to the soundness of the rule which it introduced.4 But it was the more recent research of a competent scholar, who examined the original document, which established that the construction given to it by the Court was erroneous; and that the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling, 2 In Hawkins v. Barney’s Lessee, 5 Pet. 457, 464, it was stated that § 34 “has been uniformly held to be no more than a declaration of what the law would have been without it: to wit, that the lex loci must be the governing rule of private right, under whatever jurisdiction private right comes to be examined.” See also Bank of Hamilton v. Dudley’s Lessee, 2 Pet. 492, 525. Compare Jackson v. Chew, 12 Wheat. 153, 162, 168; Livingston v. Moore, 7 Pet. 469, 542. 3 Pepper, The Border Land of Federal and State Decisions (1889) 57; Gray, The Nature and Sources of Law (1909 ed.) §§ 533—34; Trickett, Non-Federal Law Administered in Federal Courts (1906) 40 Am. L. Rev. 819, 821-24. 4 Street, Is There a General Commercial Law of the United States (1873) 21 Am. L. Reg. 473; Homblower, Conflict between State and Federal Decisions (1880) 14 Am. L. Rev. 211; Meigs, Decisions of the Federal Courts on Questions of State Law (1882) 8 So. L. Rev. (n. s.) 452, (1911) 45 Am. L. Rev. 47; Heiskell, Conflict between Federal and State Decisions (1882) 16 Am. L. Rev. 743; Rand, Swift v. Tyson versus Gelpcke v. Dubuque (1895) 8 Harv. L. Rev. 328, 341-43; Mills, Should Federal Courts Ignore State Laws (1900) 34 Am. L. Rev. 51; Carpenter, Court Decisions and the Common Law (1917) 17 Col. L. Rev. 593, 602-03. ERIE R. CO. v. TOMPKINS. 73 64 Opinion of the Court. the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the State, unwritten as well as written.5 Criticism of the doctrine became widespread after the decision of Black & White Taxicab Co. N. Brown & Yellow Taxicab Co., 276 U. S. 518.6 There, Brown and Yellow, a Kentucky corporation owned by Kentuckians, and the Louisville and Nashville Railroad, also a Kentucky corporation, wished that the former should have the exclusive privilege of soliciting passenger and baggage transportation at the Bowling Green, Kentucky, railroad station; and that the Black and White, a competing Kentucky corporation, should be prevented from interfering with that privilege. Knowing that such a contract would be void under the common law of Kentucky, it was arranged that the Brown and Yellow reincorporate under the law of Tennessee, and that the contract with the railroad should be executed there. The suit was then brought by the Tennessee corporation in the federal court for western Kentucky to enjoin competition by the Black and White; an injunction issued by the District Court 5 Charles Warren, New Light on the History of the Federal Judiciary Act of 1789 (1923 ) 37 Harv. L. Rev. 49, 51-52, 81-88, 108. ® Shelton, Concurrent Jurisdiction—Its Necessity and its Dangers (1928) 15 Va. L. Rev. 137; Frankfurter, Distribution of Judicial Power Between Federal and State Courts (1928) 13 Corn. L. Q. 499, 524r-30; Johnson, State Law and the Federal Courts (1929) 17 Ky. L. J. 355; Fordham, The Federal Courts and the Construction of Uniform State Laws (1929) 7 N. C. L. Rev. 423; Dobie, Seven Implications of Swift v. Tyson (1930) 16 Va. L. Rev. 225; Dawson, Conflict of Decisions between State and Federal Courts in Kentucky, and the Remedy (1931) 20 Ky. L. J. 1; Campbell, Is Swift v. Tyson an Argument for or against Abolishing Diversity of Citizenship Jurisdiction (1932) 18 A. B. A. J. 809; Ball, Revision of Federal Diversity Jurisdiction (1933) 28 Ill. L. Rev. 356, 362-64; Fordham, Swift v. Tyson and the Construction of State Statutes (1935) 41 W. Va. L. Q. 131. 74 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. wag sustained by the Court of Appeals; and this Court, citing many decisions in which the doctrine of Swift v. Tyson had been applied, affirmed the decree. Second. Experience in applying the doctrine of Swift v. Tyson, had revealed its defects, political and social; and the benefits expected to flow from the rule did not accrue. Persistence of state courts in their own opinions on questions of common law prevented uniformity;7 and the impossibility of discovering a satisfactory line of demarcation between the province of general law and that of local law developed a new well of uncertainties.8 On the other hand, the mischievous results of the doctrine had become apparent. Diversity of citizenship jurisdiction was conferred in order to prevent apprehended discrimination in state courts against those not citizens of the State. Swift v. Tyson introduced grave discrimination by non-citizens against citizens. It made rights enjoyed under the unwritten “general law” vary according to whether enforcement was sought in the state 7 Compare Mr. Justice Miller in Gelpcke v. City of Dubuque, 1 Wall. 175, 209. The conflicts listed in Holt, The Concurrent Jurisdiction of the Federal and State Courts (1888) 160 et seq. cover twenty-eight pages. See also Frankfurter, supra note 6, at 524r-30; Dawson, supra note 6; Note, Aftermath of the Supreme Court’s Stop, Look and Listen Rule (1930) 43 Harv. L. Rev. 926; cf. Yntema and Jaffin, Preliminary Analysis of Concurrent Jurisdiction (1931) 79 U. of Pa. L. Rev. 869, 881-86. Moreover, as pointed out by Judge Augustus N. Hand in Cole v. Pennsylvania R. Co., 43 F. 2d 953, 956-57, decisions of this Court on common law questions are less likely than formerly to promote uniformity. 8 Compare 2 Warren, The Supreme Court in United States History (rev. ed. 1935) 89: “Probably no decision of the Court has ever given rise to more uncertainty as to legal rights; and though doubtless intended to promote uniformity in the operation of business transactions, its chief effect has been to render it difficult for business men to know in advance to what particular topic the Court would apply the doctrine. . . .” The Federal Digest, through the 1937 volume, lists nearly 1000 decisions involving the distinction between questions of general and of local law. ERIE R. CO. v. TOMPKINS. 75 64 Opinion of the Court. or in the federal court; and the privilege of selecting the court in which the right should be determined was conferred upon the non-citizen? Thus, the doctrine rendered impossible equal protection of the law. In attempting to promote uniformity of law throughout the United States, the doctrine had prevented uniformity in the administration of the law of the State. The discrimination resulting became in practice far-reaching. This resulted in part from the broad province accorded to the so-called “general law” as to which federal courts exercised an independent judgment.* 10 11 In addition to questions of purely commercial law, “general law” was held to include the obligations under contracts entered into and to be performed within the State,11 the extent to which a carrier operating within a State may stipulate for exemption from liability for his own negligence or that of his employee;12 the liability for torts committed within the State upon persons resident or property located there, even where the question of lia- ^It was even possible for a non-resident plaintiff defeated on a point of law in the highest court of a State nevertheless to win out by taking a nonsuit and renewing the controversy in the federal court. Compare Gardner v. Michigan Cent. R. Co., 150 U. S. 349; Harrison v. Foley, 206 Fed. 57 (C. C. A. 8); Interstate Realty & Inv. Co. v. Bibb County, 293 Fed. 721 (C. C. A. 5); see Mills, supra note 4, at 52. 10 For a recent survey of the scope of the doctrine, see Sharp & Brennan, The Application of the Doctrine of Swift v. Tyson since 1900 (1929) 4 Ind. L. J. 367. 11 Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518; Rowan v. Runnels, 5 How. 134, 139; Boyce v. Tabb, 18 Wall. 546, 548; Johnson v. Chas. D. Norton Co., 159 Fed. 361 (C. C. A. 6); Keene Five Cent Sav. Bank v. Reid, 123 Fed. 221 (C. C. A. 8). 12 Railroad Co. v. Lockwood, 17 Wall. 357, 367-68; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 443; Eels v. St. Louis, K. & N. W. Ry. Co., 52 Fed. 903 (C. C. S. D. Iowa); Fowler v. Pennsylvania R. Co., 229 Fed. 373 (C. C. A. 2). 76 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. bility depended upon the scope of a property right conferred by the State;13 and the right to exemplary or punitive damages.14 Furthermore, state decisions construing local deeds,15 mineral conveyances,16 and even devises of real estate17 were disregarded.18 In part the discrimination resulted from the wide range of persons held entitled to avail themselves of the federal rule by resort to the diversity of citizenship jurisdiction. Through this jurisdiction individual citizens willing to remove from their own State and become citizens of another might avail themselves of the federal rule.19 And, without even change of residence, a corporate citizen of 13 Chicago v. Robbins, 2 Black 418, 428. Compare Yates v. Milwaukee, 10 Wall. 497, 506-07; Yeates n. Illinois Cent. R. Co., 137 Fed. 943 (C. C. N. D. Ill.); Curtis v. Cleveland, C. C. & St. L. Ry. Co., 140 Fed. 777 (C. C. E. D. Ill.). See also Hough v. Railway Co., 100 U. S. 213, 226; Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368; Gardner n. Michigan Cent. R. Co., 150 U. S. 349, 358; Beutler v. Grand Trunk Junction Ry. Co., 224 U. S. 85; Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66; Pokora v. Wabash Ry. Co., 292 U. S. 98; Cole v. Pennsylvania R. Co., 43 F. (2d) 953 (C. C. A. 2). 14:Lake Shore & M. S. Ry. Co. n. Prentice, 147 U. S. 101, 106; Norfolk & P. Traction Co. v. Miller, 174 Fed. 607 (C. C. A. 4); Greene v. Keithley, 86 F. (2d) 239 (C. C. A. 8). 15 Foxcroft n. Mallet, 4 How. 353, 379; Midland Valley R. Co. v. Sutter, 28 F. (2d) 163 (C. C. A. 8); Midland Valley R. Co. v. Jarvis, 29 F. (2d) 539 (C. C. A. 8). 16 Kuhn v. Fairmont Coal Co., 215 U. S. 349; Mid-Continent Petroleum Corp. v. Sauder, 67 F. (2d) 9, 12 (C. C. A. 10), reversed on other grounds, 292 U. S. 272. 17 Lane v. Vick, 3 How. 464, 476; Barber v. Pittsburgh, F. W. & C. R. Co., 166 U. S. 83, 99-100; Messinger v. Anderson, 171 Fed. 785, 791-792 (C. C. A. 6), reversed on other grounds, 225 U. S. 436; Knox & Lewis v. Alwood, 228 Fed. 753 (S. D. Ga.). 18 Compare, also, Williamson v. Berry, 8 How. 495; Watson v. Tarpley, 18 How. 517; Gelpcke n. City of Dubuque, 1 Wall. 175. wSee Cheever v. Wilson, 9 Wall. 108, 123; Robertson v. Carson, 19 Wall. 94, 106-07; Morris v. Gilmer, 129 U. S. 315, 328; Dickerman v. Northern Trust Co., 176 U. S. 181, 192; Williamson v. Osen-ton, 232 U. S. 619, 625. ERIE R. CO. v. TOMPKINS. 77 64 Opinion of the Court. the State could avail itself of the federal rule by re-incorporating under the laws of another State, as was done in the Taxicab case. The injustice and confusion incident to the doctrine of Swift v. Tyson have been repeatedly urged as reasons for abolishing or limiting diversity of citizenship jurisdiction.20 Other legislative relief has been proposed.21 If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a century.22 But the uncon- 20 See, e. g., Hearings Before a Subcommittee of the Senate Committee on the Judiciary on S. 937, S. 939, and S. 3243, 72d Cong., 1st Sess. (1932) 6-8; Hearing Before the House Committee on the Judiciary on H. R. 10594, H. R. 4526, and H. R. 11508, 72d Cong., 1st Sess., ser. 12 (1932) 97-104; Sen. Rep. No. 530, 72d Cong., 1st Sess. (1932) 4-6; Collier, A Plea Against Jurisdiction Because of Diversity (1913) 76 Cent. L. J. 263, 264, 266; Frankfurter, supra note 6; Ball, supra note 6; Warren, Corporations and Diversity of Citizenship (1933) 19 Va. L. Rev. 661, 686. 21 Thus, bills which would abrogate the doctrine of Swift v. Tyson have been introduced. S. 4333, 70th Cong., 1st Sess.; S. 96, 71st Cong., 1st Sess.; H. R. 8094, 72d Cong., 1st Sess. See also Mills, supra note 4, at 68-69; Dobie, supra note 6, at 241; Frankfurter, supra note 6, at 530; Campbell, supra note 6, at 811. State statutes on conflicting questions of “general law” have also been suggested. See Heiskell, supra note 4, at 760; Dawson, supra note 6; Dobie, supra note 6, at 241. 22 The doctrine has not been without defenders. See Eliot, The Common Law of the Federal Courts (1902) 36 Am. L. Rev. 498, 523-25; A. B. Parker, The Common Law Jurisdiction of the United States Courts (1907) 17 Yale L. J. 1; Schofield, Swift v. Tyson: Uniformity of Judge-Made State Law in State and Federal Courts (1910) 4 Ill. L. Rev. 533; Brown, The Jurisdiction of the Federal Courts Based on Diversity of Citizenship (1929) 78 U. of Pa. L. Rev. 179, 189-91; J. J. Parker, The Federal Jurisdiction and Recent Attacks Upon It (1932) 18 A. B. A. J. 433, 438; Yntema, The Jurisdiction of the Federal Courts in Controversies Between Citizens of Different States (1933) 19 A. B. A. J. 71, 74-75; Beutel, Common Law Judicial Technique and the Law of Negotiable Instruments— Two Unfortunate Decisions (1934) 9 Tulane L. Rev. 64. 78 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. stitutionality of the course pursued has now been made clear and compels us to do so. Third. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or “general,” be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. As stated by Mr. Justice Field when protesting in Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 401, against ignoring the Ohio common law of fellow servant liability: “I am aware that what has been termed the general law of the country—which is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject—has been often advanced in judicial opinions of this court to control a conflicting law of a State. I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a State in conflict with their views. And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same doctrine. But, notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, the Constitution of the United States, which recognizes and preserves the autonomy and independence of the States—independence in their legislative and inde- ERIE R. CO. v. TOMPKINS. 79 64 Opinion of the Court. pendence in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence.” The fallacy underlying the rule declared in Swift n. Tyson is made clear by Mr. Justice Holmes.23 The doctrine rests upon the assumption that there is “a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute,” that federal courts have the power to use their judgment as to what the rules of common law are; and that in the federal courts “the parties are entitled to an independent judgment on matters of general law”: “but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else. . . . “the authority and only authority is the State, and if that be so, the voice adopted by the State as its own [whether it be of its Legislature or of its Supreme Court] should utter the last word.” Thus the doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, “an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.” In disapproving that doctrine we do not hold Kuhn v. Fairmont Coal Co., 215 U. S. 349, 370-372; Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518, 532-36. 80 OCTOBER TERM, 1937. Opinion of Butler, J. 304U.S. unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. We merely declare that in applying the doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several States. Fourth. The defendant contended that by the common law of Pennsylvania as declared by its highest court in Falchetti v. Pennsylvania R. Co., 307 Pa. 203; 160 A. 859, the only duty owed to the plaintiff was to refrain from wilful or wanton injury. The plaintiff denied that such is the Pennsylvania law.24 In support of their respective contentions the parties discussed and cited many decisions of the Supreme Court of the State. The Circuit Court of Appeals ruled that the question of liability is one of general law; and on that ground declined to decide the issue of state law. As we hold this was error, the judgment is reversed and the case remanded to it for further proceedings in conformity with our opinion. Reversed. Mr. Justice Cardozo took no part in the consideration or decision of this case. Mr. Justice Butler. The case presented by the evidence is a simple one. Plaintiff was severely injured in Pennsylvania. While walking on defendant’s right of way along a much-used path at the end of the cross ties of its main track, he came into collision with an open door swinging from the side of a car in a train going in the opposite direction. Having been warned by whistle and headlight, he saw the locomo- 24 Tompkins also contended that the alleged rule of the Falchetti case is not in any event applicable here because he was struck at the intersection of the longitudinal pathway and a transverse crossing. The court below found it unnecessary to consider this contention, and we leave the question open. ERIE R. CO. v. TOMPKINS. 81 64 Opinion of Butler, J. tive approaching and had time and space enough to step aside and so avoid danger. To justify his failure to get out of the way, he says that upon many other occasions he had safely walked there while trains passed. Invoking jurisdiction on the ground of diversity of citizenship, plaintiff, a citizen and resident of Pennsylvania, brought this suit to recover damages against defendant, a New York corporation, in the federal court for the southern district of that State. The issues were whether negligence of defendant was a proximate cause of his injuries and whether negligence of plaintiff contributed. He claimed that, by hauling the car with the open door, defendant violated a duty to him. The defendant insisted that it violated no duty and that plaintiff’s injuries were caused by his own negligence. The jury gave him a verdict on which the trial court entered judgment; the circuit court of appeals affirmed. 90 F. (2d) 603. Defendant maintained, citing Falchetti v. Pennsylvania R. Co., 307 Pa. 203; 160 A. 859, and Koontz v. B. & O. R. Co., 309 Pa. 122; 163 A. 212, that the only duty owed plaintiff was to refrain from willfully or wantonly injuring him; it argued that the courts of Pennsylvania had so ruled with respect to persons using a customary longitudinal path, as distinguished from one crossing the track. The plaintiff insisted that the Pennsylvania decisions did not establish the rule for which the defendant contended. Upon that issue the circuit court of appeals said (p. 604): “We need not go into this matter since the defendant concedes that the great weight of authority in other states is to the contrary. This concession is fatal to its contention, for upon questions of general law the federal courts are free, in absence of a local statute, to exercise their independent judgment as to what the law is; and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law.” 81638°—38------6 • 82 OCTOBER TERM, 1937. Opinion of Butler, J. 304U.S. Upon that basis the court held the evidence sufficient to sustain a finding that plaintiff’s injuries were caused by the negligence of defendant. It also held the question of contributory negligence one for the jury. Defendant’s petition for writ of certiorari presented two questions: Whether its duty toward plaintiff should have been determined in accordance with the law as found by the highest court of Pennsylvania, and whether the evidence conclusively showed plaintiff guilty of contributory negligence. Plaintiff contends that, as always heretofore held by this Court, the issues of negligence and contributory negligence are to be determined by general law against which local decisions may not be held conclusive; that defendant relies on a solitary Pennsylvania case of doubtful applicability and that, even if the decisions of the courts of that State were deemed controlling, the same result would have to be reached. No constitutional question was suggested or argued below or here. And as a general rule, this Court vzill not consider any question not raised below and presented by the petition. Olson v. United States, 292 U. S. 246, 262. Johnson v. Manhattan Ry. Co., 289 U. S. 479, 494. Gunning v. Cooley, 281 U. S. 90, 98. Here it does not decide either of the questions presented but, changing the rule of decision in force since the foundation of the Government, remands the case to be adjudged according to a standard never before deemed permissible. - The opinion just announced states that “the question for decision is whether the oft-challenged doctrine of Swift v. Tyson [1842, 16 Pet. 1] shall now be disapproved.” That case involved the construction of the Judiciary Act of 1789, § 34: “The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of ERIE R. CO. v. TOMPKINS. 83 64 Opinion of Butler, J. the United States in cases where they apply.” Expressing the view of all the members of the Court, Mr. Justice Story said (p. 18): “In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are, and not of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. In all the various cases, which have hitherto come before us for decision, this Court have uniformly supposed, that the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding, that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character 84 OCTOBER TERM, 1937. Opinion of Butler, J. 304 U. S. before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this Court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed.” (Italics added.) The doctrine of that case has been followed by this Court in an unbroken line of decisions. So far as appears, it was not questioned until more than 50 years later, and then by a single judge.1 Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 390. In that case, Mr. Justice Brewer, speaking for the Court, truly said (p. 373): “Whatever differences of opinion may have been expressed, have not been on the question whether a matter of general law should be settled by the independent judgment of this court, rather than through an adherence to the decisions of the state courts, but upon the other question, whether a given matter is one of local or of general law.” And since that decision, the division of opinion in this Court has been one of the same character as it was before. In 1910, Mr. Justice Holmes, speaking for himself and two other Justices, dissented from the holding that a 1 Mr. Justice Field filed a dissenting opinion, several sentences of which are quoted in the decision just announced. The dissent failed to impress any of his associates. It assumes that adherence to § 34 as construed involves a supervision over legislative or judicial action of the states. There is no foundation for that suggestion. Clearly the dissent of the learned Justice rests upon misapprehension of the rule. He joined in applying the doctrine for more than a quarter of a century before his dissent. The reports do not disclose that he objected to it in any later case. Cf. Oakes v. Mose, 165 U. S. 363. ERIE R. CO. v. TOMPKINS. 85 64 Opinion of Butler, J. court of the United States was bound to exercise its own independent judgment in the construction of a conveyance made before the state courts had rendered an authoritative decision as to its meaning and effect. Kuhn v. Fairmont Coal Co., 215 U. S. 349. But that dissent accepted (p. 371) as “settled” the doctrine of Swift v. Tyson, and insisted (p. 372) merely that the case under consideration was by nature and necessity peculiarly local. Thereafter, as before, the doctrine was constantly applied.2 In Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518, three judges dissented. The writer of the dissent, Mr. Justice Holmes, said, however (p. 535): “I should leave Swift v. Tyson undisturbed, as I indicated in Kuhn v. Fairmont Coal Co., but I would not allow it to spread the assumed dominion into new fields.” No more unqualified application of the doctrine can be found than in decisions of this Court speaking through Mr. Justice Holmes. United Zinc Co. v. Britt, 258 U. S. 268. Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66, 70. Without in the slightest departing from that doctrine, but implicitly applying it, the strictness of the rule laid down in the Goodman case was somewhat ameliorated by Pokora v. Wabash Ry. Co., 292 U. S. 98. Whenever possible, consistently with standards sustained by reason and authority constituting the general law, this Court has followed applicable decisions of state courts. Mutual Life Ins. Co. v. Johnson, 293 U. S. 335, 339. See Burgess n. Seligman, 107 U. S. 20, 34. Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., supra, 530. Unquestionably the issues of negligence and contributory negligence upon which decision of this case 2 In Salem Trust Co. v. Manufacturers’ Finance Co., 264 U. S. 182, Mr. Justice Holmes and Mr. Justice Brandeis concurred (p. 200) in the judgment of the Court upon a question of general law on the ground that the rights of the parties were governed by state law. 86 OCTOBER TERM, 1937. Opinion of Butler, J. 304U.S. depends are questions of general law. Hough v. Railway Co., 100 U. S. 213, 226. Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101. Baltimore & Ohio R. Co. v. Baugh, supra. Gardner v. Michigan Central R. Co., 150 U. S. 349, 358. Central Vermont Ry. Co. v.‘ White, 238 U. S. 507, 512. Baltimore & Ohio R. Co. v. Goodman, supra. Pokora v. Wabash Ry. Co., supra. While amendments to § 34 have from time to time been suggested, the section stands as originally enacted. Evidently Congress has intended throughout the years that the rule of decision as construed should continue to govern federal courts in trials at common law. The opinion just announced suggests that Mr. Warren’s research has established that from the beginning this Court has erroneously construed § 34. But that author’s “New Light on the History of the Federal Judiciary Act of 1789” does not purport to be authoritative and was intended to be no more than suggestive. The weight to be given to his discovery has never been discussed at this bar. Nor does the opinion indicate the ground disclosed by the research. In his dissenting opinion in the Taxicab case, Mr. Justice Holmes referred to Mr. Warren’s work but failed to persuade the Court that “laws” as used in § 34 included varying and possibly ill-considered rulings by the courts of a State on questions of common law. See, e. g., Swift v. Tyson, supra, 16-17. It well may be that, if the Court should now call for argument of counsel on the basis of Mr. Warren’s research, it would adhere to the construction it has always put upon § 34. Indeed, the opinion in this case so indicates. For it declares: “If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout a century. But the unconstitutionality of the course pursued has now been made clear and compels us to do so.” This means that, so far as concerns the rule of decision now condemned, the Judiciary Act of 1789, passed to establish judicial ERIE R. CO. v. TOMPKINS. 87 64 Opinion of Butler, J. courts to exert the judicial power of the United States, and especially § 34 of that Act as construed, is unconstitutional; that federal courts are now bound to follow decisions of the courts of the State in which the controversies arise; and that Congress is powerless otherwise to ordain. It is hard to foresee the consequences of the radical change so made. Our opinion in the Taxicab case cites numerous decisions of this Court which serve in part to indicate the field from which it is now intended forever to bar the federal courts. It extends to all matters of contracts and torts not positively governed by state enactments. Counsel searching for precedent and reasoning to disclose common-law principles on which to guide clients and conduct litigation are by this decision told that as to all of these questions the decisions of this Court and other federal courts are no longer anywhere authoritative. This Court has often emphasized its reluctance to consider constitutional questions, and that legislation will not be held invalid as repugnant to the fundamental law if the case may be decided upon any other ground. In view of grave consequences liable to result from erroneous exertion of its power to set aside legislation, the Court should move cautiously, seek assistance of counsel, act only after ample deliberation, show that the question is before the Court, that its decision cannot be avoided by construction of the statute assailed or otherwise, indicate precisely the principle or provision of the Constitution held to have, been transgressed, and fully disclose the reasons and authorities found to warrant the conclusion of invalidity. These safeguards against the improvident use of the great power to invalidate legislation are so well-grounded and familiar that statement of reasons or citation of authority to support them is no longer necessary. But see e. g.: Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553; Township of Pine Grove v. Talcott, 19 Wall. 666, 673; Chicago & G. T. Ry. Co. V. Wellman, 143 U. S. 339, 345; 88 OCTOBER TERM, 1937. Opinion of Butler, J. 304U.S. Baker v. Grice, 169 U. S. 284, 292; Martin v. District of Columbia, 205 U. S. 135, 140. So far as appears, no litigant has ever challenged the power of Congress to establish the rule as construed. It has so long endured that its destruction now without appropriate deliberation cannot be justified. There is nothing in the opinion to suggest that consideration of any constitutional question is necessary to a decision of the case. By way of reasoning, it contains nothing that requires the conclusion reached. Admittedly, there is no authority to support that conclusion. Against the protest of those joining in this opinion, the Court declines to assign the case for reargument. It may not justly be assumed that the labor and argument of counsel for the parties would not disclose the right conclusion and aid the Court in the statement of reasons to support it. Indeed, it would have been appropriate to give Congress opportunity to be heard before devesting it of power to prescribe rules of decision to be followed in the courts of the United States. See Myers v. United States, 272 U. S. 52, 176. The course pursued by the Court in this case is repugnant to the Act of Congress of August 24, 1937, 50 Stat. 751. It declares: “That whenever the constitutionality of any Act of Congress affecting the public interest is drawn in question in any court of the United States in any suit or proceeding to which the United States, or any v agency thereof, or any officer or employee thereof, as such officer or employee, is not a party, the court having jurisdiction of the suit or proceeding shall certify such fact to the Attorney General. In any such case the court shall permit the United States to intervene and become a party for presentation of evidence (if evidence is otherwise receivable in such suit or proceeding) and argument upon the question of the constitutionality of such Act. In any such suit or proceeding the United States shall, subject to the applicable provisions of law, have all the rights of a ERIE R. CO. v. TOMPKINS. 89 64 Opinion of Butler, J. party and the liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the constitutionality of such Act.” That provision extends to this Court. § 5. If defendant had applied for and obtained the writ of certiorari upon the claim that, as now held, Congress has no power to prescribe the rule of decision, § 34 as construed, it would have been the duty of this Court to issue the prescribed certificate to the Attorney General in order that the United States might intervene and be heard on the constitutional question. Within the purpose of the statute and its true intent and meaning, the constitutionality of that measure has been “drawn in question.” Congress intended to give the United States the right to be heard in every case involving constitutionality of an Act affecting the public interest. In view of the rule that, in the absence of challenge of constitutionality, statutes will not here be invalidated on that ground, the Act of August 24, 1937 extends to cases where constitutionality is first “drawn in question” by the Court. No extraordinary or unusual action by the Court after submission of the cause should be permitted to frustrate the wholesome purpose of that Act. The duty it imposes ought here to be willingly assumed. If it were doubtful whether this case is within the scope of the Act, the Court should give the United States opportunity to intervene and, if so advised, to present argument on the constitutional question, for undoubtedly it is one of great public importance. That would be to construe the Act according to its meaning. The Court’s opinion in its first sentence defines the question to be whether the doctrine of Swift v. Tyson shall now be disapproved; it recites (p. 72) that Congress is without power to prescribe rules of decision that have been followed by federal courts as a result of the construction of § 34 in Swift v. Tyson and since; after discussion, it declares (pp. 77-78) that “the unconstitutionality of the course pursued [meaning the rule of decision 90 OCTOBER TERM, 1937. Opinion of Reed, J. 304U.S. resulting from that construction] compels” abandonment of the doctrine so long applied; and then near the end of the last page the Court states that it does not hold § 34 unconstitutional, but merely that, in applying the doctrine of Swift v. Tyson construing it, this Court and the lower courts have invaded rights which are reserved by the Constitution to the several States. But, plainly through the form of words employed, the substance of the decision appears; it strikes down as unconstitutional § 34 as construed by our decisions; it divests the Congress of power to prescribe rules to be followed by federal courts when deciding questions of general law. In that broad field it compels this and the lower federal courts to follow decisions of the courts of a particular State. I am of opinion that the constitutional validity of the rule need not be considered, because under the law, as found by the courts of Pennsylvania and generally throughout the country, it is plain that the evidence required a finding that plaintiff was guilty of negligence that contributed to cause his injuries and that the judgment below should be reversed upon that ground. Mr. Justice McReynolds concurs in this opinion. Mr. Justice Reed. I concur in the conclusion reached in this case, in the disapproval of the doctrine of Swift v. Tyson, and in the reasoning of the majority opinion except in so far as it relies upon the unconstitutionality of the “course pursued” by the federal courts. The “doctrine of Swift v. Tyson,” as I understand it, is that the words “the laws,” as used in § 34, line one, of the Federal Judiciary Act of September 24, 1789, do not include in their meaning “the decisions of the local tribunals.” Mr. Justice Story, in deciding that point, said (16 Pet. 19): ERIE R. CO. v. TOMPKINS. 91 64 Opinion of Reed, J. “Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this Court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed.” To decide the case now before us and to “disapprove” the doctrine of Swift v. Tyson requires only that we say that the words “the laws” include in their meaning the decisions of the local tribunals. As the majority opinion shows, by its reference to Mr. Warren’s researches and the first quotation from Mr. Justice Holmes, that this Court is now of the view that “laws” includes “decisions,” it is unnecessary to go further and declare that the “course pursued” was “unconstitutional,” instead of merely erroneous. The “unconstitutional” course referred to in the majority opinion is apparently the ruling in Swift v. Tyson that the supposed omission of Congress to legislate as to the effect of decisions leaves federal courts free to interpret general law for themselves. I am not at all sure whether, in the absence of federal statutory direction, federal courts would be compelled to follow state decisions. There was sufficient doubt about the matter in 1789 to induce the first Congress to legislate. No former opinions of this Court have passed upon it. Mr. Justice Holmes evidently saw nothing “unconstitutional” which required the overruling of Swift v. Tyson, for he said in the very opinion quoted by the majority, “I should leave Swift v. Tyson undisturbed, as I indicated in Kuhn v. Fairmont Coal Co., but I would not allow it to spread the assumed dominion into new fields.” Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518, 535. If the opinion commits this Court to the position that the Congress is without power to declare what rules of substantive law shall govern the federal courts, 92 OCTOBER TERM, 1937. Syllabus. 304 U. S. that conclusion also seems questionable. The line between procedural and substantive law is hazy but no one doubts federal power over procedure. Wayman v. Southard, 10 Wheat. 1. The Judiciary Article and the “necessary and proper” clause of Article One may fully authorize legislation, such as this section of the Judiciary Act. In this Court, stare decisis, in statutory construction, is a useful rule, not an inexorable command. Burnet v. Coronado Oil & Gas ,Co., 285 U. S. 393, dissent, p. 406, note 1. Compare Read v. Bishop of Lincoln, [1892] A. C. 644, 655; London Street Tramways Co. n. London County Council, [1898] A. C. 375, 379. It seems preferable to overturn an established construction of an Act of Congress, rather than, in the circumstances of this case, to interpret the Constitution. Cf. United States v. Delaware & Hudson Co., 213 U. S. 366. There is no occasion to discuss further the range or soundness of these few phrases of the opinion. It is sufficient now to call attention to them and express my own non-acquiescence. HINDERLIDER, STATE ENGINEER, et al. v. LA PLATA RIVER & CHERRY CREEK DITCH CO. APPEAL FROM THE SUPREME COURT OF COLORADO. No. 437. Argued February 10, 11, 1938.—Decided April 25, 1938. 1. The water of an interstate stream, used beneficially in each of the two States through which it flows, must be equitably apportioned between the two. P. 101. The claim that on interstate streams the upper State has such ownership or control of the whole stream as entitles it to divert all the water, regardless of any injury or prejudice to the lower State, has been consistently denied by this Court. P. 102. 2. A decree of a state court can not confer a right in the water of an interstate stream in excess of the State’s equitable portion of such water. P. 102. HINDERLIDER v. LA PLATA CO. 93 92 Syllabus. 3. A decree of a state court adjudicating to a local user a right in the water of an interstate stream in excess of the State’s equitable portion thereof is not res judicata as to another State and its citizens who claim the right to divert water from the stream in such other State, and who were not parties to the proceedings. P. 103. 4. It is not essential to the validity of a compact between States for the apportionment of the water of an interstate stream that there be judicial or quasi-judicial decision in respect of existing rights. P. 104. 5. Whether the apportionment of the water of an interstate stream be made by compact between the upper and lower States with the consent of Congress or by a decree of this Court, the apportionment is binding upon the citizens of each State and all water claimants, including grantees whose rights antedate the compact or decree. P. 106. 6. A compact between two States for apportionment of the water of an interstate stream may provide for division of the water at times, and at other times for the use of the entire flow by one State or the other in alternating periods; and authority may validly be delegated to the States’ engineers to determine when the use should be rotated. P. 108. So held where the evidence conclusively established that, at the times when rotation was determined upon, the stream could in that way be more efficiently used. 7. No vitiating infirmity being here shown in the proceedings preliminary to the La Plata River Compact or in its application, the apportionment made by it between Colorado and New Mexico of the water of the La Plata River could not be held to deprive a Colorado appropriator of any vested right, even though a right had previously been adjudicated to him in a water proceeding in a court of that State. P. 108. 8. The assent of Congress to the La Plata River Compact between Colorado and New Mexico does not make the compact a “treaty or statute of the United States” within the meaning of § 237 (a) of the Judicial Code, and a decision of the state court against its validity is not appealable to this Court. P. 109. 9. A claim based on the equitable interstate apportionment of water, like one based on the proper location of a state boundary, is not within the provisions of § 237 (a) of the Judicial Code. P. 109. 10. The decision of the Supreme Court of Colorado in this case, restraining the State Engineer from taking action required by the La Plata River Compact, denied an important claim under the 94 OCTOBER TERM, 1937. Counsel for Parties. 304U.S. Constitution and is reviewable by this Court on certiorari under § 237 (b) of the Judicial Code. P. 110. 11. Whether the water of a stream must be apportioned between the two States through which it flows is a federal question, upon which neither the statutes nor decisions of either State can be conclusive. P. 110. 12. That the States which are parties to a compact are not parties to the suit and can not be made so, does not deprive this Court of jurisdiction to determine the validity and effect of the compact. P. 110. 101 Colo. 73; 70 P. 2d 849, reversed. Appeal from the affirmance of a judgment requiring water officials of Colorado to permit diversion of water from the La Plata River by the respondent Ditch Company, notwithstanding contrary provisions of the La Plata River Compact. Appeal dismissed; certiorari granted. Messrs. Ralph L. Carr and Byron G. Rogers, Attorney General of Colorado, with whom Messrs. Shrader P. Howell, R. F. Camalier, and Jean S. Breitenstein were on the brief, for appellants. Mr. Charles J. Beise, with whom Mr. Reese McCloskey was on the brief, for appellee. Attorney General Cummings filed a memorandum by which he sought to maintain that, within the meaning of the Act of Aug. 24, 1937, c. 754, 50 Stat. 751, this Court is “a court of the United States” and the state compact here in question, approved by Congress, is an “Act of Congress affecting the public interest,” the constitutionality of which is drawn in question on the appeal. The Attorney General and Acting Solicitor General Bell also filed a memorandum suggesting the interest of the United States in interstate water compacts and interstate compacts generally. HINDERLIDER v. LA PLATA CO. 95 92 Opinion of the Court. Messrs. Percy Warren Green, Attorney General of Delaware, Herbert R. O’Conor, Attorney General of Maryland, David Wilentz, Attorney General of New Jersey, John J. Bennett, Jr., Attorney General, Henry Epstein, Solicitor General, of New York, Julius Henry Cohen, T. Harry Rowland, Adrian Bonnelly, Austin T. Tobin, and Daniel B. Goldberg, appearing as amici curiae, by leave of Court, filed on behalf of their respective States and certain state agencies a memorandum taking issue with the views of the Attorney General of the United States as expressed in the first of his memoranda above mentioned. Mr. Abram P. Staples, Attorney General of Virginia, appearing by leave of Court as amicus curiae, joined with the other States in this matter. Mr. Justice Brandeis delivered the opinion of the Court. The La Plata River and Cherry Creek Ditch Company, a Colorado corporation, owns a ditch by which it diverts from that river in Colorado water for irrigation. On July 5, 1928, it brought in the District Court for La Plata County a suit which charged that since June 24, 1928, the defendants, Hinderlider, State Engineer of Colorado, and his subordinates have so administered the water of the river as to deprive the plaintiff of water which it claims the right to divert. A mandatory injunctio.n was sought. The defendants admit that in administering the water of the stream during the period named they shut the headgate of the Ditch Company so as to deprive it of water for purposes of irrigation; but assert that they did so pursuant to the requirements of the La Plata River Compact entered into by the States of Colorado and New Mexico with the consent of the Congress of the United States. 96 . OCTOBER TERM, 1937. Opinion of the Court. 304U.S. The Compact provides that each State shall receive a definite share of water under the varying conditions which obtain during the year, and, among other things: 1 “1. At all times between the 1st day of December and the 15th day of the succeeding February each State shall have the unrestricted right to the use of all water which may flow within its boundaries. “2. By reason of the usual annual rise and fall, the flow of said river between the 15th day of February and the 1st day of December of each year shall be apportioned between the States in the following manner: “(a) Each State shall have the unrestricted right to use all the waters within its boundaries in each day when the mean daily flow at the interstate station is one hundred cubic feet per second, or more. “(b) On all other days, the State of Colorado shall deliver at the interstate station a quantity of water equiv- * lrThe Compact had its inception in 1921 when the legislature of each state authorized the appointment of a commissioner who shall represent the State “upon a Joint Commission ... to be constituted by said states for the purpose of negotiating and entering into a compact or agreement between said states, with the consent of Congress, respecting the future utilization and disposition of the waters of the La Plata River, and all streams tributary thereto, and fixing and determining the rights of each of said states to the use, benefit and disposition of the waters of said stream, provided, however, that any compact or agreement so entered into on behalf of said states shall not be binding or obligatory upon either of said states or the citizens thereof, unless and until the same shall have been ratified and approved by the Legislatures of both states, and by the Congress of the United States.” Colo. Session Laws, 1921, p. 803; Session Laws of New Mexico, 1921, p. 322. The compact drafted by the commissioners was ratified by the General Assembly of New Mexico on February 7, 1923 (Session Laws of New Mexico, 1923, p. 13) and by the General Assembly of Colorado on April 13, 1923 (Colorado Session Laws, 1923, p. 696.) The consent of Congress was granted by Act of January 29, 1925, 43 Stat, 796. HINDERLIDER v. LA PLATA CO. 97 92 Opinion of the Court. alent to one-half of the mean flow at the Hesperus station for the preceding day, but not to exceed one hundred cubic feet per second. “3. Whenever the flow of the river is so low that in the judgment of the State engineers of the States the greatest beneficial use of its waters may be secured by distributing all of its water successively to the lands in each State in alternating periods, in lieu of delivery of water as provided in the second paragraph of this article, the use of the waters may be so rotated between the two States in such manner, for such periods, and to continue for such time as the State Engineers may jointly determine.” For the administration of water rights, Colorado and New Mexico each set up an administrative system with the State Engineers at its head. The State Engineers agreed that, in order to put the water to its most efficient use in the hot summer months of 1928, when the river was very low, the whole of the available supply should be rotated between the two States. In other words, that each State should be permitted to enjoy the entire flow of the river during alternating ten-day periods. During the ten days commencing June 24, 1928, all the water of the river (except small amounts diverted in Colorado for domestic and stock requirements) was thus allowed to pass to New Mexico; and during the succeeding ten-day period all the water in the stream was similarly allowed to be diverted in Colorado. The defendant water officials contend that in so rotating the water of the stream they administered it as required by the Compact and wisely. The La Plata River rises in the mountains of Colorado, flows in a southerly direction until it reaches the boundary of New Mexico and in the latter State until it empties into the San Juan River. The stream is non-navigable ; has a narrow watershed; and a large run-off in the early spring. Then the quantity flowing begins to fall rapidly; 81638°—38-7 98 OCTOBER TERM, 1937. Opinion of the Court 304U.S. and during the summer months little water is available for irrigation. In each State the water of the stream has long been used for irrigation; and each adopted the so-called appropriation doctrine of water use.2 Under that doctrine the first person who acts toward the diversion of water from a natural stream and the application of such water to a beneficial use has the first right, provided he diligently continues his enterprise to completion and beneficially applies the water. The rights of subsequent appropriations are subject to rights already held in the stream. The relative rights of all claimants to divert in Colorado water from the La Plata River were adjudicated in a proceeding under the Colorado statutes. By decree therein of January 12, 1898 (and later amended) the Ditch Company was declared entitled to divert 39% cubic feet of water per second, subject to five senior priorities aggregating 19 second feet. On June 24, 1928, there was in the stream, at the recognized Colorado gauging station, 57 second feet of water. The Ditch Company claimed that by reason of the 1898 decree it was entitled to all the water in the stream except that required to satisfy the Colorado priorities. If it had been permitted to draw all that water, none would have been available to the New Mexico water claimants, who, under similar laws, had made appropriations. Some of them were earlier in date than the Ditch Company’s. 2 Colorado Constitution, Art. XVI, § 5, provides: “The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.” Article XVI, § 6, provides in part: “The right to divert unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose.” For the law of New Mexico, see its Constitution, Art. XVI, §§ 2 and 3. HINDERLIDER v. LA PLATA CO. 99 92 Opinion of the Court. The case was first heard in the District Court on evidence in 1930. The Ditch Company objected at the trial to the admission or consideration of the Compact. It insisted that the Compact attempted to surrender to New Mexico, and thus destroy, vested property rights of Colorado citizens; that this is a violation of the obligations of its contract; and that the Compact in so far as it “applies or is intended to apply to private rights of the individuals or citizens of Colorado, or to be used as a defense of or justification for the acts of the State Engineer or his subordinates in interfering with or violating the private rights of citizens of Colorado, or in attempting to disregard, ignore or set aside the decrees of this [District] Court for the distribution of water in accordance with the decrees, is unconstitutional and void” in violation of the due process clauses of the Fifth and Fourteenth Amendments of the Federal Constitution and of § 25 of the Constitution of Colorado. The District Court overruled the objection; found in substance the facts stated above; held that the Compact justified the action of defendants; and entered a decree that the bill be dismissed, each party to bear its own costs. That judgment was reversed by the Supreme Court of the State (one judge dissenting), La Plata River & Cherry Creek Ditch Co. v. Hinderlider, 93 Colo. 128; 25 P. 2d 187. The opinion declared: “There is not the slightest pretense, either in this compact itself or in the proceedings leading up to it, to a decision of the question of what water Colorado owns, or what water New Mexico owns, or what their respective citizens own. It is a mere compromise of presumably conflicting claims, a trading therein, in which the property of citizens is bartered, without notice or hearing and with no regard to vested rights.” An appeal to this Court was dismissed for want of final judgment below. Hinderlider n. La Plata River & Cherry 100 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. Creek Ditch Co., 291 U. S. 650. The case was then retried by the District Court on the same pleadings and evidence; and, pursuant to the opinion of the Supreme Court of Colorado, a decree was entered which, after reciting in substance the facts above stated, declared: “6. That the said La Plata River Compact, entered into between the States of Colorado and New Mexico with the consent of the Congress of the United States of America, does not constitute a defense to the actions of said defendant water officials complained of by plaintiff, and is not available to said defendant water officials, as a legal defense or justification, for their acts in closing and shutting down the headgate of plaintiff and in depriving the said plaintiff, thereby, of its right to the use of the waters from said La Plata River for irrigation purposes, as provided by the terms and provisions of said decree of adjudication of January 12, 1898.” The decree specifically: “(3) Enjoined and commanded [the defendants] to permit the diversion through the plaintiff’s headgate [of] water for plaintiff’s ditch in accordance with the terms of said decree at any and all times when there is water in said stream to which said decree, under its terms and conditions would apply; . . This second judgment of the trial court was affirmed by the Supreme Court of the State; an additional opinion being delivered by the court, and a dissent by a different justice. 101 Colo. 73; 70 P. 2d 849. An appeal to this Court was allowed by the Acting Chief Justice of the State.3 Pursuant to the Act of Congress, August 24, 1937, c. 754, 50 Stat. 751, the attention of the Attorney Gen- 8 The first judgment in the trial court was entered June 16, 1930; the first judgment of the Supreme Court of Colorado on July 3, 1933; the dismissal by this Court of the first appeal on March 12. 1934; the second judgment in the trial court on May 12, 1936; the second judgment of the Supreme Court of Colorado on July 6,1937. HINDERLIDER v. LA PLATA CO. 101 92 Opinion of the Court. eral of the United States was directed to the contention that the validity of a federal statute is involved, 302 U. S. 646. He filed memoranda in which he contended that: “(1) this Court is included in the courts to which Section 1 of the Act of August 24,1937, is applicable; (2) the constitutionality of the compact is drawn in question whether or not a decision on this point is necessary; (3) a compact is an Act of Congress; and (4) it is an Act ‘affecting the public interest.’ ” Opposing some of the views expressed by the Attorney General, a brief was filed on behalf of Delaware, Maryland, New Jersey, New York, Virginia, the Port of New York Authority and the Delaware River Joint Commission. The Ditch Company moved to dismiss the appeal, contending, among other things, that the mere fact that the Compact was approved by Congress does not make it a federal statute within the meaning of the jurisdictional act authorizing appeals. Decision on the motion to dismiss was postponed to the hearing on the merits. For reasons to be stated, we are of opinion that the case is not reviewable on appeal; that it presents a federal question reviewable on certiorari; that because of its importance certiorari should be granted; and that the judgment must be reversed. First. As the La Plata River flows from Colorado into New Mexico and in each State the water is used beneficially, it must be equitably apportioned between the two. The decision below in effect ignores that rule. It holds immaterial the fact that the acts complained of were being done in compliance with the Compact, and does so on the ground that the Compact in authorizing diversion and rotation violated rights awarded by the January 12, 1898 decree in the Colorado water proceeding; holds that the decree awarded to the Ditch Company the right to divert from the river 3914 cubic feet per second (subject 102 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. only to the senior Colorado priorities of 19 second feet), even if by so doing it exhausts the whole flow of the stream and leaves nothing for the New Mexico claimants; and holds that the right so awarded is a vested property right which the two States, although acting with the consent of the United States, lacked power to diminish or modify except by a condemnation proceeding and payment of compensation. No such proceeding was provided for in the Compact and none was had otherwise. It may be assumed that the right adjudicated by the decree of January 12, 1898 to the Ditch Company is a property right, indefeasible so far as concerns the State of Colorado, its citizens, and any other person claiming water rights there. But the Colorado decree could not confer upon the Ditch Company rights in excess of Colorado’s share of the water of the stream; and its share was only an equitable portion thereof. The claim that on interstate streams the upper State has such ownership or control of the whole stream as entitles it to divert all the water, regardless of any injury or prejudice to the lower State, has been made by Colorado in litigation concerning other interstate streams, but has been consistently denied by this Court. The rule of equitable apportionment was settled by Kansas v. Colorado, 206 U. S. 46, 97. It was discussed again in Wyoming v. Colorado, 259 U. S. 419, 466, where the Court said: “The contention of Colorado that she as a State rightfully may divert and use, as she may choose, the waters flowing within her boundaries in this interstate stream, regardless of any prejudice that this may work to others having rights in the stream below her boundary, can not be maintained. The river throughout its course in both States is but a single stream wherein each State has an interest which should be respected by the other. A like contention was set up by Colorado in her answer in HINDERLIDER v. LA PLATA CO. 103 92 Opinion of the Court. Kansas v. Colorado and was adjudged untenable. Further consideration satisfies us that the ruling was right.” And in New Jersey n. New York, 283 U. S. 336, 342-43, the Court said of an interstate stream: “It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And on the other hand equally little could New Jersey be permitted to require New York to give up its power altogether in order that the River might come down to it undiminished. Both States have real and substantial interests in the River that must be reconciled as best they may be.” The decree obviously is not res judicata so far as concerns the State of New Mexico and its citizens who claim the right to divert water from the stream in New Mexico. As they were not parties to the Colorado proceedings, they remain free to challenge the claim of the Ditch Company that it is entitled to take in Colorado all the water of the stream and leave nothing for them.4 * Second. The declared purpose of the Compact was, as the preamble recites, equitable apportionment : “The State of Colorado and the State of New Mexico, desiring to provide for the equitable distribution of the waters of the La Plata River and to remove all causes of present and future controversy between them with respect thereto, and being moved by considerations of interstate comity, pursuant to Acts of their respective legislatures, have resolved to conclude a compact for these purposes and have named as their commissioners: Delph 4 Washington v. Oregon, 297 U. S. 517, 528. Compare Fowler v. Lindsey, 3 Dall. 411, 412; Arkansas v. Tennessee, 246 U. S. 158, 176. 104 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. E. Carpenter, for the State of Colorado, and Stephen B. Davis, Jr., for the State of New Mexico, who have agreed upon the following articles.” The Supreme Court of Colorado held the Compact unconstitutional because, for aught that appears, it embodies not a judicial, or quasi-judicial, decision of controverted rights, but a trading compromise of conflicting claims. The assumption that a judicial or quasi-judicial decision of the controverted claims is essential to the validity of a compact adjusting them, rests upon misconception. It ignores the history and order of development of the two means provided by the Constitution for adjusting interstate controversies. The compact—the legislative means—adapts to our Union of sovereign States the age-old treaty-making power of independent sovereign nations. Adjustment by compact without a judicial or quasi-judicial determination of existing rights had been practiced in the Colonies,5 was practiced by the States before the adoption of the Constitution,6 7 and had been extensively practiced in the United States for nearly half a century before this Court first applied the judicial means in settling the boundary dispute in Rhode Island v. Massachusetts, 12 Pet. 657, 723-255 The extent of the existing equitable rights of Colorado and of New Mexico in the La Plata River could ob- • Nine colonial boundary agreements are listed by Frankfurter and Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments (1925) 34 Yale L. J. 685, 730-32. 8 Five agreements made under the Articles of Confederation have been found. See Frankfurter and Landis, supra note 5, at 732-34. 7 Nine compacts were apparently executed in this period (although five of these were without express Congressional consent). See Frankfurter and Landis, supra note 5, at 735-37, 749-52. See also Ely, Oil Conservation through Interstate Agreement (1933) 371-72, 389-91; (June 1936) 9 State Government 118; Dodd, Interstate Compacts (1936) 70 U. S. L. Rev. 557, 574. The agreement between New Jersey and New York in 1833 put an end to the boundary suit begun in 1829, New Jersey v. New York, 3 Pet. 461, 5 Pet. 284, 6 Pet. 323. HINDERLIDER v. LA PLATA CO. 105 92 Opinion of the Court. viously have been determined by a suit in this Court, as was done in Kansas v. Colorado, supra, in respect to rights in the Arkansas River and in Wyoming v. Colorado, supra, in respect to the Laramie.8 * But resort to the judicial remedy is never essential to the adjustment of interstate controversies, unless the States are unable to agree upon the terms of a compact, or Congress refuses its consent. The difficulties incident to litigation have led States to resort, with frequency, to adjustment of their controversies by compact, even where the matter in dispute was the relatively simple one of a boundary. In two such cases this Court suggested “that the parties endeavor with the consent of Congress to adjust their boundaries.” Washington v. Oregon, 214 U. S. 205, 217, 218; Minnesota v. Wisconsin, 252 U. S. 273, 283.® In New York v. New Jersey, 256 U. S. 296, 313, which involved a more intricate problem of rights in interstate waters, the recommendation that treaty-making be resorted to was more specific;10 and compacts for the apportion- 8 See also Connecticut v. Massachusetts, 282 U. S. 660, 283 U. S. 789 (Connecticut River); New Jersey v. New York, 283 U. S. 336, 805 (Delaware River); Wyoming v. Colorado, 286 U. S. 494, 298 U. S. 573 (Laramie River); Washington v. Oregon, 297 U. S. 517 (Walla Walla River). Three other water apportionment suits are pending in this Court. Colorado v. Kansas, Original No. 6 (Arkansas River); Nebraska v. Wyoming, 295 .U. S. 40, Original No. 9 (North Platte River); Texas v. New Mexico, Original No. 11 (Rio Grande). 8 The long drawn out irritating boundary litigation, Rhode Island v. Massachusetts, 7 Pet. 651; 11 Pet. 226; 12 Pet. 657, 755; 13 Pet. 23; 14 Pet. 210; 15 Pet. 233; 4 How. 591; was finally settled by a Compact. See Frankfurter and Landis, supra note 5, at 696, 737-38. 10 “We cannot withhold the suggestion, inspired by the consideration of this case, that the grave problem of sewage disposal presented by the large and growing populations living on the shores of New York Bay is one more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of represent- 106 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. ment of the water of interstate streams have been common.* 11 Third. Whether the apportionment of the water of an interstate stream be made by compact between the upper and lower States with the consent of Congress or by a decree of this Court, the apportionment is binding upon the citizens of each State and all water claimants, even where the State had granted the water rights before it entered into the compact. That the private rights of grantees of a State are determined by the adjustment by compact of a disputed boundary was settled a century ago in Poole v. Fleeger, 11 Pet. 185, 209, where the Court said: “It cannot be doubted, that it is a part of the general right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between their respective territories; and the boundaries so established and fixed by compact between nations, become conclusive upon all the subjects and citizens thereof, and bind their rights; and are to be treated, to all intents and purposes, as the true and real boundaries. This is a doctrine universally recognized in the law and practice of nations. It is a right equally belonging to the states of this Union; unless it has been surrendered under the Constitution of the United States. So far from there being any pretense of such a general surrender of the right, it is expressly recognized by the Constitution and guarded in its exercise by a single limitation or restriction, requiring the consent of Congress.” In Rhode Island v. Massachusetts, 12 Pet. 657, 725, the Court, discussing the origin and scope of the Compact clause, said: atives of the States so vitally interested in it than by proceedings in any court however constituted.” (p. 313.) 11 Congress has consented to 15 such compacts, of which 5 have been ratified by two or more of the contracting States. See State Government, supra note 7, at 120-21. See also Ely, supra note 7, at 381-88; Dodd, supra note 7, at 574-78. HINDERLIDER v. LA PLATA CO. 107 92 Opinion of the Court. “If Congress consented, then the States were in this respect restored to their original inherent sovereignty; such consent being the sole limitation imposed by the Constitution, when given, left the States as they were before, as held by this Court in Poole v. Fleeger, 11 Pet. 209; whereby their compacts became of binding force, and finally settled the boundary between them; operating with the same effect as a treaty between sovereign powers. That is, that the boundaries so established and fixed by compact between nations, become conclusive upon all subjects and citizens thereof, and bind their rights; and are to be treated to all intents and purposes, as the true real boundaries.” See also Garcia v. Lee, 12 Pet. 511, 521; Coffee v. Groover, 123 U. S. 1, 29, 30, 31; Virginia v. Tennessee, 148 U. S. 503, 525. The rule as applied to the apportionment by judicial decree of the water of an interstate stream was stated in Wyoming v. Colorado, 286 U. S. 494, 508: “But it is said that water claims other than the tunnel appropriation could not be, and were not, affected by the decree, because the claimants were not parties to the suit or represented therein. In this the nature of the suit is misconceived. It was between States, each acting as a quasi-sovereign and representative of the interests and rights of her people in a controversy with the other. Counsel for Colorado insisted in their brief in that suit that the controversy was ‘not between private parties’ but ‘between the two sovereignties of Wyoming and Colorado’ ; and this Court in its opinion assented to that view, but observed that the controversy was one of immediate and deep concern to both States and that the interests of each were indissolubly linked with those of her appropriates. 259 U. S. 468. Decisions in other cases also warrant the conclusion that the water claimants in Colo 108 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. rado, and those in Wyoming, were represented by their respective States and are bound by the decree.” Fourth. As the States had power to bind by compact their respective appropriators by division of the flow of the stream, they had power to reach that end either by providing for a continuous equal division of the water from time to time in the stream, or by providing for alternate periods of flow to the one State and to the other of all the water in the stream. To secure “the greatest beneficial use of” the water in the stream, the Compact provided that the water may be “rotated between the two States, in such manner for such periods, and to continue for such time as the State Engineers may jointly determine.” That such alternate rotating flow was then a more efficient use of the stream than if the flow had been steadily divided equally between the Colorado and the New Mexico appropriators was conclusively established by the evidence. That is, the rotating supply which the Compact authorized, and the two State Engineers agreed upon, was clearly more beneficial to the Ditch Company than to have given to it and other Colorado appropriators steadily one-half of the water in the river. The delegation to the State Engineers of the authority to determine when the waters should be so rotated was a matter of detail clearly within the constitutional power. There is no claim that the authority conferred was abused. Fifth. As Colorado possessed the right only to an equitable share of the water in the stream, the decree of January 12, 1898, in the Colorado water proceeding did not award to the Ditch Company any right greater than the equitable share. Hence the apportionment made by the Compact can not have taken from the Ditch Company any vested right, unless there was in the proceedings leading up to the Compact or in its application, some vitiating infirmity. No such infirmity or illegality HINDERLIDER v. LA PLATA CO. 109 92 Opinion of the Court. has been shown. There is no allegation in the pleadings, no evidence in the record, no suggestion in brief or argument, that the apportionment agreed upon by the commissioners was entered into without due enquiry; or that it was not an honest exercise of judgment; or even that it was, or is, inequitable. The fact that the appointment of the Joint Commissioners was authorized in 1921, that their agreement was not adopted by the States until 1923, and that it was not approved by Congress until 1925 shows that there was ample time for consideration by all concerned. There is no suggestion that the Ditch Company, or indeed anyone else, was denied by the commissioners opportunity to be heard; or even that any water claimant objected to the terms of the Compact. It appears that although the State of Colorado was not permitted to intervene in this litigation, Colorado v. La Plata River & C. C. Ditch Co., 101 Colo. 368; 73 P. 2d 997, its Attorney General represented the State’s water officials. Moreover, the Compact provides in Article VI that it “may be modified or terminated at any time by mutual consent”; and there is not even a suggestion that either State, or the Ditch Company, has expressed a desire to modify or terminate it. Sixth. The water officials rely for their defense upon the rule requiring equitable apportionment of the water of an interstate stream and the action of Congress in approving the adjustment of the equitable apportionment which the States made by their compacts. The assent of Congress to the compact between Colorado and New Mexico does not make it a “treaty or statute of the United States” within the meaning of § 237 (a) of the Judicial Code, and no question as to the validity of the consent is presented. People v. Central Railroad, 12 Wall. 455. A claim based on the equitable interstate apportionment of water, like one based on the proper location of a State boundary, is not within the provisions of 110 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. § 237 (a). Rust Land & Lumber Co. v. Jackson, 250 U. S. 71. The appeal must therefore be dismissed. But in holding that the State Engineer and his subordinates should be enjoined from taking action required by the Compact the State Court denied an important claim under the Constitution which may be reviewed on certiorari by this Court under § 237 (b). For the decision below necessarily rests upon the premise that at the time the Compact was made Colorado was absolutely entitled to at least 58^4: cubic feet of water per second regardless of the amount left for New Mexico. The judgment cannot stand if this determination is erroneous. For whether the water of an interstate stream must be apportioned between the two States is a question of “federal common law” upon which neither the statutes nor the decisions of either State can be conclusive. Kansas v. Colorado, 206 U. S. 46, 95, 97-98; Connecticut v. Massachusetts, 282 U. S. 660, 669-71; New Jersey v. New York, 283 U. S. 336, 342-43; Washington v. Oregon, 297 U. S. 517, 528. Jurisdiction over controversies concerning rights in interstate streams is not different from those concerning boundaries. These have been recognized as presenting federal questions.12 13 It has been suggested that this Court lacks jurisdiction to determine the validity and effect of the Compact because Colorado and New Mexico, the parties to it, are not 12 Cissna v. Tennessee, 246 U. S. 289, 295; compare Rust Land & Lumber Co. v. Jackson, 250 U. S. 71, 76. In Howard v. Ingersoll, 13 How. 381, this Court reversed the Supreme Court of Alabama’s decision locating the Alabama-Georgia boundary, which depended upon the construction of a cession of territory by Georgia to the United States in 1802. Compare Coffee v. Groover, 123 U. S. 1. The decisions are not uniform as to whether the interpretation of an interstate compact presents a federal question. Compare People v. Central Railroad, 12 Wall. 455, with Wedding v. Meyler, 192 U. S. 573, and Wharton v. Wise, 153 U. S. 155. U. S. v. SHOSHONE TRIBE. Ill 92 Syllabus. parties to this suit and cannot be made so. The contention is unsound. The cases are many where title to land dependent upon the boundary between States has been passed upon by this Court upon review of judgments of federal and of State courts in suits between private litigants.13 Reversed. Mr. Justice Cardozo took no part in the consideration or decision of this case. UNITED STATES v. SHOSHONE TRIBE OF INDIANS. CERTIORARI TO THE COURT OF CLAIMS. No. 668. Argued March 31, April 1, 1938.—Decided April 25, 1938. 1. The opinion of the Court of Claims may not be referred to for the purpose of altering or modifying the scope of unambiguous findings. P. 115. 2. The right of the Shoshone Tribe in the lands set apart for it, under the treaty of July 3, 1868, with the United States, included the mineral and timber resources of the reservation; and the value of these was properly included in fixing the amount of compensation due for so much of the lands as was taken by the United States. P. 118. 3. The phrase “absolute and undisturbed use and occupation” in the treaty is to be read, with other parts of the treaty, in the light of the purpose of the arrangement made, the relation between the parties, and the settled policy of the Government to deal fairly with the Indian tribes. P. 116. 13 13 Compare Handly’s Lessee v. Anthony, 5 Wheat. 374; Howard v. Ingersoll, 13 How. 381; Poole v. Fleeger, 11 Pet. 185; Coffee v. Groover, 123 U. S. 1; St. Louis n. Rutz, 138 U. S. 226; Moore v. McGuire, 205 U. S. 214; Cissna v. Tennessee, 246 U. S. 289; Marine Ry. & Coal Co. v. United States, 257 U. S. 47; Smoot Sand & Gravel Corp, v. Washington Airport, 283 U. S. 348. 112 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. 4. Treaties made by the United States with Indian tribes are not to be construed narrowly, but rather in the sense in which naturally the Indians would understand them. P. 116. 85 Ct. Cis. 331, affirmed. Certiorari, 303 U. S. 629, to review a judgment against the United States in a suit brought by the Indian Tribe under the special jurisdictional Act of March 3, 1927. For an earlier phase of the case, see 299 U. S. 476. Assistant Attorney General McFarland, with whom Solicitor General Jackson and Mr. Oscar Provost were on the brief, for the United States. Messrs. George M. Tunison and Albert W. Jefferis, with whom Mr. Charles J. Kappler was on the brief, for respondent. Mr. Justice Butler delivered the opinion of the Court. The Shoshone Tribe brought this suit to recover the value of part of its reservation taken by the United States by putting upon it, without the tribe’s consent, a band of Arapahoe Indians. The Court of Claims found the taking to have been in August, 1891, ascertained value as of that date, on that basis fixed the amount of compensation, and gave judgment accordingly. We held, 299 U. S. 476, that the court erred as to the date of the taking, declared it to have been March 19, 1878, reversed the judgment and remanded the case for further proceedings. Then the lower court proceeded to determine the value of the tribe’s right at the time of the taking, and the amount to be added to produce the present worth of the money equivalent of the property, paid contemporaneously with the taking. It heard evidence, made additional findings, and gave plaintiff judgment for $4,408,-444.23, with interest from its date until paid. This Court granted writ of certiorari. U. S. v. SHOSHONE TRIBE. 113 111 Opinion of the Court. The sole question for decision is whether, as the United States contends, the Court of Claims erred in holding that the right of the tribe included the timber and mineral resources within the reservation. The findings show: The United St'ates, by the treaty of July 2, 1863, set apart for the Shoshone Tribe a reservation of 44,672,000 acres located in Colorado, Utah, Idaho and Wyoming. By the treaty of July 3, 1868, the tribe ceded that reservation to the United States. And by it the United States agreed that the “district of country” 3,054,182 acres definitely described “shall be and the same is set apart for the absolute and undisturbed use and occupation of the Shoshone Indians . . ., and the United States now solemnly agrees that no persons,” with exceptions not important here, “shall ever be permitted to pass over, settle upon, or reside in” that territory. The Indians agreed that they would make the reservation their permanent home. The treaty provided that any individual member of the tribe having specified qualifications, might select a tract within the reservation which should then cease to be held in common, and be occupied and held in the exclusive possession of the person selecting it, and of his family, while he or they continued to cultivate it. It declared: “. . . Congress shall provide for protecting the rights of the Indian settlers . . . and may fix the character of the title held by each. The United States may pass such laws on the subject of alienation and descent of property as between Indians, and on all subjects connected with the government of the Indians on said reservation, and the internal, police thereof, as may be thought proper.” The treaty emphasized the importance of education; the United States agreed to provide a schoolhouse and teacher for every thirty children, and the tribe promised to send the children to school. The United States also agreed to provide instruction by a farmer for members 81638°—38--8 114 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. cultivating the soil, clothing for members of the tribe, and a physician, carpenter, miller, engineer and blacksmith. It stipulated that no treaty for the cession of any portion of the reservation held in common should be valid as against the Indians, unless signed by at least a majority of all interested male adults; and that no cession by the tribe should be construed to deprive any member of his right to any tract of land selected by him. When the treaty of 1868 was made, the tribe consisted of full blood blanket Indians, unable to read, write, or speak English. Upon consummation of the treaty, the tribe went, and has since remained, upon the reservation. It was known to contain valuable mineral deposits—gold, oil, coal and gypsum. It included more than 400,000 acres of timber, extensive well-grassed bench lands and fertile river valleys conveniently irrigable. It was well protected by mountain ranges and a divide, and was the choicest and best-watered portion of Wyoming. In 1904 the Shoshones and Arapahoes ceded to the United States 1,480,000 acres to be held by it in trust for the sale of such timber lands, timber and other products, and for the making of leases for various purposes. The net proceeds were to be credited to the Indians. From 1907 to 1919 there were allotted to members of the tribes 245,058 acres. The court’s finding of the ultimate fact is: “The fair and reasonable value of a one-half undivided interest of the Shoshone or Wind River Reservation of a total of 2,343,540 acres, which was taken by the United States on March 19, 1878, from the Shoshone Tribe of Indians for the Northern Arapahoe Tribe, was, on March 19, 1878, $1,581,889.50.” That is $1.35 per acre for 1,171,770 acres, one-half of the reservation in 1878, at the time of taking. The United States does not challenge the principle or U. S. v. SHOSHONE TRIBE. 115 111 Opinion of the Court. basis upon which the court determined the amount to be added to constitute just compensation. The substance of the Government’s point is that in fixing the value of the tribe’s right, the lower court included as belonging to the tribe substantial elements of value, ascribable to mineral and timber resources, which in fact belonged to the United States. It contends that the Shoshones’ right to use and occupy the lands of the reservation did not include the ownership of the timber and minerals and that the opinion of the court below departs from the general principles of law regarding Indian land tenure and the uniform policy of the Government in dealing with Indian tribes. It asks for reversal with “directions to determine the value of the Indians’ right of use and occupancy but to exclude therefrom ‘the net value of the lands’ and ‘the net value of any timber or minerals.’ ” The findings are unambiguous; there is no room for construction. The opinion of the Court of Claims may not be referred to for the purpose of eking out, controlling, or modifying the scope of the findings. Stone N. United States, 164 U. S. 380, 383. Luckenbach S. S. Co. v. United States, 272 U. S. 533, 539-540. Cf. American Propeller Co. v. United States, 300 U. S. 475, 479-480. In this case we have held, 299 U. S. 476, 484, that the tribe had the right of occupancy with all its beneficial incidents; that, the right of occupancy being the primary one and as sacred as the fee, division by the United States of the Shoshones’ right with the Arapahoes was an appropriation of the land pro tanto; that although the United States always had legal title to the land and power to control and manage the affairs of the Indians, it did not have power to give to others or to appropriate to its own use any part of the land without rendering, or assuming the obligation to pay, just compensation to the tribe, 116 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. for that would be, not the exercise of guardianship or management, but confiscation. It was not then necessary to consider, but we are now called upon to decide, whether, by the treaty, the tribe acquired beneficial ownership of the minerals and timber on the reservation. The phrase “absolute and undisturbed use and occupation” is to be read, with other parts of the document, having regard to the purpose of the arrangement made, the relation between the parties, and the settled policy of the United States fairly to deal with Indian tribes. In treaties made with them the United States seeks no advantage for itself; friendly and dependent Indians are likely to accept without discriminating scrutiny the terms proposed. They are not to be interpreted narrowly, as sometimes may be writings expressed in words of art employed by conveyancers, but are to be construed in the sense in which naturally the Indians would understand them. Worcester v. Georgia, 6 Pet. 515, 582. Jones v. Meehan, 175 U. S. 1, 11. Starr v. Long Jim, 227 U. S. 613, 622-623. The principal purpose of the treaty was that the Shoshones should have, and permanently dwell in, the defined district of country. To that end the United States granted and assured to the tribe peaceable and unqualified possession of the land in perpetuity. Minerals and standing timber are constituent elements of the land itself. United States v. Cook, 19 Wall. 591. British-American Oil Co. v. Board, 299 U. S. 159, 164-165. For all practical purposes, the tribe owned the land. Grants of land subject to the Indian title by the United States, which had only the naked fee, would transfer no beneficial interest. Leavenworth, L. & G. R. Co. v. United States, 92 U. S. 733, 742-743. Beecher v. Wetherby, 95 U. S. 517, 525. The right of perpetual and exclusive occupancy of the land is not less valuable than full title in fee. See U. S. v. SHOSHONE TRIBE. 117 111 Opinion of the Court. Holden v. Joy, 17 Wall. 211, 244. Western Union Tel. Co. v. Pennsylvania R. Co., 195 U. S. 540, 557. The treaty, though made with knowledge that there were mineral deposits and standing timber in the reservation, contains nothing to suggest that the United States intended to retain for itself any beneficial interest in them. The words of the grant, coupled with the Government’s agreement to exclude strangers, negative the idea that the United States retained beneficial ownership. The grant of right to members of the tribe severally to select and hold tracts on which to establish homes for themselves and families, and the restraint upon cession of land held in common or individually, suggest beneficial ownership in the tribe. As transactions between a guardian and his wards are to be construed favorably to the latter, doubts, if there were any, as to ownership of lands, minerals or timber would be resolved in favor of the tribe. The cession in 1904 by the tribe to the United States in trust reflects a construction by the parties that supports the tribe’s claim, for if it did not own, creation of a trust to sell or lease for its benefit would have been unnecessary and inconsistent with the rights of the parties. Although the United States retained the fee, and the tribe’s right of occupancy was incapable of alienation or of being held otherwise than in common, that right is as sacred and as securely safeguarded as is fee simple absolute title. Cherokee Nation v. Georgia, 5 Pet. 1, 48. Worcester v. Georgia, supra, 580. Subject to the conditions imposed by the treaty, the Shoshone Tribe had the right that has always been understood to belong to Indians, undisturbed possessors of the soil from time immemorial. Provisions in aid of teaching children and of adult education in farming, and to secure for the tribe medical and mechanical service, to safeguard tribal and individual titles, when taken with other parts of the 118 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. treaty, plainly evidence purpose on the part of the United States to help to create an independent permanent farming community upon the reservation. Ownership of the land would further that purpose. In the absence of definite expression of intention so to do, the United States will not be held to have kept it from them. The authority of the United States to prescribe title by which individual Indians may hold tracts selected by them within the reservation, to pass laws regulating alienation and descent and for the government of the tribe and its people upon the reservation detracts nothing from the tribe’s ownership, but was reserved for the more convenient discharge of the duties of the United States as guardian and sovereign. United States v. Cook, supra, gives no support to the contention that in ascertaining just compensation for the Indian right taken, the value of mineral and timber resources in the reservation should be excluded. That case did not involve adjudication of the scope of Indian title to land, minerals or standing timber, but only the right of the United States to replevin logs cut and sold by a few unauthorized members of the tribe. We held that, as against the purchaser from the wrongdoers, the United States was entitled to possession. It was not there decided that the tribe’s right of occupancy in perpetuity did not include ownership of the land or mineral deposits or standing timber upon the reservation, or that the tribe’s right was the mere equivalent of, or like, the title of a life tenant. The lower court did not err in holding that the right of the Shoshone Tribe included the timber and minerals within the reservation. Affirmed. Mr. Justice Stone and Mr. Justice Cardozo took no part in the consideration or decision of this case. Mr. Justice Reed dissents. U. S. V. KLAMATH INDIANS. 119 Syllabus. UNITED STATES v. KLAMATH AND MOADOC TRIBES OF INDIANS et al. APPEAL FROM THE COURT OF CLAIMS. No. 707. Argued April 1, 4, 1938.—Decided April 25, 1938. 1. In a treaty by which the Klamath and other tribes of Indians ceded land which they had held in immemorial possession, part was retained, “until otherwise directed by the President,” to be set apart as a residence for the Indians and “held and regarded as an Indian reservation.” Part of the reserved land was subsequently appropriated by the United States. Held: (1) That the words quoted did not detract from the tribes’ right of occupancy. P. 122. (2) In ascertaining just compensation for the land appropriated, the value of the standing timber should be included. Id. (3) While the United States has power to control and manage the affairs of its Indian wards in good faith for their welfare, that power is subject to constitutional limitations, and does not enable the United States without paying just compensation therefor to appropriate lands of an Indian tribe to its own use or to hand them over to others. P. 123. (4) The taking of property by the United States in the exertion of its power of eminent domain implies a promise to pay just compensation, i. e., value at the time of the taking plus an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking. Id. 2. Part of the unallotted portion of an Indian reservation was conveyed to a Road Company by the Secretary of the Interior under authority of Congress in exchange for a reconveyance of allotted land which had previously been conveyed by mistake. Held a valid exertion of the power of eminent domain, implying a promise by the Government to pay just compensation to the Indians. P. —. It was not a case of lands “wrongfully appropriated,” as to which the Act of May 26, 1920, which first conferred jurisdiction in this case, confined the damages to value of the lands at time of appropriation. P. 124. Congress, by the Act of May 15, 1936, conferring additional jurisdiction in this case upon the Court of Claims, intended to grant to the Indians the right to have their claim for just compensation, under the Constitution, for the land taken, judicially determined 120 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. without regard to an earlier settlement and irrespective of the release. P. 125. 85 Ct. Cis. 451, affirmed. Appeal, under the special jurisdictional Act of May 15, 1936, from a judgment sustaining the Indians’ claim to compensation for land taken by the United States. For an earlier phase, see 296 U. S. 244. Assistant Attorney General McFarland, with whom Solicitor General Jackson and Mr. C. W. Leaphart were on the brief, for the United States. Mr. G. Carroll Todd, with whom Messrs. Daniel B. Henderson and T. Hardy Todd were on the brief, for appellees. Mr. Justice Butler delivered the opinion of the Court. Congress, by Act of May .26, 1920,1 gave to the lower court jurisdiction of claims of respondents against the United States. They sued to recover the value of 87,000 acres of land alleged to have been taken from them by the United States August 22, 1906. The Court of Claims made special findings of fact, stated its conclusion of law and dismissed the case. We affirmed on the ground that the Act did not confer jurisdiction of released claims and that this claim had been released. 296 U. S. 244. Then, by Act of May 15, 1936,* 2 the Congress enacted “That in the suit numbered E-346 [this suit] heretofore instituted in the Court of Claims by the Klamath and Modoc Tribes and Yahooskin Band of Snake Indians under an Act . . . approved May 26, 1920, jurisdiction is hereby conferred upon said court, and it is hereby authorized and directed, irrespective of any release or settlement, to re- *41 Stat. 623. ’49 Stat. 1276. U. S. v. KLAMATH INDIANS. 121 119 Opinion of the Court. instate and retry said case and to hear and determine the claims of the plaintiffs on the merits, and to enter judgment thereon upon the present pleadings, evidence, and findings of fact, with the right of appeal, rather than by certiorari, to the Supreme Court of the United States by either party: Provided, That any payment heretofore made to the said Indians by the United States in connection with any release or settlement shall be charged as an offset, but shall not be treated as an estoppel.” The findings show: In 1864 plaintiffs held by immemorial possession more than 20,000,000 acres located within what now constitutes Oregon and California. By an Act3 of March 25 of that year the President was authorized to conclude with them a treaty for the purchase of the country they occupied. The treaty was made October 14 following.4 A proviso sets apart a tract retained out of the country a part of which was ceded, to be held until otherwise directed by the President, as a residence for plaintiffs, with specified privileges. Rights of way for public roads were reserved.5 Shortly before the treaty was made Congress granted Oregon, to aid in the construction of a military road, the odd-numbered sections for three in width on each side of the proposed road.6 Oregon accepted the grant and assigned it to the road company which undertook to construct the road. Congress recognized the assignment.7 Patents were issued to the State and to the road company for in all 420,240.67 acres, title to which was later acquired by a land company. Exclusive of right of way, 111,385 acres so acquired by that company were within the boundaries 813 Stat. 37. 4 Ratified July 2,1866; proclaimed February 17,1870. 16 Stat. 707. s 16 Stat. 708. ’Act of July 2, 1864, 13 Stat. 355. 7 Act of June 18, 1874, 18 Stat. 80. 122 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. of the reservation and had been allotted in severalty to members of the tribe. The United States brought suit but failed to recover that area.8 Congress by Act of June 21, 1906,9 authorized the Secretary of the Interior to exchange unallotted lands in the reservation for the allotted lands by mistake earlier conveyed. He made an agreement with the land company pursuant to which, on August 22, 1906, it conveyed the allotted lands back to the United States and in return the latter conveyed to the company 87,000 acres of unallotted lands. That transfer was made without the knowledge or consent of plaintiffs and without giving them any compensation for the lands so taken from their reservation. Later, however, the United States paid them $108,750 for which they released their claim.10 There was then upon the land 1,713,000,000 board feet of merchantable timber of the value of $1.50 per thousand; the value of the lands including timber was $2,980,000. From that amount the court subtracted the $108,750 and to the remainder added 5 per cent, per annum to date of judgment; from the total took the amount it found the United States entitled to set off against plaintiff’s claim (Act of May 26, 1920, 41 Stat. 623, § 2), and as of June 7, 1937, gave judgment for the balance $5,313,347.32, with interest on a part of that amount until paid. 1. The United States contends that the lower court erred in including the value of the timber. The tract taken was a part of the reservation retained by plaintiffs out of the country held by them in immemorial posses- 8 United States v. Dallas Road Co., 140 U. S. 599. United States v. California & Oregon Land Co., 148 U. S. 31. United States v. California & Oregon Land Co., 192 U. S. 355. 8 34 Stat. 325. 10 The release was held valid in Klamath Indians v. United States, 296 U. S. 244. U. S. v. KLAMATH INDIANS. 123 119 Opinion of the Court. sion, from which was made the cession by the treaty of October 14, 1864. The clause declaring that the district retained should, until otherwise directed by the President, be set apart as a residence for the Indians and “held and regarded as an Indian reservation” clearly did not detract from the tribes’ right of occupancy. The worth attributable to the timber was a part of the value of the land upon which it was standing. Plaintiffs were entitled to have that element of value included as a part of the compensation for the lands taken. United States v. Shoshone Tribe, ante, p. 111. 2. The United States also contends that the lower court erred in allowing interest against the United States on the unpaid value of the 87,000 acres from the time of the exchange to the date of the judgment, and to support that contention argues that there was no exercise of the power of eminent domain and that the jurisdictional Act of 1920 limited recovery to the value of the land on the date of the taking, without interest. It is appropriate first to observe that while the United States has power to control and manage the affairs of its Indian wards in good faith for their welfare, that power is subject to constitutional limitations, and does not enable the United States without paying just compensation therefor to appropriate lands of an Indian tribe to its own use or to hand them over to others. Chippewa Indians v. United States, 301 U. S. 358, 375, and cases cited. Nor is it quite accurate to say that interest as such is added to value at the time of the taking in order to arrive at just compensation subsequently ascertained and paid. The established rule is that the taking of property by the United States in the exertion of its power of eminent domain implies a promise to pay just compensation, i. e., value at the time of the taking plus an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking. Jacobs v. United States, 124 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. 290 U. S. 13, 16-17, and cases cited. The lands here in question are not the allotted areas making up the 111,385 acres that the United States conveyed by mistake and through error in the conduct of litigation, as its counsel here says, failed to recover.11 Plaintiffs seek compensation for the 87,000 acres given to the land company in exchange for the allotted areas which the latter then owned. Having been informed of the failure of the United States to recover the allotted lands, Congress, by the Act of March 3, 1905, directed the Secretary of the Interior to ascertain “on what terms the said company will exchange such lands [the 111,385 acres of allotted lands] for other lands, not allotted to Indians, within the original boundaries of said reservation.”* 12 The Secretary having reported, the Congress by the Act of June 21, 1906 authorized him to exchange 87,000 acres of the tribes’ lands for lands theretofore erroneously conveyed. The exchange having been consummated, Congress by Act of April 30, 190813 appropriated $108,750 as compensation. That amount was paid plaintiffs in accordance with the Act; they gave the release here held valid, 296 U. S. 244. The Act of May 15, 1936 followed. The United States argues that the rule of just compensation does not apply because “the tract was lost by mistake rather than taken by the power of eminent domain.” But as to the 87,000 acres here involved there is no foundation for that assertion. Unquestionably Congress had power to direct the exchange and for that purpose to authorize expropriation of plaintiffs’ lands. The validity of its enactments is not questioned. The taking was to enable the Government to discharge its obligation, u See footnote 8, supra. 12 33 Stat. 1033. 18 35 Stat. 70. U. S. v. KLAMATH INDIANS. 125 119 Opinion of the Court. whether legal or merely moral is immaterial, to make restitution of the allotted lands. The taking was in in-vitum, specifically authorized by law, a valid exertion of the sovereign power of eminent domain. It therefore implied a promise on the part of the Government to pay plaintiffs just compensation. Jacobs v. United States, supra. The provision of the Act of 1920 invoked by the United States is: “That if it be determined by the Court of Claims in the said suit herein authorized that the United States Government has wrongfully appropriated any lands belonging to the said Indians, damages therefor shall be confined to the value of the said land at the time of said appropriation. . . As shown above, the 87,000 acres were taken by valid exertion of the power of eminent domain. The taking was consummated pursuant to the Act of 1906; it was ratified by appropriation and payment under the Act of 1908. It implied a promise to pay just compensation. Clearly the lands in question were not “wrongfully appropriated.” Moreover the Congress by the Act of May 15, 1936 intended to grant to the plaintiffs the right to have their claim for just compensation under the Constitution for the 87,000 acres judicially determined without regard to the settlement and irrespective of the release.14 It spe 14 A letter of the Secretary of the Interior to the Committee on Indian Affairs on the proposed Act of 1936 said in part: “The bill now here seeks to authorize ‘effective judicial determination’ of the claim of these Indians for the land taken from their reservation and given to the California & Oregon Land Co., which the courts have plainly indicated to have been for an inadequate consideration.” H. Rep. No. 2354, 74th Cong., 2d Sess. The Report of the House Committee on Indian Affairs stated: “The pending bill to amend the jurisdictional act is limited solely to the object of giving effect to this suggestion of the Supreme Court by granting the Klamath tribes the right to have their claim for 126 OCTOBER TERM, 1937. Syllabus. 304 U. S. cifically directed the lower court to determine the claim of plaintiffs on the merits and to enter judgment thereon “upon the present pleadings, evidence and findings of fact.” Unquestionably the findings of fact are sufficient to sustain the judgment. Affirmed. Mr. Justice Stone, Mr. Justice Cardozo, and Mr. Justice Reed took no part in the consideration or decision of this case. Mr. Justice Black concurs in the result. GUARANTY TRUST CO. v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 566. Argued March 28, 29, 1938.—Decided April 25, 1938. 1. The rule which exempts the United States and the States from the operation of statutes of limitations rests not upon any inherited notion of royal prerogative but upon the public policy of protecting the public rights, and thereby the citizen, from injury through negligence of public officers. P. 132. 2. The benefit of this rule does not extend to a foreign sovereign suing in a state or federal court. P. 133. In such cases, the reason for the rule—the considerations of public policy above mentioned—are absent. just compensation under the Constitution for the taking of the 87,000 acres of their lands judicially determined on its merits without regard to the grossly inequitable settlement heretofore made.” H. Rep. No. 2354, 74th Cong., 2nd Sess. The Report of the Senate Committee on Indian Affairs stated: “The purpose of the bill is to enable these Indian tribes to obtain just compensation for the taking of a part of their reservation in the State of Oregon by the Secretary of the Interior under authority of an Act of Congress approved June 21, 1906.” S. Rep. No. 1749, 74th Cong., 2nd Sess. GUARANTY TRUST CO. v. U. S. 127 126 Syllabus. 3. The rights of a sovereign State are vested in the State rather than in any particular government which may purport to represent it, and suit in its behalf may be maintained in our courts only by that government which has been recognized by the political department of our own government as the authorized government of the foreign state. P. 136. 4. What government is to be regarded here as representative of a foreign sovereign state is a political rather than a judicial question, and is to be determined by the political department of our government. The action of that department in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts, which are bound to accept that determination, although they are free to decide for themselves its legal consequences in litigations pending before them. P. 137. 5. After the overthrow of the Imperial Russian Government, the United States recognized, March 22, 1917, the Provisional' Government of Russia; and thereafter the United States continued to recognize the Provisional Government and to recognize, as its representatives in this country, its Ambassador and the Financial Attaché of its Embassy,—until November 16, 1933, when the Soviet Government, which on November 7, 1917, had overthrown the Provisional Government, was for the first time recognized by the United States. At that same time the United States, through an agreement between the President and a representative of the Soviet Government, took from that government an assignment of all “amounts admitted to be due or that may be found to be due it, as the successor of prior Governments of Russia, or otherwise, from American nationals, including corporations . . .” The United States, as such assignee, then sued in a federal court in New York to recover from a New York bank the amount of a deposit which had stood to the credit of the Provisional Government. The bank set up the New York statute of limitations, claiming that in February, 1918, it had off-set the deposit against indebtedness due it by the Russian Government, and that on that date it had repudiated all liability on the deposit account, and that, prior to June 30, 1922, it had given due notice of such repudiation to both the Financial Attaché and the Ambassador of the Provisional Government, thus starting the running of the limitation period. Held: (1) That such notice of repudiation, given to the then duly recognized diplomatic representatives, was notice to the Russian State. P. 139. 128 OCTOBER TERM, 1937. Counsel for Parties. 304U.S. (2) That the later recognition of the Soviet Government left unaffected those legal consequences of the previous recognition of the Provisional Government and its representatives, which attached to action taken here prior to the later recognition. P. 140. (3) That if the statutory period has run against the claim of the Russian Government, the claim of the United States, as assignee, is likewise barred since: • (a) Proof that the statutory period had run before the assignment offends against no policy of protecting the domestic sovereign. It deprives the United States of no right, for the proof demonstrates that the United States never acquired a right free of a preexisting infirmity, the running of limitations against its assignor, which public policy does not forbid. P. 141. (b) Assuming that the respective rights of the bank and the Soviet Government could have been altered, and the bank’s right to plead the statute of limitations curtailed, by force of an executive agreement between the President and the Soviet Government, there is nothing in the agreement and assignment of November 16, 1933, purporting to enlarge the assigned rights in the hands of the United States, or to free it from the consequences of the failure of the Russian Government to prosecute its claim within the statutory period. P. 142. (4) Even the language of a treaty will be construed, wherever reasonably possible, so as not to override state laws or to impair rights arising under them. P. 143. 91 F. 2d 898, reversed. Certiorari, 302 U. S. 681, to review the reversal of a judgment dismissing the complaint in an action by the United States to recover from the present petitioner the amount of a bank deposit which the United States claimed as assignee of the Russian Government. The motion was based on the New York statute of limitations. Mr. John W. Davis, with whom Mr. Ralph M. Carson was on the brief, for petitioner. Assistant Attorney General Whitaker, with whom Solicitor General Jackson, and Messrs. David E. Hudson, Paul A. Sweeney, and Edward J. Ennis were on the brief, for the United States. GUARANTY TRUST CO. v. U. S. 129 126 Opinion of the Court. Mr. Justice Stone delivered the opinion of the Court. The principal questions for decision are whether, in a suit at law brought in a federal district court to recover the deposit of a foreign government with a New York bank, such government is subject to the local statute of limitations as are private litigants; and, if so, whether the assignment of November 16, 1933, by the Russian Soviet Government to the United States of the right of the former to the bank account restricts or overrides the operation of the statute of limitations. A subsidiary question is whether in the circumstances of the case the running of the statute of limitations, if otherwise applicable, was affected by our nonrecognition of the Soviet Government during the interval of approximately sixteen years between recognition of the Provisional Government of Russia and recognition of its successor. On July 15, 1916, the Imperial Russian Government opened a bank account with petitioner, the Guaranty Trust Company, a New York banking corporation. On March 16, 1917, the Imperial Government was overthrown and was succeeded by the Provisional Government of Russia which was recognized by the United States on March 22, 1917. On July 5, 1917, Mr. Boris Bakhmeteff was officially recognized by the President as the Ambassador of Russia. On July 12, 1917, the account being overdrawn, $5,000,000 was deposited in the account by Mr. Serge Ughet, Financial Attache of the Russian Embassy in the United States. On November 7, 1917, the Provisional Government was overthrown and was succeeded by the government of the Union of Soviet Socialist Republics, which will be referred to as the Soviet Government. At that time there remained on deposit in the account the sum of approximately $5,000,000. On November 28, 1917, the Soviet Government dismissed Bakhmeteff as Ambassador and Ughet as Financial At-81638°—38-----9 130 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. tache. But the United States continued to recognize Bakhmeteff as Ambassador until on June 30, 1922, he withdrew from his representation of the Russian Government. Thereafter, until November 16, 1933, it continued to recognize the Financial Attache, and after the retirement of Bakhmeteff as Ambassador it recognized the former as custodian of Russian property in the United States. On November 16, 1933, the United States recognized the Soviet Government, and on that date took from it an assignment of all “amounts admitted to be due that may be found to be due it, as the successor of prior Governments of Russia, or otherwise, from American nationals, including corporations . . .” After making demand upon the petitioner for payment of the balance of the account the United States, on Setember 21, 1934, brought the present suit in the district court for southern New York to recover the deposit. Petitioner then moved under the Conformity Act, 28 U. S. C. § 724; New York Civil Practice Act, § 307; and Rules 107 and 120 of the New York Rules of Civil Practice, to dismiss the complaint on the ground that the recovery was barred by the New York six year statute of limitations. In support of the motion petitioner submitted numerous affidavits, two depositions, and other documentary proof tending to show that on February 25, 1918, it had applied the balance of the account as a credit against indebtedness alleged to be due to it by the Russian Government by reason of the latter’s seizure of certain ruble deposit accounts of petitioner in Russian private banks; that on that date it had repudiated all liability on the deposit account; and that it had then given notice of such repudiation to the Financial Attache of the Russian Embassy and later both to the Financial Attache and to Bakhmeteff as Ambassador. The United States submitted affidavits and exhibits in opposition. The district court GUARANTY TRUST CO. v. U. S. 131 126 Opinion of the Court. found that petitioner had repudiated liability on the account on February 25, 1918; that it had given due notice of repudiation prior to June 30,1922 to both the Financial Attache and Ambassador Bakhmeteff; and that recovery was barred by the applicable six year statute of limitations of New York. New York Civil Practice Act, § 48. The Court of Appeals for the second circuit reversed the judgment for petitioner, holding that the New York statute of limitations does not run against a foreign sovereign. 91 F. (2d) 898. Moved by the importance of the questions involved, we granted certiorari. Respondent argues that the Soviet Government, in a suit brought in the federal courts, is not subject to the local statute of limitations, both because a foreign, like a domestic, sovereign is not subject to statutes of limitations, and its immunity as in the case of a domestic sovereign constitutes an implied exception to that statute and to the Conformity Act; and because in any case, since no suit to recover the deposit could have been maintained in New York‘by the Soviet Government prior to its recognition by the United States, and since according to New York law the statute does not run during the period when suit cannot be brought, the present suit is not barred. It is insisted further that even though the Soviet Government is bound by the local statute of limitations the United States is not so bound, both because the New York statute which bars the remedy but does not extinguish the right is not applicable to the United States, and because the statute is inoperative and ineffective since it conflicts with and impedes the execution of the Executive Agreement between the Soviet Government and the United States by which the assignment was effected. Finally, the Government assails the finding of fact of the district court that petitioner repudiated the liability upon the deposit account, and contends that notice of the repudiation given by petitioner to representa 132 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. tives of the Provisional Government was ineffective to set the statute running against the Soviet Government and in favor of petitioner. First. The rule quod nullum tempus occurrit regi— that the sovereign is exempt from the consequences of its laches, and from the operation of statutes of limitations— appears to be a vestigial survival of the prerogative of the Crown. See Magdalen College Case, 11 Co. Rep. 66b, 74b; Hobart, L. C. J. in Sir Edward Coke’s Case, Godb. 289, 295; Bracton, De Legibus, Lib. ii, c. 5, § 7. But whether or not that alone accounts for its origin, the source of its continuing vitality where the royal privilege no longer exists is to be found in the public policy now underlying the rule even though it may in the beginning have had a different policy basis. Compare Maine, Ancient Law (10th ed., 1930) 32 et seq. “The true reason ... is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers. And though this is sometimes called a prerogative right, it is in fact nothing more than a reservation, or exception, introduced for the public benefit, and equally applicable to all governments.” Story, J., in United States n. Hoar, Fed. Cas. No. 15,373, p. 330. Regardless of the form of government and independently of the royal prerogative once thought sufficient to justify it, the rule is supportable now because its benefit and advantage extend to every citizen, including the defendant, whose plea of laches or limitation it precludes; and its uniform survival in the United States has been generally accounted for and justified on grounds of policy rather than upon any inherited notions of the personal privilege of the king. United States v. Kirkpatrick, 9 Wheat. 720, 735; United States v. Knight, 14 Pet. 301, 315; United States v. Thompson, 98 U. S. 486, 489; Fink v. O’Neil, 106 U. S. 272, 281; United States v. Nashville, C. & St. L. GUARANTY TRUST CO. v. U. S. 133 126 Opinion of the Court. R. Co., 118 U. S. 120, 125. So complete has been its acceptance that the implied immunity of the domestic “sovereign,” state or national, has been universally deemed to be an exception to local statutes of limitations where the government, state or national, is not expressly included; and to the Conformity Act. See United States v. Thompson, supra. Whether the benefit of the rule should be extended to a foreign sovereign suing in a state or federal court is a question to which no conclusive answer is to be found in the authorities. Diligent search of counsel has revealed no judicial decision supporting such an application of the rule in this or any other country. The alleged immunity was doubted in French Republic v. Saratoga Vichy Spring Co., 191 U. S. 427, 437, and in Commissioners of the Sinking Fund v. Buckner, 48 Fed. 533. It was rejected in Western Lunatic Asylum v. Miller, 29 W. Va. 326, 329; 1 S. E. 740, and was disregarded in Royal Italian Government v. International Committee of Y. M. C. A., 273 N. Y. 468; 6 N. E. 2d 407, where neither appellate court delivered an opinion. The only support found by the court below for a different conclusion is a remark in the opinion of the Court in United States v. Nashville, C. & St. L. R. Co., supra, where its holding that the United States, suing in a federal court, is not subject to the local statute of limitations, was said to rest upon a great principle of public policy “applicable to all governments alike.” The statement is but a paraphrase, which has frequently appeared in judicial opinion,1 of Mr. Justice Story’s statement in United States v. Hoar, supra, already quoted. His reference to the public policy supporting the rule that limitation does not run against a domestic sovereign as “equally appli- 1 United States v. Knight, 14 Pet. 301, 315; Gibson v. Chouteau, 13 Wall. 92, 99; United States v. Thompson, 98 U. S. 486, 490; Fink v. O’Neil, 106 U. S. 272, 281. 134 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. cable to all governments” was obviously designed to point out that the policy is as applicable to our own as to a monarchical form of government, and is therefore not to be discarded because of its former identity with the royal prerogative. We can find in that pronouncement and in its later versions no intimation that the policy underlying exemption of the domestic sovereign supports its extension to a foreign sovereign suing in our courts. It is true that upon the principle of comity foreign sovereigns and their public property are held not to be amenable to suit in our courts without their consent. See The Exchange, 7 Cranch 116; Berizzi Bros. Co. v. S. & Pesaro, 271 U. S. 562, Compania Espanola v. The Navemar, 303 U. S. 68. But very different considerations apply where the foreign sovereign avails itself of the privilege, likewise extended by comity, of suing in our courts. See The Sapphire, 11 Wall. 164, 167; Russian S. F. S. Republic v. Cibrario, 235 N. Y. 255; 139 N. E. 259. By voluntarily appearing in the role of suitor it abandons its immunity from suit and subjects itself to the procedure and rules of decision governing the forum which it has sought. Even the domestic sovereign by joining in suit accepts whatever liabilities the court may decide to be a reasonable incident of that act. United States v. The Thekla, 266 U. S. 328, 340, 341; United States v. Stinson, 197 U. S. 200, 205; The Davis, 10 Wall. 15; The Siren, 7 Wall. 152, 159.2 3 As in the case of the domestic sovereign 2 A foreign sovereign as suitor is subject to the local rules of the domestic forum as to costs, Republic of Honduras v. Soto, 112 N. Y. 310; 19 N. E. 845; Emperor of Brazil v. Robinson, 5 Dowl. Pr. 522; Otho, King of Greece, v. Wright, 6 Dowl. Pr. 12; The Beatrice, 36 L. J. Rep. Adm. (N. S.) 10; Queen of Holland v. Drukker, (1928) Ch. 877, 884, although the local soverign does not pay costs. United States v. Verdier, 164 U. S. 213, 219. The foreign sovereign suing as a plaintiff must give discovery. Rothschild v. Queen of Portugal, 3 Y. & C. Ex. 594, 596; United States v. Wagner, L. R. 2 Ch. App. 582, 592, 595; Prioleau v. United States, L. R. 2 Eq. 659. A foreign GUARANTY TRUST CO. v. U. S. 135 126 Opinion of the Court. in like situation, those rules, which must be assumed to be founded on principles of justice applicable to individuals, are to be relaxed only in response to some persuasive demand of public policy generated by the nature of the suitor or of the claim which it asserts. That this is the guiding principle sufficiently appears in the many instances in which courts have narrowly restricted the application of the rule nullum tempus in the case of the domestic sovereign.3 It likewise appears from those cases which justify the rule as applied to the United States suing in a state court, on the ground that it is sovereign within the state and that invocation of the rule nullum tempus protects the public interest there as well as in every other state. United States v. Beebe, 127 U. S. 338; Swearingen v. United States, 11 Gill. & J. 373; McNamee v. United States, 11 Ark. 148; cf. United States v. California, 297 U. S. 175, 186. We are unable to discern in the case where a foreign sovereign, by suit, seeks justice according to the law of the forum, any of the considerations of public policy sovereign plaintiff “should so far as the thing can be done be put in the same position as a body corporate.” Republic of Costa Rica v. Erlanger, L. R. 1 Ch. D. 171, 174; Republic of Peru n. Weguelin, L. R. 20 Eq. 140, 141; cf. King of Spain v. Hallett, 7 Bligh N. 8. 359, 392. aThe presumption of a grant by lapse of time will be indulged against the domestic sovereign. United States v. Chaves, 159 U. S. 452, 464. The rule nullum tempus has never been extended to agencies or grantees of the local sovereign such as municipalities, county boards, school districts and the like. Metropolitan R. Co. v. District of Columbia, 132 U. S. 1; Boone County v. Burlington & Missouri River R. Co., 139 U. S. 684, 693. It has been held not to relieve the sovereign from giving the notice required by local law to charge endorsers of negotiable paper, United States v. Barker, 12 Wheat. 559; cf. Cooke v. United States, 91 U. S. 389, 398; Wilber National Bank v. United States, 294 U. S. 120, 124, and in tax cases has been narrowly construed against the domestic sovereign. Bowers v. New York & Albany Lighterage Co. 273 U. S. 346, 350. Compare United States v. Knight, 14 Pet. 301; Fink v. O’Neil, 106 U. S. 272. 136 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. which support the application of the rule nullum tempus to a domestic sovereign. The statute of limitations is a statute of repose, designed to protect the citizens from stale and vexatious claims, and to make an end to the possibility of litigation after the lapse of a reasonable time. It has long been regarded by this Court and by the courts of New York as a meritorious defense, in itself serving a public interest. Bell n. Morrison, 1 Pet. 351, 360; M’Cluny v. Silliman, 3 Pet. 270, 278; Campbell v. Haverhill, 155 U. S. 610, 617; United States v. Oregon Lumber Co., 260 U. S. 290; Brooklyn Bank v. Barnaby, 197 N. Y. 210, 227; 90 N. E. 834; Schmidt v. Merchants Despatch Transportation Co., 270 N. Y. 287, 302; 200 N. E. 824. Denial of its protection against the demand of the domestic sovereign in the interest of the domestic community of which the debtor is a part could hardly be thought to argue for a like surrender of the local interest in favor of a foreign sovereign and the community which it represents. We cannot say that the public interest of the forum goes so far. We lay aside questions not presented here which might arise if the national government, in the conduct of its foreign affairs, by treaty or other appropriate action, should undertake to restrict the application of local statutes of limitations against foreign governments, or if the states in enacting them should discriminate against suits brought by a foreign governmenf. We decide only that in the absence of such action the limitation statutes of the forum run against a foreign government seeking a remedy afforded by the forum, as they run against private litigants. Second. Respondent, relying on the New York rules that the statute of limitations does not run against a suit to recover a bank account until liability upon it is repudiated, Tillman v. Guaranty Trust Co., 253 N. Y. 295; 171 N. E. 61, and that the statute of limitations GUARANTY TRUST CO. v. U. S. 137 126 Opinion of the Court. does not run against a plaintiff who has no forum in which to assert his rights, Oswego & Syracuse R. Co. v. State, 226 N. Y. 351, 359, 362; 124 N. E. 8; Cayuga County v. State, 153 N. Y. 279, 291; 47 N. E. 288; Parmenter v. State, 135 N. Y. 154, 163 ; 31 N. E. 1035, argues that until recognition of the Soviet Government there was no person to whom notice of petitioner’s repudiation could be given and no court in which suit could be maintained to recover the deposit. It is not denied that, in conformity to generally accepted principles, the Soviet Government could not maintain a suit in our courts before its recognition by the political department of the Government. For this reason access to the federal and state courts was denied to the Soviet Government before recognition. The Penza, 277 Fed. 91; The Rogdai, 278 Fed. 294; Russian S. F. S. Republic v. Cibrario, 235 N. Y. 255; Preobazhenski v. Cibrario, 192 N. Y. Supp. 275. But the argument ignores the principle controlling here and recognized by the courts of New York that the rights of a sovereign state are vested in the state rather than in any particular government which may purport to represent it, The Sapphire, supra, 168, and that suit in its behalf may be maintained in our courts only by that government which has been recognized by the political department of our own government as the authorized government of the foreign state. Jones v. United States, 137 U. S. 202, 212; Russian Government v. Lehigh Valley R. Co., 293 Fed. 133, 135, aff’d sub nom. Lehigh Valley R. Co. v. State of Russia, 21 F. (2d) 396, 409; Matter of Lehigh Valley R. Co., 265 U. S. 573; Russian S. F. S. Republic v. Cibrario, supra; Moore, International Law Digest, §§ 75, 78. What government is to be regarded here as representative of a foreign sovereign state is a political rather than a judicial question, and is to be determined by the political department of the government. Objections to its deter 138 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. mination as well as to the underlying policy are to be addressed to it and not to the courts. Its action in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts, which are bound to accept that determination, although they are free to draw for themselves its legal consequences in litigations pending before them. Jones v. United States, supra, 212; Agency of Canadian Car & F. Co. v. American Can Co., 258 Fed. 363; Lehigh Valley R. Co. v. State of Russia, supra. We accept as conclusive here the determination of our own State Department that the Russian State was represented by the Provisional Government through its duly recognized representatives from March 16, 1917 to November 16, 1933, when the Soviet Government was recognized.4 There was at all times during that period a recog- 4 The United States accorded recognition to the Provisional Government March 16, 1917 and continued to recognize it until November 16, 1933, when the Soviet Government was recognized. During that period the United States declined to recognize the Soviet Government or to receive its accredited representative, and so certified in litigations pending in the federal courts. The Penza, supra; The Rogdai, supra. It recognized Mr. Bakhmeteff as Russian Ambassador from July 5, 1917 until June 30, 1922, when he retired, having designated Mr. Ughet as custodian of Russian property in the United States. Mr. Ughet, after his appointment as Financial Attache April 7, 1917, continued to be recognized as such by the United States until November 16, 1933. He was recognized by the United States as Charge d’Affaires ad interim, during the absence of the Ambassador from December 3, 1918 to July 31, 1919. Their diplomatic status as stated was certified in the present suit by the Secretary of State, who stated that he considered Mr. Ughet’s status unaffected by the termination of the Ambassador’s duties. Their status was certified to by the Department on October 31, 1918 and July 2, 1919, respectively, in Russian Government v. Lehigh Valley R. Co., 293 Fed. 133. Mr. Bakhmeteff’s status as Ambassador was certified May 18, 1919 in Agency of Canadian Car & Foundry Co. v. American Can Co., 258 Fed. 363, 368; on April 6, 1920 in The Rogdai, 278 Fed. 294, 295; on June 24, 1919 in The Penza, GUARANTY TRUST CO. v. U. S. 139 126 Opinion of the Court. nized diplomatic representative of the Russian State to whom notice concerning its interests within the United States could be communicated, and to whom our courts were open for the purpose of prosecuting suits in behalf of the Russian State. In fact, during that period suits were brought in its behalf in both the federal and state courts, which consistently ruled that the recognized Ambassador and Financial Attache were authorized to maintain them.* 6 We do not stop to inquire what the “actual” authority of those diplomatic representatives may have been. When the question is of the running of the statute of limitations, it is enough that our courts have been open to suit on behalf of the Russian State in whom the right to sue upon the petitioner’s present claim was vested, and that the political department of the Government has accorded recognition to a government of that state, received its diplomatic representatives, and extended to them the privilege of maintaining suit in our courts in behalf of their state. The right and opportunity to sue upon the claim against petitioner was not suspended; and notice of repudiation of the liability given to the duly recognized diplomatic representatives must, so far as our 277 Fed. 91, 93. Certificate with respect to both Mr. Bakhme-teff and Mr. Ughet was given February 19, 1923 and with respect to Mr. Ughet December 22, 1927. On the faith of the two last mentioned certificates the Court, in the Lehigh Valley Railroad case, supra, as stated by the Government’s brief in the present case, ordered to be paid to Mr. Ughet approximately $1,000,000, of which more than $700,000 was paid to the United States Treasurer “on account of interest due on obligations of the Provisional Government of Russia by the Treasurer.” 6 Russian Government v. Lehigh Valley R. Co., 293 Fed. 133; 293 Fed. 135, aff’d 21 F. (2d) 396; State of Russia v. Bankers’ Trust Co., 4 F. Supp. 417, 419, aff’d 83 F. (2d) 236. See also Agency of Canadian Car & Foundry Co. v. American Can Co., 258 Fed. 363. 140 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. own courts are concerned, be taken as notice to the state which they represented. The Government argues that recognition of the Soviet Government, an action which for many purposes validated here that government’s previous acts within its own territory, see Underhill v. Hernandez, 168 U. S. 250; Oetjen v. Central Leather Co., 246 U. S. 297; Ricaud v. American Metal Co., 246 U. S. 304; United States v. Belmont, 301 U. S. 324; Dougherty v. Equitable Life Assurance Society, 266 N. Y. 71, 84, 85; 193 N. E. 897; Luther v. Sagor Co., [1921] 3 K. B. D. 532, operates to set at naught all the legal consequences of the prior recognition by the United States of the Provisional Government and its representatives, as though such recognition had never been accorded. This is tantamount to saying that the judgments in suits maintained here by the diplomatic representatives of the Provisional Government, valid when rendered, became invalid upon recognition of the Soviet Government. The argument thus ignores the distinction between the effect of our recognition of a foreign government with respect to its acts within its own territory prior to recognition, and the effect upon previous transactions consummated here between its predecessor and our own nationals. The one operates only to validate to a limited extent acts of a de facto government which by virtue of the recognition, has become a government de jure. But it does not follow that recognition renders of no effect transactions here with a prior recognized government in conformity to the declared policy of our own Government. The very purpose of the recognition by our Government is that our nationals may be conclusively advised with what government they may safely carry on business transactions and who its representatives are. If those transactions, valid when entered into, were to be disregarded after the later recognition of a successor government, recognition GUARANTY TRUST CO. v. U. S. 141 126 Opinion of the Court. would be but an idle ceremony, yielding none of the advantages of established diplomatic relations in enabling business transactions to proceed, and affording no protection to our own nationals in carrying them on. So far as we are advised no court has sanctioned such a doctrine. The notion that the judgment in suits maintained by the representative of the Provisional Government would not be conclusive upon all successor governments, was considered and rejected in Russian Government v. Lehigh Valley R. Co., supra. An application for writ of prohibition was denied by this Court. 265 U. S. 573. We conclude that the recognition of the Soviet Government left unaffected those legal consequences of the previous recognition of the Provisional Government and its representatives, which attached to action taken here prior to the later recognition. Third. If the claim of the Russian Government was barred by limitation the United States as its assignee can be in no better position either because of the rule nullum tempus or by virtue of the terms of the assignment. We need waste no time on refinements upon the suggested distinction between rights and remedies, for we may assume for present purposes that the United States acquired by the assignment whatever rights then survived the running of the statute against the Russian Government, and that it may assert those rights subject to such plea of limitations as may be made by petitioner. As has already been noted, the rule nullum tempus rests on the public policy of protecting the domestic sovereign from omissions of its own officers and agents whose neglect, through lapse of time, would otherwise deprive it of rights. But the circumstances of the present case admit of no appeal to such a policy. There has been no neglect or delay by the United States or its agents, and it has lost no rights by any lapse of time after the assignment. The question is whether the exemption of the United States 142 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. from the consequences of the neglect of its own agents is enough to relieve it from the consequences of the Russian Government’s failure to prosecute the claim. Proof, under a plea of limitation, that the six-year statutory period had run before the assignment offends against no policy of protecting the domestic sovereign. It deprives the United States of no right, for the proof demonstrates that the United States never acquired a right free of a preexisting infirmity, the running of limitations against its assignor, which public policy does not forbid. United States v. Buford, 3 Pet. 12, 30; King v. Mor roll, 6 Price 24, 28, 30. Assuming that the respective rights of petitioner and the Soviet Government could have been altered and that petitioner’s right to plead the statute of limitations curtailed by force of an executive agreement between the President and the Soviet Government, we can find nothing in the agreement and assignment of November 16, 1933, which purports to enlarge the assigned rights in the hands of the United States, or to free it from the consequences of the failure of the Russian Government to prosecute its claim within the statutory period. The agreement and assignment are embodied in a letter of Mr. Litvinov, People’s Commissar of Foreign Affairs of the Soviet Government, to the President and the President’s letter of the same date in reply. So far as now relevant the document signed in behalf of the Soviet Government makes mention of “amounts admitted to be due or that may be found to be due it as the successor of prior governments or otherwise from American nationals, including corporations, companies, partnerships or associations.” It purports to “release and assign all such amounts to the Government of the United States” and the Soviet Government agrees, preparatory to final settlement of claims between it and the United States and the claims of their nationals, “not to make any claims with GUARANTY TRUST CO. v. U. S. 143 126 Opinion of the Court. respect to . . . (b) Acts done or settlements made by or with the Government of the United States, or public officials of the United States, or its nationals, relating to property, credits, or obligations of any Government of Russia or nationals thereof.” The relevant portion of the document signed by the President is expressed in the following paragraph: “I am glad to have these undertakings by your Government and I shall be pleased to notify your Government in each case of any amount realized by the Government of the United States from the release and assignment to it of the amounts admitted to be due, or that may be found to be due.” There is nothing in either document to suggest that the United States was to acquire or exert any greater rights than its transferor or that the President by mere executive action purported or intended to alter or dimin-ish the rights of the debtor with respect to any assigned claims, or that the United States, as assignee, is to do more than the Soviet Government could have done after diplomatic recognition—that is, collect the claims in conformity to local law. Even the language of a treaty wherever reasonably possible will be construed so as not to override state laws or to impair rights arising under them. United States v. Arredondo, 6 Pet. 691, 748; Haver v. Yaker, 9 Wall. 32, 34; Dooley v. United States, 182 U. S. 222, 230; Nielsen v. Johnson, 279 U. S. 47, 52; Todok v. Union State Bank, 281 U. S. 449, 454. The assignment left unaffected the right of petitioner to set up against the United States the previous running of the statute of limitations. Fourth. Respondent assails the finding of the district court that there was an unqualified repudiation by petitioner of its liability on the account, and in support of its contention presents an elaborate review of the evidence, The evidence is said to establish that petitioner’s 144 OCTOBER TERM, 1937. Syllabus. 304 U. S. alleged repudiation was tentative and conditional, to await negotiations with a stable Russian government upon its recognition by the United States. If this contention be rejected, respondent insists that at least there is a conflict in the evidence and in the inferences which may be drawn from it which, under the local practice, should have been resolved by a full trial rather than summarily on motion. As these questions were not passed on by the Court of Appeals, the case will be remanded to that court for further proceedings in conformity with this opinion. Reversed. Mr. Justice Cardozo and Mr. Justice Reed took no part in the consideration or decision of this case. UNITED STATES v. CAROLENE PRODUCTS CO. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS. No. 640. Argued April 6, 1938.—Decided April 25, 1938. The Filled Milk Act of Congress of Mar. 4, 1923, defines the term Filled Milk as meaning any milk, cream, or skimmed milk, whether or not condensed or dried, etc., to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed, dried, etc.; it declares that Filled Milk, as so defined, “is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public”; and it forbids and penalizes the shipment of such Filled Milk in interstate commerce. Defendant was indicted for shipping interstate certain packages of an article described in the indictment as a compound of condensed skimmed milk and coconut oil made in the imitation or semblance of condensed milk or cream, and further characterized by the indictment, in the words of the statute, as “an adulterated article of food, injurious to the public health.” Held: U. S. v. CAROLENE PRODUCTS CO. 145 144 Opinion of the Court. 1. That upon its face, and as supported by judicial knowledge, including facts found in the reports of the congressional commits tees, the Act is presumptively within the scope of the power to regulate interstate commerce and consistent with due process. Demurrer to the indictment should have been overruled. Hebe Co. v. Shaw, 248 U. S. 297. P. 147. 2. It is no valid objection that the prohibition of the Act does not extend to oleomargarine or other butter substitutes in which vegetable fats or oils replace butter. P. 151. 3. The statutory characterization of filled milk as injurious to health and as a fraud upon the public may, for the purposes of this case, be considered as a declaration of legislative findings deemed to support the Act as a constitutional exertion of the legislative power, aiding informed judicial review by revealing the rationale of the legislation, as do the reports of legislative committees. P. 152. 7 F. Supp. 500, reversed. Appeal under the Criminal Appeals Act from a judgment sustaining a demurrer to an indictment. Assistant Attorney General McMahon, with whom Acting Solicitor General Bell, and Messrs. William W. Barron and Paul A. Freund were on the brief, for the United States. Mr. Geo. N. Murdock for appellee. Mr. Justice Stone delivered the opinion of the Court. The question for decision is whether the “Filled Milk Act” of Congress of March 4, 1923 (c. 262, 42 Stat. 1486, 21 U. S. C. §§ 61-63),1 which prohibits the shipment in 1 The relevant portions of the statute are as follows: “Section 61. . . . (c) The term ‘filled milk’ means any milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream, or skimmed milk, whether 81638°—38---10 146 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream, transcends the power of Congress to regulate interstate commerce or infringes the Fifth Amendment. Appellee was indicted in the district court for southern Illinois for violation of the Act by the shipment in interstate commerce of certain packages of “Milnut,” a compound of condensed skimmed milk and coconut oil made in imitation or semblance of condensed milk or cream. The indictment states, in the words of the statute, that Milnut “is an adulterated article of food, injurious to the public health,” and that it is not a prepared food product of the type excepted from the prohibition of the Act. The trial court sustained a demurrer to the indictment on the authority of an earlier case in the same court, United States v. Carotene Products Co., 7 F. Supp. 500. The case was brought here on appeal under the Criminal Appeals Act of March 2, 1907, 34 Stat. 1246, 18 U. S. C. § 682. The Court of Appeals for the Seventh Circuit has meanwhile, in another case, upheld the Filled Milk Act as an appropriate exercise of the commerce power in Carotene Products Co. v. Evaporated Milk Assn., 93 F. (2d) 202. Appellee assails the statute as beyond the power of Congress over interstate commerce, and hence an invasion of a field of action said to be reserved to the states by the Tenth Amendment. Appellee also complains that the or not condensed, evaporated, concentrated, powdered, dried, or desiccated. . . . “Section 62. ... It is hereby declared that filled milk, as herein defined, is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public. It shall be unlawful for any person to . . . ship or deliver for shipment in interstate or foreign commerce, any filled milk.” Section 63 imposes as penalties for violations “a fine of not more than $1,000 or imprisonment of not more than one year, or both . . U. S. v. CAROLENE PRODUCTS CO. 147 144 Opinion of the Court. statute denies to it equal protection of the laws and, in violation of the Fifth Amendment, deprives it of its property without due process of law, particularly in that the statute purports to make binding and conclusive upon appellee the legislative declaration that appellee’s product “is an adulterated article of food injurious to the public health and its sale constitutes a fraud on the public.” First. The power to regulate commerce is the power “to prescribe the rule by which commerce is to be governed,” Gibbons v. Ogden, 9 Wheat. 1, 196, and extends to the prohibition of shipments in such commerce. Reid v. Colorado, 187 U. S. 137; Lottery Case, 188 U. S. 321; United States v. Delaware & Hudson Co., 213 U. S. 366; Hope v. United States, 227 U. S. 308; Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311; United States v. Hill, . 248 U. S. 420; McCormick & Co. v. Brown, 286 U. S. 131. The power “is complete in itself, may be exercised to its utmost extent and acknowledges no limitations other than are prescribed by the Constitution.” Gibbons v. Ogden, supra, 196. Hence Congress is free to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injurious to the public health, morals or welfare, Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, 220 U. S. 45; Hope v. United States, supra, or which contravene the policy of the state of their destination. Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U. S. 334. Such regulation is not a forbidden invasion of state power either because its motive or its consequence is to restrict the use of articles of commerce within the states of destination, and is not prohibited unless by the due process clause of the Fifth Amendment. And it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. Seven Cases v. United States, 239 U. S. 510, 514; Hamilton v. Kentucky 148 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. Distilleries & Warehouse Co., 251 U. S. 146, 156. The prohibition of the shipment of filled milk in interstate commerce is a permissible regulation of commerce, subject only to the restrictions of the Fifth Amendment. Second. The prohibition of shipment of appellee’s product in interstate commerce does not infringe the Fifth Amendment. Twenty years ago this Court, in Hebe Co. v. Shaw, 248 U. S. 297, held that a state law which forbids the manufacture and sale of a product assumed to be wholesome and nutritive, made of condensed skimmed milk, compounded with coconut oil, is not forbidden by the Fourteenth Amendment. The power of the legislature to secure a minimum of particular nutritive elements in a widely used article of food and to protect the public from fraudulent substitutions, was not doubted; and the Court thought that there was ample scope for the legislative judgment that prohibition of the offending article was an appropriate means of preventing injury to the public. We see no persuasive reason for departing from that ruling here, where the Fifth Amendment is concerned; and since none is suggested, we might rest decision wholly on the presumption of constitutionality. But affirmative evidence also sustains the statute. In twenty years evidence has steadily accumulated of the danger to the public health from the general consumption of foods which have been stripped of elements essential to the maintenance of health. The Filled Milk Act was adopted by Congress after committee hearings, in the course of which eminent scientists and health experts testified. An extensive investigation was made of the commerce in milk compounds in which vegetable oils have been substituted for natural milk fat, and of the effect upon the public health of the use of such compounds as a food substitute for milk. The conclusions drawn from evidence presented at the hearings were embodied in reports of the U. S. v. CAROLENE PRODUCTS CO. 149 144 Opinion of the Court. House Committee on Agriculture, H. R. No. 365, 67th Cong., 1st Sess., and the Senate Committee on Agriculture and Forestry, Sen. Rep. No. 987, 67th Cong., 4th Sess. Both committees concluded, as the statute itself declares, that the use of filled milk as a substitute for pure milk is generally injurious to health and facilitates fraud on the public.2 There is nothing in the Constitution which compels a legislature, either national or state, to ignore such evidence, nor need it disregard the other evidence which amply supports the conclusions of the Congressional committees that the danger is greatly enhanced where an inferior product, like appellee’s, is indistinguishable from 2 The reports may be summarized as follows: There is an extensive commerce in milk compounds made of condensed milk from which the butter fat has been extracted and an equivalent amount of vegetable oil, usually coconut oil, substituted. These compounds resemble milk in taste and appearance and are distributed in packages resembling those in which pure condensed milk is distributed. By reason of the extraction of the natural milk fat the compounded product can be manufactured and sold at a lower cost than pure milk. Butter fat, which constitutes an important part of the food value of pure milk, is rich in vitamins, food elements which are essential to proper nutrition and are wanting in vegetable oils. The use of filled milk as a dietary substitute for pure milk results, especially in the case of children, in undernourishment, and induces diseases which attend malnutrition. Despite compliance with the branding and labeling requirements of the Pure Food and Drugs Act, there is widespread use of filled milk as a food substitute for pure milk. This is aided by their identical taste and appearance, by the similarity of the containers in which they are sold, by the practice of dealers in offering the inferior product to customers as being as good as or better than pure condensed milk sold at a higher price, by customers’ ignorance of the respective food values of the two products, and in many sections of the country by their inability to read the labels placed on the containers. Large amounts of filled milk, much of it shipped and sold in bulk, are purchased by hotels and boarding houses, and by manufacturers of food products, such as ice cream, to whose customers labeling restrictions afford no protection. 150 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. a valuable food of almost universal use, thus making fraudulent distribution easy and protection of the consumer difficult.8 8 There is now an extensive literature indicating wide recognition by scientists and dietitians of the great importance to the public health of butter fat and whole milk as the prime source of vitamins, which are essential growth producing and disease preventing elements in the diet. See Dr. Henry C. Sherman, The Meaning of Vitamin A, in Science, Dec. 21, 1928, p. 619; Dr. E. V. McCollum et al., The Newer Knowledge of Nutrition (1929 ed.), pp. 134, 170, 176, 177; Dr. A. S. Root, Food Vitamins (N. Car. State Board of Health, May 1931), p. 2; Dr. Henry C. Sherman, Chemistry of Food and Nutrition (1932), p. 367; Dr. Mary S. Rose, The Foundations of Nutrition (1933), p. 237. When the Filled Milk Act was passed, eleven states had rigidly controlled the exploitation of filled milk, or forbidden it altogether. H. R. 365, 67th Cong., 1st Sess. Some thirty-five states have now adopted laws which in terms, or by their operation, prohibit the sale of filled milk. Ala. Agri. Code, 1927, § 51, Art. 8; Ariz. Rev. Code, 1936 Supp., § 943y; Pope’s Ark. Dig. 1937, § 3103; Deering’s Cal. Code, 1933 Supp., Tit. 149, Act 1943, p. 1302; Conn. Gen. Stat., 1930, § 2487, c. 135; Del. Rev. Code, 1935, § 649; Fla. Comp. Gen. Laws, 1927, §§ 3216, 7676; Ga. Code, 1933, § 42-511; Idaho Code, 1932, Tit. 36, §§ 502-504; Jones Ill. Stat. Ann., 1937 Supp., § 53.020 (1), (2), (3); Bums Ind. Stat., 1933, § 35-1203; Iowa Code, 1935, § 3062; Kan. Gen. Stat., 1935, c. 65, § 707; Md. Ann. Code, Art. 27, § 281; Mass. Ann. Laws, 1933, § 17-A, c. 94; Mich. Comp. Laws, 1929, § 5358; Mason’s Minn. Stat., 1927, § 3926; Mo. Rev. Stat., 1929, §§ 12408-12413; Mont. Rev. Code, Anderson and McFarland, 1935, c. 240, § 2620.39; Neb. Comp. Stat., 1929, § 81-1022; N. H. Pub. L. 1926, v. 1, c. 163, § 37, p. 619; N. J. Comp. Stat., 1911-1924, § 81—Sj, p. 1400; Cahill’s N. Y. Cons. Laws, 1930, § 60, c. 1; N. D. Comp. Laws, 1913-1925, Pol. Code, c. 38, § 2855 (a) 1; Page’s Ohio Gen. Code, § 12725; Purdon’s Penna. Stat., 1936, Tit. 31, §§ 553, 582; S. D. Comp. Laws, 1929, c. 192, § 7926-0, p. 2493; Williams Tenn. Code, 1934, c. 15, §§ 6549, 6551; Vernon’s Tex. Pen. Code, Tit. 12, c. 2, Art. 713a; Utah Rev. Stat., 1933, §§ 3-10-59, 3-10-60; Vt. Pub. L., 1933, Tit. 34, c. 303, § 7724, p. 1288; Va. 1936 Code, § 1197c; W. Va. 1932 Code, § 2036; Wis. Stat., 11th ed. 1931, c. 98, § 98.07, p. 1156; cf. N. Mex. Ann. Stat., 1929, U. S. v. CAROLENE PRODUCTS CO. 151 144 Opinion of the Court. Here the prohibition of the statute is inoperative unless the product is “in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed.” Whether in such circumstances the public would be adequately protected by the prohibition of false labels and false branding imposed by the Pure Food and Drugs Act, or whether it was necessary to go farther and prohibit a substitute food product thought to be injurious to health if used as a substitute when the two are not distinguishable, was a matter for the legislative judgment and not that of courts. Hebe Co. v. Shaw, supra; South Carolina v. Barnwell Bros. Inc., 303 U. S. 177. It was upon this ground that the prohibition of the sale of oleomargarine made in imitation of butter was held not to infringe the Fourteenth Amendment in Powell v. Pennsylvania, 127 U. S. 678; Capital City Dairy Co. v. Ohio, 183 U. S. 238. Compare McCray v. United States, 195 U. S. 27, 63; Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192. Appellee raises no valid objection to the present statute by arguing that its prohibition has not been extended to oleomargarine or other butter substitutes in which vegetable fats or oils are substituted for butter fat. The Fifth Amendment has no equal protection clause, and even that of the Fourteenth, applicable only to the states, does not compel their legislatures to prohibit all like evils, or none. A legislature may hit at an abuse which it has found, even though it has failed to strike at another. Central Lumber Co. v. South Dakota, 226 U. S. 157, 160; Miller n. Wilson, 236 U. S. 373, 384; Hall v. Geiger-Jones Co., 242 U. S. 539, 556; Farmers & Merchants Bank v. Federal Reserve Bank, 262 U. S. 649, 661. §§ 25-104, 25-108. Three others have subjected its sale to rigid regulations. Colo. L. 1921, c. 30, § 1007, p. 440; Ore. 1930 Code, v. 2, c. XII, §§ 41-1208 to 41-1210; Remington’s Wash. Rev. Stat., v. 7, Tit, 40, c. 13, §§ 6206, 6207, 6713, 6714, p. 360, et seq. 152 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. Third. We may assume for present purposes that no pronouncement of a legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act, and that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty or property had a rational basis. But such we think is not the purpose or construction of the statutory characterization of filled milk as injurious to health and as a fraud upon the public. There is no need to consider it here as more than a declaration of the legislative findings deemed to support and justify the action taken as a constitutional exertion of the legislative power, aiding informed judicial review, as do the reports of legislative committees, by revealing the rationale of the legislation. Even in the absence of such aids the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.4 See Metropolitan Casualty Ins. Co. v. 4 There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U. S. 359, 369-370; Lovell v. Griffin, 303 U. S. 444, 452. It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, U. S. v. CAROLENE PRODUCTS CO. 153 144 Opinion of the Court. Brownell, 294 U. S. 580, 584, and cases cited. The present statutory findings affect appellee no more than the reports of the Congressional committees; and since in the absence of the statutory findings they would be presumed, their incorporation in the statute is no more prejudicial than surplusage. Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry, Borden’s Farm Products Co. v. Baldwin, 293 U. S. 194, and the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist. Chastleton Corporation v. Sinclair, 264 U. S. 543. Similarly we recognize that the constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a partic- 273 U. S. 536; Nixon v. Condon, 286 U. 8. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U. S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U. 8. 380; Whitney v. California, 274 U. S. 357, 373-378; Herndon v. Lowry, 301 U. S. 242; and see Holmes, J., in Gitlow v. New York, 268 U. S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U. S. 353, 365. Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce n. Society of Sisters, 268 U. S. 510, or national, Meyer v. Nebraska, 262 U. S. 390; Bartels v. Iowa, 262 U. 8. 404; Farrington v. Tokushige, 273 U. 8. 484, or racial minorities, Nixon v. Herndon, supra; Nixon V. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U. 8. 177, 184, n. 2, and cases cited. 154 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. ular article is without support in reason because the article, although within the prohibited class, is so different from others of the class as to be without the reason for the prohibition, Railroad Retirement Board v. Alton R. Co., 295 U. S. 330, 349, 351, 352; see Whitney v. California, 274 U. S. 357, 379; cf. Morf v. Bingaman, 298 U. S. 407, 413, though the effect of such proof depends on the relevant circumstances of each case, as for example the administrative difficulty of excluding the article from the regulated class. Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 511-512; South Carolina v. Barnwell Bros., 303 U. S. 177, 192-193. But by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. Here the demurrer challenges the validity of the statute on its face and it is evident from all the considerations presented to Congress, and those of which we may take judicial notice, that the question is at least debatable whether commerce in filled milk should be left unregulated, or in some measure restricted, or wholly prohibited. As that decision was for Congress, neither the finding of a court arrived at by weighing the evidence, nor the verdict of a jury can be substituted for it. Price v. Illinois, 238 U. S. 446, 452; Hebe Co. v. Shaw, supra, 303; Standard Oil Co. v. Marysville, 279 U. S. 582, 584; South Carolina v. Barnwell Bros., Inc.,, supra, 191, citing Worcester County Trust Co. v. Riley, 302 U. S. 292, 299. The prohibition of shipment in interstate commerce of appellee’s product, as described in the indictment, is a constitutional exercise of the power to regulate interstate commerce. As the statute is not unconstitutional on its face the demurrer should have been overruled and the judgment will be Reversed. U. S. v. CAROLENE PRODUCTS CO. 155 144 Butler, J., concurring. Mr. Justice Black concurs in the result and in all of the opinion except the part marked “Third.” Mr. Justice McReynolds thinks that the judgment should be affirmed. Mr. Justice Cardozo and Mr. Justice Reed took no part in the consideration or decision of this case. Mr. Justice Butler. I concur in the result. Prima facie the facts alleged in the indictment are sufficient to constitute a violation of the statute. But they are not sufficient conclusively to establish guilt of the accused. At the trial it may introduce evidence to show that the declaration of the Act that the described product is injurious to public health and that the sale of it is a fraud upon the public are without any substantial foundation. Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 43. Manley v. Georgia, 279 U. S. 1, 6. The provisions on which the indictment rests should if possible be construed to avoid the serious question of constitutionality. Federal Trade Comm’n v. American Tobacco Co., 264 U. S. 298, 307. Panama R. Co. v. Johnson, 264 U. S. 375, 390. Missouri Pacific R. Co. v. Boone, 270 U. S. 466, 472. Richmond Co. v. United States, 275 U. S. 331, 346. If construed to exclude from interstate commerce wholesome food products that demonstrably are neither injurious to health nor calculated to deceive, they are repugnant to the Fifth Amendment. Weaver v. Palmer Bros. Co., 270 U. S. 402, 412-13. See People v. Carotene Products Co., 345 Ill. 166. Carotene Products Co. v. McLaughlin, 365 Ill. 62; 5 N. E. 2d 447. Carotene Products Co. v. Thomson, 276 Mich. 172; 267 N. W. 608. Carotene Products Co. v. Banning, 131 Neb. 429; 268 N. W. 313. The allegation of the indictment that Milnut “is an adulterated article of food, injurious to the public health,” tenders an issue of fact to be determined upon evidence. 156 OCTOBER TERM, 1937. Counsel for Parties. 304U.S. UNITED STATES et al. v. PAN AMERICAN PETROLEUM CORP, et al.* APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA. No. 514. Argued March 29, 30, 1938.—Decided April 25, 1938. 1. The Interstate Commerce Commission did not exceed the powers conferred upon it by the Interstate Commerce Act, in ordering carriers serving certain industrial plants to discontinue the practice of making allowances on the line-haul rates to the owners of the plants for moving, with plant facilities, cars between interchange tracks and points within the plants, the Commission having found, in respect of each of the plants involved, that the carrier’s obligation of delivery was fulfilled by placing or receiving cars on the interchange tracks and that the moving and spotting of cars in the plants formed no part of the service covered by the line-haul rate. United States v. American Sheet & Tin Plate Co., 301 U. S. 402. P. 158. 2. Examination of the record discloses that the Commission’s findings and orders in each of the cases here involved were supported by substantial evidence. Id. 3. The value and weight of the evidence on questions of fact, and the inferences to be drawn therefrom, are for the Commission, and its determination thereof is conclusive. Id. 18 F. Supp. 624, reversed. Appeals from decrees of specially constituted District Courts, setting aside and enjoining the enforcement of orders of the Interstate Commerce Commission. Mr. Daniel W. Knowlton, with whom Acting Solicitor General Bell, Assistant Attorney General Jackson, and Messrs. Elmer B. Collins, Edward M. Reidy, and Nelson Thomas were on the brief, for appellants. Messrs. Luther M. Walter and John S. Burchmore, with whom Mr. Nuel D. Belnap was on the brief, for appellees. *Together with No. 530, United States et al. v. Humble Oil & Refining Co. et al., on appeal from the District Court of the United States for the Southern District of Texas. U. S. v. PAN AMERICAN CORP. 157 156 Opinion of the Court. Mr. Justice Roberts delivered the opinion of the Court. These appeals are from decrees of specially constituted district courts, setting aside and enjoining the enforcement of orders of the Interstate Commerce Commission in nine cases which were consolidated for hearing and decided in a single opinion.1 The orders of the Commission which were the subject of attack commanded the railroad or railroads serving industrial plants of the appellees to cease and desist from the payment of allowances for switching services performed by plant facilities. They resulted from a general report in which the Commission after investigation announced general conclusions respecting switching services by carriers in industrial plants, and payment of allowances out of the line-haul rate to an industry performing the service,1 2 and subsequent supplemental reports with respect to specific plants.3 The Commission held that, in the circumstances disclosed at each of the plants under consideration, the carriers’ obligation of delivery was fulfilled by placing or receiving cars on interchange tracks and that the moving and spotting of cars in the industries’ plants formed no part of the service covered by the line-haul rate. It concluded that the prac 118 F. Supp. 624. A circuit judge and two district judges sat as a District Court for each of the districts to hear the cases. 2 Ex parte No. 104, Practices of Carriers Affecting Operating Revenues or Expenses, Part II, Terminal Services, 209 I. C. C. 11. 3 Mexican Petroleum Corporation of La. Inc. Terminal Allowance, 209 I. C. C. 394; Celotex Company Terminal Allowance, 209 I. C. C. 764; Great Southern Lumber Company-Bogalusa Paper Company Terminal Allowance, 209 I. C. C. 793; Standard Oil Company of Louisiana Terminal Allowance, 209 I. C. C. 68; Humble Oil & Refining Co. Terminal Allowance, 209 I. C. C. 727; Magnolia Petroleum Company Terminal Allowance, 209 I. C. C. 93; Texas Company Terminal Allowance at Houston, Tex., 209 I. C. C. 767; Gulf Refining Company Terminal Allowance, 209 I. C. C. 756; Texas Company Terminal Allowances at Port Arthur, Texas, 213 I. C. C. 583. 158 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. tice of making an allowance out of the rate to the owner of the plant for the performance of the spotting service was unlawful and should be discontinued. The appellees, in their complaints, asserted that in making its orders the Commission exceeded the powers conferred upon it by the Interstate Commerce Act. These contentions are the same as those considered in United States n. American Sheet & Tin Plate Co., 301 U. S. 402, and are foreclosed by the decision therein. The appellees charged that the Commission’s findings and orders were not supported by substantial evidence. The District Court held with them upon this point. We have examined the record and are of opinion that in each case there is substantial evidence to support the Commission’s findings. No useful purpose will be served by a detailed recital of the evidence and it must suffice to say that, while the conditions in the various plants differed, in all of the cases the Commission had before it maps exhibiting the character and extent of the plant trackage, its relation and accessibility to the main line tracks of the carriers concerned, and proofs as to the volume and nature of intra-plant car movements, the amount of engine service required and other relevant facts. The value and weight of the evidence given by railroad and plant executives, and the inferences to be drawn from it, were for the Commission. In some instances the inconvenience and delay to the carriers in performing plant services were more obvious than in others but we are unable to say that in any case the Commission’s orders were not based upon substantial evidence. The orders should not have been set aside, and the decrees must be Reversed. Mr. Justice Cardozo and Mr. Justice Reed took no part in the consideration or decision of this case. CROWN CORK CO. v. GUTMANN CO. 159 Syllabus. CROWN CORK & SEAL CO. v. FERDINAND GUTMANN CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE • SECOND CIRCUIT. No. 72. Argued December 13, 1937.—Decided May 2, 1938. 1. Review on certiorari is confined to the questions presented by the petition for the writ. P. 161. 2. Abandonment, as a defense in a suit for patent infringement, must be pleaded or noticed, under R. S. § 4920. P. 165. An applicant for patent does not abandon an invention by withdrawing the disclosure of it, and a corresponding claim, from an earlier application, when the same disclosure is kept continuously before the Patent Office through his successive divisional applications. The continuity so maintained shows an intention to retain, not to abandon, the invention. 3. W applied for and obtained patent for a method of applying “center spots” to the cork cushions of crown caps used to seal bottles containing beverages under pressure, the center spots serving to prevent contact of the liquid with the cork. The patented method required simultaneous application of pressure and heat to the center spot to make it stick to the cork cushion in the cap at the time of assembly. A disclosure of the means of applying the heat by preheating the crown caps was eliminated from the application before the patent issued, but was preserved in divisional applications. Before the patent issued, J filed application claiming this means of preheating and later obtained patent. A year thereafter, but more than two years after the date of his own patent, W copied J’s claims in a divisional application, upon which, after interference proceedings, he was awarded a patent. Held: That, in the absence of intervening rights, the delay of more than two years needed no special excuse and did not invalidate the divisional patent. Webster Co. v. Splitdorj Co., 264 U. S. 463, distinguished. P. 165. 4. In the absence of abandonment or intervention of adverse rights, mere delay of not more than two years in filing divisional application after an intervening patent or publication, does not operate 160 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. to enlarge the patent monopoly beyond that contemplated by the patent law. R. S. § 4886. P. 167. 86 F. 2d 698, reversed. Certiorari, 302 U. S. 664, to review the reversal of a decree, 14 F. Supp. 255, sustaining two patents and enjoining infringement. Mr. John J. Darby, with whom Mr. Thomas G. Haight was on the brief, for petitioner. Mr. William E. Warland, with whom Mr. Nathaniel L. Leek was on the brief, for respondent. Mr. Justice Butler delivered the opinion of the Court. Petitioner sued respondent in the district court for eastern New York to enjoin infringements of patents, two of which are here involved. One is Warth Reissue Patent, No. 19,117, dated March 20, 1934. The other is Warth Patent, No. 1,967,195, dated July 17, 1934, a divisional patent. Both relate to methods for applying small disks of paper or foil, known as center spots, to cork cushions of crown caps. These caps are used to seal bottles containing pressure beverages. The center spot prevents contact of the liquid with the cork. The district court adjudged both patents valid and infringed. 14 F. Supp. 255. The circuit court of appeals reversed, holding the reissue patent not infringed and the divisional one invalid because of laches in filing the application on which it was granted. 86 F. (2d) 698. The questions presented by the petition for the writ, granted 302 U. S. 664, are these: 1. “Does this Court’s decision in Webster Co. v. Split-dorf Co. [264 U. S. 463] mean that, even in the absence of’intervening adverse rights, an excuse must be shown for a lapse of more than two years in presenting claims in CROWN CORK CO. v. GUTMANN CO. 161 159 Opinion of the Court. a divisional application regularly filed and prosecuted in accordance with patent office rules?” 2. “Where there has been more than two years delay in asserting specific claims in a divisional application, is it an excuse for the delay that there were claims in the parent patent which, on their face, covered and were reasonably believed to cover, the subject-matter of the divisional claims, even if a Court later interpreted the parent patent claims not to cover such subject-matter?” Our consideration of the case will be limited to these questions. Washington Coach Co. v. Labor Board, 301 U. S. 142, 146. Morehead v. N. Y. ex ret. Tipaldo, 298 U. S. 587, 604, 605. Clark v. Williard, 294 U. S. 211, 216. Alice State Bank v. Houston Pasture Co., 247 U. S. 240, 242. The first calls for decision upon a single point. It specifically assumes the absence of intervening rights and that the application was appropriately made. There is no question as to the validity of either the original or reissue patents. Warth filed his first application January 7, 1927, and his second November 7,1930.1 From these came the original patent, January 6, 1931. It was to correct an error in the specification that the reissue patent was granted. Before issue of the original patent Johnson, November 26, 1929, filed application on which a patent issued April 5, 1932. April 4,1933, two years and three months after the original patent was granted Warth, he carved from his second application a divisional one in which he copied the claims of the Johnson patent. In the interference declared upon the conflict, the patent office held Warth’s 1 The first application extended to materials to be used in making center spots as well as to methods for applying them. The second application, because of a requirement of the patent office, omitted disclosures as to materials but included those as to methods that the first contained. 81638°—38-11 162 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. divisional application entitled to the filing date of his first one, and awarded the claims of the Johnson patent to him as prior inventor. These are the claims held too late by the circuit court of appeals. The claims of the reissue patent involved are shown in the margin.2 The important feature is simultaneous application of pressure and heat to the center spot to make it stick to the cork cushion in the cap. Neither these nor any other claims of the patent specify means to be employed to furnish the heat. The claims in suit of the divisional patent3 cover means to supply heat to be ap- 8 Claim 1. “The improved method of manufacturing caps of the type having an interior disc of cushion material provided on its exposed face with a center spot, which comprises providing spot material in strip form having one surface formed of an exposed continuous coating of water resistant adhesive which is normally hard at room temperature but becomes tacky upon the application of heat and having another surface to be exposed to the contents of a capped container, cutting from said strip a facing spot having one surface completely coated with said adhesive with a cap disposed beneath the portion of the strip from which the spot is cut, whereby the cutting operation positions the spot upon the cushion material with the coating between the spot and the cushion material, and upon assembly applying simultaneously to the spot pressure and sufficient heat to render the adhesive tacky, thereby causing the spot to adhere to the cushion material, and thereafter permitting the adhesive to cool and harden.” Claim 3 repeats the words of claim 1 and adds these words, “while subjecting the assembled unit to pressure.” 3 These claims are fully indicated immediately below. The insertions in brackets give equivalent terms used in the claims of the Reissue patent. Claim 1. “The method of assembling linings [center spots] for sealing pads [cushion material] in receptacle closure caps, consisting in providing caps with sealing pads therein and a web of lining material arranged with an adhesive surface non-viscous at normal temperature, heating the pads in the caps, severing linings from the web of lining material and assembling the linings as they are severed from the web in the caps with the adhesive surface CROWN CORK CO. v. GUTMANN CO. 163 159 Opinion of the Court. plied to the center spots when subjected to pressure. The important feature is “heating the pads [cork cushions] in the caps” before placing the spots upon them. The first application, January 7, 1927, stated: “It may be desirable to secure the metal foil spot in position, prior to the heat and pressure steps, sufficiently to prevent dis-lodgement of the spot during any interval between assembling and final sticking. This may be accomplished, for example, by preheating the assembled crown, to soften the coating as soon as the metal foil spot is deposited.” That application contained claims, construed by the circuit court of appeals to be broad enough to cover that disclosure. The patent office called for drawings to illustrate means for carrying out the method claimed. Accordingly, Warth showed, by way of illustration, that heat might be furnished by the punch used to cut the spots from the adhesive material and place them upon the cork in the cap, where by the same stroke of the plunger, they might be subjected to pressure. When he filed the drawings, December 3, 1930, he canceled from the! first application the statement just quoted and canceled the claims originally filed. The second application had already been filed. Both contained another statement: “In carrying out the invention according to what is now considered the best practice, the coating will be softened by heat after the crown is assembled. This may be accomplished in any suitable manner, as by a heated plunger or a plunger and heated table. The heat softens in contact with the heated pads to render the adhesive viscous and effect adhesion of the linings to the pads.” Claim 2 repeats the words of claim 1 and adds these words, “and then placing the linings in the caps under heat and pressure to effect an intimate adhesion between the linings and pads.” Claim 3 repeats the words of claim 1 and the addition of claim 2 and adds these words, “and then placing the linings assembled in the caps under pressure during the cooling thereof.” 164 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. the coating and renders it adhesive. . . So far as concerns the question under consideration, it is broad enough to include means for supplying heat by the punch as shown by the drawings, and the preheating method claimed in the divisional application. The district court found no adverse use of the preheating method prior to the filing date of the application for the reissue patent. The circuit court of appeals did not disturb that finding. It found that Warth’« disclosure of the preheating method was continuously before the patent office from the date of his first application, but that there was no claim for the preheating method on file from December 3, 1930, until April 4, 1933, when he filed application for the divisional patent. It held, citing Webster Co. v. Splitdorf Co., supra, that prima facie the two year limit applies to divisional applications, and that an applicant who waits longer before claiming an invention disclosed in his patent must justify his delay by proof of some excuse. It said, 86 F. (2d) 702, “No such excuse appears here. Had Warth chosen to retain in his parent application broad generic claims which might cover the preheating method, then indeed the Splitdorf rule might not be applicable . . . But ... for a period of more than two years Warth apparently did not wish to claim the preheating method, having deliberately canceled the preheating specification from his original application and shaped his claims so as to exclude it and his patent having been granted January 6, 1931. He made no claim for preheating until more than two years thereafter, namely, April 4, 1933. In the meantime a patent containing claims for the preheating method had been granted to Johnson on April 5, 1932, and it was Warth’s discovery of this fact which stirred him to action. As in the Splitdorf case, had it not been for this competitor, Warth might never have considered the subject worth claiming as an invention.” The court meant that Warth had really abandoned his inven- CROWN CORK CO. v. GUTMANN CO. 165 159 Opinion of the Court. tion. See Western Electric Co. v. General Talking Pictures Co., 91 F. (2d) 922, 927. But, as abandonment was not pleaded as a defense, R. S. § 4920, and as Warth’s disclosure was continuously before the patent office, clearly without any significance adverse to the petitioner is the fact that Warth formally canceled one disclosure from his first application and with it claims thought by the circuit court of appeals broad enough to cover the disclosure. The continuity so maintained shows that Warth intended to retain, not to abandon, the disclosed invention. See Godfrey v. Eames, 1 Wall. 317, 325-326. Clark Blade & Razor Co. v. Gillette Safety Razor Co., 194 Fed. 421, 422. This case is not like Webster Co. v. Splitdorf Co., supra. In that case, there came here the question of the validity of claims of a patent issued to Kane in 1918. In 1910 Kane had filed his first application, on which patent issued in 1916. In 1913 a patent covering the same subject-matter issued to the Podlesaks, to whom a reissue patent was granted in 1915. Later in 1915, Kane filed a divisional application which copied the claims of the Podlesak patent. They were decided in favor of the Podlesaks. Thereafter, June 17, 1918, Kane amended his divisional application by adding claims which were allowed, and September 24, 1918, patent issued to Webster Electric Company, Kane’s assignee. In 1915, it had brought the suit against the Splitdorf Company. October 25, 1918, it filed a supplemental bill bringing in claims of the patent issued September 24, 1918. This Court pointed out (p. 465) that the claims in question “were for the first time presented to the Patent Office, by an amendment to a divisional application eight years and four months after the filing of the original application, five years after the date of the original Podlesak patent, disclosing the subject matter, and three years after the commencement of the present suit.” We sug 166 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. gested that it was doubtful whether the claims were not so enlarged as to preclude allowance under the original application; we found that Kane, deeming their subjectmatter not invention, did not intend to assert them, and, prior to 1918, did not entertain an intention to have them covered by patent. During all of this time their subject matter was disclosed and in general use; Kane and his assignee simply stood by and awaited developments. It was upon the reasons so stated that this Court declared (p. 466) “We have no hestitation in saying that the delay was unreasonable, and, under the circumstances shown by the record, constitutes laches, by which the petitioner lost whatever rights it might otherwise have been entitled to.” Upon a review of earlier cases we condemned the lower court’s statement (283 Fed. 83, 93) that Chapman v. Wintroath, 252 U. S. 126, fixed the time within which application for a divisional patent might be made at two years from date of the issue of the parent patent. We showed that the Chapman case held that an inventor, whose application disclosed but did not claim an invention later patented to another, was not required within one year after issue of the other patent, to file divisional application claiming the invention and so to raise issue of interference, but that, by analogy, the two-year period under R. S. § 48864 applied rather than the one-year 4 R. S. § 4886, as amended March 3, 1897 (29 Stat. 692): “Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements thereof, not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceeding had, obtain CROWN CORK CO. v. GUTMANN CO. 167 159 Opinion of the Court. period of R. S. § 4894,5 and that the opinion did not fix a hard and fast rule to be applied in every case of a divisional application. Then we said (p. 471): “Our conclusion, therefore, is that, in cases involving laches, equitable estoppel, or intervening private or public rights, the two-year time limit prima facie applies to divisional applications, and can only be avoided by proof of special circumstances justifying a longer delay. In other words, we follow in that respect the analogy furnished by the patent reissue cases.” That statement is not directly applicable to the precise question of laches upon which the case turned, but was made in reference to the question arising upon the lower court’s erroneous interpretation of Chapman v. Wintroath. See W agenhorst v. Hydraulic Steel Co., 27 F. (2d) 27, 29-30. Wirebounds Patents Co. v. Saranac Corp., 37 F. (2d) 830, 840-841. Utah Radio Products Co. v. Boudette, 78 F. (2d) 793, 799. It is clear that, in the absence of intervening adverse rights, the decision in Webster Co. n. Splitdorf Co. does not mean that an excuse must be shown for a lapse a patent therefor.” [The statute has since been amended, but not to change the two-year period. See 35 U. S. C. § 31.] Cf. R. S. § 4887 (35 U. S. C. § 32), relating to inventions patented abroad; R. S. § 4897 (35 U. S. C. § 38), relating to renewal application after failure to comply with requirement as to payment of final fee; R. S. § 4920 (35 U. S. C. § 69), relating to defense of prior invention. BR. S. § 4894, as amended March 3, 1897 (29 Stat. 693). “All applications for patents shall be completed and prepared for examination within one year after the filing of the application, and in default thereof, or upon failure of the applicant to prosecute the same within one year after any action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by the parties thereto, unless it be shown to the satisfaction of the Commissioner of Patents that such delay was unavoidable.” [The statute has since been amended to reduce the period to six months. See 35 U. S. C. § 37.] 168 OCTOBER TERM, 1937. Black, J., dissenting. 304 U. 8. of more than two years in presenting the divisional application. Where there is no abandonment, mere delay in filing a divisional application for not more than two years after an intervening patent or publication, does not operate to enlarge the patent monopoly beyond that contemplated by the statute. By R. S. § 4886, delay in filing an application for not more than two years after an intervening patent or publication does not bar a patent unless the invention “is proved to have been abandoned.” See Wirebounds Patents Co. v. Saranac Corp., 37 F. (2d) 830, 840, 841; 65 F. (2d) 904, 905, 906. And, as none need be shown, there is no occasion to decide whether the facts stated in the second question are sufficient to constitute an excuse for the delay referred to. As our decision is limited to the first question presented, the judgment of the circuit court of appeals will be reversed and the case will be remanded to that court for decision of the other issues in the case in accordance with this opinion. Reversed. Mr. Justice Cardozo and Mr. Justice Reed took no part in the consideration or decision of this case. Mr. Justice Black, dissenting. This Court declared in Webster Co. v. Splitdorj Co., 264 U. S. 463, 466, 471: “In suits to enforce reissue patents, the settled rule of this Court is that a delay for two years or more will ‘invalidate the reissue, unless the delay is accounted for and excused by special circumstances, which show it to have been not unreasonable.’ . . . “Our conclusion, therefore, is that in cases involving laches, equitable estoppel or intervening private or public rights, the two-year limit prima facie applies to divisional applications and can only be avoided by proof of special CROWN CORK CO. v. GUTMANN CO. 169 159 Black, J., dissenting. circumstances justifying a longer delay. In other words, we follow in that respect the analogy furnished by the patent reissue cases.” (Italics supplied.) The rule announced in the Splitdorf case was based upon a long line of decisions of this Court extending from Miller v. Brass Co., 104 U. S. 350, decided in 1882. The majority opinion abandons the principle of the Splitdorf case that either laches or equitable estoppel or intervening private rights or intervening public rights— in the absence of proved special circumstances—bars a divisional patent after a lapse of an unreasonable length of time—prima facie two years. It is now held that neither laches nor equitable estoppel may alone invalidate a patent without proof of “intervening adverse rights.” The authorities relied on in the Splitdorf case emphasized the right of the public—apart from provable adverse use by individuals—to require an applicant to pursue his right to a patent diligently and without enlargement of claims after filing an original application.1 “Any practice by the inventor and applicant for a patent through which he deliberately and without excuse postpones beyond the date of the actual invention, the beginning of the term of monopoly, and thus puts off the free public enjoyment of the useful invention, is an evasion of the statute and defeats its benevolent aim.” * 2 There is a further departure from the Splitdorf case in the holding that two years delay in filing a divisional application after an intervening patent does not—in the absence of actual abandonment of the invention—bar the right to a “divisional” patent. Abandonment is but one of many grounds for invalidating a patent. Equitable ’See, Miller v. Brass Co., 104 U. S. 350, 355; James v. Campbell, 104 U. S. 356, 371; Mahn v. Harwood, 112 U. S. 354, 360; Ives v. Sargent, 119 U. S. 652, 662; Topliff v. Topliff, 145 U. S. 156, 170, 171; Wollensak v. Sargent & Co., 151 U. S. 221, 228. 2 Woodbridge v. United States, 263 U. S. 50, 56. 170 304 U. S. OCTOBER TERM, 1937. Black, J., dissenting. estoppel, intervening public rights, or unjustified and unexplained laches were considered in the Splitdorf case and cases there relied on to be individually sufficient bars, without proof of abandonment. Unjustified delay and abandonment are separate defenses. If proof of abandonment is to be a prerequisite, laches as a separate defense is destroyed, although it has been recognized for more than fifty years. Unreasonable delay which serves to postpone the beginning of the seventeen year monopoly limitation, not only is possible without abandonment of the invention, but is highly probable. With the destruction of the defense of laches the public loses the benefit of the principle that “An inventor cannot without cause hold his application pending during a long period of years, leaving the public uncertain, whether he intends ever to prosecute it, and keeping the field of his invention closed against other inventions.”3 The Court of Appeals following this settled principle— now abandoned—said:4 “We think they [claims in the patent] are invalid for laches in filing the application for them. [Citing Webster Co. v. Splitdorf Co.]. . . . These circumstances [facts of this case] invite operation of the two-year limitation designed to protect the public against obtaining in effect an extension of a patentee’s monopoly by apathy and unexcused delay 'in bringing forward by divisional or reissue applications claims broader than those originally sought.” (Italics supplied.) While “divisional” applications have never been expressly authorized by statute the courts have long recognized their use as a part of Patent Office procedure. Petitioner’s patent which the Court of Appeals found barred by laches was granted on a “divisional” application. Patent Office regulations which have limited each application for a patent to a single invention and have re- 8 Planing-Machine Co. v. Keith, 101 U. S. 479, 485. *86 F. (2d) 698, 702. CROWN CORK CO. v. GUTMANN CO. 171 159 Black, J., dissenting. quired a “division” of an application containing claims for two separate and distinct inventions, apparently gave rise to the procedural device of “divisional applications.” The Court of Appeals of the District of Columbia acting in a special appellate capacity3 * 5 and the Patent Office, have treated a “divisional,” properly used, in some respects, as a substitute for an amendment. In accordance with this conception “divisionals” have been for certain purposes, treated as “continuations” of original applications and given the priority of original applications. The logical conclusion was reached that after an original application merged in a patent, a “divisional” application could not be attached to, or considered as a “continuation” of it, because “there was nothing to be continued.” 6 After a patent is granted it passes “beyond the control and jurisdiction” of the Patent Office; the proceedings are closed and the application can neither be amended nor serve as the basis for a new “divisional” or “continuing” application.7 Here an application for a process patent was filed in 1927. November, 1930, in response to Patent Office re 3 Frosch n. Moore, 211 U. S. 1, 9, 10; Butterworth v. Hoe, 112 U. 8. 50, 60. 9 In re Spitteler, 31 App. D. C. 271, 274, 275. . . ‘it is well established that for one application to be a division, within the meaning of the law, of another, the two must at some time be co-pending,’ . . . Sarjert v. Meyer, 1902 C. D. 30; In re Spitteler, 31 App. D. C. 271, 1908 C. D. 374; . . . Wainwright v. Parker, 32 App. D. C. 431, 1909 C. D. 379. . . . “. . . An application cannot be considered as a continuance of a patent granted prior to the filing thereof, since after the application has eventuated into a patent there is nothing left pending before the Patent Office upon which it could act or to which the later application could attach. In re Spitteler, 31 App. D. C. 271, 134 O. G. 1301; Wainwright v. Parker, 32 App. D. C. 431, 142 O. G. 1115, 1909 C. D. 379.” Fessenden v. Wilson, 48 F. (2d) 422, 424. 7 See, McCormick Machine Co. v. Aultman, 169 U. 8. 606, 608, 609. 172 OCTOBER TERM, 1937. Black, J., dissenting. 304 U. S. quirement, a “divisional” application was filed for a product patent. January, 1931, a process patent was granted on the original application. More than two years after the original application had merged into a process patent another application designated as a “divisional” was filed (April 4, 1933), for a second process patent— here involved. The Court of Appeals found this delay of six years to be without justification or excuse. Disregarding the previously recognized requirement that justification and excuse must be proven for such delay, the majority now hold that an applicant can, for six years, delay his claim for an alleged discovery without excuse, justification, or reason for the delay. This is permitted despite the fact that unclaimed disclosure of the alleged invention had been made in the 1927 process application and in the 1930 product application. Congress—given the power by the Constitution—has fixed the statutory limit of a patent monopoly at seventeen years.8 By the procedural device of a “divisional” application, designed to protect rights granted an inventor by statute, petitioner has carved for itself priority monopoly rights, beginning in 1927 and lasting until 1951— twenty-four years, or seven years more than Congress has authorized. In the remedy of reissue provided by statute for applicants whose claims fail to protect their entire discoveries,9 Congress has been alert to protect the public from such an extension of monopoly. A reissue patent must be based on oath that an applicant’s original patent failed to cover its actual invention as a result of accident, inadvertence or mistake, and runs only for the unexpired portion of a seventeen year patent grant. The use of “divisional” or “continuations,” no longer, subject to the defense of laches 8 35 U. S. C., c. 2, § 40. 3 35 U. S. C., c. 2, § 64. CROWN CORK CO. v. GUTMANN CO. 173 159 Black, J., dissenting. or unreasonable delay, will permit an applicant to obtain, by a nonstatutory procedural device, monopoly privileges denied by the reissue statute. The essential additional claim in petitioner’s 1934 “divisional” patent was only mentioned in the 1927 original application and the 1930 “divisional” application by way of casual suggestion and incidental illustration.10 * Even this casual suggestion was stricken from the 1927 application in December, 1930. These suggestive illustrations did not constitute parts of the inventions which the 1927 and 1930 applications sought to cover or secure.11 The speculative suggestions—from separate applications for different inventions—are pieced together and held sufficient to “continue” the 1927 application (after its merger in a patent) and the 1930 application, as support for the retroactive operation of a claim made for the first time in “The essential additional claim of the 1934 divisional process patent was for “preheating” cork used in making bottle caps. The incidental reference to preheating in the 1927 application was as follows: “It may be desirable to secure the metal foil spot in position, prior to the heat and pressure steps, sufficiently to prevent dis-lodgment of the spot during any interval between assembling and final sticking. This may be accomplished, for example, by preheating the assembled crown, to soften the coating as soon as the metal foil spot is deposited. Or the coating may be softened by moistening slightly with a solvent, such as benzol. In either case the coating becomes tacky enough to hold the metal foil from getting out of position during ordinary passage through assembling apparatus.” The 1930 divisional application for a product patent merely suggested that “It may be desirable to secure the spot in position, prior to the heat and pressure steps, sufficiently to prevent dislodge-ment of the spot during any interval between assembling and final sticking. This may be accomplished, for example, by preheating the assembled crown, to soften the coating, as soon as the metal foil is deposited.” (Italics supplied.) 11 Cf., Corbin Cabinet Lock Co. v. Eagle Lock Co., 150 U. S. 38, 42, 43. 174 OCTOBER TERM, 1937. Black, J., dissenting. 304 U. S. 1933. As a result of the destruction of the defense of laches in applying for “divisional” applications, those familiar with a given field of industry may now insert speculative conjectures as disclosures in various applications and permit them to lie dormant until a competitor reduces speculation to practicality. Then, by the device of a “divisional,” or if need be, as here, by “divisional” on “divisional,” such a competitor can be pursued with infringement suits and harassed into surrendering his business to an ingeniously dilatory applicant.112 Thus, sweeping, indefinite and unclaimed disclosures, and adroit use of “divisionals”—which laches and unreasonable delay are no longer sufficient to bar—are permitted to extend a patent’s statutory life and to increase a patentee’s reward beyond that granted by Congress. “ ‘The patent laws are founded in a large public policy to promote the progress of science and the useful arts. The public, therefore, is a most material party to, and should be duly considered in, every application for a patent. . . . But the arts and sciences will certainly not be promoted by giving encouragement to inventors to withhold and conceal their inventions for an indefinite time, or to a time when they may use and apply their inventions to their own exclusive advantage, irrespective of the public benefit, and certainly not if the inventor is allowed to conceal his invention to be brought forward in some after time to thwart and defeat a more diligent and active inventor, who has placed the benefit of his invention within the reach and knowledge of the public.’ ”12 13 12 Cf., Atlantic Works V. Brady, 107 U. S. 192, 200. 13 Woodbridge v. United States, supra, 61. GENERAL PICTURES CO. v. ELECTRIC CO. 175 Syllabus. GENERAL TALKING PICTURES CORP. v. WESTERN ELECTRIC CO. et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 357. Argued December 13, 14, 1937.—Decided May 2, 1938. 1. Review by certiorari is confined to questions specifically brought forward by the petition for the writ. P. 177. The supporting brief is not a part of the petition for this purpose; specifications of error in that brief do not expand or add to the questions stated in the petition; they serve merely to identify and challenge rulings upon which is grounded ultimate decision of the matter involved. P. 178. 2. A writ of certiorari will not be granted in a patent case to bring up questions of acquiescence and estoppel dependent on questions of fact, as to which there were concurrent findings below; nor to review questions of anticipation and invention as to which there is no conflict between decisions of the Circuit Courts of Appeals. P. 178. 3. The owner of patents in vacuum tube amplifiers used the inventions commercially, through its exclusively licensed subsidiaries, in the business of making talking-picture equipment embodying the inventions and supplying the equipment to theaters. It also granted non-exclusive licenses to others expressly limited to the making and selfing of the patented amplifiers for private uses, namely, for radio broadcast reception, radio amateur reception, and radio experimental reception. One of the non-exclusive licensees made the patented amplifiers and sold them to a talking pictures corporation, knowing that the purchaser would include them in talking-picture equipment» to be leased to theaters. Both parties knew the restrictions of the vendor’s license and intentionally disregarded notices stating those restrictions, which were affixed to the articles. Held, that the restrictions of the vendor’s license were valid under the patent law; that the purchaser was not “a purchaser in the ordinary channels of trade”; that the sales were not sales under the patent, but were without authority from the patent-owner; and that both vendor and purchaser were guilty of infringement. P. 179. The effect of the license notice is not considered. 176 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. 4. The concurrent findings of the two courts below, as to two of the patents involved in this litigation, that there was no public use of the inventions prior to the dates of divisional applications on which the patents issued, are supported by evidence and accepted by this Court. P. 182. 5. Inventions, disclosed but not claimed in applications for patent, were subsequently claimed and patented through continuation applications voluntarily filed by the applicant. The patentee’s use, which was the only “public use,” was for less than two years prior to the original applications but for more than two years prior to the continuation applications. Held that the continuation applications were in time, no adverse rights having intervened more than two years before they were filed, and the effective dates of the claims therein were the dates of the original applications. R. S. § 4886. Crown Cork & Seal Co. v. Gutmann Co., ante, p. 159. P. 182. 91 F. 2d 922, affirmed. Certiorari, 302 U. S. 674, to review the affirmance of decrees sustaining patents, enjoining infringement, and ordering accountings, in three suits that were heard together. On May 31, a rehearing was ordered upon the first two of the questions stated on p. 177 of this opinion. Messrs. Samuel E. Darby, Jr. and Ephraim Berliner for petitioner. Mr. Merrell E. Clark, with whom Mr. Henry R. Ashton was on the brief, for respondents. Mr. Justice Butler delivered the opinion of the Court. Three suits were brought by respondents against petitioner in the district court for the southern district of New York to restrain infringements, based on different patents for inventions in vacuum tube amplifiers which have been used in wire and radio telephony, talking motion pictures, and other fields. In all there were in suit seven patents. The cases were tried together and are treated as one. The lower courts held one of the patents invalid, and that ruling is not challenged here. They con- GENERAL PICTURES CO. v. ELECTRIC CO. 177 175 Opinion of the Court. curred in holding six of the patents valid and infringed by petitioner. 16 F. Supp. 293; 91 F. (2d) 922. This Court granted a writ of certiorari. Under the caption “Questions Presented” the petition for writ of certiorari submits the following: “1. Can the owner of a patent, by means thereof, restrict the use made of a device manufactured under the patent, after the device has passed into the hands of a purchaser in the ordinary channels of trade, and full consideration paid therefor? “2. Can a patent owner, merely by a ‘license notice’ attached to a device made under the patent, and sold in the ordinary channels of trade, place an enforceable restriction on the purchaser thereof as to the use to which the purchaser may put the device? “3. Can an inventor who has filed an application for patent, showing and describing but not claiming certain inventions, obtain a valid patent for said inventions by voluntarily filing a ‘divisional’ or ‘continuation’ application for said unclaimed inventions more than two years subsequent to public use of the said unclaimed inventions by him or his assignee or licensee?” The brief supporting the petition contains specifications of error relating to decision of two other questions. One is whether, by acceptance and retention of royalties paid by the licensed manufacturer, respondents acquiesced in the infringement and are estopped from maintaining the suit. The other is whether the patents upheld are invalid because of anticipation by, or want of invention over, the prior patented art. That brief is confined to the three questions definitely stated in the petition. But petitioner’s brief on the merits extends to the additional questions reflected by the specification of errors. 1. Our consideration of the case will be limited to the questions specifically brought forward by the petition. 81638°—38--12 178 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. Rule 38, paragraph 2, contains the following. “The petition shall contain only a summary and short statement of the matter involved and the reasons relied on for the allowance of the writ. A supporting brief may be included in the petition, but, whether so included or presented separately, it must be direct, concise and in conformity with Rules 26 and 27. A failure to comply with these requirements will be. a sufficient reason for denying the petition. . . .” Evidently petitioner, by the “Questions Presented” intended to state the issues it deemed to arise on its “statement of the matter involved,” for neither the petition nor supporting brief purport to apply for review of any other question. Whether included in the petition, or separately presented, the supporting brief is not a part of the petition, at least for the purpose of stating the questions on which review is sought. The specifications of error in that brief do not expand or add to the questions stated in the petition; they serve merely to identify and challenge rulings upon which is grounded ultimate decision of the matter involved. There is nothing in the lower courts’ decision on either of the added questions to warrant review here. Whether respondents acquiesced in the infringement and are estopped depends upon the facts. Granting of the writ would not be warranted merely to review the evidence or inferences drawn from it. Southern Power Co. v. N. C. Public Service Co., 263 U. S. 508. United States v. Johnston, 268 U. S. 220, 227. Moreover, the decision on that point rests on concurrent findings. They are not to be disturbed unless plainly without support. United States v. Chemical Foundation, 272 U. S. 1, 14. United States v. McGowan, 290 U. S. 592. Alabama Power Co. v. Ickes, 302 U. S. 464. There is evidence to support them. Nor would the writ be granted to review the questions of anticipation and invention that petitioner argues, for as to GENERAL PICTURES CO. v. ELECTRIC CO. 179 175 Opinion of the Court. them there is no conflict between decisions of circuit courts of appeals. Layne & Bowler Corp. v. Western Well Works, 261 U. S. 387, 393. Keller v. Adams-Campbell Co., 264 U. S. 314, 319-320. Cf. Stilz v. United States, 269 U. S. 144, 147-148. The writ did not issue to bring up either of these questions. Crowell v. Benson, 285 U. S. 22, 65. One having obtained a writ of certiorari to review specified questions is not entitled here to obtain decision on any other issue. Crown Cork & Seal Co. v. Gutmann Co., ante, p. 159. Petitioner is not here entitled to decision on any question other than those formally presented by its petition for the writ. 2. The respondent American Telephone & Telegraph Co. owns the patents. Amplifiers having these inventions are used in different fields. One, known as the commercial field, includes talking picture equipment for theaters. Another, called the private field, embraces radio broadcast reception, radio amateur reception, and radio experimental reception. The other respondents are subsidiaries of the Telephone Company and exclusive licensees in the commercial field of recording and reproducing sound; during the time of the infringement alleged, they were engaged in making and supplying to theaters talking picture equipment including amplifiers embodying the inventions covered by the patents in suit. The petitioner also furnished to theaters talking picture equipment including amplifiers which embody the invention covered by the patents in suit. Respondents’ charge is that by so doing petitioner infringes them. The American Transformer Company was one of a number of manufacturers holding non-exclusive licenses limited to the manufacture and sale of the amplifiers for private use, as distinguished from commercial use. These licenses were granted by the Radio Corporation, acting for itself and the respondent Telephone Company, and 180 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. were assented to by the latter. The Transformer Company’s license was expressly confined to the right to manufacture and sell the patented amplifiers for radio amateur reception, radio experimenal reception, and home broadcast reception. It had no right to sell the amplifiers for use in theaters as a part of talking picture equipment. Nevertheless, it knowingly did sell the amplifiers in controversy to petitioner for that use. Petitioner admits that the Transformer Company knew that the amplifiers it sold to petitioner were to be used in the motion picture industry. The petitioner, when purchasing from the Transformer Company for that use, had actual knowledge that the latter had no license to make such a sale. In compliance with a requirement of the license, the Transformer Company affixed to amplifiers sold by it under the license a notice stating in substance that the apparatus was licensed only for radio amateur, experimental and broadcast reception under the patents in question. To the amplifiers sold to petitioner outside the scope of the license, it also affixed notices in the form described, but they were intended by both parties to be disregarded. Petitioner puts its first question in affirmative form: “The owner of a patent cannot, by means of the patent, restrict the use made of a device manufactured under the patent after the device has passed into the hands of a purchaser in the ordinary channels of trade and full consideration paid therefor.” But that proposition ignores controlling facts. The patent owner did not sell to petitioner the amplifiers in question or authorize the Transformer Company to sell them or any amplifiers for use in theaters or any other commercial use. The sales made by the Transformer Company to petitioner were outside the scope of its license and not under the patent. Both parties knew that fact at the time of the transactions. GENERAL PICTURES CO. v. ELECTRIC CO. 181 175 Opinion of the Court. There is no ground for the assumption that petitioner was “a purchaser in the ordinary channels of trade.” The Transformer Company was not an assignee; it did not own the patents or any interest in them; it was a mere licensee under a non-exclusive license, amounting to no more than “a mere waiver of the right to sue.” De Forest Co. v. United States, 273 U. S. 236, 242. Pertinent words of the license are these: “To manufacture . . . and to sell only for radio amateur reception, radio experimental reception and radio broadcast reception. . . .” Patent owners may grant licenses extending to all uses or limited to use in a defined field. Rubber Company v. Goodyear, 9 Wall. 788, 799-800. Gamewell Fire-Alarm Telegraph Co. v. Brooklyn, 14 Fed. 255. Dorsey Rake Co. v. Bradley Co., Fed. Cas. No. 4,015, 7 Fed. Cas. 946, 947. Robinson on Patents, §§ 808, 824. Unquestionably, the owner of a patent may grant licenses to manufacture, use or sell upon conditions not inconsistent with the scope of the monopoly. Bement v. National Harrow Co., 186 U. S. 70, 93. United States v. General Electric Co., 272 U. S. 476, 489. There is here no attempt on the part of the patent owner to extend the scope of the monopoly beyond that contemplated by the patent statute. Cf. Carbice Corp. n. American Patents Corp., 283 U. S. 27, 33. Leitch Mfg. Co. v. Barber Co., 302 U. S. 458. There is no warrant for treating the sales of amplifiers to petitioner as if made under the patents or the authority of their owner. R. S. §§ 4884 and 4898 (35 U. S. C. §§ 40 and 47). Moore v. Marsh, 7 Wall. 515, 521. Waterman v. Mackenzie, 138 U. S. 252, 256. Gayler v. Wilder, 10 How. 477, 494. United States v. General Electric Co., supra. Robinson on Patents, §§ 762, 763, 792, 806 et seq. The Transformer Company could not convey to petitioner what both knew it was not authorized to sell. Mitchell v. Hawley, 16 Wall. 544, 550. By knowingly making the sales to petitioner outside the scope of its 182 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. license, the Transformer Company infringed the patents embodied in the amplifiers. Rubber Co. v. Goodyear, supra. Bement v. National Harrow Co., supra. United States v. General Electric Co., supra. Vulcan Mfg. Co. v. Maytag Co., 73 F. (2d) 136, 139. L. E. Waterman Co. v. Kline, 234 Fed. 891, 893. Porter Needle Co. n. Nat. Needle Co., 17 Fed. 536. Petitioner, having with knowledge of the facts bought at sales constituting infringement, did itself infringe the patents embodied in the amplifiers when it leased them for use as talking picture equipment in theaters. Mitchell v. Hawley, ubi supra. American Cotton-Tie Supply Co. v. Bullard, Fed. Cas. No. 294, 1 Fed. Cas. 625, 629, 630. See Robinson on Patents, § 824. See Holiday v. Mattheson, 24 Fed. 185, 186. General Electric Co. v. Continental Lamp Works, 280 Fed. 846, 851. As petitioner at the time it bought the amplifiers knew that the sales constituted infringement of the patents embodied in them, petitioner’s second question, as to effect of the license notice, need not be considered. 3. Petitioner’s affirmative statement of its third question is: “An inventor who has filed an application for patent showing and describing, but not claiming, certain inventions cannot obtain a valid patent for said inventions by voluntarily filing a ‘divisional’ or ‘continuation’ application for said unclaimed inventions more than two years subsequent to public use of the said unclaimed inventions by him or his assignee or licensee.” It makes that contention as to four patents: Arnold Patent No. 1,403,475, dated January 17, 1922; Arnold Patent No. 1,465,332, dated April 21, 1923; Arnold Patent No. 1,329,283, dated January 27, 1920; and Arnold Patent No. 1,448,550, dated March 13, 1923. The district court and circuit court of appeals found that there was no public use of either of the inventions of the first two patents prior to the filing dates of the di- GENERAL PICTURES CO. v. ELECTRIC CO. 183 175 Black, J., dissenting. visional applications upon which they issued. These findings were made upon adequate evidence and petitioner’s contentions as to them will not be considered here. The subjects matter of the claims of the other two patents were disclosed in the original applications and were claimed in the continuation applications upon which they issued. The patentee’s use was the only “public use” of the inventions covered by them. And that did not precede by as much as two years the filing of the original applications. The effective dates of the claims of the continuation applications are those of the original applications. In the absence of intervening adverse rights for more than two years prior to the continuation applications, they were in time.* R. S. § 4886 (35 U. S. C. § 31). Crown Cork & Seal Co. v. Gutmann Co., ante, p. 159. Affirmed. Mr. Justice Roberts, Mr. Justice Cardozo and Mr. Justice Reed took no part in the consideration or decision of this case. Mr. Justice Black, dissenting. The decisions in this case and Crown Cork & Seal Co. v. Gutmann Co., ante, p. 159, will inevitably result in a sweeping expansion of the statutory boundaries constitutionally fixed by Congress to limit the scope and duration of patent monopolies. The area of the patent monopoly is expanded by the holding that the exclusive right granted an inventor to “make, use and vend” his patented commercial device, permits the inventor’s corporate assignee (and other “patent pool” participants) to control how, and where the * This sentence of the opinion is reported as amended by Order of May 16, 1938, post, p. 546. 184 OCTOBER TERM, 1937. Black, J., dissenting. 304 U. S. device can be used by a purchaser who bought it in the open market.1 Petitioner bought amplifying tubes from the American Transformer Company, a licensee authorized to “manufacture . . . and sell only for radio amateur reception! radio experimental reception and radio broadcast reception.” The devices are of a standard and uniform type generally useful in many “fields.” We are not here concerned with the right of respondents under the contract with the licensee, American Transformer Company. Respondents do not—in fact, could not—rely on the contract made with the Transformer Company, in this suit against petitioner which in no way was a party to that contract. If the Transformer Company violated its contract respondents’ remedy was by suit against the Transformer Company for the breach. No question of malicious interference with contractual interests is presented. Respondents insist only that under their patents, they have the right to control the use of these widely used tubes in the hands of purchasers from one authorized by respondents to manufacture and sell them. The mere fact that the purchaser of a standard and uniform piece of electrical equipment has knowledge that his vendor has contracted with an owner of a patent on the equipment not to sell the equipment for certain agreed purposes does not enlarge the scope or effect of the patent 1The patented device here is an amplifying tube, and the opinion of the District Judge stated: “The amplifying devices required tubes which the defendant procured in the open market by purchase from authorized distributors; each tube carton bore a license notice reading as follows: ‘License Notice. Tn connection with devices it sells, Radio Corporation of America has rights under patents having claims (a) on the devices themselves and (b) on combination of the devices with other devices or elements, as for example in various circuits and hookups.’ ” GENERAL PICTURES CO. v. ELECTRIC CO. 185 175 Black, J., dissenting. monopoly. The patent statute only gives the patentee the exclusive right to make, use and vend his patented article. Where a licensee—authorized to manufacture and sell—contracts with the patentee to attach a notice to each patented article (a machine) of “the conditions of its use and the supplies which must be used in the operation of it, under pain of infringement of the patent,” this Court has said: “The statutes relating to patents do not provide for any such notice and . . . [the patentee] can derive no aid from them ... [in a suit against a purchaser from the licensee].... “The extent to which the use of the patented machine may validly be restricted to specific supplies or otherwise by special contract between the owner of a patent and the purchaser or licensee is a question outside the patent law and with it we are not here concerned.”2 A patentee has no right under the patent laws to fix the resale price of his patented article 3 or to require that specified unpatented materials be used in conjunction with it.4 The exclusive right to vend does not—any more than the exclusive right to use—empower a patentee to extend his monopoly into the country’s channels of trade after manufacture and sale which passes title. It is not contended that petitioner did not obtain title to the tubes. The patent statute which permits a patentee to “make, use and vend” confers no power to fix and restrict the uses to which a merchantable commodity can be put after 2 Motion Picture Co. v. Universal Film Co., 243 U. S. 502, 509; see Keeler v. Standard Folding Bed Co., 157 U. S. 659. 2 Bauer & Cie v. O’Donnell, 229 U. S. 1; Straus v. Victor Talking Mach. Co., 243 U. S. 490; Boston Store v. American Graphophone Co., 246 U. S. 8; cf. Bobbs-Merrill Co. v. Straus, 210 U. S. 339. 4 Motion Picture Co. v. Universal Film Co., supra; Carbice Corp. v. American Patents Corp., 283 U. S. 27; Leitch Mfg. Co. v. Barber Co., 302 U. S. 458. 186 OCTOBER TERM, 1937. Black, J., dissenting. 304U.S. it has been bought in the open market from one who was granted authority to manufacture and sell it. Neither the right to make, nor the right to use, nor the right to sell a chattel, includes the right—derived from patent monopoly apart from contract—to control the use of the same chattel by another who has purchased it. A license to sell a widely used merchantable chattel must be as to prospective purchasers—if anything—a transfer of the patentee’s entire right to sell; it cannot—as to non-contracting parties—restrict the use of ordinary articles of purchase bought in the open market. “The words used in the statute are few, simple and familiar, . . . and their meaning would seem not to be doubtful if we can avoid reading into them that which they really do not contain.” 6 Petitioner is held liable for using an ordinary vacuum amplifying tube bought from one who had title and the right to sell. Notice to petitioner that the vendor was violating its (the vendor’s) contract with respondents gave the latter no right under the patent and imposed no responsibility under the patent. Petitioner became the owner of the tubes. At this time a great portion of the common articles of commerce and trade is patented. A large part of the machinery and equipment used in producing goods throughout the country is patented. Many small parts essential to the operation of machinery are patented. Patented articles are everywhere. Those who acquire control of numerous patents, covering wide fields of industry and business, can—by virtue of their patents— wield tremendous influence on the commercial life of the nation. If the exclusive patent privilege to “make, use and vend” includes the further privilege after sale, to control—apart from contract—the use of all patented merchantable commodities, a still more sweeping power can be exercised by patent owners. This record indi- 6 Motion Picture Co. v. Universal Film Co., supra, at 510. GENERAL PICTURES CO. v. ELECTRIC CO. 187 175 Black, J., dissenting. cates the possible extent of a power to direct and censor the ultimate use of the multitudinous patented articles with which the nation’s daily life is concerned. This record shows that the General Electric Company system, the Radio Corporation system, and the American Telephone and Telegraph Company system are participants in a “patent pool.” This “patent pool” controls respondents’ patents. The record discloses that this “patent pool” operates under cross licensing agreements, in the United States and in foreign countries. It appears that the General Electric Company and the Radio Corporation have “agreed that the Radio Corporation shall not resell patented articles except as a part of the radio system,” and that the Radio Corporation “agrees to use care not to enter with any patent device, process or system into the field of the General Electric Company or to encourage or aid others to do so.” Throughout the entire agreement appears the manifest purpose of the “patent pool” participants to protect for each other certain allocated “fields” in the production, sale and distribution of modern electrical necessities used in everything involving modern communications. Although the patent laws contemplate and authorize but one patent monopoly for one invention, many separate patents authorizing single patent monopolies are merged in this “patent pool.” Thus, all these separate patent monopolies are combined and in many respects are made to function as one. The record shows that from this larger combination—completely outside the conception in the patent statutes of single and separate monopolies—allotments of sub-monopolies are made in the respective “fields,” from which emanate in turn other sub-monopolies. This Court has previously directed attention to the tendency of such combinations to stimulate patent law abuses, in the following language : “It was not until the time came in which the full possibilities seem first to have been appreciated of uniting, in one, many branches of business through corporate organiza 188 OCTOBER TERM, 1937. Black, J., dissenting. 304 U. S. tion and of gathering great profits in small payments, which are not realized or resented, from many, rather than smaller or even equal profits in larger payments, which are felt and may be refused, from a few, that it came to be thought that the ‘right to use . . . the invention’ of a patent gave to the patentee or his assigns the right to restrict the use of it to materials or supplies not described in the patent and not by its terms made a part of the thing patented.”6 Articles manufactured under the patents thus controlled are widely used in the modern electrical field. The exclusive privilege to exercise the unrestrained power to determine the ultimate uses of all these important merchantable articles sold in the open market, is a power I do not believe Congress has conferred. A power so far reaching—apart from contract—has not been expressly granted in any statute, and should not be read into the law by implication. Second. The numerous patents acquired by respondents all relate to claimed inventions made between 1912 and 1916; yet, some of these patents do not expire until 1940. Patent No. 1448550 illustrates most of the patents involved. It is designated as the “continuation” of two e Motion Picture Co. v. Universal Film Co. supra, 513-514. In the agreement between the General Electric Company and the American Telephone and Telegraph Company, this appears: “Article VIII. “Acquisition of Patent Rights. “Neither party shall acquire from others rights to do under United States patents or inventions, or rights to use secret processes, applicable to the fields of the other party, of such limited character that the other party does not, by the operation of this agreement, receive licenses thereunder of the scope and within the respective fields herein set forth, unless the party proposing to acquire such rights shall first have given the other party an opportunity to be represented in the negotiations and thereby to acquire rights for its field.” GENERAL PICTURES CO. v. ELECTRIC CO. 189 175 Black, J., dissenting. earlier applications filed September 3, 1915 and November 2, 1915. February 3, 1919—more than four years after respondents’ commercial use—the “continuation” application was filed and March 13, 1923, the patent was granted. By this process of “divisionals” or “continuations” a seventeen year patent monopoly is permitted to begin in 1923, theoretically based on original applications which were filed in 1915. Congress has provided that two years’ public use of an invention prior to application bars the right to patent7 and no patent rights are awarded for disclosures in an application which are not claimed.8 Here, however, approval is given patents for inventions—as the District Court found and the record shows—publicly used for more than two years before applications actually claiming the invention were filed. This approval is based on the fact that disclosures (unclaimed) were made in prior and separate applications which had not been preceded by two years’ public use. “Divisional” or “continuation” applications—unauthorized by any statute—are permitted to give priority from the date of original applications, in effect barring all other inventions from that date and nullifying the statute of two years’ public use. Thus for years respondents obtained no patent on their inventions for lack of claim. No one else could safely obtain a patent because of the certainty that respondents would later claim under a “divisional” or “continuation.” The statute provides no exception of public use by the inventor and, if he uses his completed invention in the ordinary conduct of his business—for more than two 7 35 U. S. C., c. 2, § 31. 8Cf., The Corn-Planter Patent, 23 Wall. 181, 224; Miller v. Brass Co., 104 U. S. 350, 352; McClain v. Ortmayer, 141 U. S. 419, 423, 424; Buffington’s Iron Building Co. v. Eustis, 65 Fed. 804, 807; Ely Norris Safe Co. v. Mosier Safe Co., 62 F. (2d) 524, 526. 190 OCTOBER TERM, 1937. Black, J., dissenting. 304 U. S. years prior to his application—the discovery is abandoned to the public and he cannot thereafter obtain a patent-9 Such an exception—grafted onto the statute—would be directly contrary to its aim and purpose, and would enable inventors to obtain all the benefits of monopoly by simply making unclaimed disclosures, blanketing the field, and waiting until someone else attempted to claim a patent on the same invention. Then, by means of “divisional” or “continuation” applications, patent could be obtained. No such expansion of the patent statutes is justified.10 I believe the judgment of the Court of Appeals should be reversed. 9 “A single sale to another of such a machine as that shown to have been in use by the complainant more than two years prior to the date of his application would certainly have defeated his right to a patent; and yet, during that period in which its use by another would have defeated its right, he himself used it, for the same purpose for which it would have been used by a purchaser. Why should the similar use by himself not be counted as strongly against his rights as the use by another to whom he had sold it, unless his use was substantially with the motive and for the purpose, by further experiment, of completing the successful operation of his invention?” Smith & Griggs Mfg. Co. v. Sprague, 123 U. S. 249, 257; International Tooth Crown Co. v. Gaylord, 140 U. S. 55; see A. Schrader’s Sons, Inc. v. Wein Sales Corp., 9 F. (2d) 306, 208. 10 Cf., “The patent law was designed for the public benefit, as well as for the benefit of inventors. . . . "... A term of fourteen [now seventeen] years was deemed sufficient for the enjoyment of an exclusive right of an invention by the inventor; but if he may delay an application for his patent, at pleasure, although his invention be carried into public use, he may extend the period beyond what the law intended to give him.” Shaw v. Cooper, 7 Pet. 292, 320, 322, PACIFIC NATIONAL CO. v. WELCH. 191 Opinion of the Court. PACIFIC NATIONAL CO. v. WELCH, FORMER COLLECTOR OF INTERNAL REVENUE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 528. Argued March 3, 1938.—Decided May 2, 1938. A taxpayer who, in his income tax return for 1928, reported income from sales of property according to the deferred payment method, although he might have used the installment method, is not entitled, upon a claim for refund, after the time for filing the return has expired, to have the income computed according to the installment method, at least where it is not shown that the deferred payment method, rightly applied, does not clearly reflect his income. P. 192. 91 F. 2d 590, affirmed. Certiorari, 302 U. S. 679, to review the affirmance of a judgment rejecting a claim for refund of income taxes. Mr. Donald V. Hunter, with whom Mr. Melvin D. Wilson was on the brief, for petitioner. Mr. Edward J. Ennis, with whom Acting Solicitor General Bell, Assistant Attorney General Morris, and Messrs. J. Louis Monarch, F. E. Youngman, and Stephen M. Farrand were on the brief, for respondent. Mr. Justice Butler delivered the opinion of the Court. March 14, 1929, petitioner filed its income tax return for 1928. The return reported $137,007.17 as profit resulting from sales of lots in that year. That figure was arrived at by adding to the cash paid in 1928, on account of the sales, the amounts later to be paid, and by deducting from the total the cost of lots and improvements and expenses of the sales. 192 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. In 1931 petitioner filed a claim for refund of the entire tax on the ground that the sales had been made on the installment basis, but the profits had been reported as if the sales were for cash, and that this was erroneous. The claim was rejected. Petitioner sued; trial by jury having been waived, the district court made findings of fact and held that petitioner reported income as authorized by the Revenue Act of 1928 and applicable regulations, and thereby made an election which became binding on the expiration of the time allowed for filing the return. Accordingly it gave judgment for respondent. Upon the same ground the circuit court of appeals affirmed. 91 F. (2d) 590. The decision below being in conflict with that of the Court of Claims in Kaplan v. United States, 18 F. Supp. 965, we granted a writ of certiorari. Under the applicable statutes and regulations, petitioner could have chosen either of two methods for the ascertainment and report of gain or loss on the sales. The Revenue Act of 1928, 45 Stat. 791, establishes both. Defining one, the “deferred payment method,” it declares that gross income includes profits from sales,* § 22 (a); regulates the computation of gain or loss, § 22 (e); defines gain to be the excess of the amount realized over the basis, §§ 111 (a), 113; and provides that the “amount realized” shall be the sum of any money received plus the fair market value of property (other than money) received, § 111 (c). Regulations 74, Art. 352. Defining the other, the “installment method,” it provides that, in the case of a casual sale or other casual disposition of personal property for a price exceeding $1000 or in the case of sale or other disposition of real property, if payments received during the taxable year in which the sale was made do not exceed 40 per cent, of the selling price, the income may, under regulations prescribed, be returned on the installment method (§44 (b)); i. e., the taxpayer may return PACIFIC NATIONAL CO. v. WELCH. 193 191 Opinion of the Court. in any taxable year that proportion of the installment payments actually received in that year which the gross profit realized or to be realized when payment is completed bears to total contract price. See § 44 (a). Regulations 74 permit the vendor to return income from installment sales on the straight accrual or cash receipts basis; when so reported the sales are treated as deferred payment sales not on the installment plan. Art. 353. In ascertaining the amount of profit or loss from that class of sales, the obligations of the purchaser to the vendor are taken at their fair market value; if they have none, the payments in cash or other property having a fair market value shall be applied against and reduce the basis of the property sold, and if in excess of such basis, shall be taxable to the extent of the excess. Gain or loss is realized when the obligations are disposed of or satisfied, the amount being the difference between the reduced basis and the amount realized therefor. Art. 354. The question is whether, having filed a return according to the deferred payment method, the taxpayer by filing claim for refund is entitled to have the profit from the sales computed on the installment method. Petitioner contends that the installment method alone discloses its income from the sales of lots and that the deferred payment method failed clearly to reflect income. Conceding that its return might have been made in accordance with either method, petitioner says that, being ignorant of both, it treated the sales as if made for cash at figures mentioned in the contracts. Its argument, therefore, rests upon the assertion, which we assume to be true, that the promises of purchasers to pay installments were worth less than face value. But that fact has no bearing upon the question whether proper appli- 8 IB 38°—38-13 194 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. cation of the deferred payment method would clearly reflect income, for that method permits installments to be taken at market value and, if they have no market value, allows postponement of ascertainment of gain or loss until realized. While petitioner’s return may have been an inept application of the deferred payment method, there is nothing in it or the statement of claim for refund that gives any support to the idea that, if rightly applied, that method would not clearly reflect income. The parties agree that, if allowed to change to the installment method, petitioner would be entitled to a refund in some amount. But that fact has no tendency to discredit the deferred payment method as inapplicable. The amount of the tax for the year in question is only one of many considerations that may be taken into account by the taxpayer when deciding which method .to employ. The one that will produce a higher tax may be preferable because of probable effect on amount of taxes in later years. In case of overstatement and overpayment, the taxpayer may obtain refund calculated according to the method on which the return was made. Change from one method to the other, as petitioner seeks, would require recomputation and readjustment of tax liability for subsequent years and impose burdensome uncertainties upon the administration of the revenue laws. It would operate to enlarge the statutory period for filing returns (§53 (a)) to include the period allowed for recovering overpayments (§ 322 (b)). There is nothing to suggest that Congress intended to permit a taxpayer, after expiration of the time within which return is to be made, to have his tax liability computed and settled according to the other method. By reporting income from the sales in question according to the deferred payment method, petitioner UNITED STATES v. KAPLAN. 195 191 Opinion of the Court. made an election that is binding upon it and the commissioner.* Affirmed. Mr. Justice Cardozo and Mr. Justice Reed took no part in the consideration or decision of this case. UNITED STATES v. KAPLAN. CERTIORARI TO THE COURT OF CLAIMS. No. 667. Argued March 3, 4, 1938.—Decided May 2, 1938. Decided upon the authority of Pacific National Co. v. Welch, ante, p. 191. 18 F. Supp. 965, reversed. Certiorari, 303 U. S. 629, to review a judgment in favor of the taxpayer in a suit for refund of income taxes. Mr. Edward J. Ennis, with whom Acting Solicitor General Bell, Assistant Attorney General Morris, and Messrs. J. Louis Monarch and F. E. Youngman were on the brief, for the United States. Mr. Llewellyn A. Luce for respondent. Mr. Justice Butler delivered the opinion of the Court. Respondent and his wife in a joint return of income tax for 1929 reported a profit of $194,000 from the sale of 25 * Commissioner v. Moore, 48 F. (2d) 526, 528, certiorari denied 284 U. S. 620. Marks v. United States, 18 F. Supp. 911, 913. Sylvia S. Strauss, 33 B. T. A. 855, affirmed 87 F. (2d) 1018. Max Viault, 36 B. T. A. 430, 431. Sarah Briarly, 29 B. T. A. 256, 258. Louis Werner Saw Mill Co., 26 B. T. A. 141, 144-145. Liberty Realty Corp., 26 B. T. A. 1119. Morgan Rundel, 21 B. T. A. 1019. Johnson Realty Trust, 21 B. T. A. 1333. Cf. United States v. Pettigrew, 81 F. (2d) 666; Rose v. Grant, 39 F. (2d) 340; Alameda Inv. Co. v. McLaughlin, 33 F, (2d) 120; Buttolph v. Commissioner, 29 F. (2d) 196 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. shares of the stock of “No. 1100 Park Avenue,” and disclosed tax of $2,084.20, which was paid. The taxable income was less than the profit in question. It resulted from the sale by him, April 11, 1929, for a net price of $240,000 of stock bought in 1928 for $46,000. The buyer agreed to pay $25,000 cash and the balance in installments of $1,875 a month. For 1930, respondent and his wife filed a return showing no taxable income. For 1931 and 1932, respondent filed no returns. In 1932 he filed a claim for refund of the entire 1929 income tax. The ground for the claim was that he was entitled to report the sale on the installment basis. The findings indicate that the deferred payments were worth less than face value; after respondent and his wife (to whom he assigned the contract) had received $55,000, they agreed to accept $75,000 more as full payment. The commissioner rejected the claim and this suit followed. The Court of Claims gave respondent judgment. 18 F. Supp. 965. This Court granted a writ of certiorari because of conflict between the decision and that of the circuit court of appeals for the ninth circuit in Pacific National Co. v. Welch, 91 F. (2d) 590, this day affirmed, ante, p. 191. The question here presented is the same as the one decided in that case. The judgment of the court below must be Reversed. Mr. Justice Cardozo and Mr. Justice Reed took no part in the consideration or decision of this case. 695; Safety Electric Products Co. v. Helvering, 70 F. (2d) 439; Dr. Pepper Bottling Co. v. Commissioner, 69 F. (2d) 768; Radiant Glass Co. v. Burnet, 60 App. D. C. 351; 54 F. (2d) 718. ARKANSAS OIL CO. v. LOUISIANA. 197 Opinion of the Court. ARKANSAS FUEL OIL CO. v. LOUISIANA ex rel. MUSLOW. APPEAL FROM THE COURT OF APPEAL, SECOND CIRCUIT, OF LOUISIANA. No. 760. Argued April 7, 1938.—Decided May 2, 1938. 1. A statute of Louisiana provides that a person who has produced oil under a lease granted by the last record owner holding under a deed sufficient in terms to transfer title, shall, in the absence of a suit to test title, be presumed to be the true owner of the oil; that it shall be unlawful for a purchaser of oil from such a person to withhold payment therefor; and that a purchaser making payment to such a person shall be fully protected against all other claimants. Held that, upon the facts of this case, a purchaser thus required to make payment was not deprived of any rights under the Constitution of the United States. P. 198. Though the purchaser here claimed that it would be left liable to the “true owner,” it appeared that there had elapsed nearly eleven years since the deed was made to the last record owner, and four years since the oil was purchased and delivered; it did not appear that there was any other claimant, nor that the purchaser had tendered payment into court for the benefit of the “true owner,” as it might have done under the state law. 2. A constitutional question will not be decided unless its decision be necessary on the record before the Court. P. 202. 176 So. 686, affirmed. Appeal from the affirmance of a judgment sustaining a judgment in favor of the relator in an action to recover the value of oil sold and delivered. Mr. Robert Roberts, Jr., with whom Mr. H. C. Walker, Jr. was on the brief, for appellant. Mr. John B. Files submitted on brief for appellee. Mr. Justice Black delivered the opinion of the Court. Appellant (defendant below) challenges Act 64 of 1934 of Louisiana on the ground that the Act “if enforced 198 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. . . . , in the manner relied upon . . . , would require . . . [appellant] to pay to . . . [appellee] the value of property which did not belong and never has belonged to . . . [appellee], thereby leaving [appellant] responsible and liable to the true owner of such property for the value thereof, and in that manner depriving . . . [appellant] of its property without due process of law, and denying to it the equal protection of the laws contrary to the provisions and requirements in the Constitutions of the United States and of the State of Louisiana.” The Act (the pertinent part of which is set out below)1 provides that a purchaser of oil can extinguish the indebtedness for the oil (as against all other parties) by paying the person who drilled and sold it under a lease from the last “record owner,” if the recorded instrument 1 . any person, firm or corporation that has actually drilled or opened on any land in this State, under a mineral lease granted by the last record owner, as aforesaid, of such land or of the minerals therein or thereunder if the mineral rights in and to said land have been alienated, who holds under an instrument sufficient in terms to transfer the title to such real property, any well or mine producing oil, gas or other minerals shall be presumed to be holding under lease from the true owner of such land or mineral rights and the lessor, royalty owner, lessee or producer, or persons holding from them shall be entitled to all oil, gas or other minerals so produced, or to the revenues or proceeds derived therefrom, unless and until a suit testing the title of the land or mineral rights embraced in said Iqase is filed in the district court of the parish wherein is located said real property. A duly recorded mineral lease from such last record owner shall be full and sufficient authority for any purchaser of oil, gas or other minerals produced by the well or mine aforesaid to make payment of the price of said products to any party in interest under said mineral lease, in the absence of the aforementioned suit to test title or of receipt, by such purchaser, of due notification by registered mail of its filing, and any payment so made shall fully protect the purchaser making the same; and so far as said purchaser is concerned as against all other parties the producer of such oil, gas or other minerals shall be conclusively presumed to be the true and lawful owner thereof.” ARKANSAS OIL CO. v. LOUISIANA. 199 197 Opinion of the Court. of conveyance is sufficient to pass title in Louisiana, and in the absence of any suit filed to test the title of the land or oil or due notice by registered mail of the filing of such suit. Section 3 authorized purchasers to delay payment for purchases previously made until a lapse of sixty days after effective date of the Act (August 1, 1934), and denied protection to purchasers who paid the “last record” owner before the expiration of that period. The Louisiana Court of Appeal decided this sixty-day period was in effect a short statute of limitations as against any possible owners not shown of record. The District Court of Caddo Parish rendered judgment for appellee. The Louisiana Court of Appeal, Second Circuit, sustained2 and the Supreme Court of Louisiana denied certiorari. The presiding judge of the Louisiana Court of Appeal granted an appeal to this Court under authority of 28 U. S. C. § 344 (a). The record discloses that: May 24, 1927, Ackerman Oil Company, a corporation, by its President and Secretary, executed a deed to A. C. Best and Sherman G. Spurr for the land in question, which was duly recorded as provided by Louisiana law. April 18, 1933, Best and Spurr executed an oil lease to Hyman Muslow (appellee) under which the owners would receive % of the oil produced and Muslow %. Thereafter, Muslow entered upon the leased land; equipped a well; contracted to sell oil to The Louisiana Oil Refining Corporation; 3 laid a mile and a half pipe-line to appellant’s line and, between July, 1933, and September, 1934, delivered oil to appellant under the contract of sale. May 20, 1935, 2 State v. Louisiana OU Rfg. Co., 176 So. 686. 3 The Louisiana Oil Refining Corporation went through reorganization proceedings under § 77-B of the Bankruptcy Act after suit was originally filed against it by Muslow. The Arkansas Fuel Oil Co. succeeded to its assets and liabilities and was substituted as defendant. 200 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. Muslow filed suit under the 1934 Act for mandamus to require payment for the oil. An alternative writ of mandamus was issued returnable May 28, 1935, on which date the Company filed petition in bankruptcy under § 77-B of the National Bankruptcy Act. Appellant later answered and did not question that it owed someone $445.00 for the oil, but asserted that the conveyance to Best and Spurr was not translative of title to the oil due to inadequate consideration and lack of authority on the part of the corporate officers who signed the deed. Denial was made that Best and Spurr were the true owners of the land, on the same grounds. The courts of Louisiana decided these questions against appellant. Appellant also alleged that . . the said lands, having been forfeited to the State of Louisiana for non-payment of taxes on July 31, 1915, as appears from the forfeiture . . . are the property of the State of Louisiana.” Concerning the statute under attack, the Court of Appeal of Louisiana has said:4 “We experience little difficulty in determining the legislative intent in adopting this Act. It supplied a long-felt need, and in its operative effect will serve to prevent imposition upon and unjust discrimination against those whom it was intended to protect. The Act establishes a rule of conduct for the protection of lessors, their assignees under oil and gas leases, and also a rule of security and safety for lessees and those holding under or purchasing from them. . . . The Act was designed also to protect those persons whose rights arose from or are based upon contracts with the last record owner of the land covered thereby, and to those who deal with or acquire from such persons.” Appellant contends that this law as applied would enable Muslow to recover the value of the oil delivered to 4 State v. Hope Producing Co., 167 So. 506, 510. ARKANSAS OIL CO. v. LOUISIANA. 201 197 Opinion of the Court. appellant “which . . . [Muslow] did not own” and that appellant would also be left responsible to the true owner of the oil. The court below said that “Over eight years had elapsed when this suit was filed and the company, [transferor in the deed of record] the only person to complain, had not raised its voice in protest of its officers’ actions.” (Italics supplied.) Although nearly eleven years have elapsed since deed was made to Best and Spurr and almost four years since appellant purchased, received and did not pay for the oil, the record does not disclose that there has been any other claimant or purported owner of the land nor does it show any effort by appellant to pay the money into court for the benefit of a “true owner,” as it might under Louisiana law.5 The only suggestion appellant has made as to any owner not of “record” was that the property belonged to the State of Louisiana. That State—alleged by appellant to be the true owner of the land from which the oil was obtained—passed the 1934 Act and its courts have held that payment to Muslow will relieve appellant of the indebtedness. Appellant seeks to escape payment to Muslow for the oil which it purchased in 1934 on the ground that such payment would not discharge the indebtedness to a “true owner”— alleged to be the State of Louisiana. The Louisiana Court of Appeal speaking in this case has declared that the statute “protects the purchaser in paying the price to the one from whom the oil has been purchased; and, under the express declarations of the Act, no recourse may thereafter be had by any third person or adverse claimant against such buyer.” Since no adverse claimant to the land has appeared in eleven years, it is clear under all the circumstances of this case that payment for the oil bought from BActs of La., No. 123, 1922; La. Gen. Stat. (Dart) § 1556-63; cf. Shell Petroleum Corp. v. Carter, 187 La. 382; 175 So. 1; see Cassard v. Woolworth, 165 La. 571, 575; 115 So. 755. 202 OCTOBER TERM, 1937. Syllabus. 304 U. S. Muslow in 1933 and 1934 will not deprive appellant of any rights under the Federal Constitution. “It is a matter of common occurrence—indeed, it is almost the undeviating rule of the courts, both state and Federal—not to decide constitutional questions [of the validity of a State Act] until the necessity for such decision arises in the record before the court.” Baker v. Grice, 169 U. S. 284, 292. We see no such necessity here. The judgment appealed from is Affirmed. Mr. Justice Stone concurs in the result. Mr. Justice Cardozo took no part in the consideration or decision of this case. RUHLIN et al. v. NEW YORK LIFE INSURANCE CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 596. Argued March 10, 1938.—Decided May 2, 1938. 1. Where an insurance policy by its terms is incontestable after a time limited except for nonpayment of premium and “except as to provisions and conditions relating to disability and double indemnity benefits,” the question whether the latter exception embraces, and excludes from the limitation, the right of the insurer to rescind the agreement to pay disability and double indemnity benefits because of fraud in the application, is not a question of “general law” which a federal court may determine independently, but a question of state law which the federal court must determine in accordance with the decisions of the appropriate state court. Erie Railroad Co. v. Tompkins, ante, p. 64. P. 204. 2. The doctrine of Erie Railroad Co. x. Tompkins is applicable to a question of construction of a contract arising in a suit in equity. P. 205. 3. Conflict among the Circuit Courts of Appeals on questions of state law is not of itself a reason for granting a writ of certiorari. P. 206. RUHLIN v. N. Y. LIFE INS. CO. 203 202 Opinion of the Court. 4. The petition in this case did not show, as a basis for certiorari, that the important question of local law involved was decided below “in a way probably in conflict with applicable local decisions,” or that the decision was “probably untenable” and therefore probably in conflict with the state law as yet undeclared by the highest court of the State. Rule 38 (5) (b). 5. Where a suit dependent on the construction of an insurance policy was presented and decided below on the mistaken assumption that the construction was a question of “general” or “federal” law, this Court, on certiorari, declined to decide upon the rule of state law applicable, but vacated the judgment and remanded the cause to the District Court, for further proceedings in conformity with the opinion and with directions to permit such amendments of the pleadings as might be necessary for that purpose. P. 206. 93 F. 2d 416, reversed. Certiorari, 302 U. S. 681, to review the affirmance of an interlocutory decree enjoining the institution of actions on certain insurance policies, including an action in a state court, pending the determination of a suit to cancel the policies in part, for fraud. Mr. Charles H. Sachs, with whom Mr. Charles J. Mar-giotti was on the brief, for petitioners. Mr. William H. Eckert, with whom Mr. Louis H. Cooke was on the brief, for respondent. Mr. Justice Reed delivered the opinion of the Court. On February 14, 1935, the New York Life Insurance Company, respondent here, filed its bill of complaint in the District Court for Western Pennsylvania to rescind, because of certain misrepresentations, the disability and double indemnity provisions in five policies issued on the life of defendant John G. Ruhlin, and made in favor of the other defendants as beneficiaries. The bill alleged that the plaintiff is a mutual life insurance company incorporated under the laws of the State of New York and lawfully engaged in business in Pitts- 204 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. burgh, Pa.; that the defendants are temporarily living in Pennsylvania, though plaintiff does not know where their legal residence is; that on December 1, 1928, plaintiff wrote two policies of life insurance on the life of John G. Ruhlin, in the face amounts of $10,000 and $5,000; that on July 7, 1930, it wrote three additional, similar policies in the face amount of $4,000 each; that certain questions in the applications were answered falsely and fraudulently by the insured; that on November 1, 1934, John G. Ruhlin presented a claim for total and permanent disability benefits under each of the five policies. The Company tendered into court the sum of $1,045.42, the aggregate amount of premiums paid for disability and double indemnity benefits, and prayed that the disability and double indemnity provisions be rescinded, and for other relief not material here. The defendants filed a motion to dismiss the complaint on the ground that the policies had become incontestable, since the suit was brought more than two years after the date of each policy involved. The “incontestability clause” of each of the policies reads as follows: “Incontestability.—This Policy shall be incontestable after two years from its date of issue except for nonpayment of premium and except as to provisions and conditions relating to Disability and Double Indemnity Benefits.” The District Court overruled the motion to dismiss. The Circuit Court of Appeals affirmed the order, holding that, in view of their express terms, the incontestability clauses had no application to liability for disability and double indemnity benefits. It recognized that its decision was contrary to that reached by the Circuit Court of Appeals for the Ninth Circuit, New York Life Ins. Co. v. Kaufman, 78 F. (2d) 398, and by the Circuit Court of Appeals for the Fourth Circuit, New York Life Ins. Co. v. Truesdale, 79 F. (2d) 481, which had held that the exception in the RUHLIN v. N. Y. LIFE INS. CO. 205 202 Opinion of the Court. incontestability clause related only to provisions and conditions actually set forth in the policy itself, compare Stroehmann v. Mutual Life Ins. Co., 300 U. S. 435, and that fraud was not mentioned in any of those provisions. Ruhlin petitioned for certiorari, asserting the conflict of circuits. The Company filed a memorandum admitting the conflict, and raising no objection to the granting of the writ. Because of the conflict of circuits, the Court granted certiorari. It was stated in Carpenter v. Providence Washington Ins. Co., 16 Pet. 495, 511, that questions concerning the proper construction of contracts of insurance are “questions of general commercial law,” and that state decisions on the subject, though entitled to great respect, “cannot conclude the judgment of this court.” A limitation was put on this doctrine in Mutual Life Ins. Co. v. Johnson, 293 U. S. 335, 340. Putting aside all questions of power, the Court interpreted a specific provision of an insurance contract in accordance with the decision of the highest court of the State of Virginia, where delivery was made. “All that is here for our decision is the meaning, the tacit implications, of a particular set of words, which, as experience has shown, may yield a different answer to this reader and to that one. With choice so ‘balanced with doubt,’ we accept as our guide the law declared by the state where the contract had its being.” The decision in Erie R. Co. v. Tompkins, ante, p. 64, goes further, and settles the question of power. The subject is now to be governed, even in the absence of state statute, by the decisions of the appropriate state court. The doctrine applies though the question of construction arises not in an action at law, but in a suit in equity. Compare Mason v. United States, 260 U. S. 545, 557, 558. Had Erie R. Co. v. Tompkins been announced at some prior date the course of this case might have been different. This Court might not have issued a writ of cer 206 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. tiorari. Rule 38 (5) of the Supreme Court Rules indicates that this Court will consider, as a reason for granting a writ of certiorari, the fact that “a circuit court of appeals has rendered a decision in conflict with the decision of another circuit court of appeals on the same matter.” Since jurisdiction to bring up cases by certiorari from the circuit courts of appeals was given to this Court in order “to secure uniformity of decision,” Magnum Import Co. v. Coty, 262 U. S. 159, 163, a showing of a conflict of circuits on a matter concerning which the federal courts had never denied their right to independent judgment prompted this Court to grant the writ. E. g., Aschenbrenner v. U. S. Fidelity & G. Co., 292 U. S. 80, 82; Stroehmann v. Mutual Life Ins. Co., 300 U. S. 435, 440. As to questions controlled by state law, however, conflict among circuits is not of itself a reason for granting a writ of certiorari. The conflict may be merely corollary to a permissible difference of opinion in the state courts. The Rules indicate that the Court will be persuaded to grant certiorari where a circuit court of appeals “has decided an important question of local law in a way probably in conflict with applicable local decisions.” No such showing was attempted by the petition. Nor was it contended that the decision below was “probably untenable” and therefore probably in conflict with the state law as yet unannounced by the highest court of the State. No decision at the present time could reconcile any “conflict of circuits,” or do more than enunciate a tentative rule to guide particular federal courts. Therefore, even assuming that it is adequately presented on the record, we decline to decide the issue of state law. However, we shall not dismiss the writ of certiorari as im-providently granted. In view of the fact that the question in the case was regarded below, both by the courts and by counsel, as one of “general” or “federal” law, the RUHLIN v. N. Y. LIFE INS. CO. 207 202 Opinion of the Court. interest of justice requires that the judgment be vacated and the cause remanded for the enforcement of the applicable principles of state law. See Villa v. Van Schaick, 299 U. S. 152, 155—156; Duke Power Co. v. Greenwood County, 299 U. S. 259, 267—268; Watts, Watts & Co. n. Unione Austriaca, 248 U. S. 9, 21. It is true that the Circuit Court of Appeals, in rendering judgment on reargument, said (see 93 F. (2d) 416, 417): “Furthermore, both the Court of Appeals of New York and the Supreme Court of Pennsylvania have held that the incontestability clause here involved clearly excepts the double indemnity and disability provisions from its operation. Steinberg v. New York Life Ins. Co., 263 N. Y. 45, 188 N. E. 152; Manhattan Life Insurance Co. v. Schwartz, 274 N. Y. 374, 9 N. E. 2d 16; Guise v. New York Life Ins. Co., [127 Pa. Super. 127,] 191 Atl. 626. We have read the recent opinion of the Supreme Court of California in the case of Coodley v. New York Life Insurance Co., 7 Cal. 2d 269, [70 P. 2d 602] and the opinion of Judge Coughlin in the case of New York Life Insurance Co. v. Thomas, 27 D. & C. 215, but are not persuaded that the learned District Judge erred. Since the company is domiciled in New York and the insured lives in Pennsylvania and ‘all that is here for our consideration is the meaning, the tacit implications, of a particular set of words/ ‘for the sake of harmony and to avoid confusion’ we shall follow the decision of those courts and hold that the insurance company is not barred by the incontestability clause from rescinding the double indemnity and disability provisions. Mutual Life Ins. Co. v. Johnson, 293 U. S. 340; Trainor v. Aetna Casualty Company, 290 U. S. 47, 54.” It is not necessary here to consider whether, in the determination of the substantive Pennsylvania rule, the Circuit Court of Appeals was correct in declining to fol 208 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. low the nisi prius Thomas case, directly in point, and in applying the Guise case, which was decided by an intermediate appellate court (127 Pa. Super. 127; 191 A. 626), and not the supreme court of the state as the court below stated, and which involved a defense of coverage, available even under an ordinary incontestability clause as the opinion in the Guise case clearly states (127 Pa. Super, at 133; 191 A. 626) 3 A different case might have been presented, and the facts and authorities developed in another fashion, if the parties had had in mind from the first the rule the Pennsylvania court would have applied. The pleadings might have shown in what place the policy was delivered,1 2 and perhaps other facts attending the making of the insurance contract. It may be noted that petitioner’s brief asserts, without record reference, that the applications for the first two policies were made in Pennsylvania, and the applications for the remaining three policies were made in Ohio. But as the record stands, we know only that at the time of bringing suit the respondent Company was incorporated in New York, and lawfully engaged in business in Pittsburgh, and that the defendants were then temporarily living in Pennsylvania. Application of the “State law” to the present case, or any other controversy controlled by Erie R. Co. v. Tomp- 1The Superior Court said (127 Pa. Super, at 133; 191 A. 626): “An examination of the clauses discloses that the disability provisions of the policies are expressly excluded from their operation. Even if that exemption had not been inserted, the clauses would not have prevented the interposition of the defense here set up. Mayer v. Prudential Life Insurance Company of America, 121 Pa. Superior Ct. 475, 184 A. 267.” 2 Under the general doctrine the interpretation of an insurance contract depends on the law of the place where the policy is delivered. Mutual Life Ins. Co. v. Johnson, 293 U. S. at 339. We do not now determine which principle must be enforced if the Pennsylvania courts follow a different conflict of laws rule. PETROLEUM CO. v. COMM’N. 209 209 Syllabus. kins, does not present the disputants with duties difficult or strange. The parties and the federal courts must now search for and apply the entire body of substantive law governing an identical action in the state courts. Hitherto, even in what were termed matters of “general” law, counsel had to investigate the enactments of the state legislature. Now they must merely broaden their inquiry to include the decisions of the state courts, just as they would in a case tried in the state court, and just as they have always done in actions brought in the federal courts involving what were known as matters of “local” law. The judgment is vacated and the cause remanded to the District Court, for further proceedings in conformity with this opinion, with directions to permit such amendments of the pleadings as may be necessary for that purpose. Judgment vacated. Mr. Justice Cardozo took no part in the consideration or decision of this case. PETROLEUM EXPLORATION, INC. v. PUBLIC SERVICE COMMISSION et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF KENTUCKY. No. 705. Argued April 4, 5, 1938.—Decided May 2, 1938. 1. The Act of May 14,1934, restricting the jurisdiction of the federal courts to enjoin enforcement of orders of state commissions affecting public utility rates, is inapplicable to an order of a commission commanding a corporation to produce evidence on a certain date, made without notice or hearing. P. 214. 2. In a suit to enjoin as unconstitutional a projected inquiry by a state agency into the reasonableness of the rates of a gas company, the expense to the company of complying with the order by showing the original and historical costs of its properties, cost of reproduction as a going concern, and other elements of value recog- 816380—38-14 210 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. nized by law in fixing rates, is part of the amount or value in controversy. P. 215. 3. The objection that a suit is not within equity jurisdiction because of the existence of a plain, adequate and complete remedy at law (Jud. Code § 267) may be taken by trial or appellate court sua sponte. P. 216. 4. The adequate legal remedy which will defeat equity jurisdiction must be a remedy available in the federal court. P. 217. 5. A gas corporation owning very valuable property and doing a large business sought in a federal court to enjoin a state commission from carrying on proceedings to fix the company’s rates, in alleged excess of the commission’s jurisdiction and in violation of the company’s constitutional rights. Held, that a loss of $25,000, in preparing and presenting the company’s case before the commission, would not constitute irreparable injury justifying equitable intervention. Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41. P. 218. When the only ground for interfering with the state procedure is the reasonable cost of preparing for a hearing, there is no occasion for equitable intervention. P. 221. 12 F. Supp. 254, affirmed. Appeal from a decree of the District Court of three judges which dismissed a bill for an injunction. Mr. W. J. Brennan, with whom Messrs. Edward C. O’Rear, Allen Prewitt, and Charles N. Kimball were on the brief, for appellant. Mr. J. W. Jones, Assistant Attorney General of Kentucky, for appellees. Mr. Justice Reed delivered the opinion of the Court. This is an appeal from a final decree dismissing appellant’s bill of complaint for want of jurisdiction in equity. It was entered by the United States District Court for the Eastern District of Kentucky sitting with three judges under Judicial Code, § 266. 21 F. Supp. 254. The appellant sought to enjoin the Public Service Commission of PETROLEUM CO. v. COMM’N. 211 209 Opinion of the Court. Kentucky from prosecuting an investigation of wholesale rates for gas marketed by contract in Kentucky by appellant, on the ground that any regulation of the rates charged by appellant to its customers would be beyond the statutory power of the Commission, since the appellant was not a public utility,, and would result in a deprivation of property without due process, a denial of equal protection of the laws, and a violation of the contracts clause of the Federal and State Constitutions, affecting contracts entered into prior to the passage of the regulatory act1 of the General Assembly of Kentucky. As grounds for equitable relief, it was alleged that there was no adequate remedy and that irreparable injury would be inflicted upon appellant by the large expense entailed in preparation for the investigation. Appellant is a corporation solely of the State of Maine, engaged in the production and purchase of natural gas at various fields in Kentucky and the transmission of that gas through wholly intrastate pipe lines to distributing agencies at the “city gates” of various municipalities of that Commonwealth. Appellant sells to three distributing agencies: a partnership, a corporation entirely free of connection with appellant, and a corporation in which appellant owns a dominant interest. It offers to sell and sells its commodity by separate contracts only to the distributing agencies named in the bill. All of these agencies, with one immaterial exception, are the owners of unexpired franchises purchased from the respective municipalities which they serve. Either by these franchises or by supplementary contract, the rates are fixed for retail sales of gas. Acting pursuant to statutory provisions authorizing investigations of the rates of defined utilities, the Public Service Commission of Kentucky issued on May 29, 1937, an order, pertinent provisions of which 1 Acts of 1934, c. 145, as amended by Acts of 1936, c. 92. 212 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. are set forth in the margin,2 reciting that appellant is an operating utility subject to the Commission’s jurisdiction, setting a date for a public hearing, and ordering appellant ’“Notice of Investigation and Order to Show Cause. “Whereas, An examination of the reports of several wholesale and retail gas utilities serving in this state, show that they purchase gas at wholesale rates from the Petroleum Exploration, Inc., Lexington, Kentucky; and “Whereas, The Commission has found under Sections 3952-1-12-13, and 14 that the Petroleum Exploration, Inc., is an operating utility in the State of Kentucky, and subject to the jurisdiction of this Commission; and “Whereas, It is apparent from a comparison of these rates with those of other companies rendering a similar class of service in Kentucky that these rates may be excessive; and “Whereas, These wholesale rates bear a definite relationship to the cost of gas to consumers in the following towns and communities, namely, Corbin, Somerset, Barbourville, Manchester, Burning Springs, Richmond, Irvine-Ravenna, London, Winchester, Mt. Sterling, Cynthiana, Georgetown, Lexington, Paris, Frankfort, Versailles, Midway, and North Middletown; and “Whereas, Authority to initiate this investigation is vested in the Commission by Sections 3952-12-13, and 14 of the Kentucky Statutes, “Now, Therefore, Notice is Hereby Given, That the Commission has entered upon an investigation of the above matters and that a public hearing will be held relative to said matters at the office of the Commission on June 29, 1937, at which time and place any person interested may appear and present such evidence as may be proper in the premises; and “Whereas, Under such circumstances the Commission finds the burden of proof upon the utility to show that rates and charges are fair and reasonable, and not arbitrary, “Now, Therefore, it is Ordered: “1. That official representatives of the Petroleum Exploration, Inc., appear at such hearing and present evidence, if any it can, as will show conclusively the fairness and reasonableness of its present rates and charges for gas which it is selling to companies that are in turn selling the same gas at wholesale or retail in this state, or submit PETROLEUM CO. v. COMM’N. 213 209 Opinion of the Court. to appear at such hearing and present evidence of the reasonableness of its rates and charges, and also to make its records available for examination. Appellant filed a plea to the Commission’s jurisdiction, in substance setting up the objections subsequently urged in the bill under consideration. The Commission overruled this plea and reset the investigation for hearing on the merits. The appellant filed an application for a rehearing of this order. Though the Commission has not formally passed upon this application it admits that it intended and threatened to proceed with the investigation, determine and fix a fair rate for appellant’s gas, and that it would have so proceeded but for the temporary restraining order obtained by appellant upon the filing of the bill in question. Appellant’s bill alleged that it was the obvious purpose of the Commission to lower appellant’s rates, that these rates were not subject to the regulatory jurisdiction of the Commission, that any reduction would violate the Fourteenth Amendment, and impair the obligations of its contracts, in contravention of the contracts clauses of the State and Federal Constitutions. It was further alleged that the investigation, and the orders entered therein, are unlawful and unreasonable, and, if further prosecuted, for the approval of the Commission such changes and revisions as will make such rates or charges fair and reasonable.” [Sections 2 and 3 omitted here relate to a requirement for the submission of information on contracts between appellant and other parties. Existence of such contracts was denied by appellant, and no evidence to establish them was offered.] “4. That all books, accounts, records, correspondence and memoranda of the Petroleum Exploration, Inc., be made available for examination by the Commission’s representatives. “Notice is Hereby Given to the Petroleum Exploration, Inc., of the above order of the Commission. “Dated at Frankfort, Kentucky, this 29th day of May, 1937.” 214 OCTOBER TERM, 1937. Opinion of the Court. 304 U. 8. would put appellant to considerable unlawful and needless expense. The Commission filed an answer asserting that appellant was subject to its regulatory jurisdiction. It denied any purpose on its part to attempt to lower the contract price which appellant charged the distributing agencies but averred that it would institute and conduct a special investigation and proceeding to determine a fair and reasonable price or rate to be charged by appellant and to fix said price or rate. The majority opinion of the District Court held that as the order challenged could be enforced only by judicial proceedings, there existed no immediately threatened irreparable injury or damage to the appellant within the equity jurisdiction of the District Court. Without any consideration of the merits, the bill was dismissed. The assignments of error attack this conclusion. We affirm the decree of the District Court. First. The point is made by appellees that injunction is prohibited by the Johnson Act of May 14, 1934, c. 283, § 1, 48 Stat. 775, 28 U. S. C. § 41 (1). This act withdraws from the district courts jurisdiction of any suit to enjoin the enforcement of any order of a state administrative commission where such order “(1) affects rates chargeable by a public utility, (2) does not interfere with interstate commerce, and (3) has been made after reasonable notice and hearing, and where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State.” The Johnson Act does not apply here because the order complained of, i. e., that of May 29, 1937, was entered without notice or hearing. Though it is entitled a “Notice of Investigation and Order to Show Cause,” which would be an appropriate method of initiating, an investigation, in fact the order commands appellant to produce certain evidence on a designated date, and not merely to show cause on that date why evi- PETROLEUM CO. v. COMM’N. 215 209 Opinion of the Court. dence should not be produced. The order of June 29, 1937, overruling the plea to the jurisdiction, is not final but is pending on an application for rehearing. Second. This proceeding was begun under the provisions of § 24 (1) of the Judicial Code, 28 U. S. C. § 41 (1). Jurisdiction was challenged by the Commission on the ground that the value of the matter in controversy was not in excess of $3,000. To show the requisite amount, appellant alleged that it would be necessary to expend $25,000 to present the evidence required by the order. It was found by the District Court from the testimony at the trial that “the expense to plaintiff of complying with said orders would be more than $3,000.00 in employing appraisers, geologists, engineers, accountants, etc., to show the original and historical cost of its properties, cost of reproduction as a going concern, and other elements of value recognized by the law of the land for rate making purposes.” The purpose of this proceeding is to stop the investigation of the rates under the order issued. Since the necessary expense of producing the information demanded by the order exceeds the jurisdictional amount, the value of the matter in controversy is at least this sum. This purpose or object is analogous to those sought in injunctions to restrain a continuing trespass, where the value of the matter in controversy includes the cost of remedying the condition as part of the value of the matter in controversy, namely, the prevention of interference with plaintiff’s rights.3 Other examples are found in a suit to enjoin the enforcement of a tax statute, where the 8 Glenwood Light Co. v. Mutual Light Co., 239 U. S. 121, 125. The pleadings and proof in the present case do not in terms raise the question of the value of the right to conduct business free of interference by the Commission. Scott v. Donald, 165 U. S. 107; cf. Glenwood Light Co. v. Mutual Light Co., supra, 124. 216 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. amount of the tax is the value of the matter in controversy,4 5 and in a suit to enjoin enforcement of an order to install and maintain a track, where the value of the matter in controversy is the cost of compliance.® Where “expenses incident to compliance” with a regulatory statute exceed $3,000, the jurisdiction is clear.6 There is no contention here either that the Commission’s order left appellant with any less expensive alternative, or that the worth of appellant’s entire business is less than $3,000. In undertaking to enjoin this investigation, the cost incident to making a showing required by the Commission is not collateral or incidental to the purpose of the injunction, but a threatened expense from which relief is sought. Whether such irrecoverable cost is an irreparable injury against which equity will protect is considered later in this opinion. The District Court had jurisdiction of the cause, as a federal court. Third. We next consider whether the suit must be dismissed pursuant to § 267 of the Judicial Code, 28 U. S. C. § 384, which declares that no suit in equity shall be sustained “where a plain, adequate, and complete remedy may be had at law.” Though this contention was not raised below by the Commission, “either the trial court or the appellate may, of its own motion, take the objection.” 7 For determination of the adequacy of this rem- 4 Healy v. Ratta, 292 U. S. 263. 5 Western & Atlantic R. Co. v. Railroad Commission, 261 U. S. 264. 6 Packard v. Banton, 264 U. S. 140, 142, 143. 7 See Twist v. Prairie Oil & Gas Co., 274 U. S. 684, 690. Although the objection does not go to the jurisdiction of the court as a federal court and may be waived and not considered if not timely raised (Reynes v. Dumont, 130 U. S. 354, 395), if it be obvious that there is an adequate remedy at law, the court acts sua sponte to preserve the courts of equity as a forum for extraordinary relief, in accordance with the legislative direction of § 267 of the Judicial Code. Parker v. Winnipiseogee Lake Cotton & Woolen Co., 2 Black 545, 550; Wright v. Ellison, 1 Wall. 16, 22; Oelrichs v. Spain, 15 PETROLEUM CO. v. COMM’N. 217 209 Opinion of the Court. edy we must here assume the allegations of appellant that, unless an injunction is granted, irreparable injury will flow from its compliance with the order of May 29. It. is settled that no adequate remedy at law exists, so as to deprive federal courts of equity jurisdiction, unless it is available in the federal courts.8 If appellant ignores the Commission’s order, action for recovery of penalties for the violation of the order may be instituted by the Commonwealth of Kentucky. Ky. Stat. Ann. (Carroll’s 8th ed., Baldwin’s 1936 revision) §§ 3952-13 and -61. But this proceeding could neither be begun nor removed to the federal court. Apart from the difficulty of maintaining such an action in the federal courts, in view of its penal nature, the State would be proceeding as plaintiff to enforce its laws; its complaint would not be grounded on the Constitution or laws of the United States, and there would not be diversity of citizenship, the States not being “citizens” within the Judicial Code.9 There is equitable jurisdiction to enjoin the proposed investigation of appellant’s rates, if the order of May 29, quoted above, carries a threat of imminent, irreparable injury. Fourth. The bill asks injunctive relief to restrain the Commission from further prosecuting the “investigation” into the price of gas sold under appellants contracts to the distributing agencies. Two decisions dealing with Wall. 211, 228; Singer Sewing Machine Co. v. Benedict, 229 U. S. 481, 486; Henrietta Mills v. Rutherford County, 281 U. S. 121, 123, 128. Cf. Federal Trade Commission v. Claire Furnace Co., 274 U. S. 160. It is a question of “whether the case is one for the peculiar type of relief” granted by courts of equity. Di Giovanni v. Camden Ins. Assn., 296 U. S. 64, 69. 8 Di Giovanni v. Camden Ins. Assn., 296 U. 8. 64, 69, and cases cited; Chicago, B. & Q. R. Co. v. Osborne, 265 U. S. 14, 16. 9 Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 487; Minnesota v. Northern Securities Co., 194 U. S. 48, 63; Arkansas v. Kansas & Texas Coal Co., 183 U. S. 185, 188; City Bank Co. v. Schnader, 291 U. S. 24, 29. 218 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. orders for furnishing information have recently been handed down by this Court.10 11 In both cases this Court dealt with the merits of the respective orders, determining that there was no constitutional basis for saying that “any person is immune from giving information appropriate to a legislative or judicial inquiry.” Here there is no need to consider the validity of the challenged order. To justify the use of the extraordinary power of a court of equity something more must be involved than an application of a statute in an unconstitutional manner against complainant. There must be an allegation and proof of threatened injury under some of the recognized sources of equitable jurisdiction.11 The one most frequently relied upon in constitutional cases, and pleaded here, is irreparable injury.12 13 To furnish the information required by the order will cost $25,000, arising from the necessity of preparing for the hearing on rates. Is this irrecoverable expense a threatened irreparable injury which a court of equity will guard against by injunction? Whether or not equitable relief will be granted rests in the sound discretion of the court.18 It is true that the injury which flows from the threat of enforcement of an allegedly unconstitutional, regulatory state statute with penalties so heavy as to forbid the risk of challenge in proceedings to enforce it, has been generally recognized as irreparable and sufficient to justify an 10 Natural Gas Co. v. Slattery, 302 U. S. 300, 306; Arkansas Louisiana Gas Co. v. Department of Public Utilities, ante, p. 61. 11 Dows v. Chicago, 11 Wall. 108; Cruickshank v. Bidwell, 176 U.S. 73, 81; McChord v. Louisville & Nashville R. Co., 183 U. S. 483, 495; Shelton v. Platt, 139 U. S. 591, 596; Boise Artesian Water Co. v. Boise City, 213 U. S. 276, 281. 12 See Irreparable Injury in Constitutional Cases, 46 Yale Law Journal 255 (1936). 13 Di Giovanni v. Camden Ins, Assn., 296 U. S. 64, 70. PETROLEUM CO. v. COMM’N. 219 209 Opinion of the Court. injunction.14 The Commission urges that since there is ample opportunity for the appellant to contest in a state court any effort to regulate or punish for disobedience of orders, with ultimate review by this Court, there is no irreparable injury, and that the dangers of lowered rates and threatened punishments can be overcome by opposition when an effort is made to enforce them. The case of Federal Trade Commission v. Claire Furnace Co., 274 U. S. 160, where an effort was made to secure an injunction against enforcement of a Federal Trade Commission order to produce information, has been cited as a precedent. There were heavy penalties for violation of that order15 but the opinion discussed the issues from the standpoint of failure to exhaust administrative remedy.16 Appellant here insists that it is compelled to choose between compliance, at a heavy cost, or non-compliance with obvious risks of severe, though non-recurring and non-cumulative, penalties;17 and that to stand by sub 14 Ex parte Young, 209 U. S. 123, 165; Terrace v. Thompson, 263 U. S. 197, 215, 216; Packard v. Banton, 264 U. S. 140, 143. 15 §§ 9 and 10 of the Act of September 26, 1914, c. 311, 38 Stat. 722, 15 U. S. C. §§ 49, 50. 18 Cf. Dalton Adding Machine Co. v. State Corporation Comm’n, 236 U. S. 699. 17Ky. Stat. Ann. § 3952-61 provides: 8. >8. “Balmoral” Co. v. Marten, [1902] App. Cas. 511, 514, 515. The peculiar rule of the insurer’s liability for partial loss to hull when repairs are made does not depend on the valuation clause and affords 436 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. no basis for treating it as excluding the insured as coinsurer when there is a total loss. These variations in the effect of the valuation clause, in fixing the liability of the insurer, do not alter the character of the valued policy as a contract of indemnity, or afford any basis for alteration of his rights as an indemnitor. Whether upon a valued or an open policy, he is entitled to share in the insured’s recovery of damages only by way of subrogation, whose sole object and justification is to make indemnity to the insured up to the amount of the policy, the measure of the liability of the insurer. Standard Marine Ins. Co. v. Scottish Metropolitan Assurance Co., 283 U. S. 284, 288; Aetna Casualty & Surety Co. v. Phoenix National Bank & Trust Co., 285 U. S. 209, 214; Chapman n. Hoage, 296 U. S. 526, 531. The doctrine now contended for, would require a radical departure from the principle on which subrogation is founded. Consistently applied, it would in some cases deprive the insured of indemnity, and indeed might enable the insurer to make a profit by recovering more from the insured than the amounts paid on the policy. We are unable to sanction a doctrine involving such consequences. No question is raised by the petition for certiorari or appears to have been raised below as to the correctness of the adjustment statement, if the valuation clause does not foreclose proof of actual value and if respondent is therefore to be regarded as a co-insurer of the hull in event of total loss. Petitioners make no contention that respondent, if so regarded, has received more than appropriate indemnity after the distribution of the proceeds of the collision suit. The total insurance received by respondent from the insurers in 1918 and 1919, aggregating $886,068, was approximately $863,932 less than the prime value of the vessel, which some thirteen years later it recovered in the collision suit, without allowance of interest and after the expenditure of more than $300,000 as ^ETNA INS. CO. v. UNITED FRUIT CO. 437 430 Opinion of the Court. costs of the litigation. Petitioners submit no interest computations and have otherwise made no effort to sustain the burden of proving that respondent has received more than indemnity for the delay in payment of as much of the loss as was not covered by insurance. Since the expenses have been apportioned by charging the insured with a proportion greater than its share of the risk, and the apportionment is not assailed except as it may be wholly precluded by the valuation clause, it is unnecessary to consider whether the distribution of expense should be upon principles of co-insurance or whether the insured should be fully indemnified for it before the insurer is entitled to subrogation. Petitioners point to no practice of underwriters with respect to the valued policy or its rate of premium as compared with that for the open policy, which supports the rule for which they contend. But they insist that it has been adopted in England and has become so well settled in New York where the insurance was effected, that it must be taken to be an implied term of the policies. It is true that North of England Iron S. S. Ins. Assn. v. Armstrong, supra, lends support to petitioners’ argument. There, upon a total loss, the insured had recovered as collision damages an amount less than the agreed valuation and it was held that the insurer, who had paid the policy in full, was entitled to have the benefit of the entire recovery. The court thought that the case was analogous to that of abandonment in case of a constructive total loss where the underwriter, by virtue of the abandonment, is entitled to the wreck and to such profit from it as he can make. Pursuing the logic of its reasoning, the court declared that the insurer would have been entitled to the insured’s full recovery even if it exceeded the agreed value. But it seems plain that there is no analogy between the insurer’s right to be subrogated to the fruits of the insured’s recovery from a wrongdoer 438 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. and the insurer’s right to a wreck which is his by abandonment. The Potomac, 105 U. S. 630, 634; The St. Johns, 101 F. 469, 472 (S. D. N. Y.); Arnould on Marine Insurance, 11th Edition, §§ 1228-1230. North of England Iron S. S. Ins. Assn. v. Armstrong, supra, was cited in The Potomac, supra, 635, and in Mobile & Montgomery Ry. Co. v. Jurey, 111 U. S. 584, 594, 595, neither of which involved the question now presented. It was followed in The St. Johns, but not to the extent of allowing a profit to the insurer. In The Livingstone, 130 F. 746 (C. C. A. 2), the claim of a valued hull insurer to the whole collision recovery, which exceeded the agreed value, was denied upon reasoning which rejected that of North of England Iron S. 8. Ins. Assn. v. Armstrong, supra, and The St. Johns, supra, and calls for affirmance of the judgment here. Interest was allowed to the insurer, apparently because interest on the full value of the vessel had been recovered in the damage suit. Without discussing the point the court by its mandate directed payment to the underwriters of the full amount of their policies without deduction for expenses. But as it considered that the insurer’s right of recovery rested upon subrogation unaffected by the valuation clause, we cannot regard the case as an intentional departure from the rule that the insurer is entitled to subrogation only after the insured is appropriately indemnified, or as establishing any rule that the valuation clause forecloses proof of actual value as a step in measuring the insurer’s recovery by way of subrogation. We recognize that established doctrines of English maritime law are to be accorded respect here, Queen Ins. Co. v. Globe & Rutgers Fire Ins. Co., supra, 493; Gulf Refining Co. v. Atlantic Mutual Ins. Co., supra, 715, but the pronouncement in North of England Iron S. S. Ins. Assn. v. Armstrong, supra, has never been adopted by ALLEN v REGENTS. 439 430 Syllabus. an English appellate court. It was doubted by eminent judges in Burnand n. Rodocanachi Sons & Co., [1882] L. R. 7 App. Cas. 333, 342, and in Thames & Mersey Marine Ins. Co. v. British Chilean S. S. Co., [1915] L. R. 2 K. B. 214, 221. Its reasoning, conflicting as it does with established principles of maritime insurance law, and found to be incapable of consistent application both in The St. Johns, supra, 474—475, and in The Livingstone, supra, 750, should be rejected here. Affirmed. Mr. Justice Cardozo took no part in the consideration or decision of this case. ALLEN, COLLECTOR OF INTERNAL REVENUE, v. REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 882. Argued April 28, 29, 1938.—Decided May 23, 1938. 1. Substitution of the official successor to a collector of internal revenue who resigned and died pending a suit to restrain collection of a tax assessment, held proper under § 11, Act of February 13, 1925. P. 444. 2. R. S. § 3224, providing that “no suit for the purpose of restraining the collection or assessment of any tax shall be maintained in any court,” is inapplicable in exceptional cases where there is no plain, adequate and complete remedy at law. P. 445. 3. A corporation, created by a State as an instrumentality of the State, and having control and management of state educational institutions, sought to restrain collection by distraint of sums assessed by the Commissioner of Internal Revenue in consequence of neglect to collect and pay over the federal tax, Revenue Act of 1926, § 500 (a) (1), as amended, on admissions to intercollegiate football games played at those institutions. The corporation con- 440 OCTOBER TERM, 1937. Counsel for Parties. 304U.S. tended that the exaction would unconstitutionally burden a governmental activity of the State. The tickets of admission to the games in question bore printed notices to the effect that the corporation was not liable for any admission tax, but that an amount equivalent thereto was being collected as part of the price of admission and would be retained as such, unless it should later be determined that the corporation was liable for the tax. Held, the suit was within the equity jurisdiction of the federal court. Pp. 445, 448. The State was entitled to a determination of the question whether the statute as construed and applied imposed an unconstitutional burden, and the issue could not adequately be raised by any other proceeding. 4. A corporation created by the State as an instrumentality of the State and having control and management of state educational institutions, at which athletic exhibitions are held and the public are charged for admission, may constitutionally be required to collect, make return of, and pay to the United States the admissions tax imposed by Revenue Act of 1926, § 500 (a) (1), as amended by Revenue Act of 1932, § 711. P. 449. 5. The tax immunity implied from the dual sovereignty recognized by the Constitution does not extend to business enterprises conducted by the States for gain. P. 453. 93 F. 2d 887, reversed. Certiorari, 303 U. S. 634, to review the affirmance of a decree enjoining a United States collector of internal revenue from distraining bank deposits representing moneys claims by the Regents of the University System of Georgia, a state instrumentality, respondent in this case. See also 10 F. Supp. 901; 18 id. 62; 81 F. 2d 577. Mr. J. Louis Monarch, with whom Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key and Carlton Fox were on the brief, for petitioner- Mr. Marion Smith, with whom Messrs. M. J. Yeomans, Attorney General of Georgia, M. E. Kilpatrick and Hamilton Lokey were on the brief, for respondent. ALLEN v. REGENTS. 441 439 Opinion of the Court. By leave of Court, briefs of amid curiae were filed by Messrs. William S. Ervin, Attorney General of Minnesota, John H. Mitchell, Attorney General of Iowa, Gaston L. Porterie, Attorney General of Louisiana, Richard C. Hunter, Attorney General of Nebraska, and Henry H. Foster, Attorney for University of Nebraska, Orland S. Loomis, Attorney General of Wisconsin, Raymond W. Starr, Attorney General of Michigan, Clarence V. Beck, Attorney General of Kansas, Roy McKittrick, Attorney General of Missouri, A. A. F. Seawell, Attorney General of North Carolina, Alvin C. Strutz, Attorney General of North Dakota, and Herbert S. Duffy, Attorney General of Ohio, on behalf of their respective States; by Messrs. Roy H. Beeler, Attorney General, Nat Tipton, Assistant Attorney General, of Tennessee, and Mr. Henry B. Witham, on behalf of that State and its University; by Messrs. Otto Kerner, Attorney General of Illinois, and Sveinbjorn Johnson, on behalf of that State; and by Messrs. E. W. Mullins, Harold Major, D. W. Robinson, Jr., and James F. Dreher, on behalf of the University of South Carolina, and other educational institutions of that State; all in support of respondent. Mr. Justice Roberts delivered the opinion of the Court. The question on the merits is whether the exaction of the federal admissions tax, in respect of athletic contests in which teams representing colleges conducted by the respondent participate, unconstitutionally burdens a governmental function of the State of Georgia. The petition also challenges the respondent’s ability to maintain a suit to enjoin the collection of the tax and to substitute as defendant the successor in office o£ the Collector originally impleaded. The court below decided all the ques- 442 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. tions involved against the petitioner.1 Because of their importance we granted certiorari. Section 500 (a) (1) of the Revenue Act of 1926,2 as amended by § 711 of the Revenue Act of 19323 imposes “a tax of 1 cent for each 10 cents or fraction thereof of the amount paid for admission to any place ... to be paid by the person paying for such admission; . . .”4 Subsection (d) commands that the price (exclusive of the tax to be paid by the person paying for admission) at which every admission ticket is sold shall be conspicuously printed, staipped, or written on the face or back of that portion of the ticket which is to be taken up by the management and imposes a penalty for failure to comply with its terms. Section 502 requires the person receiving payments for admissions to collect the tax and . make return in such form as the Commissioner of Internal Revenue may prescribe by regulation. Section 1102 (a)5 imposes the duty on persons who collect the tax to keep records and render statements, under oath, and to make returns as required by the Secretary of the Treasury. Section 11146 (b) and (d) fixes penalties for failure to collect or pay over and subsection (e) provides for the personal liability of one collecting the admission charge ’The defendant in the District Court was W. E. Page, the petitioner’s predecessor in office. That court dismissed the bill. 10 F. Supp. 901. The Circuit Court of Appeals reversed. 81 F. 2d 577. After answer and a hearing on the merits the District Court awarded an injunction. 18 F. Supp. 62. The Circuit Court of Appeals permitted the substitution of the petitioner for Page and affirmed the decree by a divided court. 93 F. 2d 887. 2 c. 27,44 Stat. 9, 91; U. S'. C. Tit. 26, §§ 940-944. 8c. 209, 47 Stat. 169, 271; U. S. C. Tit. 26, § 940 (a) (2). 4 Exemptions touching admissions of certain persons and all admissions to specified types of entertainment or exhibitions are not involved. Subsection (e^, 47 Stat. 271. 8 44 Stat. 112; U. S. C. Tit. 26, § 960. 8 44 Stat. 116; U. S. C. Tit. 26, §§ 494, 856, 921. ALLEN v. REGENTS. 443 439 Opinion of the Court.- and for distraint by the Collector of Internal Revenue for taxes and penalties. Section 607 of the Revenue Act of 19347 requires the person charged with the collection of the tax to hold the amount collected as a special fund in trust for the United States, confers the right to assess him with the amount so collected and withheld, including penalties, and, in connection with R. S. 3187,8 authorizes the Collector of Internal Revenue to distrain therefor. The respondent is a public corporation, created by Georgia as an instrumentality of the State, having control and management of The University of Georgia and the Georgia School of Technology. Athletics at these institutions are conducted under the respondent’s authority by two corporations, the University of Georgia Athletic Association and the Georgia Tech. Athletic Association. The expense of physical education and athletic programs at each school is defrayed almost entirely from the admission charges to athletic contests and students’ athletic fees collected for the purpose. During September and October 1934 football games were played at the institutions, for which admissions were charged and collected by the associations. Each ticket showed on its face the admission price, the amount of the tax, and the total of the two, and also carried the following printed notice: “The University of Georgia [or Georgia School of Technology] being an instrumentality of the government of the State of Georgia, contends that it is not Hable for any admission tax. The amount stated as a tax is so stated because the University is required to do so by Treasury regulations pending a decision as to its liability in this respect. This amount is collected by the University as a part of the admission and will be retained as such unless it is finally determined that the University is itself liable for the tax.” 7 c. 277, 48 Stat. 680, 768; U. S. C. Tit. 26, § 1551. 8U. S. C. Tit. 26, § 1580.« 444 OCTOBER TERM, 1937. ' Opinion of the Court. 304 U. S. Each association deposited the total collected as the disputed tax in a separate bank account, apart from its other funds, but made no return thereof. The Collector prepared returns for the amounts. In consequence of the associations’ neglect to pay the amounts so returned, the Commissioner assessed each association in the amount shown by return made for it and certified the assessments to the Collector, who made demands for payment. These, were ignored and the Collector filed liens, issued warrants, and levied upon the deposit accounts. The respondent then brought suit in which it prayed a decree that, as an agency of the State performing an essential governmental function in the conduct of the gftmes, it was immune from the tax, and sought injunctions, temporary and permanent, to restrain the Collector from proceeding further to collect the sums demanded. From a decree awarding a final injunction the Collector appealed; but, pending appeal, he resigned and, before the hearing, died. Over objection the Circuit Court of Appeals ordered the petitioner substituted as appellant and affirmed the decree. We are of opinion that the court below rightly decided the procedural questions but erred as to the merits. First. If the suit was maintainable against his predecessor in office the substitution of petitioner was lawful. We are not unmindful of the principle that suits against officers to restrain action in excess of their authority or in violation of statutory or constitutional provisions are in their nature personal and that a successor in office is not privy to his predecessor in respect of the alleged wrongful conduct.9 As a result of the inconvenience resulting from the lack of power to substitute one who succeeded to the office of an alleged offending official, to 9 Pennoy er v. McConnaughy, 140 U. S. 1, 10; United States ex rel. Bemardin v. Butterworth, 169 U.S. 600, 603-604; Philadelphia Company v. Stimson, 223 U. S. 605, 620-621; Irwin v. Wright, 258 U. S. 219, 222. ALLEN v. REGENTS. 445 439 Opinion of the Court. which this court has called attention,10 11 Congress adopted the Act of February 13,1925,11 which provides: . Where, during the pendency of an action, suit, or other proceeding brought by or against an officer of the United States . . . and relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall be competent for the court wherein the action, suit, or proceeding is pending, whether the court be one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, . . .” The motion to substitute the petitioner asserted that, unless restrained, he would continue in the course pursued by his predecessor. The answer did not deny this allegation but relied upon the claim that the present Collector is not privy to the acts of the former one. In Ex parte La Prade, 289 U. S. 444, this court reserved the question whether in such a situation the successor might be substituted. As the present case is within the letter of the Act and within the inconvenience intended to be obviated by its adoption, the substitution was properly permitted. Second. If the tax, the collection of which was threatened, constituted an inadmissible burden upon a governmental activity of the State, the circumstances disclosed render the cause one of equitable cognizance and take it out of the prohibition of R. S. 3224.12 The respondent has long been of opinion that exaction of the tax in respect of games played under the auspices of The University of Georgia and the Georgia School of Technology constitutes an unconstitutional burden upon an essential governmental activity of Georgia. At first 10 See Ex parte La Prade, 289 U. S. 444, 456-459. 11 c. 229, 43 Stat. 936, U. S. C. Tit. 28, § 780. 13 U. S. C. Tit. 26, § 1543. 446 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. the respondent collected the tax as required by the Act, paid it over to the Treasury, and made claim for refund. The claim was rejected on the ground that the tax was paid by the patron of the game, and that the athletic associations and the respondent were mere collecting agents having no interest in the fund which would justify repayment to them if it had been illegally collected. Believing the basis of the Commissioner’s refusal to refund was sound,13 the respondent then resorted to the expedient of collecting the amount of the tax under the reservation printed upon the tickets. The bill, after reciting the facts as above summarized, alleges that the statute imposes a tax upon the individuals who purchase tickets, but, properly construed, is inapplicable to those purchasing tickets to the football games in question. It further asserts that, in respect of those games, neither the respondent nor the athletic associations collected any tax from purchasers of admissions; that if the statute be construed to justify the Collector in seeking to force respondent to pay sums representing alleged taxes due from numerous individuals it is unconstitutional as an attempt to interfere with and control and to burden the state’s educational activities and unlawfully to impose on the state government the duty of collecting taxes for the federal government; that the action of the petitioner in issuing warrants of distraint is either an attempt to collect from respondent taxes alleged to be due from various individuals, or to impose upon the respondent penalties, criminal and punitive in nature. The petitioner insists the bill shows the tax was in fact collected from the patrons of the games, and the allega 13 Compare Shannopin Country Club v. Heiner, 2 F. 2d 393; Lafayette Worsted Co. v. Page, 6 F. 2d 399; Union Pacific Ry. Co. v. Bowers, 33 F. 2d 102; Wourdack v. Becker, 55 F. 2d 840; but see Builders’ Club v. United States, 14 F. Supp. 1020. ALLEN v. REGENTS. 447 439 Opinion of the Court. tion that no tax was collected is a mere conclusion of law which the court should ignore; that the trial court was without jurisdiction to determine in this suit for injunction whether or not taxes had been collected by respondent; that the Revenue Act imposes no liability for the tax upon the vendor of the tickets who fails to collect, although it does impose a penalty for wilful failure to collect the tax and other penalties; that, as the respondent collected the tax, it has no standing in its capacity as a collecting agent to deny the validity of the exaction, and, as a collecting agent, could not create a right to resist collection by the government by forcing a stipulation upon purchasers of tickets that the amount collected should belong to the agent if it were able to defeat the government; that, as such agent, respondent has no interest adverse to the United States; that the stipulation in question did not amount to an assignment of a ticket purchaser’s claim for refund or, if it did, the purchaser has thereby lost his right to recover the tax by reason of the prohibition of assignment of claims against the United States embodied in R. S. 3477;14 that respondent or the athletic associations would have had an adequate remedy at law for recovery of the amounts assessed against them had they paid the assessments; and finally that R. S. 322415 prohibits the issue of an injunction against collection. To these contentions respondent replies that while it placed the required information on the ticket and segregated the equivalent of the tax from the proceeds of tickets sold to avoid the imposition of penalties on its personnel, the notation on the tickets shows-that it did not undertake to collect and did not in fact collect the tax; 14 U. S. C. Tit. 31, § 203. ““No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” U. 8. C. Tit. 26, § 1543. 448 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. that, by refusal to collect, it took itself out of the category of an agent who voluntarily acted on behalf of the government; that, while the statute places no liability upon respondent for the tax as such, it imposes upon the respondent civil and criminal penalties for refusal to collect it; that respondent is not an assignee of the claims of its patrons, but, if the tax is invalid, is owner in its own right of the entire amount paid by each purchaser; that respondent has no remedy at law because if it had paid the tax out of its own funds it could not have claimed refund of payment thus voluntarily made for its patrons’ accounts; that state officials may not be required to collect an illegal tax as a condition precedent to contesting its validity; that § 3224 has no application to this suit. The dispute as to the propriety of a suit in equity must be resolved in the light of the nature of the controversy. The respondent in good faith believes that an unconstitutional burden is laid directly upon its transactions in the sale of licenses to witness athletic exhibitions conducted under authority of the State and for an essential governmental purpose. The State is entitled to have a determination of the question whether such burden is imposed by the statute as construed and applied. It is not bound to subject its public officers and their subordinates to pains and penalties criminal and civil in order to have this question settled, if no part of the sum collected was a tax, and if the assessment was in truth the imposition of a penalty for failure to exact a tax on behalf of the United States. And if the respondent is right that the statute is invalid as applied to its exhibitions, it ought not ta have to incur the expense and burden of collection, return, and prosecution of claim for refund of a tax upon others which the State may not lawfully be required to collect. These extraordinary circumstances we think justify resort to equity. ALLEN v. REGENTS. 449 439 Opinion of the Court. What we have said indicates that R. S. 3224, supra, does not oust the jurisdiction. The statute is inapplicable in exceptional cases where there is no plain, adequate, and complete remedy at law.16 This is such a case, for here the assessment is not of a tax payable by respondent but of a penalty for failure to collect it from another. The argument that no remedy need be afforded the respondent is bottomed on the assumption that it is a mere collecting agent which cannot be hurt by collecting and paying over the tax; but this argument assumes first, that respondent did in truth collect a tax and, second, that the imposition of the tax on the purchase of admissions cannot burden a state activity. This is arguing in a circle, for these are the substantial matters in controversy. We hold that the bill states a case in equity as, upon the showing made, the respondent was unable by any other proceeding adequately to raise the issue of the unconstitutionality of the Government’s effort to enforce payment. Third. We come then to the merits. For present purposes we assume the truth of the following propositions put forward by the respondent: That it is a public instrumentality of the state government carrying out a part of the: State’s program of public education; that public education is a governmental function; that the holding of athletic contests is an integral part of the program of public education conducted by Georgia; that the means by which the State carries out that program are for determination by the state authorities, and their determination is not subject to review by any branch of the federal Government; that a state activity does not cease to be governmental because it produces some income; that the tax is imposed directly on the state activity and 18 Miller v. Standard Nut Margarine Co., 284 U. S. 498, 509. 81638°—38--29 450 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. directly burdens that activity; that the burden of collecting the tax is placed immediately on a state agency. The petitioner stoutly combats many of these propositions. We have no occasion to pass upon their validity since, even if all are accepted, we think the tax was lawfully imposed and the respondent was obligated to collect, return and pay it to the United States. The record discloses these undisputed facts: The stadium of the University of Georgia has a seating capacity of 30,000, cost $180,000, and was paid for by borrowed money which is being repaid by the Athletic Association, whose chief source of revenue is admissions to the contests in the stadium. $158,000 of the amount borrowed has been repaid since the stadium was completed in 1929. The student enrollment is about 2,400. Each student pays an annual athletic fee of $10.00 which confers the privilege of free admission to all the school’s athletic events. All admissions collected, and the tax paid on them, are paid by the general public, none by the students.17 The total receipts of the Athletic Association from all sources for the year ending August 31, 1935, were $91,620.25 of which $71,323.27 came from admissions to football games. The stadium of the Georgia School of Technology has a seating capacity of 29,000. It cost $275,000 and was paid for by a gift of $50,000 and from admissions charged and student fees. The enrollment is about 2,000 students, each of whom pays an annual athletic fee of $7.50 which gives the privilege of free admission to all games. All admissions collected, and the tax paid on them, are paid by the general public, none by the students.17 The total receipts of the Athletic Association for the six months ended December 31, 1934, were $119,436.75 of which $74,168.51 came from admissions to football games. 17 Student athletic fees are not treated as admissions subject to the tax. See Cumulative Bulletin XI-2 (July-December 1932), p. 522. ALLEN v. REGENTS. 451 439 Opinion of the Court. It is evident that these exhibition enterprises are comparatively large and are the means of procuring substantial aid for the schools’ programs of athletics and physical education. In final analysis the question we must decide is whether, by electing to support a governmental activity through the conduct of a business comparable in all essentials to those usually conducted by private owners, a State may withdraw the business from the field of federal taxation. When a State embarks in a business which would normally be taxable, the fact that in so doing it is exercising a governmental power does not render the activity immune from federal taxation. In South Carolina v. United States, 199 U. S. 437, it appeared that South Carolina had established dispensaries for the sale of liquor and prohibited sale by other than official dispensers. It was held that the United States could require the dispensers to take licenses and to pay license taxes under the Internal Revenue laws applicable to dealers in intoxicating liquors, and this notwithstanding the State had established the dispensary system in the valid exercise of her police power. In Ohio v. Helvering, 292 U. S. 360, it was shown that Ohio, in the exercise of the same power, had created a monopoly of the distribution and sale of intoxicating liquors through stores owned, managed, and controlled exclusively by the i^tate. It was sought to enjoin the Commissioner of Internal Revenue and his subordinates from enforcing against the State, her officers, agents, and employes, penalties for the nonpayment of federal excises on the sale of liquor. Relief was denied and the views expressed in the South Carolina case were reaffirmed. In Helvering v. Powers, 293 U. S. 214, the court found that Massachusetts, in the exercise of the police power, had appointed a Board of Trustees to operate a street railway company’s properties for a limited time. It was held that though the 452 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. trustees were state officers, their salaries were subject to federal income tax because the State could not withdraw sources of revenue from the federal taxing power by engaging in a business which went beyond usual governmental functions and to which, by reason of its nature, the federal taxing power would normally extend. The legislation considered in South Carolina v. United States, supra, provided for a division of the profits of the dispensary system between the state treasury and cities and counties. Thus the enterprise contributed directly to the sustenance of every governmental activity of the State. In the present instance, instead of covering the proceeds or profits of the exhibitions into the state treasury, the plan in actual operation appropriates these monies in ease of what the State deems its governmental obligation to support a system of public education. The difference in method is not significant. The important fact is that the State, in order to raise funds for public purposes, has embarked in a business having the incidents of similar enterprises usually prosecuted for private gain. If it be conceded that the education of its prospective citizens is an essential governmental function of Georgia, as necessary to the preservation of the State as is the maintenance of its executive, legislative, and judicial branches, it does not follow that if the State elects to provide the funds for any of these purposes by conducting a business, the application of the avails in aid of necessary governmental functions withdraws the business from the field of federal taxation. Under the test laid down in Helvering v. Gerhardt, ante, p. 405, however essential a system of public education to the existence of the State, the conduct of exhibitions for admissions paid by the public is not such a function of state government as to be free from the burden of a non-discriminatory tax laid on all admissions to public exhibitions for which an admission fee is charged. ALLEN v. REGENTS. 453 439 Stone, J., concurring. The opinion in South Carolina v. United States, supra, at pages 454-457, points out the destruction of the federal power to tax which might result from a contrary decision.18 Moreover, the immunity implied from the dual sovereignty recognized by the Constitution does not extend to business enterprises conducted by the States for gain. As was said in South Carolina v. United States, supra, at p. 457: “Looking, therefore, at the Constitution in the light of the conditions surrounding at the time of its adoption, it is obvious that the framers in granting full power over license taxes to the National Government meant that that power should be complete, and never thought that the States by extending their functions could practically destroy it.” Compare Helvering v. Therrell, 303 U. S. 218. The decree is Reversed. Mr. Justice Cardozo took no part in the consideration or decision of this case. Mr. Justice Black concurs in the result. Mr. Justice Stone, concurring in the result. Congress, by R. S. § 3224, has declared that “No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” While 18 “Mingling the thought of profit with the necessity of regulation may induce the State to take possession, in like manner, of tobacco, oleomargarine, and all other objects of internal revenue tax. If one State finds it thus profitable other States may follow, and the whole body of internal revenue tax be thus stricken down.” (p. 454.) “The same argument which would exempt the sale by a State of liquor, tobacco, etc., from a license tax would exempt the importation of merchandise by a State from import duty.” (p. 455.) (Compare Board of Trustees v. United States, 289 U. S. 48, 59.) “Obviously, if the power of the State is carried to the extent suggested, and with it is relief from all Federal taxation, the National 454 OCTOBER TERM, 1937. Reed, J., concurring. 304 U. S. I agree with the decision of the Court on the merits, I . am not persuaded that this statute does not mean what it says, or that the suit is not one to restrain collection of the tax. I can only conclude, as I did in Miller v. Standard Nut Margarine Co., 284 U. S. 498, 511, that the statute deprived the district court of jurisdiction to entertain respondent’s suit, and that the judgment should be reversed with direction that the cause be dismissed. Mr. Justice Reed concurring in the result. Except for the holding that injunction is a proper remedy to test the position of the Regents, I agree with the opinion of the Court. As even a small breach in the general scheme of taxation gives an opening for the disorganization of the whole plan, it seems desirable to express dissent from the conclusion that the Regents may utilize the summary remedy of injunction, over the objection of the Government, as a means of testing the applicability of a tax law to them. The facts set out in the opinion of the circumstances and agreement under which the money threatened to be distrained was collected make it quite clear, it seems to me, that the Regents collected tax moneys from the spectators. Any allegation in the petition to the contrary is an erroneous conclusion of law. The Collector sought to cover this money into the Treasury. Section 502 (a) of the Revenue Act of 1926* 1; § 607 of the Rev- Govemment would be largely crippled in its revenues. Indeed, if all the States should concur in exercising their powers to the full extent, it would be almost impossible for the Nation to collect any revenues. In other words, in this indirect way it would be within the competency of the States to practically destroy the efficiency of the National Government.” (p. 455.) 1Sec. 502 (a). Every person receiving any payments for such admission, dues, or fees shall collect the amount of the tax imposed by section 500 or 501 from the person making such payments. Every club or organization having life members shall collect from such ALLEN v. REGENTS. 455 439 Reed, J., concurring. enue Act of 1934* 2 and § 3224 of the Revised Statutes3 make it clear that no injunction will lie to restrain such action.4 Section 3224 was enacted in 1867, and until recent years was followed by the courts without deviation. Exceptions were made to protect taxpayers against collection of penalties.5 In an exceptional case of. “special and extraordinary” circumstances,6 where a “valid . . . tax could by no legal possibility have been assessed against respondent . . .” this Court permitted an injunction. “Special and extraordinary” circumstances have multiplied. Here the lower court found them “demonstrated by the fact that the Regents had actually paid the tax in former years, and filed a claim for refund which was denied on the ground that they had not members the amount of the tax imposed by section 501. Such persons shall make monthly returns under oath, in duplicate, and pay the taxes so collected to the collector of the district in which the principal office or place of business is located. (U. S. C., Title 26, §§ 955, 956.) 2 Sec. 607. Enforcement of Liability for Taxes Collected. Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay such tax over to the United States, the amount of the tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose. (U. S. C., Title 26, § 1551.) 8 Sec. 3224. No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court. (U. S. C., Title 26, § 1543.) 4 Gouge v. Hart, 250 F. 802 (W. D. Va.), appeal dismissed, 251 U. S. 542; Ralston n. Heiner, 24 F. 2d 416 (C. C. A. 3d); Calkins v. Smietanka, 240 F. 138 (N. D. Ill.); Seaman v. Guaranty Trust Co., IF. 2d 391 (S. D. N. Y.). 6 Lipke v. Lederer, 259 U. S. 557; Regal Drug Corp. v. Warded, 260 U. S. 386. 6 Miller v. Nut Margarine Co., 284 U. S. 498. 456 OCTOBER TERM, 1937. Reed, J., concurring. 304U.S. borne the burden of any part thereof.” It may be assumed, and petitioner admits, that respondents may not pay the moneys and then sue to recover them. The fallacy underlying the opinion of the Court is the assumption that some remedy is necessary. Respondents, being merely collectors of tax moneys, are not entitled either to enjoin collection of these moneys or to pay and sue to recover them. There is no reason why the State of Georgia should risk or ask its agents to risk penalties to determine whether this tax is collectible. Respondents would lose nothing by collecting the tax and turning it over to the United States. If they desire to stand upon their own conception of the law and refuse to collect the tax, they must take the risks of such action. Every other taxpayer or collector of admission taxes must make the same choice. The prompt collection of revenue is essential to good government. Summary proceedings are a matter of right.7 The Government has been sedulous to maintain a system of corrective justice.8 Any departure from the principle of “pay first and litigate later” threatens an essential safeguard to the orderly functioning of government. Here an injunction is approved when the petitioner below had little more legitimate interest in the collection of the tax than a curiosity to know whether the customers of its athletic spectacles, the real taxpayers, were constitutionally subject to such an exaction. I am authorized to say that Mr. Justice Stone concurs in this opinion. Mr. Justice Black concurs in this opinion except in so far as it approves the reasoning of the Court on the question of state immunity from interference by federal taxation. 7 Cheatham v. United States, 92 U. S. 85, 88, 89. 8 Compare Anniston Mjg. Co. v. Davis, 301 U. S. 337. ALLEN v. REGENTS. 457 439 Butler, J., dissenting. Mr. Justice Butler, dissenting. I am of opinion that the District Court had jurisdiction. So far as concerns the validity of the tax, the University is the State. It is an instrumentality carrying on the state’s program of public education. The holding of the athletic contests in question is an integral part of that program and does not cease to be such because it produces income. The tax is imposed directly on and burdens that activity of the State. The Court assumes the facts above stated and decides the case on that basis. The tax is laid on the charge paid for admission, is to be borne by the person paying for admission, and is to be collected by the State and handed over to the United States. It is hard to understand how the collection by the State of fees for the privilege of attendance brings, even for the purpose of federal taxation, its work of education to the level of selling intoxicating liquor, South Carolina v. United States, 199 U. S. 437; Ohio v. Helvering, 292 U. S. 360, operating a railway, Helvering v. Powers, 293 U. S. 214, or conducting any other commercial activity. The tax seems plainly within the rule of state immunity from federal taxation as hitherto understood and applied. I would affirm the judgment of the Circuit Court of Appeals. Mr. Justice McReynolds concurs in this opinion. 458 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. JOHNSON v. ZERBST, WARDEN. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 699. Argued April 4, 1938.—Decided May 23, 1938. 1. A person charged with crime in a federal court is entitled by the Sixth Amendment to the assistance of counsel for his defense. P. 462. 2. This right may be waived; but the waiver must be an intelligent one; and whether there was such must depend upon the particular facts and circumstances, including background, experience, and conduct of accused. P. 464. 3. It is a duty of a federal court in the trial of a criminal case to protect the right of the accused to counsel, and, if he has no counsel, to determine whether he has intelligently and competently waived the right. It would be fitting that such determination be made a matter of record. P. 465. 4. If the accused is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. P. 468. 5. The question whether the assistance of counsel was intelligently and competently waived by the prisoner at his trial may be determined in habeas corpus proceedings on proofs aliunde. P. 467. 92 F. 2d 748, reversed. Certiorari, 303 U. S. 629, to review the affirmance of a judgment of the District Court discharging a writ of habeas corpus. See 13 F. Supp. 253. Mr. Elbert P. Tuttle for petitioner. Mr. Bates Booth, with whom Solicitor General Jack-son, Assistant Attorney General McMahon, and Mr. William W. Barron were on the brief, for respondent. Mr. Justice Black delivered the opinion of the Court. Petitioner, while imprisoned in a federal penitentiary, was denied habeas corpus by the District Court.1 Later, 113 F. Supp. 253. JOHNSON v. ZERBST. 459 458 Opinion of the Court. that court granted petitioner a second hearing, prompted by “the peculiar circumstances surrounding the case and the desire of the court to afford opportunity to present any additional facts and views which petitioner desired to present.” Upon consideration of the second petition, the court found that it did “not substantially differ from the” first, “and for the reasons stated in the decision in that case” the second petition was also denied. Petitioner is serving sentence under a conviction in a United States District Court for possessing and uttering counterfeit money. It appears from the opinion of the District Judge denying habeas corpus that he believed petitioner was deprived, in the trial court, of his constitutional right under the provision of the Sixth Amendment that “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.”2 However, he held that proceedings depriving petitioner of his constitutional right to assistance of counsel were not sufficient “to make the trial void and justify its annulment in a habeas corpus proceeding, but that they constituted trial errors or irregularities which could only be corrected on appeal.” The Court of Appeals affirmed3 and we granted certiorari due to the importance of the questions involved.4 The record discloses that: Petitioner and one Bridwell were arrested in Charleston, South Carolina, November 21, 1934, charged with 2 The Sixth Amendment of the Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.” 8 92 F. 2d 748. 4 303 U. S. 629. 460 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. feloniously uttering and passing four counterfeit twenty-dollar Federal Reserve notes and possessing twenty-one such notes. Both were then enlisted men in the United States Marine Corps, on leave. They were bound over to await action of the United States Grand Jury, but were kept in jail due to inability to give bail. January 21, 1935, they were indicted; January 23, 1935, they were taken to court and there first given notice of the indictment; immediately were arraigned, tried, convicted and sentenced that day to four and one-half years in the penitentiary; and January 25, were transported to the Federal Penitentiary in Atlanta. While counsel had represented them in the preliminary hearings before the commissioner in which they—some two months before their trial—were bound over to the Grand Jury, the accused were unable to employ counsel for their trial. Upon arraignment, both pleaded not guilty, said that they had no lawyer, and—in response to an inquiry of the court—stated that they were ready for trial. They were then tried, convicted and sentenced, without assistance of counsel. “Both petitioners lived in distant cities of other states and neither had relatives, friends, or acquaintances in Charleston. Both had little education and were without funds. They testified that they had never been guilty of nor charged with any offense before, and there was no evidence in rebuttal of these statements.”5 In the habeas corpus hearing, petitioner’s evidence developed that no request was directed to the trial judge to appoint counsel, but that such request was made to the District Attorney, who replied that in the State of trial (South Carolina) the court did not appoint counsel unless the defendant was charged with a capital crime. The District Attorney denied that petitioner made request 6 6 Opinion of the District Judge, 13 F. Supp. 253, 254. JOHNSON v. ZERBST. 461 458 Opinion of the Court. to him for counsel or that he had indicated petitioner had no right to counsel. The Assistant District Attorney testified that Bridwell “cross-examined the witnesses”; and, in his opinion, displayed more knowledge of procedure than the normal layman would possess. He did not recall whether Bridwell addressed the jury or not, but the clerk of the trial court testified “that Mr. Johnson [Bridwell?] conducted his defence about as well as the average layman usually does in cases of a similar nature.” Concerning what he said to the jury and his cross-examination of witnesses, Bridwell testified “I tried to speak to the jury after the evidence was in during my trial over in the Eastern District of South Carolina. I told the jury, ‘I don’t consider myself a hoodlum as the District Attorney has made me out several times.’ I told the jury that I was not a native of New York as the District Attorney stated, but was from Mississippi and only stationed for government service in New York. I only said fifteen or twenty words. I said I didn’t think I was a hoodlum and could not have been one of very long standing because they didn’t keep them in the Marine Corps. “I objected to one witness’ testimony. I didn’t ask him any questions, I only objected to his whole testimony. After the prosecuting attorney was finished with the witness, he said, ‘Your witness,’ and I got up and objected to the testimony on the grounds that it was all false, and the Trial Judge said any objection I had I would have to bring proof or disproof.” Reviewing the evidence on the petition for habeas corpus, the District Court said6 that, after trial, petitioner and Johnson “ . . . were remanded to jail, where they asked the jailer to call a lawyer for them, but were not permitted to contact one. They did not, however, undertake to get any message to the judge. 613 F. Supp. 253, 254. 462 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. “ . . . January 25th, they were transported by automobile to the Federal Penitentiary in Atlanta, Ga., arriving . . . the same day. “There, as is the custom, they were placed in isolation and so kept for sixteen days without being permitted to communicate with any one except the officers of the institution, but they did see the officers daily. They made no request of the officers to be permitted to see a lawyer, nor did they ask the officers to present to the trial judge a motion for new trial or application for appeal or notice that they desired to move for a new trial or to take an appeal. “On May 15, 1935, petitioners filed applications for appeal which were denied because filed too late.” The “ . . . time for filing a motion for new trial and for taking an appeal has been limited to three and five days.” 7 One. The Sixth Amendment guarantees that “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. Omitted from the Constitution as originally adopted, provisions of this and other Amendments were submitted by the first Congress convened under that Constitution as essential barriers against arbitrary or unjust deprivation of human rights. The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not “still be done.”8 It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect 713 F. Supp. at 256; see, Rules of Practice and Procedure (Criminal Appeals Rules), adopted May 7, 1934, II, III. 8 Cf., Palko n. Connecticut, 302 U. S. 319, 325. JOHNSON v. ZERBST. 463 458 Opinion of the Court. himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious. Consistently with the wise policy of the Sixth Amendment and other parts of our fundamental charter, this Court has pointed to “ . . . the humane policy of the modern criminal law . . .” which now provides that a defendant “ . . . if he be poor, . . . may have counsel furnished him by the state . . . not infrequently . . . more able than the attorney for the state.”9 The “ . . . right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.”10 11 The Sixth Amendment withholds from federal courts,11 in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel. 8 Patton v. United States, 281 U. S. 276, 308. 10 Powell v. Alabama, 287 U. S. 45, 68, 69. 11 Cf., Barron v. The Mayor, 1 Pet. 243, 247; Edwards v. Elliott, 21 Wall, 532, 557. 464 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. Two. There is insistence here that petitioner waived this constitutional right. The District Court did not so find. It has been pointed out that “courts indulge every reasonable presumption against waiver” of fundamental constitutional rights12 and that we “do not presume acquiescence in the loss of fundamental rights.”13 A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Patton v. United States, 281 U. S. 276, decided that an accused may, under certain circumstances, consent to a jury of eleven and waive the right to trial and verdict by a constitutional jury of twelve men. The question of waiver was there considered on direct appeal from the conviction, and not by collateral attack on habeas corpus. However, that decision may be helpful in indicating how, and in what manner, an accused may—before his trial results in final judgment and conviction—waive the right to assistance of counsel. The Patton case noted approvingly a state court decision14 pointing out that the humane policy of modern criminal law had altered conditions which had existed in the “days when the accused could not testify in his own behalf, [and] was not furnished Counsel,” and which had made it possible to convict a man when he was “without money, without counsel, without ability to summon witnesses and not permitted to tell his own story, . . .” 12 Aetna Ins. Co. v. Kennedy, 301 U. S. 389, 393; Hodges v. Easton, 106 U. S. 408, 412. 13 Ohio Bell Telephone Co. v. Public Utilities Comm’n, 301 U. 8. 292, 307. * Hack v. State, 141 Wis. 346, 351; 124 N. W. 492. JOHNSON v. ZERBST. 465 458 Opinion of the Court. The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, . in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record. Three. The District Court, holding petitioner could not obtain relief by habeas corpus, said: “It is unfortunate, if petitioners lost their right to a new trial through ignorance or negligence, but such misfortune cannot give this Court jurisdiction in a habeas corpus case to review and correct the errors complained of.” The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights, and the guaranty would be nullified by a determination that an accused’s ignorant failure to claim his rights removes the protection of the Constitution. True, habeas corpus cannot be used as a means of reviewing errors of law and irregularities—not involving the question of jurisdiction—occurring during the course of trial;15 and the “writ of habeas corpus cannot be used as a writ of error.”16 These principles, however, must be construed and applied so as to preserve—not destroy— constitutional safeguards of human life and liberty. The scope of inquiry in habeas corpus proceedings has been broadened—not narrowed—since the adoption of the Sixth 15 Cf., Ex parte Watkins, 3 Pet. 193; Knewal v. Egan, 268 U. S. 442; Harlan v. McGourin, 218 U. S. 442. 18 Woolsey v. Best, 299 U. S. 1, 2. 81638°—38--30 466 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. Amendment. In such a proceeding, “it would be clearly erroneous to confine the inquiry to the proceedings and judgment of the trial court” 1 * 17 and the petitioned court has “power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject matter or to the person, even if such inquiry . . . [involves] an examination of facts outside of, but not inconsistent with, the record.”18 Congress has expanded the rights of a petitioner for habeas corpus19 and the “ . . . effect is to substitute for the bare legal review that seems to have been the limit of judicial authority under the common-law practice, and under the Act of 31 Car. II, c. 2, a more searching investigation, in which the applicant is put upon his oath to set forth the truth of the matter respecting the causes of his detention, and the court, upon determining the actual facts, is to ‘dispose of the party as law and justice require.’ “There being no doubt of the authority of the Congress to thus liberalize the common law procedure on habeas corpus in order to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution or a law or treaty established thereunder, it results that under the sections cited a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to a judgment against him. . . . 17 Frank v. Mangum, 237 U. S. 309, 327. 1S In re Mayfield, 141 U. S. 107, 116; Cuddy, Petitioner, 131 U. S. 280. ”28 U. S. C., ch. 14, § 451, et seq. JOHNSON v, ZERBST. 467 458 Opinion of the Court. “ . . . it is open to the courts of the United States upon an application for a writ of habeas corpus to look beyond forms and inquire into the very substance of the matter, . . 20 Petitioner, convicted and sentenced without the assistance of counsel, contends that he was ignorant of his right to counsel, and incapable of preserving his legal and constitutional rights during trial. Urging that—after conviction—he was unable to obtain a lawyer; was ignorant of the proceedings to obtain new trial or appeal and the time limits governing both; and that he did not possess the requisite skill or knowledge properly to conduct an appeal, he says that it was—as a practical matter—impossible for him to obtain relief by appeal. If these contentions be true in fact, it necessarily follows that no legal procedural remedy is available to grant relief for a violation of constitutional rights, unless the courts protect petitioner’s rights by habeas corpus. Of the contention that the law provides no effective remedy for such a deprivation of rights affecting life and liberty, it may well be said—as in Mooney v. Holohan, 294 U. S. 103, 113—that it “falls with the premise.” To deprive a citizen of his only effective remedy would not only be contrary to the “rudimentary demands of justice” 21 but destructive of a constitutional guaranty specifically designed to prevent injustice. Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an accused of his life or liberty. When this 20 Frank v. Mangum, supra, 330, 331; cf., Moore n. Dempsey, 261 U. S. 86; Mooney v. Holohan, 294 U. S. 103; Hans Nielsen, Petitioner, 131 U. S. 176. aCf., Mooney v. Holohan, supra, 112. 468 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. right is properly waived, the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court’s jurisdiction at the beginning of trial may be lost “in the course of the proceedings” due to failure to complete the court—as the Sixth Amendment requires—by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake.22 If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.23 A judge of the United States—to whom a petition for habeas corpus is addressed—should be alert to examine “the facts for himself when if true as alleged they make the trial absolutely void.” 24 It must be remembered, however, that a judgment can not be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity.25 26 Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional 28 Of., Frank v. Mangum, supra, 327. 23 Hans Nielsen, Petitioner, supra. 24 Cf., Moore v. Dempsey, 261 U. S. 86, 92; Patton v. United States, 281 U. S. 276, 312, 313. 26 Cuddy, Petitioner, supra JOHNSON v. ZERBST. 469 458 Opinion of the Court. right to assistance of counsel. If in a habeas corpus hearing, he does meet this burden and convinces the court by a preponderance of evidence that he neither had counsel nor properly waived his constitutional right to counsel, it is the duty of the court to grant the writ. In this case, petitioner was convicted without enjoying the assistance of counsel. Believing habeas corpus was not an available remedy, the District Court below made no findings as to waiver by petitioner. In this state of the record we deem it necessary to remand the cause. If—on remand—the District Court finds from all of the evidence that petitioner has sustained the burden of proof resting upon him and that he did not competently and intelligently waive his right to counsel, it will follow that the trial court did not have jurisdiction to proceed to judgment and conviction of petitioner, and he will therefore be entitled to have his petition granted. If petitioner fails to sustain this burden, he is not entitled to the writ. The cause is reversed and remanded to the District Court for action in harmony with this opinion. Reversed. Mr. Justice Reed concurs in the reversal. Mr. Justice McReynolds is of opinion that the judgment of the court below should be affirmed. Mr. Justice Butler is of the opinion that the record shows that petitioner waived the right to have counsel, that the trial court had jurisdiction, and that the judgment of the Circuit Court of Appeals should be affirmed. Mr. Justice Cardozo took no part in the consideration or decision of this case. 470 OCTOBER TERM, 1937. Syllabus. 304 U. S. DENVER UNION STOCK YARD CO. v. UNITED STATES et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO. No. 798. Argued April 27, 1938.—Decided May 31, 1938. 1. In fixing rates, property not used or useful in rendering the services of the public utility need not be included in rate base. P. 475. 2. In fixing rates of a stockyard company, the Secretary of Agriculture properly excluded from the rate base: (a) Land and improvements used for an annual stock show but not for the performance of the services covered by the rates regulated. P. 475. (b) Trackage and facilities, for unloading and loading livestock, leased to railroad companies for substantial rentals, the stockyard services being confined to the period between the end of unloading and the beginning of loading. P. 476. 3. The facts that he had not dwelt in the locality and had never appraised land in that vicinity or assembled or appraised any large industrial tracts, did not disqualify a witness, otherwise experienced in land valuation, from testifying to the value of land of a stockyard company, in a proceeding by the Secretary of Agriculture in which rates for stockyard services were fixed. P. 477. 4. In valuing the property of a public utility, an allowance for going-concern value need not be itemized separately but may be included in the valuation of the physical elements. P. 478. 5. Where the practice of a stockyard company was to charge on sales of livestock made at the yard by producers, but not on resales made there by traders who bought there from producers, it was within the province of the Secretary of Agriculture, in regulating rates and in avoidance of discrimination, under the Stockyards Act, to require that reasonable rates on such resales be charged the traders. P. 481. Such a requirement did not create unjust discrimination as between producers, nor unlawfully invade the right of the company, as owner, to manage the yard and control its business policy. DENVER STOCK YARD CO. v. U. S. 471 470 Opinion of the Court. 6. Whether a stockyard company is entitled, as of constitutional right, to have any of a number of contributions to local charities and civic organizations, subscriptions etc. included in its operating expenses in the fixing of its rates for the future, the Court finds it unnecessary to consider, in view of the variability of its prospective income, its control over the items in controversy, and their trivial amount. P. 482. 7. A claim that the costs and expenses of this litigation, amortized over a reasonable period, should be included in the operating costs of the appellant stockyard company, in determining the adequacy of rates fixed by the Secretary of Agriculture, can not be considered, it not having been presented by the bill or in the request for findings. P. 484. 8. The evidence is not sufficient to require or warrant a finding that in the immediate future a return of six and one-half per cent, on the value of the stockyard company’s property will be inadequate. P. 485. 21 F. Supp. 83, affirmed. Appeal from a decree of a District Court of three judges dismissing the bill in a suit to set aside an order of the Secretary of Agriculture prescribing maximum rates to be charged by the appellant Stock Yard Company. Mr. Robert G. Bosworth, with whom Mr. Winston 8. Howard was on the brief, for appellant. Mr. Wendell Berge, with whom Solicitor General Jack-son, Assistant Attorney General Arnold, and Messrs. James C. Wilson, Raymond J. Heilman, and Mastin G. White were on the brief, for appellees. Mr. Justice Butler delivered the opinion of the Court. November 8, 1934, the Secretary of Agriculture initiated proceedings in which, February 17, 1937, after extended investigation, taking of much evidence and full hearing, he made findings of fact and an order, prescribing maximum rates to be charged by appellant for services 472 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. rendered by it.1 March 9, 1937, it commenced this suit2 to set aside the order on the ground that the prescribed rates are confiscatory and that enforcement of the order would deprive the company of its property without due process of law in violation of the Fifth Amendment. The case was submitted on stipulations and the evidence before the Secretary. The court made findings of fact, stated conclusions of law, announced opinion, 21 F. Supp. 83, and entered decree dismissing the bill. The challenged rates include marketing charges per head; they are applicable only when sales are made, and are the same without regard to the time the stock re, mains in the pens. These are called “yardage charges.” Appellant makes no charge for use, as such, of pens or other facilities; its charges for feed, bedding and other services are regulated by the order. About three-fourths of the total number of animals received at the yard are sold there. Some are sold to traders, also called dealers and speculators, and held in the yard until sold again. 17 U. S. C. § 211. “Whenever after full hearing . . . the Secretary is of the opinion that any rate, charge, regulation, or practice of a stockyard owner or market agency, for or in connection with the fur-, nishing of stockyard services, is or will be unjust, unreasonable, or discriminatory, the Secretary— “(a) May determine and prescribe what will be the just and reasonable rate or charge, or rates or charges, to be thereafter observed in such case, or the maximum or minimum, or maximum and minimum, to be charged, and what regulation or practice is or will be just, reasonable, and nondiscriminatory to be thereafter followed; and “(b) May make an order that such owner or operator (1) shall cease and desist from such violation to the extent to which the Secretary finds that it does or will exist; (2) shall not thereafter publish, demand, or collect any rate or charge for the furnishing of stockyard services other than the rate or charge so prescribed, or in excess of the maximum or less than the minimum so prescribed, as the case may be; and (3) shall conform to and observe the regulation or practice so prescribed.” a 7 U. S. C. § 217; 28 U. S. C. §§ 44, 47 (a). DENVER STOCK YARD CO. v. U. S. 473 470 Opinion of the Court. Appellant has never made any charge against traders for resales or reweighing for sale except when the resale was through commission men. For that service, the order prescribes rates which for convenience may be referred to as “yardage charges to traders.” Appellant’s activities are not confined to services covered by the order. It unloads and loads livestock from and into cars of railroads serving the yard, and receives from the carriers compensation not regulated by the Secretary. If enforced, the order will reduce revenue from charges for yardage services by about eight and one-half per cent, and from charges for other services by about nineteen per cent; miscellaneous revenues in a substantial amount are not affected; total revenue will be reduced by about eight and one-half per cent.8 To ascertain the amount on which appellant is entitled to earn a return, the Secretary determined what land and structures were used and useful for performance of the services, and to present value of land added cost of reproduction new less depreciation of structures, and allowances on account of a bridge and sewage disposal plant being built, and working capital. The total is slightly less than $2,792,700, which the Secretary adopted as rate base. He found six and one-half per cent to be a reasonable rate of return, $530,117 the revenue procurable if prescribed charges be put in effect, and $346,545 the operating expenses, leaving a net return of $183,572, slightly more than six and one-half per cent on the value of the property. Appellant accepts as correct the Secretary’s estimate of cost of reproduction less depreciation of property found to be used and useful, and also the allowances above men 8 The Secretary in his brief furnishes the Court the following statement. “The revenues produced from an application of the rates prescribed by the Secretary to the volume of business used by him as a 474 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. tioned. But it objects to his exclusion of land and improvements used for a stock show and for trackage and facilities for unloading and loading livestock, to his valuation of the land, to his treatment of going concern value, to his refusal to allow certain items that it claims to be operating expenses, and to the rate of return found by him to be reasonable. rate factor are $530,117. The revenues produced by an application of the rates under investigation to the volume used by the Secretary as a rate factor are $579,342. The $530,117 produced by the prescribed rates is 91.5% of the $579,342 produced by the rates under investigation. “The following table shows the method and computations by which these results were obtained: Volume used as a rate factor Rates under investigation Revenues from rates under investigation Rates prescribed Revenues from fates prescribed Yardage: Cattle: Rail 325,000 $0.35 $113,750 $0.30 $97,500 Truck-ins 75,000 .40 30,000 . 35 26,250 Resales 56, 000 . 15 8,400 Bulls Calves: 850 1.00 850 1.00 850 Rail 20.000 .25 5,000 .20 4,000 Truek-ins 30,000 .27 8,100 • 25 7,500 Resales . Hogs: 3,000 ________ 3,000 . 10 300 Rail 25,000 .12 .12 3,000 Directs 145,000 . 12 17,400 .06 8,700 Truck-ins 225,000 . 14 31,500 . 14 31,500 Resales : . Sheep: 250 — .06 15 Rail 2,000,000 .08 160,000 .075 150,000 Truck-ins 80,000 . 10 8,000 . 10 8,000 Resales 75,000 2,100 .03 2,250 Horses & mules..—.. 6,000 . 35 . 35 2,100 Total yardage $379,700 $350,365 Feed, Bedding, Etc.: Hay, cwt. on fence 136,000 .609 82,824 .50 68,000 Hay, cwt. fed 34,000 .609 20,706 .60 20,400 Corn, bu 20,000 . 651 13,020 . 45 9,000 Straw, bales , 18,500 . 44 8,140 .40 7,400 Misc. feed, lbs 150,000 — 1,000 — 1,000 Total revenue procurable _________ $125,690 __ $105,800 Misc. Revenue . 73,952 — 73,952 Total revenue procurable _________ $579,342 $530,117 _________ 100.0% 91. 5% DENVER STOCK YARD CO. v. U. S. 475 470 Opinion of the Court. The rate base. As of right safeguarded by the due process clause of the Fifth Amendment, appellant is entitled to rates, not per se excessive and extortionate, sufficient to yield a reasonable rate of return upon the value of property used, at the time it is being used, to render the services. Willcox v. Consolidated Gas Co., 212 U. S. 19, 41. Minnesota Rate Cases, 230 U. S. 352, 434. Bluefield Water Works Co. v. Public Service Comm’n, 262 U. S. 679, 690. Board of Commissioners v. New York Telephone Co., 271 U. S. 23, 31. McCardle v. Indianapolis Water Co., 272 U. S. 400, 414. Los Angeles Gas Co. v. Railroad Comm’n, 289 U. S. 287, 305. But it is not entitled to have included any property not used and useful for that purpose. Cf. St. Joseph Stock Yards Co. n. United States, 298 U. S. 38, 56. The stock show property excluded. The stock show is held on property owned by appellant and is conducted by an incorporated association not organized for pecuniary profit. It continues for about one week in January of each year. The Secretary found a part of that property, which is operated by the Colorado Horse and Mule Company, to be used and useful for performance of services covered by the rates regulated by him, and included it in the rate base. He appraised the rest of the show property, which consists of 2.633 acres and improvements thereon, at $219,033, but excluded it as not used for the performance of services covered by the rates he regulates. For payment of expenses of the show there is used the money received for admission to it and to other events on the property, and also some that is donated for that purpose. Appellant assumes the carrying charges, including interest and taxes; when the show is unable to pay rental sufficient to cover all charges, appellant ab- 476 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. sorbs the deficit. It requested findings in substance as follows: Large quantities of livestock are entered in the show and much is sold on the show property. Some is sold in the yards operated by appellant. The show attracts buyers and throughout the year widens the outlet for producers’ stock, operates to increase receipts, makes for improvement of stock raised and for higher prices, has educational value, and advertises the market. It is supported by appellant in good faith and in the belief that it stimulates its business and that of livestock producers. These facts are not in substantial conflict with the Secretary’s findings, and may be taken as established by the evidence. But they are not sufficient to prove that the property excluded is used and useful for the performance of services covered by rates being regulated by the Secretary. None of those services is performed on or by the use of any of that property. The Secretary rightly says “If it is appellant’s contention that the stock show increases the stockyard business, then it should request that a reasonable allowance be made for advertising expense as a charge against its income.” In support of that view he adds “Advertising or developmental expenses to foster normal growth are legitimate charges upon income for rate purposes if confined within the limits of reason. West Ohio Gas Co. v. Comm’n, 294 U. S. 63, 72.” Appellant’s contention that the court erred in upholding the Secretary’s exclusion of that item is not sustained. Trackage and unloading and loading facilities. The Secretary appraised that property at $177,108. He excluded it as not used for performance of any stockyard service. Appellant leases the trackage to railroad carriers for substantial rentals. It does not claim that exclusion of that part’ of the item is confiscatory and fails to show it prejudicial. It follows that the court did not err in upholding the Secretary’s determination. The unloading DENVER STOCK YARD CO. v. U. S. 477 470 Opinion of the Court. and loading facilities include ways between docks and the pens where the stockyard services are rendered. Appellant uses these facilities to unload and load livestock. That is a service for which the carriers pay appellant. Stockyard services do not commence until unloading ends; they end when loading begins. See Atchison, T. & S. F. Ry. Co. v. United States, 295 U. S. 193, 198. The court rightly refused to disturb the Secretary’s ruling as to these facilities. Land value. The Secretary’s finding depends on the appraisal and testimony of his valuation engineer. Appellant maintains that it is not supported by evidence because the engineer was not a qualified expert witness. It concedes that, if he was competent, the valuation must be sustained. To support its point, appellant relies on the fact that the appraiser had never lived in Denver or previously appraised any land there or in that vicinity or assembled or appraised any large industrial tracts. The significance adverse to competency that might be attributed to these facts if they stood alone is negatived by others disclosed by the record. The appraiser is an experienced civil engineer; he was long engaged in land appraisal work under the Interstate Commerce Commis-sion. He later had private practice as consulting engineer and in 1934 became principal valuation engineer of the Packers and Stockyards Division, Bureau of Animal Industry, Department of Agriculture; in that capacity he has given testimony in a number of rate proceedings. His report submitted to the Secretary discloses elaborate investigation and consideration of prices paid for land, of the Interstate Commerce Commission’s appraisals of lands in the vicinity and of other facts material to the ascertainment of value of the land in question. It cannot reasonably be said that, because of his lack of earlier knowledge of local conditions, the finding was made without evidence. 478 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. Going concern value. Appellant maintains that, while admitting it exists in the property, the Secretary failed to include in rate base any allowance on account of it, and that the evidence requires addition of at least $325,000 to cover that element. In substance, the Secretary’s findings state: The stock-yard is a going concern; it has a long history of efficient management and has won a reputation for good service; it has been financially successful. His valuation engineer (whose figures and valuation are the basis of the Secretary’s appraisal) considered going concern value but did not include a separate amount for it. In adopting the value of the land and the cost of reproduction new less depreciation of structures, consideration was given to the element of going concern value. Adequate allowance has been included, although no separate item on its account has been set forth. The findings contain a “summary of the value of used and useful land, the cost of reproduction new of structures and equipment, including direct construction overheads, indirect overheads, interest on used and useful land during construction, and working capital, and the cost of these, less depreciation where depreciation exists, of respondent [appellant] as a going concern.4 ... It is found that the fair value of the property of respondent as a going concern is $2,792,681 . . .” 4 See table below: Cost of reproduction new Condition per cent Cost of reproduction new less depreciation Land—Used and Useful $536,825 100 $536,825 Total Material, Labor, Direct Construction Overhead and Indirect Construction Overhead 2,532,484 80.545 2,039,789 Interest on Used and Useful Land during Construction. 37,578 80.545 30,267 Working Capital ... 139,300 100 139,300 Total on Basis of Original Testimony $2,746,181 Bridge in Process of Construction at Date of Oral Argument 22,500 Sewage Disposal Plant in Process of Construction at Date of Oral Argument... Total 24,000 $2,792,681 DENVER STOCK YARD CO. v. U. S. 479 470 Opinion of the Court. The substance of appellant’s claim is that these figures are exclusively attributable to physical elements. Assuming that to be true, it does not follow that the Secretary failed to include proper allowance for going concern. Dayton P. & L. Co. v. Comm’n, 292 U. S. 290, 309. The value of appellant’s property used in stockyard services is single in substance. West v. Chesapeake & P. Tel. Co., 295 U. S. 662, 672. While it may be considered as made up of tangible and intangible elements, it is not necessarily to be appraised by adding to cost figures attributable to mere physical plant something to cover the value of the business. Kennebec Water District v. Waterville, 97 Me. 185, 220; 54 A. 6. Value depends upon use and is measured, or at least significantly indicated, by the profitableness of present and prospective service rendered at rates that are just and reasonable as between the owner of and those served by the property. Cleveland, C., C. & St. L. Ry. Co. v. Backus, 154 U. S. 439, 445. National Waterworks Co. v. Kansas City, 62 F. 853, 864-866. Omaha v. Omaha Water Co., 218 U. S. 180, 202. Des Moines Gas Co. v. Des Moines, 238 U. S. 153, 165. Denver v. Denver Union Water Co., 246 U. S. 178, 192. Cf. Public Service Comm’n v. Great Northern Utilities Co., 289 U. S. 130. It is elementary that value of a going concern may be less than, equal to, or more than, present cost of plant less depreciation plus necessary supplies and working capital. See Galveston Electric Co. v. Galveston, 258 U. S. 388, 396. Los Angeles Gas Co. v. Railroad Comm’n, supra, 313, 314. Dayton P. & L. Co. n. Comm’n, ubi supra. Appellant’s plant without business, present or prospective, would be worth much less than the cost figures found by the Secretary to represent value. Appellant’s claim, that the rate base includes nothing on account of going concern value, is without foundation in fact. The considerations upon which appellant claimed to have established an amount to be added to rate base to 480 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. cover going value may be summarily stated: (1) The sales charge is for the privilege of the market. The value of the market is not reflected in reproduction cost of structures. It is over and above value of or investment in plant. (2) Appellant has spent large sums and made gifts of money and land as a result of which large packers have their plants at Denver and buy on appellant’s market. (3) Cattle of various owners arriving at the Denver market by rail for the same market session from different shipping points may be sorted into uniform carloads to move to another destination on the through rate from point of shipment to point of destination. The privilege is not open at Chicago or any Missouri River market. (4) A high percentage of the stock received at appellant’s yard is sold there; this percentage has progressively increased. (5) Volume, appraised at $10 per car, applied to the 35,000 cars annually received at the yard. None of these considerations has much, if any, bearing on the ascertainment of going value or the application of the rule that it is to be taken into account in confiscation cases. That element is not separate from or necessarily in excess of reasonable cost figures, attributable to the plant. The Secretary considered its location, the volume and flow of shipments, percentages of sales to receipts, privileges in transit, cost of service, past history, future prospects, and other pertinent facts. Appellant does not claim that its past operations clearly reflect excellence of service and low cost per unit in comparison with results attained by other stockyards, or that conditions affecting performance give dependable assurance of future growth and capacity to earn net returns at relatively low rates. See e. g. McCardle v. Indianapolis Water Co., supra, 413-415. Its evidence falls far short of condemning as arbitrary and confiscatory the Secre- DENVER STOCK YARD CO. v. U. S. 481 470 Opinion of the Court. tary’s refusal to add a separate amount to his rate base to cover going concern value. Yardage charges to traders. These are prescribed as reasonable maximum rates to cover sales for which, as above stated, appellant has made no charge. Its failure so to do is found by the Secretary and the lower court to be unreasonably and unjustly discriminatory, in that it does make charges for similar privileges it furnishes producers and others selling in its market. The prescribed charges apply to animals sold by producers or others to traders and by the latter resold or reweighed for sale at the yard. On cattle, calves and hogs they are 50 per cent of those charged producers, on sheep and goats 40 per cent, and on horses, mules and pure-bred bulls, 100 per cent. The Secretary estimates that if appellant exacts the prescribed charges to traders it will obtain revenue from that source of $10,960 per year, and he includes that amount in his calculation of reasonable return. There is controversy between the parties as to space assigned to traders and details of service attributable to sales by them. But the evidence clearly shows that, as found by the Secretary and lower courts, appellant does provide them facilities and privileges similar to, though not precisely the same as, those furnished to others making sales in the market. These charges are not discriminatory as between producers; they directly bear but one charge. Assuming that the charge for selling by traders would operate to lessen prices obtainable by producers from them, no unjust discrimination results, for obviously charges for the two sales of the same animals reasonably may be more than that exacted for the first one. These rates are prescribed, and revenues obtainable from them are included by the Secretary in his estimate of appellant’s income, to the end that it may not exact from producers and others selling at the 81638°—38------31 482 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. yard charges sufficient to cover the part of its operating expenses that is fairly attributable to the sales made by traders. The statute denounces unjust discrimination and requires appellant as a public market to charge, and empowers the Secretary to prescribe, rates that are non-discriminatory. There is no ground for the appellant’s suggestion to the effect that the order unlawfully invades its right as owner to manage the yard and control its business policy. Cf. Interstate Commerce Comm’n v. Chicago G. W. Ry. Co., 209 U. S. 108, 118. Norfolk & W. Ry. Co. v. West Virginia, 236 U. S. 605, 609. Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585, 595, 596. Banton v. Belt Line Ry., 268 U. S. 413, 421. Dues, donations and subscriptions. Appellant claims an allowance in operating expenses of $3000 to $4000 a year. The Secretary found that it has regularly made disbursements ranging between those figures to local charities, philanthropies, civic organizations, etc.5 He held that only those of peculiar benefit to respondent’s employees and patrons should be included, and on that basis allowed in estimated future operating expenses $325 a year. Appellant says that the exclusion leaves return about $1000 short of six and one-half per cent, that no contributions were made to charities which did not carry 5 There were over one hundred recipients of dues, donations and subscriptions during the five years ending with 1934. The contributions made in 1934 are fairly illustrative. They are listed below. Those in italics were made (in varying amounts) in each of the five years; those underscored were allowed by the Secretary. Denver Community Chest, $1000; Denver Chamber of Commerce, $240; U. S. Chamber of Commerce, $50; Junior Chamber of Commerce, $15; Tickets and Boxes—Stock Show, $395.50; American Stock-yards Association, $832.56; Church Donations, $115; Flowers, $4; United Appeal, $75; Volunteers of America, $10; Veteran Volunteer Firemen, $5; Firemen’s Protective Association, $15; Denver Traffic Club, $18; Denver Commercial Traffic Club, $18; I. C. C. Traffic Reports, $25.25; Traffic Service Corp., $10; Brand Inspectors—Christ- mas, $70; Denver Live Stock Exchange, $95.53; Denver Post, $12; DENVER STOCK YARD CO. v. U. S. 483 470 Opinion of the Court. on in the stockyards area, and that nearly all other items were business expenses. But decision here cannot be made to turn on an estimated margin relatively so small. Appellant’s annual receipts and sales at the yard vary considerably. Operating expenses may be less or more per head than the estimates therefor. Property value may decline or advance. None of the expenditures in question is compulsory. Appellant may withhold dues, donations or subscriptions as it sees fit. It was not, and probably could not have been, proved that failure to respond would adversely affect its revenue. The Secretary is not required to prescribe rates so low as to be barely sufficient to withstand attack on the ground of confiscation, but is at liberty within limits that he may find to be just and reasonable to establish higher rates. Banton v. Belt Line Ry., supra, 422. Dayton P. & L. Co. v. Comm’n, supra, 308. Columbus Gas Co. v. Comm’n, 292 U. S. 398, 414. Atlantic Coast Line v. Florida, 295 U. S. 301, 317. Cf. Dayton-Goose Creek Ry. v. United States, 263 U. S. 456, 484. In view of the variable elements to which appellant’s prospective income is subject, its control over the items in controversy, and their triviality, we find it unnecessary to decide whether appellant as of constitutional right is entitled to have any of them included in its future operating expenses. Tax Payers Review, $5; Policemen’s Protective Association, $50; Lunches at Auction, $55; 4-H Club Luncheon, $34; Traffic Red Book, $8; Old Folks Home, $10; Christmas Seals, $1; Rescue Mission, $2.50; Chicago Drovers Journal Yearbook, $1; Church Messenger, $11; Joint Labor Day Committee, $10; Denver Tourists Bureau, $100; Wedding Gift, $250; Gents Driving & Riding Club, $10; Colorado Womens College, $100; International Vet. Congress, $25; Police & Sheriffs Association, $25; Federal Income Tax Service, $66; Western Legionnaire, $5; National Federation of Federal Employees, $11; American Legion, $5; Program—Holy Name Basket Ball, $5; Office Employees Hay Ride, etc., $3; Guldman Community Center, $2.50; President’s Ball—Tickets, $18. 484 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. Expenses of hearings under the Act. The Secretary found it reasonable to include in estimated operating costs some of the expenses incident to future hearings under the Act, suggested that they will be less than heretofore, and allowed $100 a month. The court below reached the same conclusion. Appellant does not attack this allowance as insufficient to cover expense on account of future hearings. Here, it complains that nothing is included “to amortize over a reasonable future period or at all the costs and expenses of the present litigation.” But we are not called on to decide that question. Appellant’s bill challenges the Secretary’s allowance, refers to expenses theretofore incurred in rate investigations and alleges that the allowance “is wholly inadequate to permit petitioner [appellant] either to reimburse itself for expenditures forced upon it by the Secretary or to meet probable reasonable expenditures for said purposes in the future, and that the . . . finding ... is arbitrary . . .” At the trial the Secretary, without conceding materiality of the facts, stipulated that expense of the present proceeding from its commencement, about January 1, 1935, to the date of the order was $24,654.27 and that a reasonable estimate of the expense of litigation in the lower court was $15,785. Appellant requested the court to find that its average annual expense on account of hearings under the Act for the five-year period ending with 1934 was $8,786.88, and to find the facts stipulated by the Secretary and that its average annual expense on account of enforcement of the Act for the eleven-year period ending with 1934 was $6,216. The burden was on appellant by direct allegations plainly to set forth the facts on which it intended at the trial to maintain that the rates are confiscatory. Aetna Insurance Co. v. Hyde, 275 U. S. 440, 447, and cases there cited. New Orleans Public Service v. New Orleans, 281 U. S. 682, 686. Beaumont, S. L. & W. Ry. Co. v. United DENVER STOCK YARD CO. v. U. S. 485 470 Opinion of the Court. States, 282 U. S. 74, 88-89. Missouri Pacific R. Co. v. Norwood, 283 U. S. 249, 255. Its complaint failed to disclose the claim it now makes. It is that for each of the five years following the effective date of the order, there should be added to estimated cost of operation about $8,000 to cover expenses of hearings before the Secretary and of litigation in the district court. Its request for finding was not sufficient to present the question. Probable expense of future hearings being in issue, the Secretary’s stipulation as to actual cost of past hearings and probable expense of future litigation cannot be regarded as consent to litigate the question of amortization not raised by the bill. As the issue was not appropriately presented below, appellant is not entitled to have it decided here. Rate of return. Upon consideration of the testimony of the Secretary’s economist and a local investment banker of high standing, who is also a stockholder and director of appellant, the Secretary and lower court found that six and one-half per cent per annum of the value of the property is a reasonable return. We need not restate the considerations to be taken into account in determining a reasonable rate of return.6 Plainly the evidence is not sufficient to require or warrant a finding that in the immediate future a return of six and one-half per cent on the value of the property will be confiscatory. The judgment of the District Court must be Affirmed. Mr. Justice Cardozo took no part in the consideration or decision of this case. Mr. Justice Black concurs in the result. 6 Willcox v. Consolidated Gas Co., 212 U. S. 19. Bluefield Co. v. Public Service Comm’n, 262 U. S. 679, 692. Lindheimer v. Illinois Tel. Co., 292 U. S. 151. Dayton P. & L. Co. v. Comm’n, 292 U. S. 290, 311. St. Joseph Stock Yards Co. n. United States, 298 U. S. 38, 72. 486 OCTOBER TERM, 1937. Statement of the Case. 304 U. S. IN THE MATTER OF THE NATIONAL LABOR RELATIONS BOARD. PETITION FOR WRITS OF PROHIBITION AND MANDAMUS. No. 21, Original. Argued May 23, 1938.—Decided May 31, 1938. 1. To confer jurisdiction upon the Circuit Court of Appeals to review an order of the National Labor Relations Board, the filing and service of the petition are not enough, but a transcript of the Board’s proceedings also must be filed with the court. National Labor Relations Act, § 10 (d) (e) (f). P. 491. 2. Where a petition for review has been filed and served on the Board, and the petitioner has requested the Board to furnish a certified transcript of its proceedings but none has been furnished and filed in the court, the Board retains authority, under § 10 (d) of the Act, to vacate or modify its order for the purpose of correcting errors which render it inadequate or unjust, and the court has no jurisdiction to restrain the Board from so doing and to require it to file the transcript. Pp. 491-494. In the present case there is no occasion to determine What, if any, relief may be needed by or available to a party who has filed his petition for review, where the Board does not desire to modify or set aside its order but fails or refuses to furnish a transcript of its proceedings. 3. The investiture of the court with jurisdiction to review an order of the Labor Board on the merits, only upon the filing of a transcript exhibiting the Board’s final action, is not a denial of due process. P. 495. 4. Mandamus and prohibition are appropriate remedies, in the absence of adequate remedy by certiorari, for unwarranted assumption by the Circuit Court of Appeals of jurisdiction over proceedings of the National Labor Relations Board. P. 496. Original application by the National Labor Relations Board for writs of mandamus and prohibition directed to the judges of the Circuit Court of Appeals for the Third Circuit. The cause was submitted by the respondents, Hon. Joseph Buffington, Hon. J. Warren Davis, and Hon. J. Whitaker Thompson, Circuit Judges, upon their return to the rule to show cause. IN RE LABOR BOARD. 487 486 Opinion of the Court. Mr. Robert B. Watts, with whom Solicitor General Jackson was on a memorandum, for petitioner. Mr. Luther Day, with whom Messrs. Thomas F. Patton, Joseph W. Henderson, Thomas F. Veach, and Morti-mor S. Gordon were on the brief, opposed the relief sought. They appeared as counsel for the Republic Steel Corporation, party to the proceedings in the lower court against which the petition was directed. Mr. Justice Roberts delivered the opinion of the Court. The motion before us involves a construction of § 10 (d) (e) and (f) of the National Labor Relations Act,1 providing for review of orders of the National Labor Relations Board. May 16,1938, the Board filed in this court a motion for leave to file a petition for writs of prohibition and mandamus directed to the judges of the United States Circuit Court of Appeals for the Third Circuit. Attached to the motion was the petition which set forth the following facts. April 8, 1938, the Board, in a cause pending before it, issued an order directing the Republic Steel Corporation to desist from certain unfair labor practices and to take certain affirmative action. April 18 Republic filed in the Circuit Court of Appeals a petition for review alleging that the order violated the constitutional guarantee of due process because it was entered without an opportunity to Republic to support its contentions by argument or brief and thus the Board had denied it the hearing to which it was entitled. On the same day Republic requested of the Board a transcript of the entire record of its proceedings and the General Counsel of the Board 149 Stat. 454; U. S. C., Supp. II, Tit. 29, § 160 (d) (e) (f). 488 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. replied: “I have your letter of April 18th, and received today a copy of your petition for review of the Board’s order filed in the Third Circuit. We will proceed to get up the record as promptly as possible for certification to the court.” The rules of the Board extend to any party the right, within a reasonable period after the close of a hearing, to present oral argument before the trial examiner and, with his permission, to file briefs. They further provide that the Board may decide a cause with or without allowing the parties to present oral argument before the Board itself or to submit briefs to the Board. It is the Board’s practice to grant leave to submit briefs to it or to make oral argument before it whenever so requested, but the rules do not expressly state that such a request may be made or that the request, if made, will be granted. No such request was made by Republic and no brief was received or oral argument heard before the entry of the order of April 8, 1938. The rules also provide for hearing before a trial examiner of causes initiated by the filing of charges before a regional director unless the cause is transferred for hearing before the Board in Washington. If the hearing is before an examiner he is to render an intermediate report containing findings of fact and recommendations as to the disposition of the cause, which are to be served upon the parties, and they are entitled to take exceptions to the intermediate report. In cases initiated by charges filed with the Board in Washington, or transferred for hearing before the Board, it may direct the trial examiner to prepare an intermediate report, but the rules do not require that such a report shall be prepared or served, or that the Board shall serve its own proposed findings of fact and conclusions of law. The complaint against Republic was initiated by charges filed with the Board. The Board did not direct the trial examiner to prepare an intermediate report and none was IN RE LABOR BOARD. 489 486 Opinion of the Court. prepared or served, nor did the Board serve its own proposed findings of fact and conclusions of law prior to the entry of its order. Subsequent to April 25, 1938, the Board instituted the practice of notifying the parties in all proceedings before it of their right to submit briefs to the Board and, upon request, to present oral argument to the Board; and further determined that, in cases thereafter to be decided, which had been initiated before it, or transferred to it for hearing (except for special reasons in particular cases) an intermediate report should be prepared by the trial examiner and served upon the parties or, in the alternative, proposed findings of fact and conclusions should be prepared by the Board and similarly served with express notice to the parties of their right to take exceptions to the report or the proposed findings and, upon request, to be heard by the Board, orally or upon brief in support of the exceptions. In cases already decided, in which complaint had been made of the omission of an intermediate report or proposed findings, or of the lack of written or oral argument, the Board determined to vacate its orders, to restore the causes to its docket, and to reconsider and redetermine them after granting full opportunity of exception to proposed findings and conclusions and after the service of notice of the right of the parties to submit briefs and to be heard by the Board if they should so request. Among the cases in this category was that involving Republic. April 30, 1938, Republic moved the Circuit Court of Appeals for a stay of the Board’s order and, upon the hearing of the motion, the Board advised the court that it was considering vacating the order. May 3, upon ex parte application of Republic, the court issued a rule, returnable May 13, requiring the Board to show cause why it should not file in the court a certified transcript of the record of the proceedings against Republic, and 490 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. made an order restraining the Board from taking any steps or proceedings whatsoever in the cause until the return day of the rule. May 13 the Board answered the rule of May 3 stating that the record was incomplete because the Board had determined on May 3 to vacate the order and to restore the cause to the docket for further proceedings and had been prevented from so doing by the restraining order issued May 3; the answer further set out that the provisions of § 10 (d) of the National Labor Relations Act deprive the court of jurisdiction to issue the restraining order and of jurisdiction to forbid the vacation of the Board’s order and to compel the filing of a transcript of the Board’s record as it stood prior to the decision to vacate the order. The court made the rule absolute and enjoined the Board from taking any further steps or proceedings in the cause until the transcript was filed. The petition of the National Labor Relations Board asserts that the court was without jurisdiction to take this action and prays a writ of mandamus directing the judges who participated to vacate the order of May 13, and a writ of prohibition against the exercise of jurisdiction upon the petition of Republic to set aside the order of April 8 without affording the Board a reasonable opportunity to vacate it. Upon presentation of the papers we granted leave to file them and entered a rule upon the judges of the Circuit Court to show cause why the relief should not be granted as prayed, returnable May 23, and directed that, on the return day, the parties should be heard upon the question of the jurisdiction of the court to make the challenged order. May 21, the judges filed their return admitting the allegations of the petition, except those as to the rules and practice of the Board, and its determination to vacate the orders in the Republic and other cases, which it IN RE LABOR BOARD. 491 486 Opinion of the Court. neither admitted nor denied. The return showed that the order of May 13 was made in the view that, under § 10 (f) of the Act, Republic, by filing and serving its petition for relief, and by requesting the Board to file, or to deliver for filing, a certified transcript, complied with the jurisdictional requirements of the statute so far as was within Republic’s power; that thereupon it became the duty of the Board forthwith to file a transcript and that, in the judges’ opinion, jurisdiction of the court attached upon service of the petition for review and could not be defeated by the Board’s failure to perform its statutory duty, which was to file the transcript. The return further shows that the court was of opinion that possible damage would result to Republic from delay due to the failure to file the transcript and this consideration moved the court to a construction of the Act which called for the entry of its order. The return concludes as follows: “Recognizing the debatable character of the question presented on this record, the respondents submit themselves to the judgment of this court as to whether or not they had jurisdiction to enter the order complained of and record their readiness to vacate the same if, in the opinion of this court, jurisdiction of the cause was lacking.” As is indicated by our action on the motion of the Board for leave to file, and by the return to the rule, the question is solely of the jurisdiction of the Circuit Court of Appeals. This question is to be answered in the light of § 10 (d) (e) and (f) of the National Labor Relations Act, the pertinent portions of which are in the margin.2 2 “(d) Until a transcript of the record in a case shall have been filed in a court, as hereinafter provided, the Board may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it. “(e) The Board shall have power to petition any circuit court of appeals ... for the enforcement of such order and for appropriate 492 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. Counsel for the petitioner and for Republic have presented their views in oral argument and briefs. The Board’s proceedings are administrative in character. Its final action is subject to judicial review in the manner specified in the Act. Subsection (d) of § 10, in plain terms, invests the Board with authority, at any time before the transcript shall have been filed in court, to modify or set aside its order in whole or in part. The purpose of the provision obviously is to afford an opportunity to correct errors or to consider new evidence which would render the order inadequate or unjust. The words used are “Until a transcript of the record . . . shall have been filed in a court, as hereinafter provided,” the Board may vacate or modify. The following subsections, (e) and (f), are those to which we turn for the connotation of the qualifying phrase. Subsection (e) grants the Board resort to a court for the enforcement of its order. That enforcement is to be obtained by filing a petition for enforcement and filing a certified temporary relief or restraining order, and shall certify and file in the court a transcript of the entire record in the proceeding, including the pleadings and testimony upon which such order was entered and the findings and order of the Board. Upon such filing, the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction of the proceeding and of the question determined therein, ... “(f) Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any circuit court of appeals ... by filing in such court a written petition praying that the order of the Board be modified or set aside. A copy of such petition shall be forthwith served upon the Board, and thereupon the aggrieved party shall file in the court a transcript of the entire record in the proceeding, certified by the Board, including the pleading and testimony upon which the order complained of was entered and the findings and order of the Board. Upon such filing, the court shall proceed in the same manner as in the case of an application by the Board under subsection (e). . . .” IN RE LABOR BOARD. 493 486 Opinion of the Court. transcript of the Board’s proceedings. The subsection proceeds: “Upon such filing, the court shall cause notice thereof to be served upon” the person against whom enforcement is asked. Here it is quite plain that the court is without jurisdiction to take action at the behest of the Board until the transcript shall have been filed and notice of the filing of the petition and the transcript has been served. Subsection (f) affords relief to “any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought, . . .” Such a person, the statute declares, “may obtain a review” of the Board’s order by filing in court “a written petition praying that the order of the Board be modified or set aside.” A copy of the petition is to be served forthwith upon the Board, and “thereupon the aggrieved party shall file in the court a transcript” of the Board’s proceedings. “Upon such filing, the court shall proceed in the same manner as in the case of an application by the Board under subsection (e), . . .” Plainly the court may not proceed to review the Board’s order under either section until a transcript is filed. Counsel for Republic urge, in support of the Circuit Court’s action, that the words, “as hereinafter provided,” in subsection (d), refer to the filing of the transcript required in an enforcement proceeding initiated by the Board authorized by subsection (e) but cannot have reference to a proceeding for review initiated by any other party before the Board pursuant to subsection (f). The words of the statute do not warrant this construction. Two filings are required by subsection (f), the first of a petition, the second of a transcript. After prescribing the second, the Act provides that “Upon such filing, the court shall proceed in the same manner as in the case of an application by the Board under subsection (e), . . .” The reference clearly is to the filing of the transcript and not to the filing of the petition. The con 494 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. tention that the Act cannot be applied in accordance with its apparent intent is that, as only the Board can certify the proceedings, and the petitioner under subsection (f) must file the certified transcript, such a construction would enable the Board to hold the transcript for an indefinite period and thus harass and embarrass a litigant, and delay, and perhaps deny, any effective judicial review. No such case is here presented. We have no occasion to determine what, if any, relief may be needed by or available to a party who has filed his petition for review, where the Board does not desire to modify or set aside its order but fails or refuses to furnish a transcript of its proceedings. Jurisdiction as the term is to be applied in this instance, is the power to hear and determine the controversy presented, in a given set of circumstances. A court has jurisdiction, in another use of the term, to examine the question whether that power is conferred upon it in the circumstances disclosed, but if it finds such power is not granted it lacks jurisdiction of the subject matter and must refrain from any adjudication of rights in connection therewith. Since the statute empowers the Board, before the filing of a transcript, to vacate or modify its orders, certainly it does not confer jurisdiction upon the reviewing court to prohibit the exercise of the granted power. It is obvious that Congress intended to confer no jurisdiction upon the reviewing court to prevent the Board from seasonably vacating or modifying its order so as to make it comport with right and justice. The Act plainly indicates that the purpose was to give the court full and exclusive jurisdiction to review the Board’s order in the respects indicated by the Act once the transcript of the Board’s proceedings is before it. It is equally plain that the court is to have no power to prevent the Board from vacating or modifying its order prior to such plenary submission of the cause. IN RE LABOR BOARD. 495 486 Opinion of the Court. Counsel for Republic urges that the Board’s petition to this court indicates that it does not intend irrevocably to abandon its former order but merely to regularize it and re-enter it after regularization and that the Act gives no power to do this after the Board has heard the case and issued an order. We have no occasion to speculate upon the future proceedings before the Board. It is enough that the petition shows that the Board desired to and would have vacated its order had it not been restrained by the action of the court. What the legal effect of its future proceedings may be we need not decide. Counsel insist that Republic is aggrieved, within the meaning of subsection (f), by the Board’s attempt to retain jurisdiction of the proceeding and take further steps in it. But the Act grants a review and relief only to a ’ person aggrieved by an order of the Board, and had the court not restrained the Board its order would have been vacated and there now would be no order outstanding. The Board is given no power of enforcement. Compliance is not obligatory until the court, on petition of the ’ Board or any party aggrieved, shall have entered a decree enforcing the order as made, or as modified by the court. Statutory authority to the Board to vacate its order prior to the filing of the transcript does not seem to us to differ materially from a like statutory authority to a master in chancery to modify or recall his report to a court after submission but before action by the court. No one could successfully claim to be aggrieved in a legal sense by such a statutory provision or assert that the legislature is incompetent to confer such power upon a master with consequent lack of jurisdiction in the court to forbid its exertion. The investiture of a court with jurisdiction to review an order on the merits only upon the filing of a transcript exhibiting the Board’s final action is not a denial of due process as suggested by counsel. 496 OCTOBER TERM, 1937. Butler, J., dissenting. 304U.S. We think the writs prayed are appropriate remedies in the circumstances disclosed.3 The Circuit Court was without jurisdiction of the subject matter. If the Board had complied with the orders made, a hearing would have resulted respecting the legality of supposed action of the Board which was not in law or fact the final action, review of which the statute provides. No adequate remedy would be open to the Board by way of certiorari from the court’s ultimate review of an order which the Board was authorized and desired to set aside. The expression in the return of readiness to vacate the order entered in the Circuit Court, if this court is of opinion that the tribunal lacked jurisdiction, renders the present issue of process supererogatory. Should the order not be vacated and occasion thus arise for the award of process, the clerk may issue it upon the order of a Justice of this Court. Mr. Justice Stone and Mr. Justice Cardozo took no part in the consideration or decision of this case. Mr. Justice Butler, dissenting. The case is not here as if on writ of certiorari or appeal for review of error alleged to have been committed by the lower court. This is an application for the writs of mandamus and prohibition to command and restrain action by the judges named. These may not be granted unless the lower court was plainly without jurisdiction to hear and determine the case or the particular issue. In re New York & P. R. S. S. Co., 155 U. S. 523, 531. Ex parte 3 Compare Virginia v. Rives, 100 U. S. 313, 329; In re Rice, 155 U. S. 396,402; In re New York & Porto Rico S. S. Co., 155 U. S. 523; In re Atlantic City Railroad, 164 U. S. 633; In re Winn, 213 U. S. 458, 466-468; Ex parte Harding, 219 U. S. 363, 377; Ex parte Oklahoma, 220 U. S. 191, 208; Ex parte Chicago, R. I. & P. Ry., 255 U. S. 273, 275. IN RE LABOR BOARD. 497 486 Butler, J., dissenting. Oklahoma, 220 U. S. 191, 208. Ex parte Chicago, R. I. & P. Ry., 255 U. S. 273, 275. Precisely, the question is whether, on the facts here disclosed, the court was without power to consider and decide upon the corporation’s application for an order directing the Board to certify and file a transcript of the record and restraining in the meantime any other action by it. The decision just announced answers affirmatively, and that is the basis on which the Court commands vacation of the order of the lower court and prohibits it from reviewing the order of the Board without first giving it a reasonable opportunity to vacate its order; that is, without giving the Board more time to proceed under § 10 (d). Obviously jurisdiction of the circuit court of appeals attached upon the filing of the corporation’s petition for review and service of a copy on the Board. Any other construction of § 10 (f) would let the Board, by refusing to certify a transcript of proceedings before it, prevent judicial review of its orders. Congress did not so intend. While the statute expressly requires the person aggrieved to file a certified transcript, it impliedly, but not less plainly, commands the Board to certify the record. This Court’s decision rests on the statement that, as the term is to be applied in this in-• stance, jurisdiction is the power to hear and determine the controversy presented in a given set of circumstances. If the lower court had jurisdiction to entertain and decide the corporation’s motion, writs of mandamus and prohibition may not be granted, for they are not available for correction of mere error or even abuse of discretion. Interstate Commerce Comm’n v. New York, N. H. & H. R. Co., 287 U. S. 178, 203-204. Ex parte Whitney, 13 Pet. 404, 408. Ex parte Taylor, 14 How. 3, 13. Ex parte Railway Co., 101 U. S. 711, 720. In re Hawkins, Petitioner, 147 U. S. 486, 490. In re Atlantic City Railroad, 164 U. S. 633, 635. In re James Pollitz, 206 U. S. 323, 331. Cf. Ex parte Simons, 247 U. S. 231, 240. 81638°—38--32 498 OCTOBER TERM, 1937. Butler, J., dissenting. 304U.S. Stripped of unnecessary details and language, the circumstances under which the lower court made the challenged order may be stated briefly. Upon charges made by the Steel Workers’ Organizing Committee, the Board, July 15, 1937, issued complaint alleging that the corporation was engaging in unfair labor practices. The corporation joined issue. Before it filed answer, hearings were held by the Board, from July 21 to July 24. After answer, there were hearings before an examiner at various times and places between August 9 and September 27. April 8, 1938, the Board made its decision and order. It found the corporation guilty of practices denounced by the Act. It ordered it to cease and desist, to reinstate certain persons, to pay sufficient to equalize what certain persons would have earned if employed by the corporation during specified periods, less the amount they earned at other work during those periods. April 18, the corporation filed in the circuit court of appeals its petition to have the Board’s order adjudged invalid. The petition charges that, in violation of the corporation’s rights under the due process clause of the Fifth Amendment, the Board ordered the corporation to reinstate persons not alleged in the complaint to have t been unlawfully discharged or discriminated against by the corporation; and so directed notwithstanding the corporation had never been accorded or offered a hearing or opportunity of making defense as to the asserted rights of those persons; that the Board made the order without affording the corporation opportunity to present its case by argument, orally or upon brief. It alleges that, under the terms of the order, about five thousand persons may claim reinstatement, petitioner is required to reinstate or pay them as specified, the average wage is $6.50 per day. And it asserts that to defer reinstatement, pending decision by the court as to validity of the order, would IN RE LABOR BOARD. 499 486 Butler, J., dissenting. involve a risk of such magnitude as imminently to threaten its right to have review in court. And the petition avers that unless the order be stayed, irreparable injury and loss will result to the corporation and that it will be denied review of a substantial part of the order. It prays service of a copy on the Board, certification by the Board of the transcript as required by law, invalidation of the order, direction to the Board to dismiss its complaint, and a stay of the order and of proceedings by the Board to enforce it, excepting such as may be taken in court. April 18, the day on which the corporation filed petition for review, the Board, consistently with the corporation’s claim as to its duty under the Act, agreed promptly to certify the transcript and to file it in court. April 22, the corporation filed an application for stay and temporary relief. Its application cited § 10 (g), which declares that commencement of proceedings under § 10 (f) shall not, unless specifically ordered by the court, operate as a stay of the Board’s order. It stated: The purpose of the application was to prevent irreparable loss and denial of review. If, pending final determination of the case, petitioner should fail to make reinstatements in accordance with the order, its potential weekly liability would exceed $95,000. On that basis the corporation sought suspension of the portion of the order that relates to reinstatement or payment of wages, so that, if it should be upheld, the corporation’s liability to reinstate or to pay would commence ten days after the final decree of the court. In a brief submitted in support of its motion, the corporation maintained that the order is invalid because the corporation was not afforded a fair and full hearing and because the order is one for reemployment and not for reinstatement; and that unless the stay be granted, the corporation will suffer irreparable financial losses. 500 OCTOBER TERM, 1937. Butler, J., dissenting. 304U.S. April 30 the corporation’s motion came on for hearing. The Board appeared and argued against it. The court neither granted nor denied the application. The rule to show cause, issued May 3, recites that at the hearing, April 30, the Board stated that it “was seriously considering withdrawing, modifying or changing its order in the case and reopening same.” The Board’s application for vacation of that order states that at the hearing on April 30 the Board advised the court that it was contemplating vacating its order, and would advise the court of its final position not later than May 4, 1938; that, on May 3, it notified the corporation that it had definitely decided to vacate the order; but that, before any steps to do so could be taken, the court had issued the restraining order. The Board maintained that as the transcript had not been filed, § 10 (d) was applicable and that the Board then had the right to withdraw or vacate the order. In its answer to the rule to show cause, the Board says that it was not guilty of refusal to certify or of dilatory tactics, and that on April 18 its counsel informed the corporation’s counsel that the Board would as promptly as possible prepare the record for certification. “This task of considerable magnitude was forthwith commenced and was incomplete a week later when the supervening decision of the Supreme Court in Morgan v. United States, 304 U. S. 1, was rendered. . . . There is no question in this case, therefore, whether the court had jurisdiction to require the Board to file a record when such filing has been long delayed or refused by the Board. The Board has with all promptness elected to exercise its power to vacate its order under § 10 (d), and there is no merit in petitioner’s claim that that section is inapplicable because the Board has evaded its obligations under the Act.” In these circumstances the court did not lack jurisdiction to hear and determine the controversy presented by IN RE LABOR BOARD. 501 486 Butler, J., dissenting. the corporation’s application for an order directing the Board to certify the record for filing in court. The Act contemplates prompt action. Section 10 (i) declares that petitions filed under it shall be heard expeditiously “and if possible within ten days after they have been docketed.” Power under § 10 (d) to change or vacate its order does not enable the Board to delay filing the record. At the bar counsel expressed the opinion that the Board may vacate an order without notice, § 10 (d). It had fifteen days, April 18 to May 3, to decide whether to vacate the order or join issue. That period included a week before and a week after our decision in Morgan v. United States, supra. The Board does not claim that • it needed until May 3 to certify the transcript. So the issue before the lower court was the very narrow one, whether for an unreasonable length of time the Board withheld the record. And that question involves consideration of subsidiary ones: To what extent, if at all, a certification may be delayed by the choice of the Board to enable it to consider modification or repeal of its order. Whether after decision in Morgan v. United States more than a reasonable time had elapsed. While there is room for difference of opinion on these questions, it is very hard to perceive on what ground it may be held that the court was without jurisdiction to decide them, or even to conclude that the order was an arbitrary exertion of power, or that restraint against further delay by the Board involved an abuse of discretion. I am of opinion that the lower court had jurisdiction of the case and of the issues decided by the challenged order, and that therefore the Board’s application for writs of mandamus and prohibition should be denied. Mr. Justice McReynolds concurs in this opinion. 502 OCTOBER TERM, 1937. Syllabus. 304 U. S. WRIGHT v. UNION CENTRAL LIFE INSURANCE CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. Nos. 715 and 716. Argued April 6, 1938;—Decided May 31, 1938. 1. The filing by a farmer debtor of a petition for composition and extension, and an amended petition to be adjudged bankrupt, under § 75 of the Bankruptcy Act before its amendment by the Act of August 28, 1935, did not bring within the control of the bankruptcy court mortgaged land listed in the schedules as his property and of which he acquired the equity during the proceeding, but in which he held no interest when the petitions were filed. P. 507. 2. Land in which a farmer debtor had an equity of redemption, but which was not subject to administration in a pending proceeding under § 75 of the Bankruptcy Act because his interest in it was acquired after the filing of his petition, was not brought within the jurisdiction by the enactment of the amendatory Act of August 28, 1935, and the filing of an amended petition under subsection (s) as amended, where those events occurred after his interest had been extinguished by a foreclosure of the mortgage in a state court followed by a judicial sale of the land and expiration of the period for redemption allowed by the state law. P. 508. 3. Land subject to mortgage was scheduled by a farmer debtor as his property, in a proceeding for composition and extension brought under § 75 of the Bankruptcy Act. He had no interest in the land when the petition was filed, but later received a conveyance of it from owners of the equity of redemption. The mortgage was foreclosed and the mortgagee bought in the land at a judicial sale, but the period for redemption allowed by the state law had not expired before § 75 was amended by the Act of August 28, 1935, and the debtor filed his petition to be adjudged bankrupt, under subsection (s), as so amended. Held, applying amended subsection (n), that upon the filing of the amended petition the property was brought within the control of the bankruptcy court and the time for redemption was extended. P. 509. 4. The provision of § 75 (n) of the Bankruptcy Act, as amended, for extension of period for redemption, held constitutional as WRIGHT v. UNION CENTRAL INS. CO. 503 502 Opinion of the Court. applied against a mortgage creditor who foreclosed by suit in an Indiana court and bought in the land at a judicial sale, but as to whom the right of the debtor to redeem, under the Indiana law, had not expired when his petition to be adjudged bankrupt was filed under § 75, as amended. P. 513. The provision is within the bankruptcy power and not inconsistent with the rights of the creditor-purchaser under the due process clause of the Fifth Amendment. It is not an invasion of power reserved to the State by the Tenth Amendment. P. 515. 91 F. 2d 894, affirmed in part, reversed in part. Certiorari, 303 U. S. 630, to review the affirmance of two orders of the District Court in bankruptcy, the one striking certain described real estate from the debtor’s schedules, the other refusing to permit an amendment of the schedules. Messrs. Samuel E. Cook and Wm. Lemke, with whom Messrs. Walter L. Clements, Elmer McClain and Ray M. Foreman were on the brief, for appellant. Mr. Arthur S. Lytton, with whom Messrs. Stanley K. Henshaw and Virgil D. Parish were on the brief, for appellee. Mr. Justice Reed delivered the opinion of the Court. Petition for writs of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit was granted by this Court to review the judgments in two appeals brought to the lower court by petitioner here. Wright v. Union Central Life Ins. Co., 91 F. 2d 894. The judgments affirmed two orders of the District Court of the United States for the Northern District of Indiana, entered there in proceedings under § 75 of the Bankruptcy Act instituted by Wright. The earlier order approved the recommendation of the Conciliation Commissioner to strike certain described real estate from the debtor’s schedules, and the later 504 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. order refused to permit the debtor to amend the schedules by showing the circumstances under which the debtor claimed an interest in the same real estate covered by the earlier motion. The correctness of the orders depends largely upon the constitutional validity of certain provisions of § 75 (n) of the Bankruptcy Act, as amended by § 4 of the Act of August 28, 1935. 49 Stat. 942. These provisions, held unconstitutional by the lower court, operate to extend the period of redemption from a foreclosure sale allowed the mortgagor under state law. To decide this important constitutional question, our writs of certiorari were issued. In view of § 1 of the Act of August 24, 1937, c. 754, 28 U. S. C. § 401,1 enacted subsequent to the decision of the case below, the Court certified to the Attorney General the fact that the constitutionality of an Act of Congress affecting the public interest was drawn in question in this cause. The Attorney General disclaimed intention to intervene. The controversy as to whether or not the land in question was subject to the administration of the court of bankruptcy had its origin in this plexus of facts. Petitioner James M. Wright on October 1, 1925, together with his wife, executed a mortgage to respondent com- 1 “Whenever the constitutionality of any Act of Congress affecting the public interest is drawn in question in any court of the United States in any suit or proceeding to which the United States, or any agency thereof, or any officer or employee thereof, as such officer or employee, is not a party, the court having jurisdiction of the suit or proceeding shall certify such fact to the Attorney General. In any such case the court shall permit the United States to intervene and become a party for presentation of evidence (if evidence is otherwise receivable in such suit or proceeding) and argument upon the question of the constitutionality of such Act. In any such suit or proceeding the United States shall, subject to the applicable provisions of law, have all the rights of a party and the liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the constitutionality of such Act. WRIGHT v. UNION CENTRAL INS. CO. 505 502 Opinion of the Court. pany on a tract of land in Indiana, containing 80.31 acres, to secure a note of $3,000. At the same time, the same parties executed another mortgage to the respondent on a different tract of land containing 200 acres, also in Indiana, to secure a note of $9,000. In 1931, the first tract was deeded to petitioner’s son, and three separate fortyacre parcels from the second tract were deeded to his wife, daughter and son-in-law respectively. The property was conveyed subject to definite portions of the indebtedness but without an assumption of any of the obligation by the grantees. On January 3, 1934, respondent brought suit to foreclose the smaller mortgage, joining as defendants petitioner and his son. Judgment of foreclosure was entered, June 9, 1934, and on July 12, 1934, the 80.31-acre tract was sold, on the foreclosure sale, to respondent. Respondent received a duly executed sheriff’s certificate of sale. Delivery of final deed was delayed in view of the one-year period of redemption allowed to mortgagors by Indiana statute. Ind. Ann. Stat. (Burns, 1933) §§ 2-3909, 2-4001. Wright filed a petition under § 75 of the Bankruptcy Act, October 29, 1934. In listing his property on his schedules, he set forth all 280.31 acres, despite his previous conveyances of 200.31 acres. On December 19, 1934, stating that no agreement of creditors could be had, he amended his petition under § 75 (s), asking to be adjudged a bankrupt.2 On April 13, 1935, petitioner’s son 2 This fact is stated in respondent’s brief. Petitioner’s answer to respondent’s motion to strike out from the schedules the real estate in controversy alleges “that all the steps under said Section 75 were taken; that later petitioner (Wright) amended his petition under Subsection (s) of Section 75, as amended August 28, 1935.” By stipulation the allegations of the answer were admitted as evidence. There is apparently no issue as to the fact of the filing of a petition in bankruptcy on December 19, 1934, 506 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. and daughter and their spouses delivered to him a quitclaim deed for all the property, 200.31 acres, he had previously deeded to them and his wife.3 On May 27, 1935, respondent obtained a personal judgment against petitioner on the $9,000 note, and a decree of foreclosure of the 200-acre tract, which respondent purchased at the sheriff’s sale on July 20, 1935, receiving a certificate of sale. On August 2, 1935, petitioner’s one-year period for redeeming from sale the 80.31-acre tract having expired July 12, 1935, respondent surrendered its certificate of sale and received a sheriff’s deed to this land. On October 11, 1935, petitioner amended his petition as authorized by § 75 (s) of the Bankruptcy Act, as amended August 28, 1935, following the invalidation by the decision in Louisville Bank v. Radford, 295 U. S. 555, of § 75 (s) as originally drafted, and again asked to be adjudged a bankrupt. On July 20, 1936, the one-year redemption period having expired, respondent received from the sheriff a final deed for the 200-acre tract. On July 29, 1936, respondent filed a motion in the District Court for Northern Indiana, where the proceedings under § 75 (s) were pending, to strike from petitioner’s schedules, which had been filed October 29, 1934, these 280.31 acres of land. On December 14, 1936, the District Court granted this motion, and entered an appropriate order. Apparently the order struck from the schedules eighty acres still owned by Wright in October, 1934, and properly scheduled at that time. Later in December, 1936, petitioner asked leave to amend his schedules to set forth the reconveyances by his children on April 13, 1935. On December 31, 1936, the District Court denied the application to amend the schedules. Petitioner appealed from 8 Apparently his wife had died in the meanwhile. The record indicates that she died prior to May 27, 1935. WRIGHT v. UNION CENTRAL INS. CO. 507 502 Opinion of the Court. both orders of the District Court, striking the land from the schedules and denying leave to amend. The appeals were consolidated in the Circuit Court of Appeals. As stated in the opening paragraph of this opinion, that court affirmed both orders of the District Court. These judgments are under review here. A further aspect of the controversy between petitioner and respondent may be noted. On September 13, 1935, prior to the debtor’s filing of an amended petition under § 75 (s) as amended, respondent instituted an action in the state court for possession of the 80.31 acres. A judgment overruling a defense grounded on the bankruptcy proceedings, and awarding possession and damages to respondent, was affirmed by the Supreme Court of Indiana on April 2, 1937. Wright v. Union Central Life Ins. Co., 212 Ind. 214. A similar judgment with respect to the rest of the land was affirmed October 26, 1937, Wright v. Union Central Life Ins. Co., 212 Ind. 563. By temporary restraining order of the Circuit Court of Appeals, and subsequent stay of mandate, respondent has been restrained from taking possession of the land. First, (a). By October 30, 1934, when petitioner sought adjustment and extension of debts under § 75, the 80.31-acre tract had been deeded away to petitioner’s son. Accordingly, although this tract was listed on petitioner’s schedules, it did not at that time pass into the hands of the bankruptcy court for administration. Nor was the amended petition under § 75 (s), filed on December 19, 1934, any more effective in bringing the tract within the purview of the bankruptcy court. On April 13, 1935, the members of Wright’s family relinquished all their right and interest in his lands, including this 80.31-acre tract, so that petitioner then acquired an interest in the land. But Wright’s receipt of this gift of land was not effective in and of itself to bring the land within the control of the bankruptcy court. This 508 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. is the rule applicable to property received by a bankrupt subsequent to the filing of an ordinary petition in bankruptcy,4 and we see no reason why the same rule should not apply to debtor proceedings under § 75.5 There is no substance in any contention that this 80.31-acre tract was brought within the purview of the bankruptcy court by the Act of August 28, 1935, amending § 75 (s), or the filing of an amended petition under this section on October 11, 1935. Prior thereto, judgment of foreclosure had been entered in the state court and a judicial sale (at which respondent bought in the 80.31-acre tract) held on July 12, 1934. Conveyance and delivery of possession to the purchaser was deferred for one year, the period of redemption under the statutes of Indiana. This period expired on July 12, 1935, and the sheriff’s deed was executed on August 2, 1935. With the delivery of the deed, prior to any effective extension of the period of redemption, the purchaser’s rights, flowing from the judicial sale, were no longer affected by the court’s jurisdiction of petitioner and petitioner’s 4 Everett v. Judson, 228 U. S. 474, 478; Local Loan Co. v. Hunt, 292 U. S. 234, 244; 4 Remington, Bankruptcy, §§ 1377, 1395, 1400; 1 Collier, Bankruptcy, p. 1641. B In considering this 80.31-acre tract we are not concerned with such property acquired subsequent to the filing under § 75 as would be controlled by § 75 (n) as amended by the Act of August 28, 1935. “In proceedings under this section, except as otherwise provided herein, the jurisdiction and powers of the courts, the title, powers, and duties of its officers, the duties of the farmer, and the rights and liabilities of creditors, and of all persons with respect to the property of the farmer and the jurisdiction of the appellate courts, shall be the same as if a voluntary petition for adjudication had been filed and a decree of adjudication had been entered on the day when the farmer’s petition, asking to be adjudged a bankrupt, was filed with the clerk of court or left with the conciliation commissioner for the purpose of forwarding same to the clerk of court.” WRIGHT v. UNION CENTRAL INS. CO. 509 502 Opinion of the Court. estate under the Bankruptcy Act.6 Nothing in § 75 as it now stands indicates any intention that the bankruptcy courts assume control over land not previously within the jurisdiction of a bankruptcy court, and already completely divorced from any title of the debtor. (b) . On October 29, 1934, when Wright filed his original petition under § 75, he was undoubtedly the owner of 80 acres out of the 200-acre tract. He had never conveyed away these 80 acres; no proceedings to foreclose them had been begun. These 80 acres were clearly within the jurisdiction of the bankruptcy court, but we shall not give them separate discussion, for they are controlled a fortiori by our ruling with respect to the other 120 acres out of the 200-acre tract. (c) . The status of these 120 acres, deeded in fortyacre parcels, to three members of the family, is governed by other facts. These parcels passed to the other members of the family prior to the filing of the petition for composition on October 29, 1934. Petitioner, however, included them in his schedules. The grantees had title on December 19, 1934, when petitioner filed his first amendment to the petition for composition. On April 13, 1935, these parcels were reconveyed to petitioner; on May 27 judgment for foreclosure was entered and on July 20, 1935, a sale was had. Respondent became the purchaser. The right of redemption expired July 20, 1936. Between the sale and the expiration of the period of redemption, two events occurred. The Congress enacted the Act of August 28, 1935, which added to the Bankruptcy Act, § 75, a new subsection (s) to take the 6 “A sheriff’s certificate, however, after the expiration of the year for redemption, invests the holder with an equitable estate in the land, of such high character that it only requires his demand for a deed, to ripen it into an absolute legal title.” Hubble v. Berry, 180 Ind. 513, 519. 510 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. place of the subsection (s) held invalid in Louisville Bank v. Radford, 295 U. S. 555. This new subsection (s) was sustained in Wright v. Vinton Branch, 300 U. S. 440. Secondly, the petitioner, on October 11, 1935, filed a second amendment to his petition for composition and was “duly adjudged a bankrupt.” Both of these events are significant in reasoning out the status of the 120 acres. If the rule of the General Bankruptcy Act is followed, property acquired after the filing of a petition for composition under the provisions of § 75 would not be subject to bankruptcy administration. Section 75 (n) in effect at the time of the filing of the petition leads to the conclusion that, at that time, a similar rule, as to property subsequently acquired, would apply.7 At the time petitioner filed his first amendment, seeking to be adjudged a bankrupt, subsection (n) continued in the same form. It was changed by the Act of August 28, 1935, to the language shown below.8 By the terms of the second and 7“(n) The filing of a petition pleading for relief under this section shall subject the farmer and his property, wherever located, to the exclusive jurisdiction of the court. In proceedings under this section, except as otherwise provided herein, the jurisdiction and powers of the court, the title, powers, and duties of its officers, the duties of the farmer, and the rights and liabilities of creditors, and of all persons with respect to the property of the farmer and the jurisdiction of the appellate courts, shall be the same as if a voluntary petition for adjudication had been filed and a decree of adjudication had been entered on the day when the farmer’s petition or answer was filed.” 8“(n) The filing of a petition or answer with the clerk of court, or leaving it with the conciliation commissioner for the purpose of forwarding same to the clerk of court, praying for relief under section 75 of this Act, as amended, shall immediately subject the farmer and all his property, wherever located, for all the purposes of this section, to the exclusive jurisdiction of the court, including all real or personal property, or any equity or right in any such property, including, among others, contracts for purchase, contracts for deed, or conditional sales contracts, the right or the equity of redemption where the WRIGHT v. UNION CENTRAL INS. CO. 511 502 Opinion of the Court. third paragraphs of § 4 of that Act, all rights of redemption of petitioner which had not expired in land within the jurisdiction of the court of bankruptcy were extended. By the earlier subsection (n) the line of cleavage, between property subject to the bankruptcy jurisdiction and property free from it, came at the date when the “farmer’s petition or answer was filed.” When this language was adopted there was no provision for a petition in bankruptcy under § 75. There was provision only for a petition for composition or extension.9 By § 4 of the Act of period of redemption has not or had not expired, or where a deed of trust has been given as security, or where the sale has not or had not been confirmed, or where deed had not been delivered, at the time of filing the petition. “In all cases where, at the time of filing the petition, the period of redemption has not or had not expired, or where the right under a deed of trust has not or had not become absolute, or where the sale has not or had not been confirmed, or where deed had not been delivered, the period of redemption shall be extended or the confirmation of sale withheld for the period necessary for the purpose of carrying out the provisions of this section. The words ‘period of redemption’ wherever they occur in this section shall include any State moratorium, whether established by legislative enactment or executive proclamation, or where the period of redemption has been extended by a judicial decree. In proceedings under this section, except as otherwise provided herein, the jurisdiction and powers of the courts, the title, powers, and duties of its officers, the duties of the farmer, and the rights and liabilities of creditors, and of all persons with respect to the property of the farmer and the jurisdiction of the appellate courts, shall be the same as if a voluntary petition for adjudication had been filed and a decree of adjudication had been entered on the day when the farmer’s petition, asking to be adjudged a bankrupt, was filed with the clerk of court or left with the conciliation commissioner for the purpose of forwarding same to the clerk of court.” 8 Act of March 3, 1933, § 75 (c): “(c) At any time within five years after this section takes effect, a petition may be filed by any farmer, stating that the farmer is insolvent or unable to meet his debts as they mature, and that it is 512 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. August 28, 1935, subsection (n) was changed to comport with subsection 75 (s), permitting a petitioner to amend and ask “to be adjudged a bankrupt.” We are of the opinion that it is the date of filing this request for adjudication as bankrupt which fixes “the line of cleavage” as to the property. This conclusion is really in conformity with the reasoning governing the rule in the General Bankruptcy Act. There the first petition seeks an adjudication in bankruptcy. Under § 75, it is only the later amendment which does.10 As the 120 acres had been reconveyed to the petitioner prior to his filing of the petition of October 11, 1935, seeking adjudication as a bankrupt, his interest in the 120 acres was subject to bankruptcy jurisdiction. As the land was reconveyed to the petitioner prior to the decree of foreclosure, petitioner was an owner entitled to redeem after the sale. Ind. Stat. Ann. (Bums, 1933) c. 40. The amendment of October 11, 1935, was the first opportunity to bring the 120 acres desirable to effect a composition or an extension of time to pay his debts. The petition or answer of the farmer shall be accompanied by his schedules. The petition and answer shall be filed with the court, but shall, on request of the farmer or creditor, be received by the conciliation commissioner for the county in which the farmer resides and promptly transmitted by him to the clerk of the court for filing. If any such petition is filed, an order of adjudication shall not be entered except as provided hereinafter in this section.” “Section 75 as originally enacted was a part of Chapter VIII of the Bankruptcy Act, approved March 3, 1933, and did not contemplate an adjudication in bankruptcy. Section 73 of that Chapter reads as follows: “Sec. 73. Additional Jurisdiction.—In addition to the jurisdiction exercised in voluntary and involuntary proceedings to adjudge persons bankrupt, courts of bankruptcy shall exercise original jurisdiction in proceedings for the relief of debtors, as provided in sections 74, 75, and 77 of this Act.” The Amendments of Bankruptcy Rules, Order of June 1, 1936, 298 U. S. 695, are based upon petitions for composition rather than bankruptcy. See particularly General Order L, p. 701. WRIGHT v. UNION CENTRAL INS. CO. 513 502 Opinion of the Court. into the jurisdiction of the Bankruptcy Court, and we think it had that effect. Second. The conclusion that all the lands in controversy, except the 80.31-acre tract, are within the jurisdiction of the Bankruptcy Court under the petitioner’s amendment asking to be adjudged a bankrupt and are lands subject to petitioner’s right of redemption, as extended by subsection (n) of § 75, requires the reversal of the judgments below, as to these lands, unless the provisions of § 75 (n), extending the period of redemption, are unconstitutional. Respondent insists that these provisions are a direct invasion of the State’s rights under the Tenth Amendment and violative of the respondent’s own rights, by virtue of its title acquired by purchase at the judicial sale, in contravention of the Fifth Amendment. The right of the Congress to legislate on the subject of bankruptcies is granted by the Constitution in general terms. “The Congress shall have power ... To establish . . . uniform laws on the subject of Bankruptcies throughout the United States,” Article I, § 8, clause 4. To this specific grant, there must be added the powers of the general grant of clause eighteen. “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . The subject of bankruptcies is incapable of final definition. The concept changes. It has been recognized that it is not limited to the connotation of the phrase in England or the States, at the time of the formulation of the Constitution.11 An adjudication in bankruptcy is not essential to the jurisdiction. The subject of bankruptcies is nothing less than “the subject of the relations between an insolvent or nonpaying or fraudulent debtor and his 11 Adair v. Bank of America Assn., 303 U. S. 350, 354; Continental Bank v. Chicago, R. I. & P. Ry. Co., 294 U. S. 648, 668. 81638°—38---33 514 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. creditors, extending to his and their relief.”12 This definition of Judge Blatchford, afterwards a member of this Court, has been cited with approval here.13 The development of bankruptcy legislation has been towards relieving the honest debtor from oppressive indebtedness and permitting him to start afresh.14 By the Act of March 3, 1933, the Congress deliberately undertook the rehabilitation of the debtor as well as his discharge from indebtedness.15 This legislation for rehabilitation has been upheld as within the subject of bankruptcies.16 But respondent urges that under the Bankruptcy Clause Congress is confined to legislation for the adjustment of the debtor-creditor relationship, and insists that the purchaser at an Indiana judicial sale is not a creditor but a grantee with rights acquired by the purchase, separate and distinct from the rights and obligations arising from the creation of the debt. While there may be no relation of debtor and creditor between the bankrupt and the purchaser of his property at judicial sale, we think the purchaser at a judicial sale does enter into the radius of the bankruptcy power over debts. His purchase is in the liquidation of the indebtedness. The debtor has a right of redemption of which the purchaser is advised, and until that right of redemption expires the rights of the purchaser are subject to the power of the Congress over the relationship of debtor and creditor and its power to legislate for the rehabilitation of the debtor. The person whose land has been sold at fore- 13 In re Reiman, 20 Fed. Cas. 490. 13 Continental Bank v. Chicago, R. I. & P. Ry. Co., supra, 672; United States v. Bekins, ante, pp. 27, 47; Hanover National Bank v. Moyses, 186 U. S. 181, 187. 14 Williams v. U. S. Fidelity & G. Co., 236 U. S. 549, 554, 555; Louisville Bank v. Radford, 295 U. S. 555, 582. "Adair n. Bank of America Assn., supra, pp. 354, 355, notes 2 and 3. 16 Wright v, Vinton Branch, 300 U. S. 440, 456. WRIGHT v. UNION CENTRAL INS. CO. 515 502 Opinion of the Court. closure sale and now holds a right of redemption is, for all practical purposes, in the same debt situation as an ordinary mortgagor in default: both are faced with the same ultimate prospect, either of paying a certain sum of money, or of being completely divested of their land. We think the provision for the extension of the period of redemption comes clearly within the power of the Congress under the bankruptcy clause. But respondent presses a further argument that the Fifth and Tenth Amendments are violated. (a) The Fifth Amendment is said to be violated and the property of respondent, the purchaser at the judicial sale, taken without due process,17 by the provision for extension of the time of redemption. Section 75 (n) provides that “the period of redemption shall be extended ... for the period necessary for the purpose of carrying out the provisions of this section.” The stay may be approved for the period during which the debtor seeks to effect a composition,18 and, as contemplated by § 75 (s), for a moratorium period not exceeding three years, during which the court’s equitable supervision over the land continues, and a reasonable rental is required.19 That such an extension is consonant with the due process clause of the Fifth Amendment is indicated by our decision in Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, where we held that neither the due process clause of the Fourteenth Amendment nor the contracts clause was violated by an emergency state statute authorizing extension of the period of redemption from foreclosure sales, for a just and equitable period not exceeding two years, conditioned on payment by the mortgagor of a reasonable rental, as directed by the court. 17 Compare Louisville Bank v. Radford, 295 U. S. 555, 601. 18 Cf. Adair v. Bank of America Assn., 303 U. S'. 350. 18 See Wright v. Vinton Branch, 300 U. S. 440, 460 et seq. 516 OCTOBER TERM, 1937. Opinion of the Court. 304 U. 8. The mortgage contract was made subject to constitutional power in the Congress to legislate on the subject of bankruptcies. Impliedly, this was written into the contract between petitioner and respondent. “Not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.” 20 And the fact that in this case the purchaser at the foreclosure sale was also the mortgagee is not a determining factor. Any purchaser at a judicial sale must purchase subject to the possibility of the exercise of the bankruptcy power in a manner consonant with the Fifth Amendment. We have held that § 75 (s) does not unconstitutionally affect the rights of the mortgagee.21 We do not think the provision for extension of the period of redemption in § 75 (n) is invalid. The rights of the purchaser are preserved, the possibility of enjoyment is merely delayed. The rights of a purchaser, who under the state law is entitled to the redemption money or possession within a year, are not substantially different from those of a mortgagee entitled, on the maturity of the obligation, to payment or sale of the property. (b) In view of our decision that the law is within the bankruptcy power, scant reliance can be placed on the Tenth Amendment. Respondent argues that to subject property bought in at a foreclosure sale to the extended redemption period and other provisions of § 75 (s) “would be a direct invasion of the powers reserved to the State by the Constitution, and a violation of [respondent’s] property rights theretofore determined by the courts of the State of Indiana in accordance with the law of that State.” 20 Home Bldg. & Loan Assn. v. Blaisdell, supra, at page 435. 21 Wright v. Vinton Branch, supra. WRIGHT v. UNION CENTRAL INS. CO. 517 502 Opinion of the Court. If the argument is that Congress has no power to alter property rights, because the regulation of rights in property is a matter reserved to the States, it is futile. Bankruptcy proceedings constantly modify and affect the property rights established by state law. A familiar instance is the invalidation of transfers working a preference, though valid under state law when made. Recent decisions illustrate other instances: “A court of bankruptcy may affect the interests of lien holders in many ways. To carry out the purposes of the Bankruptcy Act, it may direct that all liens upon property forming a part of the bankrupt’s estate be marshalled; or that the property be sold free of encumbrances and the rights of all lien holders be transferred to the proceeds of the sale. Van Huffel v. Harkelrode, 284 U. S. 225, 227. Despite the peremptory terms of a pledge, it may enjoin sale of the collateral, if it finds that the sale would hinder or delay preparation or consummation of a plan of reorganization. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. Ry. Co., 294 U. S. 648, 680-681. It may enjoin like action by a mortgagee which would defeat the purpose of [§ 75] subsection (s) to effect rehabilitation of the farmer mortgagor.” Wright v. Vinton Branch, 300 U. S. at 470.22 Such action does not indicate a disregard of the property rights created by state law. The state law still establishes the norm to which Congress must substantially adhere; a serious departure from this norm, i. e., from the quality of the property rights created by the state law, has led to condemnation of the federal action as constituting a deprivation of property without due process.23 22 See also Adair v. Bank of America Assn., supra, restricting the enforcement of a mortgage upon the gross proceeds of a crop. 28 Louisville Bank v. Radford, 295 U. S. 555. 518 OCTOBER TERM, 1937. Syllabus. 304 U. S. Property rights do not gain any absolute inviolability in the bankruptcy court because created and protected by state law. Most property rights are so created and protected. But if Congress is acting within its bankruptcy power, it may authorize the bankruptcy court to affect these property rights, provided the limitations of the due process clause are observed. In so far as the judgments below struck from the schedules the 80.31-acre tract and refused to permit amendment to show the character of appellant’s interest, they are affirmed. As to the rest of the land in question, they are reversed. Affirmed in part; reversed in part. Mr. Justice Cardozo took no part in the consideration or decision of this case. COLLINS et al. v. YOSEMITE PARK & CURRY CO. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. No. 870. Argued April 27, 28, 1938.—Decided May 31, 1938. 1. The United States, owning land set aside as a national park within the boundaries of a State, may constitutionally accept from the State a cession of jurisdiction over it. The jurisdiction ceded need not be exclusive but may be limited by reservations of powers in the State, such as the power to tax persons and their property on the land included. Pp. 527, 530. It is not essential to valid acquisition of jurisdiction by cession from a State that the land involved shall be acquired by the United States for one of the purposes specified in Clause 17, § 8, Art. I, of the Constitution. P. 528. 2. The territory embraced in the Yosemite National Park in California was acquired by the United States under the Treaty of Guadalupe Hidalgo. Part of it, known as Yosemite Valley, was granted to the State, in 1864, for park and recreational pur- COLLINS v. YOSEMITE PARK CO. 519 518 Syllabus. poses, and was regranted to the United States by Act of the state legislature in 1905, at a time when another statute (Cal. Stat. 1891, c. 181) purported to cede to the United States, over land granted to it, jurisdiction for all purposes except the administration of the criminal laws of the State and the service of civil process. The other lands composing the Park have remained in the proprietorship of the United States since the time of the Treaty. By Act of April 15, 1919, California granted exclusive jurisdiction over the Park as a whole, saving certain rights, including the right “to tax persons and corporations, their franchises and property” on the lands included; and this was accepted by the Act of Congress of June 2, 1920. Held: (1) That whatever the status of jurisdiction existing at the time of their enactment, these Acts of cession and acceptance, of 1919 and 1920, are to be taken as declarations of the agreements, reached by the respective sovereignties, State and Nation, as to the future jurisdiction and rights of each in the entire area of Yosemite National Park. P. 528. (2) Distinguished from the right to tax, the power to regulate the sale and use of alcoholic beverages was not reserved by the State, and such regulations are not enforceable in the Park. P. 530. (3) The reservation of the right to tax is to be construed without employing the rule of strict construction applied to grants limiting a state’s taxing power. P. 432. (4) This reservation does not authorize the State to exact, for the sale or importation of alcoholic beverages in the Park, the fees for licenses which are provided by § 5 of the California Alcoholic Beverage Control Act, those provisions being regulatory in character. P. 533. This is not a case where provisions requiring a license may be treated as separable from regulations applicable to those licensed. Here the regulatory provisions appear in the form of conditions to be satisfied before a license may be granted. (5) The reservation, however, does authorize the State to tax sales in the Park, under §§23 and 24 of the Act cited. P. 534. 3. A corporation operating hotels, camps and stores in the Yosemite National Park, under a contract with the Secretary of the Interior obliging it to pay over to him a portion of its excess profits, imported beer, wine and spirits from places outside of California and retailed them to customers in the Park at prices approved by the Secretary. The California Alcoholic Beverage Control Act 520 OCTOBER TERM, 1937. Counsel for Parties. 304 U. S. imposes a tax per unit sold upon beer and wine sold “in this State” by an importer, and upon distilled spirits sold “in this State” by a rectifier or wholesaler thereof. It defines the term “in this State” as embracing all territory within the geographical limits of the State. Held: (1) That the company is taxable on its sales. P. 534. These tax provisions are separable from the licensing and regulatory provisions of the Act. Although the company does not import beverages into California within the meaning of the Twenty-First Amendment, for the purposes of the Act it is an importer making sales “within this State.” There is nothing in the Act restricting these taxing provisions to sales made by or to persons licensed under the Act. Although the company is neither a manufacturer nor a rectifier, the tax on its sales of distilled spirits is sustainable under a provision (§ 33) that “in exceptional instances” the state enforcing agency may sell stamps, evidencing payment of tax, “to on- and off-sale distilled spirits licensees and other persons.” (2) Objection that collection of the taxes may interfere with an agency of the United States and may be taken in part from the United States, because of its interest in the profits from the contract, is answered by the fact that the United States, by its acceptance of qualified jurisdiction over the Park, has consented to such taxation. P. 536. 4. The Twenty-First Amendment did not confer upon a State the power to regulate the importation of intoxicating liquors into territory over which it has ceded to the United States exclusive jurisdiction. P. 536. 20 F. Supp. 1009, reversed. Appeal from a decree of a District Court of three judges, which permanently enjoined the appellants, members of the Board of Equalization of California and the state Attorney General, from enforcing the California Beverage Control Act against the appellee, with respect to sales of intoxicating liquors in the Yosemite National Park. Mr. Seibert L. Sefton, Deputy Attorney General of California, with whom Mr. U. S. Webb, Attorney General, was on the brief, for appellants. COLLINS v. YOSEMITE PARK CO. 521 518 Opinion of the Court. Mr. James S. Moore, Jr., with whom Messrs. Herman Phleger, Maurice E. Harrison, and Gregory A. Harrison were on the brief, for appellee. Solicitor General Jackson filed a memorandum on behalf of the United States. Mr. Justice Reed delivered the opinion of the Court. Appellee, the Yosemite Park and Curry Co., brought this suit to enjoin the State Board of Equalization and the State Attorney General from enforcing the “Alcoholic Beverage Control Act” of the State of California,1 within the limits of Yosemite National Park. Appellee is engaged in operating, within the Park, hotels, camps, and stores, under a contract with the Secretary of the Interior, leasing portions of the Park to appellee for a 20-year term. The contract, expressly intended to implement the Congressional desire to make the Park a resort and playground for the benefit of the public, places upon appellee the duty of furnishing visitors with sundry facilities and accommodations. If it pays dividends in excess of 6% on its investment it must pay to the Secretary of the Interior a sum equal to 25% of the excess during the first ten years, and 22^%% of any excess over 6% earned during the second ten years. Appellee sells liquors, beer and wine to Park visitors for prices approved by the Secretary of the Interior. In the ordinary course of business, it imports from places outside of California beer, wine, and distilled spirits, which it stores and sells within the Park. According to the allegations of appellee’s bill, appellants (defendants below) assert that the Alcoholic Beverage Control Act applies within the Park and that appellee is obligated to apply for permits for importation and 1 Cal. Stat. 1935, c. 330, as amended, Cal. Stat. 1937, c. 681, 758. 522 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. sale; that appellee is subject to provisions of the Act prohibiting the issuance of importer’s licenses to persons holding on-sale retail licenses, and vice versa; that appellee must pay fees and taxes imposed by the Act or be subject to penalties. Allegation was made that appellants threaten to seize beverages on or being transported to appellee’s premises, demand rendition of reports and keeping of accounts, and threaten to institute civil and criminal proceedings against appellee for violation of the Act. On the other hand, appellee’s allegations continue, the Secretary of the Interior, under the contract of lease, has approved prices making no allowance for taxes, and has instructed appellee to apply for no license and to pay no tax under the California Act, and that payment of such license fees or taxes will not be allowed as an operating expense under the contract. Appellee brought this suit to restrain enforcement of the Alcoholic Beverage Control Act within Yosemite Park, on the theory that the Park is within the exclusive jurisdiction of the United States. The suit being one to restrain the enforcement of a state statute as applied to a specific situation, a three-judge court was convened under § 266 of the Judicial Code, 28 U. S. C. § 380. The case was heard below upon motion to dismiss the complaint. The District Court denied this motion. It granted a temporary injunction, 20 F. Supp. 1009, and later granted the final injunction prayed for by the complaint, restraining appellants (a) from entering upon appellee’s premises, examining its records, seizing its beverages, or interfering with its importation and sales of beverage within the Park; (b) from interfering with shipments to appellee from outside the State; (c) from instituting any actions based on alleged violations of the Act with respect to the importation, possession, or sale of liquors; (d) from requiring reports thereon; (e) from enforcing the Act as to transactions within the Park. COLLINS v. YOSEMITE PARK CO. 523 518 Opinion of the Court. The District Court, after noting that Yosemite National Park consists of Yosemite Valley and considerable surrounding territory, first discussed what it conceived to be the situation in the Valley.2 It reviewed the history of the land: The United States acquired it in 1848 under the Treaty of Guadalupe Hidalgo,3 reserved proprietary rights when California became a State in 1850,4 and on June 30, 1864, gave the Valley to California in trust for public park and recreational purposes.5 The District Court held that exclusive jurisdiction over the land was acquired again by the United States by virtue of the joint operation of three statutes: an 1891 California law ceding to the United States exclusive jurisdiction over such land as might be ceded to it;6 a 1905 California statute re-ceding the Valley to the United States;7 and the Act of June 11, 1906, 2 The discussion applies equally to the Mariposa Big Tree Grove. 3 9 Stat. 922. 4 9 Stat. 452. 313 Stat. 325. 8 “Section 1. The State of California hereby cedes to the United States of America exclusive jurisdiction over such piece or parcel of land as may have been or may be hereafter ceded or conveyed to the United States, during the time the United States shall be or remain the owner thereof, for all purposes except the administration of the criminal laws of this State and the service of civil process therein.” Cal. Stat. 1891, c. 181. 7 “An act to recede and regrant unto the United States of America, the ‘Yosemite Valley,’ and the land embracing the ‘Mariposa Big Tree Grove.’ “Section 1. The State of California does hereby recede and regrant unto the United States of America, the 'Cleft’ or 'Gorge’ in the granite peak of the Sierra Nevada mountains, situated in the county of Mariposa, State of California, and the headwaters of the Merced river, and known as the Yosemite Valley, with its branches or spurs, granted unto the State of California in trust for public use, resort and recreation by the act of congress entitled 'An act authorizing a grant to the State of California of the Yosemite Valley and of the land embracing the ‘Mariposa Big Tree Grove,’ approved June 30th, 1864; and 524 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. whereby Congress accepted the regrant and constituted the Valley a part of the Yosemite National Park.* 8 It further held, over appellants’ objection, that there was no constitutional obstacle to the acquisition by the United States of exclusive jurisdiction over land ceded to it for national park purposes. Jurisdiction over the the State of California does hereby relinquish unto the United States of America and resign the trusts created and granted by the said act of congress. “Sec. 3. This act shall take effect from and after acceptance by the United States of America of the recessions and regrants herein made, thereby forever releasing the State of California from further cost of maintaining the said premises, the same to be held for all time by the United States of America for public use, resort and recreation, and imposing on the United States of America the cost of maintaining the same as a national park. Provided, however, that the recession and regrant hereby made shall not affect vested rights and interests of third persons.” Cal. Stat. 1905, c. 60. 8“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the recession and regranting unto the United States by the State of California of the cleft or gorge in the granite peak of the Sierra Nevada Mountains, situated in the county of Mariposa, State of California, and the headwaters of the Merced River, and known as the Yosemite Valley, with its branches or spurs, granted unto the State of California in trust for public use, resort, and recreation by the Act of Congress entitled ‘An Act authorizing a grant to the State of California of the Yosemite Valley and of the land embracing the Mariposa Big Tree Grove,’ approved June thirtieth, eighteen hundred and sixty-four (Thirteenth Statutes, page three hundred and twenty-five), as well as the tracts embracing what is known as the ‘Mariposa Big Tree Grove,’ likewise granted unto the State of California by the aforesaid Act of Congress, is hereby ratified and accepted, and the tracts of lands embracing the Yosemite Valley and the Mariposa Big Tree Grove, as described in the Act of Congress approved June thirtieth, eighteen hundred and sixty-four, together with that part of fractional sections five and six, township five south, range twenty-two east, Mount Diablo meridian, California, lying south of the South Fork of Merced River and almost wholly between the Mariposa Big Tree Grove and the present south boundary of the Yosemite National Park, be, and the same are hereby, COLLINS v. YOSEMITE PARK CO. 525 518 Opinion of the Court. rest of the Park, it concluded, was in the State until April 15, 1919, when it was offered to the National Government (which had always retained the proprietary interest) in a statute saving to the State, inter alia, “the right to tax persons and corporations, their franchises and property on the lands included in said parks.”* 9 Ju reserved and withdrawn from settlement, occupancy, or sale under the laws of the United States and set apart as reserved forest lands, subject to all the limitations, conditions, and provisions of the Act of Congress approved October first, eighteen hundred and ninety, entitled ‘An Act to set apart certain tracts of land in the State of California as forest reservations/ as well as the limitations, conditions, and provisions of the Act of Congress approved February seventh, nineteen hundred and five, entitled ‘An Act to exclude from the Yosemite National Park, California, certain lands therein described, and to attach and include the said lands in the Sierra Forest Reserve,’ and shall hereafter form a part of the Yosemite National Park.” 34 Stat. 831. 9 “An Act to cede to the United States exclusive jurisdiction over Yosemite national park, Sequoia national park, and General Grant national park in the State of California. “Section 1. Exclusive jurisdiction shall be and the same is hereby ceded to the United States over and within all of the territory which is now or may hereafter be included in those several tracts of land in the State of California set aside and dedicated for park purposes by the United States as ‘Yosemite national park,’ ‘Sequoia national park,’ and ‘General Grant national park’ respectively; saving, however, to the State of California the right to serve civil or criminal process within the limits of the aforesaid parks in suits or prosecutions for or on account of rights acquired, obligations incurred or crimes committed in said state outside of said parks; and saving further, to the said state the right to tax persons and corporations, their franchises and property on the lands included in said parks, and the right to fix and collect license fees for fishing in said parks; and saving also to the persons residing in any of said parks now or hereafter the right to vote at all elections held within the county or counties in which said parks are situate; provided, however, that jurisdiction shall not vest until the United States through the proper officer notifies the State of California that they assume police jurisdiction over said parks.” Cal. Stat. 1919, c. 51. 526 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. risdiction of the Park was assumed by the United States by Act of June 2, 1920, which referred to the state act, including its reservation of a power to tax.10 The District Court held this reservation inapplicable, on the ground that the Alcoholic Beverage Act is chiefly regulatory in nature rather than a revenue measure. Concluding that the United States had exclusive jurisdiction over the land in question, the District Court enjoined the enforcement of the state Act. From this final decree of injunction, a direct appeal to this Court was taken under §§ 238 and 266 of thé Judicial Code. Several questions were argued on the appeal. At this point, reference may be confined to appellants’ contention that the United States has no “41 Stat. 731, 16 U. S. C. § 57. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of the act of the Legislature of the State of California (approved April 15,1919), ceding to the United States exclusive jurisdiction over the territory embraced and included within the Yosemite National Park, Sequoia National Park, and General Grant National Park, respectively, are hereby accepted and sole and exclusive jurisdiction is hereby assumed by the United States over such territory, saving, however, to the said State of California the right to serve civil or criminal process within the limits of the aforesaid parks or either of them in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed in said State outside of said parks; and saving further to the said State the right to tax persons and corporations, their franchises and property on the lands included in said parks, and the right to fix and collect license fees for fishing in said parks; and saving also to the persons residing in any of said parks now or hereafter the right to vote at all elections held within the county or counties in which said parks are situated. All the laws applicable to places under sole and exclusive jurisdiction of the United States shall have force and effect in said parks or either of them. All fugitives from justice taking refuge in said parks, or either of them, shall be subject to the same laws as refugees from justice found in the State of California.” COLLINS v. YOSEMITE PARK CO. 527 518 Opinion of the Court. power under the Constitution to exercise exclusive jurisdiction over land ceded to it by a State for national park purposes. Pursuant to the Act of August 24, 1937, the Court certified to the Attorney General that in this cause was drawn in question the constitutionality of the Acts of June 11, 1906, 34 Stat. 831, and June 2, 1920, 41 Stat. 731, accepting exclusive jurisdiction over the areas which embrace the Yosemite National Park. The United States, regarding appellee’s argument as adequate, determined that it was not necessary to intervene. Exclusive jurisdiction. By the Act of March 3, 1905, see note 7, California ceded and granted the United States title to the “Cleft” or “Gorge,” known as Yosemite Valley and the Mariposa Big Tree Grove. As the Act of March 31, 1891, was then in force, see note 6, exclusive jurisdiction, with the exception of right to administer criminal laws and serve civil process, passed to the United States, on its acceptance, unless the United States was without constitutional power to exercise it. By the Act of June 11, 1906, see note 8, the Congress accepted the cession and made the lands conveyed a part of the Yosemite National Park. The other lands composing the Park had been in the proprietorship of the national government since cession by Mexico. Exclusive jurisdiction of them passed from the United States to California by the admittance of that State to the Union. Except for certain rights expressly reserved, exclusive jurisdiction of these lands was granted to the United States by the Act of April 15, 1919, see note 9, and accepted by the Congress on June 2, 1920, see note 10. As this Act granted exclusive jurisdiction over all “territory which is now or may hereafter be . . . included in . . . Yosemite National Park,” the language of the cession and acceptance is apt to determine exclusive jurisdiction, with the explicit reservations, of the Gorge also. 528 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. Whatever the existing status of jurisdiction at the time of their enactment, the Acts of cession and acceptance of 1919 and 1920 are to be taken as declarations of the agreements, reached by the respective sovereignties, State and Nation, as to the future jurisdiction and rights of each in the entire area of Yosemite National Park. As jurisdiction over the Gorge was created by one set of statutes and that over the rest of the Park by different legislation, this adjustment was desirable. The States of the Union and the National Government may make mutually satisfactory arrangements as to jurisdiction of territory within their borders and thus in a most effective way, cooperatively adjust problems flowing from our dual system of government.11 Jurisdiction obtained by consent or cession may be qualified by agreement or through offer and acceptance or ratification.11 12 It is a matter of arrangement. These arrangements the courts will recognize and respect. The State urges the constitutional inability of the National Government to accept exclusive jurisdiction of any land for purposes other than those specified in Clause 17, § 8, Article I of the Constitution.13 This clause has not been strictly construed. This Court at this term has given full consideration to the constitutional power of 11 Cf. Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525, 541; Hinder-lider v. LaPlata River & Cherry Creek Ditch Co., ante, pp. 92, 104. 12 James v. Dravo Contracting Co., 302 U. S. 134, 146; Silas Mason Co. v. Tax Commission, 302 U. S. 186, 203; Fort Leavenworth R. Co. v. Lowe, supra; Surplus Trading Co. v. Cook, 281 U. 8. 647, 651. 18 “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; , . .” COLLINS v. YOSEMITE PARK CO. 529 518 Opinion of the Court. the United States to acquire land under Clause 17 without taking exclusive jurisdiction.14 In that case, it was said: “Clause 17 contains no express stipulation that the consent of the State must be without reservations. We think that such a stipulation should not be implied. We are unable to reconcile such an implication with the freedom of the State and its admitted authority to refuse or qualify cessions of jurisdiction when purchases have been made without consent or property has been acquired by condemnation.” The clause is not the sole authority for the acquisition of jurisdiction. There is no question about the power of the United States to exercise jurisdiction secured by cession, though this is not provided for by Clause 17.15 And it has been held that such a cession may be qualified.16 It has never been necessary, heretofore, for this Court to determine whether or not the United States has the constitutional right to exercise jurisdiction over territory, within the geographical limits of a State, acquired for purposes other than those specified in Clause 17. It was raised but not decided in Arlington Hotel v. Fant, 278 U. S. 439, 454. It was assumed without discussion in Yellowstone Park Transportation Co. v. Gallatin County, 31 F. 2d 644.17 On account of the regulatory phases of the Alcoholic Beverage Control Act of California, it is necessary to determine that question here. The United States has large bodies of public lands. These properties are used for 14 James v. Dravo Contracting Co., 302 U. S. 134,148. KFort Leavenworth R. Co. v. Lowe, supra; Chicago, R. I. & P. Ry. Co. v. McGlinn, 114 U. S. 542; Benson v. United States, 146 U. S. 325; Arlington Hotel Co. v. Fant, 278 U. S. 439; United States v. Unzeuta, 281 U. S. 138; Surplus Trading Co. v. Cook, 281 U. 8. 647; Standard Oil Co. v. California, 291 U. S. 242; Yellowstone Park Transportation Co. v. Gallatin County, 31 F. 2d 644. 16 Fort Leavenworth R. Co. v. Lowe, supra. 11 Cf. Rainier Nat. Park Co. v. Martin, 18 F. Supp. 481. 81638°—38--34 530 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. forests, parks, ranges, wild life sanctuaries, flood control, and other purposes which are not covered by Clause 17. In Silas Mason Co. v. Tax Commission of Washington, 302 U. S. 186, we upheld in accordance with the arrangements of the State and National Governments the right of the United States to acquire private property for use in “the reclamation of arid and semiarid lands” and to hold its purchases subject to state jurisdiction. In other instances, it may be deemed important or desirable by the National Government and the State Government in which the particular property is located that exclusive jurisdiction be vested in the United States by cession or consent. No question is raised as to the authority to acquire land or provide for national parks. As the National Government may, “by virtue of its sovereignty” acquire lands within the borders of states by eminent domain and without their consent,18 the respective sovereignties should be in a position to adjust their jurisdictions. There is no constitutional objection to such an adjustment of rights. It follows that jurisdiction less than exclusive may be granted the United States. The jurisdiction over the Yosemite National Park is exclusively in the United States except as reserved to California, e. g., right to tax, by the Act of April 15, 1919. As there is no reservation of the right to control the sale or use of alcoholic beverages, such regulatory provisions as are found in the Act under consideration are unenforceable in the Park. Interpretation of Reservations. The lower court, in interpreting the language of the Acts of grant and acceptance was of the opinion that the saving of “the right to tax persons and corporations, their franchises and property” was not sufficiently broad to justify the collec- 18 James v. Dravo Contracting Co., supra, 147; Kohl v. United States, 91 U. S. 367, 371, 372. COLLINS v. YOSEMITE PARK CO. 531 518 Opinion of the Court. tion of fees for licenses under § 5 and sales under §§23 and 24 of the Alcoholic Beverage Control Act.* 1 11® The retention of the right to charge license fees for fishing 19 “Sec. 5. The following are the types of licenses to be issued under this act and the annual fees to be charged therefor. 1. Beer manufacturer’s license__________________________$750. 00 per year 2. Wine manufacturer’s license (to be computed only on the gallonage manufactured) five thousand gallons or less- 20. 00 per year Over five thousand gallons to twenty thousand gallons per year_______________________________________________ 40. 00 per year Over twenty thousand to one hundred thousand gallons per year___________________________________________ 75. 00 per year Over one hundred thousand to two hundred thousand gallons per year___________________________________ 100. 00 per year Over two hundred thousand gallons to one million gallons a year_____________________________________________ 150. 00 per year For each million gallons or fraction thereof over a million gallons an additional_______________________________ 100. 00 per year 3. Distilled spirits manufacturer’s license______________ 250. 00 per year 4. Still license__________________________________________ 10. 00 per year per still 5. Rectifier's license___________________________________ 250. 00 per year 6. Brandy manufacturer’s license_______________________ 150. 00 per year 7. Distilled spirits importer’s license----------------- no fee 8. Wine importer’s license______________________________ no fee 9. Beer importer’s license______________________________ no fee 10. Public warehouse license------------------------------- 10. 00 per year 11. Wine bottling or packaging license--------------------- 10. 00 per year 12. Beer bottling or packaging license------------------- 500. 00 per year 13. Distilled spirits wholesaler’s license________________ 250. 00 per year 14. Beer and wine wholesaler’s license_____________________ 50. 00 per year 15. Broker’s license______________________________________ 250. 00 per year 16. Retail package off-sale beer and wine license__________ 10. 00 per year 17. Retail package off-sale distilled spirits license for the first $10,000 retail sales per year______________________ 100. 00 per year For each $1,000 retail sales or fraction thereof over $10,000 per year----------------------------------- 10. 00 per year 18. Industrial alcohol dealer’s license------------------- 50. 00 per year 19. On-sale beer license___________________________________ 25. 00 per year 20. On-sale beer and wine license-------------------------- 75. 00 per year 21. On-sale beer and wine license for trains (per train)-- 15. 00 per year 22. On-sale beer and wine license for boats (per boat)___ 50. 00 per year 23. On-sale distilled spirits license------------------As set by the board 24. Distilled spirits manufacturer’s agents license______ 250. 00 per year” “Sec. 23. An excise tax is hereby imposed upon all beer and wine sold in this State by a manufacturer or importer, except as otherwise in this act provided, at the following rates: “(a) On all beer, sixty-two cents for every barrel containing thirty-one gallons, and at a proportionate rate for any other quantity; “(b) On all natural dry wines one cent per wine gallon and at a proportionate rate for any other quantity; (c) on all other still wines two cents per wine gallon and at a proportionate rate for any other 532 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. was considered an indication of abandonment of the right to enforce any other license fees; and finally, the regulatory character of the California enactment was deemed to mark it as non-enforceable under the reservation of the right to tax. As the respective acts of State and Nation were in the nature of a mutual declaration of rights, this is not an occasion for strict construction of a grant by a State limiting its taxing power. Without employing that rule, we are of the opinion that this language is sufficiently broad to cover excises on sales,20 but not the license fees quantity; (d) on champagne, sparkling wine, except sparkling hard cider, whether naturally or artificially carbonated one and one-half cents per half pint or fraction thereof, three cents per pint or fraction thereof greater than one-half pint, six cents per quart or fraction thereof greater than one pint; (e) on sparkling hard cider two cents per wine gallon and at a proportionate rate for any other quantity.” Statutes 1937, ch. 758; operative July 1, 1937. “Sec. 24. An excise tax is hereby imposed upon all distilled spirits sold in this State by rectifiers or wholesalers thereof, at the following rates: “On all distilled spirits of proof strength or less, two cents on each bottle containing two ounces or fraction thereof; five cents on each bottle containing eight ounces or fraction thereof greater than two ounces; ten cents on each bottle containing one pint or fraction thereof greater than a half-pint; sixteen cents on each bottle containing one-fifth gallon or fraction thereof greater than one pint; twenty cents on each bottle containing one quart or fraction thereof greater than one-fifth gallon; forty cents on each bottle containing one-half gallon or fraction thereof, greater than one quart; eighty cents on each bottle containing one gallon or fraction thereof greater than one-half gallon, and at a proportionate rate for any quantity. “All distilled spirits in excess of proof strength shall be taxed at double the above rate.” Statutes 1937, ch. 758; operative July 1, 1937. 20 Mid-Northern Oil Co. v. Walker, 268 U. S. 45, 49; Rainier Nat. Park Co. v. Martin, 18 F. Supp. 481, 486, affirmed, 302 U. S. 661, on the authority of the Walker case. In this view we need not consider appellants’ argument that the Constitution of California forbids the release of the taxing power. COLLINS v. YOSEMITE PARK CO. 533 518 Opinion of the Court. provided for by this Act. The fact that the “right to fix and collect license fees for fishing in said parks” was reserved, is not decisive. It may well be that the negotiators of the agreement considered such licenses regulatory in nature and therefore requiring express exception from the agreement for exclusive jurisdiction, in addition to the tax exception. (a) Licenses. As the State of California has in the area of the Yosemite National Park only the jurisdiction saved under the cession and acceptance acts of 1919 and. 1920, it does not have the power to regulate the liquor traffic in the Park. Except as to this reserved jurisdiction, California “put that area beyond the field of operation of her laws.” 21 While the State has, under its reservation, the right to use means to force collection of the taxes saved,22 it seems clear that the licenses required by § 5 go beyond aids to the collection of taxes and are truly regulatory in character. This is not a case where provisions requiring a license may be treated as separable from regulations applicable to those licensed.23 Here the regulatory provisions appear in the form of conditions to be satisfied before a license may be granted.24 The pro 21 Standard Oil Co. v. California, 291 U. S. 242. 22 Rainier National Park v. Martin, 18 F. Supp. 481, 488. 23 Cf. Electric Bond & Share Co. v. Securities & Exchange Comm’n, 303 U. S. 419. 24 Art. XX, § 22, of the California Constitution provides that the State Board of Equalization “shall have the power, in its discretion, to deny or revoke any specific liquor license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals.” The Alcoholic Beverage Control Act, Cal. Stat. 1935, c. 330, as amended Stat. 1937, c. 681, c. 758, contains, inter alia, provisions that no person may perform acts authorized by a license, Unless licensed (§ 3); that an importer’s license may be issued only to the holder of a manufacturer’s, rectifier’s, or wholesaler’s license, § 6 (d); that appli- 534 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. visions requiring licenses for the importation or sale of alcoholic beverages in the Park are invalid. (b) Excise Taxes. A different conclusion obtains, however, with respect to the excise tax provisions of the Alcoholic Beverage Control Act, laying a tax, at a specified rate per unit sold, on beer, wine, and distilled spirits sold “in this State.” The Park Company, seeking to bring the excise provisions of the Act within the principle stated above with respect to the license fee provisions, contends that, notwithstanding the separability clause,* 25 the taxing features cannot be separated from the regulatory features, and that “the Act does not even purport to tax persons not subject to licensing requirements.” Thus the argument is made that § 23 imposes an excise tax on beer and wine sold by an importer, and applies not to the Company, which sells beverages direct to consumers, but only to importers licensed under the Act, and restricted by their license to sales to retail licensees. cation of a required type be filed for a license (§ 10); that no on-sale distilled spirits license shall be issued to any applicant who is not a citizen of the United States (§ 12); that no distilled spirits license may be issued to any person or agent of any person who manufactures distilled spirits within or without the State (§ 20%); that retail licenses may not be granted for premises in certain locations (§§ 13-17); that no retail on-sale or off-sale licensee shall purchase alcoholic beverages for resale from any person except a person holding a beer, or wine, manufacturer’s, a rectifier’s or a wholesaler’s license issued under this act (§ 6.6). 25 “Sec. 70. If any section, subsection, clause, sentence or phrase of this act which is reasonably separable from the remaining portion of this act is for any reason held to be unconstitutional, such decision shall not affect the remaining portions of this act. The Legislature hereby declares that it would have passed the remaining portions of this act irrespective of the fact that any such section, subsection, clause, sentence or phrase of this act be declared unconstitutional.” COLLINS v. YOSEMITE PARK CO. 535 518 Opinion of the Court. Neither party cites any pertinent state court decision. There is nothing in the statute itself compelling the conclusion that the excise tax and regulatory provisions are inseparable, or requiring the Court to overturn the presumptively correct determination of the administrative officers that the sales within the Park are subject to the excise tax. Section 23 provides that an excise tax is imposed upon beer and wine sold “in this State by [an] . . . importer.” Reference to provisions of the Act defining the terms used in this section26 makes it plain that although appellee Company does not import beverages into California within the meaning of the Twenty-First Amendment, it is an importer for purposes of the Act, and, as such, is subject to the tax. The Act is restricted to sales “in this State,” but that term embraces all territory within the geographical limits of the State.27 There is nothing in the Act restricting this taxing provision to sales made by or to persons licensed under the Act. Sec. 23 clearly applies to beer and wine sold by appellee Company in the Park, and it applies to such sales regardless of the applicability vel non of the regulatory or licensing provisions of the Act. Section 24 imposes an excise tax upon all distilled spirits “sold in this State by rectifiers or wholesalers.” Appellee Company does not come within the statutory 28 Sec. 2 (k): “ ‘Importer’ means any consignee of alcoholic beverages brought into this State from without this State when such alcoholic beverages are for delivery or use within this State, . . .” Sec. 2 (w): “ ‘Within this State’ means all territory within the boundaries of this State.” Sec. 2 (wl): “ ‘Without the State’ means all territory without the boundaries of the State.” 87 See supra, note 26. See boundary of State of California as defined in Cal. Const., Art. XXI, § 1. Compare Rainier Nat. Park Co. v. Martin, 18 F. Supp. 481, 486 (W. D. Wash.), affirmed 302 U. S. 661. 536 OCTOBER TERM, 1937. Opinion of the Court. 304 U. S. definition of either of these groups,28 but § 24 must be read in conjunction with § 33. Sec. 33 provides that the “tax imposed by § 24 of this act upon the sale of distilled spirits shall be collected from rectifiers and wholesalers of distilled spirits and payment of the tax shall be evidenced by stamps issued by the board to such rectifiers and wholesalers,” and continues with the provision that “in exceptional instances the board may sell such stamps to on- and off-sale distilled spirits licensees and other persons.” (Italics added.) In view of the atypical circumstances of the present case, we cannot consider erroneous an interpretation by the board that stamps, to be affixed to the liquor containers, might be issued and sold to appellee Company. These provisions, like § 23, are independent of any licensing or regulatory provisions of the Act, and may be enforced independently, as a purely tax or revenue measure. The objection that collection of the taxes may not only interfere with an agency of the United States but may be actually partly collected from the National Government because of its interest in the profits under the contract is fully answered by the fact that the United States, by its acceptance of qualified jurisdiction, has consented to such a tax.29 XXI Amendment. The State makes the point that § 2 of the XXI Amendment30 gives it the right to regulate 28 Sec. 2 (j) “ 'Rectifier’ means every person who colors, flavors, or otherwise processes distilled spirits by distillation, blending, percolating or other processes.” (s) “ 'Wholesaler’ means and includes every person other than a manufacturer or rectifier who is engaged in business, as a jobber or wholesale merchant, dealing in alcoholic beverages.” 29 Rainier Nat. Park Co. v. Martin, 302 U. S. 661; cf. Baltimore Nat. Bank v. State Tax Comm’n, 297 U. S. 209. 30 ''Sec. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” COLLINS v. YOSEMITE PARK CO. 537 518 Opinion of the Court. the importation of intoxicating liquors. Reliance for enforcement is placed upon §§49 and 49.2 of the Alcoholic Beverage Control Act.31 The argument for this claim is bottomed upon our decision in State Board of Equalization v. Young’s Market Co., 299 U. S. 59, where we held that a statute imposing a $500 license fee for importing and a $750 license fee for brewing beer did not violate 31 “Sec. 49. Alcoholic beverages shall be brought into this State from without this State for delivery or use within the State only when such alcoholic beverages are consigned to a licensed importer and only when consigned to the premises of such licensed importer or to the premises of a public warehouse licensed under this act. Alcoholic beverages which are consigned to a destination within this State shall be presumed to be for delivery or use within this State. Alcoholic beverages imported into this State contrary to the provisions hereof shall be seized by the board. Every person violating the provisions of this section shall be guilty of a misdemeanor.” Statutes 1937, ch. 758; operative July 1, 1937. “Sec. 49.2. Common or private carriers transporting alcoholic beverages into this State from without the State for delivery or use within this State must obtain the receipt of the licensed importer, distilled spirits manufacturer or distilled spirits manufacturer’s agent for the alcoholic beverages so transported and delivered and, if the consignee refuses to give such receipt and show his license to the carrier, the carrier shall be relieved of all responsibility for delivering said alcoholic beverages. Where the consignee is not a licensed importer, distilled spirits manufacturer or distilled spirits manufacturer’s agent or where the consignee refuses to give his receipt and show his license the carrier shall immediately notify the board at Sacramento giving full details as to the character of shipment, point of origin, destination and address of the consignor and consignee, and within ten days such alcoholic beverages shall be delivered to the board and shall be forfeited to the State of California. If any alcoholic beverages seized under the preceding section or forfeited under this section are sold by or under the direction of the board the common carrier’s unpaid freight and storage charges accruing on the shipments of such alcoholic beverages shall be satisfied out of the proceeds of any sale made by the State after deducting the cost of such sale and any excise taxes accruing thereon. Every person violating the provisions of this section shall be guilty of a misdemeanor.” Statutes 1937, ch. 758; operative July 1, 1937. 538 OCTOBER TERM, 1937. Opinion of the Court. 304U.S. the commerce clause or the equal protection clause, because the words of the XXI Amendment “are apt to confer upon the State the power to forbid all importations” and “the State may adopt a lesser degree of regulation than total prohibition” (pp. 62, 63) ,32 The lower court was of the opinion that though the Amendment may have increased “the state’s power to deal with the problem . . . , it did not increase its jurisdiction.” With this conclusion, we agree. As territorial jurisdiction over the Park was in the United States, the State could no.t legislate for the area merely on account of the XXI Amendment.33 There was no transportation into California “for delivery or use therein.” The delivery and use is in the Park, and under a distinct sovereignty. Where exclusive jurisdiction is in the United States, without power in the State to regulate alcoholic beverages, the XXI Amendment is not applicable.34 Conclusion. The bill of complaint states that the defendants, the state officials, “assert that said Alcoholic Beverage Control Act of the State of California applies to complainant’s operations within said Yosemite National Park; . . . that it is obligated to pay the fees and taxes imposed by said Act and is subject to the penalties thereof for the possession and sale of said beverages without compliance with the provisions of said Act.” In the prayer of the bill, the complainant prays for an injunction restraining the defendants “from enforcing in any manner within the limits of Yosemite National Park, or in respect of transactions within said Park, the Alcoholic Beverage Control Act of the State of California.” 32 The conclusions have been reiterated in Mahoney v. Joseph Triner Corp., ante, p. 401. 33 Standard OU Co. v. California, 291 U. S. 242. 34 Compare Western Union Telegraph Co. v. ChUes, 214 U. 8. 274; Yellowstone Park Transportation Co. v. Gallatin County, 31 F. 2d 644. COLLINS v. YOSEMITE PARK CO. 539 518 Opinion of the Court. The final decree forbids entering upon the premises of complainant; seizing, impeding or interfering with any shipments to complainant in Yosemite National Park; from instituting any actions or proceedings in any court of law or equity for violations or alleged violations of said Alcoholic Beverage Control Act in respect of the importation, possession or sale in the Park; from requiring or demanding reports on the importation, possession or sale of said beverages; from enforcing in any manner within the limits of Yosemite National Park, or in respect of transactions within said Park, the Alcoholic Beverage Control Act of the State of California. From the pleadings and decree it is clear that until now the controversy has turned not upon special provisions of the Act in question but upon its applicability as a whole. As in our judgment, as heretofore pointed out, the tax provisions are enforceable and the regulatory provisions unenforceable, it is necessary to reverse the decree and remand the cause to the District Court for a determination by the Court in accordance with this opinion of the applicability of such sections of the Act as the State may threaten to enforce. Reversed. Mr. Justice McReynolds is of opinion that the decree below should be reversed because as stated by counsel for appellants, “The acts of cession and acceptance reserved to the State the right to levy upon and collect from the appellee company the type of tax imposed by the Alcoholic Beverage Control Act.” Also, that discussion should be confined to that point. Mr. Justice Cardozo took no part in the consideration or decision of this case. DECISIONS PER CURIAM, ETC., FROM APRIL 12, 1938, THROUGH MAY 31, 1938.* No. 887. Eureka Productions, Inc. v. Lehman, Governor, et al. Appeal from the District Court of the United States for the Southern District of New York. Decided April 25, 1938. Per Curiam: The motion of the appellees to affirm is granted and the judgment is affirmed. Mutual Film Corp. v. Ohio Industrial Comm’n, 236 U. S. 230, 240, 241; Mutual Film Corp. n. Kansas, 236 U. S. 248, 258. Mr. Henry Pearlman for appellant. Mr. Henry Epstein, Solicitor General of New York, for appellees. No. 965. Tennessee Electric Power Co. v. Ickes, Administrator of the Federal Emergency Administration of Public Works. Appeal from the District Court of the United States for the District of Columbia. Decided April 25, 1938. Per Curiam: The motion of the appellee to affirm is granted and the decree of the District Court is affirmed. Alabama Power Co. v. Ickes, 302 U. S. 464; Duke Power Co. v. Greenwood County, 302 U. S. 485. Mr. Spencer Gordon for appellant. Acting Solicitor General Bell for appellees. Reported below: 22 F. Supp. 639. No. —, original. Ex parte Victor J. Evans. April 25, 1938. The motion for leave to file petition for writ of habeas corpus is denied. *Mr. Justice Cardozo was absent from the bench, on account of illness, during the period covered by this volume. For decisions on applications for certiorari, see post, pp. 552, 558; for rehearing, post, p. 586. 541 542 OCTOBER TERM, 1937. Decisions Per Curiam, Etc. 304 U. S. No. 511. New Negro Alliance et al. v. Sanitary Grocery Co. April 25, 1938. It is ordered that the opinion in this cause be amended (1) by striking out the last three sentences in the first full paragraph on page 5 and substituting therefor the following: “The Court of Appeals thought that the dispute was not a labor dispute within the Norris-LaGuardia Act because it did not involve terms and conditions of employment such as wages, hours, unionization or betterment of working conditions, and that the trial court, therefore, had jurisdiction to issue the injunction. We think the conclusion that the dispute was not a labor dispute within the meaning of the Act, because it did not involve terms and conditions of employment in the sense of wages, hours, unionization or betterment of working conditions is erroneous.”; (2) By striking out of the second full paragraph on page 6 the first and second sentences and so much of the third sentence as reads: “In the first place” and starting a new sentence with a capital “T”; (3) By striking out the words “In the second place” in the fourth sentence in the second full paragraph on page 6 and beginning the sentence with a capital “T.” Opinion reported as amended, 303 U. S. 552. Nos. 715 and 716. Wright v. Union Central Life Insurance Co. April 25, 1938. In view of the Act of August 24, 1937 (50 Stat. 751), the Court hereby certifies to the Attorney General of the United States that the constitutionality of § 75 of the Bankruptcy Act, as amended by the Act of August 28, 1935 (49 Stat. 942), is drawn in question in this cause. Messrs. Samuel E. Cook, Wm. Lemke, Elmer McClain, and Ray M. Foreman for petitioner. Messrs. Louis M. Mantynband, Stanley K. Henshaw, and Virgie D. Parish for respondent. Reported below: 91 F. 2d 894. OCTOBER TERM, 1937. 543 304 U. S. Decisions Per Curiam, Etc. No. 978. American National Bank v. Ames et al. April 25, 1938. It is ordered that execution pursuant to the judgment of the Supreme Court of Appeals of Virginia entered in this cause be, and the same is hereby, stayed pending action upon the petition for writ of certiorari. Messrs. George P. Barse, Tazewell Taylor, and L. E. Birdzell for petitioner. Messrs. Wm. G. Maupin and James E. Heath for respondent. Reported below: 169 Va. 711; 194 S. E. 784. No. 960. Arizona Publishing Co. v. O’Neil et al., Members of and Constituting the State Tax Commission of Arizona. Appeal from the District Court of the United States for the District of Arizona. Decided May 2, 1938. Per Curiam: The judgment is affirmed. Gros-jean v. American Press Co., 297 U. S. 233, 250; Associated Press v. Labor Board, 301 U. S. 103, 133; Giragi v. Moore, 301 U. S. 670. Messrs. Elisha Hanson and John Mason Ross for appellant. Mr. Allan K. Perry for appellees. Reported below: 22 F. Supp. 117. No. —, original. Ex parte Elza G. Wyatt. May 2, 1938. The motion for leave to file petition for writ of habeas corpus is denied. No. 18, original. Ex parte Tinkoff. May 2, 1938. Motion for leave to proceed in forma pauperis granted. Motion for leave to file petition for writ of certiorari also granted. Paysoff Tinkoff, pro se. No. 891. Philadelphia v. Union Traction Co. May 2, 1938. The application for writ of certiorari to the 544 OCTOBER TERM, 1937. Decisions Per Curiam, Etc. 304 U. S. Circuit Court of Appeals for the Third Circuit is dismissed as premature. Craig v. United States, 298 U. S. 637; Continental Oil Co. v. United States, 299 U. S. 510. Mr. G. Coe Farrier for petitioner. Messrs. Francis Shunk Brown and Joseph Gilfillan for respondent. No. 9, original. Nebraska v. Wyoming et al. May 2, 1938. After argument on the motion of the United States for leave to intervene and on the objections of the several States thereto, it was ordered that a proposed form of order be prepared by counsel and submitted for the consideration of the Court. No. 215. Tax Commission v. Wilbur et al., Co-trus-tees. Certiorari, 302 U. S. 668, to the Court of Appeals of Cuyahoga County, Ohio. Argued January 6, 1938. Decided May 16, 1938. Per Curiam: The writ of certiorari is dismissed as it appears upon argument that the judgment sought to be reviewed rests upon a non-federal ground adequate to support it. Cuyahoga Power Co. v. Northern Realty Co., 244 U. S. 300, 303, 304; Knights of Pythias v. Meyer, 265 U. S. 30, 32, 33; Lynch v. New York, 293 U. S. 52, 54, 55. Messrs. A. F. O’Neil, First Assistant Attorney General of Ohio, and Will P. Stephenson, with whom Messrs. Herbert S. Duffy, Attorney General of Ohio, and W. H. Middleton, Jr. were on the brief, for petitioner. Mr. Edwin H. Chaney, with whom Messrs. Harold T. Clark, Atlee Pomerene, and Howard L. Barkdull were on the brief, for respondents. By leave of Court, Mr. Mortimer M. Kassell filed a brief on behalf of the Tax Commission of the State of New York, as amicus curiae, in support of the petitioner. OCTOBER TERM, 1937. 545 304U.S. Decisions Per Curiam, Etc. No. —. Northern Pacific R. Co. et al. v. United States et al.; and No. —. Schmidt et al. v. United States et al. May-16, 1938. The applications, presented to the Chief Justice and referred by him to the Court, are denied. No. —, original. Ex parte Clarence M. Brummitt; and No. —, original. Ex parte Joseph J. McCarthy. May 16, 1938. Applications denied. No. 9, original. Nebraska v. Wyoming et al. Argued May 2, 1938. Decided May 16, 1938. The United States having moved for leave to intervene herein, and the States of Nebraska, Wyoming, and Colorado having filed their objections to the granting of such motion, and the Court having heard argument by counsel upon the motion and objections; It is now here ordered and adjudged as follows: 1. The motion of the United States for leave to intervene as a party herein is granted; 2. The United States shall have leave to file a petition of intervention within thirty days, with leave to the States of Nebraska, Wyoming, and Colorado within thirty days thereafter to file their answers thereto; 3. The record and testimony already received and exhibits filed shall stand as against the United States as the record of evidence in the cause to this date; but the United States shall be permitted to introduce such evidence as it may deem necessary to correct and supplement such testimony and exhibits; 81638°—38--35 546 OCTOBER TERM, 1937. Decisions Per Curiam, Etc. 304 U. S. 4. This order shall be without prejudice to the determination on final decree of any of the substantive questions of law or fact advanced or to be advanced by any of the parties herein; 5. The States of Nebraska, Wyoming, and Colorado agree, and it is hereby ordered that, the United States may amend its petition at any time hereafter during the proceedings herein; 6. The orders heretofore entered with respect to reference to the Special Master are hereby extended to include the issues raised or to be raised by the intervention of the United States. No. 1, original. Georgia v. Tennessee Copper Co. et al. May 16,1938. Decree entered vacating all orders and decrees which have heretofore been entered in this cause against The Ducktown Sulphur, Copper & Iron Company, Ltd., and Tennessee Copper Company excepting insofar as they relate to the taxation of costs, and the cause dismissed. A rule is ordered to issue returnable on May 26, next, requiring the Ducktown Chemical & Iron Company to show cause why it should not pay costs charged against the defendant Ducktown Sulphur, Copper & Iron Company, Ltd. Mr. M. J. Yeomans, Attorney General of Georgia, for complainant. Mr. R. M. McConnell for Tennessee Copper Co. No. 357. General Talking Pictures Corp. v. Western Electric Co. et al. May 16,1938. It is ordered that the opinion in this cause be amended by striking from the last sentence of the opinion the word “original” and by inserting in its place the word “continuation,” and by striking therefrom the words “the continuation applications” and inserting in their place the word “they.” As amended, the sentence reads as follows: “In the absence OCTOBER TERM, 1937. 547 304 U. S. Decisions Per Curiam, Etc. of intervening adverse rights for more than two years prior to the continuation applications, they were in time.” Reported as amended, ante, p. 175. No. 943. Conway v. Allen, Judge, et al. May 16, 1938. On suggestion of a diminution of the record the motion for a writ of certiorari to the Supreme Court of the State of Washington is denied. The petition for rehearing is also denied. Tom Conway, pro se. No appearance for respondent. No. 21, original. Ex parte National Labor Relations Board et al. May 16, 1938. Motion for leave to file petition for writs of prohibition and mandamus submitted by Mr. Solicitor General Jackson for the petitioners. The motion for leave to file the petition is granted and a rule is ordered to issue directed to the Honorable Joseph Buffington, the Honorable J. Warren Davis, the Honorable J. Whitaker Thompson, Circuit Judges of the Third Judicial Circuit, and the other judges and officers of the Circuit Court of Appeals for the Third Circuit, to show cause why the relief should not be granted as prayed. Said rule shall be returnable on Monday, May 23, at twelve o’clock, when the parties will be heard upon the question of the jurisdiction of the Circuit Court of Appeals to make the order complained of. Solicitor General Jackson and Mr. Robert B. Watts for petitioners. Messrs. Luther Day, Thomas F. Patton, Joseph W. Henderson, Thomas F. Veach and Mortimor S. Gordon for the Republic Steel Corporation. No. 980. McAlvay et al. v. Stockwell et al. Appeal from the Supreme Court of California. Decided May 23, 1938. Per Curiam: The appeal herein is dismissed for the want of jurisdiction. Section 237 (a), 548 OCTOBER TERM, 1937. Decisions Per Curiam, Etc. 304 U. S. Judicial Code, as amended by the Act of February 13, 1925 (43 Stat. 936, 937). Treating the papers whereon the appeal was allowed as a petition for a writ of certiorari, as required by § 237 (c), Judicial Code, as amended (43 Stat. 936, 938), certiorari is denied. Mr. Joseph L. Lew-inson for appellants. Mr. Nathan Newby for appellees. Reported below: 10 Cal. 2d 748 ; 74 P. 2d 504. No. 996. Hughes v. Wisconsin Tax Commission et al. Appeal from the Supreme Court of Wisconsin. Decided May 23, 1938. Per Curiam: The motion of the appellees to dismiss the appeal is granted and the appeal is dismissed for the want of a properly presented substantial federal question. (1) Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U. S. 341, 344; Whitney n. California, 274 U. S. 357, 360; White River Co. v. Arkansas, 279 U. S. 692, 700; Morris v. Alabama, 302 U. S. 642. (2) Lawrence N. State Tax Commission, 286 U. S. 276, 279-281; New York ex rel. Cohn v. Graves, 300 U. S. 308, 313. Mr. S. W. Jensch for appellant. Mr. Joseph E. Messerschmidt for appellees. Reported below: 227 Wis. 403; 278 N. W. 403. No. 997. Dromey, Administrator v. Wisconsin Tax Commission et al. Appeal from the Supreme Court of Wisconsin. Decided May 23, 1938. Per Curiam: The motion of the appellees to dismiss the appeal is granted and the appeal is dismissed for the want of a properly presented substantial federal question. (1) Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U. S. 341, 344; Whitney v. California, 274 U. S. 357, 360; White River Co. v. Arkansas, 279 U. S. 692, 700; Morris v. Alabama, 302 U. S. 642; (2) Lawrence v. State Tax Commission, 286 U. S. 276, 279-281; New York ex rel. Cohn v. Graves, 300 OCTOBER TERM, 1937. 549 304 U. S. Decisions Per Curiam, Etc. U. S. 308, 313; Mitchell v. United States, 21 Wall. 350, 353. Mr. S. W. Jensch for appellant. Mr. Joseph E. Messerschmidt for respondents. Reported below: 227 Wis. 400 ; 278 N. W. 400. No. 1010. Berman v. Illinois Bell Telephone Co. et al. Appeal from the District Court of the United States for the Northern District of Illinois. May 23,1938. Per Curiam: The motion to affirm is granted. Mr. Meyer Abrams for appellant. Messrs. Kenneth F. Burgess, Leslie N. Jones, and W. Clyde Jones for appellees. No. —, original. Ex parte Dennis J. McCarthy. May 23, 1938. Application denied. No. 16, original. Missouri v. Iowa. May 23, 1938. Samuel Williston, Esq., of Cambridge, Massachusetts, appointed Special Master in this cause. No. 993. Champlin Refining Co. v. Ryan, Secretary of State. Appeal from the Supreme Court of Kansas. Decided May 31, 1938. Per Curiam: The appeal herein is dismissed for the want of jurisdiction. Section 237 (a), Judicial Code, as amended by the act of February 13, 1925 (43 Stat. 936, 937). The petition for writ of certiorari is denied. Mr. Horace G. McKeever for appellant. No appearance for respondent. Reported below: 147 Kan. 160; 75 P. 2d 245. No. 1004. Mutual Benefit, Health & Accident Assn. v. Bowman. On petition for writ of certiorari to 550 OCTOBER TERM, 1937. Decisions Per Curiam, Etc. 304 U. S. the Circuit Court of Appeals for the Eighth Circuit. Decided May 31, 1938. Per Curiam: The petition for writ of certiorari is granted limited to the question of the right of respondent to recover under the law of New Mexico. • The judgment of the Circuit Court of Appeals is vacated and the cause is remanded to the Circuit Court of Appeals for determination of the question presented. Erie Railroad Co. N. Tompkins, ante, p. 64; New York Life Ins. Co. v. Jackson, ante, p. 261; Rosenthal v. New York Life Ins. Co., ante, p. 263. Messrs. John S. Leahy, Philip E. Horan, and William C. Michaels for petitioner. No appearance for respondent. Reported below: 96 F. 2d 7. No. 1045. Mosher v. American Surety Co. et al. Appeal from the Superior Court of Maricopa County, Arizona. Decided May 31, 1938. Per Curiam: The motion of the appellee to dismiss the appeal is granted and the appeal is dismissed for the want of jurisdiction. Section 237 (a), Judicial Code, as amended by the act of February 13,1925 (43 Stat. 936,937). Treating the papers whereon the appeal was allowed as a petition for a writ of certiorari as required by § 237 (c), Judicial Code, as amended (43 Stat. 936, 938), certiorari is denied. Mr. John W. Ray for appellants. Mr. Fred Blair Townsend for appellees. Reported below: 48 Ariz. 552. No. 948. Ned et al. v. Robinson. Appeal from the Supreme Court of Oklahoma. Decided May 31, 1938. Per Curiam: The appeal herein is dismissed for the want of jurisdiction. Section 237 (a), Judicial Code, as amended by the Act of February 13, 1925 (43 Stat. 936, 938). The petition for writ of certiorari is denied. Mr. H. A. Ledbetter for appellants. No appearance for appellee. Reported below: 181 Okla. 507; 74 P. 2d 1156. OCTOBER TERM, 1937. 551 304 U. S. Decisions Per Curiam, Etc. No. 1030. Oil Shares Incorporated v. Commercial Trust Co. et al. On petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit. Decided May 31, 1938. Per Curiam: The petition for writ of certiorari is granted, the decree of the Circuit Court of Appeals is reversed, and the decree of the District Court dismissing the complaint as to the respondent, Commercial Trust Company of New Jersey, is vacated. The cause is remanded to the District Court with instructions to set forth its findings of fact and conclusions of law in accordance with Equity Rule 70^. Mr. William M. Chadbourne for petitioner. Messrs. Thomas G. Haight and Albert C. Wall for respondents. Reported below: 94 F. 2d 751. No. —, original. Ex parte Merritt B. Schuyler. May 31, 1938. Application denied. No. 1, original. Georgia v. Tennessee Copper Co. et al. May 31, 1938. The return to the rule to show cause is received and ordered to be filed with leave to file a supplemental return on or before October 3, next. No. 11, original. Texas v. New Mexico. May 31, 1938. Motion for leave to file petition and brief on behalf of Belen-Ladera Acequia, as amicus curiae, denied. No. —, original. Ex parte Fowler, Administrator, et al. May 31, 1938. The motion for leave to file petition for writ of mandamus is denied. Reported below: 95 F. 2d 627. No. 313. Lone Star Gas Co. v. Texas et al. May 31, 1938. It is ordered that the opinion in this cause be amended by striking the word “interstate” from the ninth 552 OCTOBER TERM, 1937. Decisions Granting Certiorari. 304 U. S. line on page four thereof and substituting the word “intrastate” therefor, so that the sentence will read: “The fair value of its intrastate property was thus claimed to be $38,350,882.32 and the net amount available at the Commission’s rate for return on intrastate deliveries of gas as less than four per cent.” Reported as amended, ante, p. 224. No. 72. Crown Cork & Seal Co. v. Ferdinand Gutmann Co. May 31, 1938. The motion to amend the judgment is denied. Messrs. Thomas G. Haight and John J. Darby for petitioner. Mr. Wm. E. Warland for respondent. Reported below: 86 F. 2d 698. See ante, p. 159. DECISIONS GRANTING CERTIORARI, FROM APRIL 12, 1938, THROUGH MAY 31, 1938. No. 437. Hinderlider, State Engineer, et al. v. La-Plata River & Cherry Creek Ditch Co. See ante, p. 92. No. 877. Stahmann et al. v. Vidal, Collector of Internal Revenue. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit granted, limited to the question whether the petitioners were the proper parties to maintain the suit. Mr. Thornton Hardie for petitioners. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewdll Key and F. E. Youngman for respondent. Reported below: 93 F. 2d 902. No. 905. Davis v. Davis. April 25, 1938. Petition for writ of certiorari to the Court of Appeals for the OCTOBER TERM, 1937. 553 304 U. S. Decisions Granting Certiorari. District of Columbia granted. Mr. Joseph T. Sherier for petitioner. Mr. Crandall Mackey for respondent. Reported below: 96 F. 2d 512. No. 915. Federal Power Commission v. Metropolitan Edison Co. et al. April 28, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Mr. Justice Roberts took no part in the consideration or decision of this application. Solicitor General Jackson and Mr. Oswald Ryan for petitioner. Messrs. Walter Biddle Saul, C. Edward Paxson, Edward F. Huber, and Geo. J. Banigan for respondents. Reported below: 94 F. 2d 943. No. 18, original. Ex parte Paysoff Tinkoff. May 2, 1938. The motion for leave to proceed in forma pauperis is granted. The motion for leave to file petition for writ of certiorari is also granted. Paysoff Tinkoff, pro se. No. 904. Waialua Agricultural Co. v. Christian et al. ; and No. 909. Christian v. Waialua Agricultural Co. May 2, 1938. Petitions for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. Herman Phleger, Maurice E. Harrison, and J. Garner Anthony for the Waialua Agricultural Co. Messrs. M. C. Sloss and Charles M. Hite for Eliza R. P. Christian et al. Reported below: 93 F. 2d 603; 94 id. 806. No. 869. New York Life Ins. Co. v. Jackson et al. See ante, p. 261. 554 OCTOBER TERM, 1937. Decisions Granting Certiorari. 304 U. S. No. 924. Rosenthal v. New York Life Ins. Co. See ante, p. 263. No. 912. Davidson v. Commissioner of Internal Revenue. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Messrs. J. A. C. Kennedy and Ralph E. Svoboda for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key and Harry Marselli for respondent. Reported below: 94 F. 2d 300. No. 920. Stoll v. Gottlieb. May 16, 1938. Petition for writ of certiorari to the Supreme Court of Illinois granted. Messrs. A. W. Froehde and Russell F. Locke for petitioner. Mr. David J. Shipman for respondent. Reported below: 368 Ill. 88; 12 N. E. 2d 881. No. 934. United States v. Continental National Bank & Trust Co., Trustee, et al. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Solicitor General Jack-son for the United States. Mr. Herbert Pope for respondents. Reported below: 94 F. 2d 81. No. 941. Steelman, Trustee, v. All Continent Corp, et al. May 16,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Mr. Wm. Elmer Brown, Jr. for petitioner. Mr. Clarence L. Cole for respondents. Reported below: 96 F. 2d 20. OCTOBER TERM, 1937. 555 304 U. S. Decisions Granting Certiorari. No. 916. Consolidated Edison Co. et al. v. National Labor Relations Board et al. ; and No. 957. International Brotherhood of Electrical Workers et al. v. Same. May 16, 1938. Petitions for writs of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Wm. L. Ransom for petitioners in No. 916. Messrs. Isaac Lobe Straus and Claude A. Hope for petitioners in No. 957. Solicitor General Jackson, and Messrs. Robert L. Stern, Charles Fahy, and Laurence A. Knapp for the National Labor Relations Board et al. Reported below: 95 F. 2d 390. No. 921. Neblett et al. v. Carpenter, Insurance Commissioner, et al. May 16, 1938. Petition for writ of certiorari to the Supreme Court of California granted. Mr. Justice Reed took no part in the consideration or decision of this application. Messrs. William H. Neblett and R. Dean Warner for petitioners. Mr. U. S. Webb, Attorney General of California, and Miss Hester Webb for the Insurance Commissioner. Messrs. T. B. Cosgrove and John N. Cramer for Carroll C. Day et al. Reported below: 10 Cal. 2d 307; 74 P. 2d 761. No. 938. Hudson et al. v. Moonier. See ante, p. 397. No. 945. Hines, Administrator of Veterans’ Affairs, v. Lowrey, Committee. May 23, 1938. Petition for writ of certiorari to the Supreme Court of New York granted. Messrs. James T. Brady, Edward E. Odom, and Y. D. Mathes for petitioner. Mr. Louis J. Altkrug for respondent. 556 OCTOBER TERM, 1937. Decisions Granting Certiorari. 304 U. S. No. 966. Texas Consolidated Theatres, Inc., v. Pittman. May 23, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. Jos. W. Bailey, Jr. for petitioner. No appearance for respondent. Reported below: 93 F. 2d 21; 94 id. 203. No. 1004. Mutual Benefit, Health & Accident Assn. v. Bowman. May 31, 1938. See ante, p. 549. No. 1030. Oil Shares Inc. v. Commercial Trust Co. et al. See ante, p. 551. Nos. 396 and 1053. Kellogg Co. v. National Biscuit Co. May 31, 1938. See post, p. 586. No. 674. Schriber-Schroth Co. v. Cleveland Trust CO. ET AL.J No. 675. Aberdeen Motor Supply Co. v. Same; and No. 676.« F. E. Rowe Sales Co. v. Same. May 31, 1938. See post, p. 587. No. 984. Shields et al. v. Utah Idaho Central Railroad Co. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit granted. Solicitor General Jackson and Mr. Daniel W. Knowlton for petitioners. Messrs. J. H. DeVine and J. A. Howell for respondent. Reported below: 95 F. 2d 911. No. 1008. Colorado National Bank et al. v. Commissioner of Internal Revenue. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals OCTOBER TERM, 1937. 557 304 U. S. Decisions Granting Certiorari. for the Tenth Circuit granted. Messrs. Morrison Shaf-roth, W. W. Grant, and Henry W. Toll for petitioners. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key, Carlton Fox and 8. Dee Hanson for respondent. Reported below: 95 F» 2d 160. No. 1042. Lyeth v. Hoey, Collector of Internal Revenue. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Messrs. J. M. Richardson Lyeth, Will R. Gregg, and Allin H. Pierce for petitioner. Solicitor General Jackson for respondent. Reported below: 96 F. 2d 141. No. 1043. Scher v. United States. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Mr. A. L. Greenspun for petitioner. Solicitor General Jackson, Hugh A. Fisher, Mahlon D. Kiefer, and W. Marvin Smith for the United States. Reported below: 95 F. 2d 64. No. 1048. Harris et al. v. Avery Brundage Co. et al. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Mr. Benjamin F. J. Odell for petitioners. Mr. Sigmund W. David for respondents. Reported below: 95 F. 2d 373. No. 1016. Sovereign Camp of the Woodmen of the World v. Bolin et al. May 31, 1938. Petition for writ of certiorari to the Kansas City Court of Appeals, of Missouri, granted. Messrs. John T. Harding, D. A. Murphy, and Rainey T. Wells for petitioner. Mr. Ray Weightman for respondents. Reported below: 112 S. W. 2d 582. 558 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304U.S. DECISIONS DENYING CERTIORARI, FROM APRIL 12, 1938, THROUGH MAY 31, 1938. No. 927. Stokes et al. v. United States. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit, and motion for leave to proceed further in forma pauperis, denied, for the reason that the Court, upon examination of the papers herein submitted, finds that the application for writ of certiorari was not made within the time provided by law. Mr. James Frank Kemp for petitioners. No appearance for the United States. Reported below: 93 F. 2d 744. Nos. 928 and 929. Riffee v. Marion Steam Shovel Co.; No. 930. William Brammer et al. v. Alloy Cast Steel Co. et al. ; No. 931. Sherman Brammer v. Same; and No. 932. Noggle, Executrix, v. Same. April 25,1938. Petitions for writs of certiorari to the Supreme Court of Ohio, and motion for leave to proceed further in forma pauperis, denied. Messrs. Paul D. Smith and Thomas H. Sutherland for petitioners. No appearance for respondents. Reported below: 133 Ohio St. 109, 117, 118; 11 N. E. 2d 1022; 12 N. E. 2d 295. No. 943. Conway v. Allen, Judge, et al. April 25, 1938. Petition for writ of certiorari to the Supreme Court of Washington, and motion for leave to proceed further in forma pauperis, denied. Tom Conway, pro se. No appearance for respondent. No. 944. Sischo v. Aderhold, Warden. April 25, 1938. Petition for writ of certiorari to the Circuit Court OCTOBER TERM, 1937. 559 304U.S. Decisions Denying Certiorari. of Appeals for the Tenth Circuit, and motion for leave to proceed further in forma pauperis, denied. Wesley Leroy Sischo, pro se. No appearance for respondent. Reported below: 93 F. 2d 1015. No. 949. Lindsey et al. v. Washington. April 25, 1938. Petition for writ of certiorari to the Supreme Court of Washington, and motion for leave to proceed further in forma pauperis, denied. E. R. Lindsey, pro se. No appearance for respondent. Reported below: 94 Wash. Dec. No. 3, p. 93; 77 P. 2d 596. No. 829. Helvering, Commissioner of Internal Revenue, v. Kings County Development Co. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Acting Solicitor General Bell for petitioner. Mr. Bradford M. Melvin for respondent. Reported below: 93 F. 2d 33. No. 848. Gorney et al. v. Trustees of Milwaukee County Orphans Board. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. George C. Brown for petitioners. Mr. Albert B. Houghton for respondents. Reported below: 93 F. 2d 107. No. 850. Italia Flotte Riunite Cosulich et al. v. Katz et al. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Homer L. Loomis for petitioners. Mr. Forrest E. Single for respondents. Reported below: 93 F. 2d 1007. 560 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304 U. S. No. 858. Highway Engineering &' Construction Co. v. Hillsborough County. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Peter 0. Knight, C. Fred Thompson, George C. Bedell and John Bell for petitioner. Mr. W. F. Himes for respondent. Reported below: 94 F. 2d 419. No. 859. Sheehan, Administratrix, v. New York, N. H. & H. R. Co. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Thomas J. O’Neill for petitioner. Mr. Edward R. Brumley for respondent. Reported below: 93 F. 2d* 442. No. 861. Franklin Life Ins. Co. v. Staats. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Jerome F. Barnard for petitioner. Mr. A. B. Cole for respondent. Reported below: 94 F. 2d 481. No. 863. Atchison, T. & S. F. Ry. Co. v. Taylor. April 25, 1938. Petition for writ of certiorari to the Appellate Court, First District, of Illinois, denied. Mr. Charles H. Woods for petitioner. Messrs. Walter H. Newton and Mortimer H. Boutelle for respondent. Reported below: 292 Ill. App. 457; 11 N. E. 2d 610. No. 865. Motor Wheel Corp. v. Rubsam Corp. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Carroll R. Taber and James G. Martin for petitioner. Mr. Justin R. Whiting for respondent. Reported below: 92 F. 2d 129. OCTOBER TERM, 1937. 561 304 U. S. Decisions Denying Certiorari. No. 866. Illinois ex rel. Hakanson v. Palmer, Director. April 25, 1938. Petition for writ of certiorari to the Supreme Court of Illinois denied. Mr. Dean Lake Traxler for petitioner. Mr. Otto Kerner for respondent. Reported below: 367 Ill. 513; 11 N. E. 2d 931. No. 878. Molly-Es Doll Outfitters et al. v. Gruelle. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. Harry Langsam, Leon Sacks, and Peter P. Zion for petitioners. Messrs. Edward G. Curtis and Daniel L. Morris for respondent. Reported below: 94 F. 2d 172. No. 879. Cohen v. Swift & Co. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Greenberry Simmons and M. K. Hobbs for petitioner. Messrs. Henry Veeder and Albert H. Veeder for respondent. Reported below: 95 F. 2d 131. No. 880. Mershon et al. v. Sprague Specialties Co. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Messrs. Drury W. Cooper and C. Blake Townsend for petitioners. Mr. Vernon M. Dorsey for respondent. Reported below: 92 F. 2d 313. No. 883. County of Westchester v. Montrose Contracting Co. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. William A. Davidson and Francis 81638°—38---36 562 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304 U. S. J. Morgan for petitioner. Messrs. Howard G. Wilson and Frederick W. Newton for respondent. Reported below: 94 F. 2d 580. No. 884. Malone v. United States. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. John Weaver for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key, William H. Boyd, and A. M. Sellers for the United States. Reported below: 94 F. 2d 281. No. 885. Equitable Life Ins. Co. v. Germantown Trust Co., Trustee. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Phineas M. Henry for petitioner. Mr. J. Rich Guckes for respondent. Reported below: 94 F. 2d 898. No. 886. Wiese v. Commissioner of Internal Revenue. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. H. Kennedy McCook for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key and Morton K. Rothschild for respondent. Reported below: 93 F. 2d 921. No. 874. Fort Worth et al. v. Lone Star Gas Co. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. R. E. Rouer for petitioners. Messrs. Roy C. Coffee, Marshall Newcomb, and Ogden K. Shannon for respondent. Reported below: 93 F. 2d 584. OCTOBER TERM, 1937. 563 304 U. S. Decisions Denying Certiorari. No. 881. Warkentin v. Schlotfeldt, District Director of Immigration and Naturalization. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Charles P. Schwartz for petitioner. Solicitor General Jackson, Assistant Attorney General McMahon, and Messrs. William W. Barron and W. Marvin Smith for respondent. Reported below: 93 F. 2d 42. No. 889. Florence et al. v. Crummer. April 25. 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. William Lipscomb, Charles L. Black, and Ireland Graves for petitioners. Messrs. Dexter Hamilton and Blatchford Downing for respondent. Reported below: 93 F. 2d 542. No. 893. R. J. Reynolds Tobacco Co. v. Robertson, Collector of Internal Revenue. April 25, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Alexander H. Sands for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewdll Key and Lee A. Jackson for respondent. Reported below: 22 F. Supp. 187; 94 F. 2d 167. No. 910. Armstrong et al. v. Virginia Iron, Coal & Coke Co. April 25, 1938. Petition for writ of certiorari to the Supreme Court of Appeals of Virginia denied. Mr. William H. Werth for petitioners. Mr. Lewis A. Nuckols for respondent. Reported below: 169 Va. 306; 193S. E. 919. Nos. 917 and 918. Bergson v. Fidelity-Philadelphia Trust Co., Trustee. April 25, 1938. Petitions for 564 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304U.S. writs of certiorari to the Supreme Court of Pennsylvania denied. Mr. Walter B. Gibbons for petitioner. Mr. Joseph First for respondent. Reported below: 328 Pa. 547, 548; 196 A. 28, 30. No. 923. Cox v. McElligott, Fire Commissioner. April 25, 1938. Petition for writ of certiorari to the Supreme Court of New York denied. Mr. W. H. K. Davey for petitioner. Mr. Paxton Blair for respondent. Reported below: 276 N. Y. 604; 12 N. E. 2d 598. No. 19, original. Ex parte Basil H. Pollitt. May 2, 1938. The motion for leave to file petition for writ of certiorari is granted. Motion for leave to proceed further in forma pauperis and petition for writ of certiorari denied. Basil H. Pollitt, pro se. No. 1003. Hicks v. Indiana. May 2, 1938. On petition for writ of certiorari to the Supreme Court of Indiana. Motion for stay denied. Motion for leave to proceed further in forma pauperis and petition for writ of certiorari denied. Mr. Stephens L. Blakely for petitioner. No appearance for respondent. Reported below: 213 Ind.—; UN. E. 2d 171. No. 971. McDonald v. United States. May 2, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Claude L. Dawson for petitioner. No appearance for respondent. Reported below: 94 F. 2d 893. OCTOBER TERM, 1937. 565 304 U. S. Decisions Denying Certiorari. No. 981. Simpson v. Massachusetts. May 2, 1938. Petition for writ of certiorari to the Superior Court, County of Middlesex, Massachusetts, and motion for leave to proceed further in forma pauperis denied. Edward P. Simpson, pro se. Messrs. Paul A. Dever and James J. Ronan for respondent. Reported below: 13 N. E. 2d 939. . No. 985. Spruill v. Dorsey. May 2, 1938. Petition for writ of certiorari to the Court of Appeals for the District of Columbia, and motion for leave to proceed further in forma pauperis, denied. Georgia M. Spruill, pro se. No appearance for respondent. No. 891. Philadelphia v. Union Traction Co. See ante, p. 543. No. 969. Bartolini v. Massachusetts. May 2, 1938. Petition for writ of certiorari to the Superior Court, County of Norfolk, Massachusetts, denied. Mr. George B. Lourie for petitioner. Messrs. Paul A. Dever and James J. Ronan for respondent. Reported below: 13 N. E. 2d 382. No. 890. International Mercantile Marine Co. v. Lowe, Deputy Commissioner, U. S. Employees’ Compensation Comm’n, et al. May 2, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Ray Rood Allen for petitioner. No appearance for respondents. Reported below: 93 F. 2d 663. 566 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304 U. S. No. 894. Odom et al. v. New York Life Ins. Co. ; and No. 895. Odom et al. v. Same. May 2, 1938. Petition for writs of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. John R. L. Smith for petitioners. Messrs. Louis H. Cooke and Shepard Bryan for respondent. Reported below: 93 F. 2d 641. No. 897. New York Life Ins. Co. v. Golightly, Administrator, et al. May 2, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Louis H. Cooke and Earl King for petitioner. Mr. Abe D. Wdldauer for respondents. Reported below: 94 F. 2d 316. No. 898. Fox & London, Inc. v. Pennsylvania Railroad Co. May 2, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Ernie Adamson for petitioner. Mr. Martin Conboy for respondent. Reported below: 93 F. 2d 669. No. 900. Gulf Refining Co. et al. v. Norton, Deputy Commissioner, et al. May 2,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Frank H. Myers for petitioners. Solicitor General Jackson, Assistant Attorney General Whitaker, and Mr. Henry A. Jülicher for respondents. Reported below: 94 F. 2d 380. No. 903. Tampa Interocean Steamship Co. v. Jorgensen. May 2, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. George H. Terriberry, Jos. M. Rault, and Walter OCTOBER TERM, 1937. 567 304 U. S. Decisions Denying Certiorari. Carroll for petitioner. Mr. W. J. Waguespack for respondent. Reported below: 93 F. 2d 927. No. 906. Peoples Life Ins. Co. v. Whiteside, Administratrix, et al. May 2, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. William Lipscomb for petitioner. Mr. Ogden K. Shannon for respondents. Reported below: 94 F. 2d 409. No. 922. Pacific-Atlantic Steamship Co. et al. v. Weyerhaeuser Timber Co. et al. May 2, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Cletus Keating, William H. McGrann, and Richard Sullivan for petitioners. Messrs. T. Catesby Jones, D. Roger Englar, James W. Ryan, J. M. Richardson Lyeth, Chauncey I. Clark, and Burton H. White for respondents. Reported below: 94 F. 2d 834. No. 967. Wil-Low Cafeterias, Inc., et al. v. 650 Madison Avenue Corp. May 2, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. William M. Chadbourne, Samuel C. Duberstein, and Samuel Miller for petitioners. Messrs. William D. Mitchell, Rollin Browne, and Henry L. Glenn for respondent. Reported below: 95 F. 2d 306. No. 943. Conway v. Allen, Judge, et al. See ante, p. 547. No. 958. Blumgart et al. v. St. Louis-San Francisco Ry. Co. May 16, 1938. Petition for writ of certiorari to 568 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304U.S. the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Justice Brandeis took no part in the consideration or decision of this application. Mr. Frank E. Karelsen, Jr. for petitioners. Messrs. Alexander P. Stewart and Joseph W. Jamison for respondent. Reported below: 94 F. 2d 712. No. 961. Pennsylvania Public Utility Comm’n v. Union Traction Co. et al. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Justice Roberts took no part in the consideration or decision of this application. Messrs. Joseph Ominsky and Charles J. Margiotti for petitioner. Messrs. Francis Shunk Brown and Joseph Gilfillan for respondent. No. 899. Shama v. United States. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Henry C. Shull for petitioner. Solicitor General Jackson, Assistant Attorney General McMahon, and Messrs. William W. Barron and W. Marvin Smith for the United States. Reported below: 94 F. 2d 1. No. 901. Bankers Mortgage Co. et al. v. Motter, Collector of Internal Revenue. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Thomas M. Lillard and Otis S. Allen for petitioners. Solicitor General Jack-son, Assistant Attorney General'Morris, and Messrs. Sewall Key and Warren F. Wattles for respondent. Reported below: 93 F. 2d 778. OCTOBER TERM, 1937. 569 304U.S. Decisions Denying Certiorari. No. 908. Bonet, Treasurer, v. Bowie et al., Trustees. May 16,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Messrs. William Cattron Rigby and Nathan R. Margold for petitioner. Mr. Earle T. Fiddler for respondents. Reported below: 93 F. 2d 323. No. 911. Harger v. Oklahoma Gas & Electric Co. May 16, 1938. Petition for writ of certiorari to the Supreme Court of Arkansas denied. Mr. Allen McReynolds for petitioner. Messrs. Joseph M. Hill and Henry L. Fitzhugh for respondent. Reported below: 195 Ark. 107; 111 S. W. 2d 485. No. 913. Davidson v. Commissioner of Internal Revenue. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. J. A. C. Kennedy and Ralph E. Svoboda for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key and Harry Marselli for respondent. Reported below: 94 F. 2d 303. No. 925. Gilmore, Guardian, v. United States. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. L. E. Gwinn for petitioner. Solicitor General Jackson and Messrs. Julius C. Martin, Wilbur C. Pickett, Fendall Marbury and W. Marvin Smith for the United States. Reported below: 93 F. 2d 774. 570 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304U.S. No. 935. Smith v. Metropolitan Life Ins. Co. et al. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Meyer Abrams for petitioner. No appearance for respondents. Reported below: 94 F. 2d 277. No. 936. National Carbon Co. v. Western Shade Cloth Co. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Thomas G. Haight and George A. Chrit-ton for petitioner. Messrs. William H. Davis and Albert J. Fihe for respondent. Reported below: 93 F. 2d 94. No. 939. Pulitzer Publishing Co. v. Current News Features, Inc. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. John Raeburn Green for petitioner. Mr. Guy Mason for respondent. Reported below: 94 F. 2d 682. No. 950. Century Indemnity Co. v. Standard Cahill Co. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Sydney Krause for petitioner. Mr. James Marshall for respondent. Reported below: 93 F. 2d 1000. No. 951. Union Central Life Ins. Co. et al. v. Bank of Commerce & Trust Co. Petition for writ uf certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Gerald FitzGerald for petitioners. Mr. Julian C. Wilson for respondent. Reported below: 94 F. 2d 922. OCTOBER TERM, 1937. 571 304 U. S. Decisions Denying Certiorari. No. 955. Fort Worth v. McCamey et al. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. R. E. Rouer for petitioner. Messrs. Clay Cooke and H. C. Ray for respondents. Reported below: 93 F. 2d 964. No. 959. Connecticut Railway & Lighting Co. v. Connecticut Co. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. George W. Martin for petitioner. Messrs. James Garfield and Hermon J. Wells for respondent. Reported below: 95 F. 2d 311. No. 914. Crescent Wharf & Warehouse Co. et al. v. Pillsbury, Deputy Commissioner, et al. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Joseph D. Peeler for petitioners. Solicitor General Jackson, Assistant Attorney General Whitaker, and Mr. Henry A. Jülicher for the Deputy Commissioner, and Mr. Arch E. Ekdale for Alfred E. Hunter, respondents. Reported below: 93 F. 2d 761. No. 926. Millhiser et al. v. Chase National Bank, Trustee. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. E. Randolph Williams, Henry W. Anderson, and Wirt P. Marks, Jr. for petitioners. Messrs. John S. Eggleston and Arthur A. Gammell for respondent. Reported below: 93 F. 2d 695. No. 933. Bentley v. Helvering, Commissioner of Internal Revenue. May 16, 1938. Petition for writ of 572 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304 U. S. certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. John W. Ford for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key and Berryman Green for respondent. Reported below: 93 F. 2d 998. No. 940. Industrial Trust Co. et al. v. Broderick, Collector of Internal Revenue. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Ira Lloyd Letts for petitioners. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key and L. W. Post for respondent. Reported below: 94 F. 2d 927. No. 942. Davilla v. Brunswick-Balke-Collender Co. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Moses H. Heonig for petitioner. Mr. Charles S. Rosenschein for respondent. Reported below: 94 F. 2d 567. No. 952. Brittain v. Louisville & Nashville R. Co. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Horace B. Wilkinson for petitioner. Messrs. Charles H. Eyster and White E. Gibson for respondent. Reported below: 93 F. 2d 159. No. 953. George E. Warren Corp. v. United States. May 16,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Geo. W. Dalzell for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key and Edward H. Horton for the United States. Reported below: 94 F. 2d 597. OCTOBER TERM, 1937. 573 304 U. S. Decisions Denying Certiorari. No. 956. Hartford Transportation Co. v. Lee Transit Corp. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Charles W. Hagen for petitioner. Mr. Robert S. Hume for respondent. Reported below: 95 F. 2d 1008. No. 962. Oliver-Sherwood Co. et al. v. Patterson Ballagh Corp, et al. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. A. W. Boyken and Benjamin F. Bledsoe for petitioners. Messrs. Ford W. Harris, Frederick S. Lyon and Leonard S. Lyon for respondents. Reported below: 95 F. 2d 70. No. 968. American Lecithin Co. v. J. C. Ferguson Mfg. Works, Inc. May 16, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Messrs. Edward G. Curtis and Daniel L. Morris for petitioner. Messrs. Russell Wiles and George A. Chritton for respondent. Reported below: 94 F. 2d 729. No. 977. Stoody Co. v. Mills-Alloys, Inc. et al. May 16,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Fred H. Miller, Charles C. Montgomery, and William Stanley for petitioner. Mr. John Flam for respondents. Reported below: 94 F. 2d 413. No. 980. McAlvay et al. v. Stockwell et al. May 23, 1938. See ante, p. 547. No. 1018. Ex parte Tinkoff. May 23, 1938. Petition for writ of certiorari to the Circuit Court of Appeals 574 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304 U. S. for the Seventh Circuit, and motion for leave to proceed further in forma pauperis, denied. Paysoff Tinkoff, pro se. Reported below: 95 F. 2d 651. No. 1020. Clark v. California. May 23, 1938. Petition for writ of certiorari to the District Court of Appeal, 3rd Appellate District, of California, and motion for leave to proceed further in forma pauperis, denied. Frank Clark, pro se. Reported below: 24 Cal. App. 2d 302; 74 P. 2d 1070. No. 1031. Doll v. Johnston, Warden. May 23; 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit, and motion for leave to proceed further in forma pauperis, denied. Edward Doll, pro se. Reported below: 95 F. 2d 838. No. 946. Hines, Administrator of Veterans’ Affairs v. Copsey, Guardian. May 23, 1938. Petition for writ of certiorari to the Supreme Court of California denied for the want of a final judgment. Messrs. James T. Brady, Edward E. Odom, Y. D. Mathes, and James B. Burns for petitioner. Mr. Allan C. Rowe for respondent. Reported below: 10 Cal. 2d 748; 76 P. 2d 691. No. 973. Holyoke Water Power Co. v. American Writing Paper Co. May 23, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Justice Stone took no part in the consideration or decision of this application. Messrs. Bentley W. Warren, Samuel Williston, Nathan P. Avery, James M. Healy, and Donald C. Starr for petitioner. Messrs. Claude R. Branch, Charles P. Curtis, Jr., and Rus- OCTOBER TERM, 1937. 575 304U.S. Decisions Denying Certiorari. sell L. Davenport for respondent. Reported below: 94 F. 2d 931. No. 979. Globe Indemnity Co. v. United States. May 23,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Justice Stone took no part in the consideration or decision of this application. Messrs. F. Morse Hubbard and Barham R. Gary for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key and James E. Murphy for the United States. Reported below: 94 F. 2d 576. No. 990. E. I. DuPont de Nemours & Co. v. Waxed Products Co. May 23,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Justice Roberts took no part in the consideration or decision of this application. Messrs. J. Harry Covington and Harry D. Nims for petitioner. Messrs. Thomas D. Thacher, Ellis W. Leavenworth, and L. A. Janney for respondent. Reported below: 85 F. 2d 75. No. 1009. Northern Pacific Ry. Co. v. Twohy Brothers Co. May 23, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Justice Butler took no part in the consideration or decision of this application. Mr. Charles A. Hart for petitioner. Messrs. De Lancey C. Smith and W. Lair Thompson for respondent. Reported below: 95 F. 2d 220. No. 907. Carlisle Lumber Co. v. National Labor Relations Board. May 23, 1938. Petition for writ of cer- 576 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304 U. S. tiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Charles H. Paul, George Donworth, and Charles T. Donworth for petitioner. Solicitor General Jackson, and Messrs. Robert L. Stern, Charles Fahy, Richard B. Watts, and Laurence A. Knapp for respondent. Reported below: 94 F. 2d 138. No. 954. Bradshaw v. Eastus, U. S. Attorney, et al. May 23,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. W. B. Harrell and L. E. Martlew for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewdll Key, William H. Boyd, M. Leo Looney, Jr., and Earl C. Crouther for respondents. Reported below: 94 F. 2d 788. No. 963. United States et al. v. Silver Line, Ltd. et al. May 23, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Solicitor General Jackson for petitioners. Messrs. Ira S. Lillick and Joseph J. Geary for respondents. Reported below: 94 F. 2d 754. No. 964. Eppley Hotels Co. v. Lincoln et al. May 23, 1938. Petition for writ of certiorari to the Supreme Court of Nebraska denied. Mr. William J. Hotz for petitioner. Mr. Frederick H. Wagener for respondents. Reported below: 133 Neb. 550; 276 N. W. 196. No. 970. Remington Rand, Inc., v. National Labor Relations Board. May 23, 1938. Petition for writ of certiorari to the Circuit C.ourt of Appeals for the Second Circuit denied. Messrs. George H. Bond, George H. OCTOBER TERM, 1937. 577 304 U. 8. Decisions Denying Certiorari. Cohen, and Tracy H. Ferguson for petitioner. Solicitor General Jackson, and Messrs. Robert L. Stem, Charles Fahy, Richard B. Watts, and Laurence A. Knapp for respondent. Reported below: 94 E. 2d 862. No. 972. Arn et al. v. Dunnett et al. May 23, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. T. P. Gore and Finis E. Riddle for petitioners. Mr. Wesley E. Disney for respondents. Reported below: 93 F. 2d 634. No. 974. Consumers Construction Co. v. Commissioner of Internal Revenue. May 23, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Bernhard Knollenberg for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key and Ellis N. Slack for respondent. Reported below: 94 F. 2d 731. No. 978. American National Bank v. Ames et al. May 23, 1938. Petition for writ of certiorari to the Supreme Court of Appeals of Virginia denied. Messrs. George P. Barse, Tazewell Taylor, and L. E. Birdzell for petitioner. Messrs. Wm. G. Maupin and James E. Heath for respondents. Reported below: 169 Va. 711; 194 S. E. 784. No. 988. Alamo National Bank v. Commissioner of Internal Revenue ; and No. 989. Alexander v. Same. May 23, 1938. Petition for writs of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Robert Ash for petitioners. Solicitor General Jackson, Assistant Attorney 81638°—38-37 ' 578 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304U.S. General Morris, and Messrs. Sewall Key and Joseph M. Jones for respondent. Reported below: 95 F. 2d 622, 624. No. 992. Conway Road Estates Co. v. First National Bank. May 12, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. J. L. London for petitioner. Mr. Hyman G. Stein for respondent. Reported below: 94 F. 2d 736. No. 998. White et al. v. Wood. May 23, 1938. Petition for writ of certiorari to the Court of Appeals for the District of Columbia denied. Mr. Abraham Chasa-now for petitioners. Mr. Henry I. Quinn for respondent. Reported below: 97 F. 2d 646. No. 999. Carolina Power & Light Co. v. South Carolina Public Service Authority et al. ; No. 1000. South Carolina Power Co. v. South Carolina Public Service Authority; and No. 1001. South Carolina Electric & Gas Co. v. South Carolina Public Service Authority et al. May • 23, 1938. Petition for writs of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. Arthur R. Young, Wm. M. Rogers, Raymond T. Jack-son, and W. C. McLain for petitioners. Messrs. R. M. Jefferies and W. J. McLeod, Jr. for the Public Service Authority and its Board of Directors. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Paul A. Freund, Robert E. Sher, and Enoch E. Ellison for federal officers Harold L. Ickes and Harry L. Hopkins. Reported below: 94 F. 2d 520. No. 1012. Chicago v. Joseph, Receiver. May 23, 1938. Petition for writ of certiorari to the Circuit Court OCTOBER TERM, 1937. 579 304U.S. Decisions Denying Certiorari. of Appeals for the Seventh Circuit denied. Messrs. Barnet Hades, Joseph F. Grossman, and J. Herzl Segal for petitioner. Messrs. Emmett J. McCarthy, George P. Barse, Robert R. Hanley, and Robert F. Carey entered an appearance for respondent. Reported below: 95 F. 2d 444. No. 872. Black Diamond Steamship Corp. v. National Labor Relations Board. May 23, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John W. Crandall for petitioner. Solicitor General Jackson, Robert L. Stern, Charles Fahy, Richard B. Watts, and Laurence A. Knapp for respondent. Reported below: 94 F. 2d 875. No. 993. Champlin Refining Co. v. Ryan, Secretary of State of Kansas. See ante, p. 549. No. 1045. Mosher v. American Surety Co. et al. May 31, 1938. See ante, p. 550. No. 948. Ned et al. v. Robinson. May 31, 1938. See ante, p. 550. No. 22, original. Ex parte Harry M. Blair. May 31, 1938. The motion to defer consideration is denied. The motion for leave to file petition for writ of certiorari is granted and the petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit is denied. Mr. Justice Roberts took no part in the consideration or decision of this application. Mr. George Pjeil for petitioner. Reported below: 95 F. 2d 995. 580 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304 U. S. No. 1021. Blair et al. v. McClintic, Judge. May 31,1938. The motion to defer consideration is denied and the petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit is denied. Mr. Justice Roberts took no part in the consideration or decision of this application. Mr. George Pfeil for petitioners. Messrs. T. R. White and Thomas Hart for respondent. Reported below: 95 F. 2d 995. No. 1049. Fowler, Administrator, et al. v. Seymour, Trustee. May 31, 1938. The petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit is denied. Mr. Calvin S. Mauk for petitioners. Mr. Thomas S. Tobin for respondent. Reported below: 95 F. 2d 627. No. 18, original. Ex parte Tinkoff. May 31, 1938. The petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit is denied. Paysoff Tinkoff, pro se. No. 1051. Suhay et al. v. United States. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Joseph H. Brady for petitioners. No appearance for the United State. Reported below: 95 F. 2d 890. No. 1062. Carnevale v. New York. May 31, 1938. Petition for writ of certiorari to the Supreme Court of New York, and motion for leave to proceed further in forma pauperis, denied. Michael Carnevale, pro se. Mr. Henry Epstein for respondent. Reported below: 277 N. Y. 667; 14 N. E. 2d 211; 252 App. Div. 835. OCTOBER TERM, 1937. 581 304 U. S. Decisions Denying Certiorari. No. 1067. Sandlofer v. New York City. May 31, 1938. Petition for writ of certiorari to the Supreme Court of New York, and motion for leave to proceed further in forma pauperis, denied. Abraham Sandlofer, pro se. No appearance for respondent. No. 1064. Lonergan v. United States. May 31,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Pierce Lonergan for petitioner. No appearance for the United States. Reported below: 95 F. 2d 642. No. 986. McCaughn, Director of Wharves, v. Philadelphia Piers, Inc., et al. May 31, 1938. Petition for writ of certiorari to the Supreme Court of Pennsylvania is denied for the want of a final judgment. Messrs. G. Coe Farrier and J. Harry LaBrum for petitioner. Messrs. Wm. A. Schnader, J. R. Guckes, and Windsor F. Cousins for respondents. Reported below: 329 Pa. 147; 196 A. 861. No. 937. Mutual Benefit Health & Accident Assn. v. Moyer. May 31,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Philip E. Horan for petitioner. Mr. George B. Grigsby for respondent. Reported below : 94 F. 2d 906. Nos. 982 and 983. American Woolen Co. v. United States. May 31, 1938. Petition for writs of certiorari to the Court of Claims is denied. Messrs. Melville F. Weston and John W. Townsend for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Mr. 582 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304 U. S. Sewall Key for the United States. Reported below: 85 Ct. Cis. 101; 18 F. Supp. 783. No. 987. Pacific Steamship Lines, Ltd. v. Mack. May 31,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Keith R. Ferguson for petitioner. No appearance for respondent. Reported below: 94 F. 2d 95. No. 994. Mackey v. Little Rock et al. May 31,1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Sam T. Poe and Tom Poe for petitioner. Messrs. Horace Chamberlin and George B. Rose for respondents. Reported below: 94 F. 2d 546. No. 995. Livermore v. Miller, Collector of Internal Revenue. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Joseph D. Farish for petitioner. Solicitor General Jackson, Assistant Attorney General Morris, and Messrs. Sewall Key, J. Louis Monarch, and Paul R. Russell for respondent. Reported below: 94 F. 2d 111. No. 1002. Pillsbury Flour Mills Co. v. United States. May 31, 1938. Petition for writ of certiorari to the Court of Customs and Patent Appeals denied. Mr. Clark Hempstead for petitioner. Solicitor General Jack-son, and Messrs. Charles D. Lawrence and John R. Benny for the United States. Reported below: 25 C. C. P. A. (Customs) 351. OCTOBER TERM, 1937. 583 304 U. S. Decisions Denying Certiorari. No. 1005. Murray et al. v. New York City et al. May 31, 1938. Petition for writ of certiorari to the Supreme Court of New York denied. Messrs. A. Gordon Murray and Albert G. Avery for petitioners. Mr. Paxton Blair for respondents. Reported below: 278 N. Y. 475; 15 N. E. 2d 69; 252 App. Div. 853; 300 N. Y. S. 431. No. 1006. White v. Youngblood. May 31, 1938. Petition for writ of certiorari to the Supreme Court of Illinois denied. Mr. Richard E. Westbrooke for petitioner. Corinne L. Rice for respondent. Reported below: 367 Ill. 632; 12 N. E. 2d 650. No. 1007. United States ex rel. Schmidt et al. v. Miles, U. S. Marshal. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. W. G. Cavett for petitioners. Solicitor General Jackson, and Messrs. Hugh A. Fisher, William W. Barron, and W. Marvin Smith for respondent. Reported below: 97 F. 2d 881. No. 1013. Littlejohn v. United States. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. A. M. Fitzgerald, Geo. B. Gillespie, and Edmund Burke for petitioner. Solicitor General Jackson, and Messrs. Hugh A. Fisher and W. Marvin Smith for the United States. Reported below: 96 F. 2d 368. No, 1024. Meyers v. United States. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Ap- 584 OCTOBER TERM, 1937. Decisions Denying Certiorari. 304 U. S. peals for the Sixth Circuit denied. Mr. Arthur H. Ratner for petitioner. Solicitor General Jackson, and Messrs. Hugh A. Fisher, Mahlon D. Kiefer, and W. Marvin Smith for the United States. Reported below: 94 F. 2d 433. No. 1034. Clarke v. Martin, Trustee. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Walter H. Eckert for petitioner. Mr. Livingston E. Osborne for respondent. Reported below: 95 F. 2d 26. No. 1041. United States ex rel. Reibeck et al. v. Kelly, U. S. Marshal, et al. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Joseph Heller for petitioners. Solicitor General Jackson and Mr. Hugh A. Fisher for the respondents. Reported below: 95 F. 2d 1022. No. 1022. Morehead et al. v. Central Trust Co., Executor. May 31, 1938. Petition for writ of certiorari to the Supreme Court of Ohio denied. Mr. George S. Hawke for petitioners. Mr. Wm. J. Rielly for respondent. Reported below: 54 Ohio App. 9. No. 1014. First National Bank & Trust Co. v. Uhl, Receiver. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Benn M. Corwin for petitioner. No appearance for respondent. Reported below: 94 F. 2d 1013. OCTOBER TERM, 1937. 585 304U.S. Decisions Denying Certiorari. No. 1054. Breen et al. v. United States. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. David V. Cahill for petitioners. No appearance for the United States. Reported below: 96 F. 2d 782. No. 1055. Callaghan et al. v. Brooklyn Trust Co. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Emanuel Celler and Thomas Cradock Hughes for petitioners. Mr. Ralph W. Crolly for respondent. Reported below: 96 F. 2d 161. No. 1015. Johnson v. Igleheart Brothers, Inc. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Albert Stump for petitioner. Messrs. George S. Herr, Lester E. Waterbury, and Oscar McPeak for respondent. Reported below: 95 F. 2d 4. No. 1058. Central Executive Council of Remington Rand Employees’ Assns. v. National Labor Relations Board. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Charles H. Houston and Leon A. Ransom for petitioner. No appearance for respondent. Reported below: 94 F. 2d 862. No. 1011. Goldstone v. Payne. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals 586 OCTOBER TERM, 1937. Rehearings Granted. 304 U.S. for the Second Circuit denied. Mr. Benjamin Schenker for petitioner. Mr. Neil P. Cullom for respondent. Reported below: 94 F. 2d 855. No. 1061. Mellon v. United States. May 31, 1938. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Wm. Matthews for petitioner. No appearance for the United States. Reported below: 96 F. 2d 462. CASES DISPOSED OF WITHOUT CONSIDERATION BY THE COURT, FROM APRIL 12, 1938, THROUGH MAY 31, 1938. No. 814. Valli et al. v. United States. Certiorari to the Circuit Court of Appeals for the First Circuit. May 31, 1938. Dismissed on motion of counsel for the petitioners. Mr. Essex S. Abbott for petitioners. Solicitor General Jackson, Assistant Attorney General McMahon, and Messrs. William W. Barron, and W. Marvin Smith for the United States. Reported below: 94 F. 2d 687. PETITIONS FOR REHEARING GRANTED, FROM APRIL 12, 1938, THROUGH MAY 31, 1938. Nos. 396 and 1053. Kellogg Co. v. National Biscuit Company. May 31, 1938. The motion for leave to file a second petition for rehearing is granted. The second petition for rehearing is granted. The order denying a writ of certiorari is vacated and the petition for writ of certiorari seeking review of the judgment of the Circuit Court of Appeals entered on April 12, 1937, is granted. The petition for writ of certiorari seeking review of the order recalling and clarifying the mandate of the Circuit Court of Appeals is also granted. Further proceedings in the United States District Court for the District of Dela- OCTOBER TERM, 1937. 587 304 U. S. Rehearings Granted. ware are stayed pending action of the Court upon the writs of certiorari hereby granted. Mr. Justice Stone and Mr. Justice Roberts took no part in the consideration or decision of these applications. Messrs. W. H. Crichton-Clarke, Edward S. Rogers, Robert T. McCracken, and Thomas D. Thacher for petitioner in No. 396. Messrs. Thomas D. Thacher and W. H. Crichton-Clarke for petitioner in No. 1053. Messrs. Thomas G. Haight, David A. Reed, Drury W. Cooper, and Charles A. Vilas for respondent. Reported below: 91 F. 2d 150. See 302 U. S. 654, 733, 777. No. 674. SCHRIBER-SCHROTH Co. V. CLEVELAND TRUST CO. ET AL. J No. 675. Aberdeen Motor Supply Co. v. Same; and No. 676. F. E. Rowe Sales Co. v. Same. May 31, 1938. The motion for leave to file a second petition for rehearing is granted. The second petition for rehearing is granted. The order denying certiorari is vacated and the petition for writs of certiorari is granted. Messrs. Thomas G. Haight, George L. Wilkinson, John H. Brun-inga, and John H. Sutherland for petitioners. Messrs. A. C. Denison, F. 0. Richey, and Wm. C. McCoy for respondents. Reported below: 92 F. 2d 330. See 303 U. S. 639, 667. No. 357. General Talking Pictures Corp. v. Western Electric Co. May 31, 1938. The petition for rehearing is granted upon the first two questions presented in the petition for writ of certiorari and the cause is assigned for argument on Monday, October 10, 1938. The motion to stay the mandate pending rehearing and determination by the Court is granted. Messrs. Samuel E. Darby, Jr. and Ephraim Berliner for petitioner. Messrs. Merrell E. Clark and Henry R. Ashton for respondents. Reported below: 91 F. 2d 922. See ante, p. 175. 588 OCTOBER TERM, 1937. Rehearings Denied. 304 U. S. PETITIONS FOR REHEARING DENIED, FROM APRIL 12, 1938, THROUGH MAY 31, 1938.* No. 435. New York Rapid Transit Corp. v. New York City; and No. 436. Brooklyn and Queens Transit Corporation v. New York City. April 25, 1938. 303 U. S. 573. No. 563. United States v. Hendler, Transferee. April 25, 1938. 303 U. S. 564. No. 455. Deitrick, Receiver, et al. v. Standard Security & Casualty Co. May 2, 1938. 303 U. S. 471. No. 844. Robert Jacob, Inc., v. Gunnarson, Administratrix. May 2, 1938. No. 856. Quick Action Ignition Co. v. Briggs & Stratton Corp. May 2, 1938. 303 U. S. 661. No. 943. Conway v. Allen, Judge. See ante, p. 547. No. 304. Kelley et al. v. Atlantic City et al. May 16, 1938. Motion for leave to file a second petition for rehearing is granted, and petition denied. 302 U. S. 722. No. 831. Bonet, Treasurer, v. Quiles. May 16, 1938. 303 U. S. 662. No. 832. Bonet, Treasurer, v. Valiente & Co. May 16, 1938. 303 U. S. 662. No. 846. Standard Marine Ins. Co. v. Westchester Fire Ins. Co. May 16, 1938. 303 U. S. 661. *See Table of Cases Reported in this volume for earlier decisions in these cases, unless otherwise indicated. OCTOBER TERM, 1937. 589 304U.S. Rehearings Denied. No. 858. Highway Engineering & Construction Co. v. Hillsborough County. May 16, 1938. No. 889. Florence et al. v. Crummer. May 16, 1938. No. 298. United States ex rel. Societe de Condensation et D’Applications Mecaniques v. Coe, Commissioner of Patents. May 23, 1938. Motion for leave to file second petition for rehearing granted, and petition denied. 302 U. S. 721, 776. No. 240. Lynch v. Kemp. May 23, 1938. Motion for leave to file petition for rehearing granted, and petition denied. 302 U. S. 685, 775. No. 757. United States v. Bekins et al., Trustees, et al. May 23, 1938. No. 772. Lindsay-Strathmore Irrigation District v. Bekins et al., Trustees, et al. May 23, 1938. No. 760. Arkansas Fuel Oil Co. v. Louisiana ex rel. Muslow. May 23, 1938. No. 874. Fort Worth et al. v. Lone Star Gas Co. May 23, 1938. No. 886. Wiese v. Commissioner of Internal Revenue. May 23, 1938. No. 893. R. J. Reynolds Tobacco Co. v. Robertson, Collector of Internal Revenue. May 23,1938. 590 OCTOBER TERM, 1937. Rehearings Denied. 304 U. S. No. 581. Morgan et al. v. United States et al. See ante, p. 1. No. 11, original (October Term, 1934). New Jersey v. Delaware. May 31, 1938. The motion for leave to file petition for rehearing is granted, and petition denied. 291 U. S. 361; 295 U. S. 694. No. 313. Lone Star Gas Co. v. Texas et al. May 31, 1938. No. 671. Schultz v. Live Stock National Bank, Administrator. May 31,1938. 302 U. S. 766. No. 936. National Carbon Co. v. Western Shade Cloth Co. May 31, 1938. No. 970. Remington Rand, Inc., v. United States. May 31, 1938. No. 985. Spruill v. Dorsey. May 31, 1938. No. 988. Alamo National Bank v. Commissioner of Internal Revenue. May 31, 1938. No. 989. Alexander v. Commissioner of Internal Revenue. May 31, 1938. No. 882. Allen, Collector of Internal Revenue, v. Regents of the University System of Georgia. May 31, 1938. AMENDMENT OF RULES OF COURT. ORDER OF MAY 31, 1938. It is ordered that paragraph 5(b) of Rule 38 of the Rules of this Court be amended so as to read as follows: “(b) Where a circuit court of appeals has rendered a decision in conflict with the decision of another circuit court of appeals on the same matter; or has decided an important question of local law in a way probably in conflict with applicable local decisions; or has decided an important question of federal law which has not been, but should be, settled by this court; or has decided a federal question in a way probably in conflict with applicable decisions of this court; or has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of this court’s power of supervision.” 591 AMENDMENT OF CRIMINAL RULES. ORDER OF MAY 31, 193 8. It is ordered that paragraph (3) of Rule II of the Rules of Practice and Procedure in Criminal Cases be, and the same is hereby, amended to read as follows: “(3) Except in capital cases a motion for a new trial solely upon the ground of newly-discovered evidence may be made within sixty (60) days after final judgment, without regard to the expiration of the term at which judgment was rendered, unless an appeal has been taken and in that event the trial court may entertain the motion only on remand of the case by the appellate court for that purpose, and such remand may be made at any time before final judgment. In capital cases the motion may be made at any time before execution of the judgment.” 592 STATEMENT SHOWING CASES ON DOCKETS, CASES DISPOSED OF, AND CASES REMAINING ON DOCKETS FOR THE OCTOBER TERMS 1935, 1936, AND 1937 ORIGINAL APPELLATE TOTALS Terms. _ _ _ _ 1935 1936 1937 1935 1936 1937 1935 1936 1937 Total cases on dockets 16 4 13 1 22 9 1,076 986 1,039 941 1,069 1,004 1,092 990 1,052 942 1,091 1, 013 Cases disposed of during terms __ Cases remaining on dockets Distribution of cas Original cases Appellate cas< Petitions for Cases remaining o Original cases Appellate cas< Petitions for 12 ses di is on 5ertio n doc is on jertio 12 spose meri rari., kets: meri rari.. 13 dof < ;s ;s 90 luring 98 terms 65 19 2 .. 7 102 TI 35 1 4 69 17 12 56 34 110 SRMS 936 1 270 671 12 53 45 593 .78 1937 9 286 718 13 34 31 81638°—38----38 INDEX ABANDONMENT. See Patents for Inventions, 5. ADMINISTRATIVE PROCEEDINGS. See Board of Tax Appeals; Federal Power Commission; Injunction, 1; Interstate Commerce Acts, 6-7; Jurisdiction, I, 4; III, 1, 3-5; IV, 4-5; Labor Relations Act, 2-3; Packers & Stockyards Act; Public Utilities, 1-2; Statutes, 5; Variance. Requirement as to hearing. Morgan v. U. 8., 1. ADMIRALTY. See Insurance, 2. ADMISSIONS TAX. See Constitutional Law, I, 9. ANTITRUST ACTS. 1. Price Discriminations. Clayton Act. Application of amendatory Act. Federal Trade Comm’n v. Goodyear Co., 257. 2. Proceedings. Abandonment of price arrangement found to be illegal by Commission did not make controversy moot. Id. 3. Id. Importance in antitrust cases of Equity Rule 7(% as to findings. Interstate Circuit v. U. S., 55. APPEAL. See Jurisdiction. APPROPRIATION. See Eminent Domain; Waters. ASSIGNMENT. See Limitations. BANKRUPTCY. See Constitutional Law, I, 13-15. 1. Construction and Application of Chapter X. Composition of indebtedness of state taxing agencies and instrumentalities under Chapter X; consent of State to application of Chapter X; taxing district as one “authorized by law” to effectuate plan. U. 8. v. Bekins, 27. 2. Jurisdiction of Bankruptcy Court. Property of Farmer Debtor. Property subject to administration; interest in lands; property acquired after filing of petition; mortgaged lands; equity of redemption; extension of period for redemption. Wright v. Union Central Ins. Co., 502. 595 596 INDEX. BOARD OF TAX APPEALS. See Jurisdiction, III, 5. Findings. Sufficiency of evidence to support. Helvering v. National Grocery Co., 282. CERTIORARI. See Jurisdiction, II, 11-15. CESSION. See Constitutional Law, I, 5. CHARITABLE INSTITUTIONS. See Taxation, II, 9. COMMON LAW. No federal common law; law of State controls except in matters governed by Federal Constitution or Acts of Congress. Erie R. Co. v. Tompkins, 64. COMMUNITY PROPERTY. See Taxation, II, 8. COMPACTS. Compacts between States. Hinderlider v. La Plata River Co., 92. COMPENSATION. See Indians, 3-4. COMPOSITION. See Bankruptcy, 1. CONFLICT OF LAWS. 1. Negligence. Railroad Company. Liability governed, in suit in federal court, by law of State where accident occurred. Erie R. Co. n. Tompkins, 64; see also, Hudson v. Moonier, 397. 2. Equity. Doctrine of Erie R. Co. v. Tompkins applicable to question of construction of insurance policy arising in suit in equity. Ruhlin n. N. Y. Life Ins. Co., 202; N. Y. Life Ins. Co. v. Jackson, 261; Rosenthal v. N. Y. Life Ins. Co., 263. CONSTITUTIONAL LAW. I. Miscellaneous, p. 596. II. Commerce Clause, p. 598. III. Contract Clause, p. 598. IV. Fifth Amendment, p. 598. V. Sixth Amendment, p. 599. VI. Tenth Amendment, p. 599. VII. Fourteenth Amendment. (A) Due Process Clause, p. 600. (B) Equal Protection Clause, p. 600. VIII. Twenty-first Amendment, p. 600. I. Miscellaneous. 1. Rules of Construction. Constitutional questions not decided unless necessary on record. Arkansas Co. v. Louisiana, 197. INDEX. 597 CONSTITUTIONAL LAW—Continued. 2. Id. Presumption of constitutionality of statute. U. S. n. Carolene Products Co., 144. 3. Delegation of Legislative Power. Helvering v. National Grocery Co., 282. 4. Relations Between State and Nation. Cooperation in exercise of respective governmental powers. U. S. v. Bekins, JU. 5. Id. Territorial Jurisdiction as between State and United States over land in Yosemite National Park; effect of cession of jurisdiction by State; state license fee for sale or importation of alcoholic beverages in Park, invalid; state tax on sales in Park, valid. Collins v. Yosemite Park Co., 518. 6. Id. Restraint of state commission by federal court. Petroleum Exploration v. Comm’n, 209. 7. Governmental Instrumentalities. Immunity to taxation implied for protection of States narrowly construed. Helvering v. Gerhardt, 405. 8. Id. Immunity from federal tax does not extend to business enterprises conducted by States for gain. Allen v. Regents, 439. 9. Id. Validity of federal admissions tax as applied to football games at state educational institution. Id. 10. Id. Salaries of employees of Port of New York Authority not immune. Helvering n. Gerhardt, 405. 11. Id. State Taxation of lands within jurisdiction of United States; consent of United States to tax. Collins v. Yosemite Park Co., 518. 12. Federal Taxation. Corporations. Undistributed Earnings. Validity of additional tax on corporation availed of to prevent imposition of surtax on shareholders by accumulating profits. Helvering n. National Grocery Co., 282. 13. Bankruptcy Powers. Scope. Proceedings for voluntary composition of debts are within scope of bankruptcy power. U. S. v. Bekins, 27. 14. Id. Chapter X of Bankruptcy Act, providing for composition of indebtedness of state taxing agencies and instrumentalities, valid. Id. 15. Id. Validity of provision of § 75 (n), for extension of period of redemption. Wright v. Union Central Ins. Co., 502. 16. Indians. Power of United States to manage affairs of Indian wards is subject to constitutional limitations. U. S. n. Klamath Indians, 119. 598 INDEX. CONSTITUTIONAL LAW—Continued. 17. Administrative Proceedings. Fair and open hearing fundamental requirement. Morgan v. U. S., 1. 18. Compacts Between States. Validity and effect. Hinderlider v. La Plata River Co., 92. 19. Challenging Validity of statutes. U. S. v. Carolene Products Co., 144. II. Commerce Clause. 1. Scope of Federal Power. U. S. v. Carolene Products Co., 144. 2. Id. Prohibition of Shipment. Public Health. Validity of Filled Milk Act. Id. 3. Id. Protection of commerce against threatened industrial strife; regulation of labor relations. Labor Board v. Mackay Co., 333. 4. State Regulation. Public Utilities. Rates. Requirement that utility file schedule of rates, though business partly interstate, valid. Arkansas Louisiana Gas Co. v. Department, 61. 5. Id. Order of state commission prescribing rate for gas supplied by importing pipeline company to affiliated distributing companies within State, sustained. Lone Star Gas Co. v. Texas, 224. 6. Id. Order did not regulate interstate transportation nor sales and deliveries in interstate commerce. Id. 7. Id. Inclusion in property on which intrastate rate was based of pipeline which cut across corner of another State. Id. 8. Id. Mode of handling gas brought in from other State made it integral part of company’s intrastate business and commission properly considered it in fixing rate. Id. 9. Id. Segregation of intrastate and interstate properties of company; when not essential. Id. 10. State Taxation. Indiana Gross Income Tax Act, as applied to gross receipts of Indiana manufacturer from sales in other States, invalid. Adams Mfg. Co. v. Stören, 307. III. Contract Clause. Tax Exemption. Limitation of exemption of Indiana state and municipal bonds to taxation ad valorem, sustained. Adams Mfg. Co. n. Stören, 307. IV. Fifth Amendment. See Packers and Stockyards Act. 1. Legislation Generally. Congress not bound to prohibit all like evils or none. U. S. v. Carolene Products Co., 144. 2. Notice and Hearing. Administrative Proceedings. Fair and open hearing fundamental requirement in proceeding of quasijudicial character. Morgan v. U. S., 1. INDEX. 599 CONSTITUTIONAL LAW—Continued. 3. Employer and Employee. Provision of Labor Act continuing relation of employer and employee in case of strike arising out of labor dispute, sustained. Labor Board v. Mackay Co., 333. 4. Id. Order of Labor Board was not arbitrary or capricious. Id. 5. Public Utilities. Confiscation. Rates under Packers & Stock-yards Act not confiscatory. Denver Union Co. v. U. 8., 470. 6. Filled Milk Act did not contravene Fifth Amendment. U. 8. v. Carolene Products Co., 144. 7. Id. Act not invalid because it did not extend to oleomargarine or other butter substitutes. Id. 8. Exertion of Bankruptcy Power. Plan of composition under Chapter X of Bankruptcy Act did not contravene rights of creditors under Fifth Amendment. U. 8. v. Bekins, 27. 9. Id. Provision of § 75 (n), for extension of period of redemption, sustained. Wright n. Union Central Ins. Co., 502. 10. Federal Taxation. Validity of undistributed earnings tax; Revenue Act 1918, § 104; penal nature of tax; retroactive assessment. Helvering v. National Grocery Co., 282. 11. Procedure. Fifth Amendment guarantees substantial rights but no particular form of procedure. Labor Board v. Mackay Co., 333. 12. Labor Board Proceedings. Investiture of Circuit Court of Appeals with jurisdiction to review order of Board only upon filing of transcript, did not deny due process. In re Labor Board, 486. 13. Procedural Due Process under Labor Act; notice and hearing; variance between findings and complaint; examiner’s report. Labor Board v. Mackay Co., 333. V. Sixth Amendment. Right of Accused to assistance of counsel; waiver; habeas corpus. Johnson v. Zerbst, 458. VI. Tenth Amendment. 1. Tenth Amendment protects right of States to make contracts and give consents not otherwise in contravention of the Constitution. U. 8. v. Bekins, 27. 2. Additional tax on income of corporation availed of to prevent surtax on shareholders by accumulating profits, not violation of Tenth Amendment. Helvering v. National Grocery Co., 282. 3. Provision of § 75 (n) of Bankruptcy Act, for extension of period of redemption, sustained. Wright v. Union Central Ins. Co., 502. 600 INDEX. CONSTITUTIONAL LAW—Continued. VII. Fourteenth Amendment. (A) Due Process Clause. Intoxicating Liquors. State has power to terminate licenses to sell intoxicating liquors. Mahoney v. Triner Corp., 401. (B) Equal Protection Clause. Regulation. Intoxicating Liquors. Equal protection clause inapplicable to imported liquors; discrimination in favor of liquor processed within State valid. Mahoney v. Triner Corp., 401. VIII. Twenty-First Amendment. 1. Effect. Amendment did not confer on State regulatory power in respect of lands over which exclusive jurisdiction had been ceded to the United States. Collins v. Yosemite Park Co., 518. 2. Id. Discriminatory state laws not inhibited. Mahoney n. Triner Corp., 401. CONTRACTS. See Bankruptcy, 1-2; Constitutional Law, III. Construction of Contract. What law governs m suit in federal court. Ruhlin v. N. Y. Life Ins. Co., 202; N. Y. Life Ins. Co. V. Jackson, 261; Rosenthal v. N. Y. Life Ins. Co., 263. CRIMINAL LAW. 1. Right of accused to assistance of counsel; waiver; habeas corpus. Johnson n. Zerbst, 458. 2. Sentence. Parole. Offense committed by parolee; requirement of service of unexpired sentence. Zerbst v. Kidwell, 359. DAMAGES. See Indians, 3-4. DEATH. See Partnership; Taxation, II, 6. DEMURRER. See Indictment. DIVISIONAL PATENT. See Patents for Inventions, 1. EDUCATIONAL INSTITUTIONS. See Taxation, II, 9 EMINENT DOMAIN. Appropriation of Indian lands; just compensation. U. S. v. Shoshone Tribe, 111; U. S. v. Klamath Indians, 119. EMPLOYER AND EMPLOYEE. 1. National Labor Relations Act. Unfair Practices. Discrimination in reinstating employees on strike. Labor Board v. Mackay Co., 333. 2. Id. Procedure; findings; report of examiner. Id. EQUITY OF REDEMPTION. See Bankruptcy, 2. INDEX. 601 EQUITY RULES. Equity Rule 7i%. Findings. District Court must find facts specially and state separately conclusions of law; importance in antitrust case. Interstate Circuit v. U. S., 55. EVIDENCE. 1. Land Valuation. Competency of witness. Denver Union Co. v. U. 8. 470. 2. Confiscation. Sufficiency of evidence. Id. 3. Intent. Evidence to support finding of Board of Tax Appeals that corporation accumulated surplus to prevent imposition of surtax on shareholders. Helvering v. National Grocery Co., 282. EXEMPTION. Tax Exemption, see Constitutional Law, I, 7-10; III. FARMERS. See Bankruptcy, 2. FEDERAL POWER COMMISSION. Authority of Commission. Enforcement of Orders. Contempt. Order to appear, testify or produce books, enforceable only by application to federal court under § 307 (c) of Act; punishment for contempt confined to failure to obey court order; refusal to obey subpoena not punishable under § 307 (c) when not wilful; review of orders. Federal Power Comm’n v. Metropolitan Edison Co., 375. FILLED MILK. See Constitutional Law, II, 2. FINDINGS. See Interstate Commerce Acts, 5-7. 1. Requirement of Equity Rule 70% as to findings; function of opinion. Interstate Circuit v. U. 8., 55. 2. Unambiguous findings by Court of Claims may not be altered by reference to opinion. U. 8. v. Shoshone Tribe, 111. FOOTBALL GAMES. Validity of federal admissions tax as applied to football games at state educational institution. Allen v. Regents, 439. FOREIGN GOVERNMENT. See Limitations. GIFTS INTER VIVOS. See Taxation, II, 9. GOVERNMENTAL INSTRUMENTALITIES. See Constitutional Law, I, 7-11. GROSS RECEIPTS TAX. See Constitutional Law, II, 10. 602 INDEX. HABEAS CORPUS. When Writ Lies. Whether prisoner waived assistance of counsel may be determined in habeas corpus on proofs aliunde. Johnson v. Zerbst, 458. IMMUNITY. See Constitutional Law, I, 7-11; III; Taxation, II, 1-4. INDIANS. 1. Treaties. Construction. Meaning of “absolute and undisturbed use and occupation” in treaty setting apart lands for Shoshone Tribe. U. S. v. Shoshone Tribe, 111. 2. Id. Tribe’s right of occupancy under treaty with Klamath and other Indians. U. S. v. Klamath Indians, 119. 3. Compensation for lands appropriated by United States; value of standing timber. U. S. v. Klamath Indians, 119. 4. Right of Shoshones in treaty lands included mineral and timber resources. U. S. n. Shoshone Tribe, 111. INDICTMENT. Demurrer to indictment for violation of Filled Milk Act should have been overruled; Act not invalid on its face. U. S. N. Carolene Products Co., 144. INJUNCTION. 1. Suit in federal court to restrain enforcement of order of state administrative commission affecting rates of utility; Johnson Act inapplicable to order made without notice or hearing; adequacy of legal remedy; irreparable injury. Petroleum Exploration v. Comm’n, 209. 2. Construction of § 3 of Act of Aug. 24, 1937, providing for three-judge court and direct appeal upon application to restrain enforcement of Act of Congress. International Garment Workers n. Donnelly Co., 243. 3. Suit to restrain collection or assessment of tax; application of R. S. § 3224. Allen v. Regents, 439. INSTRUCTIONS TO JURY. Issue submitted to jury was, in substance, whether utility rate was confiscatory. Lone Star Gas Co. n. Texas, 224. INSURANCE. See Jurisdiction, I, 13; Taxation, II, 8. 1. Right of Insurer to rescind for fraud in application; what law governs in suit in federal court. Ruhlin v. N. Y. Life Ins. Co., 197. INDEX. 603 INSURANCE—Continued. 2. Marine Insurance. Valued Policy. Subrogation. Purpose and effect of valuation clause; right of insurer to participate by way of subrogation in recovery by insured against tortfeasor. Aetna Ins. Co. v. United Fruit Co., 430. INTEREST. Compensation in eminent domain cases. U. S. v. Klamath Indians, 119. INTERNATIONAL LAW. See Interstate Compacts; States. 1. Foreign Government. Recognition and its consequences. Guaranty Trust Co. v. U. S., 126. 2. Id. Suit by foreign government; state statutes of limitations; right of United States as assignee. Id. INTERSTATE COMMERCE ACTS. 1. Rates. Order that carriers discontinue allowances on linehaul rates to industrial plants for moving cars between interchange tracks and plants, sustained. U. S. v. Pan American Corp., 156- 2. Discrimination by Carrier. Furnishing cars; transportation in Mexico; discrimination between shippers. St. Louis, B. & M. Ry. Co. v. Brownsville Dist., 295. 3. Orders of Commission. Lower court’s refusal to pass on validity of order vacated and set aside by a later order, also attacked, sustained. B. & 0. R. Co. v. U. S., 58. 4. Id. Construction of order which brings it within jurisdiction of Commission preferred to another which does not. Id. 5. Id. Findings of court below, supported by the record, negatived objections to rate order. Id. 6. Id. Commission’s findings and orders held supported by evidence. U. S. v. Pan American Corp., 156. 7. Id. Commission’s determination of questions of fact, supported by evidence, conclusive. U. S. v. Pan American Corp., 156. INTERSTATE COMPACTS. See Hinderlider v. La Plata River Co., 92. INTERVENTION. See Nebraska v. Wyoming, 545. INTOXICATING LIQUORS. 1. Discriminatory State Laws. Mahoney v. Triner Corp., 401. 2. Regulation and Taxation of sales in Yosemite National Park. Collins v. Yosemite Park Co., 518. 604 INDEX. IRRIGATION. See Waters. IRRIGATION DISTRICTS. See Constitutional Law, I, 14. JUDGMENTS. Res Judicata. Effect of state court decree adjudicating to local user right in water of interstate stream in excess of State’s equitable portion. Hinderlider n. La Plata River Co., 92. JUDICIARY ACT. Construction of § 34; doctrine of Swift v. Tyson disapproved. Erie R. Co. v. Tompkins, 64. JURISDICTION. See Interstate Commerce Acts. I. In General, p. 604. II. Jurisdiction of this Court, p. 605. III. Jurisdiction of Circuit Courts of Appeals, p. 607. IV. Jurisdiction of District Courts, p. 607. V. Jurisdiction of State Courts, p. 607. References to particular subjects under title Jurisdiction: Adequate Legal Remedy, I, 5-6; Amount in Controversy, I, 15; Board of Tax Appeals, III, 5; Certiorari, II, 10-15; Circuit Courts of Appeals, II, 19-20; III, 1-5; Federal Question, I, 7-10; Finality of Judgment, II, 7; Findings, II, 17-18; V; Injunction, I, 2-6; IV, 2-4; Interstate Commerce Comm’n, IV, 5; Johnson Act, I, 4; Labor Board, II, 19; III, 1-2, 4; Mandamus, II, 19; Moot Controversy, I, 16; Original Jurisdiction, II, 1; Power Commission, III, 3; Prohibition, II, 19; Rehearing, III, 3-4; Rules of Decision, I, 11-14; Scope of Review, I, 17; State Courts, II, 3-10; Suit Against United States, I, 1; Suit by State, II, 1; Taxes, I, 2; Three Judge Court, I, 3. I. In General. 1. Suit Against United States to recover taxes wrongfully collected. Lowe Bros. Co. v. U. S., 302. 2. Injunction. Taxes. R. S. § 3224, denying jurisdiction of suits to restrain assessment or collection of tax, held inapplicable. Allen v. Regents, 439. 3. Injunction. Three Judge Court. Appeal. Garment Workers’ Union v. Donnelly Co., 243. 4. Injunction. Order of State Commission. Suit to restrain order requiring utility to produce evidence affecting rates; application of Johnson Act; irreparable injury. Petroleum Exploration n. Comm’n, 209. 5. Adequacy of Legal Remedy. Legal remedy must be one available in federal courts. Id. INDEX. 605 JURISDICTION—Continued. 6. Id. Objection that adequate legal remedy exists may be taken by trial or appellate court sua sponte. Id. 7. Federal Question. Whether water of interstate stream must be apportioned is federal question. Hinderlider v. La Plata River Co., 92. 8. Id. District Court was without jurisdiction under § 3 of Act of Aug. 24, 1937, where case lacked substantial federal question. California Water Co. v. Redding, 252. 9. Id. Lack of substantial federal question might appear from decision of this Court rendered in another case subsequent to filing of bill in district court. Id. 10. Id. Question of validity of bond issue under state constitution and laws was local. Id. 11. Rules of Decision. Liability of railroad for negligence; what law governs; Swift v. Tyson, 16 Pet. 1, disapproved. Erie R. Co. v. Tompkins, 64. 12. Id. Liability of lessor of truck for personal injuries to third party, governed by lex loci delicti. Hudson v. Moonier, 397. 13. Id. Construction of insurance contract; equity; what law governs. Ruhlin v. N. Y. Life Ins. Co., 202; N. Y. Life Ins. Co. v. Jackson, 261; Rosenthal v. N. Y. Life Ins. Co., 263. 14. Id. Constitutional question not decided unless necessary on record. Arkansas Oil Co. v. Louisiana, 197. 15. Amount in Controversy in suit to enjoin enforcement of order requiring utility to produce evidence; expense of compliance with order. Petroleum Exploration v. Comm’n, 209. 16. Moot Controversy. Federal Trade Comnfn v. Goodyear Co., 257. 17. Scope of Review. Crown Cork Co. v. Gutmann Co., 159; General Pictures Co. v. Western Electric Co., 175. II. Jurisdiction of this Court. 1. Original Jurisdiction. Suit by State to enforce statutory liability of shareholder of state bank in liquidation, for benefit of creditors of bank, not within original jurisdiction. Oklahoma n. Cook, 387. 2. Direct Appeal under § 3 of Act of Aug. 24, 1937, from decision on application for injunction to restrain enforcement of act of Congress; when proper. International Garment Workers v. Donnelly Co., 243. 606 INDEX. JURISDICTION—Continued. 3. Review of State Courts. Dismissal. Want of jurisdiction. McAlvay v. Stockwell, 547; Champlin Rfg. Co. v. Ryan, 549; Mosher v. American Surety Co., 550; Ned v. Robinson, 550. 4. Want of substantial federal question. California Water Co. v. Redding, 252. 5. Want of properly presented substantial federal question. Hughes v. Wisconsin Tax Comm’n, 548. 6. Id. Non-federal ground adequate to support judgment. Tax Commission v. Wilbur, 544. 7. Id. Finality of Judgment of state court. Laclede Gas Co. v. Commission, 398. 8. Review of State Courts. Interstate compact not a “treaty or statute of the United States” and decision of state court against its validity not appealable under Judicial Code, § 237 (a). Hinder-lider v. La Plata River Co., 92. 9. Id. Claim based on equitable apportionment of water interstate, not within Judicial Code, § 237 (a). Hinderlider v. La Plata River Co., 92. 10. Id. Decision of state court restraining state engineer from action required by interstate compact, reviewable by certiorari under Judicial Code, § 237 (b). Id. 11. Certiorari. Review on certiorari limited to questions presented by petition. Crown Cork Co. v. Gutmann Co., 159; General Pictures Co. v. Western Electric Co., 175. 12. Id. Grounds for issuance of writ in patent cases. General Pictures Co. v. Western Electric Co., 175. 13. Id. Grounds for issuance of writ in cases where decision controlled by stafe law. Ruhlin v. N. Y. Life Ins. Co., 202. 14. Id. Conflict in decisions of Circuit Courts of Appeals as to questions controlled by state law, not in itself basis for granting writ. Ruhlin v. N. Y. Life Ins. Co., 202. 15. Id. Timeliness of application for certiorari. Labor Board v. Mackay Co., 333. 16. Scope of Review. Claim not presented by bill nor in request for findings, not considered. Denver Stock Yard Co. v. U. S., 470. 17. Findings. Case remanded to District Court for findings of fact and conclusions of law in accordance with Equity Rule 70^/2- Oil Shares Inc. v. Commercial Trust Co., 551. 18. Concurrent Findings of courts below; conclusiveness. General Pictures Co. v. Western Electric Co., 175. INDEX. 607 JURISDICTION—Continued. 19. Mandamus and Prohibition as appropriate remedies for unwarranted assumption of jurisdiction by Circuit Court of Appeals over proceedings of Labor Board. In re Labor Board, 486. 20. Power where direct appeal to this Court mistakenly taken, and time for appeal to Circuit Court of Appeals has expired. International Garment Workers v. Donnelly Co., 243. 21. Stay of execution of judgment of state court pending action • on petition for certiorari. American Nat. Bank v. Ames, 543. III. Jurisdiction of Circuit Courts of Appeals. 1. Review of orders of Labor Board; filing of transcript of proceedings before Board as jurisdictional. In re Labor Board, 486. 2. Id. Mandamus and prohibition as appropriate remedies for unwarranted assumption of jurisdiction by Circuit Court of Appeals over proceedings of Labor Board. Id. 3. Review of orders of Federal Power Commission; requirement as to application for rehearing; order granting rehearing not reviewable. Federal Power Comm’n v. Metropolitan Edison Co., 375. 4. Rehearing in Labor Board cases; timeliness of application for certiorari. Labor Board v. Mackay Co., 333. 5. Scope of Review of decision of Board of Tax Appeals. Helvering v. National Grocery Co., 282. IV. Jurisdiction of District Courts. 1. Suit Against United States under Jud. Code, § 24 (20), to recover taxes in excess of $10,000 wrongfully collected. Lowe Bros. Co. v. U. S., 302. 2. Injunction. Application of Act of Aug. 24, 1937; case triable before single judge rather than three-judge court; when direct appeal under § 3 proper. International Garment Workers v. Donnelly Co., 243. 3. Id. Where no substantial federal question is presented, court is without jurisdiction under § 3 of Act of Aug. 24, 1937. California Water Co. v. Redding, 252. 4. Id. State Commission. Johnson Act of May 14, 1934, inapplicable to suit to enjoin order made without notice or hearing. Petroleum Co. v. Comm’n, 209. 5. Reasonableness of carrier’s refusal to furnish cars for transportation in Mexico, primarily within regulatory power of Interstate Commerce Commission, was not within jurisdiction of District Court. St. Louis, B. & M. Ry. Co. v. Brownsville Dist., 295. V. Jurisdiction of State Courts. Texas Court of Civil Appeals without authority to substitute findings made by itself for the determinations of a jury in a rate case. Lone Star Gas Co. v. Texas, 224. 608 INDEX. LABOR RELATIONS ACT. 1. Unfair Labor Practices. Discrimination in Reinstating Employees on Strike. Affirmative Relief. Existence of “labor dispute”; strikers remained “employees”; discrimination in reinstating employees who were on strike was unfair practice; order requiring reinstatement and back pay was justified; deduction of sums earned prior to reinstatement allowed; effect of notices required to be posted. Labor Board v. Mackay Co., 333. 2. Procedure. Findings. Examiner’s Report. Finding as to existence of “labor dispute”; finding of discrimination was supported by evidence; variance between findings and complaint; tentative report of trial examiner not essential. Id. 3. Review of Proceedings by Circuit Court of Appeals; filing of transcript as prerequisite; until transcript filed, Board has authority to vacate or modify its order. In re Labor Board, 486. LABOR UNIONS. See Labor Relations Act. LA PLATA RIVER COMPACT. Validity and effect. Hinderlider n. La Plata River Co., 92. LICENSES. See Constitutional Law, I, 5. LIFE INSURANCE. See Taxation, II, 8. LIMITATIONS. Foreign Sovereign not exempt from operation of statute of limitations; claim of Russian Government to bank deposit barred by limitations; effect of assignment of right to the United States. Guaranty Trust Co. v. U. S., 126. LIQUIDATION. See Taxation, II, 6. MANDAMUS. As remedy for unwarranted assumption of jurisdiction by Circuit Court of Appeals over proceedings of Labor Board. In re Labor Board, 486. MARKET AGENCIES. See Packers & Stockyards Act. MILK. See Constitutional Law, II, 2. MINERALS. See Indians, 4. MOOT CASE. See Antitrust Acts. MORTGAGES. See Bankruptcy, 2. MUNICIPAL CORPORATIONS. See Bankruptcy, 1. NATURAL RESOURCES. See Indians, 3-4. INDEX. 609 NEGLIGENCE. Liability governed, in suit in federal court, by law of State where accident occurred. Erie R. Co. v. Tompkins, 64; Hudson v. Moonier, 397. NOTICE AND HEARING. See Constitutional Law, I, 17; IV, 11-13; V. OIL AND GAS. Purchase of Oil. Statutory regulation of payment. Arkansas Oil Co. v. Louisiana, 197. OPINION. See Findings. PACKERS AND STOCKYARDS ACT. 1. Rates. Method of fixing; rate base; going-concern value; contributions to charitable and civic organizations; costs and expenses of litigation as operating cost; adequacy of 6%% return. Denver Stock Yard Co. v. U. S., 470. 2. Discrimination. Special privileges to “traders.” Id. 3. Rate Order. Hearing. Order fixing maximum charges of market agencies for stockyards sendees, void for want of “full hearing” before Secretary of Agriculture. Morgan v. U. S., 1. 4. Id. “Full hearing” embraces not only right to present evidence but also a reasonable opportunity to know claims of opposing party and to meet them. Id. 5. Id. Function of examiner’s report. Id. 6. Id. Rate proceeding was adversary. Id. 7. Id. Secretary’s acceptance of findings prepared by prosecutors after ex parte discussion and without opportunity to respondents to know and contest claims, vitiated order. Id. 8. Id. Rate order made without full hearing not validated by former findings and order. Id. 9. Id. Questions as to disposition of moneys impounded by District Court, representing charges of market agencies in excess of rate fixed by void order, are for that court to decide. Id. 10. Id. Petition for rehearing charging inconsistency of decision with earlier one, and surprise, denied. Id. PAROLE. See Criminal Law, 2. PARTIES. 1. Suit by foreign government; authorized representatives. Guaranty Trust Co. n. U. S., 126. 81638°—38---39 610 INDEX. PARTIES—Continued. 2. That States be parties to suit not essential to jurisdiction to determine validity and effect of interstate compact. Hinder-lider v. La Plata River Co., 92. 3. Substitution. Public Officer. Successor of collector of internal revenue. Allen v. Regents, 439. PARTNERSHIP. Dissolution. Death of partners; tax liability of survivors. Heiner v. Mellon, 27. PATENTS FOR INVENTIONS. 1. Divisional Patent. Validity as affected by delay in filing divisional application; absence of intervening rights. Crown Cork Co. v. Gutmann Co., 159; General Pictures Co. n. Western Electric Co., 175. 2. Validity. Product Claims. Disclosure. Description. Definiteness. Product claims 25-27, of Patent No. 1,410,499, to Paez, for filament for electric lamp, void for want of sufficiently definite disclosure. General Electric Co. v. Wabash Corp., 364. 3. Id. Public use of invention. General Pictures Co. v. Western Electric Co., 175. 4. Infringement. Restrictive license; unauthorized sale; purchaser as infringer. Id. 5. Infringement Suit. Defense. Abandonment must be pleaded or noticed. Crown Cork Co. v. Gutmann Co., 159. PAYMENT. Statute requiring payment for oil to presumptive owner. Arkansas Oil Co. v. Louisiana, 197. PENAL INSTITUTIONS. See Criminal Law, 2. PERSONAL INJURIES. See Negligence. PIPELINES. See Constitutional Law, II, 5. PORT OF NEW YORK AUTHORITY. See Taxation, II, 3. PROCEDURE. See Limitations; Packers & Stockyards Act, 3-10. 1. Substitution of Parties.. Allen v. Regents, 439. 2. When three-judge District Court and direct appeal to this Court proper under § 3 of Act of Aug. 24, 1937. International Garment Workers v. Donnelly Co., 243. 3. Where direct appeal to this Court mistakenly taken, and time for appeal to Circuit Court of Appeals has expired. Id. 4. Suit decided in lower federal court on mistaken assumption that construction of insurance policy was question of “general” INDEX. 611 PROCEDURE—Continued. or “federal” law, remanded for enforcement of applicable principles of state law. Ruhlin v. N. Y. Life Ins. Coi, 202. 5. Mandamus and prohibition as appropriate remedies for unwarranted assumption of jurisdiction by Circuit Court of Appeals over proceedings of Labor Board. In re Labor Board, 486. PROHIBITION. As remedy for unwarranted assumption of jurisdiction by Circuit Court of Appeals over proceedings of Labor Board. In re Labor Board, 486. PUBLIC OFFICERS. See Parties, 3; Taxation, II, 1-3. PUBLIC UTILITIES. See Constitutional Law, II, 4r-9; Instructions to Jury; Packers & Stockyards Act. 1. Suit to enjoin order of state commission requiring utility to produce evidence affecting rates; justification for equitable intervention. Petroleum Exploration v. Comm’n, 209. 2. Validity of order of state commission prescribing rate for gas supplied by pipeline company to affiliated distributing companies within State; treatment of property and operations of company within and outside State as integrated system for purpose of fixing rate. Lone Star Gas Co. v. Texas, 224. 3. Reversal of judgment holding rate confiscatory because utility failed to make segregation of interstate and intrastate properties, held error. Id. RAILROADS. Liability in suit in federal court to one injured on beaten path along right-of-way. Erie R. Co. v. Tompkins, 64. RATES. See Constitutional Law, II, 4-9; Interstate Commerce Acts, 1; Public Utilities. Fixing rates of market agencies under Packers & Stockyards Act; procedure. Morgan v. U. S., 1. REHEARING. 1. Petition charging inconsistency with earlier decision, and surprise, denied. Morgan v. U. S., 1. 2. Jurisdiction of Circuit Court of Appeals to entertain petition for rehearing of judgment denying application of Labor Board for enforcement of order. Labor Board v. Mackay Co., 333. 3. Order of Federal Power Commission granting rehearing; review. Federal Power Comm’n v. Edison Co., 375. 612 INDEX. RESCISSION. Right of insurer to rescind for fraud in application; what law governs. Ruhlin v. N. Y. Life Ins. Co., 202. RIGHT-OF-WAY. See Railroads. RIPARIAN RIGHTS. See Waters. RIVERS. See Waters. RULES. 1. Amendment of Rules of this Court, p. 591. 2. Amendment of Criminal Rules, p. 592. RUSSIA. Recognition of Soviet Government; operation of limitations as affected by assignment of right to United States. Guaranty Trust Co. v. U. S., 126. SALARIES. See Taxation, II, 1-2. SECRETARY OF AGRICULTURE. See Packers & Stockyards Act. SENTENCE. See Criminal Law, 2. STATES. See Waters. 1. Capacity to contract and give consents bearing on exertion of governmental power is of essence of sovereignty. U. S. v. Bekins, 27. 2. Compacts between States. Hinderlider v. La Plata River Co., 92. 3. Employees of Port of New York Authority not employees of State or political subdivision within Treas. Reg. 77, Art. 643, under Revenue Act 1928; and are not immune from federal taxation. Helvering v. Gerhardt, 405. STATUTES. 1. Challenging Statute. U. S. v. Carolene Products Co., 144. 2. Validity. Legislature not obliged to prohibit all like evils or none. U. S. v. Carolene Products Co., 144. 3. Id. Vagueness. Helvering x. National Grocery Co., 282. 4. Legislative History. Taft x. Commissioner, 351. 5. Administrative Construction. Lang v. Commissioner, 264. 6. Assent of Congress to interstate compact did not make it a “statute of the United States,” under Judicial Code, § 237 (a). Hinderlider v. La Plata River Co., 92. STOCKYARDS. See Packers & Stockyards Act. INDEX. 613 SURTAX. See Taxation, II, 5. STREAMS. See Waters. STRIKES. See Labor Relations Act, 1. SUBROGATION. See Insurance, 2. SUBSTITUTION OF PARTIES. See Parties, 3. SWIFT v. TYSON. Doctrine disapproved. Erie R. Co. v. Tompkins, 64. TAXATION. I. In General. II. Federal Taxation. III. State Taxation. I. In General. 1. Validity of Chapter X of Bankruptcy Act, providing for composition of indebtedness of state taxing agencies and instrumentalities. U. S. v. Bekins, 27. 2. Suit under Jud. Code, § 24 (20) to recover taxes wrongfully collected. Lowe Bros. Co. v. U. S., 302. 3. Liability of Collector. Lowe Bros. Co. v. U. S.. 302. 4. Suit Against United States in District Court under Jud. Code, § 24 (20) to recover taxes in excess of $10,000 wrongfully collected; overpayment effected by allowance of credit against barred deficiency. Lowe Bros. Co. v. U. S., 302. II. Federal Taxation. 1. State Instrumentalities. Salaries of employees of Port of New York Authority not immune from federal income taxation. Helvering n. Gerhardt, 405. 2. Id. Exclusion from gross income of salaries of employees of State or state-owned corporation not authorized by § 116 of Rev. Act 1932. Id. 3. Id. Employees of Port of New York Authority not employees of State or political subdivision within Treas. Regulations 77, Art. 643, under Rev. Act 1932. Id. 4. Id. Federal Admissions Tax validly applied to football ' games at state educational institutions. Allen v. Regents, 439. 5. Income Tax. Undistributed Earnings. Validity and application of additional tax imposed by § 104 of Rev. Act 1928 on income of corporation availed of to prevent surtax on shareholders by accumulating profits. Helvering v. National Grocery Co., 282. 614 INDEX. TAXATION—Continued. 6. Id. Partnership profits; profits in liquidation; distributive share; dissolution by death as affecting tax liability of surviving partners. Heiner v. Mellon, 271. 7. Income Tax. Computation. Profits from sales of property; change from one method of computation to another. Pacific National Co. v. Welch, 191; U. S. v. Kaplan, 195. 8. Estate Tax. Life Insurance. Community Property. Proceeds of policies as part of gross estate where premiums paid from community property; “policies taken out by decedent on own life.” Lang v. Commissioner, 264. 9. Estate Tax. Deductions. Promise to pay money to charitable or educational institution; no claim against estate incurred for “adequate and full consideration”; promise not a “transfer”; only testamentary gift inter vivos deductible. Taft v. Commissioner, 351. III. State Taxation. 1. Taxation by California of sales of intoxicating liquors in Yosemite National Park. Collins v. Yosemite Park Co., 518. 2. Indiana Gross Income Tax Act. Application to gross receipts from manufacturer’s sales in other States, invalid; application in respect of interest from tax-exempt bonds of Indiana municipalities, sustained. Adams Mfg. Co. v. Stören, 307. 3. Exemptions. Limitation of exemption of Indiana state and municipal bonds to taxation ad valorem, sustained. Id. TIMBER. See Indians, 3-^. TRANSCRIPT. See Jurisdiction, III, 1. TRANSFERS. See Taxation, II, 9. TREATIES. See Compacts. 1. Construction overriding state laws or impairing rights arising under them, avoided. Guaranty Trust Co. v. U. S., 126. 2. Construction of treaties made with Indian tribes. U. 8. v. Shoshone Tribe, 111; U. S. v. Klamath Indians, 119. VARIANCE. Variance between findings and complaint as denial of hearing before Labor Board. Labor Board v. Mackay Co., 333. VENDOR AND VENDEE. Payment. Statutory requirement that payment for oil be made to presumptive owner. Arkansas OU Co. v. Louisiana, 197. INDEX. 615 WAIVER. Waiver of right of accused to assistance of counsel. Johnson n. Zerbst, 458. WATERS. 1. Equitable Apportionment between States; rights of private claimants; validity and effect of compact between States. Hinder-lider v. La Plata River Co., 92. 2. Water Rights. Effect of adjudication in one State on rights in another. Id. YOSEMITE NATIONAL PARK. See Constitutional Law, I, 5. o