UNITED STATES REPORTS
VOLUME 316
CASES ADJUDGED
IN
THE SUPREME COURT
AT
OCTOBER TERM, 1941
From March 31, 1942, to and Including June 8,1942 (End of Term)
ERNEST KNAEBEL
REPORTER
UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1943
For sale by the Superintendent of Documents, U. S. Government Printing Office Washington, D. C. - Price $2.75 (Buckram)
JUSTICES
OF THE
SUPREME COURT
DURING THE TIME OF THESE REPORTS
HARLAN FISKE STONE, Chief Justice.
OWEN J. ROBERTS, Associate Justice.
HUGO L. BLACK, Associate Justice.
STANLEY REED, Associate Justice.
FELIX FRANKFURTER, Associate Justice.
WILLIAM 0. DOUGLAS, Associate Justice.
FRANK MURPHY, Associate Justice.
JAMES F. BYRNES, Associate Justice.
ROBERT H. JACKSON, Associate Justice.
RETIRED
CHARLES EVANS HUGHES, Chief Justice.
JAMES CLARK McREYNOLDS, Associate Justice.
GEORGE SUTHERLAND, Associate Justice.
FRANCIS BIDDLE, Attorney General.
CHARLES FAHY, Solicitor General.
CHARLES ELMORE CROPLEY, Clerk.
THOMAS ENNALLS WAGGAMAN, Marshal.
hi
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, Felix Frankfurter, Associate Justice.
For the Second Circuit, Robert H. Jackson, Associate Justice.
For the Third Circuit, Owen J. Roberts, Associate Justice.
For the Fourth Circuit, Harlan F. Stone, Chief Justice.
For the Fifth Circuit, Hugo L. Black, Associate Justice. For the Sixth Circuit, Stanley Reed, Associate Justice. For the Seventh Circuit, James Francis Byrnes, Associate Justice.
For the Eighth Circuit, Frank Murphy, Associate Justice.
For the Ninth Circuit, William 0. Douglas, Associate Justice.
For the Tenth Circuit, Frank Murphy, Associate Justice.
For the District of Columbia, Harlan F. Stone, Chief Justice.
October 14, 1941.
(For the next previous allotment, see 313 U. S. p. iv.)
IV
PROCEEDINGS IN MEMORY OF MR. JUSTICE VANDEVANTER.
Members of the Bar of the Supreme Court of the United States met in the Supreme Court Building on Monday, March 16,1942, at 10 o’clock a. m.*
The meeting was called to order by Mr. Solicitor General Fahy.
Mr. Fahy said:
This meeting of the Bar of the Supreme Court was called to honor the memory and the life of Mr. Justice Willis Van Devanter. The purpose of the meeting has met feeling response. Willis Van Devanter lived from April 17,1859 to February 8 of last year. For 27 years prior to his retirement on June 2, 1937, he was an Associate Justice of the highest court of his country. When his soul passed on, there remained the enduring influence of his work and character. He had long enjoyed not only the respect and regard of those privileged by his personal association and friendship but the recognition of worth intuitively conferred by all upon one who ably and faithfully administered the public trust. Custom accords with aspiration when those who still attend his court meet to pay honor to him. We do this not simply in tribute but with fruitfulness to ourselves.
On the motion of Mr. Solicitor General Fahy, Mr. George Wharton Pepper was elected Chairman, and Mr. Charles Elmore Cropley, Secretary.
*The members of the Committee on Arrangements for this meeting were: Mr. Solicitor General Fahy, Chairman; and Messrs. John Spalding Flannery and Charles Warren, of Washington, D. C.; Charles B. Eugg, of Massachusetts; and Michael J. Doherty, of Minnesota.
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VI MR. JUSTICE VAN DEVANTER.
On taking the Chair, Mr. Pepper said:
Most of those here assembled have taken part in many memorial meetings. On such occasions our states of mind have differed widely. Not seldom the sentiments expressed were tainted with unreality. Sometimes the man in his lifetime had been merged in the judge to such a degree that we remembered him merely in terms of views held and opinions written. Occasionally the meeting was obviously a gathering of personal friends moved by a genuine desire to express deep feeling. I take it that this is a gathering of that sort. Each of us, in the passing of Mr. Justice Van Devan ter, has experienced a personal loss. Each of us welcomes the opportunity to testify to our admiration for the man and appreciation of the courtesies and kindnesses of which we severally have been the recipients.
Apart from appearances before him as a Justice of the Court and in addition to friendly contacts with him at other times, I had the unusual opportunity to see him in action during the international controversy over the sinking by our Coast Guard of the rum runner styled the "I’m Alone.” Representing the United States in that controversy, I had occasion to appear before the two Commissioners appointed under the Convention between the United States and Canada. Mr. Justice Van Devanter was one and the Chief Justice of Canada, Sir Lyman Poore Duff, was the other. The tribunal sat both in Washington and in Ottawa. In advance of the hearings, I had been apprehensive that no conclusion could be reached by a two-man court, each member of which was identified in interest with one of the litigants. The apprehensions were groundless. A statesman-like view of the situation and a judicial approach to the various problems involved, characterized the conduct of both Commissioners. The result jointly reached approximated perfect justice and happily ended a most troublesome international episode.
MR. JUSTICE VAN DEVANTER. vn
I do not propose, however, to take advantage of my position as presiding officer to express myself at length about the Justice. I wish merely to place on record the fact of affectionate regard for a friend and of high admiration for a man who embodied the qualities which we most like to associate with America. At a moment of crisis and with our country at war, I cannot better summarize my testimony than by suggesting that a regiment of men of the type of Willis Van Devanter would prove invincible no matter by what force confronted.
Mr. Pierce Butler, Jr., on behalf of the Committee on Resolutions,* submitted a Minute and Resolutions, which will be found in the address made later by the Attorney General in presenting them to the Court. See post, pp. xxix-xxxiv.
The meeting was then addressed by Messrs. Charles E. Hughes, Jr., William D. Mitchell, and John W. Davis.
Mr. Hughes said:
When Mr. Justice Van Devanter retired from the Supreme Court of the United States in May of 1937, he had sat upon that Bench for upwards of twenty-six years, a long span even when measured in relation with the traditions of that Court. He took his seat on January 3,
*The members of this Committee were: Mr. George Wharton Pepper, of Pennsylvania, Chairman; Messrs. Oscar W. Underwood, Jr., of Alabama; Garret W. McEnemey, of California; William V. Hodges, of Colorado; George E. Hamilton and G. Carroll Todd, of the District of Columbia; Silas H. Strawn and Luther M. Walter, of Illinois; Richard N. Elliott and Frederick Van Nuys, of Indiana; Frederick F. Faville, of Iowa; William Marshall Bullitt, of Kentucky; Roscoe Pound, of Massachusetts; Pierce Butler, Jr., and Frederick H. Stinch-field, of Minnesota; James A. Reed, of Missouri; Henry W. Taft and Thomas D. Thacher, of New York; J. Crawford Biggs, of North Carolina; Robert A. Taft, of Ohio; Streeter B. Flynn, of Oklahoma; Walter P. Armstrong and William L. Frierson, of Tennessee; Hatton W. Sumners, of Texas; Warren R. Austin, of Vermont; George Donworth, of Washington; and Joseph C. O’Mahoney, of Wyoming.
VIII MR. JUSTICE VAN DEVANTER.
1911, when Mr. Justice White had only recently been appointed Chief Justice. He was then only fifty-one years of age. But he brought to the Court a rich background of learning, experience and wisdom.
He was a native of Marion, Indiana, and for the first three years after his graduation from the University of Cincinnati Law School in 1881 he practiced law there with his father, a successful lawyer of thait town. But the prospect held out to him by a brother-in-law, of identifying himself with a pioneer community in the Far West, presented attractions that proved irresistible. And in 1884 he took his bride of a few months to Cheyenne, Wyoming.
Wyoming was then a Territory and a turbulent one. Its heterogeneous population had as yet made no great progress towards the organization of an orderly society. There was no overcrowding of the Bar at Cheyenne, and a lawyer of the attainments and physical and mental vigor of Willis Van Devanter was destined for rapid recognition and preferment. Two years after coming there, and when only twenty-seven years old, he was appointed Commissioner to revise the Wyoming statutes; the next year City Attorney of Cheyenne; and a year after that he became a member of the Territorial Legislature, in which he served as Chairman of the Judiciary Committee.
The following year, 1889, he became Chief Justice of the Supreme Court of Wyoming. The judicial business of that Court was not large and its justices sat in the lower courts as well. It was during the ensuing year of his incumbency that Wyoming became a state. The Supreme Court of the State was organized in October of 1890. He was elected to it, and became its Chief Justice also, but resigned within a few days thereafter.
Following his resignation from judicial service, Mr. Van Devanter plunged again into the practice of the law. It was a successful and rewarding practice, and he num-
MR. JUSTICE VAN DEVANTER. ix bered among his clients the Union Pacific Railroad and important land, cattle and irrigation companies. He was also drawn more prominently into politics. He became Chairman of the Republican State Committee in 1892; a member of the Republican National Committee in 1896; and was a delegate to the Republican National Convention of that year, which nominated Mr. McKinley for President.
He had then lived for twelve years in an expanding pioneer community, and had played a leading part in its emergence to statehood and stability. It is difficult to imagine an environment more likely to develop the strength and steadiness of character and understanding heart which, coupled with superior native intellectual capacity, are the best equipment for public service. Both in his practice as an attorney and in his political activities he literally “rode the circuit,” traveling on horseback from one settlement to another, and spending his nights in hostelries where all elements of the community mingled; and with all of them he was on terms of intimacy. It was his law practice during those years which laid the foundations of his knowledge of public land law, Indian affairs, and the law of western water rights, of which subjects he became an acknowledged master.
In 1897 President McKinley appointed him Assistant Attorney General of the United States in charge of the legal work connected with the administration of the public land laws by the Interior Department. He remained for four years in that post, which afforded unusual opportunities for further developing his learning in that field. During those years also Mr. Van Devan ter indulged those scholarly tastes, which had always been a conspicuous part of his make-up, by serving as professor of equity pleading and practice and equity jurisprudence in Columbian (now George Washington) University Law School.
In 1903 President Theodore Roosevelt appointed him Judge of the Circuit Court of Appeals for the Eighth Cir-
x MR. JUSTICE VAN DEVANTER.
cuit. His accession added great strength to a court which was already a distinguished one. Judge Walter H. Sanborn was on the court when Judge Van Devanter joined it, and Judge Hook came to it later. The wide range of the jurisdiction of the Circuit Court of Appeals, covering every department of the law, especially in the federal field, gave him the opportunity to broaden the scope of his learning; and his industry and accurate memory enabled him to make the most of it. His seven years as Circuit Judge was a period of conspicuous growth in all the qualities which make a great judge. He established a high reputation as one of the ablest members of the federal j udiciary. When, in December 1910, President Taft appointed him as Associate Justice of the Supreme Court of the United States, the fitness of his choice was widely recognized.
Upon the work of the Supreme Court, Mr. Justice Van Devanter left an enduring mark. He was not a judge of whom the public generally could gain any very sharply defined impression. He was quiet and unassuming, and appeared seldom in public. He made very few speeches, even before gatherings of lawyers, and those were of the conversational and unpretentious sort. He left practically no writings except his opinions. But his comprehensive learning, his industry, his passion for thoroughness and exactness, and his power of clear analysis and forceful exposition marked him, among all those who really knew the work of the Court, as one of its most conspicuously valuable members. It is impossible within the limits of remarks such as these to attempt any survey of the opinions which he wrote during the twenty-six years of his service upon the Court. It is enough to say that they comprehended most of the fields within the Court’s jurisdiction, and that, to whatever subject they related, they were characterized by a lucidity and assurance which comes only from complete mastery of principles and precedents. It is safe to say also that there were many opinions, not
MR. JUSTICE VAN DEVANTER. xi written by him, which were profoundly influenced by his penetrating analyses in the conferences of the Court.
It was indeed in conference that his most distinguished contribution to the work of the Court was made. This quality ordinarily cannot be known to the Bar, but may only be surmised. But, in the case of Mr. Justice Van Devanter, we have the authoritative testimony of two of the three Chief Justices with whom he served. Chief Justice Taft spoke of it in a letter to the President of Yale University in December 1926, which has been published in Henry F. Pringle’s book, “The Life and Times of William Howard Taft.” In suggesting Mr. Justice Van Devanter for the honorary degree of LL. D., which Yale awarded him the following June, he said:
“The value of a judge in conference, especially in such a court as ours, never becomes known except to the members of the court. Now I don’t hesitate to say that Mr. Justice Van Devanter is far and away the most valuable man in our court in all these qualities. We have other learned and valuable members, with special knowledge in particular subjects, but Van Devanter has knowledge in every subject that comes before us.”
Over eleven years later, at the Annual Meeting of the American Law Institute in May 1938, which was the first after Mr. Justice Van Devanter’s retirement, Chief Justice Hughes, in the course of paying tribute to his judicial service, said this:
“In the discharge of its work the conference of the Court is of the greatest importance, as there the Court discusses and decides the cases which have been heard and passes upon the applications for permission to be heard. It was in that conference that Justice Van Devanter’s wide experience, his precise knowledge, his accurate memory, and his capacity for clear elucidation of precedent and principle, contributed in a remarkable degree to the disposition of the Court’s business. . . . Few judges in our
XII MR. JUSTICE VAN DEVANTER.
history have rivaled him in fitness, by reason of learning, skill and temperament, for the judicial office.”
The confidence which the Court reposed in Mr. Justice Van Devanter led to his selection on frequent occasions for undertakings outside its strictly judicial work. His outstanding service of this nature was in connection with the Jurisdictional Act of February 13, 1925, of which he was the draftsman and the chief expositor in the hearings before the Judiciary Committees of the Senate and House of Representatives. It was the most important judiciary measure since the Circuit Court of Appeals Act of 1891.
The main objects of the bill were the relief of the congestion of the Supreme Court docket, and the codification and correlation of the jurisdictional statutes. The Bar has become so accustomed in late years to see the Supreme Court end its term with all cases which were ready for hearing disposed of, that it is difficult to recall the conditions which necessitated this reform. By the early 1920’s the calendar had been, for years, seriously in arrears. Some relief had been obtained from the Act of September 6, 1916, which greatly curtailed writs of error from state courts. But its effect on the Court’s obligatory jurisdiction with respect to review of decisions of the Circuit Courts of Appeals was slight, and it did not affect cases coming from the District Courts, the Court of Claims, and the Court of Appeals of the District of Columbia. The enormous increase in federal activities during and after the first World War so augmented the judicial business of the lower federal courts as to more than overcome the diminution of cases from the state courts. By 1921 it required between something more than a year to something less than two years for a case to be reached for argument after its docketing, and there was grave ground for apprehension that the calendar would soon become even more congested.
A committee of the Court was appointed to formulate a plan for relief, chiefly by cutting down the field of ob-
MR. JUSTICE VAN DEVANTER. xm ligatory jurisdiction and widening that of discretionary review by certiorari. The first chairman of that committee was Mr. Justice Day, but he retired in 1922, and Mr. Justice Van Devan ter then became chairman and Mr. Justice Sutherland was added. At the time of the submission to Congress of the bill which became law, the Court’s committee consisted of Justice Van Devanter, Chairman, Justices McReynolds and Sutherland, with Chief Justice Taft, who gave his strong support throughout, member ex officio. The committee’s draft was submitted to the whole Court and upon its approval presented to Congress.
Mr. Justice Van Devanter’s characteristic comprehensiveness and precision of statement were admirably exemplified in his exposition to the committees of Congress of the need and purposes of the bill. He presented and explained an analytical tabulation of the business of the Supreme Court for the preceding ten years, with more detailed particulars as to the October terms of 1922 and 1923. The cases coming to the Supreme Court had increased from 530 in 1914 to 731 in 1923. The number of cases left over at the end of the term were 536 in 1914; and in 1923, in spite of the partial relief afforded by the Act of 1916, were still 462, with an upward trend clearly discernible. The cases coming as of right from the Circuit Courts of Appeals, the District Courts and the Court of Claims were the most fruitful field for diminution of the obligatory docket. Manifestly, many of these cases, of which those arising under the Federal Employers’ Liability Act and ordinary contract cases in the Court of Claims were outstanding examples, were not of the sort with which the Supreme Court should have been concerned. As Mr. Justice Van Devanter said, in defending the bill before the Judiciary Committee of the House: “It is not too much to say that one-third of the business which now comes to the Supreme Court results in no advantage to the litigants”; and, after an analysis of his reasons for that
XIV MR. JUSTICE VAN DEVANTER.
statement, he continued: “Of course, in proportion as our attention is engaged with cases of that character, it is taken away from others which present grave questions and need careful attention.”
The bill did not take out of the appellate jurisdiction of the Supreme Court any case that was within that jurisdiction under existing law. It simply transferred large classes of cases from the obligatory jurisdiction to the discretionary jurisdiction. Its further aims, as explained by Mr. Justice Van Devanter to the committees, were to bring together in a single enactment all of the statutes relating to the appellate jurisdiction of the Supreme Court and of the Circuit Courts of Appeals and to correlate and harmonize the jurisdictional statutes.
The bill was not a complete revision of the Judicial Code. That could not have been done, as Chief Justice Taft once said, without a corps of assistants whose time would be exclusively devoted to it. It would have been a task beyond the capacity of the Supreme Court directly to assume. As a practical matter, it is probable that the very fact that the bill was one of definite and limited objectives, which could be readily explained to and understood by the Congress, greatly facilitated its passage.
Its effect on the congestion of the calendar of the Supreme Court was quickly felt. At the end of the October term of 1927, only 190 cases were carried over undisposed of, as compared with 295 at the end of the October 1926 term. By the October 1929 term, the Court was hearing argument on cases docketed during that same term, and for the first time in many years no case that had been submitted was allowed to go over. By the October 1930 term, the Court was more likely to be ready to hear argument than counsel were to present it; and this condition has prevailed in increasing degree ever since.
An opportunity for service outside the Court came to Mr. Justice Van Devanter in 1929, when he was named Commissioner for the United States in the case of the Canadian rum-runner “I’m Alone,” which in that year was
MR. JUSTICE VAN DEVANTER. xv sunk by the Coast Guard some two hundred miles off Louisiana. Sir Lyman Poore Duff, Chief Justice of Canada, was the Commissioner for Canada. The final report of the Commissioners, rendered after hearing extensive evidence and oral argument, was a striking example of the independent and objective approach of judges imbued with the traditions of American and British judicial systems, even to controversial international issues. The “I’m Alone” had been engaged in carrying liquor from British Honduras through the Gulf of Mexico to points convenient to Louisiana, from which the vessel was unloaded and the liquor smuggled into the United States. It was found that the vessel was de facto owned and controlled by a group composed primarily of United States citizens and therefore no compensation should be made in respect of the ship or its cargo. It was further found, however, that the sinking was not justified either by international law or by the Convention of January 23, 1924, between His Majesty the King and the President of the United States, and Mr. Justice Van Devanter concurred in the recommendation against his Government that “the United States ought formally to acknowledge its illegality, and to apologize to His Majesty’s Canadian Government therefor; and further, that as a material amend in respect of the wrong the United States should pay the sum of $25,000 to His Majesty’s Canadian Government.”
Mr. Justice Van Devanter’s judicial service did not wholly end with his retirement from the Supreme Court of the United States. In December 1937 he accepted an assignment to sit in the United States District Court for the Southern District of New York, and in January and February of 1938 he presided over a series of criminal trials there. The circumstance of a judge who had been so long and so recently a member of the highest court of the land conducting jury trials was an arresting one and
XVI MR. JUSTICE VAN DEVANTER.
attracted wide public interest and a more than capacity attendance. His conduct of the court was a revelation to members of the Bar and laymen alike. His early years as a trial lawyer and a continuous aggregate of thirty-four years of service on appellate courts, in which records of trials were constantly passing under his scrutiny, gave him such a complete mastery of rules of substantive law, procedure and evidence that his application of them appeared instinctive. The trials were models of expedition, without sacrifice of fairness or courtesy to litigants, witnesses or counsel. On two occasions he remained at the Federal Building until long past midnight, once until after two o’clock to receive a verdict, and once until after four o’clock to prepare a charge which he, although then suffering from a cold, was on hand to deliver to the jury at ten o’clock the same morning. There can be no doubt that such strains, at his age, impaired his health and hastened his end.
And so Mr. Justice Van Devanter’s judicial career ended, as it had begun and continued throughout its long course, in faithful and unselfish devotion to the institutions of which he was so distinguished a part. His labors and the spirit which animated them are for lawyers to admire and for judges to emulate.
Mr. Mitchell said:
Perhaps the best contribution I can make on this occasion is to record some personal impressions of Mr. Justice Van Devanter, gained by an acquaintance of nearly forty years.
I first knew him in 1903 in Saint Paul, when, newly appointed United States Circuit Judge for the Eighth Circuit, he was attending a term of court. Though only forty-four years of age, his life had been crowded with interesting experiences.
His early experience as a farmer in Indiana, his turning to the law, and removal to the Territory of Wyoming; his service there in codifying the laws of the Territory, as a
MR. JUSTICE VAN DEVANTER. xvii member of the House of Representatives of the Territorial Legislature, as City Attorney in Cheyenne, and as Chief Justice of the Territorial and of the State Supreme Courts; his later activities there as a practicing lawyer from 1890 to 1897, including participation in the struggle to maintain law and order in Wyoming, during the period when cattle rustlers and outlaws seemed too strong for constituted authority, and vigilantes were substituting for lawful government,—all these incidents have been described in the resolutions you have just heard.
His political contacts during that time, as Chairman of the Republican State Committee, member of the Republican National Committee and delegate to a Republican National Convention, seem to have turned his attention toward Washington, and in 1897 he was hopeful of appointment as Solicitor General, but the affairs of the Interior Department were in a somewhat sorry state, and President McKinley asked him to take the post of Assistant Attorney General in the Interior Department. He accepted, and served with distinction in that office for six years; and there acquired a complete knowledge of the law and regulations of the Interior Department relating to public lands and Indian affairs. Then in 1903 he was appointed, by President Theodore Roosevelt, United States Circuit Judge.
That was his background when I first knew him.
Anyone meeting him would have thought, “Here is a man with great physical vigor, a powerful intellect and a driving and dominant personality.” The unusual physical strength with which nature endowed him had been seasoned and conditioned by outdoor western life, and this equipped him to satisfy his high sense of responsibility for the proper discharge of his judicial duties by working long hours.
Notwithstanding this serious absorption in his work, he was not without a sense of humor, but it was not of the
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frivolous or merry sort, and was always dignified. His contacts with men and affairs had given him an understanding of human nature and great tact and sagacity in dealing with his fellow men. That, added to his obvious physical and mental powers, made him a dominant figure and a compelling influence in any company.
The impressions of him gained at that time remained with me in all the after years. Commencing in 1925, and during my years of service in Washington, old acquaintance, as well as official duties, brought me frequently in contact with him. Many thought him unusually austere, but he was not so to his friends. He was dignified and somewhat reserved, even in his family life, but always courteous and considerate, and on his wife lavished a gentleness and loving care which was all the more noticeable because of his forceful personality.
On the bench, he exhibited on some occasions what might be described as withering severity towards lawyers appearing before him. But I learned, through frequent attendance in the Supreme Court Room, that in these instances the unfortunate object of his attentions invariably had been guilty of some impropriety or of misstatement. And the attorney who, through ignorance or by intention, made an unfair statement of fact, or evaded or placed a gloss upon the truth, was likely to have a rough time with Mr. Justice Van Devanter. Normally he was extremely courteous and kind to counsel, and disposed to be helpful to the diffident and inexperienced. More than once, after adjournment, I have seen him leave the bench and come forward and speak kindly and encouragingly to some young lawyer who had made his first appearance before the Court. In the same spirit, he was very kind and helpful to me. During my early experiences as Solicitor General he found the opportunity, very tactfully, and privately, to suggest ways of improving my court manners. I learned through him how im
MR. JUSTICE VAN DEVANTER. xix portant it is that the Solicitor General, whom the Court must listen to week in and week out for years, should be free from annoying mannerisms. The Court can stand them on occasions, but as a steady diet they become quite unbearable.
It has been remarked that he did not write and hand down his opinions with rapidity, and it was his habit both as a Circuit Judge and as a Justice to keep under advisement for considerable periods cases assigned to him for opinion. Some have wondered if this was because his mental processes were slow. But that was not the cause. He had an unusually quick mind and wonderful capacity to go immediately to the heart of a case. I was once told by a member of the Court that it was an interesting experience to sit in the conference room and listen to Mr. Justice Van Devanter, when called on for his views, state the facts and the law and his conclusions clearly and unhaltingly and with masterly logic; and that, if a shorthand reporter could have been present to record Justice Van Devanter’s statements in conference, the transcript would have supplied a powerful and orderly opinion suitable for delivery with little alteration. Nevertheless, when cases were assigned to him, he labored long in the preparation of opinions. That was due to his deep sense of responsibility and to his anxiety to be thorough and accurate to the last degree. He could have tossed off opinions with the greatest readiness, but he would not. Of the scores of times in Washington when I dropped in to see him at his home, at any hour of the day or evening, I cannot remember that I ever failed to find him, in his study, surrounded by printed records and briefs and volumes of the Supreme Court Reports, and busy with his judicial work.
I speak of these things because they emphasize his overwhelming sense of the responsibilities of his high office. Only tremendous physical vigor made such labor possible.
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The result is disclosed in his published opinions. No defeated lawyer could complain of any inaccuracies in the Justice’s statements of fact or of any failure to grasp and fairly state the questions involved. Furthermore, his style is simple and clear. He was not a phrasemaker and he did not import into his vocabulary words having no settled meaning in the law. His opinions are wholly free from such affectations. No one can fail to understand his reasoning and his conclusions; and, above all, his opinions not only dispose of the cases under consideration, but furnish to the profession a guide and a chart for the future. In various branches of the law his knowledge was so complete and accurate that the Court leaned on him heavily, as some of its members have frequently said. His experience in the west, together with his years of service in the Interior Department, had given him a knowledge of the law relating to public lands, Indian affairs, water rights, navigable waters, railroad land grants, and related subjects, more profound and complete than that of any other Justice who ever sat upon the Court.
From one point of view, it is to be regretted that he expended such a wealth of learning and experience on branches of the law which are rapidly losing their importance through changed conditions, but it must be remembered that there was a long period in which these subjects were of vital importance to the development of the west and to the entire nation.
In knowledge of the jurisdiction and powers of the federal courts under the Constitution and Acts of Congress, he had no superior. An illustration of this is found in the Act of February 13,1925, in the drafting of which he took a major part, and which reorganized the manner of invoking the appellate jurisdiction of the Supreme Court. That Act was a product of such a thorough knowledge and is so carefully drawn that, during the seventeen years since it was enacted, no doubts as to its interpretation and effect have arisen.
MR. JUSTICE VAN DEVANTER. xxi
The indelible impressions left with those who knew him are: his possession of physical vigor and a powerful intellect, vast and accurate knowledge of many branches of the law, and particularly of those bearing on the operations of the Federal Government and the functions of the Legislative, Executive and Judicial branches; an understanding of human nature, and a tact, which were effective in his contacts with others; the force, the industry, and the perseverance to accomplish his objectives; and a high sense of responsibility for the proper performance of his judicial functions and of his duty to the Court and to the nation, which governed his course during his years upon the bench.
Finally, there is something to be said of Mr. Justice Van Devanter’s views on those questions affecting the powers of government under the Constitution over the economic affairs of the citizen—questions which gave rise to so much controversy during his latter years upon the Court. Broadly stated, they related to the extent to which government could by regulation or regimentation restrict the economic freedom of the individual. It has been said that, in controversies of that sort in past years, the predilections of the Justices, born of their experiences with human affairs, have tended to affect their conclusions. To some degree, that has doubtless been true in the past. It is no less true at present, and it will be true in the future, as long as judges are human. Because of that, it has also been said that a Justice of the Supreme Court should not only be a great lawyer, but something of a statesman as well. It is too much to expect that his experience in human affairs should have no effect on a judge’s conception of the functions of government.
If we look back once more at Justice Van Devanter’s experience before he went upon the bench, we may find the seeds of his judgments. The Far West had been the field of his early endeavors during a period when there was still a frontier, where a man had to win his own way, and
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there was almost complete economic freedom, and individual initiative had its opportunity. There, a man with industry, character and brains earned success, the fruits of which, if honestly attained, he was allowed to enjoy.
It is not hard to understand why Mr. Justice Van Devanter should have believed that economic freedom is necessary to human happiness, and that other traditional liberties guaranteed by the Bill of Rights, such as freedom of speech and of the press, vital as they are, may not be enough, and indeed may disappear if economic freedom is lost. His opinions show that he believed that the regulative power of government over the economic affairs of people should be confined as far as practicable to the prevention of definite abuses and dishonesty; and that, under the Constitution, intimate interference with economic freedom and individual initiative is only justified where there is a definite showing that abuses have arisen which in the public interest require governmental interference; and finally (and here is where the controversy centered) he believed that it was the function of the courts to consider for themselves whether there was a substantial basis for legislative interference. The legal question whether, under the due process clauses of the Constitution, the courts may interfere with the judgment of legislative bodies that economic regulation is necessary, has been definitely, and doubtless finally, resolved contrary to Mr. Justice Van Devanter’s views. But in the court of public opinion the question whether human happiness and liberty will be best served by governmental planning of, and intimate control over, the economic affairs of the individual, is far from settled. However, not for years can this question of policy again be a live one. With war upon us, the regulation and regimentation by government of the minute details of the economic affairs of the citizen are becoming necessary and will become more complete as war continues; and, even when peace comes, that system cannot suddenly end, but may be with us during the con
MR. JUSTICE VAN DEVANTER. xxm siderable period when government must direct the gradual transformation of our economy to peace-time basis.
The issue as to whether Mr. Justice Van Devanter’s philosophy of government, as distinguished from his views about the functions of the courts, was right or wrong is, for the time being, relegated to the background. On this occasion, what we of the Bar think on these matters is of no consequence. We can, without exception, join in acclaiming his patriotism, the conscientious devotion of his great abilities and enormous labors to the public interest, and the long and distinguished service he rendered the nation.
Mr. Davis said:
When we meet as members of the Bar to commemorate the life and service of a lawyer or a judge, it would be vain for us to believe that by such ceremonies we can add anything to the stature or the fame of him who has gone. The book of life has been closed, and the pages written by himself must stand before history as his own best memorial. Our purpose, rather, is to express our gratitude for his contributions to the science we revere and to the profession of which we are the devotees. We owe it also to posterity to picture the man as we saw him in those things which escape the printed page; hoping that, looking upon this portrait, they may be stimulated, in their turn, to follow his example. “Show me the man you honor,” runs the saying, “and I will show you the man you are.” I could wish nothing better for American lawyers and judges than that they should continue to honor Willis Van Devanter.
I cannot, nor can anyone else who knew him, speak of him save with words of admiration and affection. My personal acquaintance with him covered a span of nearly thirty years; and, while in that period I heard many words of praise concerning him, I do not recall any expression of criticism or censure, ill-feeling or reproach. So staunch was he and so courageous and so firm, and yet withal so
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kindly and sincere, that no envious shaft ever flew in his direction. Had it done so, we may be sure that the integrity with which the man was armored would have turned it aside.
The universal approval with which his appointment to the Supreme Court by President Taft in 1910 was received is eloquent of the position he had then attained. The expectations to which his reputation gave rise were amply vindicated by his twenty-seven years upon that Bench. He came to it with an experience and equipment quite unusual in variety and scope. First in Indiana, and then in Wyoming, he had been an active practitioner at the Bar, seasoned by the trial of all sorts of cases. He had been Chief Justice, first of the Territory and then of the State of Wyoming, and had had experience both on appeal and as a judge at nisi prius. He had been a member of the House of Representatives of the Territory of Wyoming when its laws were in the making. There followed six years in Washington as Assistant Attorney General for the Interior Department, with duties even more multifarious and important than the mere title would suggest; to which he added the labors of a professorship of equity jurisprudence, pleading and practice at Columbian University. Thence he went to the Circuit Court of Appeals for the Eighth Judicial Circuit; and from that Bench he was called, seven years later, to the Supreme Court. Thus, at one time or another he held commissions from four Presidents—Harrison, McKinley, Roosevelt and Taft—and in each instance he justified their confidence.
So he brought with him to the Supreme Court forensic, legislative, administrative, professorial and judicial experience. He brought something else of no less value, in his wide acquaintance with men and things. Wyoming was still pioneer territory when he went there in 1884. Human nature was exhibited without artificial veneer or disguise. A new social and political community was
MR. JUSTICE VAN DEVANTER. xxv being born, and as it grew so he grew with it, taking part in all of its activities and forming, consciously or unconsciously, the philosophy by which he was to guide his later life. In the rough and tumble of local and national politics, in the give and take of a life lived largely in the open, he learned to measure men for what they were and to mark the difference between the true metal and the base. I think I never knew a man whose judgment in this respect was more unerring or who had a more wholesome and withering contempt for what he regarded as sham or pretense.
When one thinks of him in his character as a Judge, certain things seem to stand out. Of these, the first was his intense industry and devotion to duty. He gave himself without reserve and with entire concentration to any and every task that was set for him. Indeed, it is said that when he was in the Department of the Interior his secretary lived in his home and the work of the two went on during all waking hours. So during the sessions of the Supreme Court he allowed himself few diversions, either by day or night. His mind, as it seems to me, worked surely rather than swiftly and could be at rest only after enough time had been spent to bring about a fully matured conclusion.
This intensity of effort was reflected in his written opinions by their eminent directness and clarity. The function of a Judge as he conceived it is to ascertain the facts, to apply to them the pertinent rules of law, and then to pronounce the result in terms that not only lawyers and litigants but laymen might easily understand. A man of simple personal tastes and habits, this simplicity was reflected in his written style, which was Doric rather than Corinthian in its architecture. There was no striving for adornment, no search for novel words, no effort to com epigrams. At the moment, I do not recall a single sentence of his that might be called epigrammatic. Indeed, I think he distrusted such devices. He aimed to be
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a Judge and not a litterateur, and endeavored always to make his meaning so plain that a wayfaring man could not mistake it. And this I take to be the quintessence of merit in a judicial utterance.
He was a genuinely open-minded man. I suppose he had his prejudices, as do the rest of us; and he certainly was not lacking in personal convictions. But, so far as the limitations of human nature would allow, he laid his personal predilections aside in considering the cases brought before him. He did not consciously permit his views of general policies to turn him from the strict application of the law he was called on to administer. Jus dicere, non jus dare was the motto he adopted for himself. When he asked questions from the Bench, as he frequently did, there was a certain challenging bluntness, almost a gruffness, in his manner, which was often disconcerting to an inexperienced advocate and gave a quite mistaken impression as to the fixation of his own mind on the subject under discussion. But the manner meant nothing more than that he was either seeking for light himself or trying to strip the argument of its nonessentials, or sometimes perhaps testing the depth of the advocate’s preparation.
No doubt it was this open-mindedness, together with his broad knowledge of principles, that made him so invaluable in the conference room. I have heard the statement from Chief Justice White, who leaned on him heavily, that in the conference he was the most helpful member of the Court. More than one of his judicial brethren have expressed the same opinion. In special fields, such as matters of jurisdiction and procedure, land and water rights in the western states, or on Indian questions, he had a profound and preeminent knowledge which his colleagues gladly recognized.
Being what he was, it was inevitable that he should set a high value on established precedents. He fully realized, I think, that the judicial department, lacking both the purse and the sword, has one weapon, and one only, by
MR. JUSTICE VAN DEVANTER. xxvn which its independence and permanent influence can be maintained. That weapon (and it is a weapon of potency) consists of the implied threat, or implied promise, or implied obligation, whichever you will, that when questions decided in one case arise in another they will be disposed of in the same way. Lacking this, the momentary decisions of any court of last resort can have but little significance to any person other than the immediate litigants.
A hasty search reveals but two of Justice Van Devanter’s opinions in which prior decisions were overruled. In one, Lee v. Chesapeake & Ohio Ry. (260 U. S. 653), dealing with the right of removal, the Court overruled Ex parte Wisner (203 U. S. 449), in order, as the opinion points out, to return to the sounder rule announced in earlier cases. And in United States v. Nice (241 U. S. 591), involving the statutes forbidding the sale of intoxicants to Indians, the earlier case of Matter of Heff (197 U. S. 488), was overruled in the light of later enactments. Although he was not insensible to the course of legal evolution, I question whether he could have brought himself to overrule or ignore an earlier decision on the mere ground that had he been then upon the Court he would have reached a different conclusion.
I presume it would be fair to speak of his attitude on Constitutional questions as that of a strict constructionist, although that term has taken on such varied shades of meaning in the course of American history that it has lost much of its descriptive value. But it may be applied to Justice Van Devanter in the sense that constitutional grants, constitutional limitations and constitutional prohibitions were to him very real and sacred things. He adopted as the fundamental bases of his thinking the doctrines of powers delegated and powers reserved, of the separate spheres for state and federal action, and of the duty of all to rigidly observe the rules of conduct the Constitution has prescribed. Thus, firmly anchored in principle, he accepted fully his responsibility as a Judge to
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preserve, protect and defend the Constitution as he found it, leaving to the people their right to alter or amend.
Such, Mr. Chairman, is in barest outline the appraisal I would make of Justice Van Devanter. I realize its inadequacy and I am glad that there are others who can do better justice to the theme. But recognizing in him the figure of a learned, just and upright judge, I gladly join in this tribute to his memory.
The Resolutions were then adopted and the meeting adjourned.
SUPREME COURT OF THE UNITED STATES.
Monday, March 16, 1942.
Present: The Chief Justice, Mr. Justice Roberts, Mr. Justice Black, Mr. Justice Reed, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Murphy, Mr. Justice Byrnes, and Mr. Justice Jackson.
Mr. Attorney General Biddle addressed the Court, as follows:
May It Please the Court:
Members of the Bar of this Court assembled this morning in respectful and affectionate tribute to the memory of Mr. Justice Van Devanter. A Minute and resolution were adopted which I have the honor to present, with the request that they be embodied in the permanent records of the Court. The Minute is as follows:
“Willis Van Devanter was of the stuff of which pioneers are made. When he died his country lost a virile and devoted son.
The story of his eventful life is a record of faithful and distinguished public service. Nevertheless when the long chronicle has been read the man himself seems even more impressive than the things he did. The simple fact is that he stood forth a man among men.
He was a son of the Hoosier State. Born in Marion on April 17,1859, his self-development began in the public schools. DePauw University claimed him as the most distinguished of its alumni. In the law school of Cincinnati University he prepared for admission to the bar. After a few years of practice in his home town, during
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which he served as Deputy County Prosecutor, he answered the call of the West and was among those who helped organize the Territory of Wyoming into Statehood. After having served under appointment by President Harrison as a Justice of the Supreme Court of the Territory, he became Chief Justice of the new State. President McKinley made him an Assistant to the Attorney General of the United States attached to the Department of the Interior. President Theodore Roosevelt commissioned him a Circuit Judge in the Eighth Circuit.
By President Taft he was appointed an Associate Justice of the Supreme Court of the United States. He and Mr. Justice Lamar took their seats upon the Bench on January 3,1911. From that day to the day of his retirement, June 2, 1937, he devoted himself assiduously to the work of the Court. He was a colleague whose understanding, courtesy, and generosity toward the other members of the Court have never been exceeded. His personal friendliness and cordiality and his desire to be helpful easily survived any disagreement in views. These qualities enabled him to hold the warm affection and respect of every colleague and contributed much to the esprit of the Court.
The course of his life before his elevation to the Supreme Bench fitted him in eminent degree for the work which as an Associate Justice he was called upon to do. His Wyoming experience had given him an intimate knowledge and sympathetic understanding of the people of the great western area.
As Assistant Attorney General, charged with the problems of the Interior Department, he had acquired an unrivaled knowledge of the public land law, of the law of waters as it existed in the western portion of the United States and of the law respecting the Indians as embodied in treaties, acts of Congress and administrative practice. It is not too much to say that, when he came upon the Supreme Court, he was one of the most expert persons in the United States in these fields. Throughout his service
MR. JUSTICE VAN DEVANTER. xxxi on the Court, his counsel and advice on these matters were invaluable to his brethren.
His experience as a lawyer and as a Judge of the Circuit Court of Appeals for the Eighth Circuit had made him familiar with federal practice and with the relation of the federal government to that of the States. His opinions written for the Supreme Court on questions of procedure and on the constitutional relationship between the States and the nation are amongst the most careful, accurate and important adjudications of the Court during his term of service. Each of his opinions was the product of hard work. It is even said that on each of them he spent prodigious labor. His mental processes were simple and direct and his literary style was wholesome and unaffected. Mr. Justice Van Devanter’s knowledge in matters of procedure has been described as “perfectly extraordinary.” When colleagues were inclined to regard some question of procedure as one of first impression he would go quietly to the shelves, take down a volume of the Reports and find among the memorandum opinions at the end of the volume a precedent exactly in point.
When some years ago the then Chief Justice and the other Justices were consulted in regard to general orders in bankruptcy, the Chief Justice expressed complete reliance upon Mr. Justice Van Devanter as the strongest man in the Court to deal with such problems.
In a controversy between the United States and Canada, Mr. Justice Van Devanter and Chief Justice Duff served as the Commissioners contemplated by the Convention between the two Governments. The unprejudiced, judicious, and tactful way in which the Commissioners discharged their delicate duty brought the controversy to a fair and generally satisfactory conclusion.
Mr. Justice Van Devanter was distinguished for two great judicial qualities. He had, in the first place, a remarkable sense of proportion and never pressed a principle to the extreme in disregard of considerations of policy and practicality. He did not lack the courage to stand,
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and stand firmly, by a principle which he deemed sound. On the other hand he recognized that reconciliation and adjustment are quite as important, in the light of the facts and the result, as is rigid adherence to principle. In the second place, he had a most orderly and analytical mind. The problems presented by a cause seemed, without effort on his part, to fall into their sequential relation. It resulted that his exposition of his views in conference was clear and orderly. It has been a matter of remark that, if a stenographer could have been present and had taken down some of his statements of cases, those statements might well have been made the opinions of the Court, so lucid, so orderly, and so comprehensive were they. His extreme conscientiousness and thoroughness in endeavoring to get to the bottom of every question of fact and law presented to him were distinguishing characteristics. He was wont to look carefully into minute details which might conceivably have a bearing upon the case before him and insisted on having it made clear to him what their effect might be. Many judges have assumed that they can ignore details of this sort; but those who practised before Judge Van Devanter recall that often he would pick an important point out of something that counsel had not considered worth dealing with.
If it be necessary to conform to the custom of classifying judges as Liberal or Conservative, Mr. Justice Van Devanter must be styled as a Conservative; but this is said with a realization that there are more than one species within each genus. His was not the conservatism attributable to tradition or to worldly possessions. He acted in the living present and he preferred the simple life. Himself no stranger to frontier experiences, he had in him the spirit of the men who won the West and of those others who in an earlier day fought for the liberties which have been the glory of America. These he deemed priceless and when he conceived them to be in danger he was vigorous in their defence. He had boundless admiration for the pioneers of that era when going was roughest.
MR. JUSTICE VAN DEVANTER. xxxm ‘There were no drones in those days/ he once remarked; ‘the country would not support them.*
Willis Van Devanter was at heart a sportsman and a lover of the great open spaces. In early days Buffalo Bill was often his companion on hunting trips and the future Justice was happy in the companionship of men inured to hardship and danger. He was, however, a farmer even before he was a hunter, for at fifteen he took charge of his grandfather’s farm, did the plowing, and attended to all the work. When he retired from the Supreme Court it was life on a farm for which he longed, and when he bought a farm in Maryland it was the realization of a long-deferred hope. On these fertile acres he spent most of his allotted time. During his public career he had been the recipient of many honors and the object of much eulogy, but it is said he prized as highly as any other tributes the testimony of a tenant on the place who said of the retired Justice that he was ‘a helpful farmhand.’ In his youth, before he headed westward, he had invited Dollie Burhans, of Iona, Michigan, to live his life and share his fortunes. She accepted and they were married. Their life together was exceptionally happy. She bore him two sons who survive their father. Her death came in 1934 when she and her husband were traveling abroad. Death overtook the Justice on February 8, 1941. His two surviving sons, a brother, and two devoted sisters were among those who stood with bowed heads when the Chaplain of the United States Senate read the solemn words of the Burial Service.
Such was the man in honor of whom this meeting is held. Many of those present date their friendship for him from the day when, as young practitioners in his court, he showed them kindly consideration and made them feel at home. Strong, straightforward, God-fearing and loyal, let it be recorded of him that he represented America at her best.
Resolved that the foregoing Minute be adopted, that a copy of it be transmitted to the family of Mr. Justice Van Devanter, and that the Attorney General of the 461263°—43----in
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United States be asked to present the Minute to the Court on behalf of the Bar with the request that it be inscribed upon the records of the Court.”
For twenty-seven years Mr. Justice Van Devanter sat as a member of this Court, serving with three Chief Justices, in six Presidencies, during two depressions, and a major war. Prior to his appointment, he had rendered distinguished service as a judge of the Eighth Circuit Court of Appeals as well as of state and territorial courts; as an Assistant Attorney General, guiding the Department of the Interior through the complex problems presented in the management of the public lands; as an active and successful attorney, conducting an exciting practice in a rugged land; and as a prominent participant in the development of Wyoming from Territory to State. Thus he brought to the service of this Court the fruits of wide experience, happily combined with a fine intellect, great learning, and ardent devotion to the judicial office. In his opinions, in conference, and in moulding the legislative framework of the Court’s jurisdiction, he played an important part in the enduring work of the Court.
Though Mr. Justice Van Devanter was a specialist in several phases of the Court’s business, his opinions include many cases which attracted widespread interest. Almost at the beginning of his service he held for a divided court that defendants who cornered the cotton market were guilty of a restraint of trade under the Sherman Act (U. $. v. Patten, 226 U. S. 525). He delivered the judgment in the National Prohibition Cases (253 U. S. 350). He spoke for the Court in Pennsylvania v. West Virginia, barring under the commerce clause the reservation by a State for the use of its inhabitants of a major portion of the natural gas produced within its boundaries; in New York v. Zimmerman, 278 U. S. 63, sustaining a State statute requiring secret societies to register their membership; in Johnson v. Manhattan Railway, 289 U. S. 479, untangling the complicated issues of jurisdiction and
MR. JUSTICE VAN DEVANTER. xxxv policy in an important railroad receivership; in Wyoming v. Colorado, resolving the recurrent problems involved in the controversy between the two States over water rights in the Laramie River (259 U. S. 419, 496; 260 U. S. 1; 298 U. S. 573); in Ex parte Bakelite Corp., 279 U. S. 438, and Federal Radio Commission v. General Electric Company, 281 U. S. 464, distinguishing judicial from administrative action with reference to the constitutional limitation of the jurisdiction of this Court to “cases” and “controversies.” On the great issues that divided the Court in recent years, he wrote but rarely, though his position was clear and held with firm conviction. Reference may be made, however, to Evans v. Gore, 253 U. S. 245, and Indian Motocycle Co. v. United States, 283 U. S. 570, dealing with the extent of immunity from federal taxation.
As a Circuit Judge, Justice Van Devanter had dealt with all the problems of the western states during the years of his service. His opinion in Brewster v. Lanyon Zinc Co., 140 F. 801, is famous for the establishment of the doctrine that oil and gas leases may be declared void for breach of an implied covenant to develop the land. His opinions on this Court reflect his abiding interest in public land questions and his special concern with Indian problems and with the intricate but far-reaching issues of jurisdiction and procedure.
For the Indians he had the deepest sympathy and understanding; and in their cases, particularly in his later years on the Bench, he was almost invariably the spokesman of the Court. Each such decision was made the occasion for an essay in tribal history, so that one may trace the wanderings of the Western tribes through opinions such as those in United States v. Reily, 290 U. S. 33; United States v. The Creek Nation, 295 U. S. 103, and others. He said of the Pueblo tribe, in United States v. Chavez, 290 U. S. 359,361: “They are essentially a simple, uninformed, and dependent people, easily victimized and ill-prepared to cope with the superior intelligence and
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cunning of others.” To the extent of his power, the Justice protected the “ignorant” from the “cunning.”
In the field of jurisdiction and procedure, Justice Van Devanter was an acknowledged master. His opinions in the Bakelite, Radio Commission and Manhattan Railway cases have been noted. To these we may add, almost at random, such decisions as the Second Employers’ Liability Cases, 223 U. S. 1; Wells Fargo v. Taylor, 254 U. S. 175; Lee v. Chesapeake & Ohio Ry. Co., 260 U. S. 653; and Employers Reinsurance Corp. v. Bryant, 299 U. S. 374, dealing with the vital issues involved in the relationship of state and federal courts; Slocum v. New York Life Insurance Co., 228 U. S. 364, and Baltimore & Carolina Line Inc. v. Redman, 295 U. S. 654, dealing with procedure; and Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, dealing with the scope of appeal as of right on federal questions arising in state courts.
Relatively speaking, Justice Van Devanter’s opinions were not numerous, for he wrote with great deliberation and care. Yet his opinions, like all true artistic achievement, conceal the effort involved in their creation. There are no waste passages, no needless quotations, no superfluous citations. The argument moves from premise to conclusion, articulate, closely reasoned, and complete, each opinion a model of orderly reasoning and lucid expression. But it was not only for his majority opinions, or for his very few dissenting opinions, that Justice Van Devanter will be remembered. It is the process of deliberation in considering cases that makes the Court an organic entity rather than the aggregate of nine individual votes. In this, Justice Van Devanter rendered invaluable service. His courtesy, his penetrating logic, his enormous knowledge of precedent, and his capacity for oral presentation were here brought to bear at the crucial moment. These talents led Chief Justice Taft in 1926 to say that Justice Van Devanter “exercises more influence, a good deal, than any other member of the Court.” His service in the conference is attested also by Chief Justice Hughes
MR. JUSTICE VAN DEVANTER. xxxvn and, upon his retirement, led to the statement by his brother Justices that his “labors have entered into the very warp and woof of the Court.”
The part that Justice Van Devanter played in the drafting and presentation to Congress of the Judges’ Bill which became the Judiciary Act of 1925 will be a monument to his memory long after individual cases are lost in the anonymity of time. Following the retirement of Mr. Justice Day, Justice Van Devanter became Chairman of the Committee of the Court engaged in the preparation of the bill. The original draft submitted to the Court in 1921 was largely his work, and upon its subsequent introduction in the Congress, the chief burden of explanation of the bill in the Congressional hearings of 1922 and 1924 fell to him. The hearings happily give us an enduring record of those qualities of Justice Van Devanter which served so fruitfully in the conferences of the Court. On all the phases of appellate jurisdiction of the Supreme Court and the Circuit Courts of Appeals, he answered question after question, simply, succinctly, precisely, exhibiting complete knowledge of every intricacy, every detail, including peculiarities of practice even in the territorial courts. The Act itself, serving as it did, to extend the system of discretionary review and to provide a unified statement of the appellate jurisdiction, will stand as one of the great legislative achievements of our time.
When Justice Van Devanter retired from this Court, at the age of seventy-eight, after thirty-four years of continuous service as a federal judge, he had earned repose. Characteristically, however, he was ready to serve in a District Court to relieve a congested docket, saying quite simply “I am still a judge.” So in the last years of his life he presided at the trial of several major cases. His conduct of the trial, his charge to the jury, his treatment of counsel and of witnesses were a model to the profession.
The success in working with others which contributed to Justice Van Devanter’s judicial career graced his entire
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life. His courtesy had an earnestness which was compelling. He had great capacity for friendship. He had the human warmth which knows no line of doctrine. In his personal relations, as in his judicial work, he sought an element of perfection. When he died the Chief Justice spoke for the Bar as well as for the Court in saying: “He was a man of sterling character and of rare sagacity, a wise counsellor, and a faithful friend.”
As a state and federal official, as a judge and as a justice, he gave his life to the service of his country.
The Chief Justice directed that the Minute and Resolutions be received and embodied in the records of the Court.
The Chief Justice said:
Mr. Attorney General, it is altogether fitting that the Bar and this Court, of which Justice Van Devanter was so long a member, should now express and here record their estimate of his character and his eminent services. During most of his active life Justice Van Devanter was a public servant, for whose services there could be no greater reward than recognition that they were well and faithfully performed. Such recognition by his professional brethren is the only reward he would have prized.
No mere catalogue of the events and achievements of his career could give an adequate impression of the man. His distinction was so preeminently that of character and personality, and was so rooted in his conception of the duties and obligations of the judicial office, that we should miss the true significance of his work as a judge if we were to attempt to define it wholly in terms of his public record. But his character and personality were not uninfluenced by environment. All that he experienced in his early days in the West and his later contacts with it did much to shape the pattern of his life. As lawyer, legislator, and judge in Wyoming in its period of
MR. JUSTICE VAN DEVANTER. xxxix transition from territorial government to statehood, and later as Circuit Judge for the Eighth Circuit, exercising his jurisdiction throughout a vast territory extending westward from the Mississippi River to the foothills of the Rockies, he made his own something of the tradition and outlook of the pioneer West.
He saw and was a part of the expansion of free enterprise in the development of the new world lying beyond the Mississippi. It was a period when, more than any other in our history, men were the masters of their fate. They sought the great West to build homes, acquire property, and establish orderly communities. As good citizens they were zealous to put down the lawlessness of the frontier and to establish laws and courts which would insure the safety of persons and property. Beyond that they asked only for that most natural and characteristic of privileges in a thinly settled country—the right to be let alone. Theirs was the philosophy that that government governs best which governs least, a philosophy not without its effect upon Justice Van Devanter’s appraisal of the functions of government under the restraints of a written constitution.
As Circuit Judge his opinions in appellate cases speedily won the recognition of Bench and Bar by the range and accuracy of the legal knowledge which they exhibited, the care with which they were prepared and their clarity of statement. His quick perception, his ready command of the rules of evidence, his alert and incisive mind, gave him special facility in the trial of jury cases. The trials over which he presided as Circuit Judge, of which there were many of noté, were conducted with exemplary fairness, courtesy, firmness, and dispatch. He never lost his zest for the forensic battleground. His last judicial service, after his retirement from this Court, was to preside over several trials in the District Court in New York. It was a matter of public comment that under his sure and skillful direction they were models for the administration of trial justice.
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As Assistant Attorney General assigned to the Interior Department and later as Judge in a western circuit, he was most frequently concerned with the infinite variety of questions arising out of the administration of the publicland laws. Never content with superficial knowledge or performance, he devoted himself assiduously to their mastery. He thus gained expert knowledge of mining laws and the law of water rights in the semiarid regions of the West, of the laws and treaties affecting the rights of Indians, of the rights of government and individuals arising out of the railroad land grants and other grants of the public lands—all of which continued to occupy the attention of the courts throughout his lifetime. His acquaintance with the history and customs of the Indian tribes, his sympathetic understanding of their inability to cope with the greed and cunning to which they were so often exposed, made him a veritable citadel of justice for this hapless people. Early in his career he had occasion to make special studies in equity jurisprudence and of the procedure and jurisdiction of the federal courts. His knowledge of these indispensable aids to the sound administration of justice was profound.
It was with this background and experience and these special skills that Justice Van Devanter began in 1911 his service as a Justice of this Court, which was to continue for over twenty-six years until his retirement in June 1937. You do well, Mr. Attorney General, to make mention of some of the notable cases in which he wrote opinions for the Court, for they give something of the measure of the man and the lawyer. They remind us that while he brought to this Court the benefits of his special knowledge and experience in particular branches of the law, he was by no means a narrow specialist. They cover a wide range of interests. They evidence the breadth and depth of his knowledge in many fields of the law and reveal the vigor, sanity, and precision of his mind. They exhibit the sense of proportion with which he adapted
MR. JUSTICE VAN DEVANTER. xli principles of the law to the special facts and circumstances to which they were to be applied. They are models of judicial exposition, never discursive, redundant, or sprinkled with irrelevant citations. Simple and direct in statement, orderly, lucid, complete; they give a hint, but only a hint, of the painstaking care which in fact he gave to their preparation.
This Court often had occasion to draw on Justice Van Devanter’s exceptional knowledge of procedure and judicial administration for purposes other than the decision of cases and the writing of opinions. A notable example was his supervision, as chairman of a committee of the Court, over the receivership growing out of the boundary dispute between Oklahoma and Texas, which occupied the attention of the Court from 1920 to 1925. Another was his participation in the drafting of the Judiciary Act of 1925. To his special familiarity with the organization and appellate practice of the federal courts, to his skill in draftsmanship in preparing the Act, and to his luminous expositions of its provisions, are due in large measure the enactment of that legislation. It gave to the Court freedom to direct its efforts to the performance of its true function as the highest appellate court of a nation-wide judicial system.
Those whose privilege it was to sit with Justice Van Devanter in this Court know well that the public evidences of his judicial activities conceal rather more than they reveal what was his greatest service to the Court and to the public. It was a service inspired by his high conception of the function of a Justice of this Court, and of the part which the Court itself should play in our constitutional system. He was profoundly aware that the true source of the strength of the Court and the permanency of its influence is public confidence in the thoroughness, integrity, and disinterestedness with which it does its work. In his mind this signified, and rightly so, the need of unremitting study by every judge of every record
xlii MR. JUSTICE VAN DEVANTER.
and application which comes to the Court for disposition, and the free and frank exchange of views with associates as preliminaries to decision unaffected by extrinsic influences or non judicial considerations.
This faith, sustained by his natural fidelity to every task which he undertook, and the force of his example, exercised a powerful and wholesome influence on the deliberations of the Court. Continued without interruption for more than twenty-six years, it would be difficult to overestimate its importance in perpetuating and strengthening this great tradition of the Court. At the conference table he was a tower of strength. When his turn came to present his views of the case in hand, no point was overlooked, no promising possibility left unexplored. - His statements were characteristically lucid and complete, the manifest expression of a judgment exercised with unswerving independence. Often his expositions would have served worthily, both in point of form and substance, as the Court’s opinion in the case.
He had an abiding faith that reason would afford the solvent for every problem of judicial cognizance. He thought and spoke of this Court as the place for the final appeal to reason in composing the inevitable conflicts growing out of the distribution by the Constitution of the diverse powers of government.
In the provisions of the Constitution, and particularly the Fifth and Fourteenth Amendments, he saw safeguards to those rights and privileges of the individual which he regarded as the chief spiritual values of the society which he had known in his own life and experience. Those who differed with him differed not in their appraisal of such values but in their judgment that an instrument of government, intended to endure for ages to come, could not rightly be interpreted as casting a dynamic society in so rigid a mold. Both were content to resolve their differences by the appeal to reason in the course of adjudication. Both would have regarded as inappropriate and inept the labelling of their differing views of the appropriate boundaries
MR. JUSTICE VAN DEVANTER. xliii of constitutional power as either conservative or liberal. Apart from cherished family ties and the association with friends and colleagues, the work of the Court was his chief interest in life. To that he gave of himself to the uttermost and without interruption until the very day of his retirement. He was a man of simple, unobtrusive religious faith; modesty and simplicity were the keynotes of his life. It was a life untouched by any interest in or desire for wealth. He had a large capacity for friendship. He instinctively sought to find in others the qualities which would merit his esteem. His relations with his colleagues were marked by his uniform courtesy and helpfulness and by their mutual regard. In his daily intercourse with them and in the discussion of every pending problem, his statements were direct, forthright, and crystal clear, because they were the true reflection of his thought.
As we recall the years of association in a common endeavor, the clash of mind with mind in the unending struggle to attain in some measure the ideal of justice under law, there lives in memory this man’s devotion and loyalty to a great task, the integrity and sturdy independence with which he wrought. For these are the attributes of the judge, without which there can be no justice. They are the foundation stones of the institution which we serve.
TABLE OF CASES REPORTED
Page.
A. B. Kirschbaum Co. v. Fleming............... 644
A. B. Kirschbaum Co. v. Walling............... 517
Abrams, Institutional Investors v............. 659
Adams v. U. S. ex rel. McCann................. 655
Addressograph-Multigraph Corp. v. Bolt Co...... 682
A. H. Belo Corp., Walling v....................624
Aiken v. Insull............................... 643
Alabama, Johnson v........................ 693,	713
Aladdin Industries v. Labor Board..............706
Aldrich, State Tax Comm’n v................... 174
Alexander, Garner v........................... 690
Alexander, Howard v........................... 699
Algoma Net Co. v. Labor Board................. 706
Allen, National Manufacture Corp, v........... 679
American Chicle Co. v. United States.......... 450
American Expansion Bolt Co., Addressograph Co. v. 682
American National Bank & Trust Co., United
States v................................... 674
American Range Lines, Quinn v................. §77
Ammond v. Pennsylvania R. Co.................. 691
Amrine, Campeau v.................... 662,	684, 709
Amrine, Graham v.............................. 661
Amrine, Meredith v........................ 670,	711
Anderson v. United States..................... 651
Anderson-Cottonwood Irrigation Dist., Mason v.... 697
Andrews v. Equitable Life Society............. 682
Annadale Creamery Co., Warren v............... 688
Arizona, Jobin v.............................. 584
Arkansas Corporation Comm’n, Duck v............641
Arsenal Building Corp. v. Walling..............517
Art Metal Construction Co. v. Lehigh Steel Co.. 694
XLV
XLvi TABLE OF CASES REPORTED.
Page.
Asbury Park, Faitoute Iron Co. v............. 502
Associated Hospital Service Corp. v. Hassett..672
Avent v. Unemployment Compensation Comm’n... 641
Bach v. Rothensies............................666
Bahlhorn, Ex parte........................... 647
Baker v. Delay................................699
Baker v. Florida...................4..........648
Bank of Nova Scotia, Benitez Sampayo v....... 702
Banque de France v. Supreme Court............ 646
Banta Carbona Irrigation Dist., McDonald v....668
Barrett v. Williamson........................ 703
Baskin v. United States...................... 675
Bauer, Ex parte.............................. 647
Bauer v. Martin...............................677
Beardall, Reeves v............................283
Belo Corporation, Walling v.................. 624
Benitez Sampayo v. Bank of Nova Scotia....... 702
Bennett, Roberts v........................... 703
Bernstein v. United States................... 707
Berry v. Bohn Aluminum & Brass	Corp.......... 689
Bersia v. United States.......................665
Betts v. Brady................................455
Binney & Smith Co., United Carbon Co. v....... 657
Bird v. United States........................ 693
Birmingham, Municipal Investors Assn, v....... 153
Blood, Ex parte............................... 644
Board of Trustees v. L Bar Cattle Co..........645
Bohn v. Bohn................................. 646
Bohn, Bohn .................................. 646
Bohn Aluminum & Brass Corp.,	Berry v......... 689
Bohnke v. New York........................667, 713
Bowden v. Fort Smith..........................684
Bozel, Ex parte.............................. 644
Brady, Betts v............................    ^55
Brady, Carey ................................ 7^2
Brady, Gall  ..............................•••	702
Braverman v. United States....................653
TABLE OF CASES REPORTED. xlvii
Page.
Bridgeport City Trust Co. v. Commissioner........ 672
Brillhart v. Excess Ins. Co..................... 491
Brophy, Jones v................................. 669
Brown, Rosenbaum v.............................. 689
Bumpus, Continental Baking Co. v................ 704
Burall, Ex parte................................ 650
Bush v. United Commercial Travelers............. 696
Busser, Ex parte................................ 647
Busser v. Smith................................. 661
Callahan Walker Construction Co., United States v.. 656
Campbell, Goodale v............................. 680
Campeau v. Amrine...................... 662, 684, 709
Canadian Pacific Ry. Co. v. Sullivan............ 696
Carbide & Carbon Chemicals Corp., U. S. Chemicals v. 708
Carey v. Brady.................................. 702
Caribbean Embroidery Cooperative v. Fleming......662
Carpenters & Joiners Union v. Ritter’s Cafe...... 708
Carr Brothers Co., Higgins v.................... 658
Casebeer v. Hudspeth............................ 683
Cassell v. Howard University................ 675,	711
Cebolleta Land Grant v. L Bar Cattle Co......... 645
Cement Investors, Helvering v................... 527
Central Illinois Electric & Gas Co. v. Heyworth.. 670
Charles Weaver & Co., Gulf Refining Co. v........ 682
Chesapeake & Curtis Bay R. Co. v. Richfield Corp.... 698
Chestnut Securities Co. v. Tax Comm’n........... 668
Chicago v. Fieldcrest Dairies................... 168
Chicago, M., St. P. & P. R. Co., Group of Investors v. 659
Chicago, M., St. P. & P. R. Co., R. F. C. v..... 659
Chicago, T. H. & S. E. Ry. Co., Group of Investors v.. 659
Chrestensen, Valentine v......................... 52
Chrysler Corporation v. United States........... 556
Citizens Loan & Trust Co., United States v.. 209, 712
City of. See name of city.
C. J. Hendry Co. v. Moore....................... 643
Cochran v. Kansas.............................   255
Coe, Marine v..............................  672,712
xlviii TABLE OF CASES REPORTED.
Page.
Collector, Manila Gas Corp v.................. 699
Colorado v. Kansas.............................645
Columbia Broadcasting System v. United States.... 407
Commissioner, Bridgeport Trust Co. v.......... 672
Commissioner, Estate of Hull v................ 690
Commissioner, Gump v.......................... 697
Commissioner, Jamaica Water Supply Co. v............. 698
Commissioner, Mesta v......................... 695
Commissioner, Mother Lode Mines Co. v..........660
Commissioner, Owens v......................... 704
Commissioner, Ross v.......................... 685
Commissioner, Strassburger v.................. 656
Communications Comm’n, Scripps-Howard Radio v. 4
Community Natural Gas Co. v. Ravell........... 691
Concord Company v. Willcuts................... 705
Contardi v. Smith......................... 678,	711
Continental Baking Co. v. Bumpus.............. 704
Continental Illinois Bank Co. v. United States.... 676
Cooke Company v. Maki..........................686
Copley v. Industrial Accident Comm’n.......... 678
Cottrell v. Sanford........................... 684
Coviello v. New York Central R. Co............ 667
Coy v. United States...................... 342,	652
Coyle v. Skirvin.............................. 673
Crancer v. Lowden..............................708
Credit Alliance Corp., Helvering ............. 107
Crocker First National Bank,	Irving	Co.	v.654
Crocker First National Bank v.	Western Pacific Co.. 654
Crockett v. United States..................... 701
Crosby, Rath ................................. 688
Cross, Ryan ...................................682
Cummings, Langroise v..........................664
Daigle, Goudeau ...............................695
Dakota Tractor & Equipment Co. v. United States.. 671
Davenport Hosiery Mills v. Fisher............. 688
Davis v. Dept, of Labor and Industries........ 657
Dees v. United States......................... 695
TABLE OF CASES REPORTED. xlix
Page.
Delay, Baker v................................... 699
DeMet’s v. Insull................................ 643
Department of Labor and Industries, Davis v......657
DeWindt v. South Carolina........................ 708
Duck v. Arkansas Corporation	Comm’n.............. 641
Duffy, Hogue v................................... 675
Duffy, Miller v...........................   677,	713
Ecker v. Western Pacific R. Corp................. 654
Ecker, Western Pacific R. Co. v.................. 654
Edwin L. Wiegand Co. v. Trent Co................. 667
Eiler, Occidental Life Ins. Co. v................ 688
Eisenlord v. Ellis..............................  665
Electric Storage Battery Co., Shimadzu v......... 709
Electric Vacuum Cleaner Co., Labor Board v....... 708
Ellis, Eisenlord v............................... 665
Engineers Club v. United States.................. 700
Enterprise Box Co. v. Holland.................... 704
Equitable Life Assur. Society, Andrews v......... 682
Equitable Life Assur. Society v. Tucker........	699
Errington v. Hudspeth............................ 647
Estate of Hull v. Commissioner..................  690
Evans, Georgia v................................. 159
Evergreen Farms Co. v. Willacy County Dist....... 687
Excess Ins. Co., Brillhart v..................... 491
Ex parte. See name of party.
Faitoute Iron & Steel Co. v. Asbury Park......... 502
Farm Bureau Mutual Auto. Ins. Co. v. Violano..... 672
Federal Communications Comm’n, Scripps-Howard
Radio v.....................................   4
Federal Deposit Ins. Corp. v. White.............. 672
Federal Power Comm’n, Peoples Gas Co. v.......... 700
Federal Power Comm’n v. Safe Harbor Corp......... 663
Federal Trade Comm’n v. Raladam Co............... 149
Fieldcrest Dairies, Chicago v.................... 168
Fifth Street Building v. McColgan................ 648
First Joint Stock Land Bank, Wright v............ 707
461263°—43-IV
l TABLE OF CASES REPORTED.
Page.
First National Bank v. Minnesota Mines........ 687
Fisher, Davenport Hosiery Mills v............. 688
Fisher v. Whiton.......................... 691,	707
Fleming, Caribbean Embroidery Co-op. v.......... 662
Fleming, Kirschbaum Co. v...................... 644
Florida, Baker v................................ 648
Florida, Hysler v............................. 642
Fort Smith, Bowden v.. 584
Fowler v. Pilson.............................. 664
Franham Distributors v. N. Y. World’s Fair..... 687
Fretwell v. Peoples Service Drug Stores....... 713
Fuller Co., Milcor Steel Co. v..................... 143
Gall v. Brady................................. 702
Gamboa, Rodriguez, R. & Co. v. Sugar Co......  691
Garner v. Alexander........................... 690
Garrett v. Moore-McCormack	Co............... 656
Geist, Prudence Realization Corp, v............. 89
Geneseo, Illinois Northern Utilities Co. v....	670
George A. Fuller Co., Milcor Steel Co. v............ 143
George R. Cooke Co. v. Maki................... 686
Georgia v. Evans.............................. 159
Gerke v. United States........................ 667
Gilmore v. United States...................... 661
Glass, Ex parte............................... 644
Glines, Institutional Investors v............. 659
Glover v. United States....................... 690
Gold, Tinkoff v	669, 713
Golden Gate Bridge Dist. v. United States...... 700
Goldman v. United States...................... 129
Goldstein v. United States.................... 114
Goodale v. Campbell........................... 680
Gorman v. Washington University............98, 711
Goudeau v. Daigle..............................695
Graham v. Amrine...............................661
Grant v. South Carolina........................662
Graver Tank & Mfg. Corp. v. N. E. Terminal Co... 706
Great Southern Life Ins. Co. v. Williams... 663, 709
TABLE OF CASES REPORTED. li
Page.
Green v. McLaren............................... 668
Gregg Cartage & Storage Co. v. United States.... 74
Griffin, McCoach v......................... 683,	713
Griffith, Tinkoff v............................ 693
Group of Institutional Investors. See Institutional
Investors.
Guantanamo Sugar Co. v. United States.......... 705
Guaranty Trust Co., Institutional Investors v.... 659
Gulf Refining Co. v. Walker & Son Co........... 682
Gulf Refining Co. v. Weaver & Co............... 682
Gump v. Commissioner........................... 697
Guy v. Missouri Pacific R. Co.................. 655
Haines, Warren v..............................  688
Hall v. United States...................... 664,	709
Hall, Warren-Bradshaw Co. v.................... 660
Hankins v. United States....................... 674
Harold E. Trent Co., Wiegand Co. v............. 667
Harrington v. Martin............................678
Hartford Fire Ins. Co. v. Leithauser........... 663
Hassett, Hospital Service Corp,	v...............672
Hastings v. Hudspeth..........................  692
Heald, Milburn v............................... 681
Heflin v. United States........................ 687
Heilig Brothers Co. v. Labor Board............. 701
Helton v. Thompson............................. 688
Helvering v. Cement Investors.................. 527
Helvering v. Credit Alliance Corp.............  107
Helvering v. James Q. Newton Trust............. 527
Helvering v. Kay Mfg. Corp..................... 680
Helvering v. Maytag............................ 689
Helvering v. Newton............................ 527
Helvering v. Ohio Leather Co................... 651
Helvering v. Safe Deposit & Trust Co............ 56
Helvering, St. Francis Hospital v.............. 697
Helvering v. Southwest Consolidated Corp....... 710
Helvering v. Sprouse........................... 656
Helvering v. Strong Mfg.	Co.................... 651
lii TABLE OF CASES REPORTED.
Page. Helvering v. Stuart........................... 654
Helvering, Union Trust Co. v.................. 696
Helvering v. Warren Tool Co................... 651
Helvering, Wilmington Trust Co. v............. 164
Hendry Co. v. Moore........................... 643
Heyworth, Central Illinois Co. v.............. 670
Higgins v. Carr Brothers Co................... 658
Hill, Sanford v............................... 647
Hill v. Texas............................. 400,	655
Hines, Moyer v................................ 684
Hodges v. Ocean Accident Corp................. 693
Hogue v. Duffy................................ 675
Holiday, Ex parte......................... 660,	709
Holland, Enterprise Box Co. v................. 704
Holley v. United States....................... 685
Holton v. Texas............................... 703
Home Owners’ Loan Corp., Huffman v............ 681
Home Owners’ Loan Corp., Sabin v.............. 713
Houlihan v. United States..................... 700
Howard v. U. S. ex ret. Alexander............. 699
Howard University, Cassell v.............. 675,	711
Hudspeth, Casebeer v.......................... 683
Hudspeth, Errington v......................... 647
Hudspeth, Hastings v.......................... 692
Hudspeth, McCleary v.......................... 670 Hudspeth, Mosher v......................... 670, 711 Hudspeth, Record v..........................   703
Huffman v. Home Owners’ Loan Corp............. 681
Hull, Estate of, v. Commissioner.............. 690
Hysler v. Florida............................. 642
Ickes, Midland Cooperative Wholesale v.... 673, 712
Illinois, Parker v. 665, 709
Illinois Central R. Co., Miles v................... 708 Illinois Northern Utilities Co. v. Geneseo.... 670
Imperial Sugar Co., Gamboa & Co. v............ 691
Indiana, Sawa ................................ 702
Indiana & Michigan Electric Co., Labor Board v.... 657
TABLE OF CASES REPORTED. lui
Page.
Industrial Accident Comm’n, Copley v.............. 678
Industrial Accident Comm’n, Wold v................ 650
Inland Steel Co. v. Lebold........................ 675
Institutional Investors v. Abrams................. 659
Institutional Investors v. Chicago, M., St. P. & P. R.
Co........................................... 659
Institutional Investors v. Chicago, T. H. & S. E. Ry.
Co........................................... 659
Institutional Investors v. Glines..................659
Institutional Investors v. Guaranty Trust Co....... 659
Institutional Investors v. Orton.................. 659
Institutional Investors v. Trustees of Princeton...659
Institutional Investors v. Union Trust Co......... 659
Institutional Investors v. U. S. Trust Co......... 659
Insull, Aiken v................................... 643
Insull, DeMet’s v................................. 643
Iowa-Wisconsin Bridge Co., Phoenix Corp, v......... 641
Irving Trust Co. v. Crocker First National Bank.... 654
Irwin, Noland Co. v............................... 709
Irwin, U. S. to use of Noland Co. v................ 23
Irwin & Leighton, Noland Co. v..................... 23
Jaeger, U. S. ex rei. McDermott v................. 680
Jamaica Water Supply Co. v. Commissioner........... 698
James Q. Newton Trust, Helvering v.................527
Jefferson Electric Co., Sola Electric Co. v........ 652
Jobin v. Arizona...................................584
Johnson v. Alabama........................... 693,	713
Johnson v. Kersh Lake Drainage Dist............... 673
Johnson, Standard Oil Co. v....................... 481
Johnston, McGrew v................................ 669
Johnston, McKee v................................. 702
Johnston, Price v............................ 677,	712
Johnston, U. S. ex rei. Robinson v................ 649
Johnston, Waley v................................. 101
Jones v. Brophy................................... 669
Jones v. Kansas................................... 676
Jones v. Opelika............................. 584,	649
Liv TABLE OF CASES REPORTED.
Page.
Jones, Ozark Chemical Co. v................... 695
Kansas, Cochran v............................. 255
Kansas, Colorado v............................ 645
Kansas, Jones v............................... 676
Kansas, Pyle v................................ 654
Kansas City Life Ins. Co., Westphal v......... 705
Kawato, Ex parte.............................. 650
Kay Manufacturing Corp., Helvering v.......... 680
Kelby, Manufacturers Trust Co. v.............. 697
Ken tenia Cumberland Corp., Lemar v........... 685
Kersh Lake Drainage Dist., Johnson v.......... 673
Keyes, Williams v............................. 699
Keys v. United States......................... 694
Kirschbaum Co. v. Fleming..................... 644
Kirschbaum Co. v. Walling......................517
Klaxon Company v. Stentor Electric Co......... 685
Kramer v. Sheehy.............................. 646
Kresge Co., Mishawaka Rubber Co. v........ 203, 712
Labaddie Bottoms River Dist., Randall v... 663, 709
Labor Board, Aladdin Industries v.............,706
Labor Board, Algoma Net Co. v................. 706
Labor Board v. Electric Vacuum Cleaner Co......708
Labor Board, Heilig Brothers Co. v............ 701
Labor Board v. Indiana & Michigan Electric Co... 657 Labor Board v. Nevada Copper Corp............. 105
Labor Board, Niles Fire Brick Co. v........... 664
Labor Board, Norristown Box Co. v............. 667
Labor Board, Owens-Illinois Glass Co. v....... 662
Labor Board, Southern Steamship Co. v.......... 31
Labor Board, Wilson & Co. v................... 699
Langroise v. Cummings......................... 664
Lansing Drop Forge Co., Refior v.............. 671
Lawson, United States v....................... 674
L Bar Cattle Co., Board of Trustees v......... 645
Lebold, Inland Steel Co. v.....................675
Lehigh Structural Steel Co., Art Metal Co. v... 694
Leithauser, Hartford Fire Ins. Co. v.......... 663
TABLE OF CASES REPORTED. lv
Page.
Lemar v. Ken tenia Cumberland Corp............. 685
Levy v. National Battery Co.................... 697
Loew’s, Inc., Weidhaas v....................... 684
Lowden, Crancer v.............................. 708
Maggio v. United States........................ 686
Magruder v. Suppléé............................ 394
Magruder v. Washington, B. & A. Realty Corp... 69
Mahoney, West v................................ 662
Maki, Cooke Co. v.............................. 686
Malphurs, United States v........................ 1
Mangus v. Miller............................... 657
Manila Gas Corp. v. Collector.................. 699
Manley Oil Corp. v. Shell Oil Co............... 690
Manufacturers Trust Co. v. Kelby............... 697
Marine v. Coe........................... 672,	712
Mark C. Walker & Son Co., Gulf Rfg. Co. v..... 682
Martin, Bauer v................................ 677
Martin, Harrington v........................... 678
Martin, Rodgers v.............................. 670
Maryland, Neal v............................... 680
Maryland Trust Co., N. Y. Trust Co. v... 671, 711
Maryland Trust Co., Powell v............ 671,	711
Mason v. Anderson-Cottonwood Dist.............. 697
Masonite Corporation, United States v....... 265, 713
Massachusetts Bonding & Ins. Co. v. Massey.... 673
Massengill v. Wilson........................... 686
Massey, Massachusetts Bonding Co. v............ 673
Maurice v. Smith............................... 709
Maytag, Helvering v.........................i..	689
McAninch v. Squier............................. 692
McCann, Adams v..............................	655
McCleary v. Hudspeth........................... 670
McCloskey & Co. v. Lehigh Steel Co............. 694
McCoach v. Griffin...................... 683,	713
McColgan, Fifth Street Building v.	648
McDermott v. Jaeger............................ 680
McDonald, Ex parte............................. 647
LVi TABLE OF CASES REPORTED.
Page.
McDonald v. Banta Carbona Dist............... 668
McGrew v. Johnston........................... 669
McKee v. Johnston............................ 702
McLaren, Green v............................. 668
McNabb v. United States...................... 658
Meredith v. Amrine....................... 670,	711
Mesta v. Commissioner........................ 695
Michigan State Board of Dentistry, Toole v..... 648
Midland Cooperative Wholesale v. Ickes... 673, 712
Milburn v. Heald............................. 681
Milcor Steel Co. v. Fuller Co................ 143
Miles v. Illinois Central R. Co.............. 708
Milk & Ice Cream Drivers v. Employment Board.... 668
Miller v. Duffy.......................... 677,	713
Miller, Mangus v............................. 657
Miller, Pennsylvania R. Co. v................ 676
Miller v. United States.............. 658, 687, 695
Miller, United States v...................... 657
Minnesota Mines, First National Bank v........... 687
Mishawaka Rubber & Woolen Co. v. Kresge Co... 203, 712
Missel, Overnight Motor Co. v................ 572
Mississippi Unemployment Comp. Comm’n, Avent v. 641
Missouri Pacific R. Co., Guy v............... 655
Mitchell v. United States.................... 702
Modern Factors Co. v. Tastyeast.............. 696
Montgomery v. United States.................. 681
Moody v. Toole County Irrigation Dist........ 690
Moore, Hendry Co. v.......................... 643
Moore v. United States....................... 642
Moore-McCormack Co., Garrett v................ 656
Moore Motor Freight Lines v. United States..... 642
Morris v. Texas.............................. 665
Mosher v. Hudspeth....................... 670,	711
Moskowitz v. United States..................  705
Mother Lode Coalition Mines Co. v. Commissioner.. 660
Moyer v. Hines.............................   684
Mueller v. Mueller........................... 649
TABLE OF CASES REPORTED. lvii
Page.
Mueller, Mueller v........................... 649
Municipal Investors Assn. v.	Birmingham...... 153
Nailling v. United States........ 644, 675, 710, 711
Nardone v. United States..................... 698
National Battery Co., Levy v................. 697
National Broadcasting Co. v. United States...... 447
National Electric Products Corp. v. Triangle Co. 676
National Labor Relations Board. See Labor Board.
National Manufacture & Stores Corp. v. Allen.... 679
National Surety Corp., Price v............... 683
Neal v. Maryland............................. 680
Nevada Copper Corp., Labor Board v........... 105
New England Terminal Co., Graver Tank Corp. v... 706
Newton, Helvering v.......................... 527
Newton Trust, Helvering v.................... 527
New York, Bohnke v....................... 667,	713
New York, Rozeav............................. 684
New York v. United States.................... 643
New York, United States v.................... 643
New York, Ward v..............................683
New York Central R. Co., Coviello v.......... 667
New York State Tax Comm’n, Zimmer v.......... 701
New York Trust Co. v. Maryland Trust Co.... 671, 711
New York World’s Fair, Franham Distributors v.... 687
Nez Perce Tribe of Indians v. United States..... 686
Nick v. United States........................ 710
Niles Fire Brick Co. v. Labor Board.......... 664
Noland, Ex parte......................... 641,	709
Noland Company v. Irwin.................... 23,709
Norristown Box Co. v. Labor Board............ 667
North Carolina, Steele v..................... 686
Northern Mining Corp. v. Trunz............... 664
Northern Pacific Ry. Co. v. United States.... 346
Nunnally Investment Co., United States v......... 258
Oakland v. United States..................... 679
Occidental Life Ins. Co. v. Eiler............ 688
Ocean Accident & Guarantee Corp., Hodges v......693
lviii TABLE OF CASES REPORTED.
Page.
Ohio Leather Co., Helvering v................... 651
Oklahoma ex rel. Williamson, Skinner v...........535
Oklahoma Tax Comm’n, Chestnut Co. v............. 668
Opelika, Jones v............................ 584,	649
Order of Commercial Travelers, Bush v........... 696
Orton, Institutional Investors v.................659
Overnight Motor Trans. Co. v. Missel............ 572
Owens v. Commissioner........................... 704
Owens-Illinois Glass Co. v. Labor Board......... 662
Ozark Chemical Co. v. Jones..................... 695
Parker v. Illinois.......................... 665,	709
Parsin, Ex parte................................ 647
Pence v. United States...................... 332,	712
Pennsylvania ex rel. Busser v. Smith............ 661
Pennsylvania ex rel. Maurice v. Smith........... 709
Pennsylvania Public Utility Comm’n, Ryan v...... 650
Pennsylvania R. Co., Ammond v....................691
Pennsylvania R. Co. v. Miller................... 676
Peoples Natural Gas Co. v. Power Comm’n..........700
Peoples Service Drug Stores, Fretwell v......... 713
Perlstein v. United States...................... 678
Personal Products Corp., Tampax v.......... 665, 710
Peyton v. Railway Express Agency................ 350
Phillips Pipe Line Co. v. United States..... 679, 712
Phoenix Finance Corp. v. Bridge Co...............641
Pickens v. United States........................ 669
Pieraccini v. United States..................... 666
Pignatelli v. United States..................... 680
Pilson, Fowler v................................ 664
Powell v. Maryland Trust Co................. 671,	711
Powers v. United States......................... 693
Price v. Johnston........................... 677,	712
Price v. National Surety Corp................... 683
Princeton University, Institutional Investors v..659
Prudence Realization Corp. v. Geist.............. 89
Prudential Ins. Co., Viles ..................... 708
Puerto Rico v. Russell & Co..................... 708
TABLE OF CASES REPORTED. lix
Page.
Pyle v. Kansas............................... 654
Query v. United States................... 486,	653
Quinn v. American Range Lines................ 677
Railway Express Agency, Peyton v..............350
Raladam Co., Federal Trade Comm’n v.......... 149
Randall v. Labaddie Bottoms River Dist... 663, 709
Rath v. Crosby............................... 688
Ravell, Community Natural Gas Co. v. 691
Rayner v. United Development Co.......... 665,	710
Reconstruction Finance Corp. v. C., M., St. P. & P. R.
Co....................................... 659
Reconstruction Finance Corp. v. Western Pacific
Corp..................................... 654
Record v. Hudspeth........................... 703
Reeves v. Beardall............................283
Refior v. Lansing Drop Forge Co...............671
Rice, Summers v.............................. 712
Rice, United States v........................ 653
Richfield Oil Corp., Chesapeake & C. B. R. Co v. 698
Ringling Bros.-Barnum & Bailey Shows v. Sheppard. 704
Ritter’s Cafe, Carpenters & Joiners Union v........ 708
Roberts v. Bennett........................... 703
Robinson v. Johnston......................... 649
Rodgers v. Martin............................ 670
Rodiek v. United States...................... 707
Rogoway v. Warden............................ 707
Rosenbaum v. Brown........................... 689
Ross v. Commissioner......................... 685
Rothensies, Bach v........................... 666
Royal Insurance Co. v. Smith................. 695
Rozea v. New York............................ 684
Russell & Co., Puerto Rico v..................708
Ryan v. Cross................................ 682
Ryan v. Pennsylvania Utility Comm’n.......... 650
Sabin v. Home Owners’ Loan Corp.............. 713
Safe Deposit & Trust Co., Helvering v......... 56
Safe Harbor Water Power Corp., Power Comm’n v.. 663
lx TABLE OF CASES REPORTED.
Page. St. Francis Hospital v. Helvering...............697
Salamanca v. United States..................... 694
Sampayo v. Bank of Nova Scotia................. 702
Sanchez Tapia, Ex parte........................ 711
Sanford, Cottrell v............................ 684
Sanford v. Hill................................ 647
Sawa v. Indiana................................ 702
Schaefer, Wetzel v......................... 647,	678
Schenectady Union Pub. Co. v. Sweeney...... 642, 710
Schiaffino v. United States.................... 666
Schugsda, Ex parte............................. 645
Scott v. United States......................... 691
Scripps-Howard Radio v.	Communications Comm’n.	4
Seminole Nation v. United States.. 286,310,647,651,712 Sheehy, Kramer v............................... 646
Shell Oil Co., Manley Oil Corp, v.............. 690
Shepanek, United States ....................... 674
Sheppard, Ringling Bros. Shows v............... 704
Shimadzu v. Electric Storage Battery Co.........709
Shulman v. United States....................... 129
Sioux Tribe of Indians v. United States.........317
Skinner v. Oklahoma ex rel. Williamson......... 535
Skirvin, Coyle ................................ 673
Slaughter, Ex parte............................ 650
Smith, Contardi v.......................... 678,	711
Smith, Pennsylvania ex rel. Busser v........... 661
Smith, Pennsylvania ex rel. Maurice v...........709
Smith, Royal Ins. Co. v........................ 695
Sola Electric Co. v. Jefferson Electric Co..... 652
South Carolina, DeWindt  ...................... 708
South Carolina, Grant  ........................ 662
South Carolina Tax Comm’n v. United States.. 486, 653 Southern Pacific Co., Thiel ................... 698
Southern Steamship Co. v. Labor Board........* • 31
Southwest Consolidated Corp., Helvering v.......710
Spencer, Walker ................................
Sprouse, Helvering .............................
TABLE OF CASES REPORTED. lxi
Page.
Squier, McAninch v............................. 692
S. S. Kresge Co., Mishawaka Rubber Co. v... 203, 712
Standard Oil Co. v. Johnson.....................481
State Tax Comm’n v. Aldrich.................... 174
State Tax Comm’n v. Untermyer.................. 645
State Tax Comm’n, Viator v................ 644,	711
Steele v. North Carolina....................... 686
Stentor Electric Mfg. Co., Klaxon Co. v........ 685
Stewart v. United States........................354
Strassburger v. Commissioner................... 656
Strong Mfg. Co., Helvering v................... 651
Stuart, Helvering v............................ 654
Sullivan, Canadian Pacific Ry. Co. v.............. 696
Summers v. Rice................................ 712
Suppléé, Magruder v............................ 394
Supreme Court of New York, Banque de France v... 646
Sweeney, Schenectady Union Co. v........... 642, 710
Swift & Co. v. United States.......... 216, 649, 712
Tampax Inc. v. Personal Products Corp...... 665, 710
Tapia, Ex parte................................ 711
Tasty east, Modem Factors Co. v................ 696
Texas, Hill v400, 655
Texas, Holton v................................ 703
Texas, Morris v................................ 665
Texas, Ward v............................. 547,	653
Thiel v. Southern Pacific Co................... 698
Thompson, Helton v............................ 688
Tinkoff v. Gold........................... 669,	713
Tinkoff v. Griffith............................ 693
Toole v. Michigan Board	of Dentistry........... 648
Toole County Irrigation Dist., Moody v............ 690
Trent Co., Wiegand Co. v....................... 667
Triangle Conduit & Cable Co., Electric Corp, v...... 676 Trunz, Northern Mining Corp, v............... a 664
Trustees of Princeton University, Group of Investors v........................................ 659
Tucker, Equitable Life Society v............... 699
lxii TABLE OF CASES REPORTED.
Page.
Union Trust Co. v. Helvering.................. 696
Union Trust Co., Institutional Investors v..... 659
United Carbon Co. v. Binney & Smith Co.........657
United Commercial Travelers, Bush v............ 696
United North & South Development Co., Rayner v..................................... 665,	710
United Shoe Machinery Corp., Williams Co. v....364
United States, American Chicle Co. v.............. 450
United States v. American National Bank Co..... 674
United States, Anderson v....................... 651
United States, Baskin v....................... 675
United States, Bernstein v....................... 707
United States, Bersia v665
United States, Bird v........................... 693
United States, Braverman v..................... 653
United States v. Callahan Walker Co........... 656
United States, Chrysler Corp, v.................. 556
United States v. Citizens Loan & Trust Co. 209, 712
United States, Columbia Broadcasting System v.... 407
United States, Continental Illinois Bank Co. v...... 676
United States, Coy v...........................342
United States, Crockett v........................ 701
United States, Dakota Tractor Co. v.............. 671
United States, Dees v........................... 695
United States, Engineers Club v.................. 700
United States, Gerke v.i........ 667
United States, Gilmore v...................... 661
United States, Glover v....................... 690
United States, Golden Gate Bridge Dist. v......... 700
United States, Goldman v...................... 129
United States, Goldstein v................. i..... 114
United States, Gregg Cartage Co. v............. 74
United States, Guantanamo Sugar Co. v......... 705
United States, Hall v..................... 664,	709
United States, Hankins v...................... 674
United States, Heflin ........................ 687
United States, Holley v....................... 685
TABLE OF CASES REPORTED. lxiii
Page.
United States, Houlihan v....................... 700
United States, Keys v........................... 694
United States v. Lawson......................... 674
United States, Maggio v......................... 686
United States v. Malphurs......................... 1
United States v. Masonite Corp.............. 265,	713
United States, McNabb v......................... 658
United States v. Miller......................... 657
United States, Miller v................ 658,	687, 695
United States, Mitchell v....................... 702
United States, Montgomery v................... 681
United States, Moore v............... t.......... 642
United States, Moskowitz v. \. 705
United States, Nailling v......... 644, 675, 710, 711
United States, Nardone v........................ 698
United States, National Broadcasting Co. v........ 447
United States v. New York........................643
United States, New York v........................643
United States, Nez Perce Tribe v................ 686
United States, Nick v............................710
United States, Northern Pacific Ry. Co. v....... 346
United States v. Nunnally Investment Co......... 258
United States, Oakland v........................ 679
United States, Pence v...................... 332, 712
United States, Perlstein v.......................678
United States, Phillips Pipe Line Co. v........ 679, 712
United States, Pickens v........................ 669
United States, Pieraccini v...................... 666
United States, Pignatelli v....................... 680
United States, Powers v693
United States, Query v...................... 486,	653
United States v. Rice........................... 653
United States, Rodiek v......................... 707
United States, Salamanca v694
United States, Schiaffino v..................... 666
United States, Scott v.......................... 691
United States, Seminole Nation v. 286, 310, 647, 651, 712
lxiv TABLE OF CASES REPORTED.
Page.
United States v. Shepanek........................... 674
United States, Shulman v............................ 129
United States, Sioux Indians v...................... 317
United States, Stewart v............................ 354
United States, Swift & Co. v........... 216,	649, 712
United States, U. S. ex rel. Coy v.................. 652
United States v. Univis Lens Co..................... 241
United States, Univis Lens Co. v.................... 241
United States, Wainer v............................. 653
United States, Weathers v........................... 681
United States, Weber v................. 709,	710, 711
United States, Wells v...................... 661,	708
U. S. ex rel. Alexander, Howard v................... 699
U. S. ex rel. Coy v. United States.......... 342,	652
U. S. ex rel. McCann, Adams v.................... 655
U. S. ex rel. McDermott v. Jaeger........... 680
U. S. ex rel. Robinson v. Johnston.......... 649
U. S. Industrial Chemicals v. Carbide Corp........ 708
U. S. to use of Noland Co. v. Irwin.......... 23,	709
U. S. Trust Co., Institutional Investors v..........	659
Univis Lens Co. v. United States.................... 241
Univis Lens Co., United States v.................... 241
Untermyer, State Tax Comm’n v................. 645
Valentine v. Chrestensen............................. 52
Valley Steel Products Co. v. Lowden................. 708
Vialva, Ex parte.................................... 645
Viator v. State Tax Comm’n.................. 644,	711
Viles v. Prudential Ins. Co......................... 708
Violano, Farm Bureau Ins. Co. v..................... 672
Wainer v. United States............................. 653
Waley v. Johnston................................... 101
Walker v. Spencer................................... 692
Walker & Son Co., Gulf Refining Co. v............... 682
Waller, Ex parte.................................... 648
Waller v. Youell............................ 679,	712
Walling v. A. H. Belo Corp.......................... 624
Walling, Arsenal Building Corp, v................... 517
TABLE OF CASES REPORTED.	lxv
Page. Walling, Kirschbaum Co. v.................... 517
Ward v. New York............................. 683
Ward v. Texas............................ 547,	653
Warden, Rogoway v...........................  707
Warren v. Haines............................. 688
Warren-Bradshaw Drilling Co. v. Hall......... 660
Warren Tool Co., Helvering v................. 651
Washington, B. & A. Realty Corp., Magruder v.. 69
Washington University, Gorman v........... 98,	711
Weathers v. United States.................... 681
Weaver & Co., Gulf Refining Co. v............ 682
Weber, Ex parte.............................. 645
Weber v. United States.............. 709,	710, 711
Weidhaas v. Loew’s........................... 684
Wells v. United States................... 661,	708
West v. Mahoney.............................. 662
Western Pacific R. Co. v. Ecker.............. 654
Western Pacific R. Corp., Crocker Bank v..... 654
Western Pacific R. Corp., Ecker v............ 654
Western Pacific R. Corp., R. F. C. v......... 654
Westphal v. Kansas City Life Ins. Co......... 705
Wetzel v. Schaefer....................... 647,	678
White, Federal Deposit Ins. Corp, v.......... 672
Whiton, Fisher v......................... 691,	707
Wiegand Co. v. Trent Co...................... 667
Willacy County Water Dist., Evergreen Co. v... 687
Willcuts, Concord Co. v...................... 705
Williams, Great Southern Ins. Co. v...... 663,	709
Williams v. Keyes............................ 699
Williams Mfg. Co. v. Shoe Machinery Corp......364
Williamson, Barrett v........................ 703
Williamson, Skinner v.........................535
Wilmington Trust Co. v. Helvering............ 164
Wilson, Massengill v........................  686
Wilson & Co. v. Labor Board.................. 699
Wisconsin Employment Board, Milk Drivers v....668
461263°—43-V
Lxvi TABLE OF CASES REPORTED.
Page.
Wohl, Ex parte............................... 643
Wold v. Industrial Accident Comm’n............650
Wright v. First Joint Stock Land Bank........ 707
Wyoming v. Yellowstone Park Co............... 689
Yellowstone Park Co., Wyoming v.............. 689
Youell, Waller v......................... 679,	712
Zimmer v. New York State Tax Comm’n.......... 701
TABLE OF CASES
Cited in Opinions
Page.
Abroe v. Lindsay Bros. Co., 300 N. W. 456	583
Abshier v. People, 87 Colo. 507	.	480
Adair v. Traco Division, 192
Ga. 59	583
Adams v. Burke, 17 Wall. 453	250,251,278
Adams v. Chicago Great
Western Ry. Co., 210 F. 362	352
Adams v. Mills, 286 U. S. 397	217,222,225,226,231
Adams Express Co. v. Cron-inger, 226 U. S. 491	351,352
Adamson v. Gilliland, 242 U.
S. 350	367
Addyston Pipe Co. v. United
States, 175 U.	S. 211	274
Aetna Casualty Co. v.
Quarles. 92 F.	2d	321	494
Aetna Life Ins. Co. v. Bolding, 57 F. 2d 626	339
Aetna Life Ins. Co. v. Perron, 69 F. 2d 401	339
Agnello v. United States, 269
U. S. 20	140
Agnew v. United States, 165
U. S. 36	339
Alabama v. United States, 279 U. S. 229	716
Alabama Power Co. v. Ickes, 302 U.S. 464	20,21
Alton R. Co. v. United
States, 315 U. S. 15	87,88
Altoona Publix Theatres v.
Tri-Ergon Corp., 294 U. S.
477 144,147,148,369,384,389
Aluminum Co. v. United
States, 123 F. 2d 615	452
American Automobile Ins.
Co. v. Freundt, 103 F. 2d 613	494
Page.
American Compress Co. v.
Bender, 70 F. 2d 655	533
American Falls Reservoir
Dist. v. Thrall, 39 Idaho 105	158
American Federation of Labor v. Labor Board, 308 U.S. 401	416,420,436
American Investment Co. v.
United States, 112 F. 2d 231	74
American Road Machine Co.
v. Pennock & Sharp Co., 164U. S. 26	384
American Securities Co. v.
Forward, 220 Cal. 566	158
American Surety Co. v. Electric Co., 296 U. S. 133	96
American Telephone & Telegraph Co. v. United States, 299 U. S. 232 417,418,419,434
Anderson County Comm’rs
v. Beal, 113 U. S. 227	340
Annapolis v. Howard, 80 Md. 244	460
Appleby v. New York, 271
U. S.364	157
Argonaut Mining Co. v. Anderson, 52 F. 2d 55	74
Armour & Co. v. Alton R.
Co., 312 U. S. 195
218,224,225,226,231,235
Arthur v. Morgan, 112 U. S. 495	340
Ashton v. Cameron County
Dist., 298 U. S. 513	507
Assigned Car Cases, 274 U. S. 564	417,418,419,434
Associated Press v. Labor
Board, 301 U. S. 103	597
Atchison, T. & S. F. Ry. Co.
v. Nichols, 264 U. S. 348 584
ixvn
LXVIII
TABLE OF CASES CITED.
Page.
Atchison, T. & S. F. Ry. Co.
v. United States, 232 U. S.
199	223,225,231
Atchison, T. & S. F. Ry. Co.
v. United States, 295 U. S.
193	217,223,225,226,231,
234,235, 237,240
Atkinson v. Doherty & Co., 121 Mich. 372	137
Atlanta v. Ickes, 308 U. S. 517	20
Atlantic & Pacific Tea Co. v.
Grosjean, 301 U. S. 412	641
Atwater v. North Ameri-
can Coal Corp., Ill F. 2d 125	285
Austin v. State, 51S. W. 249 469
Avery v. Alabama, 308 U. S.
444	463,464
Awotin v. Atlas Exchange
Bank, 295 U. S. 209	95
Bain Peanut Co. v. Pinson, 282 U. S. 499	540
Baker v. Baker, Eccles & Co.,
242 U. S. 394	177
Baldwin v. Missouri, 281 U.
S. 586	176,181,183,200
Baltimore v. Perrin, 178 Md.
101	397
Bankers Pocahontas Coal Co.
v. Burnet, 287 U. S. 308
261,262,263
Barron v. F. H. E. Oil Co.,
4 Wage Hour Rept. 551 583
Bassett v. Ocean City, 118
Md. 114	397
Bassick Manufacturing Co.
v. Hollingshead, 298 U. S.
415	368,370
Battin v. Taggert, 17 How. 74	367
Bauer & Cie v. O’Donnell, 229 U. S. 1	250
Bazemore v. Savannah Hospital, 171 Ga. 257	137
B. B. Chemical Co. v. Ellis, 314 U. S. 495	249
Beal v. Missouri Pacific R.
Co., 312 U. S. 45	172
Beidler v. South Carolina, 282 U. S. 1	200
Bell v. State, 4 Gill. 301	460
Page.
Bella S. S. Co. v. Insurance
Co., 5 F. 2d 570	339
Bement v. National Harrow
Co., 186 U. S. 70	277
Best & Co. v. Maxwell, 311
U. S. 454	609
Birren & Son v. Commission-
er. 116 F. 2d 718	534
Bischoff v. Wethered, 9 Wall.
812	367
Bivens v. State, 6 Okla. Cr.
521	539
Blackstone v. Miller, 188 U.S. 189
176,177,180,181,182,186 Blake, The, 1 W. Rob. 73 43 Bloomer v. McQuewan, 14
How. 539	250,277
Blount Manufacturing Co. v.
Yale & Towne Co., 166 F.
555	278
Blue Island v. Kozul, 379 Ill.
511	614,617
Board of Comm’rs v. United
States, 308 U. S. 343	95
Board of Trade v. United
States, 314 U. S. 534	349
Borchert v. Ranger, 42 F.
Supp. 577	618
Boston Broadcasting Co. v.
Radio Comm’n, 62 App.
D. C. 299	13
Boston Store v. American Graphophone Co., 246 U. S. 8	250,277,278
Bowen v. Johnston, 306 U. S.
19	105
Bowles v. Commercial Casualty Ins. Co., 107 F. 2d 169	285
Bowman Hardware & Elec-
tric Co., In re, 67 F 2d
792	93
Boyd v. Janesville Hay Tool
Co., 158 U. S. 260	369
Boyd v. O’Grady, 121 F. 2d
146	458
Boyd v. United States, 116
U. S. 616	137,139,141
Brady v. State, 122 Tex. Cr.
275	480
Bram v. United States, 168
U. S. 532	104
TABLE OF CASES CITED.
LXIX
Page. Bransford, Ex parte, 310 U.
S. 354	490
Brooks v. Fiske, 15 How. 212 148 Brooks v. Missouri, 124 U.
S. 394	461
Brown v. Mississippi, 297 U.
S. 278	555
Bryant v. Zimmerman, 278
U. S. 63	540
Buck v. Bell, 274 U. S. 200
538,539,540,542,544,546 Buddington v. Smith, 13
Conn. 334	43
Buder, Ex parte, 271 U. S.
461	488
Bumpus v. Continental Bak-
ing Co., 124 F. 2d 549	578
Burnet v. Brooks, 288 U. S.
378	179
Burnet v. Chicago Portrait
Co., 285 U. S. 1	451
Burnet v. Guggenheim, 288
U. S. 280 .	60
Busey v. District of Columbia, 129 F. 2d 24	614,617
Butt Grocery Co. v. Sheppard, 311 U. S. 608	641
California v. Thompson, 313
U. S. 109	641
Campbell v. State, 182 Ala.
18	469
Canada Malting Co. v. Paterson Co., 285 U. S. 413 494
Cantwell v. Connecticut, 310
U. S. 296	593,594,595,608,
611,619,621,622 Canty v. Alabama, 309 U. S.
629	555
Carbice Corp. v. American Patents Corp., 283 U. S.
27	249,274
Carey v. Brady, 125 F. 2d
253	458
Carleton v. Bokee, 17 Wall.
463	371,379,382
Carleton Screw Co. v. Flem-
ing, 126 F. 2d 537 578,580,637 Carmichael v. Southern Coal
Co., 301 U. S. 495	641
Carpenter v. Dane County,
9 Wis. 274	469,476,480
Cary v, Curtis, 3 How. 236 264
Page.
Case v. Los Angeles Lumber
Co., 308 U. S. 106	93
Cecil v. Gradison, 40 N. E. 2d
958	520
Cedar Street Co. v. Park
Realty Co., 220 U. S. 107 74 Centennial Oil Co. v. Thom-
as, 109 F. 2d 359	110
Chamberlain v. St. Paul &
Sioux City R. Co., 92 U. S. 299	96
Chambers v. Florida, 309
U. S. 227	104,555
Chaplinsky v. New Hamp-
shire, 315 U. S. 568	593
Chattanooga Foundry v. At-
lanta, 203 U. S. 390	162
Cherokee Nation v. Georgia,
5 Pet. 1	296
Chesapeake & Ohio Ry. Co. v.
Martin, 283 U. S. 209 95,340 Chicago, B. & Q. R. Co. v.
Nebraska, 170 U. S. 57	514
Chicago & Eastern Illinois R.
Co. v.Collins Co.,249 U.S.
186	352
Chicago Junction Case, 264
U. S. 258	422
Chicago, R. I. & P. Ry. Co. v.
United States, 284 U. S.
80	419,435
Choctaw Nation v. United
States, 119 U. S. 1	296
Chrysler Corporation v.
United States, 314 U. S.
583	.	567
Cincinnati v. Mosier, 61 Ohio
App. 81	614,617
Cincinnati, N. O. & T. P. Ry.
Co. v. Rankin, 241 U. S.
319	352
Cincinnati Rubber Mfg. Co.
v. Stowe-Woodward, 111
F. 2d 239	144
City of. See name of City. Claasen, In re, 140 U. S. 200 10 Claflin v. Commonwealth
Ins. Co., 110 U. S. 81 338,339 Claiborne - Annapolis Ferry
Co. v. United States, 285
U.S. 382	420,423
Clancy v. Columbia Irrigation Dist., 121 Wash. 79	158
LXX
TABLE OF CASES CITED.
Page.
Clark v. Paul Gray, Inc., 306 U.S. 583	593,605
Clark v. State, 239 Ala. 380 469
Coates v. State, 180 Md. 502
469,473,480
Collins v. Hancock, 4 Wage Hour Rept. 522	583
Collins v. Metro-Goldwyn
Corp., 106 F. 2d 83 284,285
Colston v. Burnet, 61 App.
D. C. 192	396
Columbia Broadcasting System v. United States, 316 U. S. 407	447,449
Columbian National Life Ins.
Co. v. Rodgers, 93 F. 2d 740	339
Commissioner v. Coward, 110
F. 2d 725	399
Commissioner v. Kay Manufacturing Corp., 122 F. 2d 443	110
Commissioner v. Rust’s
Estate, 116 F. 2d 636 395,398,399
Commonwealth v. Reid, 144
Pa. Super. 569	617
Commonwealth v. Richards, 111 Pa. Super. 124	479
Commonwealth v. Smith, 344 Pa. 41	469
Commonwealth v. Stewart, 338 Pa. 9	176
Commonwealth ex rel. Mc-
Glinn v. Smith, 344 Pa. 41 458,479
Commonwealth ex rel.
Schultz v. Smith, 139 Pa.
Super. Ct. 357	458
Communications Comm’n v.
Columbia System, 311 U.
S. 132	443,444
Communications Comm’n v.
Pottsville Broadcasting Co., 309 U. S. 134
10,15,21,432,441
Communications Comm’n v.
Sanders Radio Station, 309
U. S. 470	14,19
Connecticut Mutual Life Ins.
Co. v. Hillmon, 188 U. S. 208	338
Page.
Continental Paper Bag Co. v.
Eastern Bag Co., 210 U. S.
405	367
Cook v. Harrison, 180 Ark.
546	589,617
Coston, In	re, 23	Md.	271	460
Coston v.	Coston,	25 Md. 500	460
County Commissioners v.
Clagett, 31 Md. 210	397
Coverdale v. Pipe Line Co.,
303 U. S. 604	599
Covington Stock-Yards Co.
v. Keith, 139 U. S. 128 221,233,234 Cox v. Lykes Bros., 237 N. Y.
376	583
Cox v. New Hampshire, 312
U. S. 569 593, 595, 597, 605, 620 Coy v. United States, 316 U.
S. 342	693
Craig v. Hecht, 263 U. S. 255 460 Cream of Wheat Co. v. Grand
Forks, 253 U. S. 325	179
Creek Nation v. United
States, 93 Ct. Cis. 561	313
Crockett v. United States,
125 F. 2d 547	649
Crosley Corp v. Communica-
tions Comm’n, No. 7351, Court of Appeals, D. C., Feb. 23, 1939	14
Cuno Engineering Corp. v.
Automatic Corp., 314 U.
S. 84	384
Curry v. McCanless, 307 U.
S. 357	176,180,181,186,192
Cutts v. State, 54 Fla. 21 469, 479 Dartmouth College v. Wood-
ward, 4 Wheat. 518	187
Davis v, Berry, 216 F. 413	538
Davis v. Mills, 194 U. S. 451 514 Decker v. Poper, 1 Selw. N.
P. (13th ed.) 91	340
Deering v. Winona Harvester
Works, 155 U. S. 286	369
Deitrick v. Greaney, 309 U.
S. 190	95
De Jonge v. Oregon, 299 U.
S. 353	593
Delk v. State, 99 Ga. 667	469
TABLE OF CASES CITED.
LXXI
Page.
Dennis v. Equitable Equipment Co., 7 So. 2d 397	583
Denver Union Stock Yard
Co. v. United States, 304
U. S. 470	234
Derry v. Peek, 14 App. Cas.
337	338
Dewey v. Des Moines, 173
U.S. 193	592
Diamond v. United States, 108 F. 2d 859	133
Dorchy v. Kansas, 264 U. S.
286	543
Dorrance v. Martin, 298 U.
S. 678	192
Dorrance v. Pennsylvania,
287	U. S. 660, 288 U. S. 617 192
Dorrance v. Thayer-Martin,
116 N. J. L. 362	192
Dorrance’s Estate, 309 Pa.
151	192
Doty v. Love, 295 U. S. 64 514
Douglas v. New York, N.
H. & H. R. Co., 279 U. S.
377	494
Duke v. Helena-Glendale Co., 159 S. W. 2d 74	583
Duke Power Co. v. Greenwood County, 302 U. S. 485 21
Duncan v. Gairns, 27 Can.
Cr. Cases 440	614
Duncan v. Jaudon, 15 Wall.
165	296
Eastman Kodak Co. v.
Southern Photo Co., 273
U. S. 359	246
Eaton v. Phoenix Securities
Co., 22 F. 2d 497	74
Edwards v. Chile Copper
Co., 270 U. S. 452	74
Eilenbecker v. District Court, 134 U. S. 31	461
Elam v. Johnson, 48 Ga. 348 469
Emerson v. Mary Lincoln
Candies, 173 Mise. 531	583
Entick v. Carrington, 19
How. St. Tr. 1030	137,139
Erie R. Co. v. Shuart, 250
U. S. 465	234
Erie R. Co. v. Tompkins, 304
U. S. 64	93,95
Page.
Ethyl Gasoline Corp. v.
United States, 309 U. S.
436	250,
251,253,254,274,277, 278 Ex parte. See name of party. Faggett v. State, 122 Tex.
Cr. 399	469
Fair, The, v. Kohler Die Co.,
228 U. S. 22	353
Farm Drainage Dist. No. 1,
Waupaca County, In re,
232 Wis. 455	156,159
Farmers Loan & Trust Co. v.
Minnesota, 280 U. S. 204 176,181,184,200 Fashion Guild v. Trade
Comm’n, 312 U. S. 457 152,254 Federal Communications
Commission. See Communications Commission. Federal Trade Comm’n v.
Algoma Co., 291 U. S. 67 107 Federal Trade Comm’n v.
Bunte Bros., 312 U. S.
349	522,581
Federal Trade Comm’n v.
Pacific Paper Assn., 273
U. S. 52	107
Federal Trade Comm’n v.
Raladam Co., 283 U. S.
643	150
Federal Trade Comm’n v.
Winsted Co., 258 U. S. 483 152 Finkle v. Western Auto. Ins.
Co., 224 Mo. App. 285	498
Finley v. California, 222 U.
S. 28	540
First National Bank v.
Maine, 116 P. 2d 923	176
First National Bank v.
Maine, 284 U. S. 312 176,177, 179,180,181,183,184, 186,196,197 Fisher v. Perkins, 122 U. S.
522	101
Flake v. Greensboro News
Co., 212 N. C. 780	137
Flohr v. Territory, 14 Okla.
477	539
Florida v. Mellon, 273 U. S.
12	196
Forsyth v. Central Foundry
Co., 240 Ala. 277	583
LXXII
TABLE OF CASES CITED.
Page.
Fort Smith Lumber Co. v.
Arkansas, 251 U. S. 532	179
Foster-Milbum v. Chinn, 134
Ky. 424	137
Frank v. Mangum, 237 U. S. 309	462
Frazer v. Holt County Court, 135 Mo. 533	159
Free v. Greene, 175 Md. 36 397
Frick v. Pennsylvania, 268
U. S. 473	177
Fugate v. Commonwealth, 254 Ky. 663	469, 480
F. W. Woolworth Co. v.
United States, 91 F. 2d 973 452
Gaines v. Canada, 305 U. S. 337	541
Gainesville v. Brown-
Crummer Co., 277 U. S. 54 3
Gantt v. American Central
Ins. Co., 68 Mo. 503	498
General Electric Co. v. Wabash Co., 304 U. S. 364	378
General Pictures Co. v. Electric Co., 305 U. S. 124	251
Genesee Chief, The, 12 How.
443	. 41
Gilchrist v. Rapid Transit
Co., 279 U. S. 159	173
Gilchrist v. State, 234 Ala. 73	469,480
Gilley v. State, 114 Tex. Cr. 548	480
Giragi v. Moore, 301 U. S.
670	597,598,599,609,619
Gitlow v. New York, 268
U. S. 652	593
Globe Bank Co. v. Martin, 236 U. S. 288	93
Go-Bart Importing Co. v.
United States, 282 U. S.
344	139
Goldman v. United States, 316 U. S. 129	120
Gorin v. United States, 312
U. S. 19	647
Gouled v. United States, 255
U. S. 298	139,140,141
Graham & Foster v. Good-
cell, 282 U. S. 409	262
Gratiot v. United States, 4
How. 80	484
Page.
Grau v. United States, 287
U. S. 124	127,138
Graves v. Armstrong Creamery Co., 154 Kan. 365 581,583
Graves v. Elliott, 307 U. S.
383	176,181,186,192
Graves v. Schmidlapp, 315
U. S. 657	179,181
Gray v. Powell, 314 U. S. 402 88
Great A. & P. Co. v. Gros-jean, 301 U. S. 412	641
Great Northern Ry. Co. v.
Merchants Elevator Co.,
259 U. S. 285	222,225
Great Western Telegraph Co.
v. Burnham, 162 U. S. 339 101
Greenwood County v. Duke
Power Co., 81 F. 2d 986	21
Gregg v. Smith, 8 L. R. Q. B.
302	614
Greves v. Shaw, 173 Mass.
205	182
Grier v. Wilt, 120 U. S. 412 369
Grinnell v. Johnson Co., 247
U. S. 426	383
Grinnell Washing Mach. Co.
v. Johnson Co., 247 U. S.
426	384
Grisar v. McDowell, 6 Wall.
363	324
Gros jean v. American Press
Co., 297 U. S. 233
463,475,598,607,610
Gully v. First National Bank,
299 U. S. 109	353,526
Gwin, White & Prince v.
Henneford, 305 U. S. 434 610
Haberman Manufacturing
Co., In re, 147 U. S. 525 10
Hacker v. United States, 16
F. 2d 702	334
Hague v. C. I. O., 307 U. S.
496	593,595,596
Hailes v. Albany Stove Co., 123 U. S. 582	148
Hale v. Henkel, 201 U. S. 43 121
Hale v. State Board, 302 U.
S. 95	157
Haley v. Amestoy, 44 Cal.
132	363
Hamilton v. Regents, 293 U.
S. 245	596
TABLE OF CASES CITED.
LXXIII
Page.
Hamilton v. United States, 268 F. 15	42,45
Hamilton-Brown Shoe Co. v.
Wolf Bros., 240 U. S. 251 207 Hampton v. Phipps, 108 U.
S. 260	96,97
Harmar Coal Co. v. Heiner, 34 F. 2d 725	74
Hart v. Gregory, 218 N. C. 184	583
Hartz v. Truckenmiller, 228 Iowa 819	159
Hawker v. New York, 170 U.
S. 189	540
Hawley v. Malden, 232 U. S. 1	177
Heald v. Rice, 104 U. S. 737 383
Heisler v. Thomas Colliery
Co., 260 U. S. 245	521
Hellmich v. Hellman, 276 U.
S. 233	110
Helvering v. Alabama Limestone Co., 315 U. S. 179 532,534
Helvering v. Clifford, 309 U.
S. 331	59,641
Helvering v. Fuller, 310 U.
S. 69	396
Helvering v. Grinnell, 294 U.
S. 153	62,65,67,68
Helvering v. Kehoe, 309 U. S. 277	168
Helvering v. Lazarus & Co., 308 U. S. 252	166,168
Helvering v. Missouri Life
Ins. Co., 78 F. 2d 778	398
Helvering v. Reynolds, 313 U. S. 428	455
Helvering v. Southwest Consolidated Corp., 315 U. S. 194	530
Helvering v. Wilshire Oil Co., 308 U. S. 90	74,455
Helvering v. Wood, 309 U. S. 344	535
Hendrick v. Lindsay, 93 U. S. 143	340
Henningsen v. U. S. Fidelity &G. Co., 208 U.S. 404	97
Henry v. Cherry & Webb, 30 R. 1.13	137
Henry Wilcox & Son v. Riverview Dist., 93 Colo. 115	159
Page.
Highland Farms Dairy v. Agnew, 300 U. S. 608	599
Higueras v. United States, 5 Wall. 827	362
Hildreth v. Mastoras, 257 U.S. 27	390
Hill v. Martin, 296 U. S. 393	192
Hill v. Wampler, 298 U. S. 460	6
Hillman v. Star Publishing
Co., 64 Wash. 691	137
Hobbie v. Jennison, 149 U. S. 355	250,278
Hoey v. United States, 308 U. S. 510	78
Holiday v. Johnston, 313 U. S. 342	461
Holloman v. Life Insurance
Co. of Virginia, 192 S. C. 454	137
Homan v. Employers Reinsurance Corp., 345 Mo. 650 498
Home Building & Loan Assn.
v. Blaisdell, 290 U. S. 398 593
Hooper v. Diesher, 113 S. W. 2d 966	552
Hotel & Restaurant Employees v. Wisconsin Board, 315U. S. 437	647
Hough v. Woodruff, 147 Fla. 299	614,617
Houston, E. & W. T. Ry. Co.
v. United States, 234 U. S.
342	522,523
Howard v. Kentucky, 200 U. S. 164	461
Hunteman v. New Orleans
Public Service, 119 F. 2d 465	.	286
Hunter v. Pittsburgh, 207
U. S. 161	509
Huntington v. Attrill, 146 U.
S. 657	.	583
Hurtado v. California, 110 U. S.516	462
Illinois Central R. Co. v.
Minnesota, 309 U. S. 157 179
Illinois Central R. Co. v.
Public Utilities Comm’n, 245 U. S. 493	522
Ingels v. Morf, 300 U. S. 290	605
LXXIV
TABLE OF CASES CITED.
Page.
In re. See name of party.
Insurance & Title Guarantee
Co. v. Commissioner, 36 F. 2d 842	533
International Milling Co. v.
United States, 89 Ct. Cis. 128	452
Interstate Circuit v. United
States, 306 U. S. 208 275,282
Interstate Commerce Comm’n v. Goodrich Co., 224 U.S. 194	419,435
Interstate Trust Co. v. Montezuma Dist., 66 Colo. 219 158
Ithaca Trust Co. v. United
States, 279 U. S. 151	65
Jackson, Ex parte, 96 U. S. 727	134,141
James-Dickinson Co. v.. Harry, 273 U. S. 119	584
Jarvis, In re, 66 Kan. 329	258
Jenkins v. National Surety
Co., 277 U. S. 258	96
Johnson v. Dayton, 200 Wash. 91	159
Johnson v. Zerbst, 304 U. S. 458	104,463,465,475,476
Jones, Petition of, 179 Md. 240	460
Jones v. Herald Post Co., 230
Ky. 227	137
Kadow v. Paul, 274 U. S. 175 159
Kansas City Southern Ry.
Co. v. Anderson, 233 U. S. 325	584
Kansas City Southern Ry.
Co. v. United States, 231 U.S. 423	419,435
Keeler v. Standard Folding
Bed Co., 157 U. S. 659	251
Keller v. Ashford, 133 U. S. 610	96
Kendall v. Winsor, 21 How. 322	278
Kennedy v. Moscow, 39 F.
Supp. 26	623
Keokee Coke Co. v. Taylor, 234 U. S. 224	544
Kersh Lake Dist. v. Johnson, 309 U. S. 485	157
Keystone Manufacturing Co.
v. Adams, 151 U. S. 139	369
Page.
Kidd v. Alabama, 188 U. S. 730	177,179
Killingbeck v. Garment Center, 259 App. Div. 691	520
Klotz v. Ippolito, 40 F. Supp. 422	583
Knox County v. State ex rel.
McCormick, 217 Ind. 493 479
Kokomo Fence Co. v. Kitsel-man, 189 U. S. 8	369
Korf v. Jasper County, 132 Iowa 682	471
Kuligowski v. Hart, 43 F.
Supp. 207	583
Kunz v. Allen, 102 Kan. 883 137
Labor Board v. Automotive
Maintenance Co., 315 U. S. 282	107
Labor Board v. Electric Vac-
uum Cleaner Co., 315 U.
S. 685	583
Labor Board v. Fainblatt, 306 U. S. 601	521
Labor Board v. Falk Corp., 308 U. S. 453	37
Labor Board v. Fansteel
Corp., 306 U. S. 240	46,49
Labor Board v. Friedman-
Harry Marks Co., 301 U.
S. 58	521
Labor Board v. Jones &
Laughlin Corp., 301 U. S. 1 576
Labor Board v. Link-Belt
Co., 311 U. S. 584	107
Labor Board v. Stackpole
Carbon Co., 105 F. 2d 167	38
Labor Board v. Waterman S.
S. Corp., 309 U. S. 206 37,38
Labor Board Cases, 301
U.S. 1	526
Lajoie v« Central West Casualty Co., 228 Mo. App. 701 498
Larson v. MacMiller, 56
Utah 84	182
Lawyers’ Title & Guaranty
Co., Matter of, 287 N. Y. 264	95
Ledbetter v. State, 23 Tex.
App. 247	552
Leeds & Catlin Co. v. Victor
Co., 213 U. S. 325	249
Lehigh Zinc Co. v. Bamford, 150 U. S. 665	338
TABLE OF CASES CITED.
LXXV
Page.
Lehon v. Atlanta, 242 U. S.
53	599
Leitch Manufacturing Co. v.
Barber Co., 302 U. S. 458 249 Levering & Garrigues Co. v.
Morrin, 289 U. S. 103	521
Lifson v. Commissioner, 98
F. 2d 508	395,398
Lincoln Engineering Co. v.
Stewart-Warner Corp., 303
U. S. 545	368,370,378
Lisenba v. California, 314
U. S. 219	462
Loftin v. Smith, 126 F. 2d 514	393
Lomax v. Texas, 313 U. S.
544	555
Loom Company v. Higgins,
105 U. S. 580	369
Lopez v. State, 46 Tex. Cr.
473	469,471
Los Angeles Switching Case,
234 U. S. 294	223,349
Louisville & Nashville Ry.
Co. v. Mottley, 211 U. S.
149	353
Lovell v. Griffin, 303 U. S.
444	593,595,599,600,601,
602,615,616,619,622 Lowden v. Northwestern Na-
tional Bank, 298 U. S. 160 6 Lubetich v. United States,
315 U. S. 57	78,643
Lyeth v. Hoey, 305 U. S.
188	64,67,68
Magnano Co. v. Hamilton,
292 U. S. 40	607
Mahn v. Harwood, 112 U. S.
354	146
Maiatico Construction Co. v.
United States, 65 App. D.
C. 62	27,28
Manchester v. Leiby, 117 F.
2d 661	596
Manhattan Bank v. Walker,
130 U. S. 267	296
Marron v. United States, 275
U. S. 192	140
Martin v. Georgia, 51 Ga.
567	480
Page.
Maryland Casualty Co. v.
Consumers Service, 101 F. 2d 514	494,501
Mason v. United States, 260
U. S. 545	325
Massachusetts v. Mellon, 262
U. S. 447	20
Massachusetts v. Missouri, 308 U. S. 1	192
Matter of. See name of party.
Maulsby, Ex parte, 13 Md. 625	459
Maxwell v. Dow, 176 U. S.
581	462,475
McArthur v. United States,
315 U. S. 787	715
McCarroll v. Dixie Lines, 309
U. S. 176	611
McCoach v. Minehill Ry. Co.,
228 U. S. 295	74
McComb v. Commissioners,
91 U. S.1	101
McConkey v. Fredericksburg,
179 Va. 556	614,616,617
McCormick v. Talcott, 20
How. 402	369
McCulloch v. Maryland, 4 Wheat. 316	177,178
McDermott v. Donegan, 44
Mo. 85	497
McDonald v. Common-
wealth, 173 Mass. 322 469,480 McDonald v. Thompson, 305
U. S. 263	83
McGlinn v. Smith, 344 Pa.
41	458,479
McGoldrick v. Berwind-
White Co., 309 U. S. 33	609
McGoon v. Northern Pacific
Ry. Co., 204 F. 998	352
McKenzie, In re, 180 U. S.
536	10
McKnight, In re, 52 F. 799 458 McKnight v. James, 155 U.
S. 685	459
McLean v. Arkansas, 211 U.
S. 539	540
McMaster v. Gould, 276 U. S.
284	101
McMillan v. Wilson & Co.,
2 N. W. 2d 838	578
LXXVI
TABLE OF CASES CITED.
Page.
Meinhard v. Salmon, 249 N.
Y. 458	297
Memphis Natural Gas Co. v.
Beeler, 315 U. S. 649	101
Merchants Bank Co. v. Helvering, 84 F. 2d 478	398
Merchants Warehouse Co. v.
United States, 283 U. S. 501	11
Mickle v. Henrichs, 262 F.
687	538
Miles Medical Co. v. Parks &
Sons Co., 220 U. S. 373	280
Milk Wagon Drivers v.
Meadowmoor Co., 312 U.
S. 287	615
Miller v. Eagle Manufacturing Co., 151 U. S. 186	393
Miller v. Wilson, 236 U. S.
373	540
Minersville School Dist. v.
Gobitis, 310 U. S. 586	593,
598, 623 Minneapolis & St. Louis Ry.
Co. v. Beckwith, 129 U. S.
26	584
Minnesota v. National Tea
Co., 309 U. S. 551	485
Minnesota v. Northern Se-
curities Co., 194 U. S. 48 162 Minnesota Rate Cases, 230
U. S. 352	522
Missouri, K. & T. Ry. Co.
v. Harriman, 227 U. S. 657 352 Missouri Pacific Ry. Co. v.
Humes, 115 U. S. 512	584
Mooney v. Holohan, 294 U.
S. 103	105
Moore v. Bay, 284 U. S. 4	93
Moore v. Dempsey, 261 U.
S. 86	105
Moore v. Missouri, 159 U. S.
673	540
Moore Ice Cream Co. v.
Rose, 289 U.S.373 260,261,265 Morley Machine Co. v. Lan-
caster, 129 U. S. 263	369
Morrison v. California, 291
U. S. 82	545
Morton Salt Co. v. Suppiger
Co., 314 U. S. 488	251,277
Page.
Motion Picture Co. v. Universal Film Co., 243 U. S. 502	251
Mullen v. Western Union
Beef Co., 173 U. S. 166	101
Munden v. Harris, 153 Mo.
App. 652	137
Muskrat v. United States, 219 U. S. 346	20,21
Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613 338,339
Nardone v. United States,
302 U. S.379 118,125,126,128
Nardone v. United States, 308 U. S. 338
115,117,118,119,120,124,126
Nashville, C. & St. L. Ry. v.
Browning, 310 U. S. 362 540
National Labor Relations Board. See Labor Board.
National Licorice Co. v.
Labor Board, 309 U. S. 350 14
National Life Ins. Co. v.
United States, 277 U. S. 508	543
Neal v. Delaware, 103 U. S. 370	401,404,405
N e i r b o Co. v. Bethlehem
Shipbuilding Corp., 308 U.
S. 165	187
Nelson v. Board of Comm’rs, 62 Utah 218	158
Nevatt v. Springfield Normal
School, 79 Mo. App. 198 501
New Jersey v. Pennsylvania, 287 U. S. 580	192
New York v. Kleinert, 268
U. S. 646	592
Noble v. Yancey, 116 Ore. 356	158
Norman v. Baltimore & Ohio
R.	Co., 294 U. S. 240	577
Nye v. United States, 313 U.
S.	33	344
O’Brien v. Pabst Sales Co., 124 F. 2d 167	137
Office Specialty Co. v. Fenton Mfg., 174 U. S.	492	384
Ohio v. Helvering, 292 U. S. 360	161
Oliver Iron Co. v. Lord, 262
U. S. 172	521
TABLE OF CASES CITED.
LXXVII
Page.
Olmstead v. United States,
277 U. S. 438
120,122,135,137,140 Olsen v. Nebraska, 313 U. S.
236	641
O’Neil v. Vermont, 144 U. S.
323	475
O’Neill, Ex parte, 8 Md. 227
459,460 Opp Cotton Mills v. Administrator, 312 U. S. 126
518,526,579 Overnight Motor Transportation Co. v. Missel, 316 U. S.
572	634,636
P. A. Birren & Son v. Commissioner, 116 F. 2d 718	534
Palko v. Connecticut, 302
U. S. 319	462,475
Paper Bag Patent Case, 210
U. S. 405	146
Pardee v. Salt Lake County,
39 Utah 482	469
Parker v. Kane, 22 How.	1	363
Patsone v. Pennsylvania, 232
U. S. 138	540,544
Pavesich v. New England Life
Ins. Co., 122 Ga. 190	137
Payne Furnace Co. v. Williams-Wallace Co., 117 F.
2d 823	144
Pedersen v. Fitzgerald Construction Co., 262 App. Div. 665	520
Peninsular & Occidental S. S.
Co. v. Labor Board, 98 F.
2d 411	48
Pennock v. Dialogue, 2 Pet. 1 278 People, 'Matter of (Union Guarantee & Mortgage
Co.), 285 N. Y. 337	92, 94,95
People v. Banks, 168 N. Y.
Mise. 515	617
People v. Crandell, 270 Mich.
124	469,479
People v. Dudley, 173 Mich.
389	469
People	v.	Finkelstein, 170
N Y. Mise.	188	614,617
People v. Harris, 266 Mich.
317	469
People v. Knapp, 206 N. Y.
373	187
Page.
People v. Supervisors of Albany County, 28 How. Pr.
22	478
People v. Williams, 225 Mich.
133	469
Peoples v. Peoples Bros., 254
F. 489	96
Pepper v. Litton, 308 U. S.
295	93,95
Peterson v. United States, 119
F. 2d 145	29
Petition of Jones, 179 Md.
240	460
Phillips v. International Salt
Co., 274 U. S. 718	74
Phillips v. United States, 312
U.S. 246	490,491
Pierce v. Society of Sisters,
268 U.S. 510	423,430
Pierce Co. v. Wells, Fargo &
Co., 236 U.S. 278	352
Pierre v. Louisiana, 306 U. S.
354	401,405
Pink v. Thomas, 282 N. Y.
10	92,94,95
Piper v. True, 36 Cal. 606	363
Pittsburgh Steel Co. v. Balti-
more Equitable Soc., 226
U. S. 455	514
Portland Oil Co. v. Commis-
sioner, 109 F. 2d 479	533
Potter v. Whitten, 161 Mo.
App. 118	501
Powell v. Alabama, 287 U. S.
45	462,463,475,476,479
Powell v. United States, 300
U.S. 276	416,419
Prairie State Bank v. United
States, 164 U. S. 227	97
Provost v. United States, 269
U. S. 443	168
Pumpus v. Continental Bak-
ing Co., 124 F. 2d 549	580
Radio Commission v. Nelson
Bros. Co., 289 U.S.,266	433
Radio Corp. v. Radio Laboratories, 293 U. S. 1	392
Railroad Commission v. Los
Angeles Ry. Corp., 280
U. S. 145	497
Railroad Commission v. Pull-
man Co,, 312 U, S, 496	171
LXXVIII
TABLE OF CASES CITED.
Page.
Reckendorfer v. Faber, 92
U. S. 347	384
Reed v. State, 143 Miss.
686	469,480
Rees v. United States, 95 F.
2d 784	42,45
Rees v. Watertown, 19 Wall.
107	511
Regina v. Boucher, 8 C. & P.
655	466
Reid v. Brookville, 39 F.
Supp.30	622
Reid, Murdock & Co. v. Mer-
curio, 91 Mo. App. 673	501
Republic Steel Corp. v. Labor
Board, 311 U.S. 7 37,46,107
Rex v. Parkins, 1 C. & P 314 466 Rex v. Stewart, 53 Can. Cr.
Cases 24	614
Rex v. White, 3 Camp. N. P.
97	466
Reynard v. Caldwell, 55 Idaho 342	159
Reynolds v. United States, 98
U. S. 145	594
Rhode Island Hospital Co. v.
Doughton, 270 U.S. 69	177
Riley v. State, 64 Okla. Cr.
183	539,542
Robertson v. Argus Mills, 121
F. 2d 285	583
Robinson v. Johnston, 118 F.
2d 998	649
Robinson v. Massachusetts
Life Ins. Co., 158 S. W. 2d
441	. 520
Robinson v. State, 178 Miss.
568	469
Rochester Telephone Corp. v.
United States, 307 U. S.
125	10,85,419,420,436
Rosenthal v. New York, 226
U. S. 260	543
Rothensies v. Fidelity-
Philadelphia Trust Co., 112
F. 2d 758	62
Royal Indemnity Co. v.
United States, 313 U. 8.
289	95
Rutherford v. State, 104 Tex.
Cr. 127	552
Sage v. United States, 250
U. S, 33	260,262,263,265
Page.
St. Joseph v. Union Ry. Co.,
116 Mo. 636	498
Salinger v. Loisel, 265 U. S.
224	105,461
San Francisco Savings Union
v. Irwin, 28 F. 708	356,361
Santa Cruz Co. v. Labor
Board, 303 U.S. 453
526,576,577 Sawyer, In re, 124 U. S.
200	20,461
Saxlehner v. Siegel-Cooper
Co., 179 U. S. 42	209
Schneider v. State, 308 U. S.
147 593,594,595,596,608,611, 615,619,622 Schott v. Auto Ins. Under-
writers, 326 Mo. 92	498,499
Schultz v. Smith, 139 Pa. Su-
per. Ct. 357	458
Schumacher y. Cornell, 96 U.
S. 549	147
Scripps-Howard Radio v.
Communications Comm’n,
316 U. S. 4	416,424,443
Seaboard Air Line v. Wat-
son, 287 U. S. 86	592
Securities & Exchange Com-
m’n v. U. S. Realty Co.,
310 U. S. 434	95
Semansky v. Stark, 196 La.
307	614,617
Seminole Nation v. U n i t e d
States, 316 U. S. 286 314,316 Seminole Nation v. U n i t e d
States, 316 U. S. 310	308
Semler v. Dental Examiners,
294 U. S. 608	648
Sevinskey v. Wagus, 76 Md.
335	459
Seymour v. Osbome, 11 Wall.
516	371
Sheedy v. Second National
Bank, 92 Mo. 17	497
Sheldon v. Metro-Goldwyn
Corp., 309 U. S. 390	206
Shepard v. Northern Pacific
Ry. Co., 184 F. 765	522
Shields v. Utah Idaho Cen-
tral R. Co., 305 U. S. 177
88,430 Shoshone Tribe v. United
States, 299 U. S. 476	326
TABLE OF CASES CITED.
LXXIX
Page.
Silverthorne Lumber Co. v.
United States, 251 U. S.
385	120,127,139,141
Singer Co. v. Cramer, 192 U.
S. 265	383
Singer & Sons v. Union Pa-
cific R. Co., 311 U. S. 295 20 Skinner v. Oklahoma, 316 U.
S. 535	603
Smietanka v. Indiana Steel
Co., 257 U. S. 1 260,262,263 Smith v. Cahoon, 283 U. S.
553	543,599,603
Smith v. Hall, 301 U. S. 216 390 Smith v. O’Grady, 312 U. S.
329	258,463
Smith v. Texas, 311 U. S. 128
401, 404 Smith v. Wayne Probate Pro-
bate Judge, 231 Mich. 409 542 Snyder v. Massachusetts, 291
U. S. 97	462
Sorrells v. United States, 287
U. S. 435	128
Southern Electric Co. v. Stod-
dard, 269 U. S. 186	101
Southern Pacific Co. v. Bo-
gert, 250 U. S. 483	93
Southern Pacific Co. v. Jen-
sen, 244 U. S. 205	202
Southern Ry. Co. v. Prescott,
240 U. S. 632	352
Spalding v. Chandler, 160 U.
S. 394	326,327
Spies v. Illinois, 123 U. S. 131 461 Sprunt & Son v. United
States, 281 U. S. 249	20
Standard Oil Co. v. United
States, 283 U. S. 163	274
Standard Sanitary Mfg. Co.
v. United States, 226 U. S.
20	274,277,282
Standard Stock Food Co. v.
Wright, 225 U. S. 540	593
State v. Board of Commis-
sioners, 89 Mont. 37	158
State v. Bridges, 109 La. 530 471 State v. Davis, 171 La. 449 469 State v. Feilen, 70 Wash. 65 538 State v. Ferris, 16 La. Ann.
424	471
Page.
State v. Fort Lee, 14 N. J.
Mise. 895	516
State v. Glenn, 54 Md. 572
459, 460
State v. Gomez, 89 Vt. 490 469
State v. Greaves, 112 Vt.
222	614,617
State v. Hilgemann, 218 Ind. 572	479
State v. Hudson, 55 R. I.
141	469,480
State v. Jones, 172 S. C.
129	469,480
State v. Kellison, 56 W. Va.
690	480
State v. Meredith, 197 S. C.
351	614,617
State v. Sweeney, 48 S. D. 248 469
State v. Troutman, 50 Idaho 673	538
State v. Yoes, 67 W. Va. 546 469
State ex rei. Clancy v. Columbia Irrigation Dist., 121 Wash. 79	158
State ex rei. Frazer v. Holt
County Court, 135 Mo. 533 159
State ex rei. Hough v. Woodruff, 147 Fla. 299	614,617
State ex rei. Johnson v. Dayton, 200 Wash. 91	159
State ex rei. Semansky v.
Stark, 196 La. 307	614,617
State Tax Comm’n v. Aldrich, 316 U. S. 174	645
Stewart v. Hickman, 36 F.
Supp. 861	583
Stilz v. United States, 269
U. S. 144	367
Stipcich v. Metropolitan Life
Ins. Co., 277 U. S. 311	339
Storm Lake Tub Factory v.
Minneapolis & St. Louis R.
Co., 209 F. 895	352
Stratton v. St. Louis S. W.
Ry. Co., 282 U. S. 10	490
Stratton v. Stratton, 239 U. S.
55	101
Straus v. Notaseme Co., 240
U. S.179	206,209
Straus v. Victor Talking Machine Co., 243 U. S. 490 250,278
LXXX
TABLE OF CASES CITED.
Page.
Strong v. Phoenix Insurance
Co., 62 Mo. 289	498
Sturges v. Crowninshield, 4
Wheat. 122	513
Sunshine Anthracite Coal Co.
v. Adkins, 310 U. S. 381
88,262,521
Swayne & Hoyt v. United
States, 300 U. S. 297	107
Swift & Co. v. United States,
276 U.S.311	567
Tait v. Western Maryland
Ry. Co., 289 U. S. 620	262
Tapp v. Price-Bass Co., 147
S. W. 2d 107	583
Tappan v. Merchants’ Na-
tional Bank, 19 Wall. 490	177
Tavemo v. American Auto
Ins. Co., 232 Mo. App. 820 498 Taylor v. Anderson, 234 U. S.
74	353
Taylor v. Georgia, 315 U. S.
25	545
Taylor v. Standard Gas Co.,
306 U. S. 307	93,95
Telephone Cases, 126 U. S. 1 376 Tenner v. Dullea, 314 U. S.
692	461
Tennessee v. Union & Plant-
ers’Bank, 152 U. S. 454	353
Tennessee Electric Co. v. T.
V. A., 306 U. S. 118	20
Texas v. Florida, 306 U. S.
398	192
Textile Mills Corp. v. Commissioner, 314 U. S. 326 74,640 Thaddeus Davids Co. v.
Davids Mfg. Co., 233 U. S.
461	205
Thomas v. Atlanta, 59 Ga.
App. 520	614,617
Thomas v. State, 132 Tex.
Cr. 549	469,471
Thompson v. Boisselier, 114
U. S.1	384
Thompson v. Magnolia Petroleum Co., 309 U. S. 478 172
Thomson Spot Welder Co. v.
Ford Motor Co., 265 U. S.
445	367
Thornhill v. Alabama, 310 U.
S. 88	615,618
Page.
Tidewater Optical Co. v.
Wittkamp, 179 Va. 545	578
Tigner v. Texas, 310 U. S. 141 540 Title Guarantee & Trust Co.
v. Mortgage Comm’n, 273
N. Y. 415	95
Title Guaranty & Trust Co. v.
Crane Co., 219 U. S. 24	29
Title & Mortgage Guaranty
Co., Matter of, 275 N. Y.
347	92,94,95
Treinies v. Sunshine Mining
Co., 308 U. S. 66	192
Truax v. Raich, 239 U. S.
33	423,540
Truelsch v. Miller, 186 Wis.
239	338
Trustees of Dartmouth Col-
lege v. Woodward, 4
Wheat. 518	187
Tucker v. Hitchcock, No.
370, S. D. Fla., Oct. 2,1941 583 Tulee v. Washington, 315 U.
S. 681	296
Tumey v. Ohio, 273 U. S. 510 406 Twining v. New Jersey, 211
U. S. 78	462,475
Twitchell v. Pennsylvania, 7
Wall. 321	461
Union Refrigerator Transit
Co. v. Kentucky, 199 U. S.
194	185
Union Stock Yard Co. v.
United States, 308 U. S.
213	218,234,235,239
Union Trust Co. v. Wardell, 258 U. S. 537	261
United Leather Workers v.
Herkert, 265 U. S. 457	521
United Shoe Machinery
Corp. v. United States, 258
U. S. 451	373
United States v. Albers, 115
F. 2d 833	42,48
United States v. American
Trucking Assns., 310 U. S.
534	581,582
United States v. Baltimore &
Ohio R. Co., 293 U. S. 454
417,419,434
United States v. Bekins, 304
U. S. 27	508
TABLE OF CASES CITED.
LXXXI
Page.
United States v. California, 297 U. S. 175	163
United States v. Carolene
Products Co., 304 U. S. 144 544
United States v. Cassedy, 25 Fed. Cas. No. 14,745	42
United States v. Classic, 313 U. S. 299	138
United States v. Cooper
Corp., 312 U. S. 600 161,163
United States v. Creek Nation, 295 U. S. 103	296
United States v. Darby, 312
U. S. 100
518,526,575,577,578, 581
United States v. Dawson, 15
How. 467	461
United States v. De Haro,
25	Fed. Cas. 803	363
United States v. Eliason, 16
Pet. 291	484
United States v. Emery,
Bird, Thayer Co., 237 U. S. 28	74
United States v. Field, 255
U.S. 257	59,60,61
United States v. Flores, 289
U. S. 137	41,44
United States v. Gardner, 25
Fed. Cas. No. 15,188	42
United States v. General
Electric Co., 272 U. S. 476
247,252,267
United States v. Green, 107
F. 2d 19	334
United States v. Halleck, 1
Wall. 439	362
United States v. Hamilton,
26	Fed. Cas. No. 15,291	41
United States v. Hancock, 133 U. S. 193	362
United States v. Hotchkiss
Redwood Co., 25 F. 2d 958 74
United States v. Illinois Cen-
tral R. Co., 244 U. S. 82 441
United States v. Internation-
al Harvester Co., 274 U. S.
693	567
United States v. Jackson, 280
U. S. 183	214
461263’—43---vi
Page.
United States v. Kagama, 118 U. S. 375	296
United States v. Kales, 314
U. S. 186	263,265
United States v. Klamath Indians, 304 U. S. 119	326
United States v. Lefkowitz,
285	U. S. 452	139,140
United States v. Los Angeles
& S. L. R. Co., 273 U. S.
299	420,429,439
United States v. Ludey, 274
U. S. 295	67
United States v. Lynch, 26 Fed. Cas. No. 15,648	42
United States v. Maher, 307
U. S. 148	78,643
United States v. Midwest Oil
Co., 236 U. S. 459 325,326,327
United States v. Morgan, 307
U. S. 183	15,441
United States v. National
Surety Co., 254 U. S. 73 96
United States v. Nixon, 235 U S 231	3
United States v. Nye, 27 Fed.
Cas. No. 15,906	42
United States v. O’Donnell, 303 U. S. 501	355
United States v. Patten, 226
U. S. 525	275
United States v. Pelican, 232
U. S. 442	296
United States v. Polakoff, 112
F. 2d 888	121,133
United States v. Railroad Co., 17 Wall. 322	509
United States v. Roberts, 27
Fed. Cas. No. 16,173	41,42
United States v. Rosenblum
Truck Lines, 315 U. S. 50 643
United States v. Salmon, 42
F. 2d 353	334
United States v. Shoshone
Tribe, 304 U. S. Ill 326
United States v. Socony-
Vacuum Oil Co., 310 U. S-150	253,274,276,282
United States v. Staly, 27
Fed. Cas. No. 16,374	42
United States v. Swift & Co.,
286	U. S.106	562,567
LXXXII
TABLE OF CASES CITED.
Page.
United States v. Thomson, 113 F. 2d 643	119
United States v. Trenton Potteries Co., 273 U. S. 392 252,274,282
United States v. United Shoe
Machinery Co., 247 U. S. 32 373
United States v. Univis Lens
Co., 316 U. S. 241	278,280
United States v. Worley, 281 U. S. 339	215
United States v. Yee Ping Jong, 26 F. Supp. 69	134
U. S. ex rel. Coy v. United States, 316 U. S. 342	693
U. S. Fidelity & Guaranty Co.
v. Union Bank Co., 228 F.
448	96
Universal Battery Co. v.
United States, 281 U. S. 580	300
Valentine v. Chrestensen, 316 U.S.52 593,597,608,615,619
Vance v. Campbell, 1 Black 427	147
Veix v. Sixth Ward Assn., 310 U. S. 32	513
Vernon v. Alabama, 313 U.
S. 547	555
Victor Talking Machine Co. v. Thomas A. Edison, Inc., 229 F. 999	375
Virginian Ry. Co. v. Federation, 300 U. S. 515	15,521
Virginian Ry. Co. v. United States, 272 U. S. 658	11
Vise v. County of Hamilton, 19 Bl. 78	478
Von Baumbach v. Sargent
Land Co., 242 U. S. 503 73,74
Wadley Southern Ry. Co. v.
Georgia, 235 U. S. 651	582
Waley v. Johnston, 316 U. S. 101	649
Walker v. Johnston, 312 U.
S. 275	104,105
Walling v. Belo Corporation, 316 U. S. 624	581
Walsh-McGuire Co. v. Commissioner, 97 F. 2d 983 396,398
Wan v. United States, 266
U. S. 1	555
Page.
Warren-Bradshaw Drilling
Co. v. Hall, 124 F. 2d 42
520,580 Washington University v.
Baumann, 341 Mo. 708	99
Washington University v.
Rouse, 8 Wall. 439	99
Watkins v. Commonwealth, 174 Va. 518	479
Webb v. Baird, 6 Ind. 13 477,479
Weeks v. United States, 232
U. S. 383	120,128,142
Weems v. United States, 217
U. S. 349	138
Weil v. Tyler, 38 Mo. 545 497 Weiss v. United States, 308 U.
S. 321	117,118,119,126
Wells, In re, 4 F. Supp. 329 397 West v. Louisiana, 194 U. 8-258	461,462
Western Pacific R. Co. v.
Southern Pacific Co., 284
U. S. 47	420,422
Westinghouse v. Boyden
Brake Co., 170 U. S. 537 376 Westinghouse Electric Co. v.
Wagner Co., 225 U. S. 604 206 White v. Texas, 310 U. S. 530
549,555
White v. United States, 270
U. S. 175	214
White v. Winchester Coun-
try Club, 315 U. S. 32 455 Whitney v. United States, 8
F. 2d 476	334
Wilcox & Son v. Riverview
Dist., 93 Colo. 115	159
Wilentz v. Sovereign Camp,
306 U. S. 573	489
Wilkinson v. Kitchin, 1 Lord
Raymond 89	340
Williams v. Smith, 190 Ind.
526	538
Wilson, Re, 140 U. S. 575 326 Wilson v. Lanagan, 99 F. 2d 544	458
Wilson v. United States, 221 U. S. 361	121
Wingate v. General Auto Parts Co., 40 F. Supp. 364 583
TABLE OF CASES CITED.
LXXXIII
Page.
Wisconsin v. Penney Co., 311
U. S. 435	178,180,186
Wisconsin Central R. Co. v.
United States, 164 U. S.
190	294
Wisconsin Railroad Comm’n
v. Chicago, B. & Q. R. Co., 257 U. S. 563	522
Wise v. Watts, 239 F. 207	363
Wolfgang v. California, 270
U. S. 627	,	646
Woolworth Co. v. United
States, 91 F. 2d 973	452
Page.
Worcester County Trust Co.
v. Riley, 302 U. S. 292	192
Worthen Co. v. Kavanaugh,
295 U. S. 56	515
Yick Wo v. Hopkins, 118 U.
S. 356	541
Yost v. Dallas County, 236
U. S. 50	511
Young, Ex parte, 209 U. S.
123	582
Zonne v. Minneapolis Syndi-
cate, 220 U. S. 187	73,74
Zucht v. King, 260 U. S. 174 715
TABLE OF STATUTES
Cited In Opinions
(A) Statutes of the United States.
Page. 1789,Sept.24,c.20,1 Stat.73..	4
1790, Apr. 30, c. 9, §§ 8,12,1
Stat. 112.............. 31
1830, May 29, c. 208, 4 Stat.
420 .................. 317
1835, Mar. 3, c. 40, 4 Stat.
775 ................... 31
1841, Sept. 4, c. 16, 5 Stat.
453 .................. 317
1845, Feb. 26, c. 22, 5 Stat.
727 .................. 258
1850,	Sept. 28, c. 84, 9 Stat.
519....................354
1851,	Mar. 3,c. 41,9 Stat.631. 354
1866,	July 24, c. 230,14 Stat.
221..................... 4
1867,	Mar. 2, c. 162,14 Stat.
43R	93
1870, July ¡5 * o’ 294,’ 16 Stat.
215	421
1872,	May ’18,’ c’ 172,’ 17Stat.
122 .................. 286
1872,	May 23, c. 206,17 Stat.
159....................310
1873,	Mar. 3, c. 322, 17 Stat.
626 .................. 310
1874,	Apr. 15, c. 97, 18 Stat.
29 ................... 286
1875,	Mar. 1, c. 115, 18 Stat.
337	481
1876,	Aug. 15,’ c’ 289,’ 19 Stat.
176....................317
1882, Aug. 5, c. 390, 22 Stat.
257 .................. 310
1887, Feb. 8, c. 119, 24 Stat.
388 .................. 310
1887, Feb. 8, c. 119, §§ 1, 5,
24 Stat. 388 ......... 317
1889,	Mar. 2, c. 412, § 12, 25
Stat. 980 ............ 286
Page.
1890,	July 2, c. 647, 26 Stat.
209 ................. 556
1890, July 2, c. 647, §§ 1, 2,
26 Stat. 209..... 159,265
1890,	July 2, c. 647, §§ 3, 4,
6-8, 26 Stat. 209.... 159
1891,	Mar. 3, c. 543, 26 Stat.
989 ................. 310
1891,	Mar. 3, c. 561, § 8, 26
Stat. 1095........... 354
1892,	July 1, c. 140, 27 Stat.
62....................317
1893,	Feb. 20, c. 147,27 Stat.
469 ................. 317
1893,	Mar. 3, c. 209, 27 Stat.
612...................286
1894,	Aug. 13, c. 280, 28
Stat. 278............ 23
1897,	June7,c.3,30Stat.62.. 286
1898,	June 28, c. 517, § 19,30
Stat. 495............ 286
1898, July 1, c. 541, §§ 2, 3,
30 Stat. 546 ......... 74
1898, July 1, c. 542, 30 Stat.
567 ................. 286
1901, Mar. 3, c. 854, 31 Stat.
1189................... 4
1903, Feb. 11, c. 544,32 Stat.
823 ................. 265
1903, Mar. 2, c. 975, 32 Stat.
927 ................. 481
1905,	Feb. 20, c. 592, § 19, 33
Stat. 724........... 203
1905,	Feb. 24, c. 778, 33 Stat.
811.................. 23
1906,	Apr. 26, c. 1876, § 11,
34 Stat. 137........ 286
1907,	Mar. 2, c. 2565,34 Stat.
1246 ................. 1
LXXXV
lxxxvi TABLE OF STATUTES CITED.
Page.
1910,	June 18, c. 309,36 Stat.
539 .................... 4
1910,	June 18, c. 309, § 1, 36
Stat. 539............. 216
1911,	Feb. 17, c. 103, 36 Stat.
913 ................ 407
1911,	Mar. 3, c. 231, 36 Stat.
1167 ...............23,265
1912,	July 27, c. 256, 37 Stat.
240 .................. 258
1913,	Oct. 22, c. 32, 38 Stat.
208 ............4,407,447
1914,	Jan. 20, c. 11, 38 Stat.
278 .................. 350
1914, Sept. 26, c. 311,38 Stat.
719..................... 4
1914, Sept. 26, c. 311, § 5, 38
Stat. 719............. 149
1914, Oct. 15, c. 323, § 16, 38
Stat. 730............. 159
1916, Aug. 9, c. 301, 39 Stat.
441 .................. 350
1916, Sept. 8, c. 463, 39 Stat.
756 ................... 69
1916,	Sept. 8, c. 463, § 202,
39	Stat. 777 ........ 56
1917,	Oct. 6, c. 105, Art. IV,
40	Stat. 398........ 209
1919,	Feb. 24, c. 18, §240,
40	Stat. 1057 ...... 450
1919,	June 30, c. 4, § 27, 41
Stat. 3................317
1920,	Feb. 25, c. 85, 41 Stat.
437 .................. 317
1920,	Feb. 28, c. 91, § 15, 41
Stat. 456............. 216
1920, Feb. 28, c. 91, §402,
41	Stat. 456........ 407
1920,	June 3, c. 222, 41 Stat.
738 .................. 317
1921,	Aug. 9, c. 57, § 407, 42
Stat. 148............. 209
1921,	Aug. 15, c. 64, §406,
42	Stat. 161........ 216
1921, Nov. 23, c. 136, § 202,
42 Stat. 229 ......... 527
1921, Nov. 23, c. 136, § 238,
42 Stat. 258 ......... 450
1921,	Nov. 23, c. 136, §402,
42 Stat. 278 .......... 56
1922,	Sept,. 21, c. 369, 42
Stat. 998............... 4
Page.
1924,	May 20, c. 162, 43 Stat.
133 ............ 286,310
1924,	June 2, c. 234, § 302,43
Stat. 304............ 56
1924,	June 2, c. 234, § 1014,
43	Stat. 343 ...... 258
1924,	June 7, c. 320, §303,
43 Stat. 607........ 209
1925,	Feb. 13, c. 229,43 Stat.
936............ 1,98,216
1925,	Feb. 13, c. 229, § 8, 43
Stat. 936 ....... 342,	661
1925,	Mar. 4, c. 553, 43 Stat.
1302................ 209
1925,	Mar. 4, c. 553, §§ 19,
307, 43 Stat. 1302.... 332
1926,	Feb. 26, c. 27, 44 Stat.
9................... 164
1926,	Feb. 26, c. 27, § 302, 44
Stat. 9.............. 56
1926,	May 19, c. 341,44 Stat.
568 ................ 286
1927,	Feb. 23, c. 169, § 16, 44
Stat. 1162............ 4
1927,	Mar. 3, c. 299, § 4, 44
Stat. 1347.......... 317
1929,	Feb. 19, c. 268, 45 Stat.
1229 ............... 286
1930,	May 23,c.312,46 Stat.
370..................265
1930, June 17, c. 497,46 Stat.
590 ................ 258
1930,	July 1, c. 788, 46 Stat.
844................... 4
1931,	Feb. 14, c. 187, 46 Stat.
1115................. 23
1932,	June 6, c. 209, § 22, 47
Stat. 178............ 56
1933,	Mar. 4, c. 281, 47 Stat.
1571 ............... 481
1933,	May 27, c. 38, 48 Stat.
1 74..................... 4
1933,	June 16, c. 90, Tit. II,
§§ 202, 203, 48 Stat.
195.................. 23
1934,	May 18, c. 304, § 2, 48
Stat. 783 .......... 342
1934,	June 19, c. 652, § 3, 48
Stat. 1064.......... 129
1934,	June 19, c. 652, §402,
48 Stat. 1064.. 4,407,447 1934, June 19, c. 652, §501,
48 Stat. 1064....... 114
TABLE OF STATUTES CITED, lxxxvii
Page.
1934,	June 19, c. 652, § 605,
48	Stat. 1064.... 114,129
1934,	June 26, c. 756,48 Stat.
1224 ................. 481
1935,	July 5, c. 372, §§ 8, 10,
49	Stat. 449........ 105
1935,	Aug. 12, c. 508,49 Stat.
571............... 286,310
1935,	Aug. 24, c. 642, §§ 1, 2,
49 Stat. 793 .......... 23
1935,	Aug. 26, c. 687,49 Stat.
803 .................... 4
1935,	Aug. 29 c. 814, 49 Stat.
977 .................... 4
1935,	Aug. 30, c. 829, § 105,
49 Stat. 1017.......... 69
1936,	June 16, c. 582,49 Stat.
1519...................481
1936,	June 22, c. 690, § 14,49
Stat. 1648............ 107
1936,	June 22, c. 690, § 23, 49
Stat. 1648 ........... 394
1936,	June 22, c. 690, § 27,49
Stat. 1648............ 107
1936,	June 22, c. 690, § 112,49
Stat. 1648........ 107,527
1936, June 22, c. 690, § 113,
49 Stat. 1648......... 527
1936, June 22, c. 690, § 115,49
Stat. 1648............ 107
1936, June 22, c. 690, § 131,
49 Stat. 1648..........450
1936,	June 22, c. 690, § 401,
49 Stat. 1648.......... 69
1937,	Apr. 26, c. 127, 50 Stat.
85...................... 4
1937,	June 24, c. 382, 50 Stat.
307  ................... 4
1937,	Aug. 16, c. 651, 50 Stat.
650............... 286,310
1937,	Aug. 16, c. 657, 50 Stat.
w 653 ................... 502
1937,	Aug. 17, c. 690, 50 Stat.
693 .............. 241,265
1938,	Feb. 16, c. 30, 52 Stat.
31.....................  4
1938,	Mar. 21, c. 49, 52 Stat.
Ill..................... 4
1938,	May 28, c. 289, § 131,
52 Stat. 447 ......... 450
1938,	May 28, c. 289, § 601,
52 Stat. 565 .......... 69
Page.
1938,	June 21, c. 555, 52 Stat.
821................... 4
1938, June 23, c. 601, 52 Stat.
973 .................. 4
1938, June 25, c. 676,52 Stat.
1060 ................. 4
1938, June 25, c. 676, § 3, 52
Stat. 1060...... 517,572
1938, June 25, c. 676, §§ 6, 7,
52 Stat. 1060. 517,572,624 1938, June 25, c. 676, § 8, 52
Stat. 1060.......517,572
1938, June 25, c. 676, § 11,
52 Stat. 1060....... 572
1938, June 25, c. 676, § 13,
52 Stat. 1060... 517,572
1938, June 25, c. 676, § 15,
52 Stat. 1060....... 624
1938, June 25, c. 676, § 16,
52	Stat. 1060..... 572
1938, June 25, c. 676, §§ 17,
18, 20, 52 Stat. 1060.. 624
1938,	June 29, c. 811,52 Stat.
1239 ................ 74
1939,	Feb. 4, c. 1,53 Stat. 507.	1
1939,	June 30, c. 252, §30,
53	Stat. 927........ 1
1939,	Aug. 2, c. 410, 53 Stat.
1147.................. 1
1939,	Aug. 3, c. 411, 53 Stat.
1175.................. 4
1939,	Aug. 11, c. 685,53 Stat.
1404 ............... 517
1940,	July 19, c. 640, 54 Stat.
767 .................. 1
1940,	Aug. 22, c. 686, 54 Stat.
847 .................. 4
1940,	Oct. 9, c. 787, 54 Stat.
1059............ 481,486
Constitution. See Index at
end of volume.
Criminal Code.
§37................114,129
§215...................114
§§292,293 .............. 31
Judicial Code.
§24 .............. 350,	572
§128.................  283
§210...................216
§237 ..98,153,455,481,502,
584,643,644,645,646,648
§238..............1,216,265
§239 ................... 4
Lxxxviii TABLE OF STATUTES CITED.
Page.
Judicial Code—Continued.
§ 262 ................. 4
§266................. 486
Revised Statutes.
§§441,444,445,463,464. 286 §989 ................ 258
§2089 ............... 286
§4886 ............... 364
§4888............. 143,	364
§§ 4916,4917.......... 143
U. S. Code.
Title 7, §9.....................  4
§§ 181 et seq......216
§§ 192, 226....... 216
§ 1367............. 4
Title 8, § 44........ 400
Title 11, §§11,21........... 74
§52...............129
§621.............. 89
Title 12, § 588...... 342
Title 15,
§1....... 24^,265,556
§2................265
§3................241
§§ 7, 15.......... 159
§29.......... 265,556
§45.............4,149
§§77, 79, 80........ 4
§§ 81 et seq.... 203 '
§99 ............. 203
§§ 717, 836......... 4
Title 18, §88............... 114,129
§338............. 114
§§483, 484......... 31
§682............... 1
§688............. 342
Title 19, §§ 1514-15.... 258
Title 25, § 475...... 286
Title 26, §112...................527
§131..............450
§1141...........  164
Title 27, §§80, 204....	4
Title 28,
§41.......... 350,572
§47... .74, 216,407,447
§71...............350
§225 ............ 283
§230 ............ 342
Page.
U. S. Code—Continued.
Title 28—Continued.
§ 344.... 153, 455, 502, 584,643,644, 645,646,648 §345... 1,216,265,556 §346 .............. 4
§350............. 342
§371............. 572
§377............... 4
§380............. 486
§381............. 624
§400........,.... 491
§401........>.....659
§832 ............ 658
§842............. 258
Title 29, §151..............105
§158.............. 31
§§ 201 et seq.....517
§203 ............ 572
§ 207 ......... 572,624
§ 210.............. 4
§213..............572
§215..............624
§216............. 572
§217..............624
Title 35, §31............■■	214,364
§33.......... 143,364
§40 ......... 241,265
§§64, 65......... 143
§§445,512,518.... 332
Title 40, § 270...... 23
Title 43, §982 ..... 354
Title 45, §228 ....... 4
Title 46, §§ 564, 651-692, 713, 1131............ 31
Title 47, §153............. 129,407
§402 ........ 407,447
§501.............. H4
§605........  114,129
Title 49,
8 1 ..... 216,346,407
§3................346
8 15...........216,346
§20 ............. 350
§ 228 ............. 4
§§306,311,312 .... 74
Agricultural Adjustment Act, 1938 .................. 4
TABLE OF STATUTES CITED.
LXXXIX
Page.
Alcohol Administration Act, 1935 ....................... 4
Allotment Act, 1887, §§ 1,5.. 317 Bankruptcy Act.............502
§ 29.................. 129
§65.................... 89
§ 77B..........89,491,527
Bituminous Coal Act, 1937..	4
Boiler Inspection Act.....407
Carmack Amendment.........350
Civil Aeronautics Act.....	4
Civil Rights Act...........400
Commodity Exchange Act...	4
Communications Act
§ 3................... 129
§§ 203,220,303,309,312.. 407 §402 ..........  4,407,447
§ 501..................114
§ 502 ................ 407
§605 ............. 114,129
Criminal Appeals Act......	1
Curtis Act, 1898, § 19.....286
Declaratory Judgments Act.. 491 Emergency Relief Appropria-
tion Act, 1939, § 30....	1
Employers Liability Act.... 517 Fair Labor Standards Act...	4
§ 3...............517,572
§§ 6, 7 ....... 517,572,624
§ 8...............517,572
§11....................572
§ 13..............517,572
§§14,	15...............624
§ 16...................572
§§ 17, 18, 20.......... 624
Federal Trade Commission
Act, § 5..............4,149
General Leasing Act, 1920.. 317 Hatch Act, §§ 3, 4.......... 1
Heard Act, 1894............ 23
Indian Appropriation Act,
1877................... 317
Industrial Recovery Act.... 23 Internal Revenue Code, §1200 ..................... 69
Interstate Commerce Act
§1.................216,346
§ 3....................346
§13....................517
§15............... 216,346
_ § 20 ................... 407
Investment Advisers Act....	4
Investment Company Act.. 4
Page.
Joint Resolution of Feb. 4,
1939,	§ 3 (53 Stat. 507)..	1
Joint Resolution of June 26,
1940,	§3 (54 Stat. 611).. 572
Judiciary Act, 1925........... 98
Labor Relations Act.. 31,105,517 Mann-Elkins Act, 1910.......... 4
Müler Act, §§ 1, 2............ 23
Miller-Tydings Act.... 241,265
Motor Carrier Act, 1935
§ 204 ................... 572
§§206, 211,212, 215.... 74 Municipal Bankruptcy Act.. 502 Mutiny Act, 1790, §§ 8, 12.. 31 Natural Gas Act, 1938.......... 4
National Industrial Recovery
Act, 1933, Tit. II, §§ 202, 203 .................. 23
National Labor Relations Act	517
§2................. 31
§§8,10............31,105
Northwest Ordnance, 1787,
Art. 1......................584
Packers & Stockyards Act,
§ 406 ..................... 216
Post Roads Act, 1866 .......... 4
Pre-emption Act, 1830........ 317
Pre-emption Act, 1841.........317
Public Utility Act, 1935....	4
Radio Act, 1927, § 16.......... 4
Railroad Retirement Act....	4
Revenue Act, 1916, § 202.... 56 Revenue Act, 1918, § 240.... 450 Revenue Act, 1921,
§ 202 ................... 527
§ 238 ................... 450
§ 402 .................... 56
Revenue Act, 1924,
§302 ................. 56,394
§ 1014....................258
Revenue Act,	1926 .... 394
§301..................... 174
§ 302 .................... 56
Revenue Act,	1928..... 394
Revenue Act,	1932. 394,450
§ 22 ..................... 56
Revenue Act,	1934..... 394
§ 112.....................527
Revenue Act,	1935, § 105.... 69
Revenue Act, 1936,
§ 14..................... 107
§23 ..................... 394
§27...................... 107
xc
TABLE OF STATUTES CITED.
Page.
Revenue Act, 1936—Cont’d.
§ 112 ............. 107,527
§ 113..................527
§ 115................. 107
§ 131..................450
§401................... 69
Revenue Act, 1938
§ 131..................450
§ 601.................. 69
Second Cummins Amendment 350 Securities Act, 1933........ 4
Sherman Act............517,556
§ 1 ........... 159,241,265
§ 2 ............... 159,265
§3 ............... 159,241
§§ 4, 6-8.............. 159
Page.
Swamp Lands Act............354
Trade Commission Act... 4, 149 Trademark Act, 1905, § 19.. 203 Transportation Act, 1920,
§ 402 ................ 407
§416...................517
Trust Indenture Act, 1939.. 4
Urgent Deficiencies Act, 1913
4,74,407,447
War Risk Insurance Act,
1917, Art. IV..........209
World War Veterans Act, §§
19, 301, 307.......... 332
World War Veterans Act, 1924, §303 ............ 209
(B)	Statutes of the States and Territories.
Alabama.
Constitution, Art. I, § 6. 455
Code, 1940, Tit. 15, § 318. 455 Arizona.
Constitution, Art. II, §24. 455
Terr. Rev. Stats., 1901, Penal Code, Pt. II, Tit.
VII, § 858.............. 455
Code, 1939, Art. 9, §§ 44-
904, 44-905......... 455 Arkansas.
Constitution, Art. II, § 10 455
Gantt’s Digest of Stats., 1874, Crim. Proc. c. 43, Art. XII, § 1824, p.
410 ..................455
Pope’s Digest, 1937, Vol.
1,	c. 43, § 3877, p. 1180 455 Steel & McCampbell’s
Comp. Laws of Ark. Terr., 1835, Crimes and Misdemeanors, § 37, p.
194 ................. 455
California.
Constitution, Art. I, § 13 455
1923 Stats., pp. 572-574 481
1927 Stats., p. 1309.... 481
1933	Stats., pp. 1636,
1637 ................ 481
1937 Stats., p. 2219.... 481
Penal Code, 1872, §987. 455 Deering’s Penal Code,
1937, Pt. 2, Tit. 6, c.
1, §987 ............. 455
California—Continued.
Motor Vehicle Fuel License Tax Act, §§ 7,10 481 Colorado.
Constitution, Art. II, §
16 ...................455
1937 Laws, 498, § 1... 455
Gen. Laws, 1877, §§ 913—
916 ..................455
Stats. Anno., 1935, Vol.
2,	c. 48, §§ 502, 505.. 455 Connecticut.
Constitution, Art. I, §9. 455
Rev. Gen. Stats., 1930,
c. 335, §§ 2267, 6476.. 455 Delaware.
Constitution, Art. I, § 7 455
6	Laws 741........... 455
7	Laws 410............455
Penn’s Laws, 1719, c.
XXII..................455
Rev. Code, 1935, c. 114, §§ 4305-6, 4306, 4310 ..... ............ 455
District of Columbia.
Code, 1940, Tit. 11-208 4 Florida.
Dec. of Rights, § 11.... 455
Gen. Laws, 1927, §8375 455 Georgia.
Constitution, Art. I, Par.
V.....................455
Constitution, Art. I, Par.
8		  455
TABLE OF STATUTES CITED.
xci
Page.
Idaho.
Constitution, Art. I, § 13. 455 1864 Terr. Laws 2d
Sess., c. II, p. 246.... 455
Terr. Crim. Prac. Act, 1864, §267 ............ 455
Code Anno., 1932, §§19-1412, 19-1413.. 455 Illinois.
Constitution, Art. II, § 9 455 1933 Laws, 430-431.... 455 1939 Laws, pp. 660-666. 168 Rev. Stats., 1874, Crim.
Code, §422........... 455
Rev. Stats., 1935, c. 38, par. 754..............  455
Rev. Stats., 1941, c. 56%, §§115-134 ..............168
Jones’ Stats. Anno., 1936, §37.707...............  455
Milk Pasteurization Plant Law, 1939, §§ 15, 19 .................... 168
Chicago Ordinance of
Jan.4,1935, §3094... 168 Indiana.
Constitution, Art. I, § 13 455 Iowa.
Constitution, Art. I, § 10 455 1839 Terr. Laws, Courts,
§ 64 ................ 455
1839, Act of Jan. 4, § 64 455
Code, 1939, c. 640, § 13-
773 ............I.....	455
Kansas.
Bill of Rights, § 10.... 455 1941 Laws, c. 291...... 455
Gen. Stats. 1868, c. 82,
§ 160, p. 845 ....... 455
Gen. Stats. 1935, c. 62,
§ 1304, p. 1449 ..... 455
Corrick’s Gen. Stats., 1935, § 21—107 ........ 255
Compilation published in 1856, S. Doc. No. 23, 34 Cong. 1st Sess. 520, (c. 129, Art. V, §4).. 455
Kentucky.
Constitution, § 11 .....455
Bill of Rights, § 11....455
Louisiana.
Constitution, Art. I, § 9 455
Page. Louisiana—Continued.
1805, Act of May 4,
Terr, of Orleans, §35 455 1855 Laws, Act No. 121 455 Dart’s Code Crim. Proc.,
1932, Tit. XIII, Art.
143 ................. 455
Maine.
Constitution, Art. I, § 6. 455 1826, Act of Mar. 8, § 6,
p. 146 .............. 455
R. S., 1857, c. 134, § 12, p.713.............455
R. S., 1930, c. 146, § 14,
p. 1655.............. 455
Maryland.
Constitution, Art. 4, §6 455 Dec. of Rights, Art. 21 455 1886 Laws, c. 46, p. 66.. 455 1941 Laws, c. 484...... 455
Flack’s Anno. Code 1939,
Art. 26, Par. 7, p. 1060........... 455
Flack’s Anno. Code, 1939,
Vol. 2, Art. 81, §§ 26, 46,72,74,154... 394
Flack’s Pub. Gen. Laws, 1939, Art. 42, §§ 1-6, 9-12, 17..........455
Flack’s 1930 Code Pub.
Local Laws, Art. 4,
§ 40................. 394
Massachusetts.
Constitution, Part I, § 12 455 Laws, Nov. 27, 1780 to
Feb. 28,1807, c.LXXI,
Vol. II, Appen. p. 1049 455 Michigan.
Dec. of Rights, Art. II,
§ 19..................455
1857 Laws, Act No. 109, p.239 ........... 455
1909 Public Acts, No.
278, §§24, 26........ 153
1937 Public Acts, Nos.
114, 155............. 153
Comp. Laws, 1929,
§§ 1786, 1788........ 153
Stats. Anno., § 28.1253. 455 Minnesota.
Constitution, Art. I, § 6. 455
XCII
TABLE OF STATUTES CITED.
Page.
Minnesota—Continued.
1869, Act of Mar. 5, G.
L. 1869, c. LXXII,
§ 1................455
Gen. Laws, 1869, c.
LXXII, §1..........455
Mason’s Stats., 1927, Vol.
2, c. 94, §9957... 455
Mason’s Stats., 1927,
§ 10667 .......... 455
Mississippi.
Constitution, Art. HI, § 26 ........... 455
1934	Laws, c. 303.. 455
Anno. Code Crim. Proc.,
1930, c. 21, §1262... 455 Missouri.
Constitution, Art. II, § 22 455
Constitution, 1890 Amendments to Art.
VI, §§1,4.......... 98
Dig. of Terr. Laws, 1818, Crimes and Misdemeanours, §35... 455
Rev. Stats., 1939, §§ 1560-1589 ... 491
Rev. Stats. 1939, § 4003 . 455
Rev. Stats. 1939, Crim.
Proc., §4003 ..... 455
6 Stats. Anno., §§ 5898, 5899 ........... 491
Casselberry’s Rev. Stats., 1845, pp. 434, 443-4, 458 ............ 455
Montana.
Constitution, Art.
Ill, §16...........455
1872, Act of Jan. 12, c.
IX, § 196......... 455
1872 Terr. Crim. Proc.
Act, § 196........ 455
Codified Stats., 1871-1872,220........ 455
Rev. Codes Anno., 1935, c. 73, § 11886 . 455
Nebraska.
Constitution, Art.
I, §11.............455
1869 Laws, p. 163 .. 455
Gen. Stats. 1873, c. 58, §437, p. 821.... 455
Comp. Stats. 1929, § 29-1803 ........... 455
Page. Nebraska—Continued.
Comp, Stats. 1929, Crim. Proc., Art. 18, § 29-1803 ............. 455
Nevada.
Constitution, Art.
I, § 8..............455
1861, Act of Nov. 26, 1861-1873 Comp.
Laws, Vol. 1,477, 493 . 455 Comp. Laws, 1861-1873,
c. LIU..............455
Comp. Laws 1929, Vol. 5, §10883 ............. 455
New Hampshire.
Bill of Rights, 15th.... 455 1791, Act of Feb. 8, (Metcalf’s Laws, 1916, Vol. 5, pp. 596, 599).. 455 1907 Laws, c. 136.... 455
1926 Laws, c. 368.... 455
1937 Laws, c. 22..... 455
R. S. 1843, Tit. XXVII,
c. 225, p. 457..... 455
New Jersey.
Constitution, Art.
I, §8...............455
1795, Act of Mar. 6, § 2, Acts Gen. Assembly, 1794, c. DXXXII, p.
1012............... 455
1931 Laws, c. 340, § 405. 502
1933	Laws, c. 331... 502
Rev. Stats. 1937, Tit. 52,
c. 27, §§52:27-34 to 52: 27-40 incl......502
Stats. Anno., § 2:190-3. 455 Municipal Finance Commission Act, 1931.... 502 New Mexico.
Constitution, Art. II,
§ 14................455
New York.
Constitution, Art. I, § 6. 455 Constitution, Art. XVI,
§3................. 174
Constitution, 1938, Art.
I, § 12............ 129
1787, Act of Feb. 20, Sess. 1st to 20th (1798), Vol.
I, pp. 356-7 ...... 455
1930 Laws, c. 710, § 1... 174
1934	Laws, c. 639, § 1.. 174
TABLE OF STATUTES CITED.
xeni
Page.
New York—Continued.
1940	Laws, c. 138....174
Civil Rights Law, § 51.. 129 Code of Crim. Proc.,
§308 .............. 455
McKinney’s Cons. L., Bk.
59, Tax Law, § 249.. 174 McKinney’s Cons. L.,
(1941 Cum. Ann. Pt.)
§ 249 ............. 174
Thompson’s Laws (1939),
Pt. II, § 308...... 455
Sanitary Code, New York
City, §318.......... 52
North Carolina.
Constitution, Art.
I,	§11.............455
1777 Act, 1789 Laws, pp.
40, 56 ............ 455
North Dakota.
Constitution, Art.
I,	§13.............455
Comp. Laws 1913, Vol.
II,	§§8965, 10721..455
Terr. Code of Proc., 1863, §249 ........... 455
Rev. Codes, 1877, Crim.
Proc., 875 ........ 455
Ohio.
Constitution, Art.
I, §10..............455
1816, Act of Feb. 26,
§ 14................455
Chase’s Stats., 1788-
1833, Vol. II, 982.... 455 Throckmorton’s Code
Anno., 1940, Vol. II, § 13439-2..... 455
Oklahoma.
Constitution, Art. II, §20 ............ 455
1890 Terr. Stats., c. 70,
§ 10................455
1935	Laws, pp. 94 et
seq.................535
1941	Stats. Anno., Supp.,
Tit. 22, §§464, 1271.. 455
Stats. Anno., Tit. 21, §§ 5, 1455, 1456, 1462, 1704,1705,1719 . 535
Stats. Anno., Tit. 57, §§ 171 et seq.,..535
Page. Oklahoma—Continued.
Habitual Criminal Sterilization Act, §§ 173, 176-182, 194......... 535
Oregon.
Constitution, Art. I,
§ 11 ...............455
1864, Act of Oct. 19, 1845-1864 Gen. Laws, c. 37, §381.......... 455
1937 Laws, c. 406.... 455
Comp. Laws Anno., Vol.
3,	§26-804........ 455
Pennsylvania.
Constitution, Art. I, § 9. 455 1718, Act of May 31, §111 (Mitchell & Flanders’ Stats, a t Large, 1682-1801, Vol.
Ill,	p. 201)...... 455
Rhode Island.
Constitution, Art.
I, § 10.............455
1798 Laws, p. 80..... 455
Acts and Resolves, 1891,
c. 921, p. 165..... 455
Gen. Laws, 1938, c. 625,
§ 62 .............  455
South Carolina.
Constitution, Art.
I, § 18.............455
1731, Act of Aug. 20,
(Grimke’s Pub. Laws, 1682-1790, p. 130)... 455 Code, 1932, Vol. 1, §§979,
980 ............... 455
Code, 1932, Vol. II, §§25-27-2557 ............. 486
South Dakota.
Constitution, Art. VI, 8 7...................455
Terr. Code of Proc., *1863, §249 ................ 455
Rev. Code, 1877, Crim.
Proc., 875 ........ 455
Code, 1939, Vol. II, §34.-
1901 .............. 455
Tennessee.
Constitution, Art. I, §§ 9, 10 ...................455
Code, 1857-1858, §§ 5205, 5206................. 455
XCIV
TABLE OF STATUTES CITED.
Page.
Tennessee—Continued.
Michie’s Code, 1938, §§ 11733, 11734....... 455
Jl 6XRS
Vernon’s Stats., 1936, Art. 1917..............455
Code Crim. Proc., 1856,
Pt. Ill, Arts. 466-7.. 455
Code Crim. Proc., Arts. 215, 217, 262 ........ 547
Code Crim. Proc., Arts.
338, 339, 344, 357.... 400 Utah.
Constitution, Art. I, § 12. 455
1878 Terr. Laws, Crim.
Proc., §181..........455
Rev. Stats., 1933, §§ 18-
3-1 et seq.......... 174
Rev. Stats. 1933, §§80— 12-2,80-12-3...........174
Rev. Stats. 1933, § 105-22-12 ................ 455
Rev. Stats. 1938, Code
Crim. Proc., § 105-22-
12...................455
Vermont.
Constitution, Ch. I, Art. 10th ..................455
Page.
Vermont—Continued.
1933 Pub. Laws, c. 57,
§ 1424; c. 101, § 2327;
c. 102, § 2370 ...... 455
Virginia.
1786, Act of Oct., (Hen-ing’s Stats., 1785-1788, Vol. 12, p. 343)....... 455
Code, 1930, § 34 ...... 584
Washington.
Constitution, Art. I, § 22 455
Terr. Stats., 1854, Crim.
Prac. Act, §89....... 455
Terr. Code, 1881, c. LX-XXV, §1063............. 455
Rem. Rev. Stats., 1932,
Vol. 4, c. 2, §§ 2095, 2305 ................ 455
West Virginia.
Constitution, Art. Ill,
§ 14..................455
Wisconsin.
Constitution, Art. I, § 7.. 455 Wyoming.
Constitution, Art. I, §10. 455
1869 Terr. Laws, Crim.
Proc., §98........... 455
R. S. 1931, 33-501..... 455
(C)	Indian Treaties.
1856, Aug. 7 (Seminoie), Art.
VIII, 11 Stat. 699....... 286
1866,	Mar. 21 (Seminole), Art. Ill, 14 Stat. 755.. 286,310
1866, Mar. 21 (Seminole),
Arts. VI, VIII, 14 Stat.
755................. 286
1866, June 14 (Creek), 14
Stat. 785................ 310
1867,	Feb. 27 (Pottawatomie), Art. I, 15 Stat. 531.. 310
1868,	Apr. 29 (Sioux), Art.
II, 15 Stat. 635........... 317
1877, Feb. 28 (Sioux), 19
Stat. 254 ................. 317
(D)	Foreign Statutes.
English.
10 Anne, c. 19.......584
3 Edw. 7, c. 38 .... 455
5 Geo. Ill, c. 12....584
20 & 21 Geo. 5, c. 32... 455 6&7WÌ11.4, c. 114, §§I,
II ................455
English—Continued.
7 Will. 3, c.	3, § 1.455
Poor Prisoners’ Defence
Act..................455
Stamp Act,	1712......584
Stamp Act,	1765..... 584
CASES ADJUDGED
IN THE
SUPEEME COUET OF THE UNITED STATES
AT
OCTOBER TERM, 1941
UNITED STATES v. MALPHURS et al.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA.
No. 558. Argued March 5, 6, 1942.—Decided April 6, 1942.
Although this Court has jurisdiction under the Criminal Appeals Act to pass upon the correctness of the order of the District Court in this case sustaining a demurrer to the indictment on the sole ground that §§ 3 and 4 of the Hatch Act were inapplicable, the judgment is vacated and the cause is remanded for consideration by the District Court of the continued existence and applicability of the statutes, other than the Hatch Act, referred to in this opinion. P. 3.
41 F. Supp. 817, reversed.
Appeal under the Criminal Appeals Act from a judgment sustaining a demurrer to an indictment.
Mr. Herbert Wechsler argued the cause, and Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Archibald Cox, Louis B. Schwartz, and Herbert S. Phillips were on the brief, for the United States.
Messrs. John L. Graham and Francis P. Whitehair, with whom Messrs. D. C. Hull, Erskine W. Landis, and J. Compton French were on the brief, for appellees.
Per Curiam.
This appeal comes here directly from the District Court for the Southern District of Florida under the authority of the Criminal Appeals Act, 34 Stat. 1246,18 U. S. C. § 682,
461263°—43-1	1
2	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
and § 238 of the Judicial Code as amended, 43 Stat. 936, 938, 28 U. S. C. § 345. In the District Court, a demurrer to an indictment was sustained on the sole ground that § § 3 and 4 of the Hatch Act, “An Act to prevent pernicious political activities” approved August 2, 1939, 53 Stat. 1147, set out below,1 were inapplicable to a state primary.6 Neither the assignment of errors nor the jurisdictional statement specifies any other statute under which the indictment might have been found.
Defendants, employees of the Works Progress Administration and a municipal Chief of Police, were indicted under Count I for threatening, on May 6,1940, to deprive a named person of employment, made possible by an Act of Congress, unless he voted for and supported in the Florida primary, defendants’ candidates for various national and state offices, and under Count II for promising on May 23rd continued and more remunerative employment if that person did support them. In each count it was alleged that: “Frank M. Strickland was an employee of the Works Progress Administration, an agency of the United States of America, which said agency was administering certain projects in the said county and wras furnishing employment
1 “Sec. 3. It shall be unlawful for any person, directly or indirectly, to promise any employment, position, work, compensation, or other benefit, provided for or made possible in whole or in part by any Act of Congress, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in any election.
“Sec. 4. . . .it shall be unlawful for any person to deprive, attempt to deprive, or threaten to deprive, by any means, any person of any employment, position, work, compensation, or other benefit provided for or made possible by any Act of Congress appropriating funds for work relief or relief purposes, on account of race, creed, color, or any political activity, support of, or opposition to any candidate or any political party in any election.”
’ It is to be noted that this indictment relates to acts occurring prior to the approval of the amendment of July 19,1940,54 Stat. 767.
UNITED STATES v. MALPHURS. 3
1	Opinion of the Court.
to persons on relief in said county provided for and made possible in whole or in part by Act of Congress of the United States, to wit, the Emergency Relief Appropriation Act of 1939.”
In its brief for this Court, the Government contends for the first time that the language of the Emergency Relief Appropriation Act of 1939, § 30 (a), 53 Stat. 927, 937, applies sanctions to allegations such as are made in Count II of the indictment. See also § 30 (b) of that Act and § 3 (a) of the Joint Resolution of February 4,1939, making an additional appropriation for work relief for the fiscal year ending June 30,1939,53 Stat. 507, 508. It is obvious that these sections were not called to the attention of the trial judge as possibly applicable to the whole indictment.
While we have jurisdiction under the Criminal Appeals Act to pass upon the correctness of the order entered below, United States v. Nixon, 235 U. S. 231, we think that it is advisable to vacate the judgment and remand the case in its entirety, without discussion of the Hatch Act.8 We remand this case for consideration by the District Court of the continued existence and applicability of the statutes, other than the Hatch Act, referred to in this opinion.
It is so ordered.
Mr. Justice Jackson took no part in the consideration or decision of this case.
8 Cf. Gainesville v. Brown-C rummer Co., 277 U. S. 54, 60-61.
4	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
SCRIPPS-HOWARD RADIO, INC. v. FEDERAL COMMUNICATIONS COMMISSION.
ON CERTIFICATE FROM THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.
No 508. Argued March 3,1942.—Decided April 6,1942.
Where, pursuant to the provisions of § 402 (b) of the Communications Act of 1934, an appeal has been taken, to the United States Court of Appeals for the District of Columbia, from an order of the Federal Communications Commission, that court, in order to preserve the status quo pending appeal, has power to stay the execution of the Commission’s order from which the appeal was taken, pending the determination of the appeal. P. 11.
In response to a question certified by the Court of Appeals for the District of Columbia in respect of an appeal from an order of the Federal Communications Commission granting permission to change the frequency and increase the power of a radio station.
Mr. Paul M. Segal, with whom Mr. Harry P. Warner wTas on the brief, for Scripps-Howard Radio, Inc.
Mr. Thomas E. Harris, with whom Solicitor General Fahy and Messrs. H. G. Ingraham, Teljord Taylor, Harry M. Plotkin, and Max Goldman were on the brief, for the Federal Communications Commission.
Mr. Justice Frankfurter delivered the opinion of the Court.
This case is here on certificate from the Court of Appeals for the District of Columbia. Judicial Code § 239, 28 U. S. C. § 346. The question certified relates to the power of the Court of Appeals to stay the enforcement of an order of the Federal Communications Commission pending determination of an appeal taken under § 402 (b) of the Communications Act of 1934, 48 Stat. 1064, 1093.
SCRIPPS-HOWARD RADIO v. COMM’N. 5
4	Opinion of the Court.
The circumstances which induced the Court to certify the question are these: On October 10, 1939, the Commission granted without hearing the application of WCOL, Inc., licensee of Station WCOL, Columbus, Ohio, for a construction permit to change its frequency from 1210 to 1200 kilocycles and to increase its power from 100 to 250 watts. The appellant, Scripps-Howard Radio, Inc., which is the licensee of Station WCPO, Cincinnati, Ohio, operating on a frequency of 1200 kilocycles with power of 250 watts, filed a petition for “hearing or rehearing” requesting the Commission to vacate its previous order and set the WCOL application for hearing. The Commission denied this petition on March 29, 1940, and an appeal followed. In its statement of “reasons for appeal,” the appellant claimed that the Commission could not lawfully grant the WCOL application without hearing; that in granting the application the Commission departed from its rules and standards of good engineering practice; that the appellant was entitled to a hearing in order to show that the Commission’s action did not serve the public interest since it would result in materially reducing the coverage of Station WCPO and thereby deprive a substantial number of listeners of “the only local regional non-network service” available to them; and that in granting the WCOL application without hearing, the Commission violated the Due Process Clause of the Fifth Amendment.
The appellant asked the Court of Appeals to stay the Commission’s order pending the disposition of its appeal. Even though the Court “had consistently over a long period of years, and without objection on the part of the Commission, issued stay orders” in cases where such orders were found to be necessary, the Commission opposed the issuance of a stay order in this case on the ground that the Court was without power to grant a stay. The application was heard before the Court sitting with
6	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
three judges, which, with one judge dissenting, upheld the Commission’s contention. A motion for rehearing before all six members of the Court was granted. The judges being equally divided on the question of the Court’s power to grant a stay, the following question was certified to us:
“Where, pursuant to the provisions of Section 402 (b) of the Communications Act of 1934, an appeal has been taken, to the United States Court of Appeals, from an order of the Federal Communications Commission, does the court, in order to preserve the status quo pending appeal, have power to stay the execution of the Commission’s order from which the appeal was taken, pending the determination of the appeal?”
The Commission suggests that the certificate should be dismissed because of the generality of the question. Lowden v. Northwestern Nat. Bank, 298 U. S. 160. Read in the light of the preliminary statement certifying the facts which presented the question, Hill v. Wampler, 298 U. S. 460, 464, the question is limited to the type of order made by the Commission in this case. It is therefore sufficiently specific.
The Communications Act of 1934 is a hybrid. By that Act Congress established a comprehensive system for the regulation of communication by wire and radio. To secure effective execution of its policy of making available “a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges,” Congress created a new agency, the Federal Communications Commission, to which it entrusted authority previously exercised by several other agencies. Under the Radio Act of 1927, 44 Stat. 1162, the Federal Radio Commission had broad powers over the licensing and regulation of radio facilities. The Mann-Elkins Act of 1910,36 Stat. 539, gave the Interstate Commerce Commission general regulatory authority over telephone and telegraph carriers. In addition, the Post-
SCRIPPS-HOWARD RADIO v. COMM’N. 7
4	Opinion of the Court.
master General was empowered, under the Post Roads Act of 1866,14 Stat. 221, to fix rates on government telegrams.1 The Communications Act of 1934 was designed to centralize this scattered regulatory authority in one agency. See Message from the President to Congress, February 26, 1934, Sen. Doc. No. 144, 73d Cong., 2d Sess.; Sen. Rep. No. 781, 73d Cong., 2d Sess., p. 1; H. Rep. No. 1850, 73d Cong., 2d Sess., pp. 3-4.
The provisions for judicial review in the Act of 1934 reflect its mixed origins. Section 402 (a) makes the provisions of the Urgent Deficiencies Act of October 22, 1913, 38 Stat. 208, 219, pertaining to judicial review of orders of the Interstate Commerce Commission, applicable to “suits to enforce, enjoin, set aside, annul, or suspend any order of the Commission under this Act (except any order of the Commission granting or refusing an application for a construction permit for a radio station, or for a radio station license, or for renewal of an existing radio station license, or for modification of an existing radio station license).” 48 Stat. 1064, 1093. The Urgent Deficiencies Act, which is thus incorporated in § 402 (a) of the Communications Act of 1934, provides for review in a specially constituted district court, with direct appeal to this Court. That Act authorizes the District Court, in cases “where irreparable damage would otherwise ensue to the petitioner,” to allow a temporary stay of the order under review, subject to specified safeguards. 38 Stat. 208, 220. *
*A summary of the authority vested in the Federal Radio Commission, the Interstate Commerce Commission, and the Postmaster General, and of the extent to which such authority was actually exercised, is contained in Appendix A, Historical Background of the Communications Act of 1934, of the Monograph of the Attorney General’s Committee on Administrative Procedure dealing with the Federal Communications Commission, Sen. Doc. No. 186, 76th Cong., 3d Sess., pt. 3; see also Herring and Gross, Telecommunications, pp. 210-45.
8	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Section 402 (b) of the Communications Act of 1934 provides for review of the orders excepted from § 402 (a). It gives an appeal “from decisions of the Commission to the Court of Appeals of the District of Columbia in any of the following cases: (1) By any applicant for a construction permit for a radio station, or for a radio station license, or for renewal of an existing radio station license, or for modification of an existing radio station license, whose application is refused by the Commission. (2) By any other person aggrieved or whose interests are adversely affected by any decision of the Commission granting or refusing such application.” 48 Stat. 1064, 1093. This section follows § 16 of the Radio Act of 1927, 44 Stat. 1162, as amended in 1930,46 Stat. 844, the relevant portions of which are set forth in the margin.2 See Sen. Rep. No. 781, 73d Cong., 2d Sess., p. 9; H. Report No. 1918, 73d Cong., 2d Sess., pp. 49-50; remarks of Senator Dill, in charge of the measure in the Senate, 78 Cong. Rec. 8825, and of Representative Rayburn, who occupied the same role in the House, 78 Cong. Rec. 10314.
Thus, in both the Radio Act of 1927 and the Communications Act of 1934, orders granting or denying applications for construction permits or station licenses and for renewal or modification of licenses were made reviewable by the Court of Appeals for the District of Columbia.3
2	“Any applicant for a construction permit, for a station license, or for the renewal or modification of an existing station license whose application is refused by the licensing authority shall have the right to appeal from said decision to the Court of Appeals of the District of Columbia. ...” 44 Stat. 1162, 1169.
3	Where the Commission revokes a station license or modifies a license on its own motion, judicial review is available only under §402 (a) of the Communications Act. The reason for this differentiation appears in the following satement of Senator Dill, who steered the bill in the Senate:
“I desire to call attention to what I think is an important fact to consider in this appeal provision. Those owners of radio broad-
SCRIPPS-HOWARD RADIO v. COMM’N. 9
4	Opinion of the Court.
And with respect to such appeals, both § 16 of the Radio Act and § 402 (b) of the Communications Act were silent with respect to the power of the Court of Appeals to stay orders pending appeal. It is upon this silence in the Communications Act that the Commission bases its contention, made for the first time when this litigation arose in 1940, that the Court is without such power.
No court can make time stand still. The circumstances surrounding a controversy may change irrevocably during the pendency of an appeal, despite anything a court can do. But within these limits it is reasonable that an appellate court should be able to prevent irreparable injury to the parties or to the public resulting from the premature enforcement of a determination which may later be found to have been wrong. It has always been held, therefore, that as part of its traditional equipment for the adminis-
casting stations living long distances from the District of Columbia should not be required to come to Washington to prosecute an appeal from a decision for which they were not responsible. When I say ‘were not responsible’ I mean a decision which was granted against them or affecting them when they did not bring the case into court. ... So we provide that where the decisions of the commission are made in cases wherein the stations took no part in beginning the suits, appeal may be taken in the three-judge district courts in the jurisdictions where the stations are located. But in the case where the applicant for the license or the permit, or whatever it may be, comes to the commission and asks for a change in his license or asks for a new license, or asks for something to be done by the commission, then if the commission makes a decision from which he desires to appeal he must make his appeal in the courts of the District of Columbia.” 78 Cong. Rec. 8825-26. Cf. Sen. Rep. No. 781, 73d Cong., 2d Sess., pp. 9-10.
Section 16 of the Radio Act of 1927 provided for appeals from revocation orders to either the Court of Appeals for the District of Columbia or the District Court of the district in which the station was located. 44 Stat. 1162, 1169.
10	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. 8.
tration of justice,4 a federal court can stay the enforcement of a judgment pending the outcome of an appeal. In re Claasen, 140 U. S. 200; In re McKenzie, 180 U. S. 536.
Generally speaking, judicial review of administrative orders is limited to determining whether errors of law have been committed. Rochester Telephone Corp. n. United States, 307 U. S. 125,139-40. Because of historical differences in the relationship between administrative bodies and reviewing courts and that between lower and upper courts, a court of review exhausts its power when it lays bare a misconception of law and compels correction. Federal Communications Commission v. Pottsville Broadcasting Co., 309 IT. S. 134, 144-45. If the administrative agency has committed errors of law for the correction of which the legislature has provided appropriate resort to the courts, such judicial review would be an idle ceremony if the situation were irreparably changed before the correction could be made. The existence of power in a reviewing court to stay the enforcement of an administrative order does not mean, of course, that its exercise should be without regard to the division of function which the legislature has made between the administrative body and the court of review. “A stay is not a matter of right, even if irreparable injury might otherwise result to the appellant. In re Haberman Manufacturing Co., 147 U. S. 525. It is an exercise of judicial discretion. The propriety of its issue is dependent upon the circumstances of
4	Section 262 of the Judicial Code, 28 U. S. C. § 377, empowers the federal courts “to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.” This provision appeared in the very first Judiciary Act, 1 Stat. 73, 81-82. Compare District of Columbia Code (1940 ed.) Title 11-208, authorizing the Court of Appeals for the District of Columbia “to issue all necessary and proper remedial prerogative writs in aid of its appellate jurisdiction.” 31 Stat. 1189, 1227.
SCRIPPS-HOWARD RADIO v. COMM’N. 11
4	Opinion of the Court.
the particular case.” Virginian Ry. Co. v. United States, 272 U. S. 658, 672-73; see Merchants Warehouse Co. v. United States, 283 U. S. 501,513-14.
These controlling considerations compel the assumption that Congress would not, without clearly expressing such a purpose, deprive the Court of Appeals of its customary power to stay orders under review. It is urged that such a manifestation appears in the provisions for judicial review contained in the Communications Act of 1934. Specifically, the Commission contends that since § 402 (a) incorporates the provisions of the Urgent Deficiencies Act of 1913 -which explicitly authorize and regulate the issuance of stay orders, the omission of any reference in § 402 (b) to a power to stay orders under review reflects a deliberate Congressional choice to deprive the Court of Appeals of this power.
The search for significance in the silence of Congress is too often the pursuit of a mirage. We must be wary against interpolating our notions of policy in the interstices of legislative provisions. Here Congress said nothing about the power of the Court of Appeals to issue stay orders under § 402 (b). But denial of such power is not to be inferred merely because Congress failed specifically to repeat the general grant of auxiliary powers to the federal courts. The Commission argues that the silence of Congress, in view of the legislative history of the Act and the nature of the orders reviewable under the Act, qualifies this general authority and is as commanding as if Congress had expressly withheld from the Court of Appeals the power to stay orders appealed under § 402 (b).
The legislative history can furnish no support for this contention. Neither the committee reports nor the hearings nor the debates contain any reference to the power to stay Commission orders on appeal. Significance is found in H. R. 7716, 72d Congress, a bill which was passed by both houses in 1933 but which failed of enactment be-
12	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
cause of a pocket veto. That bill proposed to amend § 16 of the Radio Act of 1927 so as to vest concurrent jurisdiction (with the Court of Appeals for the District of Columbia) of revocation cases in the circuit courts of appeals, rather than in the district courts. The bill also provided that the reviewing court, whether a circuit court of appeals or the Court of Appeals for the District of Columbia, could enter a stay order “upon the giving of a bond by the party applying for the stay in such amount and with such terms and conditions” as the court deemed proper.
It is suggested that if Congress had intended in the Act of 1934 to authorize the Court of Appeals to issue stay orders in appeals under § 402 (b), it would not have remained silent when only the year before it had attempted to enact into law a specific provision conferring that power. But H. R. 7716 and the Communications Act of 1934 were not parallel legislative proposals. The former was not a comprehensive legislative scheme for the unification of federal regulatory authority over communications. It proposed merely to amend the Radio Act of 1927 in several minor particulars. See H. Rep. No. 221, 72d Cong., 1st Sess., p. 7; Sen. Rep. No. 564, 72d Cong., 1st Sess., p. 7; Sen. Rep. No. 1004, 72d Cong., 2d Sess., p. 9. The enactment of the Communications Act of 1934, however, came after a message to Congress from the President on February 26, 1934, recommending the creation of a single authority over communication by wire and radio. Sen. Doc. No. 144, 73d Cong., 2d Sess. Earlier in 1934 an interdepartmental committee had made a study of the entire communications situation. Extensive public hearings on the question of regulating the whole field of communications were held by both the Senate and House Committees on Interstate Commerce. It is obvious, therefore, that what Congress undertook to do by the Communications Act of 1934 was entirely different from what it tried to do the previous year in H. R. 7716.
SCRIPPS-HOWARD RADIO v, COMM’N. 13
4	Opinion of the Court.
We are told that in drafting § 402 Congress had before it and relied extensively upon H. R. 7716, and reference is made to the citations to that bill in the statement of the House managers. H. Rep. No. 1918, 73d Cong., 2d Sess., pp. 47-49. But whatever reliance was placed upon H. R. 7716 by the framers of the 1934 legislation was without relation to its provisions for judicial review. For in that same statement (p. 47) it is said that the “provisions of the Radio Act of 1927 relating to judicial review have been included” in the bill. And, as has previously been noted, even though the Radio Act of 1927 contained no provisions dealing with the authority of the Court of Appeals for the District of Columbia to stay orders of the Commission on appeal, the Court had been issuing stays as a matter of course wherever they were found to be appropriate, without objection by the Commission. Boston Broadcasting Co. n. Federal Radio Commission, 62 App. D. C. 299,67 F. 2d 505, decided June 19,1933.
It is indisputable that, at least since 1930, the Court of Appeals has been staying orders both of the Federal Radio Commission, under § 16 of the Radio Act of 1927, and of the Federal Communications Commission, under § 402 (b) of the Communications Act of 1934, whenever stays were regarded as necessary. To be sure, in only one case, the Boston Broadcasting decision, supra, did the Court of Appeals even refer to the granting of a stay order. The explanation is not hard to find. The power to stay was so firmly imbedded in our judicial system, so consonant with the historic procedures of federal appellate courts, that there was no necessity for the Court of Appeals to justify its settled practice.6
8 As late as February 23, 1939, the Commission stated its position as follows: “The Commission has not opposed in the past, and does not propose in the future to oppose the granting of a stay or such interlocutory restraining order by this court as may be necessary to protect the appellate jurisdiction of the court or preserve the status quo pend-
14	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
The considerations of policy which are invoked are as fragile as the legislative materials are inapposite. It is said that the nature of the orders reviewable under § 402 (b) makes the grant of a stay order manifestly inappropriate since a stay would in effect involve the judicial exercise of an administrative function. An example is adduced of an appeal from an order denying an application for a construction permit or a station license, or for modification or renewal of a license. Of course, no court can grant an applicant an authorization which the Commission has refused. No order that the Court of Appeals could make would enable an applicant to go on the air when the Commission has denied him a license to do so. A stay of an order denying an application would in the nature of things stay nothing. It could not operate as an affirmative authorization of that which the Commission has refused to authorize. But this is no reason for denying the Court the power to issue a stay in a situation where the function of the stay is to avoid irreparable injury to the public interest sought to be vindicated by the appeal.
The Communications Act of 1934 did not create new private rights. The purpose of the Act was to protect the public interest in communications. By § 402 (b) (2) Congress gave the right of appeal to persons “aggrieved or whose interests are adversely affected” by Commission action. 48 Stat. 1064, 1093. But these private litigants have standing only as representatives of the public interest. Federal 'Communications Commission v. Sanders Radio Station, 309 U. S. 470, 477. Compare National Licorice Co. v. Labor Board, 309 U.S. 350, 362-63. That
ing determination of an appeal from an order of the Commission, in any case where such a stay or restraining order appears reasonably to be necessary or advisable.” Opposition to Petition for Stay Order filed by the Commission in Crosley Corp. v. Federal Communications Commission, No. 7351, Court of Appeals for the District of Columbia, Feb. 23, 1939, pp. 1-2.
SCRIPPS-HOWARD RADIO v. COMM’N. 15
4	Opinion of the Court.
a court is called upon to enforce public rights and not the interests of private property does not diminish its power to protect such rights. “Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” Virginian Ry. Co. v. Federation, 300 U. S. 515, 552. An historic procedure for preserving rights during the pendency of an appeal is no less appropriate—unless Congress has chosen to withdraw it—because the rights to be vindicated are those of the public and not of the private litigants. Unless Congress explicitly discloses such an intention we should not lightly attribute to it a desire to withhold from a reviewing court the power to save the public interest from injury or destruction while an appeal is being heard. To do so would stultify the purpose of Congress to utilize the courts as a means for vindicating the public interest. Courts and administrative agencies are not to be regarded as competitors in the task of safeguarding the public interest. United States v. Morgan, 307 U. S. 183, 190-91; Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134. Courts no less than administrative bodies are agencies of government. Both are instruments for realizing public purposes.
It is urged that the orders reviewable under § 402 (a), as to which the power to grant stays is undeniable, are intrinsically different from those reviewable under § 402 (b). But while the two sections route appeals to different courts, the differentiation was in large measure the product of Congressional solicitude for the convenience of litigants. It had no relation to the scope of the judicial function which the courts were called upon to perform. For example, if the Commission on its own motion modifies a station license, review is had under § 402 (a) in the appropriate district court. However, if it grants an application for modification of a license, an appeal lies under § 402
16	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
(b) to the Court of Appeals for the District of Columbia. Both cases give rise to the same kind of issues on appeal. Both orders are equally susceptible of being stayed on appeal. As the legislative history of the Act plainly shows, Congress provided the two roads to judicial review only to save a licensee the inconvenience of litigating an appeal in Washington in situations where the Commission’s order arose out of a proceeding not instituted by the licensee.6
Judged by its own terms, its history, and the practice under it, the Communications Act of 1934 affords no warrant for depriving the Court of Appeals of the conventional power of an appellate court to stay the enforcement of an order pending the determination of an appeal challenging its validity. Indirect light is sometimes cast upon legislation by provisions dealing with the same problem in related enactments. No such light is shed here. The numerous laws in which Congress has established administrative agencies for the exercise of its regulatory powers do not disclose any general legislative policy regarding the power to stay administrative orders pending review. Some statutes are wholly silent;7 some turn a court review into an automatic stay;8 some provide that the commencement of a suit shall not operate as a stay unless the court specifically so provides;9 some authorize the reviewing
8	See note 3, supra.
7 E. g., Commodity Exchange Act of 1922,42 Stat. 998,1001,7 U. S. C. § 9; Radio Act of 1927,44 Stat. 1162; Railroad Retirement Act of 1937, 50 Stat. 307,315,45 U. S. C. § 228k.
8E. g., Federal Alcohol Administration Act of 1935, 49 Stat. 977, 980, 27 U. S. C. § 204h; Investment Company Act of 1940, 54 Stat. 789,844,15 U. S. C. § 80a-42 (b),
9	E. g., Agricultural Adjustment Act of 1938, 52 Stat. 31, 7 U. S. C. § 1367; Securities Act of 1933,48 Stat. 74,80,15 U. S. C. § 77i; Trust Indenture Act of 1939, 53 Stat. 1175,15 U. S. C. § 77vw; Public Utility Act of 1935, 49 Stat. 803, 834, 15 U. 8. C. § 79x; Investment
SCRIPPS-HOWARD RADIO v. COMM’N. 17
4	Opinion of the Court.
court to grant a stay where necessary.* 10 Significantly, the recent Emergency Price Control Act of 1942, 56 Stat. 23, explicitly denies the power of the reviewing court to enjoin enforcement of the administrative orders.
The various enactments in which the staying power is made explicit, as well as the statutes that are silent about it, afford debating points but no reliable aids in construing the Act before us. One thing is clear. Where Congress wished to deprive the courts of this historic power, it knew how to use apt words—only once has it done so and in a statute born of the exigencies of war.
We conclude that Congress by § 402 (b) of the Communications Act of 1934 has not deprived the Court of Appeals of the power to stay—a power as old as the judicial system of the nation. We do not of course go beyond the question put to us. We merely recognize the existence of the power to grant a stay. We are not concerned here with the criteria which should govern the Court in exercising that power. Nor do we in any way imply that a stay would or would not be warranted upon the showing made by the appellant in this case.
The question certified to us is answered in the affirmative.
So ordered.
Company Act of 1940, 54 Stat. 789, 844, 15 U. S. C. § 80a-42 (b); Investment Advisers Act of 1940,54 Stat. 847,856,15 U. S. C. § 80b-13; Fair Labor Standards Act of 1938, 52 Stat. 1060, 1065, 29 U. S. C. § 210 (b); Bituminous Coal Act of 1937, 50 Stat. 85, 15 U. S. C. § 836 (b); Natural Gas Act of 1938, 52 Stat. 821, 832, 15 U. S. C. §717r(c).
10 E. g., Civil Aeronautics Act of 1938, 52 Stat. 973,1024,49 U. S. C. § 228k; Federal Trade Commission Act of 1914, 38 Stat. 719, as amended, 52 Stat. Ill, 113,15 U. S. C. § 45 (c) (authorizing the court to issue such writs as “are necessary in its judgment to prevent injury to the public or to competitors pendente lite”).
[Over]
461263°—43-2
18	OCTOBER TERM, 1941.
Douglas, J., dissenting.	316 U. S.
Mr. Justice Black took no part in the consideration or decision of this case.
Mr. Justice Douglas, dissenting:
Congress has provided through § 402 (a) of the Communications Act of 1934 that in appeals from certain classes of orders of the Federal Communications Commission the appellate court may issue a stay. The order here involved is of a class which is expressly excepted from §402 (a). Sec. 402 (b), which provides for an appeal from this class of order, contains no provision whatsoever for a judicial stay. Where Congress in one section of an Act has provided for a stay of certain orders but not of others, it has not remained silent on the subject. It has drawn a line. And that line should not be obliterated by us, in absence of plain and compelling indications that the purpose of Congress was different from what the face of the statute reveals. There are no such reasons here.
The legislative history gives no comfort to the view of the majority. In drafting § 402, Congress had before it H. R. 7716, 72d Congress. That bill, designed to amend the Radio Act of 1927, had been passed by both houses in 1933 but had failed of enactment because of a pocket veto. Under § 16 (f) of that bill, orders of the type here in question could be stayed by the appellate court. Congress relied extensively on that earlier bill in drafting § 402. H. Rep. No. 1918, 73d Cong., 2nd Sess., pp. 47-49. If Congress had intended the appellate court to have the power to stay this type of order, it hardly seems likely, as the Commission points out, that Congress would have failed to include it, when, only the year before, it had attempted to write into the statute a specific provision conferring that power. But if we disregard that circumstance and turn to other parts of the legislative history, there are no indications that the line which Congress drew
SCRIPPS-HOWARD RADIO v. COMM’N. 19
4	Douglas, J., dissenting.
between § 402 (a) and § 402 (b) was inadvertent or accidental.
Nor are we justified in rewriting the statute to iron out possible logical inconsistencies in the classification of orders which Congress has made in § 402 (a) and § 402 (b). If we were a legislative committee, perhaps we would not retain in § 402 (a) orders which are made by the Commission on its own motion and which modify a station license, since such orders if made pursuant to an application are covered by § 402 (b). But to seize on that lack of symmetry here is to miss the forest for the trees. The nature of the run of the orders excepted from the stay provisions of § 402 (a) demands respect for the words of the Act. The instant case is a good illustration. Federal Communications Commissions. Sanders Bros., 309 U. S. 470, holds that a competitor such as appellant has no private property interest which may be protected on appeal. “The policy of the Act is clear that no person is to have anything in the nature of a property right as a result of the granting of a license.” Id., p. 475. Any injury to an existing station as is alleged here “is not a separate and independent element to be taken into consideration by the Commission in determining whether it shall grant or withhold a license.” Id., p. 476. Thus it is manifest that the failure of Congress to extend the stay provisions of § 402 (a) to the run of orders of this type makes sense. The Urgent Deficiencies Act, which is incorporated into § 402 (a), allows a temporary stay “where irreparable damage would otherwise ensue to the petitioner.” 38 Stat. 208, 220. But where appeals under § 402 (b) (2), as in the instant case, are not shown to involve private rights, analogies to situations where the power to issue a stay is implied because irreparable damage may be done an appellant whose individual interest has been unlawfully invaded are inapposite. For the same reason, statistics as to the presence of this power in statutes of other administrative agencies
20	OCTOBER TERM, 1941.
Douglas, J., dissenting.	316U.S.
are irrelevant, in absence of a showing that in the precise situations there involved no private rights were at stake.
And that leads to a related reason why it will not do to lean on “the historic procedures of federal appellate courts” so that an implied power to issue a stay in this type of case may be found. “The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property.” In re Sawyer, 124 IT. S. 200, 210. All constitutional questions aside {Muskrat v. United States, 219 IT. S. 346), we should require explicit, unequivocal authorization before we permitted an appellant who has no individual substantive right at stake in the litigation to obtain a stay to protect the public interest. Repeated attempts of private litigants to obtain a special stake in public rights have been consistently denied. See Massachusetts v. Mellon, 262 IT. S. 447; Sprunt Son v. United States, 281 U. S. 249; Alabama Power Co. v. Ickes, 302 U. S. 464; Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U. S. 118; Atlanta v. Ickes, 308 IT. S. 517; Singer & Sons v. Union Pacific R. Co., 311 U. S. 295. The attempt to obtain a stay is but another manifestation, albeit oblique, of that same endeavor. Hence, instead of starting from the premise that an “historic power” to issue a stay in this type of case will be readily implied, we should assume just the contrary. Not even long acquiescence or approval on the part of the Commission should lead us to make such a departure from those historic, accepted principles. For that reason alone, § 402 (b) should be read narrowly and restrictively.
But it is said that Congress entrusted the vindication of the public interest to private litigants. The Sanders case, properly construed, merely means that the Court of Appeals has jurisdiction of appeals by a “person aggrieved” or by one “whose interests are adversely affected” by the Commission’s decision. § 402 (b). But
SCRIPPS-HOWARD RADIO v. COMM’N. 21
4	Douglas, J., dissenting.
that does not mean that an appellant has a cause of action merely because he has a competing station. Unless he can show that his individual interest has been unlawfully invaded, there is merely damnum absque injuria and no cause of action on the merits. Alabama Power Co. v. Ickes, supra; Greenwood County v. Duke Power Co., 81 F. 2d 986, 999. And see Duke Power Co. v. Greenwood County, 302 U. S. 485. Congress could have said that the holder of a radio license has an individual substantive right to be free of competition resulting from the issuance of another license and causing injury. In that event, unlike the situation in Muskrat v. United States, supra, there would be a cause of action for invasion of a substantive right. But as we said in the Sanders case, Congress did not create such a substantive right. And no facts are shown here which would bring this appeal outside the rule of that case. On that assumption, I fail to see how an appeal statute constitutionally could authorize a person who shows no case or controversy to call on the courts to review an order of the Commission. A fortiori he would have no standing to obtain a stay.
Furthermore, the power to issue a stay in this type of case cannot be found in the “all writs” statutes. Judicial Code, § 262; District of Columbia Code (1940 ed.) Title 11-208. As we stated in Federal Communications Commission n. Pottsville Broadcasting Co., 309 U. S. 134, the relationship between the Court of Appeals and the Commission is not that of federal courts inter se. “. . . to assimilate the relation of these administrative bodies and the courts to the relationship between lower and upper courts is to disregard the origin and purposes of the movement for administrative regulation and at the same time to disregard the traditional scope, however far-reaching, of the judicial process. Unless these vital differentiations between the functions of judicial and administrative tri-
22	OCTOBER TERM, 1941.
Douglas, J., dissenting.	316U.S.
bunals are observed, courts will stray outside their province and read the laws of Congress through the distorting lenses of inapplicable legal doctrine.” p. 144. The Commission, not the courts, is the ultimate guardian of the public interest under this Act. The appellate court is limited to a correction of “errors of law.” Id., p. 145. The judgment of the Commission, not the court, determines whether the public interest will be served by an application. Id., pp. 144-145. Hence, the power of the courts in this situation to issue writs under the “all writs” statutes should be limited to the protection of its jurisdiction. If, as here, construction of a new station is completed pending appeal by another licensee, the court’s jurisdiction is not impaired, though we assume that it has jurisdiction of the appeal and that appellant has a cause of action on the merits. If the Commission has committed an error of law, it must bow to the decree of the court and revise its order. But to allow the court to go beyond that and find an implied power to issue a stay in this type of case is to distort the statutory scheme. 12 Air L. Rev. 224. Jealous regard for the administrative role and function in this field will leave to Congress any enlargement, within constitutional limits, of the judicial power.
Mr. Justice Murphy joins in this dissent.
UNITED STATES v. IRWIN. 23
Counsel for Parties.
UNITED STATES to the use of NOLAND COMPANY, INC. V. IRWIN ET AL., TRADING AS IRWIN & LEIGHTON, ETAL.
CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.
No. 658. Argued March 11, 1942.—Decided April 6, 1942.
1.	The construction of a library building at Howard University in the District of Columbia—a project for which federal funds were appropriated by Act of February 14, 1931, and which subsequently was approved, and funds allotted therefor, by the Administrator of the Federal Emergency Administration of Public Works under Title II of the National Industrial Recovery Act of June 16, 1933—was a “public work” within the meaning of the Miller Act of August 24, 1935; and therefore the contractors were properly required to post a payment bond securing materialmen; and a materialman who supplied materials for the project and had not been paid therefor was entitled to sue on the bond in the name of the United States. P. 27.
2.	The Miller Act was intended to apply to the “public works” authorized by the Administrator under the National Industrial Recovery Act; and, under the latter Act, the library at Howard University was a “public work,” since it was a project “of the character heretofore constructed or carried on . . . with public aid to serve the interests of the general public.” P. 30.
122 F. 2d 73, reversed.
Certiorari, 314 U. S. 602, to review the reversal of a judgment overruling a motion to dismiss the complaint in a suit upon a bond.
Mr. Alexander M. Heron, with whom Mr. Bynum E. Hinton was on the brief, for petitioner.
Mr. Prentice E. Edrington, with whom Mr. A. M. Holcombe was on the brief, for respondents.
24	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Mr. Justice Byrnes delivered the opinion of the Court.
By Act of February 14, 1931,1 making appropriations for the Department of the Interior, Congress authorized the construction of a library building at Howard University in the District of Columbia. The cost was not to exceed $800,000, of which sum $400,000 was made immediately available. Only a small part of this money had been used for architects’ fees when the President, shortly after his inauguration in 1933, ordered impounded these and all other funds appropriated for construction.
Title II of the National Industrial Recovery Act of June 16, 1933,2 created a Federal Emergency Administration of Public Works, with all of its powers vested in an Administrator. By § 202 the Administrator was directed to “prepare a comprehensive program of public works, which shall include among other things the following: . . . (c) any projects of the character heretofore constructed or carried on either directly by public authority or with public aid to serve the interests of the general public; . . .” And § 203 provided that “with a view to increasing employment quickly . . . the President is authorized and empowered through the Administrator or through such other agencies as he may designate or create, (1) to construct, finance, or aid in the construction or financing of any public works project included in the program prepared pursuant to § 202; ...”
On August 24, 1935, Congress passed the Miller Act.3 By the terms of this statute, “before any contract, ex-
146 Stat. 1115, 1160.
B 48 Stat. 195, 201.
• 49 Stat. 793; U. S. C., Title 40, §§ 270 a-d:
“Sec. 1 (a) Before any contract, exceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become
UNITED STATES v. IRWIN.	25
23	Opinion of the Court.
ceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States ... a payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person.” The Act also permitted persons who supplied materials and labor to bring suit on the bond in the name of the United States.
binding upon the award of the contract to such person, who is hereinafter designated as ‘contractor’:
“(1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States.
“(2) A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person. Whenever the total amount payable by the terms of the contract shall be not more than $1,000,000 the said payment bond shall be in a sum of one-half the total amount payable by the terms of the contract. Whenever the total amount payable by the terms of the contract shall be more than $1,000,000 and not more than $5,000,000, the said payment bond shall be in a sum of 40 per centum of the total amount payable by the terms of the contract. Whenever the total amount payable by the terms of the contract shall be more than $5,000,000 the said payment bond shall be in the sum of $2,500,000.
“(b) The contracting officer in respect of any contract is authorized to waive the requirement of a performance bond and payment bond for so much of the work under such contract as is to be performed in a foreign country if he finds that it is impracticable for the contractor to furnish such bonds.
“(c) Nothing in this section shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to those, or in cases other than the cases specified in subsection (a) of this section.
Sec. 2 (a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of
26	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
These are the statutes applicable to this dispute.
After the passage of the National Industrial Recovery Act, the Secretary of the Interior (who had been named Administrator pursuant to Title II) approved the library building at Howard University as a part of the public works program and allotted $1,120,811.58 for its construction. On December 5,1936, the Assistant Secretary of the Interior, on behalf of the United States, entered
which a payment bond is furnished under this Act and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him: Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be served by mailing the same by registered mail, postage prepaid, in an envelop addressed to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorized by law to serve summons.
“(b) Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit, but no such suit shall be commenced after the expiration of one year after the date of final settlement of such contract. The United States shall not be liable for the payment of any costs or expenses of any such suit.”
UNITED STATES v. IRWIN. 27
23	Opinion of the Court.
into a contract with respondent, Irwin & Leighton, for the construction of the library building. As a condition of the contract, Irwin & Leighton was required to furnish a bond to- secure the laborers and materialmen, under provisions of the Miller Act.4 Accordingly, it posted such a bond in the amount of $408,618, with respondent United States Guarantee Company as surety.
Petitioner furnished to a sub-contractor materials worth $23,649.35. Of this sum it was paid $11,146.80, leaving due $12,502.55 with interest. When payment of this amount was refused, petitioner brought this suit on the bond in the name of the United States. Respondents moved to dismiss the complaint on the ground that the construction of the library building at Howard University was not a “public work,” within the meaning of the Miller Act. The District Court overruled the motion to dismiss. The Court of Appeals allowed a special appeal and reversed, 122 F. 2d 73, on the authority of its own earlier decision in Maiatico Construction Co. v. United States, 65 App. D. C. 62, 79 F. 2d 418. The case is here on certiorari.
The question before us therefore is whether the construction of the library was a “public work” as that term is used in the Miller Act. We think that it is, that the Assistant Secretary of the Interior was consequently authorized to require respondents to post a bond securing materialmen, and that petitioner is entitled to sue on the bond in the name of the United States.
4 Bulletin No. 51 of Federal Emergency Administration of Public Works, “Information Relating to the Negotiation and Administration of Contracts for Federal Projects under Title II of the National Industrial Recovery Act” (Revised, Oct. 1, 1935). Part I, § 2 (a): “The forms required for general use in connection with construction and repair projects are as follows: . . .U.S. Government Standard Form of Payment Bond No. 25A for the protection of labor and materialmen, pursuant to Public Act No. 321, Seventy-fourth Congress, approved August 24, 1935 [The Miller Act].”
28	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
No aid in ascertaining the meaning of “public works” is to be found in the Miller Act itself. But in the National Industrial Recovery Act, passed two years before the Miller Act, Congress defined it as including “any projects of the character heretofore constructed or carried on either directly by public authority or with public aid to serve the interests of the general public.” The library at Howard University was not only a project “of the character heretofore constructed or carried on . . . with public aid”; it had been directly and specifically authorized by Congress in 1931 and money had actually been appropriated for it. And it requires no discussion that Howard University, established by the authority of Congress “for the education of youth in the liberal arts and sciences,”5 serves “the interests of the general public.”
In Maiatico Construction Co. v. United States, supra, upon which the Court of Appeals principally relied in reaching an opposite conclusion, the same court had construed a different statute, the Heard Act of August 13, 1894.6 That Act required that “any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, or for repairs upon any public building or public work, shall be required” to post a bond for the security of both the United States and the suppliers of labor and materials. It permitted the laborers and materialmen to enforce their claims by intervening in any suit by the United States on the bond. The plaintiffs in the Maiatico case supplied labor and materials in the construction of three dormitory buildings at Howard University, the contract for which had been let to the defendant construction company by the United States in Novem-
614 Stat. 438.
*28 Stat. 278, as amended by the Act of Feb. 24, 1905, 33 Stat. 811 and the Act of March 3,1911, 36 Stat. 1167.
UNITED STATES v. IRWIN. 29
23	Opinion of the Court.
ber, 1930. The Court of Appeals decided that the plaintiffs could not recover on the defendant’s bond because the dormitories were not “public buildings” and their construction was not a “public work.” It based this conclusion on the theory that “public buildings” or “public works,” within the meaning of the Heard Act, included only buildings which belonged to the United States. Since Howard University is a private institution and since it held title to the dormitories, recovery on the bond was denied to the suppliers of materials and labor.7
Whatever may have been the validity of this narrow formula when applied to the Heard Act, we cannot approve its application to this suit under the Miller Act. In the first place, the whole concept of “public works” has been considerably altered since the enactment of the Heard Act in 1894, and particularly within the last dozen years, and the question of title to the buildings or improvements or to the land on which they are situated is no longer of primary significance.8 But we are not left to such vague guidance. Two and a half years after the execution of the contract involved in the Maiatico case, Congress, in the National Industrial Recovery Act, specifically defined “public works” as including “any projects of the character heretofore constructed or carried on either directly by public authority or with public aid to serve the interests of the general public.” The Miller Act was passed two years later for the purpose of enlarging the protection which the Heard Act had afforded to laborers and materialmen by facilitating the procedure for enforcing their claims against the contractor. During the hearings on the several bills from which the Miller Act evolved, Congressman Duffy,
7	This emphasis upon title to the building or project or to the land on which it is situated finds support, as far as the Heard Act is concerned, in Title Guaranty Trust Co. v. Crane Co., 219 U. S. 24; 23 Op. Atty. Gen. 174.
8	See Peterson v. United States, 119 F. 2d 145, at 147-148.
30	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
of Ohio, the author of one of the bills and a member of the sub-committee that drafted the Act, declared without dissent by any Representative: “If this bill were passed by this Congress it would certainly be applicable to the public works program and that is the reason for its importance.”9
We have no doubt that the Miller Act was intended to apply to the “public works” authorized by the Administrator under the National Industrial Recovery Act. The National Industrial Recovery Act did not leave to speculation the nature of the “public works” that Congress envisaged. Its language was not technical, but plain and specific. Expressly included were “projects of the character heretofore constructed or carried on . . . with public aid to serve the interests of the general public.” Beyond question the library at Howard University was such a project.
The respondents evidently had no difficulty interpreting the language of the Recovery Act or the Miller Act until they were called upon to meet the claims of petitioner. The record does not reveal that Irwin & Leighton objected to posting the bond when the contract was executed. It paid a premium of $8,172.25 for the bond, and the surety company accepted it without question. Presumably, these are the circumstances which caused the Court of Appeals to remark upon “the strong equities” of petitioner’s case.
We hold that the Administrator had the authority to require the bond, and that petitioner was entitled to bring this action on it. Holding this view, we find it unnecessary to consider the other questions raised by petitioner.
Reversed.
9 Hearings on H. R. 2068, H. R. 4027, H. R. 4231, H. R. 4461, H. R. 5054, H. R. 6018, H. R. 6115, H. R. 6677, H. R. 8519 (March 8, 22, April 26, and May 3, 1935), Committee on the Judiciary, House of Representatives, 74th Cong., 1st Sess., p. 71.
SOUTHERN S. S. CO. v. LABOR BOARD. 31
Counsel for Parties.
SOUTHERN STEAMSHIP CO. v. NATIONAL LABOR RELATIONS BOARD et al.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
No. 320. Argued February 9, 10, 1942.—Decided April 6, 1942.
1.	The National Labor Relations Board is not obliged to permit the presence of a representative of the employer at an election by the employees of their bargaining representative. P. 37.
2.	The question whether the employment of seamen automatically terminates when they sign off shipping articles at the end of the voyage must be determined upon all the evidence of the employer’s employment customs and practices. Labor Board v. Waterman Steamship Corp., 309 U. S. 206. P. 37.
3.	Seamen who, in order to compel recognition of their union, stage a strike on board their ship while she is away from her home port and lying tied up to a dock in another port in this country; and who deliberately and persistently disobey and defy the lawful commands of their captain and other officers that they perform their duties in making ready for the departure of the ship, are guilty of mutiny and conspiracy to commit mutiny in violation of §§ 292 and 293 of the Criminal Code. P. 40.
4.	When seamen are discharged for acts of mutiny aboard ship, the National Labor Relations Board is not authorized by § 10 (c) of that Act to compel their reinstatement. P. 46.
120 F. 2d 505, reversed.
Certiorari, 314 U. S. 594, to review a judgment enforcing an order of the National Labor Relations Board.
Mr. Joseph W. Henderson, with whom Messrs. Randolph W. Childs and George M. Brodhead, Jr. were on the brief, for petitioner.
Mr. Robert B. Watts, with whom Solicitor General Fahy and Messrs. Robert L. Stern, Ernest A. Gross, and Morris P. Glushien, and Miss Ruth Weyand were on the brief, for the National Labor Relations Board; and Mr.
32	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
William L. Standard for the National Maritime Union, respondents.
Messrs. John J. Burns, Francis S. Walker, and William G. Symmers filed a brief on behalf of the American Merchant Marine Institute, Inc., as amicus curiae, urging reversal in part.
Mr. Justice Byrnes delivered the opinion of the Court.
Upon the petition of a union not a party to the present suit, the National Labor Relations Board ordered an election among petitioner’s unlicensed employees to determine their collective bargaining representative. The elections were held on board seven of petitioner’s vessels during October, 1937. In the case of the election on board the S. S. City of Houston, the labor organizations involved objected to the presence of any representative of the petitioner during the voting, and consequently none was admitted by the Board. No such ob j ection was raised with respect to the subsequent balloting, and petitioner’s representatives were present while the vote was taken on board the remaining six vessels. The National Maritime Union obtained a clear majority of all the votes cast. Because of the exclusion of its representative from the voting on the S. S. City of Houston, petitioner objected to the certification of the N. M. U. as the exclusive bargaining representative of the employees in the unit. On January 26, 1938, the Board rejected petitioner’s contention, and issued a certification order. 4 N. L. R. B. 1140.
Six months later, on July 26, the N. M. U. filed charges against petitioner, which it amended on November 22. On November 23, the Board issued a complaint in which it accused petitioner of violations of § § 8 (1), (3) and (5) of the National Labor Relations Act. U. S. C., Title 29, § 158 (1), (3), (5). The allegations of the complaint were that the N. M. U. had been certified in January as exclusive bargaining representative; that petitioner had con-
SOUTHERN S. S. CO. v. LABOR BOARD. 33
31	Opinion of the Court.
sistently refused since that time to bargain with the Union; that as a result of this refusal to bargain a strike had occurred, on July 18, aboard petitioner’s S.S. City of Fort Worth, while docked at Houston, Texas; that upon the City of Fort Worth’s return to Philadelphia, on July 25, five members of the crew1 were discharged because of their membership and activity in the Union, and particularly because of their participation in the strike; and that as a result of these discharges other members2 of the crew of the Fort Worth had gone on strike while the vessel was at home dock in Philadelphia. In its answer to this complaint, petitioner generally denied these allegations and chiefly contended: first, that it had been under no obligation to bargain with the N. M. U., because the Board’s refusal to permit petitioner to be represented at the election aboard the S.S. City of Houston rendered the entire certification proceedings void; and second, that the discharge of the five members of the City of Fort Worth was not an unfair labor practice, because it was based upon their misconduct in striking, on July 18, while under Shipping Articles, away from home port, and on board ship.
After the usual proceedings, on April 22,1940, the Board issued its findings of fact, conclusions of law, and order. 23 N. L. R. B. 26. Its findings, which must be set out in some detail, follow:
After the election and the certification of the N. M. U. in January, 1938, the Union made persistent efforts through its representatives to arrange a bargaining conference with officials of the petitioner. Every such attempt was frustrated by the latter, who refused even to answer the requests, until August. In that month, the Union was notified that petitioner would not undertake to bargain 3
3 Warren, Tracey, Pfuhl, Smith and Ferguson.
Crassavaz, Reeves, Lathan, Burns, Hughes, Neeley and Holt.
461263°—43-3
34	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. 8.
with it “until the validity of the Board’s certification was settled by the Board and the courts.”
On July 17, while the City of Fort Worth was docked at Houston, thirteen unlicensed members of the crew met in a union hall. They decided to strike the next day, to compel petitioner to recognize the Union and to issue to the Union’s shore delegates the passes without which they could not board petitioner’s vessels. At 8 o’clock the following morning, the strike began. One of the men, Tracey, failed to turn the steam “on deck” for use in loading the cargo. He was then asked by the first assistant engineer why he had failed to do so, and answered that a strike was on, explaining the strikers’ demands. When the first assistant engineer turned on the steam himself, Tracey persuaded Braun, the fireman, to leave his post. And Ferguson, who came on duty just at that moment to replace Braun as fireman, also refused to tend the fires. The second assistant engineer then undertook to tend the fires himself, and Tracey, Ferguson and Braun went to the poop deck, where the rest of the strikers were sitting. The poop deck is the usual meeting place of the crew when not on duty.
From that time until evening the strikers sat quietly by, engaging in no violence and not interfering with the officers of the ship or the non-striking members of the crew, who proceeded with the loading of the cargo. The strikers did not “claim to hold the ship in defiance of the right of possession of the owner.”3 But when the captain
3 The Board found that the strikers were at no time ordered to leave the ship. It is true that three of the officers testified that they had neither given nor heard any of the officers give such an order. But despite a great reluctance to overturn a finding on such a pure matter of fact, we cannot square it with the affirmative and uncontradicted testimony of Tracey, one of the strikers, that petitioner’s agent in Houston boarded the ship at least four times during the day, at least once in the company of the Captain, ordered the strikers to leave the
SOUTHERN S..S. CO. v. LABOR BOARD. 35
31	Opinion of the Court.
ordered them to return to work, they refused. They continued to refuse after a deputy United States Shipping Commissioner came aboard and read to them that provision of their shipping articles in which they had promised “to be obedient to the lawful commands” of the master. Late in the afternoon, although he had not been authorized to do so, petitioner’s attorney in Houston promised the Union’s attorney in that city that he would meet with the latter during the following week to negotiate an agreement and that he would recommend to petitioner that passes be granted to shore delegates. As a result of this promise, the strike was ended at about 7 p. m. and the ship sailed on schedule at about 9 p.m.
The return voyage to Philadelphia was marked by no further difficulty. However, during the course of it the captain decided not to reship five of the strikers.4 When the ship reached port on July 25 and the men signed off the shipping articles, these five were informed that they would not be reshipped. Most of them had been members of the City of Fort Worth’s crew continuously for a considerable length of time.5 It was the custom of petitioner to have the seamen sign new articles for the next voyage when signing off the old, but even when this was not done the men considered themselves employed for the next voyage unless notified to the contrary. Under these circumstances, the Board found that the five men in question had actually been discharged and that their employment had
ship within the next half hour, and announced that he was going to bring on a new crew (R. 140-141, 161-162).
See note 1, supra.
The Board’s finding on this matter was that “Tracey had been employed continuously over a period of 16 months, Ferguson for a period of 1 year, Pfuhl over a period of 8 months, Warren over a period of 6 weeks, and Smith over a period of 18 months. Each round-trip voyage of the City of Fort Worth is scheduled to take about 25 days.” (R. 27.)
36	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
not simply ended as of course when the shipping articles expired. Seven6 of the other men who had engaged in the Houston strike immediately struck again in protest against the discharge of their fellows. On the basis of this evidence, the Board found that both the strike at Houston on July 18 and the strike at Philadelphia on July 25 were caused by petitioner’s unfair labor practices. And it made a specific finding with respect to each of the five men that the discharge was based upon participation in the Houston strike. It concluded that petitioner had interfered with its employees’ right to organize and bargain collectively, in violation of § 8 (1); that it had discriminated with regard to tenure of employment, in violation of § 8 (3) ; and that it had refused to bargain with the authorized representative of its employees, in violation of § 8 (5).
Consequently, it ordered petitioner to cease and desist: (a) from discouraging membership in the N. M. U., or any other labor organization, by discriminating in regard to employment; (b) from refusing to bargain collectively with the N. M. U.; and (c) from interfering with, restraining, or coercing its employees in any way in the exercise of their right to organize and bargain collectively. In addition, and “in order to effectuate the policies of the Act,” the order included the following affirmative requirements : (a) that petitioner bargain with the N. M. U.; (b) that it reinstate with back pay the five men discharged; (c) that, upon application, it offer immediate reinstatement to the July 25th strikers; and (d) that it post notices of its intention to conform to this order.
Petitioner sought to have this order set aside by the Circuit Court of Appeals. The Circuit Court, however, sitting en banc, and with one judge dissenting, entered a decree enforcing the order with a single minor modifica-
8 See note 2, supra.
SOUTHERN S. S. CO. v. LABOR BOARD. 37
31	Opinion of the Court.
tion.7 120 F. 2d 505. We granted certiorari because of the importance of the matters involved, and because of an asserted conflict with decisions of this Court and of other Circuit Courts of Appeals.
Petitioner’s contentions in this Court are: (1) that the refusal by the Board to permit a company representative aboard the S. S. City of Houston during the voting vitiated the entire election and certification proceeding and absolved petitioner of any duty under the Act to bargain with the N. M. U.; (2) that the employment of the seamen involved automatically terminated when they signed off the shipping articles in Philadelphia, so that they cannot be said to have been “discharged”; and (3) that participation in the Houston strike by the discharged seamen was misconduct of such a character that the Board cannot order their reinstatement.
The first two of these arguments are without substance. The Board enjoys a wide discretion in determining the procedure necessary to insure the fair and free choice of bargaining representatives by employees. Labor Board v. Waterman Steamship Corp., 309 U. S. 206, 226; Labor Board v. Falk Corporation, 308 U. S. 453,458. It is wholly reasonable to remove any possibility of intimidation by conducting the election in the absence of the employer’s representatives. With respect to whether the five men in question were actually discharged upon the ship’s return to Philadelphia, petitioner concedes that the formal signing off of the shipping articles was not conclusive. The tenure of their employment must be determined in the
7 The Board’s order permitted petitioner to deduct from the back pay due any amounts that the discharged men might have earned during the period in question, but required it to reimburse any public w°rk relief agency for sums paid to any of the men during that time. The latter phase of the order was eliminated by the Circuit Court of Appeals on the authority of Republic Steel Corp. v. Labor Board, 311 U- S. 7. The Board raises no objection to this modification of its order.
38	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
light of all the evidence concerning petitioner’s employment customs and practices. Labor Board v. Waterman Steamship Corp., 309 U. S. 206, 218. The argument here therefore comes to this, that this record does not warrant a finding that the tenure of employment survived the termination of the shipping articles. An examination of the record convinces us that the concurrent finding of the Board and the Circuit Court on this question should not be disturbed.
The situation, then, is one in which an employer indulges in an unfair labor practice, a strike results, and several men are discharged for participating in the strike. If there were no more to the case, and the Board found that it would serve to effectuate the policies of the Act to reinstate the strikers, an order requiring reinstatement would undoubtedly be enforceable. Labor Board v. Stackpole Carbon Co., 105 F. 2d 167. But there is more to this case. The strike was conducted by seamen on board a vessel and away from home port. The question is whether this circumstance renders it an abuse of discretion for the Board to order the reinstatement of the strikers. We think that it does.
Ever since men have gone to sea, the relationship of master to seaman has been entirely different from that of employer to employee on land. The lives of passengers and crew, as well as the safety of ship and cargo, are entrusted to the master’s care. Every one and every thing depend on him. He must command and the crew must obey. Authority cannot be divided. These are actualities which the law has always recognized. On the one hand, it has imposed numerous prohibitions against conduct by seamen which destroys or impairs this authority. We shall consider in a moment the nature and scope of the criminal sanctions imposed in case of revolt and mutiny. But it is worth noting here that the form of the “shipping articles,” which the master
SOUTHERN S. S. CO. v. LABOR BOARD. 39
31	Opinion of the Court.
and every member of the crew must sign prior to the voyage, has been carefully prescribed by Congress, and that these articles contain this promise: “And the said crew agree ... to be obedient to the lawful commands of the said master . . . and their superior officers in everything relating to the vessel, and the stores and cargo thereof, whether on board, in boats, or on shore . . .” U. S. C., Title 46 §§ 564, 713. On the other hand, workers at sea have been the beneficiaries of extraordinary legislative solicitude, undoubtedly prompted by the limits upon their ability to help themselves. The statutes of the United States contain elaborate requirements with respect to such matters as their medicines, clothing, heat, hours and watches, wages, and return transportation to this country if destitute abroad. U. S. C., Title 46, §§ 651-692, 1131. It is in this setting of fact and law that we must test the validity of the Board’s order of reinstatement.
Petitioner contends that the strike aboard the City of Fort Worth at the dock in Houston was mutiny and violated §§ 292 and 293 of the Criminal Code. Those sections provide:
§ 292. Inciting revolt or mutiny on shipboard. “Whoever, being of the crew of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, endeavors to make a revolt or mutiny on board such vessel, or combines, conspires, or confederates with any other person on board to make such revolt or mutiny, or solicits, incites, or stirs up any other of the crew to disobey or resist the lawful orders of the master or other officer of such vessel, or to refuse or neglect their proper duty on board thereof, or to betray their proper trust, or assembles with others in a tumultuous and mutinous manner, or makes a riot on board thereof, or unlawfully confines the master or other commanding officer thereof,
40	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
shall be fined not more than $1,000 or imprisoned not more than five years or both.” U. S. C., Title 18, § 483.
§ 293. Revolt or mutiny on shipboard. “Whoever, being of the crew of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, unlawfully and with force, or by fraud, or intimidation, usurps the command of such vessel from the master or other lawful officer in command thereof, or deprives him of authority and command on board, or resists or prevents him in the free and lawful exercise thereof, or transfers such authority and command to another not lawfully entitled thereto, is guilty of a revolt and mutiny, and shall be fined not more than $2,000 and imprisoned not more than ten years.” U. S. C., Title 18, § 484.
The Board’s defense to this contention is two-fold. It argues, first, that the conduct of the strikers did not violate either of these sections; and, second, that, even if it did, the violation does not bar their reinstatement.
First. We think that the strike aboard the City of Fort Worth on July 18 was in violation of § § 292 and 293. It may hardly be disputed that each of the strikers resisted the captain and other officers in the free and lawful exercise of their authority and command, within the meaning of § 293, or that they combined and conspired to that end, within the meaning of § 292. Deliberately and persistently they defied direct commands to perform their duties in making ready for the departure from port. It is true that they did not engage in violence or prevent the other men and officers from proceeding with preparations for the voyage.8 But short of that, they did what they could
8 It should be noted, however, that according to the second assistant engineer’s testimony, when he told Tracey that he intended to put the steam on deck himself, Tracey replied, “You had better not. You will be sorry.” No effort was made to carry out this threat.
SOUTHERN S. S. CO. v. LABOR BOARD. 41
31	Opinion of the Court.
to prevent the ship from sailing. In the words of the striker Tracey, had they not believed that their demands had been satisfied, “we would still be sitting there.” There is no doubt that they undertook to impose their will upon the captain and officers.
None of these facts is denied by the respondents or by the Circuit Court.6 * * 9 Indeed it is admitted that, had the strike occurred on the high seas, the participants would have been guilty of mutiny. But a distinction is said to lie between strikes at sea and at dock To determine the validity of this distinction we turn first to the words of the statute. They are plain enough: “Whoever, being of the crew of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States” etc. It has long been settled that the admiralty and maritime jurisdiction of the United States includes all navigable waters within the country. The Genesee Chief, 12 How. 443.10 11 The water in the harbor of Houston is certainly navigable, and a boat at dock there is obviously within the territorial limits of the United States. The words of the statute alone, therefore, do not warrant an exception in the case of a vessel situated as the City of Fort Worth was when the strike occurred.
Nor are we referred to the decision of any court in which such an exception has been implied. Under the original Mutiny Act of 1790,11 Justice Story held without hesitation that a refusal to work while a vessel was in an American harbor was a violation of the statute.12 The Act of 1790
6 The Board did not consider the question of whether the strike
amounted to mutiny.
10 On the jurisdiction of the United States over men and vessels in
foreign waters, see United States v. Flores, 289 U. S. 137; United States
v. Roberts, 27 Fed. Cas. No. 16,173 (C. C. S. D. N. Y. 1843.)
111 Stat. 112, §§8 and 12.
” United States v. Hamilton, 26 Fed. Cas. No. 15,291 (C. C. D. Mass. 1818) (the report of this case is not altogether clear on whether
42	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
was supplanted in 1835 by a statute which, with only minor changes, now appears as §§ 292 and 293 of the Criminal Code, set out above.* 13 Since 1835, whenever the question has arisen, the courts have held that a mutiny may occur in a harbor, either foreign or domestic, as well as at sea.14 It is true, however, that in none of these cases does it expressly appear that the vessel was tied to a dock, as was the City oj Fort Worth in this case. And in the Rees case, the court specifically reserved the question of whether the Mutiny Act bars a strike on board a vessel so situated. 95 F. 2d 784, at 792.
It was therefore strictly accurate for the Circuit Court of Appeals to observe that “the question of the right of seamen to strike under the circumstances of the case before us is still an open one.” On this assumption, however, it proceeded to conclude that the necessity for absolute authority in the master is so considerably diminished when the ship is moored in a “safe” port that a strike in such circumstances should not be held to violate the Act. This theory has been regarded with favor by a number of courts and
the ship was at anchor in Salem Bay or tied to a dock there, but the former seems to have been the case); United States v. Gardner, 25 Fed. Cas. No. 15,188 (C. C. D. Mass. 1829) (this report also fails to reveal the exact situation of the vessel in Boston harbor at the time of the strike, but it is possible that it was moored to the dock since Boston was its home port and it was “all ready for sea,” and presumably the loading had just been completed).
13	4 Stat. 775, 776.
14	United States v. Cassedy, 25 Fed. Cas. No. 14,745 (C. C. D. Mass. 1837); United States v. Lynch, 26 Fed. Cas. No. 15,648 (C. C. S. D. N. Y. 1843); United States v. Roberts, 27 Fed. Cas. No. 16,173 (C. C. S. D. N. Y. 1843); United States v. Staly, 27 Fed. Cas. No. 16,374 (C. C. D. R. I. 1846) (at anchor in the Providence River); United States v. Nye, 27 Fed. Cas. No. 15,906 (C. C. D. Mass. 1855); Hamilton v. United States, 268 F. 15; Rees v. United States, 95 F. 2d 784; United States v. Albers, 115 F. 2d 833.
SOUTHERN S. S. CO. v. LABOR BOARD. 43
31	Opinion of the Court.
commentators15 * * and is said to conform more closely to changed conceptions with respect to the freedom of workers on land or sea to organize, to bargain, and to use economic weapons to enforce their demands.
The difficulty with the contention is that it ignores the plain Congressional mandate that a rebellion by seamen against their officers on board a vessel anywhere within the admiralty and maritime jurisdiction of the United States is to be punished as mutiny. If this mandate is to be changed, it must be changed by Congress, and not by the Courts. If further proof be needed of a Congressional belief that the requirements of discipline during a voyage do not vary with each change in circumstance, it may be found in the shipping articles to which we have already referred. For in those articles the members of the crew are obliged to promise to obey lawful commands “whether on board, in boats, or on shore.” And before a seaman’s certificate is issued by the Bureau of Marine Inspection and Navigation the applicant must take an oath to “. . . carry out the the lawful orders of my superior officers on shipboard.”18 The lower court expressed the opinion, “Upon reason, however, . . . there is no sound basis for depriving seamen of this right [to strike] when, as here, their vessel is moored to the dock in a safe domestic port.” But the soundness or unsoundness of the reasoning is for the determination of Congress. As recently as 1939, two bills were introduced in the House of Representatives
“See The Blake, 1 W. Rob. 73, 166 Eng. Rep. 500; Buddington v. Smith, 13 Conn. 334; Sapiro and Frank, Mutiny at the Dock, 25 Cal. L. Rev. 41; Rothschild, The Legal Implications of a Strike by Seamen, 45 Yale L. J. 1181; Decision, 38 Col. L. Rev. 1294. But see McLaughlin, Note, 18 Ore. L. Rev. 128; Note, Labor Disputes in the Merchant
Marine, 28 Va. L. Rev. 79.
“See current “Application for Seamen’s Certificate,” issued by
Shipping Section, Bureau of Marine Inspection and Navigation, Department of Commerce. And see also U. S. C., Title 46, § 672 (g).
44	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
for the purpose of limiting the scope of § § 292 and 293 to vessels “under way on the high seas.” H. R. 3427, 3428, 76th Congress, 1st Session. The United States Maritime Commission communicated to the House Committee on Merchant Marine and Fisheries its firm objection to the measures,17 and they were never enacted. When the legislative purpose is so plain, we cannot assume to do that which Congress has refused to do.
17 Letter to the Committee dated March 27, 1939 and signed by the Chairman of the Commission, Emory S. Land:
“Under date of February 1, 1939, you requested the views and recommendations of the Commission with respect to H. R. 3427 and H. R. 3428.
“The proposed bills would emasculate the present laws in respect of revolt or mutiny on shipboard. No conduct by members of the crew of a vessel of the United States would constitute a violation of the statutes unless the vessel were under way on the high seas and then only if actual force as distinguished from the lesser degrees of revolt or mutiny involving use of fraud or intimidation were used against the commanding officer. Moreover, the proposed amendments would reduce the maximum penalties by seventy-five per cent.
“It is the Commission’s considered opinion that there is no reason which would justify the Congress in lessening the authority of the masters on board vessels of the American merchant marine.
“The crimes of endeavoring to incite to revolt or mutiny, or actually accomplishing revolt or mutiny, may be committed ‘on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States’. It is well settled that this includes all such offenses committed on the vessels of the United States on navigable waters, including the ports, rivers and harbors of foreign countries. (United States v. Flores, 289 U. S. 137.)
“Seamen who sign articles to become members of the crew of a vessel of the United States enter into a relationship which, in the nature of things, is different from that assumed by persons employed on land. Both as ‘wards of the admiralty’ under the general maritime law and by special acts of Congress applying only to them, seamen enjoy many
SOUTHERN S. S. CO. v. LABOR BOARD. 45
31	Opinion of the Court.
In any event, a sweeping requirement of obedience throughout the course of a voyage is certainly not without benefits not accorded to land workers. At the same time they must assume certain correlative duties not necessary to land occupations.
"In the Economic Survey of the American Merchant Marine, the Commission said (p. 46):
" The sea is no place for divided authority. When a man puts foot on the deck of a ship, he becomes part of a disciplined organism subject to the navigation laws of the United States/
"It has been contended that the mutiny statutes do not apply unless the vessel is in actual danger and a fortiori there can be no mutiny in a safe harbor. This contention, not having met with success in the courts (Rees v. United States; Hamilton v. United States) is brought before the legislative branch of the Government in the form of the proposed amendments. The fact that a vessel may be in a safe harbor does not, under existing law, and it is submitted, should not, give sanction to the offenses covered by the mutiny statutes. It is apparent to all those familiar with the sea that no vessel is safe unless she is, among other things, manned by a competent crew which means, in short, a crew alert to its duties and responsive at all times to the lawful commands of the master. A crew which does not meet this test is not competent and must, moreover, be lacking in that morale which is necessary to the safe preservation of the ship, her passengers and cargo. Because of the human factor involved, it is difficult to see how the morale of a crew which feels that it should be free to disobey the lawful commands of the master when the vessel is not ‘under way on the high seas, can be revived with automatic regularity when the ship weighs anchor or crosses an imaginary line to the high seas.
“Certainly there need be no fear, on the part of members of an orderly and competent crew, that they will run afoul of existing statutes governing discipline on board vessels of the United States. As there can be no escape from the necessities of such discipline, there should be no^ diminution of the authority required to meet those necessities.
The Commission is of the opinion that the proposed amendments, u enacted, would be harmful to the development of the American merchant marine and it is, accordingly, opposed to the measures.
The Commission is advised by the Acting Director of the Bureau of the Budget that there would be no objection to the submission of this report to your Committee.”
46	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
basis in reason. The strategy of discipline is not simple. The maintenance of authority hinges upon a delicate complex of human factors, and Congress may very sensibly have concluded that a master whose orders are subject to the crew’s veto in port cannot enforce them at sea. Moreover, it is by no means clear that a ship moored to a dock is “safe” if the crew refuses to tend it, as the strikers did at Houston. At the very least, steam must be maintained to provide light and fire protection.18 The damage to the Normandie is grim enough proof that the hazard of fire is ever present.19 It is not enough to say that, in the case before us, the strikers did not prevent these precautions from being taken; only the efforts of others averted the dangers to which they opened the door.
We conclude that the Circuit Court of Appeals erred in holding that the strike at Houston did not violate §§ 292 and 293.
Second. Assuming that the strike did violate these sections, the Board contends that the reinstatement provisions of its order were nevertheless valid. Section 10 (c) of the National Labor Relations Act permits the Board to require an employer who has committed an unfair labor practice to take “such affirmative action, including reinstatement of employees . . ., as will effectuate the policies of the Act.” This authorization is of considerable breadth, and the courts may not lightly disturb the Board’s choice of remedies. But it is also true that this discretion has its limits, and we have already begun to define them. Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240; Republic Steel Corp. v. Labor Board, 311 U. S. 7. A complete definition of course was not and could not have been attempted in those cases.
“Memorandum to Ship Operators dated December 10, 1941, Bureau of Marine Inspection, Department of Commerce.
19 N. Y. Times, Feb. 10, 1942, p. 1, col. 8.
SOUTHERN S. S. CO. v. LABOR BOARD. 47
31	Opinion of the Court.
Nor will it be attempted here. It is sufficient for this case to observe that the Board has not been commissioned to effectuate the policies of the Labor Relations Act so single-mindedly that it may wholly ignore other and equally important Congressional objectives. Frequently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another, and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task.
This was the kind of consideration for which the present case called. To bolster its claim that it responded to this call, the Board relies upon what it asserts to have been the “technical” nature of the violation of §§ 292 and 293. Specifically, it points to the comparative safety of the ship when moored to the dock, the absence of violence, and the double character of the ship as the strikers’ place of employment and their home during the course of the voyage. While we have no doubt that the danger to the vessel was considerably less than it would have been had the strike occurred at sea, we have already indicated that it was certainly present and that considerations other than immediate danger to the ship require maintenance of discipline throughout the voyage. Likewise, the absence of violence was a fortunate feature of the affair, but the flouting of the captain’s authority was nevertheless deliberate and complete. Finally, for these strikers to remain aboard the ship was indeed an act of very different significance than for strikers at an industrial plant to remain inside a factory. But in one respect at least the comparison is unfavorable to the strikers here. As a practical matter, the City of Fort Worth was definitely wrested from the control of its onicers. In an industrial plant the employer is con-ronted only with the necessity of placing new men at e machines. But under the law petitioner was required
48	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
to furnish living quarters to any new crew whom it might have hired for the return voyage to Philadelphia. This meant the removal of the strikers from their quarters as well as their posts of duty. It is difficult to imagine that they would have surrendered their jobs and their quarters without a struggle. They asserted their right to occupy the quarters and to eat the food which the master was required to furnish them as members of the crew, and yet to refuse to work or to obey his orders. See United States v. Albers, 115 F. 2d 833, at 836. In fact, as we have noted, they intended, according to the witness Tracey, to “still be sitting there” if petitioner had not capitulated to their demands.
We cannot ignore the fact that the strike was unlawful from its very inception. It directly contravened the policy of Congress as expressed in § § 292 and 293, and it was more than a “technical” violation of those provisions. Consequently, and despite the initial unfair labor practice which caused the strike, we hold that the reinstatement provisions of the order exceeded the Board’s authority to make such requirements “as will effectuate the policies of the Act.”20
It should be stressed that the view we have taken does not prevent the redress of grievances under the Act. At any time following the certification of the N. M. U. in January, 1938, the union and the Board could have secured the assistance of the courts in forcing petitioner to bargain. The importance of seeking such assistance promptly is strikingly illustrated in this case.21 Had the union and the
20 Cf. Peninsular & Occidental S. S. Co. v. Labor Board, 98 F. 2d 411, 414.
81 We do not question the Board’s finding that petitioner refused to bargain with the N. M. U. after January 26, 1938. But the findings and the record indicate that the union was not markedly diligent. The Board found that one request for a conference was made by a union representative at Houston “shortly after the certification. In late
SOUTHERN S. S. CO. v. LABOR BOARD. 49
31	Reed, J., dissenting.
Board done so, the unfortunate occurrence at Houston might have been averted. And what is more, nothing that we have said would prevent the union from striking, picketing or resorting to any other means of self-help, so long as the time and place it chooses do not come within the express prohibition of Congress.
The case is remanded to the Circuit Court of Appeals with instructions to limit its decree of enforcement to those provisions of the Board’s order requiring petitioner to bargain with the N. M. U. and to post notices to that effect, but to eliminate the other provisions of the order.
Reversed.
Mr. Justice Reed, dissenting:
To support its judgment of reversal this Court relies upon the employees’ violation of §§292 and 293 of the Criminal Code as justification for the Steamship Company’s discharge of its seamen. If the seamen were discharged not for labor activity but because of the commission of serious crime, Labor Board v. Fansteel Corp., 306 U. S. 240, would be authority for the Court’s holding. It was there decided that § 2 (3) of the Labor Act did not preserve a striker’s eligibility for reinstatement by the Board under § 10 (c), if the striker was discharged for reasons other than “union activity or agitation for collective bargaining,” e. g., criminal acts. 306 U. S. at 255. The Court recognizes that where “an employer indulges in an unfair labor practice, a strike results, and several men are discharged for participating in the strike,” and nothing more appears, the Labor Board may properly rein-
January or early February,” the union’s business agent in Philadelphia made a similar request. He renewed it “about the middle of February.” “During the next month” he made two attempts to repeat his request by telephone. From that time until August 18, a month after the strike at Houston, he made only one other attempt, the date of which he was unable to fix.
461263°—43__4
50	OCTOBER TERM, 1941.
Reed, J., dissenting.	316U.S.
state the strikers. It concludes, however, that where the strike provoked by the unfair practices is itself unlawful, the Board, regardless of the circumstances, loses its power to reinstate after discharge. This position, we think, unduly expands judicial review of the Board’s discretionary power of reinstatement under § 10 (c) and is not supported by the Fansteel decision.
This Court recognized in the Fansteel case that the Board had discretion over reinstatement. 306 U. S. 258. It was thought that, however wide that discretion might be, “its limits were transcended” in that case. The ninety-five men in Fansteel were discharged “for the seizure and retention of the buildings.” 306 U. S. 252. But those men held the buildings from February 17 until February 26. They disobeyed a court injunction order to surrender the factory, and successfully resisted by force the sheriff’s efforts to enforce it. Only on his second attempt, with an increased number of deputies, did the sheriff accomplish their eviction and arrest. 306 U. S. 248-49.
Nothing approaching such disorder occurred here. The seamen’s conduct did not affect the safety of the vessel. The only evidence of violation of the statutes is that the orders to load were ignored. We may assume, for this dissent, that this resulted in a violation of the criminal statutes. The Board found that the respondent refused to bargain collectively with the Union, that primarily this precipitated the strike, and that the respondent was not warranted in discharging any employee solely because of the strike. It further found that the strikers did not hold the ship in defiance of the owner nor did they trespass. The Board found in each instance that the discharges were not for disobeying orders but for striking, for peacefully, albeit unlawfully, resorting to self-help in retaliation against denial of their rights.1 On the basis of
1 “The evidence is plain that both Tracey and Ferguson were discharged because of the leading parts they played in the strike. Chief
SOUTHERN S. S. CO. v. LABOR BOARD. 51
31	Reed, J., dissenting.
these findings, supported by substantial evidence, the Board exercised its discretion to reinstate these men.
We think that, under these circumstances, it acted within its authority. We can see no justification for an iron rule that a discharge of a striker by his employer for some particular, unlawful conduct in furtherance of a strike is sufficient to bar his reinstatement as a matter of law. Fansteel teaches that there are extremes of conduct which leave no discretion to the Board. We think that the acts here fall on the other side of the line and that the Circuit Court of Appeals properly so determined.
Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Murphy concur in this dissent.
i
Engineer Norton testified that he did not recommend Ferguson’s discharge merely because he had disobeyed orders. ‘I would have overlooked that had he taken the fires until we got straightened out.’ Captain Rudan testified that he discharged both these men upon Norton’s complaint that ‘they had been on watch at the time of the commencement of this what I consider disobedience, and if they had gone on watch at the time, that the rest of the men probably would have followed. . .
Captain Rudan’s testimony makes it abundantly clear that the motivating factor in the respondent’s decision to discharge Pfuhl was his participation in the strike. . . .
We entertain no doubt that an employee’s intoxication provides ample reason for his discharge. We believe, however, that the respondent did not discharge Warren for this reason, but rather that i seized upon his drinking proclivities to rid itself of an active union officer.
On cross-examination Sherry admitted that Smith was discharged because of his participation in the strike. . . .”
52	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
VALENTINE, POLICE COMMISSIONER OF THE CITY OF NEW YORK, v. CHRESTENSEN.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 707. Argued March 31, 1942.—Decided April 13, 1942.
1.	A municipal ordinance forbidding distribution in the streets of printed handbills bearing commercial advertising matter, held constitutional. P. 54.
2.	A constitutional right to distribute in the streets handbills of printed commercial advertising matter, contrary to a municipal ordinance, can not be acquired by adding to the handbills matter of possible public interest which by itself might be privileged but which is added with the purpose of evading the prohibition of the ordinance with respect to the advertising matter. P. 55.
122 F. 2d 511, reversed.
Certiorari, 314 U. S. 604, to review a decree which affirmed a decree, 34 F. Supp. 596, permanently enjoining the Police Commissioner of the City of New York from interfering with distribution of respondent’s handbills.
Mr. William C. Chanter, with whom Mr. Leo Brown was on the brief, for petitioner.
Mr. Walter W. Land for respondent.
Briefs of amici curiae were filed by Messrs. Jerome L Myers and Charles S. Rhyne on behalf of the National Institute of Municipal Law Officers, in support of petitioner; and by Mr. Osmond K. Fraenkel on behalf of the American Civil Liberties Union, urging affirmance.
Mr. Justice Roberts delivered the opinion of the Court.
The respondent, a citizen of Florida, owns a former United States Navy submarine which he exhibits for profit.
VALENTINE v. CHRESTENSEN. 53
52	Opinion of the Court.
In 1940 he brought it to New York City and moored it at a State pier in the East River. He prepared and printed a handbill advertising the boat and soliciting visitors for a stated admission fee. On his attempting to distribute the bill in the city streets, he was advised by the petitioner, as Police Commissioner, that this activity would violate § 318 of the Sanitary Code, which forbids distribution in the streets of commercial and business advertising matter,1 but was told that he might freely distribute handbills solely devoted to “information or a public protest.”
Respondent thereupon prepared and showed to the petitioner, in proof form, a double-faced handbill. On one side was a revision of the original, altered by the removal of the statement as to admission fee but consisting only of commercial advertising. On the other side was a protest against the action of the City Dock Department in refusing the respondent wharfage facilities at a city pier for the exhibition of his submarine, but no commercial advertising. The Police Department advised that distribution of a bill containing only the protest would not violate § 318, and would not be restrained, but that distribution of the double-faced bill was prohibited. The respondent, nevertheless, proceeded with the printing of his proposed bill and started to distribute it. He was restrained by the police.
1 “Handbills, cards and circulars.—No person shall throw, cast or distribute, or cause or permit to be thrown, cast or distributed, any handbill, circular, card, booklet, placard or other advertising matter whatsoever in or upon any street or public place, or in a front yard or court yard, or on any stoop, or in the vestibule or any hall of any build-mg, or in a letterbox therein; provided that nothing herein contained shall be deemed to prohibit or otherwise regulate the delivery of any such matter by the United States postal service, or prohibit the distri-ution of sample copies of newspapers regularly sold by the copy or by annual subscription. This section is not intended to prevent the lawful stribution of anything other than commercial and business advertising matter.”
54	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Respondent then brought this suit to enjoin the petitioner from interfering with the distribution. In his complaint he alleged diversity of citizenship; an amount in controversy in excess of $3,000; the acts and threats of the petitioner under the purported authority of § 318; asserted a consequent violation of § 1 of the Fourteenth Amendment of the Constitution; and prayed an injunction. The District Court granted an interlocutory injunction,2 and after trial on a stipulation from which the facts appear as above recited, granted a permanent injunction. The Circuit Court of Appeals, by a divided court, affirmed.3
The question is whether the application of the ordinance to the respondent’s activity was, in the circumstances, an unconstitutional abridgement of the freedom of the press and of speech.
1. This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment. The question is not whether the legislative body may interfere with the harmless pursuit of a lawful business, but whether it must permit such pursuit by what it deems an undesirable invasion of, or interference with, the full and free use of the
' 34 F. Supp. 596.
’ 122 F. 2d 511.
VALENTINE v. CHRESTENSEN. 55
52	Opinion of the Court.
highways by the people in fulfillment of the public use to which streets are dedicated. If the respondent was attempting to use the streets of New York by distributing commercial advertising, the prohibition of the code provision was lawfully invoked against his conduct.
2.	The respondent contends that, in truth, he was engaged in the dissemination of matter proper for public information, none the less so because there was inextricably attached to the medium of such dissemination commercial advertising matter. The court below appears to have taken this view, since it adverts to the the difficulty of apportioning, in a given case, the contents of the communication as between what is of public interest and what is for private profit. We need not indulge nice appraisal based upon subtle distinctions in the present instance nor assume possible cases not now presented. It is enough for the present purpose that the stipulated facts justify the conclusion that the affixing of the protest against official conduct to the advertising circular was with the intent, and for the purpose, of evading the prohibition of the ordinance. If that evasion were successful, every merchant who desires to broadcast advertising leaflets in the streets need only append a civic appeal, or a moral platitude, to achieve immunity from the law’s command.
The decree is
Reversed.
56	OCTOBER TERM, 1941.
Counsel for Parties.	316 U. S.
HELVERING, COMMISSIONER OF INTERNAL REVENUE, v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE, TRUSTEE, et al.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 600. Argued March 9, 1942.—Decided April 13, 1942.
1.	The provision of § 302 (a) of the Revenue Act of 1926, that in the gross estate of a decedent there shall be included the value of all property “(a) To the extent of the interest therein of the decedent at the time of his death,” does not embrace property as to which he held merely a general testamentary power of appointment which he did not exercise. P. 57.
This view is compelled by the legislative, judicial, and administrative history of the legislation.
2.	Where property in litigation was claimed by relatives of a decedent as appointees under his will, the validity of which was contested, and, in the alternative, as his heirs—also a matter in dispute—and a share of the property was allotted to them by a compromise agreement approved by the court, held:
(1)	That so much of the share as was properly attributable to their claim under the appointment should be included in the decedent’s estate under § 302 (f) of the Revenue Act of 1926, as “property passing under a general power of appointment exercised by the decedent ... by will.” P. 63.
(2)	The determination of how much of the share should be imputed to the claim based on the attempted exercise of the power of appointment and how much to the alternative claim—necessarily an approximation—was a matter for the Board of Tax Appeals. P. 66.
121 F. 2d 307, reversed.
Certiorari, 314 U. S. 601, to review a judgment affirming a decision of the Board of Tax Appeals, 42 B. T. A. 145.
Assistant Attorney General Clark, with whom Solicitor General Fahy and Messrs. J. Louis Monarch, Richard
HELVERING v. SAFE DEPOSIT CO. 57
56	Opinion of the Court.
H. Demuth, and Arthur A. Armstrong were on the brief, for petitioner.
Mr. Charles McH. Howard for respondents.
Mr. Justice Black delivered the opinion of the Court.
Because of the importance in the administration of the Federal Estate Tax of the questions involved, we granted certiorari to review the judgment of the Circuit Court of Appeals, 121 F. 2d 307, affirming a decision of the Board of Tax Appeals, 42 B. T. A. 145.
Zachary Smith Reynolds, age 20, died on July 6, 1932. At the time, he was beneficiary of three trusts: one created by his father’s will in 1918, one by deed executed by his mother in 1923, and one created by his mother’s will in 1924. From his father’s trust, the decedent was to receive only a portion of the income prior to his twenty-eighth birthday, at which time, if living, he was to become the outright owner of the trust property and all accumulated income. His mother’s trusts directed that he enjoy the income for life, subject to certain restrictions before he reached the age of 28. Each of the trusts gave the decedent a general testamentary power of appointment over the trust property; in default of exercise of the power the properties were to go to his descendants, or if he had none, to his brother and sisters and their issue per stirpes.
The Commissioner included all the trust property within the decedent’s gross estate for the purpose of computing the Federal Estate Tax. The Board of Tax Appeals and the Circuit Court of Appeals, however, held that no part of the trust property should have been included.
I
The case presents two questions, the first of which is whether the decedent at the time of his death had by virtue of his general powers of appointment, even if never exer
58	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
cised, such an interest in the trust property as to require its inclusion in his gross estate under § 302 (a) of the Revenue Act of 1926, 44 Stat. 9, 70. This section provides:
“The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated—
(a) To the extent of the interest therein of the decedent at the time of his death;”
The Government argues that at the time of his death the decedent had an “interest” in the trust properties that should have been included in his gross estate, because he, to the exclusion of all other persons, could enjoy the income from them; would have received the corpus of one trust upon reaching the age of 28; and could alone decide to whom the benefits of all the trusts would pass at his death. These rights, it is said, were attributes of ownership substantially equivalent to a fee simple title, subject only to specified restrictions on alienation and the use of income. The respondents deny that the rights of the decedent with respect to any of the three trusts were substantially equivalent to ownership in fee, emphasizing the practical importance of the restrictions on alienation and the use of income, and arguing further that the decedent never actually had the capacity to make an effective testamentary disposition of the property because he died before reaching his majority.
We find it unnecessary to decide between these conflicting contentions on the economic equivalence of the decedent’s rights and complete ownership.1 For even if we as-
1 In declining to pass upon this issue, we do not reject the principle we have often recognized that the realities of the taxpayer’s economic interest, rather than the niceties of the conveyancer’s art, should determine the power to tax. See Curry v. McCartless, 307 U. S. 357,371, and cases there cited. Nor do we deny the relevance of this principle
HELVERING v. SAFE DEPOSIT CO. 59
56	Opinion of the Court.
sume with the Government that the restrictions upon the decedent’s use and enjoyment of the trust properties may be dismissed as negligible and that he had the capacity to exercise a testamentary power of appointment, the question still remains: Did the decedent have “at the time of his death” such an “interest” as Congress intended to be included in a decedent’s gross estate under § 302 (a) of the Revenue Act of 1926? It is not contended that the benefits during life which the trusts provided for the decedent, terminating as they did at his death, made the trust properties part of his gross estate under the statute. And viewing § 302 (a) in its background of legislative, judicial, and administrative history, we cannot reach the conclusion that the words “interest ... of the decedent at the time of his death” were intended by Congress to include property subject to a general testamentary power of appointment unexercised by the decedent.
The forerunner of § 302 (a) of the Revenue Act of 1926 was § 202 (a) of the Revenue Act of 1916, 39 Stat. 777. In United States v. Field, 255 U. S. 257, this Court held that property passing under a general power of appointment exercised by a decedent was not such an “interest” of the decedent as the 1916 Act brought within the decedent’s gross estate. While the holding was limited to exercised powers of appointment, the approach of the Court, the authorities cited, and certain explicit statements2 in the opinion left little doubt that the Court
as a guide to statutory interpretation where, unlike here, the language of a statute and its statutory history do not afford more specific indications of legislative intent. Helvering v. Clifford, 309 U. S. 331.
8 E. g.: “But the existence of the power does not of itself vest any estate in the donee.” (p. 263.)
“If there be no appointment, it [the property subject to the power] goes according to the disposition of the donor.” (p. 264.)
“... the interest in question [was] not.. . property of Mrs. Field at... her death.” (p. 264.)
60	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
regarded property subject to unexercised general powers of appointment as similarly beyond the scope of the statutory phrase “interest of the decedent.”3
After the Field case, the provision it passed upon was reenacted without change in the Revenue Act of 1921 (§ 402 (a), 42 Stat. 278) and in the Revenue Act of 1924 (§ 302 (a), 43 Stat. 304). If the implications of the Field opinion with respect to unexercised powers had been considered contrary to the intendment of the words “interest of the decedent,” it is reasonable to suppose that Congress would have added some clarifying amendment.
If the counterparts in the earlier Acts of § 302 (a) of the Revenue Act of 1926 did not require the inclusion of property subject to an unexercised general testamentary power of appointment within the decedent’s gross estate, there is no basis for concluding that the amendment of 1926 changed the act in this respect. Prior to 1926 an “interest of the decedent” was to be included in his gross estate only if subject “after his death ... to the payment of the charges against his estate and the expenses of its administration and . . . subject to distribution as part of his estate.” In the 1926 Act this qualification was abandoned. In the report accompanying the bill which embodied this change, the House Committee on Ways and Means stated only that “In the interest of certainty it is recommended that the limiting language . . . shall be eliminated in the proposed bill, so that the gross estate shall include the entire interest of the decedent at the time of his death in all the property.”4 Nothing in the report
3	In Burnet v. Guggenheim, 288 U. S. 280, 288, this Court stated: “United States v. Field . .. holds that under the Revenue Act of 1916 . . . the subject of a power created by another is not a part of the estate of the decedent to whom the power was committed.” It is to be noted that no distinction was recognized between exercised and unexercised powers under the rule of the Field case.
4	House Report No. 1, 69th Cong., 1st Sess., 15.
HELVERING v. SAFE DEPOSIT CO. 61
56	Opinion of the Court.
suggested that the change was intended to have any relevance to powers of appointment, and no such intention can reasonably be inferred from the amended section itself. It is noteworthy that the regulations of the Bureau of Internal Revenue issued after passage of the 1926 Act contain no indication that the Treasury Department regarded the amendment as affecting unexercised powers of appointment. On the other hand, the article pertaining to powers of appointment was reincorporated in the 1926 regulations with the same content, so far as here relevant, as the corresponding article in the last regulations issued prior to the 1926 Act.6
When it was held in the Field case that property subject to an exercised general testamentary power of appointment was not to be included in the decedent’s gross estate under the Revenue Act of 1916, this Court referred to an amendment passed in 1919 which specifically declared property passing under an exercised general testamentary power to be part of the decedent’s gross estate. The passage of this amendment, said the Court, “indicates that Congress at least was doubtful whether the previous act included property passing by appointment.” 6 In the face of such doubts, which cannot reasonably be supposed to have been less than doubts with respect to unexercised powers, Congress nevertheless specified only that property subject to exercised powers should be included. From this deliberate singling out of exercised powers alone, without the corroboration of the other matters we have discussed, a Congressional intent to treat unexercised powers otherwise can be de
8 Article 24 of Treasury Regulations 70 (1926 ed.) under the Revenue Act of 1926; Article 24 of Treasury Regulations 68 (1924 ed.) under the Revenue Act of 1924.
* United States v. Field, supra, 265.
62	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
duced. At the least, § 302 (f) of the 1926 Act,7 the counterpart of the 1919 amendment referred to in the Field case, represents a course of action followed by Congress, since 1919, entirely consistent with a purpose to exclude from decedents’ gross estates property subject to unexercised general testamentary powers of appointment.
In no judicial opinion brought to our attention has it been held that the gross estate of a decedent includes, for purposes of the Federal Estate Tax, property subject to an unexercised general power. On the contrary, as the court below points out, “the courts have been at pains to consider whether property passed under a general power or not so as to be taxable under Section 302 (f), a consideration which would have been absolutely unnecessary if the estate were taxable under 302 (a) because of the mere existence of a general power whether exercised or not.”8 121F. 2d 307, 312. In addition, the uniform administrative practice until this case arose appears to have placed an interpretation upon the Federal Estate Tax contrary to that the Government now urges. No regulations issued under the several revenue acts, including those in effect at the time this suit was initiated, prescribe that property subject to an unexer-
’ “The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated—
“(f) To the extent of any property passing under a general power of appointment exercised by the decedent (1) by will, or (2) by deed executed in contemplation of, or intended to take effect in possession or enjoyment at or after, his death, except in case of a bona fide sale for an adequate and full consideration in money or money’s worth;” 44 Stat. 9, 70-71.
8 See, e. g., Helvering v Grinnell, 294 U. S. 153; Rothensies v. Fidel-ity-Phdadelphia Trust Co., 112 F. 2d 758.
HELVERING v. SAFE DEPOSIT CO. 63
56	Opinion of the Court.
cised general testamentary power of appointment should be included in a decedent’s gross estate. Because of the combined effect of all of these circumstances, we believe that a departure from the long-standing, generally accepted 9 construction of § 302 (a), now contested for the first time by the Government, would override the best indications we have of Congressional intent.
II
The second question is the treatment to be given, under § 302 (f) of the Revenue Act of 1926, to a share of the trust property passing to the decedent’s brother and sisters as a result of a compromise settlement with other claimants. Should that share be included in whole or in part within the decedent’s gross estate as “property passing under a general power of appointment exercised by the decedent... by will”?
The claim of the brother and sisters was based upon: (1) a purported exercise of the power of appointment in their favor by the decedent in a will he executed in New York, and in the alternative, (2) their right to take in default of appointment under the terms of the trusts. Each of the two children of the decedent (1) denied the validity of the New York will and (2) challenging the right of the brother and sisters to take in default, independently asserted his own. These issues, complicated by many other factors which it is unnecessary here to discuss, were never finally resolved by judicial decision, although there had been much litigation involving them in the North Carolina courts. Eventually, the several claimants agreed to a compromise under which 37%% of the trust property went to the brother and sisters. The compromise was
’See I Paul, Federal Estate and Gift Taxation, p. 425: “As long as there is no actual or constructive exercise of the power, there can be no tax under the present statute.”
64	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
confirmed by a judgment of the North Carolina Superior Court and this judgment was affirmed by the North Carolina Supreme Court. 208 N. C. 578,182 S. E. 341.
The Government contends that a portion of the share received by the brother and sisters reflects recognition by the other claimants as well as by the North Carolina courts of the assertion that the power of appointment was validly exercised; and that under the doctrine approved by this Court in Lyeth v. Hoey, 305 U. S. 188, that portion must be treated as though it actually passed pursuant to an effective exercise of the power.
The Lyeth case, like the one now before us, came to this Court after a compromise settlement. An heir of the decedent had contested the validity of the decedent’s will in which no provision had been made for him. The heir and the devisees and legatees under the will entered into a compromise providing that the will be probated and that a specific sum be paid to the heir. We held that the money the heir received pursuant to the compromise should be treated, with respect to his tax liability under the federal income tax statute,10 11 as if acquired “by inheritance,” for the reason that it was possible for him to receive it only “because of his standing as an heir and of his claim in that capacity.”11
The claim of the decedent’s brother and sisters here, so far as based on the validity of the purported appointment, had its roots, like the claimed invalidity of the will in the Lyeth case, in an issue never decided in litigation. If it had been litigated to final judgment by a competent tribunal and the brother and sisters had succeeded in establishing the validity of the exercise of the power, the
10	Section 22 (b) (3) of the Revenue Act of 1932, c. 209,47 Stat. 178, under which the Lyeth case arose, exempted from the income tax the “value of property acquired ... by inheritance . . .”
11	Lyeth v. Hoey, supra, 196.
HELVERING v. SAFE DEPOSIT CO. 65
56	Opinion of the Court.
inclusion in the decedent’s gross estate of what they would have received as appointees, pursuant to § 302 (f), could not seriously be questioned. In the Lyeth case we said that “the distinction sought to be made between acquisition through such a judgment and acquisition by a compromise agreement in lieu of such a judgment is too formal to be sound.” 12 There is no less reason for the same conclusion here.
The respondents contend that the principle of the Lyeth case, announced by the Court with respect to income tax liability, should not be controlling where, as here, the question is one of estate tax liability. It is urged that taxes should not be influenced by what occurs after the taxable event; that it is reasonable to consider a compromise preceding the receipt of income in connection with an income tax; but that a compromise occurring after the decedent’s death, which is the “taxable event” under an estate tax, should not be considered. Whatever may be the general rule in this respect,13 this Court has clearly recognized, in Helvering v. Grinnell, 294 U. S. 153, that events subsequent to the decedent’s death, events controlled by his beneficiaries, can determine the inclusion or not of certain assets within the decedent’s gross estate under § 302 (f). In that case, the decedent had exercised a general testamentary power of appointment, an act which under § 302 (f) brings the property subject to the power within the gross estate. The subsequent renouncement by the appointees of the right to receive by appointment and their election to take as remaindermen in default of appointment were held by this Court to place the property subject to the power outside the scope of § 302(f).
13 See Ithaca Trust Co. v. United States, 279 U. S. 151, 155.
461263°—43--5
66	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
The respondents further contend that, judicial determinations having been made in the state courts that the attempted appointment was invalid, the share of the brother and sisters in the compromise reflects only their alternative claim to the trust property. While there are explicit statements in the opinion of the North Carolina Superior Court that the attempted appointment was invalid, these statements must be regarded as superseded by the opinion which the North Carolina Supreme Court, whose determination constituted the final approval of the compromise, rendered on appeal. For, in the course of that opinion the Supreme Court gave clear recognition to the alleged validity of the decedent’s attempted appointment as a basis of the claim the brother and sisters asserted. The court stated (208 N. C. 578, 618) :
“Serious and grave questions of law and facts were raised. The judgment sets them out and we refer to same, all troublesome, but we will consider one for example: The validity and effect of the alleged will executed in New York by Zachary Smith Reynolds, as a basis of the offer of the brother and sisters of Zachary Smith Reynolds.”
Inconsistent statements made in the course of a decree issued by the Circuit Court of Baltimore, Maryland, cannot be regarded as overcoming the force of the foregoing, since the decree purported only to authorize and direct the Maryland trustee to divide the trust property in accordance with the compromise as approved in North Carolina.
How much, if any, of the 37%% going to the decedent’s brother and sisters should be imputed to the claim based oil the attempted exercise of the power of appointment and how much to their alternative claim we do not decide. In remanding this case to the Board of Tax Appeals for a determination of this issue, we recognize that a decision must necessarily be an approximation derived from the evaluation of elements not easily measured.
HELVERING v. SAFE DEPOSIT CO. 67
56	Dissent.
In matters so practical as the administration of tax laws and in the decision of problems connected with them, a high degree of precision is often impossible to achieve. But it is far better to make such a rough estimate as the data will permit than completely to ignore the realities of the compromise because of the difficulties of evaluation.1*
The judgment of the Circuit Court of Appeals is reversed with directions to remand to the Board of Tax Appeals for further proceedings not inconsistent with this opinion.
Reversed.
The Chief Justice, Mr. Justice Roberts, Mr. Justice Frankfurter and Mr. Justice Byrnes concur in the opinion of the court upon the first question decided. They dissent from the decision of the second question. They are of opinion that that question should be answered in favor of the respondents on the authority of Helvering v. Grinnell, 294 U. S. 153, and that Lyeth v. Hoey, 305 U. S. 188, furnishes no support for a different answer.
The estate in question is not that of the decedent. The property is a portion of the estates of his mother and father. It is conceded that no part of either estate passed by virtue of the execution by the decedent of the powers of appointment with which he was clothed. The property passed under the deed and wills of his parents, and that passage was the taxable event. If he had voluntarily refrained from exercising the power, his estate would not have been liable to pay an estate tax, for the property would then have passed from the estates of his mother and father to the distributees. But it has been decided by competent tribunals that he did not exercise the power, although he attempted so to do; and,
14 Cf. United States v. Ludey, 274 U. S. 295,302.
68	OCTOBER TERM, 1941.
Dissent.	316 U.S.
in any case, there is no determination here, or elsewhere, that the power was ever exercised. This being so, the question is whether anything passed from him to his relatives under the intestate law at his death. It is plain that nothing did so pass.
In Helvering v. Grinnell, supra, the decedent exercised the power, but the appointees, as was their right under state law, elected not to take under the appointment but to take as remaindermen directly from the estate of the creator of the power, and it was held that § 302 could not be invoked to impose a tax upon the estate of the decedent. It was there said:
“The crucial words are ‘property passing under a general power of appointment exercised by the decedent by will? Analysis of this clause discloses three distinct requisites—(1) the existence of a general power of appointment; (2) an exercise of that power by the decedent by will; and (3) the passing of the property in virtue of such exercise. Clearly, the general power existed and was exercised; and this is not disputed. But it is equally clear that no property passed under the power or as a result of its exercise since that result was definitely rejected by the beneficiaries. If they had wholly refused to take the property, it could not well be said that the property had passed under the power, for in that event it would not have passed at all. Can it properly be said that because the beneficiaries elected to take the property under a distinct and separate title, the property nevertheless passed under the power? Plainly enough, we think, the answer must be in the negative.”
Lyeth v. Hoey, supra, decides nothing to the contrary. In that case, the property in question was the property of the decedent himself. He disposed of it by will. The will was contested. The contest was compromised and, as a result, those who were his heirs at law received at
MAGRUDER v. REALTY CORP. 69
56	Syllabus.
least a portion of that which they would have received as his heirs in the absence of a will. Thus, as a result of the compromise, property did pass from the decedent to his heirs at law, and it was held that, as they were his heirs, they took by inheritance in contemplation of the Revenue Act. Here, nothing passed by virtue of the exercise of the power and no portion of the decedent’s estate passed under the law of descent and distribution, or as property would have passed under that law from the decedent to the beneficiaries of the compromise.
We are at a loss to understand how the Board of Tax Appeals can be permitted to find that any taxable transfer occurred within the meaning of § 302 of the Revenue Act of 1926. Moreover, the compromise was motivated by considerations other than the invalidity of the power, for the claims of the decedent’s children had a large influence in bringing it about. We cannot perceive how the Board can calculate the relative weight of these conflicting claims and thus assess as taxable an apportioned part of the total amount the decedent’s collateral relatives received, and thus determine what part of the property passed under the power and what part did not.
MAGRUDER, COLLECTOR OF INTERNAL REVENUE, v. WASHINGTON, BALTIMORE & ANNAPOLIS REALTY CORP.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 601. Argued March 9,10,1942.—Decided April 13,1942.
1. A corporation which was organized for the purpose of liquidating the properties of another corporation, and which, since its organization, has been carrying on negotiations for the sale of the properties, selling them from time to time as satisfactory offers are received, and renting unsold properties under short term leases in an attempt to earn the carrying charges pending ultimate sale, was “carrying on
70	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
or doing business” within the meaning of provisions of the Revenue Act of 1935, and subsequent Revenue Acts, imposing a tax on the capital stock of every domestic corporation “carrying on or doing business” during the tax year. P. 71.
2. The provision of the Treasury Regulations that “doing business” within the meaning of the capital stock tax provisions of the Revenue Act of 1935, and subsequent Revenue Acts, includes activities of a corporation engaged in “liquidation ... of properties taken over from another corporation” is valid and applicable to the corporation here involved. P. 72.
120 F. 2d 441, reversed.
Certiorari, 314 U. S. 601, to review the affirmance of a judgment for the taxpayer, 35 F. Supp. 340, in a suit for refund of capital stock taxes.
Mr. Robert L. Stern, with whom Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. J. Louis Monarch and Hubert L. Will were on the brief, for petitioner.
Messrs. Richard F. Cleveland and Ambler H. Moss for respondent.
Mr. Justice Murphy delivered the opinion of the Court.
This is a suit for refund of capital stock taxes paid by respondent for the years ending June 30, 1936, through 1939. We are asked to determine whether respondent was “carrying on or doing business” within the meaning of § 105 (a) of the Revenue Act of 1935, c. 829,49 Stat. 1017, and subsequent acts, which provide :
“For each year ending June 30, beginning with the year ending June 30,1936, there is hereby imposed upon every domestic corporation with respect to carrying on or doing business for any part of such year an excise tax of $1.40 for each $1,000 of the adjusted declared value of its capital stock.”1
—......... <
1 This language has not been changed, except for the tax periods and the amount of the tax, in the subsequent acts covering the tax period
MAGRUDER v. REALTY CORP. 71
69	Opinion of the Court.
Respondent was organized in 1935 with broad corporate powers under the laws of Maryland by the protective committee for the bondholders of the defunct Washington, Baltimore & Annapolis Railway Company. It was formed for the purpose of liquidating certain properties, formerly belonging to the Railway Company, which the committee had acquired through foreclosure. Among the properties received by respondent from the committee were certain rights of way, easements, terminal properties, and other real estate located in Baltimore, Annapolis, and Washington, as well as at the other points along the line of the railroad, and the stock of a realty holding company which owned another realty company, both of which had been subsidiaries of the Railway Company for the purpose of holding legal title to real estate. The value of the properties received in 1935, as shown by respondent’s balance sheet, was $419,250.
Since its incorporation respondent has been carrying on negotiations for the sale of the properties acquired, selling them from time to time as satisfactory offers were received, and renting unsold properties under short term leases in an attempt to earn the carrying charges pending ultimate sale. Receipts from sales during the four year period here in question were approximately $675,000, and rentals amounted to $136,000. At the end of this period respondent’s book still showed properties worth $122,000. All net income, except small reserves for contingencies, was distributed as received to the stockholders, former bondholders of the Railway Company.
Respondent paid capital stock taxes for the four years in question, and then brought this suit for refund of the payments in the District Court. The court held that, because respondent was a liquidating corporation, it was
here in question. See §401, Revenue Act of 1936, c. 690, 49 Stat. 1733; § 601, Revenue Act of 1938, c. 289, 52 Stat. 565. The provision is now incorporated in § 1200 (a) of the Internal Revenue Code.
72	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
not “carrying on or doing business” within the meaning of the capital stock tax and was therefore exempt. In so holding, the court refused to give effect to the Treasury regulation claimed to be applicable.2 35 F. Supp. 340. The Circuit Court of Appeals affirmed. 120 F. 2d 441. We granted certiorari because of the importance of the question in the administration of the revenue acts. 314 U. S. 601.
The regulation, Article 43 (a) (5), provides:
“Art. 43. Illustrations.—(a) General.—In general ‘doing business’ includes any activities of a corporation whether it engages in—
“(5) the orderly liquidation of property by negotiating sales from time to time as opportunity and judgment dictate and distributing the proceeds as liquidation is effected—for example, the liquidation of an estate, or of properties taken over from another corporation, or of the shareholders’ fractional interests in particular property;”
If the regulation is both applicable and valid, respondent manifestly cannot prevail.
On the question of applicability there can be no doubt, for the language of the regulation precisely describes respondent’s activities. We find without substance respondent’s assertions that Article 43 (b) (2)3 is inconsistent with Article 43 (a) (5) and that it more exactly fits the facts
3Article 43 (a) (5) of Treasury Regulations 64 (1936 Edition).
3 “Exceptions.—Ordinarily the exceptions to ‘doing business’ are restricted to limited activities of a corporation, such as—
“(2) the distribution of the avails of property and the doing only of such acts as may be necessary for the maintenance of its corporate status in the case in which the corporation either was organized for, or has reduced its activities to, the mere owning and holding of specific property.”
MAGRUDER v. REALTY CORP. 73
69	Opinion of the Court.
of this case. During the period in question, respondent did not fall into that state of quietude, covered by the specific language of Article 43 (b) (2), in which it was merely owning and holding specific property and distributing the resulting proceeds. See Zonne v. Minneapolis Syndicate, 220 U. S. 187; cf. Von Baumbach v. Sargent Land Co., 242 U. S. 503, 516-17. On the contrary, respondent was actively engaged in fulfilling the purpose of its creation, the liquidation of its holdings for the best obtainable price.
Article 43 (a) (5) is both a contemporary and a long standing administrative interpretation, having been in effect in substantially the same form since 1918, except for the period from 1926 to 1933 when the tax was not imposed.4 We are of opinion that it is valid, as well as applicable. The crucial words of the statute, “carrying on or doing business,” are not so easy of application to varying facts that they leave no room for administrative interpretation or elucidation. To be sure, in many, if not in most, instances the factual situation will be so extreme as to leave no doubt whether a corporation is doing business or not. But the nuances of facts between the two ex-
* Article 5 of Treasury Regulations 38 (1918 ed.), issued under the Revenue Act of 1916, c. 463, 39 Stat. 756, provided:
“ . . . A corporation formed to take over miscellaneous stocks, bonds, and other property, to negotiate the sale of the various items from time to time as opportunity and judgment dictate, and to distribute the proceeds from time to time as liquidation is effected, is organized for profit and while engaged in such liquidation is carrying on business.”
This provision, with minor changes in wording, was continued in Treasury Regulations 50 (1919 ed.), Art. 18; (1920 ed.), Art. 11; Treasury Regulations 64 (1922 ed.),Ajt. 12; (1924 ed.), Art. 12; (1933 ed.), Art. 22; (1934 ed.), Art. 33. In 1936 Treasury Regulations 64 were reorganized and the substance of the provision quoted above was continued as Art. 43 (a) (5) of the 1936 edition. No change was made in the 1938 edition.
74	OCTOBER TERM, 1941.
Syllabus.	316 U.S.
tremes have produced a nebulous field of confusion which has been recognized by courts striving to fit close cases into one category or the other.5 Interpretative regulations, such as Article 43 (a) (5), are appropriate aids toward eliminating that confusion and uncertainty. Cf. Helvering v. Wilshire Oil Co., 308 U. S. 90, 102; Textile Mills Securities Corp. v. Commissioner, 314 U. S. 326.
Reversed.
GREGG CARTAGE & STORAGE CO. et al. v. UNITED STATES et al.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.
No. 535. Argued March 4, 1942.—Decided April 13, 1942.
1.	The provision of § 206 (a) of the Motor Carrier Act, 1935, granting “grandfather” rights to common carriers “in bona fide operation on June 1, 1935, and since that time,” requires that the service shall have been continuous (except for interruptions over which the carrier “had no control”) from June 1, 1935, until the time of the hearing by the Commission on the application. P. 78.
2.	The Commission was warranted in holding as a matter of law that an interruption of service caused by the carrier’s bankruptcy was not one over which the carrier “had no control” within the meaning of the Act; and it was not required to go behind the adjudication and examine into the particular causes of the bankruptcy. P. 79.
BSee Eaton v. Phoenix Securities Co., 22 F. 2d 497, 498; United States v. Hotchkiss Redwood Co., 25 F. 2d 958; Harmar Coal Co. v. Heiner, 34 F. 2d 725, 727; Argonaut Consolidated Mining Co. v. Anderson, 52 F. 2d 55, 56; American Investment Securities Co. v. United States, 112 F. 2d 231, 232.
The decisions of this Court illustrate the difficult problems of classification encountered. See Cedar Street Co. v. Park Realty Co., 220 U. S. 107,170; Von Baumbach v. Sargent Land Co., 242 U. S. 503; Edwards v. Chile Copper Co., 270 U. S. 452; Phillips v. International Salt Co., 274 U. S. 718—with which compare Zonne v. Minneapolis Syndicate, 220 U. S. 187; McCoach v. Minehill Railway Co., 228 U. S. 295; United States v. Emery, Bird, Thayer Co., 237 U. S. 28.
GREGG CARTAGE CO. v. U. S. 75
74	Opinion of the Court.
3.	The grandfather clause of the Motor Carrier Act is to be construed as extending only to carriers plainly within its terms. P. 83.
4.	A purchaser of the grandfather rights of a bankrupt carrier stands in no better position with respect to such rights than did the bankrupt. P. 82.
5.	In this case, the interruption of service was of sufficient duration—• at least 69 days—to establish that the carrier had not been in operation “since” June 1, 1935, within the meaning of § 206 (a). P. 83.
6.	A claim that the delay of the Commission in acting upon an application under § 206 (a) deprived the applicant of an advantage which he would have had under § 212 (a)—where such delay is not shown to have been arbitrary or discriminatory, nor, in view of the magnitude of the Commission’s task in respect to applications under § 206 (a), unreasonable—is no ground for relief. P. 83.
42 F. Supp. 266, affirmed.
Appeal from a District Court of three judges dismissing the complaint in a suit to set aside an order of the Interstate Commerce Commission denying an application for a certificate of public convenience and necessity under § 206 (a) of the Motor Carrier Act, 1935.
Messrs. Howell Leuck and H. Russell Bishop, with whom Messrs. H. D. Driscoll and Bingham W. Zellmer were on the brief, for appellants.
Mr. James C. Wilson, with whom Solicitor General Fahy, Assistant Attorney General Arnold, and Messrs. Smith R. Brittingham, Jr., Daniel W. Knowlton, and E. M. Reidy were on the brief, for appellees.
Mr. Justice Jackson delivered the opinion of the Court.
This appeal is from a judgment of a statutory three-judge court denying appellants’ petition to set aside an order of the Interstate Commerce Commission refusing the Gregg Cartage & Storage Company a certificate of public convenience and necessity under the so-called grandfather clause of § 206 (a) of the Motor Carrier Act, 1935, 49 U. S.C. §306 (a).
76	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
The Gregg Company, an Ohio corporation, operated in 1935 and earlier as a common carrier of general freight between points in several northeastern states. In a number of important cities, it maintained terminals at which freight was assembled. It performed no over-the-road carrier service with its own vehicles, but provided such service entirely by the use of so-called owner-operator vehicles. Such vehicles as it owned and operated directly were used in cartage in and about Cleveland.
On February 12, 1936, the Gregg Company filed an application with the Interstate Commerce Commission for a certificate of public convenience and necessity as a common carrier under the grandfather clause of § 206 (a) of the Motor Carrier Act. A hearing was held on June 8 and 9, 1937, before an examiner who, on December 17, 1937, recommended that the certificate be granted.
Meanwhile, the Gregg Company had failed and ceased to operate. It had arranged the filing on October 4,1937, of a creditor’s bill in a state court of Ohio, which on the following day appointed the company’s counsel to be its receiver with authority to continue the business. On the day of this receiver’s appointment, other creditors filed a petition in bankruptcy in the United States District Court for the Northern District of Ohio, Eastern Division, which on October 27 adjudicated the company a bankrupt, and on October 30 appointed a receiver to preserve the assets of the estate pending the election and qualification of a trustee.1 In operating the business, the state court receiver confined himself to the completion of shipments en route, and did not solicit or accept new business. On October 14, he filed with the Commission a petition for permission to suspend operations without prejudice to rights under the grandfather clause. The *
’The trustee in bankruptcy, an appellant here, was appointed near the end of December, 1937.
GREGG CARTAGE CO. v. U. S. 77
74	Opinion of the Court.
Commission, of the opinion that it lacked power to authorize such a suspension, denied this petition on November 30, 1937. The receiver in bankruptcy took over the business on the day of his appointment, and conducted no operations at any time. Pursuant to an order of the bankruptcy court, on December 6, 1937, he sold the trade names and good will of the bankrupt estate, together with its rights under the grandfather clause application, to appellant Northeastern Transportation Company, for $850 at public auction.
On January 7, 1938, Northeastern and the receiver in bankruptcy filed a joint application with the Commission asking that Northeastern be substituted as applicant in lieu of Gregg. The Commission withheld action until it had determined Gregg’s rights. Northeastern considered a resumption of operations, but decided against it on the advice of field representatives of the Interstate Commerce Commission.
A further hearing before another examiner, confined to the circumstances of the interruption of Gregg’s service, resulted in another recommendation of the issuance of a certificate under the grandfather clause. The Commission, however, denied the application December 12, 1939, after a rehearing following the report of Division 5, a majority of which had held similarly on November 14, 1938. 10 M. C. C. 255, 21 M. C. C. 17. The Commission ruled that an interruption of service within the control of the applicant had occurred, that the purchase by Northeastern had conferred no operating rights, and that therefore neither corporation was entitled to a certificate under the grandfather clause. Five commissioners dissented. Gregg and its trustee in bankruptcy then filed a complaint in the United States District Court for the Northern District of Ohio, Eastern Division, praying that the order of the Commission denying Gregg’s application be annulled and set aside and that the Commission be directed
78	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
to issue a certificate of public convenience and necessity to Gregg. A statutory court of three judges was convened, Northeastern was allowed to intervene, and judgment went against the complainants, who appealed to this Court, which noted probable jurisdiction.2 42 F. Supp. 266.
Appellants contend that the Commission and the court below erroneously construed § 206 (a)3 of the Motor Carrier Act in holding that, excepting the specified interruptions of service, the statute required continuous operation from June 1,1935, until the hearing by the Commission on the application. We have, however, held to the contrary. United States v. Maher, 307 U. S. 148, petition for limited rehearing denied, 307 U. S. 649. Hoey n. United States, 308 U. S. 510; Lubetich v. United States, 315 U. S. 57.
Appellants contend alternatively that the Commission should be reversed for refusing to hold that the applicant “had no control” over the cessation of operations.
From October 15,1935 to December 31,1936, Gregg was insured against public liability and property damage by an insurance company, which in 1936 failed either to disprove or settle certain claims against Gregg and was rumored to be insolvent. For these reasons Gregg cancelled its contract with this company and obtained similar insurance with another company, paying the premiums in advance. The failing insurance company was adj udged a bankrupt in January of 1937, and ceased to pay any
* Urgent Deficiencies Act of October 22, 1913, 28 U. S. C. § 47a.
’This provides in pertinent part that: “if any such carrier or predecessor in interest was in bona fide operation as a common carrier by motor vehicle on June 1, 1935, over the route or routes or within the territory for which application is made and has so operated since that time, .. . except... as to interruptions of service over which the applicant or its predecessor in interest had no control, the Commission shall issue such certificate without requiring further proof that public convenience and necessity will be served by such operation.” 49 U. ,S. C., §306 (a).	'
GREGG CARTAGE CO. v. U. S. 79
74	Opinion of the Court.
claims. Gregg, thereby left with the burden of satisfying claims for personal injury and property damage arising during the period when it had carried insurance in the bankrupt company, paid some of them in the later months of 1937; but approximately 175, estimated to aggregate in their face amount about $200,000, remained unpaid. It also paid about $15,000 on claims for cargo loss and damage, which two other insurers, relying upon “technical” insurers’ defenses, refused to pay. All policies of insurance taken out by Gregg had the required approval of the Interstate Commerce Commission.
Solvent on June 30, 1937, Gregg had become insolvent by October 30, 1937. When it appeared impossible to satisfy all demands in full, resort was had to the friendly receivership in the state court. This precipitated the involuntary bankruptcy in the federal court, which in turn brought operations to a halt.
The Commission based its refusal to find that the applicant “had no control” over the interruption of service upon the fact that such interruption followed upon an adjudication of bankruptcy resulting from the unsuccessful conduct of its business affairs, and did not go back of the adjudication to find and give detailed consideration to the particular causes of the failure. Appellants contend that this was error, and for a rule requiring that in every case of this sort the Commission must trace out the chain of causation and weigh the bankrupt’s judgment against the pressures of circumstance. We sustain the Commission in construing the statute as not requiring it to go back of the bankruptcy adjudication to search for ultimate causes.
How far one by an exercise of free will may determine his general destiny or his course in a particular matter and how far he is the toy of circumstance has been debated through the ages by theologians, philosophers, and scientists. Whatever doubts they have entertained as to thé
80	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
matter, the practical business of government and administration of the law is obliged to proceed on more or less rough and ready judgments based on the assumption that mature and rational persons are in control of their own conduct. Certainly that assumption must be made in reference to a corporation such as the applicant. Society, in creating a corporation, vesting its management in a board of directors, granting it large powers and not inconsiderable immunities, can hardly allow that its business affairs are at any time out of the control of those whose duty it is to conduct them. The Bankruptcy Act states that even an involuntary adjudication results only from some “act of bankruptcy,” defined upon the clear assumption that it is within the bankrupt’s control.4 Whether or not this assumption squares with philosophical doctrine, or even with reality,5 * * 8 is not for our determination. The Commission, and the courts too, must get on with the application of the federal statutes without waiting to settle the verity of the philosophical assumptions on which they rest.
The Commission was warranted in holding as matter of law that the interruption because of bankruptcy was not one over which the applicant had no control within the meaning of the Motor Carrier Act. The complexity of the chain of causation shown in this case makes it an apt illustration of the impracticability of any other rule.
4The following are defined as acts of bankruptcy: (1) fraudulent
conveyances or concealments of property, (2) transfers while insolvent, (3) permitting, while insolvent, a creditor’s lien to attach to
property through legal proceedings, (4) assignments for the benefit of creditors, (5) permitting or procuring, while insolvent in either the bankruptcy or equity sense, a receiver to be appointed to take
charge of the bankrupt’s property, (6) admissions in writing of inability to pay debts and of willingness to be adjudged a bankrupt. § 3a of the Act of July 1, 1898, as amended, 11 U. S. C. § 21 (a).
8Treiman, Acts of Bankruptcy: A Medieval Concept in Modem Bankruptcy Law, 52 Harvard Law Review 189.
GREGG CARTAGE CO. v. U. S. 81
74	Opinion of the Court.
When it found itself unable to meet its obligations, Gregg arranged a receivership in the state court, securing the appointment of its own counsel as receiver. Only the one creditor which filed the bill appears to have been consulted. Thus, the petitioner not only arranged deliberately to commit an act of bankruptcy, but it managed the affair in a manner not unlikely to provoke the unconsulted creditors to file a petition in bankruptcy—presumably considered their best or only means of obtaining the disinterestedness in the administration of the estate to which they were entitled.
The claims which, together with the advance payment of premiums for new insurance, constituted the immediate cause of Gregg’s financial difficulties, were, as we have said, of various sorts. Bulking largest were those for personal injuries and property damage, which numbered approximately 175 and in their face amount aggregated approximately $200,000. Their precise nature is not disclosed by the record, and conjecture in this regard is made particularly difficult by Gregg’s method of doing business—which was to avail itself entirely of “owneroperator” vehicles for its “over-the-road” services. Doubtless these claims were founded almost entirely upon the negligent operation of vehicles for which Gregg was in some way held legally responsible. We are not informed whether such responsibility rested upon the principle of respondeat superior, express contractual assumption, or both. The rest of the claims, upon which about $15,000 were paid, were for cargo loss and damage. The record does not show whether payment was made solely to retain the good will of shippers, or also to satisfy the applicant’s legal liability—which would have rested upon its legal control of the cargo.
It is true that Gregg would not have had to bear the burden of most, if not all, of the claims, had it not been for
461263°—43-6
82	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
some unfortunate experiences with insurance companies. Its major misfortune was the failure of the company in which it carried its insurance against liability for personal injury and property damage. What consideration actuated the choice of the particular insurance company, and what caution, if any, was observed in selecting it, do not appear. It either misunderstood the coverage of its other policies or purchased policies not specifically comprehensive, and found itself taking care of very substantial claims for cargo loss because of “technical” insurers’ defenses which seem to have been sufficient under the Ohio law.
In any event, the choices of insurers, as well of its servants and operators, were Gregg’s own—as was the judgment which was exercised with regard to the numerous other phases of its business bearing upon its solvency— and the final product could not have been a matter over which it had no control.
Furthermore, the interruption of service was the deliberate act of those who for the time being stood in the position of applicant and owned its rights. During the interval between receivership and sale of these rights to Northeastern, we take it that the beneficial interest therein vested in the creditors and the legal title in the receiver or trustee. The federal receiver or trustee could have been authorized to conduct the business of the bankrupt for a limited period, if in the best interests of the estate. § 2 of the Act of July 1, 1898, as amended, 11 U. S. C. § 11. The creditors and their representatives, however, failed to seek such authority, evidently regarding the rights, which later sold for $850, not worth the expense and risk of continuing business. It is the purchaser Northeastern, organized to acquire the “grandfather” rights, and to an undetermined extent identified with the management of the bankrupt,” which, having bought these rights in this
"The Commission found that Northeastern was incorporated to take over the bankrupt’s rights and business, that the former president
GREGG CARTAGE CO. v. U. S. 83
74	Opinion of the Court.
state of voluntarily suspended animation, seeks to revive them. But it cannot say that it takes the rights free of any impairment by the voluntary suspension of operation by the then owner from whom it derives title.
The applicant for a certificate under the grandfather clause seeks to exempt his further operations from scrutiny as to public convenience and necessity. If he is able to meet those tests, he may be authorized to operate, even if he never had grandfather rights, or if those he once had have been lost. As the Motor Carrier Act is remedial, and the grandfather clause confers a special privilege, the proviso defining exemptions is to be held to extend only to carriers plainly within its terms. McDonald v. Thompson, 305 U. S. 263, 266.
In its opinion the Commission stated that “it is useless to speculate upon the question whether the ‘grandfather’ right expired before or after the sale.” This we understand to mean that, having determined that the cessation of operations was not a matter over which Gregg “had no control,” the Commission was of opinion that by the time of the sale the cessation of operations was of sufficient duration—at least 69 days—to establish that Gregg had not been “in ... operation since” June 1, 1935, within the meaning of § 206 (a). This was a reasonable conclusion, especially since any substantial interruption of one carrier’s service tends to result in expansion of other facilities to meet the continuing needs of shippers, and thus to cause overcrowding if the suspended service is resumed.
Finally, appellants claim to be entitled to relief from prejudice said to have resulted from delay of the Commission in acting on Gregg’s application made under § 206
of Gregg is the new company’s general freight agent, and the former superintendent of transportation is a stockholder of the new company; and that “other connections, if any, between the companies through their respective officials and employees cannot be determined from the records.”
84	OCTOBER TERM, 1941.
Douglas, J., dissenting.	316U.S.
(a) on February 12, 1936. They point out that, had the Commission acted at once, a certificate would have issued, thus conferring the benefits of § 212 (a).T But by its terms § 212 (a) is applicable only where a certificate has already issued; and, being a section of general applicability, at least for present purposes, it has no analogical bearing upon the construction of the specific provision relating to interruptions of service made in § 206 (a). The delay in passing upon the application was considerable and regrettable, as the Commission acknowledged, but it does not seem to have been arbitrary or the result of any deliberate discrimination, nor, in view of the magnitude of the Commission’s task, unreasonable. The Commission had nearly 90,000 applications to pass upon under § 206 (a), and of course could not have been expected to pass upon them simultaneously. It is not within our province to remedy inequalities necessarily incident to the administration of the statute.
Affirmed.
Mr. Justice Douglas, dissenting:
I cannot believe that experts of the subject—say, referees charged with the duties of administering the bankruptcy law—would conclude that every bankruptcy arose without exception from conditions which were with-
7This reads in part as follows: “That no such certificate, permit, or license shall be revoked (except upon application of the holder) unless the holder thereof willfully fails to comply, within a reasonable time, not less than thirty days, to be fixed by the Commission, with a lawful order of the Commission, made as provided in section 204 (d), commanding obedience to the provision of this part, or to the rule or regulation of the Commission thereunder, or to the term, condition, or limitation of such certificate, permit, or license, found by the Commission to have been violated by such holder.” 49 U. S. C. § 312 (a).
Originally the period was 90 days. By an amendment of June 29, 1938, 52 Stat. 1239, it was reduced to the present 30 days.
GREGG CARTAGE CO. v. U. S. 85
74	Douglas, J., dissenting.
in the “control” of the bankrupt in any accepted meaning of the word. Nor do I think that that view would be taken in case of receiverships. Yet that is the irrebuttable presumption which the Commission has created in this type of case. Congress did not create it. Congress merely provided that this class of carrier had a right to the statutory grant on a showing, inter alia, that it was in “bona fide operation as a common carrier by motor vehicle on June 1, 1935” and “has so operated since that time” except as to “interruptions of service over which the applicant or its predecessor in interest had no control.” Motor Carrier Act of 1935, § 206 (a); 49 U. S. C. §306 (a). I would have supposed that the question of “control” was “an issue of fact to be determined by the special circumstances of each case.” Rochester Telephone Corp. v. United States, 307 U. S. 125, 145. That would mean that “So long as there is warrant in the record for the judgment of the expert body it must stand.” Id. pp. 145-146. But that is quite different from giving the word “control” a construction which prevents a person from showing under any circumstances that the events which led to his business disaster were not subject to his “control.” On the one hand, the Commission rules that interruptions of service owing to floods,1 snow,1 2 unsafe3 or impassable4 roads, highway construction,5 6 droughts which destroy a carrier’s chief source of business,16 ill health,7 strikes,8 or the illegal action of govern-
1 Waltz Transportation, Inc., 10 M. C. C. 30, 33.
* Lewis McKay, 4 M. C. C. 93, 94.
8 Edwards Motor Transit Co., Inc., 2 M. C. C. 73, 74.
4 Inter-Carolinas Motor Bus Co., 21 M. C. C. 633, 635; Walter
Stages, Inc., 24 M. C. C. 451, 454.
6 Magee Truck Lines, Inc., 28 M. C. C. 386, 389.
‘Barnes Truck Co., Inc., 24 M. C. C. 465, 467.
’H. Bruce Blackburn, 20 M. C. C. 747, 748-749.
‘Motor Freight Express, 26 M. C. C. 374, 375; Transamerican Freight Lines, Inc., 28 M. C. C. 493, 502.
86	OCTOBER TERM, 1941.
Douglas, J., dissenting.	316U.S.
mental authorities8 constitute grounds for holding that an interruption of service is beyond an applicant’s “control.” But similar misfortunes of a purely accidental character which affect financial stability and end in bankruptcy or receivership are held as a matter of law to be subject to the carrier’s “control.”
The distortion which that interpretation involves is well illustrated by this case. There was evidence tending to show the following: During the year 1936 the applicant was insured against public liability and property damage by the Central Mutual Insurance Co. Hearing rumors that Central Mutual was in financial difficulties and was not paying claims, applicant dropped its policy in December 1936 and placed its insurance with another company. On January 11, 1937, Central Mutual was adjudged a bankrupt and ceased payment of all claims. In the fall of 1937, applicant was forced to pay several substantial damage claims arising from accidents during the period when its insurance policy was in effect with Central Mutual. These payments seriously impaired its working capital. Furthermore, applicant was confronted with approximately 175 additional claims for personal injury and property damage. These were estimated at about $200,000 and arose during the period when applicant was insured by Central Mutual. Applicant settled some of these claims. It was impossible, however, to satisfy the demands of all of these claimants. Receivership followed and on its heels came bankruptcy. There is not the slightest evidence in this record of any negligence, dereliction, or mismanagement on the part of applicant. It is undisputed that its failure was due to the failure of its insurer. And there is no evidence in this record that it did not exercise due care in the selection of that insurer. It would indeed be ironical to cast a
9 W. H. Tompkins Co., 29 M. C. C. 359, 362.
GREGG CARTAGE CO. v. U. S. 87
74	Douglas, J., dissenting.
presumption against the applicant on that score when the insurance policy presumably was accepted by the Commission, and under its regulations promulgated pursuant to §§ 211 (c) and 215 of the Act (49 U. S. C. §§ 311 (c) and 315) had to be “approved” by it.10 Federal Register (1936) Vol. 1, p. 1163, Rule 1. And see 49 Code of Federal Regulations, Pt. 174, § 174.1.
An applicant carries the burden of establishing his right to the statutory grant which is contained in the “grandfather” clause. Alton R. Co. v. United States, 315 U. S. 15. But he should not be met at the threshold with a conclusive presumption against him, unless Congress has clearly indicated that in the circumstances of his case he has no right even to undertake the burden of proof. If Congress had desired to eliminate all applicants whose continuous service was interrupted by bankruptcy or receivership, I believe it would have said so. As stated by Commissioner Lee in his dissenting opinion (10 M. C. C. p. 263): “If such interruptions in service are to be construed as putting an end to ‘grandfather’ rights of carriers, whose applications therefor have not been determined, then, where such a carrier goes into receivership or bankruptcy, and such an interruption occurs, it would be impossible for the carrier to come out of receivership and resume operations; it could not effect a composition or an arrangement with its creditors and resume operations; if a corporation, it could not be reorganized under the corporate reorganization provisions of the Bankruptcy Act, and creditors could realize nothing from ‘grandfather’ rights, however valuable.” Such a wholesale destruction of operating rights should not be readily or lightly inferred. Operating rights are the very life of any business. Without them this business certainly has no more than scrap value.
10 And see Federal Register, op. cit., Rule IX; 49 Code of Federal Regulations, Pt. 174, § 174.9.
88	OCTOBER TERM, 1941.
Douglas, J., dissenting.	316 U. S.
Great deference is owed a commission’s interpretation of the law which it enforces, especially where the meaning of the statutory language, generally or in specific application, gains body and flavor from the content of the highly specialized field in which the expert body works. See Shields v. Utah Idaho Central R. Co., 305 U. S. 177; Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381; Gray v. Powell, 314 U. S. 402; Alton R. Co. v. United States, supra. But that is quite different from acceding to the suggestion that the non-technical word “control” may be interpreted in a way which goes against all human experience and which does violence to its ordinary and accepted meaning. In this connection it should be noted that, if the misfortune which ended in bankruptcy or receivership was not subject to the carrier’s “control,” then an interruption of service made by the trustee or receiver cannot be attributed to him. Once the court acquires jurisdiction over the estate, the affairs of the business are in its hands, not the debtor’s.
Congress has provided that those who attained a position in the competitive transportation system should be allowed to retain the fruits of their struggle. Whether that policy was wise or unwise is not for us to appraise. But we should not permit those statutory grants to be whittled away on the basis of technical and legalistic grounds which find no expression in the statute, however much the administrative chore may be alleviated. If the services of a carrier have been interrupted by bankruptcy or receivership, his burden of proving that that default was not subject to his “control” may be onerous. Perhaps in most cases he could not maintain it. But he should be given the opportunity to do so. It is hard for me to imagine a clearer case where he probably could succeed than this one. Yet before we passed on that issue, as the opinion of the Court undertakes to do, we should remand the case to the Commission. For it made
PRUDENCE CORP. v. GEIST. 89
74	Statement of the Case.
no findings on that issue but invoked an irrebuttable presumption which would automatically foreclose in all cases an opportunity to be heard on the real cause of the bankruptcy or receivership.
Mr. Justice Black and Mr. Justice Byrnes join in this dissent.
PRUDENCE REALIZATION CORP. v. GEIST, TRUSTEE.
certiorari to the circuit court of appeals for the
SECOND CIRCUIT.
No. 757. Argued April 1, 1942.—Decided April 27, 1942.
1.	Under §§ 77B (f) (1) and 65 (a) of the Bankruptcy Act, and the equitable principles governing bankruptcy proceedings, an insolvent defaulting guarantor of certificates of participation in a mortgage, who is also the owner of a part of the mortgage indebtedness, is entitled to share pro rata in the distribution of the proceeds of the mortgage, in a § 77B reorganization. P. 93.
2.	A rule asserted to have been established by decisions of the New York Court of Appeals, to the effect that one who guarantees payment of certificates representing undivided interests in a mortgage, which are sold to investors, thereby impliedly agrees that any claim of his own in the mortgage indebtedness shall be subordinated to those of other certificate holders, is to be taken as a rule of state law governing relative rights of claimants in a state liquidation, but is inapplicable in federal bankruptcy proceedings. P. 93.
Nothing decided in Erie R. Co. v. Tompkins, 304 U. S. 64, requires a court of bankruptcy to apply such a local rule governing the liquidation of insolvent estates. The Bankrutcy Act prescribes its own criteria for distribution to creditors. P. 95.
122 F. 2d 503, reversed.
Certiorari, 314 U. S. 606, to review the affirmance of an order of the District Court directing that the petitioner should not share in the proceeds of the mortgage until other owners of undivided interests in the mortgage indebtedness were paid in full.
90	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Mr. Irving L. Schanzer for petitioner.
Mr. Morris A. Marks, with whom Mr. A. Joseph Geist was on the brief, for respondent.
Mr. Chief Justice Stone delivered the opinion of the Court.
The question for our decision is whether an insolvent defaulting guarantor of certificates of participation in a mortgage, who is also the owner of a part of the mortgage indebtedness, is entitled to share pro rata in a distribution of the proceeds of the mortgage in a § 77B bankruptcy reorganization.
Prudence Company, petitioner’s predecessor, and a wholly owned subsidiary of New York Investors, Inc., loaned to Zo-Gale Realty Company $480,000 on its bond secured by a first mortgage on real estate. In 1925, Prudence Company put into execution a plan for selling participation certificates in the mortgage. It assigned the bond and mortgage without consideration to Prudence Bonds Corporation, also a wholly owned subsidiary of New York Investors, Inc. Prudence Bonds in turn lodged the bond and mortgage with a trust company depositary. Prudence Company then executed a guaranty of payment of the bond and mortgage, whereupon Prudence Bonds issued certificates of participation authenticated by the trust company, and totaling $382,800. It delivered them, without payment of any consideration, to the Prudence Company which then sold them to investors. The guaranty of Prudence Company, which was referred to in the participation certificates, was of payment of the bond interest when due and of the principal when due or within eighteen months thereafter.
Each certificate declares that the purchaser is entitled to an undivided share in the mortgage of a specified amount equal to the sum paid for it by the original pur-
PRUDENCE CORP. v. GEIST. 91
89	Opinion of the Court.
chaser. Each provides that the share in the bond and mortgage represented by it is not subordinate to any other shares or subject to any prior interest, and each reserves to Prudence Bonds the right “to be the holder or pledgee of similar shares” in the bond and mortgage. The mortgage indebtedness was later reduced to $390,000, leaving an undivided share of $7,200 of which Prudence Company was the equitable owner, for which no participation certificate had been issued.
In 1938, an order of the bankruptcy court, in which Prudence Company and Prudence Bonds were then being reorganized, directed a transfer to Prudence Company of the $7,200 interest, as part of a settlement and adjustment of mutual claims between the two companies, and Prudence Company has continued to be the owner of this share of the mortgage indebtedness. It has also acquired, by purchase from certificate holders, $816.67 in certificates of participation in the mortgage.
On foreclosure of a second mortgage on the Zo-Gale property, Amalgamated Properties, Inc., a wholly owned subsidiary of Prudence Company, acquired title to the property from the mortgagor, and later went into a bankruptcy reorganization. Upon approval by the court of a plan of reorganization of the Zo-Gale certificate issue, the title to the mortgaged property was transferred to respondent Geist, as trustee for the benefit of the certificate holders. In confirming the plan for reorganization of Amalgamated, the court reserved for future decision the question whether the Prudence Company was entitled to payment of its two claims in the mortgage pro rata with the other certificate holders.
As provided by the reorganization plan of Prudence Company, petitioner Prudence Realization Corporation was organized to take over the assets from the trustees of Prudence Company and to liquidate them for the benefit of creditors under the direction of the bankruptcy
02	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
court. Petitioner has thus acquired certificates issued in the Amalgamated reorganization proceeding, representing the interest of Prudence Company in the Zo-Gale bond and mortgage. The claims against Prudence Company recognized by its plan of reorganization amounted to $133,723,000, including its guaranties of mortgages amounting to $12,523,000; guaranties of bonds issued by Prudence Bonds for $58,833,000; and guaranties of mortgage participation certificates issued by Prudence Bonds (including the Zo-Gale mortgage certificates) for $50,858,000.
The present proceeding was begun by respondent’s petition in the consolidated reorganization of Prudence Company and Amalgamated Properties in the Eastern District of New York for an order directing that petitioner was not entitled to any distribution on account of the Prudence Company’s interest in the Zo-Gale mortgage until the other certificate holders were paid in full. The district court granted the order, which the Circuit Court of Appeals for the Second Circuit affirmed. 122 F. 2d 503. Both courts applied the rule of the New York Court of Appeals, see Matter of Title & Mortgage Guaranty Co-, 275 N. Y. 347, 9 N. E. 2d 957; Pink v. Thomas, 282 N. Y. 10,24 N. E. 2d 724; Matter of People (Union Guarantee & Mortgage Co.), 285 N. Y. 337, 34 N. E. 2d 345, that a guarantor of mortgage certificates, who also has an interest in the mortgage, cannot share in the proceeds of its collection until the certificate holders are paid, unless there is a clear reservation in the certificate of the right of the guarantor to share on a parity with other certificate holders. The Circuit Court of Appeals by a divided court held that it was bound to apply the rule announced in the New York cases cited, which it deemed to be a rule of construction of the guaranty of the certificates. We granted certiorari, 314 U. S. 606, because of the importance in bankruptcy administration of the questions raised.
PRUDENCE CORP. v. GEIST. 93
89	Opinion of the Court.
The court below recognized the implication of the requirement that a plan of reorganization under former § 77B (f) (1) of the Bankruptcy Act (see 11 U. S. C. § 621 (2)) be one which “is fair and equitable and does not discriminate unfairly in the case of any class of creditors,” see Southern Pacific Co. v. Bogert, 250 U. S. 483, 492; Case v. Los Angeles Lumber Co., 308 U. S. 106, and that § 65 (a) requires that in liquidations a distribution of “dividends of an equal per centum” shall be made “on all allowed claims, except such as have priority or are secured,” see Globe Bank & Trust Co. v. Martin, 236 U. S. 288, 305; Moore V. Bay, 284 U. S. 4. It recognized also that the equity powers of the bankruptcy court may be. exerted to subordinate the claims of one claimant to those of others of the same class where his conduct in acquiring or asserting his claim is contrary to established equitable principles. See Taylor v. Standard Gas Co., 306 U. S. 307; Pepper v. Litton, 308 U. S. 295; In re Bowman Hardware & Electric Co., 67 F. 2d 792.
But the court found it unnecessary to choose between such competing considerations, and rested its decision on the ground that Prudence Company’s guaranty of the certificates was under state law to be interpreted as impliedly agreeing that any claim of its own to the mortgage indebtedness was to be subordinated* to those of other certificate holders. After referring to cases in which the New York Court of Appeals had directed such a subordination, the court said (122 F. 2d 505):
“An important issue herein is whether this is primarily a rule of construction of the guaranty in the certificates or is a rule of administration of insolvent estates which violates bankruptcy principles of equal distribution of a bankrupt estate among creditors. If it is a rule of construction we would follow it . . .,” citing Erie R. Co. v. Tompkins, 304 U. S. 64. “And if we thus found the guarantee to amount to an actual agreement between two creditors that
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Opinion of the Court.	316 U. 8.
the claim of one against the debtor should be subordinated to that of the other, we should give that effect to it . . .”
The only evidence of the actual intent of the parties to which the court referred was the fact that Prudence Company, unlike Prudence Bonds, had not reserved the right in the certificates to be the holder of “similar shares” in the bond and mortgage. But there is no contention that in the absence of such a provision in the certificates, Prudence Company was not free to acquire certificates or hold an interest in the guaranteed mortgage in its own right. Consequently, its ownership of the $816.67 in certificates and $7,200 of the uncertificated indebtedness evidences no actual intention to subordinate those interests in a liquidation. And neither the terms of the guaranty nor of the certificates give any indication of such an intent of the parties.
The court arrived at its conclusion that the Prudence Company had agreed to subordinate its claims, not from an examination of the relevant documents read in the light of the surrounding circumstances, except as we have noted, but from its reading and application of the opinions of the New York Court of Appeals. These recognize that the guarantor of a mortgage, who is also a part owner of it, is free to stipulate that he may share in a liquidation on an equal footing with, other owners of the mortgage despite his default on his guaranty, and that effect will be given to such a stipulation. See Matter of Title & Mortgage Guaranty Co., supra, 352; Pink v. Thomas, supra, 12; Matter of People (Union Guarantee & Mortgage Co.), supra, 343. On the other hand, some of them have found visible evidence, in the terms of the certificates, of an actual intention of the parties to subordinate the guarantor’s interest. To that extent they are inapplicable to the certificates in this case, which afford no such evidence. See Matter of Title & Mortgage Guaranty Co., supra, 355; Matter of People (Union Guarantee & Mortgage Co.), supra, 345.
PRUDENCE CORP. v. GEIST. 95
89	Opinion of the Court.
But so far as the New York cases, without evidence of the actual intent of the parties, subordinate the guarantor on grounds of “presumed intention,” or “the existence of special equities,” or the “natural equities” involved, Title Guarantee & Trust Co. v. Mortgage Commission, 273 N. Y. 415, 426, 7 N. E. 2d 841; Matter of Title <& Mortgage Guaranty Co., supra, 355; Pink v. Thomas, supra, 12; Matter of People (Union Guarantee & Mortgage Co.), supra, 343; Matter of Lawyers’ Title & Guaranty Co., 287 N. Y. 264, 272, 39 N. E. 2d 233, we are unable to say that the rule laid down is other than one of state law governing the relative rights of claimants in a state liquidation. Nothing decided in Erie R. Co. v. Tompkins, 304 U. S. 64, requires a court of bankruptcy to apply such a local rule governing the liquidation of insolvent estates. The bankruptcy act prescribes its own criteria for distribution to creditors. In the interpretation and application of federal statutes, federal not local law applies. See Awotin v. Atlas Exchange Bank, 295 U. S. 209; Chesapeake & Ohio Ry. v. Martin, 283 U. S. 209, 212-213; Board of Comm’rs v. United States, 308 U. S. 343, 349-350; Deitrick v. Greaney, 309 U. S. 190, 200; Royal Indemnity Co. v. United States, 313 U. S. 289, 296. The court of bankruptcy is a court of equity to which the judicial administration of the bankrupt’s estate is committed, Securities & Exchange Commission v. U. S. Realty Co., 310 U. S. 434, 455-457, and it is for that court—not without appropriate regard for rights acquired under rules of state law—to define and apply federal law in determining the extent to which the inequitable conduct of a claimant in acquiring or asserting his claim in bankruptcy requires its subordination to other claims which, in other respects, are of the same class. Cf Taylor v. Standard Gas Co., supra; Pepper v. Litton, supra.
But the question remains whether there is any equity arising from the Prudence Company’s failure to perform
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its contract of guaranty which a bankruptcy court should recognize as requiring the subordination of the company’s interest in the mortgage to the claims of the other mortgage creditors. It is a familiar equity rule, applied by the federal courts in liquidation proceedings under federal statutes, that a solvent guarantor or surety of an insolvent’s obligation will not be permitted, either by taking indemnity from his principal or by virtue of his right of subrogation, to compete with other creditors payment of ■whose claims he has undertaken to assure, until they are paid in full. If the surety were allowed to prove his own claim before the creditor is paid, he would to that extent diminish the creditor’s dividends upon his claim, and thus defeat the purpose for which he had given the indemnity. United States v. National Surety Co., 254 U. S. 73, 76; Jenkins v. National Surety Co., 277 IT. S. 258; American Surety Co. v. Electric Co., 296 IT. S. 133; Peoples v. Peoples Bros., 254 F. 489; U. S. Fidelity Guaranty Co. v. Union Bank <& Trust Co., 228 F. 448, 455. For like reasons equity requires the surety who holds security of the insolvent principal to give the benefit of it to the creditor for whom he is surety until the debt is paid. Keller v. Ashford, 133 IT. S. 610; see Chamberlain v. St. Paul & Sioux City R. Co., 92 U. S. 299, 306; Hampton v. Phipps, 108 U. S. 260, 263 ; 4 Pomeroy, Equity Jurisprudence (5th ed.) § 1419.
But we think the equitable basis for requiring the surety or guarantor to postpone the assertion of rights which he derives from or are incidental to his suretyship, to the rights of creditors whom he has undertaken to secure, is wanting here. The rights asserted by Prudence Company in the mortgage are not those of a subrogee; they were acquired independently of its guaranty. They are not derived from or an incident to it. Their assertion is in no way inconsistent with any duty or obligation it assumed by its contract of guaranty. By that
PRUDENCE CORP. v. GEIST. 97
89	Opinion of the Court.
contract the guarantor pledged only its personal obligation for the payment of the certificates. It gave to the certificate holders no lien upon, or other priority right in, its interest in the mortgage more than to its other assets.
Postponement of its rights in the mortgage to those of the other certificate holders is not justifiable as operating to avoid circuity of action. The Prudence Company is not solvent. Its property is being liquidated in bankruptcy, where all the claimants on its present and other guaranty obligations are entitled to share equally in its unpledged assets. Denial of the right to prove its claim, which is an asset in which all of Prudence’s creditors are otherwise entitled to share, will serve only to divert this asset from all creditors to one class of creditors, the Zo-Gale certificate holders, and thus give to them the exclusive benefit of a security for which they have not bargained. Allowance of the Prudence Company’s claim does not involve any breach of its duty as guarantor. Nor does it deprive certificate holders of their right to share in this asset pari passu with the other creditors, or of any right, legal or equitable, to which they are entitled by virtue of their position as guaranteed creditors. See Hampton v. Phipps, supra; Prairie State Bank v. United States, 164 U. S. 227; Henning sen v. U. S. Fidelity <& Guaranty Co., 208 U. S. 404.
Since the New York rule, in the absence of an actual agreement to subordinate the guarantor, is merely a general rule of law governing insolvency proceedings, it is not controlling in bankruptcy. And since in the circumstances of the present case we find no agreement and no equitable basis for depriving the Prudence Company and its creditors of the benefits of the usual bankruptcy rule of equality, the judgment below must be
Reversed.
461263°—43-7
98	OCTOBER TERM, 1941.
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GORMAN, CITY TREASURER OF KANSAS CITY, et al. v. WASHINGTON UNIVERSITY.
CERTIORARI TO THE SUPREME COURT OF MISSOURI.
No. 711. Argued April 2, 1942.—Decided April 27, 1942.
1.	This Court is without jurisdiction to review a decision by a state court which is not the highest court of the State in which a decision could be had. Jud. Code § 237 (b). P. 99.
2.	Under the constitution of Missouri and the Rules of the State Supreme Court, a judgment of a division of that court in a case involving a federal question is susceptible of review by the full court sitting en banc. P. 99.
This Court is without jurisdiction to review such a judgment unless the petitioner has first applied for review of the judgment by the full court sitting en banc.
3.	Upon application to this Court for review of the judgment of a state court it is the petitioner’s burden to show affirmatively that this Court has jurisdiction. P. 101.
348 Mo. 310, 153 S. W. 2d 35, writ dismissed.
Certiorari, 314 U. S. 604, to review a judgment which affirmed a judgment enjoining the collection of a tax.
Mr. William E. Kemp, with whom Mr. Elmo B. Hunter was on the brief, for petitioners.
Mr. George Wharton Pepper, with whom Messrs. Robert B. Caldwell, Richard 8. Bull, and James A. Montgomery, Jr. were on the brief, for respondent.
Mr. Chief Justice Stone delivered the opinion of the Court.
Respondent brought this suit in the Circuit Court of Jackson County, Missouri, to restrain the assessment and collection of a tax upon its real estate. The validity of the provisions of the state constitution and statutes under which the tax was laid was assailed on the ground that
GORMAN v. WASHINGTON UNIV. 99
98	Opinion of the Court.
they violate the tax-exemption provision of respondent’s charter and therefore conflict with the contract clause of the Constitution, Article I, § 10. The Supreme Court of Missouri affirmed the judgment of the trial court enjoining collection of the tax. 348' Mo. 310, 153 S. W. 2d 35. Both courts held that the Missouri constitution and statutes as applied violate respondent’s charter provisions for tax exemption, and infringe the contract clause of the Constitution. Cf. Washington University v. Rouse, 8 Wall. 439; Washington University v. Baumann, 341 Mo. 708, 108 S. W. 2d 403. We granted a writ of certiorari, 314 U. S. 604, to review the constitutional question decided by the state court.
Upon examination of the record it appears that the decision and judgment brought here for review were rendered by Division One of the Supreme Court of Missouri, which consists of four of the seven judges of the court. It does not appear that the judgment thus rendered has been reviewed by the Supreme Court sitting en banc, or that petitioners have made application, as they could have done under § 4 of the 1890 amendments to Article VI of the state constitution, to transfer the cause to the full court for review. The question thus arises whether we have jurisdiction under § 237 (b) of the Judicial Code, which restricts our authority to review decisions of state courts to those causes wherein a judgment has been rendered “by the highest court of a state in which a decision could be had.”
Section 1 of the 1890 amendments to Article VI of the Missouri constitution provides that the Supreme Court shall consist of seven judges and “shall be divided into two divisions,” one of four and the other of three judges. It directs that a division shall sit separately for the hearing and disposition of causes, and shall have concurrent jurisdiction of all matters and causes in the Supreme Court, except that Division Two shall have exclusive cog
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Opinion of the Court.	316 U. S.
nizance of criminal causes, and that the “judgments and decrees of either division, as to causes and matters pending before it, shall have the force and effect of those of the court.”
But § 1 also contains a proviso that a cause pending in a division may be transferred to the court as provided in § 4. Section 4 reads as follows:
“When the judges of a division are equally divided in opinion in a cause, or when a judge of a division dissents from the opinion therein, or when a federal question is involved, the cause, on the application of the losing party, shall be transferred to the court for its decision; . . .” And Rule 24 of the Rules of the Supreme Court of Missouri authorizes the transfer by motion of a cause pursuant to the provisions of the constitution, “from either division to Court En Banc” “after final disposition of the cause by the division.”
Under these provisions, Division One of the Supreme Court of Missouri, sitting in the present cause, in which “a federal question is involved,” was not the last state court in which a decision of that question could be had. Such a case is one which “after final disposition of the cause by the division” could on petitioners’ application be transferred to the full court for review, and the decision and judgment rendered by Division One could be set aside by the court sitting en banc. Since the constitution of Missouri has thus provided in this class of cases for review of the judgment of a division, the judgment here of Division One is not that of the “highest court of the state in which a decision could be had” within the meaning of § 237 (b) of the Judicial Code.
It was the purpose of the Judiciary Act of February 13, 1925, as well as that of all its predecessors, that no decision of a state court should be brought here for review either by appeal or certiorari until the possibilities afforded by state procedure for its review by all state tribunals have
WALEY v. JOHNSTON.	101
98	Syllabus.
been exhausted. Fisher v. Perkins, 122 U. S. 522; McComb v. Commissioners, 91U. S. 1,2; McMaster v. Gould, 276 U. S. 284; Southern Electric Co. v. Stoddard, 269 U. S. 186; Stratton v. Stratton, 239 U. S. 55; Mullen v. Western Union Beef Co., 173 U. S. 116; Great Western Telegraph Co. v. Burnham, 162 U. S. 339. Hence it is the last state tribunal—here the court en banc—to which the cause could be brought for review which is the “highest court of a state in which a decision could be had” within the meaning of the jurisdictional statute, regardless of the particular description or designation which may be applied to it by state statutes.
Upon application to this Court for review of the judgment of a state court, it is the petitioner’s burden to show affirmatively that we have jurisdiction. Memphis Natural Gas Co. v. Beeler, 315 U. S. 649. As the record fails to disclose that the judgment, review of which is now sought, is that of the highest court of the state in which a decision could be had, we are without jurisdiction and the writ must be
Dismissed.
WALEY v. JOHNSTON, WARDEN.
ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 1006. Decided April 27, 1942.
1.	A conviction on a plea of guilty coerced by a federal law enforcement officer is wanting in due process of law. P. 103.
2.	A plea of guilty which because of coercion will not support a conviction has no validity as a waiver of the right to assail a conviction based on the plea. P. 104.
3.	The issue of whether a conviction was void because based on a coerced plea of guilty, when dependent on facts dehors the record of the criminal case, and not open to consideration or review on appeal, is determinable in habeas corpus. P. 104.
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Opinion of the Court.	316 U. S.
4.	A decision denying a writ of error coram nobis in a criminal case, rendered on the face of the petition and without a hearing, and not shown to have involved the issue raised later by a petition for habeas corpus, held not res judicata as applied to the latter. P. 105.
5.	When a material issue of fact is raised in habeas corpus the prisoner must be produced and the matter heard by the court or judge. P. 104.
124 F. 2d 587, reversed.
Certiorari (herein granted) to review a judgment which affirmed a judgment denying an application for a writ of habeas corpus, 38 F. Supp. 408.
Harmon Metz Waley, pro se.
Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for respondent.
Per Curiam.
Petitioner filed his petition for habeas corpus in the District Court, alleging upon oath that he had been coerced, by intimidation and threats by an agent of the Federal Bureau of Investigation, to plead guilty to an indictment for kidnaping, and that he is held in custody by respondent under the consequent judgment of conviction and commitment.
The petition stated generally that threats of Federal Bureau of Investigation agents to throw petitioner out of a window and “beat me up” “didn’t bother me.” But it specifically alleged that petitioner’s plea of guilty had been induced by the threats of a named Federal Bureau of Investigation agent to publish false statements and manufacture false evidence that the kidnaped person had been injured, and by such publications and false evidence to incite the public and to cause the State of Washington to hang the petitioner and the other defendants.
WALEY v. JOHNSTON.	103
101	Opinion of the Court.
The District Court ordered respondent to show cause why a writ should not issue, and appointed counsel to represent petitioner. Respondent’s return to the order included certified copies of the docket entries, indictment, transcript of proceedings on arraignment, entry of plea, judgment and sentence, and commitment papers. The transcript discloses that the trial court had explained to petitioner his right to be assisted by counsel and had appointed counsel who represented him at the trial. The return also included an affidavit of a special agent of the Bureau of Investigation, not the one mentioned in the petition, stating that petitioner, in affiant’s presence, voluntarily signed two statements confessing his guilt, and that no threat or promise to petitioner of any kind was made in affiant’s presence. The return made no denial of the allegations of coercion specifically set forth and relied on in the petition.
The District Court denied the application for the writ without hearing evidence and without directing the production of the prisoner in court. It concluded that the allegations of coercion by threatening to publish false statements and manufacture false evidence were inconsistent with petitioner’s statement that threats by Government agents to throw him out of the window and beat him up “didn’t bother” him; that the transcript filed with the return showed that petitioner was neither “actuated nor induced by fear”; and that an earlier decision of the sentencing judge denying petitioner’s application for a writ of coram nobis was res judicata.
The Court of Appeals for the Ninth Circuit affirmed the order of the District Court, 124 F. 2d 587. In view of the fact that petitioner when he pleaded guilty had been represented by counsel, a majority of the court thought he could not by habeas corpus attack his sentence on the ground that his plea was coerced. The opinion states that petitioner “waived the defense and the constitutional
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Opinion of the Court.	316 U. S.
right, if any he had, and cannot assert it now on habeas corpus proceedings.” The case is before us on a motion of petitioner to proceed in forma pauperis on his petition for certiorari and the Government’s confession of error. We grant the motion and the petition for certiorari.
The Government confesses error for the reason that the habeas corpus petition raises the material issue whether the plea was in fact coerced by the particular threats alleged which stand undenied on the record, and that upon that issue petitioner is entitled to a hearing in accordance with Walker v. Johnston, 312 U. S. 275.
True, petitioner’s allegations in the circumstances of this case may tax credulity. But in view of their specific nature, their lack of any necessary relation to the other threats alleged, and the failure of respondent to deny or to account for his failure to deny them specifically, we cannot say that the issue was not one calling for a hearing within the principles laid down in Walker v. Johnston, supra. If the allegations are found to be true, petitioner’s constitutional rights were infringed. For a conviction on a plea of guilty coerced by a federal law enforcement officer is no more consistent with due process than a conviction supported by a coerced confession. Bram v. United States, 168 U. S. 532, 543; Chambers v. Florida, 309 U. S. 227. And if his plea was so coerced as to deprive it of validity to support the conviction, the coercion likewise deprived it of validity as a waiver of his right to assail the conviction. Johnson v. Zerbst, 304 U. S. 458, 467.
The issue here was appropriately raised by the habeas corpus petition. The facts relied on are dehors the record and their effect on the judgment was not open to consideration and review on appeal. In such circumstances the use of the writ in the federal courts to test the constitutional validity of a conviction for crime is not restricted to those cases where the judgment of conviction is void
LABOR BOARD v. NEVADA COPPER CO. 105
101	Statement of the Case.
for want of jurisdiction of the trial court to render it. It extends also to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights. Moore v. Dempsey, 261 U. S. 86; Mooney N. Holohan, 294 U. S. 103; Bowen v. Johnston, 306 U. S. 19, 24.
The principle of res judicata does not apply to a decision on habeas corpus refusing to discharge a prisoner, Salinger v. Loisel, 265 U. S. 224. It does not appear that on petitioner’s earlier application for a writ of coram nobis the same issue was raised as that now presented. The earlier application was denied for insufficiency upon its face and without a hearing. There is thus no basis for the holding of the District Court that the denial is res judicata of the present petition.
The judgment below will be vacated and the cause remanded for a hearing in conformity to Walker v. Johnston, supra.
So ordered.
Mr. Justice Jackson took no part in the consideration or decision of this case.
NATIONAL LABOR RELATIONS BOARD v.
NEVADA CONSOLIDATED COPPER CORP.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.
No. 774. Argued April 8, 1942.—Decided April 27, 1942.
Findings of fact by the National Labor Relations Board supported by evidence are conclusive. P. 106.
122 F. 2d 587, reversed.
Certiorari, 315 U. S. 789, to review a judgment refusing to enforce an order of the National Labor Relations Board.
106	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
Mr. Ernest A. Gross, with whom Solicitor General Fahy and Messrs. Richard S. Salant, Robert B. Watts, and Morris P. Glushien were on the brief, for petitioner.
Mr. C. C. Parsons, with whom Mr. H. M. Fennemore was on the brief, for respondent.
Per Curiam.
In this case the National Labor Relations Board found that respondent, in refusing to reemploy a number of its former employees and to employ two new applicants, had discriminated against them in order to discourage membership in a labor union in violation of § 8 (1) and (3) of the National Labor Relations Act, 49 Stat. 449, 29 U. S. C. § 151. The Board made its order directing employment of these individuals with back pay. The Circuit Court of Appeals refused to enforce the Board’s order on the ground that its findings were without substantial support in the evidence. 122 F. 2d 587.
Examination of the record discloses that there was substantial evidence from which the Board could have concluded that respondent’s refusal to employ the men was motivated by its belief that they had engaged or threatened to engage in destruction of respondent’s property and had threatened to injure some of respondent’s managerial employees and members of their families. There was also substantial evidence from which the Board could have concluded, as it did, that respondent’s motive for refusing the employment was discouragement of membership in a labor union. The possibility of drawing either of two inconsistent inferences from the evidence did not prevent the Board from drawing one of them, as the court below seems to have thought.
We have repeatedly held that Congress, by providing, § 10 (c), (e) and (f), of the National Labor Relations Act, that the Board’s findings “as to the facts, if supported by
HELVERING v. CREDIT ALLIANCE CO. 107
105	Syllabus.
evidence, shall be conclusive,” precludes the courts from weighing evidence in reviewing the Board’s orders, and if the findings of the Board are supported by evidence the courts are not free to set them aside, even though the Board could have drawn different inferences. Labor Board v. Link-Belt Co., 311 U. S. 584, and cases cited; Labor Board v. Automotive Maintenance Co., 315 U. S. 282; cf. Swayne & Hoyt, Ltd. v. United States, 300 U. S. 297,307; Federal Trade Comm’n v. Pacific Paper Assn., 273 U. S. 52, 63; Federal Trade Comm’n v. Algoma Co., 291 U. S. 67, 73. Since upon an examination of the record we cannot say that the findings of fact of the Board are without support in the evidence, the judgment below must be reversed with directions to enforce the Board’s order, but with the modification proposed by the Board to conform to our decision in Republic Steel Corp. v. Labor Board, 311 U. S. 7.
Reversed.
HELVERING, COMMISSIONER OF INTERNAL REVENUE, v. CREDIT ALLIANCE CORP.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 708. Argued April 7, 1942.—Decided April 27, 1942.
1.	Under § 27 (f) of the Revenue Act of 1936, a distribution in liquidation of surplus accumulated since February 28,1913, is to be treated, in computing the dividends-paid credit for the purpose of the tax imposed by § 14 on undistributed net income, as a taxable dividend paid. P. 110.
So held although, under § 112 (b) (6), the distribution resulted in no gain or loss to the distributee for tax purposes; and although the distributee did not, in the tax year of such distribution, distribute to its stockholders any part of the distribution, and did not apportion or allocate to the distributor any part thereof.
2.	The clause “properly chargeable to the earnings or profits accumulated after February 28, 1913” in subsection 27 (f) refers to the
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Opinion of the Court.	316 U. S.
earnings or profits of the distributor, not to those of the distributee. P. 111.
3.	Subsection (h) of § 27 of the Revenue Act of 1936, dealing with “nontaxable distributions,” is inapplicable to the facts of this case, and doesnot preclude the application here of subsection (f). P. 112.
4.	Because the distribution in this case was of property and money, and not of stock or securities, § 115 (h) as it existed at the time of this transaction is inapplicable; and (considering the unambiguous language of § 27 (f)) the policy disclosed by its subsequent amendment may not be read into it. P. 112.
5.	Treasury Regulations 94, Art. 27 (f), held contrary to subsection (f) of § 27 of the Revenue Act of 1936 and an attempt to add a supplementary legislative provision, and therefore ineffective. P. 113.
122 F. 2d 361, affirmed.
Certiorari, 314 U. S. 604, to review the affirmance of a decision of the Board of Tax Appeals, 42 B. T. A. 1020, setting aside a determination of a deficiency in undistributed profits tax.
Mr, J. Louis Monarch, with whom Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Arthur A. Armstrong and Archibald Cox, and Miss Helen R. Carloss were on the brief, for petitioner.
Mr. Newell W. Ellison, with whom Messrs. Duane R. Dills, Jack J. Levinson, Christopher S. Sargent, and Marion P. Wormhoudt were on the brief, for respondent.
Mr. Justice Roberts delivered the opinion of the Court.
The Commercial Credit Company, a Delaware corporation, acquired and owned over 99% of the capital stock of the respondent, a New York corporation actively engaged in business. In 1936 the respondent’s stockholders and directors resolved to liquidate the corporation and to make distribution to its stockholders in liquidation. Part of the distribution so made in 1936 was of cash and property constituting surplus earned after Feb-
HELVERING v. CREDIT ALLIANCE CO. 109
107	Opinion of the Court.
ruary 28, 1913, of the value of $950,734. Of this, Commercial Credit Company’s share was $947,228. Further distributions were made in 1937, and final distribution in 1938, and the corporation was legally dissolved. The liquidation complied with the provisions of § 112 (b) (6) of the Revenue Act of 1936,1 under which no gain or loss for tax purposes was attributable to Commercial Credit Company as a result of the distribution. That corporation did not, in 1936, distribute to its stockholders any of the distribution received by it from the respondent and did not apportion or allocate any part thereof to the respondent.
The question is, to what dividends-paid credit is the respondent entitled under the applicable sections of the Revenue Act of 1936.2
By § 14 there was imposed for the first time a tax upon “undistributed net income.” In order to compute the base for this levy the dividends-paid credit is to be deducted from adjusted net income.
Section 27 deals with the credit for dividends paid. Subsection (a) provides that, for the purposes of Title I of the Act, the dividends-paid credit shall be the amount of dividends paid during the taxable year. Each of the additional subsections deals with a separate topic relating to the computation and allowance of the credit. The only ones here of importance are (f) and (h).
“(f) Distributions in Liquidation.—In the case of amounts distributed in liquidation the part of such distribution which is properly chargeable to the earnings or profits accumulated after February 28, 1913, shall, for the purposes of computing the dividends paid credit under this section, be treated as a taxable dividend paid.”
“(h) Nontaxable Distributions.—If any part of a distribution (including stock dividends and stock rights)
149 Stat. 1648, 1679.
’ §§ 14, 27, and 112, 49 Stat. 1648, 1655, 1665, 1678.
110	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
is not a taxable dividend in the hands of such of the shareholders as are subject to taxation under this title for the period in which the distribution is made, no dividends paid credit shall be allowed with respect to such part.”
The taxpayer insists that the distribution in question is governed by the provisions of (f). The Government asserts that it is not, for these reasons: that the phrase “which is properly chargeable to the earnings or profits accumulated after February 28, 1913” takes the distribution out of the purview of the section; that (h) denies the benefit of (f) to the taxpayer if the money or property transferred is not taxable to the distributee; that the policy of the Act, and the purpose underlying provisions other than § 27, require that (f) be not construed as permitting the credit where the distribution gives rise to no tax upon the distributee, and that an applicable regulation precludes the credit.
The Government’s second contention has been sustained by the Circuit Court of Appeals for the Fifth Circuit,8 but both the first and the second have been overruled by the Circuit Court of Appeals for the Second Circuit,* 4 * and by the Board of Tax Appeals and the court below in the instant case.6 In view of the conflict, we granted certiorari.
1.	Although a distribution in liquidation of earnings which accrued subsequently to February 28, 1913, does not constitute a dividend in the proper sense of the term,6 subsection (f) categorically declares that a liquidating distribution, to the extent it is composed of such earnings, shall, for the purposes of computing the dividends-paid credit “be treated as a taxable dividend paid.”
* Centennial Oil Co. v. Thomas, 109 F. 2d 359, Hutcheson, Jdissenting.
4 Commissioner v. Kay Mfg. Corp., 122 F. 2d 443.
8 42 B. T. A. 1020; 122 F. 2d 361.
0 HeUmich v. Hellman, 276 U. S. 233.
HELVERING v. CREDIT ALLIANCE CO. Ill
107	Opinion of the Court.
Plainly the section intends that a distribution of such earnings shall be considered a dividend. Further it provides that the distributing corporation may use the amount in computing its credit for dividends paid. And, to put the matter beyond cavil, the section also says that the distribution shall be treated as the payment to the distributee of a taxable dividend.
The Government, however, contends that the clause “properly chargeable to the earnings or profits accumulated after February 28, 1913,” means properly chargeable to the distributee as such earnings or profits. The argument has, we think, rightly been rejected by all the courts which have considered it. The line drawn in all of the revenue acts between profits accumulated before the enactment of the first income tax act and after that date, for distinguishing capital and income, furnishes the reason for the insertion of the clause in subsection (f). Section 27 deals with a credit to the distributing corporation and the phrase finds its proper office in limiting the amount of the distribution in liquidation which may be considered a dividend from earnings or profits as distinguished from one composed of capital. We, therefore, conclude that (f), standing alone, justifies the deduction claimed by the respondent.
2.	It is urged that the sweeping provision of (h) precludes the application of (f) in the circumstances disclosed, because (h) denies the credit unless the amount distributed is taxable to the distributee. By concession, the distribution here does not result in gain or loss to the parent company. The argument is, in effect, that (h) creates an exception to the rule formulated by (f).
As above said, each of the subsections of § 27 deals with a specific and particular topic. Subsection (f) deals with “distributions in liquidation” while subsection (h) deals with “nontaxable distributions.” If (f) applies in this case, (h) is left to cover a substantial field of other sorts
112	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
of distributions. We should, of course, read the two sections as consistent rather than conflicting, if that be possible. Here, it is not only possible but begets no absurd or impractical result. We hold that (h) is not applicable to the facts of this case and that (f) is.
3.	The petitioner points out that the Revenue Act of 1936 introduced a new policy,—to tax undistributed earnings in order to prevent a taxpayer from accumulating untaxed surplus, by forcing the payment of dividends which become taxable in the hands of the distributee. This is true, but it is also true that the Act made distributions to parent corporations nontaxable in order to encourage the simplification of corporate structures. It was avowedly for this reason that § 112 (b) (6) provided that no gain or loss to the parent company should in such case be recognized, and it may well be that subsection (f) of § 27 was inserted with the same purpose. The Government insists that, as § 115 (h)7 provides that a distribution of the taxpayer’s stock or securities, or those of another corporation, shall not be considered a distribution of earnings or profits of the taxpayer if no gain to the distributee from the receipt of such stock or securities is recognized by the law, subsection (f) must be read in the light of the policy thus declared by § 115 (h). The latter section is irrelevant to this controversy, because the distribution here was in property and money, and not in stock or securities. Section 115 (h) was amended in 1938, subsequent to the consummation of the transaction here in question, to include money or property, but we cannot, as the Government suggests, read into the section, as it stood when the transaction took place, an intent derived from the policy disclosed by the subsequent amendment.
We shall not burden this opinion by extended reference to the legislative history of the Act of 1936. It is enough
7 49 Stat. 1688.
HELVERING v. CREDIT ALLIANCE CO. 113
107	Dissent.
to say that it is inconclusive and, to some extent, supports the arguments of both parties. But whatever may be said of the policy behind the statute’s provisions, we are not at liberty to disregard the direct and unambiguous language of subsection (f).
4.	Treasury Regulations 94, Art. 27 (f), declare that one making a liquidating distribution of earnings accumulated since February 28, 1913, must be denied the dividends credit in respect of such distribution unless the amount distributed is taxable in the same year to the distributee, but further provides that if the distributee, in that year, makes a distribution which entitles it to a dividends credit it may allocate a proper proportion thereof to the distributor of the liquidating dividend. It is insisted that the situation presented to the Treasury by the various provisions of the Revenue Act of 1936 was confused and complex, and the adoption of the regulation was proper in the circumstances and should control.
In view of what we have said as to the plain meaning of subsection (f), we think that no complexity or confusion is discoverable and that the regulation not only was contradictory of the plain terms of the subsection but attempted to add a supplementary legislative provision, which could only have been enacted by Congress. We hold, therefore, that the court below was right in refusing to give effect to the regulation.
The judgment is
Affirmed.
The Chief Justice took no part in the consideration or decision of this case.
Mr. Justice Black, Mr. Justice Reed, and Mr. Justice Douglas dissent. They are of the opinion that since Art. 27 (f) of Treasury Regulations 94 resolves the ambiguities between § 27 (f) and § 27 (h) of the Revenue Act of 1936, 461263°—43-----8
114	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
it is a valid interpretative regulation and a proper exercise of the rule-making authority.
GOLDSTEIN et al. v. UNITED STATES.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 256. Argued February 6, 1942.—Decided April 27, 1942.
Section 605 of the Federal Communications Act does not render inadmissible in a criminal trial in a federal court, testimony (otherwise admissible) of witnesses who were induced to testify by the use, in advance of the trial, of communications intercepted in violation of the Act, but to which communications the defendants were not parties. P. 117.
120 F. 2d 485, affirmed.
Certiorari, 314 U. S. 588, to review the affirmance of convictions of using the mails to defraud and of conspiracy to do so.
Messrs. Theodore Kiendl and Osmond K. Fraenkel (with whom Messrs. Arthur H. Schwartz and Edward C. McLean were on the briefs) for Goldstein and Schwartz, respectively, petitioners. Herman Rubin and Irving Elentuch, petitioners, submitted pro se.
Solicitor General Fahy, with whom Assistant Attorney General Berge and Mr. H. G. Ingraham were on the brief, for the United States.
Mr. Justice Roberts delivered the opinion of the Court.
This case involves the alleged violation of § 605 of the Federal Communications Act1 by the admission of testimony in a federal criminal trial. The importance of the
1 Act of June 19, 1934, c. 652, 48 Stat. 1064, 1103 ; 47 U. S. C. § 605.
GOLDSTEIN v. UNITED STATES.	115
114	Opinion of the Court.
questions presented, and a claimed conflict with our decisions, moved us to grant certiorari.
The petitioners and others were indicted under the mail fraud2 and conspiracy3 statutes. The alleged scheme was to defraud insurance companies by presenting false claims for disability benefits.
At the opening of the trial, the petitioners moved that the court suppress all records and transcripts of intercepted telephone messages; suppress all evidence the Government obtained by the use of such messages; suppress the testimony of any witness obtained in the first instance by the use of such messages, and that of any witness whose recollection had been refreshed or aided by such messages.
A preliminary hearing was conducted by the trial judge in accordance with the practice established in Nardone v. United States, 308 U. S. 338. The principal subject of contention was the prospective testimony of Messman and Garrow, alleged co-conspirators who, the petitioners asserted, had confessed and turned state’s evidence because they had been confronted with intercepted telephone messages. Messman and Garrow were parties to these messages, or some of them, but the petitioners were not.4 The judge ordered all records and transcripts of intercepted messages suppressed as well as all evidence obtained as a result of such messages, but he refused to order suppression of the testimony of witnesses whose memories had been refreshed or aided thereby. He reserved to the trial final decision on so much of the motion
’Criminal Code § 215; 18 U. S. C. § 338.
8 Criminal Code § 37; 18 U. S. C. § 88.
4 It is said that petitioners have now discovered that Goldstein was a participant in twelve of the intercepted telephone conversations, but it is admitted that the record does not disclose this fact, and there is no allegation that any of the twelve communications were used in obtaining the confessions.
116	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
as requested the suppression of testimony alleged to be the result of information derived from the messages.
At the trial, Government witnesses testified that wire tapping had not furnished clues used in preparing the case. Messman and Garrow were permitted to testify to the facts of which they claimed to have knowledge, over the objection of petitioners. They did not refer to any intercepted messages or to their contents.
The petitioners were convicted and the judgments were affirmed on appeal.6 The Circuit Court of Appeals held that the convictions ought not to stand if either Messman or Garrow should not have been allowed to testify. It thought that the petitioners having proved divulgence by federal officers of the messages to the witnesses, the burden was upon the Government to prove that their testimony was not induced thereby; that the trial judge failed to find the wire tapping had not been a means of inducing them to testify, but found only that the petitioners had failed to prove it had been the means. In this situation the court was of opinion that if the admission of testimony induced by use of the messages was prohibited by the Communications Act, the judgments should be reversed. The court ruled, however, that, as the petitioners were not parties to any of the intercepted communications, they had no standing to object to their divulgence. In the alternative, it ruled that the testimony was not a divulgence within the meaning of § 605, but, at most, the presentation in court of evidence procured through past divulgences. The court also overruled petitioners’ contentions that they had been denied their full right of cross-examination at the preliminary hearing and that the charge to the jury was improper.
We have considered all the assignments of error but find no substance in any of them save those which go to the admission of Messman’s and Garrow’s testimony. In
6120 F. 2d 485.
GOLDSTEIN v. UNITED STATES.	117
114	Opinion of the Court.
briefs and oral argument, the parties have labored the subject of the burden of proof at the preliminary hearing. The petitioners say it lay with the Government after a showing of wire tapping and divulgence; the respondent says it lay with the petitioners throughout. Each asserts the other failed to carry it. In our view, a decision upon the point is unnecessary.
We come to the capital and pivotal question: Assuming the witnesses’ testimony was induced by divulging to them the contents of intercepted telephone messages, was the admission of this testimony erroneous? We hold that it was not.
The petitioners assert that § 605 of the Federal Communications Act forbids the admission of evidence obtained by the use in advance of the trial of unlawfully intercepted telephone conversations, and that one who was not a party to such communications has standing to object to the admission of such evidence. They insist that the decisions of this court in Weiss v. United States, 308 U. S. 321, and Nardone v. United States, 308 U. S. 338, require us so to hold and that the court below, in ruling to the contrary, failed to follow those decisions.
It may be helpful in the consideration of these contentions to quote the relevant portions of the statute and to recapitulate this court’s decisions in cases involving the admission of evidence in alleged violation of its terms. The relevant provisions of the section declare that “ ... no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person,” and that “no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, con-
118	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
tents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto....”
In Nardone v. United States, 302 U. S. 379, we held that the Government’s introduction of transcripts and recordings of intercepted interstate messages in the trial of a criminal case constituted a divulgence of such messages contrary to the express terms of the statute.
In Weiss v. United States, 308 U. S. 321, intrastate telephone communications were intercepted by federal agents, their contents were divulged to certain of the defendants, and, as a result, these defendants confessed and agreed to turn state’s evidence. They were permitted to testify to the contents of the messages. We held that the interdiction of the statute extended to the interception and divulgence of intrastate as well as interstate messages. In the light of the facts we denied the Government’s claim that the witnesses’ testifying to the contents of the messages amounted to an authorization by them, as senders, of the divulgence of the communications within the meaning of the statute.
In Nardone v. United States, 308 U. S. 338, it was claimed that unlawfully intercepted messages had been used to obtain evidence against the senders, and that such use, and the introduction of the evidence so obtained, over the objection of the senders, who were defendants, constituted a violation of the purpose and policy of the statute. We held that, if the facts sustained the claim, the evidence should have been excluded, and we formulated a procedure for ascertaining the facts.
In none of these cases did this court pass upon the question now presented. In the instant case, the witnesses who confessed and turned state’s evidence did not testify either to the existence of the communications or to their contents. The contents of messages to some of
GOLDSTEIN v. UNITED STATES.	119
114	Opinion of the Court.
which they were parties, but to which the petitioners were not parties, were used by the Government, as we assume, to persuade the witnesses to testify. We further assume that the interception and divulgence of the messages to these witnesses was unlawful because not authorized by the sender.
The petitioners urge that our decision in Weiss v. United States, supra, necessarily involved the ruling that one who was not a party to the intercepted messages has standing to object to their divulgence at the trial, and, in view of our application of the statute in Nardone v. United States, 308 U. S. 338, he has standing to object to testimony induced as a result of unlawful interception and use of the messages.
The question now presented was not decided in Weiss v. United States, supra. The charge was conspiracy. Goldstein, who was not a participant, and other defendants, who were participants, in the intercepted conversations, were tried together. All objected to testimony respecting the conversations. We held the evidence inadmissible. The fact that Goldstein was not a party to the communications was not overlooked. In the opinion rendered by the Circuit Court of Appeals it was held that the fact could not sustain his conviction if the messages were erroneously introduced.6 This court assumed, in deciding the case, that the Circuit Court of Appeals was right in holding that, if the admission of the evidence was wrong as to the other defendants, the
6 “It may be said with some plausibility that the defendant Goldstein was not prejudiced since he was neither a party to, nor mentioned in, the conversations obtained through wire tapping. These conversations, however, showed that Goldstein’s codefendants were engaged in a conspiracy which other proof indicated that he joined. They also gave credence to the testimony of Messman. Such evidence weighed against Goldstein and his conviction ought not to stand if the communications implicating the others were improperly received.” 103 F. 2d 352. See also United States v. Thomson, 113 F. 2d 643.
120	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
judgment ought to be reversed as to all. And the Circuit Court of Appeals was of opinion in the present case that, in the circumstances, the messages could not have been used in the Weiss case against one of the defendants and excluded as to the others, with any reasonable expectation that prejudice would not have resulted to the defendants as to whom the admission of the messages would have been error.7 In this view we concur.
None of the petitioners was a party to the communications used in obtaining the evidence in this case. No prejudice, therefore, could result by reason of the difficulty of nullifying the effect upon some defendants of evidence incompetent as to them but competent as against other defendants.
It has long been settled that evidence obtained in violation of the prohibition of the Fourth Amendment cannot be used in a prosecution against the victim of the unlawful search and seizure if he makes timely objection.8 9 This, for the reason that otherwise the policy and purpose of the amendment might be thwarted. And we have further held that the policy underlying the amendment cannot be circumvented by the indirect use against the victim of evidence so obtained.®
Although the unlawful interception of a telephone communication does not amount to a search or seizure prohibited by the Fourth Amendment,10 we have applied the same policy in respect of the prohibitions of the Federal Communications Act at the instance of the sender of the message against whom evidence derived from its unlawful interception is sought to be introduced. Nardone v. United States, 308 U. S. 338.
7120 F. 2d 489.
8	Weeks v. United States, 232 U. S. 383.
9	Silverthorne Lumber Co. v. United States, 251 U. S. 385.
19 Olmstead v. United States, 277 U. S. 438; Goldman v. United States, post, p. 129.
GOLDSTEIN v. UNITED STATES. 121
114	Opinion of the Court.
The question now to be decided is whether we shall extend the sanction for violation of the Communications Act so as to make available to one not a party to the intercepted communication the objection that its use outside the courtroom, and prior to the trial, induced evidence which, except for that use, would be admissible.
No court has ever gone so far in applying the implied sanction for violation of the Fourth Amendment. While this court has never been called upon to decide the point,11 the federal courts in numerous cases, and with unanimity, have denied standing to one not the victim of an unconstitutional search and seizure to object to the introduction in evidence of that which was seized.12 A fortiori the same rule should apply to the introduction of evidence induced by the use or disclosure thereof to a witness other than the victim of the seizure. We think no broader sanction should be imposed upon the Government in respect of violations of the Communications Act. The court below was of the view that a divulgence of the intercepted messages might lawfully be made with the consent of the sender, and we agree. The court further thought that, as the sender might make such divulgence lawful by his consent, none but he was intended to be protected against divulgence by the statute.13 Again we agree.
11 The privilege against self-incrimination afforded by the Fifth Amendment is personal to the witness. Hale v. Henkel, 201 U. S. 43; Wilson v. United States, 221 U. S. 361.
M The principle has been applied in at least fifty cases by the Circuit Courts of Appeals in nine circuits, and in the Court of Appeals for the District of Columbia, not to mention many decisions by District Courts. Many of the cases are collected in Note 168 to the text of the Fourth Amendment in the United States Code Annotated.
M It has been held that both parties to a telephone conversation are senders, as the statute uses the term. United States v. Polakoff, 112 F. 2d 888.
122	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316 U. S.
The petitioners, however, point out that the statute also forbids the use of an unlawfully intercepted message, or any information therein contained, by any person for his own benefit or the benefit of another not entitled thereto; and they say that the Government officials violated the Act by using the messages, and the information they contained, to induce the senders’ confessions and testimony. They urge that such use is forbidden by the Act and that they have standing to object to the introduction of the evidence thus obtained. The Government answers that this provision of the Act was not intended to reach the use of the contents of the messages by federal officers for obtaining evidence, but was meant to prevent use for the personal advantage or benefit of the user. We have no occasion to determine the soundness of the Government’s argument.
We are of opinion that, even though the use made of the communications by the prosecuting officers to induce the parties to them to testify were held a violation of the statute, this would not render the testimony so procured inadmissible against a person not a party to the message. This is the settled common law rule.14 There was no use at the trial of the intercepted communications, or of any information they contained as such. If such use as occurred here is a violation of the Act, the statute itself imposes a sanction.15
The judgments are
Affirmed.
Mr. Justice Jackson took no part in the consideration or decision of this case.
Mr. Justice Murphy, dissenting:
The Chief Justice, Mr. Justice Frankfurter, and I cannot agree with the opinion of the Court.
14	Olmstead v. United States, 277 U. S. 438, 466, 467.
15	§ 501, 47 U. S. C. § 501.
GOLDSTEIN v. UNITED STATES.	123
114	Murphy, J., dissenting.
Messman and Garrow were the chief witnesses for the Government, and the testimony of each was vital. It is not disputed that Messman turned state’s evidence after he was confronted with the contents of telephone messages which implicated him in the offense, but which had been obtained by wire-tapping in violation of § 605 of the Federal Communications Act. The extent of the unlawful “tapping” and the keen desire of the Government officials to use the “taps” to secure other testimony are graphically illustrated by the following statement made by an assistant United States attorney to Messman after his arrest:
“I am telling you before we go any further that there is no use of us kidding each other. We have watched your telephone; we have watched all these lawyers’ telephones; we have had rooms tapped. We know what is going on. We are not stabbing in the dark. If you want to hear your voice on a record we will be glad to play it. In your instance, Doctor, there is so much to cover. You have been in this for so many years that we feel that in order for you to help yourself, since you are considered one of the principals here, it would be wise for you to indicate to us whether you intend to tell us everything and come clean, or whether you intend to play ball with the Garrows and the rest of the crowd. We feel that you can be of great value and you want to help yourself. That is straight talk.”
And Garrow knew of the existence of records of damaging conversations made by illegal “taps” on his lines before his decision to testify for the Government.
Neither the intercepted messages nor their purport were placed in evidence, and, so far as the record shows, petitioners were not parties to them. It is evident, nevertheless, that the evidence adduced by the Government against petitioners through the testimony of Messman and Gar-
124	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316 U. S.
row was obtained by the use of information gathered by wire-tapping in violation of law.1
The main question presented for decision is whether evidence so obtained is vitiated and rendered inadmissible by § 605, the relevant part of which reads:
“. . . and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; . . . and no person having received such intercepted communi-
’Both Messman and Garrow testified at the preliminary hearing that the “taps” did not influence their decisions to testify for the Government, but each was an accomplished perjurer. We do not understand that the trial judge, in ruling that the testimony of Messman and Garrow was admissible, meant to find that the Government proved that the “taps” did not contribute to their breakdown. On the contrary, it is clear that he meant to find only that petitioners failed to carry the burden of proving that the Government secured the testimony of Messman and Garrow by use of the “taps,” a burden which he erroneously put upon petitioners. For after an accused sustains the initial burden, imposed by Nardone v. United States, 308 U. S. 338, of proving to the satisfaction of the trial judge in the preliminary hearing that wire-tapping was unlawfully employed, as petitioners did here, it is only fair that the burden should then shift to the Government to convince the trial judge that its proof had an independent origin. As the court below said:
“. . . this should be the rule in analogy to the well settled doctrine in civil cases that a wrongdoer who has mingled the consequences of lawful and unlawful conduct, has the burden of disentangling them and must bear the prejudice of his failure to do so; that is, that it is unfair to throw upon the innocent party the duty of unravelling the skein which the guilty party has snarled. To impose the duty upon the prosecution is particularly appropriate here, for it necessarily has full knowledge of just how its case has been prepared; given a prima facie case against it, i. e., ‘taps’ and some use of them, it should do the rest.” 120 F. 2d 485, 488.
Since the trial judge did not shift the burden to the Government after petitioners’ initial showing as he should have done, there can be no contention on this record that the testimony of Messman and Garrow was untainted by “taps.”
GOLDSTEIN v. UNITED STATES.	125
114	Murphy, J., dissenting.
cation or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto . . .”2
The statute expresses a rule of public policy. In enacting § 605, Congress sought to protect society at large against the evils of wire-tapping and kindred unauthorized intrusions into private intercourse conducted by means of the modern media of communication, telephone, telegraph, and radio. To that end the statute prohibits not only the interception and the divulgence of private messages without the consent of the sender, but also the use of information so acquired by any person not entitled to it. The protection of the statute would have been illusory indeed if, while interception and divulgence were penalized, one was free, nevertheless, to use information so obtained. Unless the language of the “use for benefit” prohibition does not mean what it says, the actions of the Government agents in securing the benefit of the crucial testimony of Messman and Garrow by the use of illegal “taps” were clear violations of that prohibition. There is no merit in the Government’s contention that the unequivocal language of the “use for benefit” clause should be construed as condemning only such uses as are designed to result in some monetary or other similar benefit of a private nature, for the prohibitions of § 605 are applicable to the Government and its officers, as well as to private persons. Nardone v. United States, 302 U. S. 379. The prohibition in this last clause of § 605 by Congress of the “use” of outlawed evidence is so unequivocal
’Emphasis added.
126	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316U.S.
and controlling that the failure of the court below even to refer to this clause can only be explained on the assumption that it was overlooked.
On the issue of admissibility, the second Nardone case, 308 U. S. 338, the logical extension of the principles of Nardone v. United States, 302 U. S. 379, and Weiss v. United States, 308 U. S. 321, should control our decision. In that case, as in this, the evidence in dispute was not the messages themselves or their purport, but the claim was made that other evidence against the defendants was obtained by the use of information gained by unlawful wire-tapping. We held that the policy of § 605 required the exclusion not merely of the intercepted messages but also of the other evidence acquired through their unlawful use. Otherwise the broad purpose of the statute to outlaw practices “inconsistent with ethical standards and destructive of personal liberty”3 would have been largely defeated. We also suggested the preliminary hearing as a procedure for determining what evidence was the “fruit of the poisonous tree” and hence inadmissible. Since the preliminary hearing in this case leaves no doubt that the testimony of Messman and Garrow was the forbidden fruit, it should not have been admitted.
The only possible differentiation between this case and the second Nardone case is that, here, petitioners were not parties to the illegally intercepted messages, but that calls for no difference in legal result. While the sender can render interception, divulgence, or use lawful by his consent, it is a complete non sequitur to conclude that he alone has standing to object to the admission of evidence obtained in violation of § 605. To say that petitioners have no standing to object to the testimony of Messman and Garrow because they were not parties to the inter-
“ Nardone v. United States, 302 U. S. 379, 383.
GOLDSTEIN v. UNITED STATES.	127
114	Murphy, J., dissenting.
cepted messages used to secure that testimony, is to ignore the governing factor that controlled our decision in the second Nardone case, namely, that to permit the use of evidence so obtained would defeat or substantially impair the underlying policy and purpose of § 605. It is immaterial, for the object to be served by that section, whether objection is made by the one sending the communication or by another who is prejudiced by its use. The rule that evidence obtained by a violation of § 605 is inadmissible is not a remedy for the sender; it is the obedient answer to the Congressional command that society shall not be plagued with such practices as wire-tapping.
Lower federal court cases to the effect that only the victim of a search and seizure contravening the Fourth Amendment can object to the evidence thereby obtained do not offer a proper analogy. Not only are those decisions hard to square with statements by Mr. Justice Holmes in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392,4 but, even assuming their soundness, sufficient difference in scope exists between § 605 and the Fourth Amendment to render analogy unsafe. Thus § 605 forbids all interception, divulgence, or use by any
‘The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. ... the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.”
The guaranties of the Fourth Amendment “are to be liberally construed to prevent impairment of the protection extended.” Grau v. United States, 287 U. S. 124, 128, and cases cited.
It is evident that to allow the Government to use evidence obtained m violation of the Fourth Amendment against parties not victims of the unconstitutional search and seizure is to allow the Government to profit by its wrong and to reduce in large measure the protection of the Amendment.
128	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316 U.S.
person without the consent of the sender, while the Fourth Amendment bans only unreasonable searches and seizures.
The holding in the opinion of the Court that evidence obtained in violation of § 605 is not rendered inadmissible because § 501 of the Act provides specific sanctions for violations of § 605, is a direct repudiation of both Nardone cases and the Weiss case. In each of those cases, evidence secured by violation of § 605 was declared to be inadmissible, despite the existence of § 501. This is so because, as we held in the first Nardone case, “the act forbids such testimony.” 302 IT. S. 379,382. That evidence procured in violation of federal law by agents of the Government is inadmissible in federal prosecutions has been established and enforced by an unbroken series of decisions in this Court beginning with Weeks v. United States, 232 U. S. 383. By these decisions this Court has refused to make itself a participant in lawless conduct by sanctioning the use in open court of evidence illegally secured. That principle was forcibly put in a separate opinion in Sorrells v. United States, 287 IT. S. 435, 453. After referring to “the inherent right of the court not to be made the instrument of wrong,” the opinion continues: “The doctrine [the defense of entrapment] rests, rather, on a fundamental rule of public policy. The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law.” 287 U. S. 435, 456, 457. When Congress condemned the “use” of lawlessly intercepted communications, the last thing it intended to sanction was the use of such interceptions in a court of justice. There can be no reason to ignore or silently overrule our considered decisions in both Nardone cases and the Weiss case, especially in view of the fact that Congress has had several opportunities since the first Nardone case to amend § 605
GOLDMAN v. UNITED STATES. 129
114	Syllabus.
to obviate the result of that case if it were not a true interpretation of Congressional policy and intent.5
GOLDMAN v. UNITED STATES.* *
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 962, October Term, 1940. Argued February 5, 6, 1942.—Decided April 27, 1942.
1.	Refusal of the judge in the trial of a criminal case in the federal court, to allow the defendant to inspect the memoranda of Government witnesses—where the memoranda were not used by the witnesses in court, but only to refresh their recollection prior to testifying, and were also part of the Government’s files—held not an abuse of discretion. P. 132.
2.	Divulgence of a person’s telephone conversation, overheard as it was spoken into the telephone receiver, does not violate § 605 of the Federal Communications Act, as in such case there is neither a “communication” nor an “interception” within the meaning of the Act. P. 133.
3.	Evidence obtained by federal agents by use of a detectaphone, applied to the wall of a room adjoining the office of the defendant, held not unlawfully obtained as a consequence of a prior trespass committed by the agents in the defendant’s office, where such trespass, as found by the courts below, did not aid materially in the use of the detectaphone. P. 134.
4.	The use by federal agents of a detectaphone, whereby conversations in the office of a defendant were overheard through contact on the
8 Several attempts to amend § 605 since the first Nardone case have failed of enactment. See S. 3756, 75th Cong., 3d Sess. (1938) and S. Rep. No. 1790, 75th Cong., 3d Sess. (1938) p. 3. See also H. J. Res. 571, 76th Cong., 3d Sess. (1940); H. R. 2266, 77th Cong., 1st Sess. (1941); H. R. 3099, 77th Cong., 1st Sess. (1941); H. R. 4228, 77th Cong., 1st Sess. (1941).
*Together with No. 963, October Term, 1940, Shulman v. United States, and No. 980, October Term, 1940, Theodore Goldman v. United States, also on writs of certiorari, 314 U. S. 701, to the Circuit Court of Appeals for the Second Circuit.
461263°—43---9
130	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
wall of an adjoining room, did not violate the Fourth Amendment, and evidence thus obtained was admissible in a federal court. P. 135.
118 F. 2d 310, affirmed.
Certiorari, 314 U. S. 701, to review the affirmance of convictions of conspiracy to violate the Bankruptcy Act.
Mr. Osmond K. Fraenkel for petitioners, and Mr. Jacob W. Friedman for petitioners in Nos. 962 and 980. Mr. Jeremiah T. Mahoney was with them on the briefs.
Solicitor General Fahy, with whom Assistant Attorney General Berge and Messrs. Richard H. Demuth, Oscar A. Provost, Richard S. Salant, Henry J. Fox, and Louis B. Schwartz were on the brief, for the United States.
Briefs were filed by Messrs. Abraham J. Isserman and Nathan Witt, on behalf of the National Federation for Constitutional Liberties, and by Mr. Thomas H. Eliot, as amid curiae, urging reversal.
Mr. Justice Roberts delivered the opinion of the Court.
The petitioners and another were indicted for conspiracy 1 to violate § 29 (b) (5) of the Bankruptcy Act* 2 3 by receiving, or attempting to obtain, money for acting, or forbearing to act, in a bankruptcy proceeding. They were convicted and sentenced, and the judgments were affirmed by the Circuit Court of Appeals.8 The facts are fully stated in the opinion below and we shall advert only to those essential to an understanding of the questions open in this court.
The petitioners were lawyers. One of them, Martin Goldman, approached Hoffman, the attorney representing
’ Criminal Code § 37; 18 U. S. C. § 88.
’ll U. S. C. §52 (b) (5).
3118 F. 2d 310.
GOLDMAN v. UNITED STATES. 131
129	Opinion of the Court.
an assignee for the benefit of creditors, with the proposition that the assignee sell the assets in bulk for an ostensible price which would net the creditors a certain dividend, but in fact at a secret greater price, and that Hoffman and the petitioners should divide the difference between them. Hoffman refused. Shulman, one of the petitioners, then filed an involuntary petition in bankruptcy against the assignor, in such form that it could be dismissed on motion and without notice, and obtained a stay of the assignee’s sale. The bankruptcy court refused to revoke the stay, and Shulman again approached Hoffman stating that, if he agreed to the proposed arrangement, the bankruptcy petition could be dismissed and the plan consummated. Hoffman said he would agree, but he went at once to the referee and disclosed the scheme. A federal investigator was consulted and it was arranged that Hoffman should continue to negotiate with the petitioners. He did so. Numerous conferences were had and the necessary papers drawn and steps taken. Success was frustrated only by the refusal of a creditor to release for the offered percentage of his claim.
Meantime, two federal agents, with the assistance of the building superintendent, obtained access at night to Shulman’s office and to the adjoining one and installed a listening apparatus in a small aperture in the partition wall, with a wire to be attached to earphones extending into the adjoining office. This was for the purpose of overhearing a conference with Hoffman, set for the following afternoon. The next afternoon, one of the agents returned to the adjoining room with two others and a stenographer. They connected the earphones to the apparatus but it would not work. They had with them another device, a detectaphone, having a receiver so delicate as, when placed against the partition wall, to pick up sound waves originating in Shulman’s office, and means for amplifying and hearing them. With this
132	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
the agents overheard, and the stenographer transcribed, portions of conversations between Hoffman, Shulman, and Martin Goldman on several occasions, and also heard what Shulman said when talking over the telephone from his office.
Before the trial, Shulman learned the facts and made a motion, in which the other petitioners joined, to suppress the evidence thus obtained. A preliminary hearing was had and the motion was denied. At the trial, the evidence was admitted over objection that its receipt violated the Fourth Amendment of the Constitution and, as respects Shulman’s talk into the telephone receiver, violated also § 605 of the Federal Communications Act.4
At the preliminary hearing, and at the trial, counsel for petitioners demanded that they be permitted to inspect the notes and memoranda made by the agents during the investigation, the agents having admitted they had refreshed their recollection from these papers prior to testifying. The trial judge ruled that the papers need not be exhibited by the witnesses.
1. We hold there was no error in denying the inspection of the witnesses’ memoranda. The judge was clearly right in his ruling at the preliminary hearing, as the petitioners should not have had access, prior to trial, to material constituting a substantial portion of the Government’s case.
We think it the better rule that where a witness does not use his notes or memoranda in court, a party has no absolute right to have them produced and to inspect them. Where, as here, they are not only the witness’ notes but are also part of the Government’s files, a large discretion must be allowed the trial judge. We are unwilling to hold that the discretion was abused in this case.
4 Act of June 19, 1934, 48 Stat. 1064, 1103; 47 U. S. C. § 605.
GOLDMAN v. UNITED STATES. 133
129	Opinion of the Court.
2.	We hold that the overhearing and divulgence of what Shulman said into a telephone receiver was not a violation of § 605.
The petitioners contend that a communication falls within the protection of the statute once a speaker has uttered words with the intent that they constitute a transmission of a telephone conversation. The validity of the contention must be tested by the terms of the Act fairly construed. So considered, there was neither a “communication” nor an “interception” within the meaning of the Act. The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation. Section 3 embodies the following definition:8
“(a) ‘Wire communication’ or ‘communication by wire’ means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.”
What is protected is the message itself throughout the course of its transmission by the instrumentality or agency of transmission.6 Words written by a person and intended ultimately to be carried as so written to a telegraph office do not constitute a communication within the terms of the Act until they are handed to an agent of the telegraph company. Words spoken in a room in the presence of another into a telephone receiver do not constitute a communication by wire within the meaning of the section. Letters deposited in the Post Office are
6	47 U. S. C. § 153.
’Compare Diamond v. United States, 108 F. 2d 859, 860; United States v. Polakofi, 112 F. 2d 888, 890.
134	OCTOBER TERM, 1941.
Opinion of the Court.	316 TJ. 8.
protected from examination by federal statute,7 but it could not rightly be claimed that the office carbon of such letter, or indeed the letter itself before it has left the office of the sender, comes within the protection of the statute. The same view of the scope of the Communications Act follows from the natural meaning of the term “intercept.” As has rightly been held, this word indicates the taking or seizure by the way or before arrival at the destined place. It does not ordinarily connote the obtaining of what is to be sent before, or at the moment, it leaves the possession of the proposed sender, or after, or at the moment, it comes into the possession of the intended receiver.8 The listening in the next room to the words of Shulman as he talked into the telephone receiver was no more the interception of a wire communication, within the meaning of the Act, than would have been the overhearing of the conversation by one sitting in the same room.
3.	We hold that what was heard by the use of the detectaphone was not made illegal by trespass or unlawful entry.
The petitioners’ contend that the trespass committed in Shulman’s office when the listening apparatus was there installed, and what was learned as the result of that trespass, was of some assistance on the following day in locating the receiver of the detectaphone in the adjoining office, and this connection between the trespass and the listening resulted in a violation of the Fourth Amendment. Whatever trespass was committed was connected with the installation of the listening apparatus. As respects it, the trespass might be said to be continuing and, if the apparatus had been used it might, with reason, be claimed that the continuing trespass was the concomi-
7	Ex parte Jackson, 96 U. 8. 727.
8	United States v. Yee Ping Jong, 26 F. Supp. 69, 70.
GOLDMAN v. UNITED STATES. 135
129	Opinion of the Court.
tant of its use. On the other hand, the relation between the trespass and the use of the detectaphone was that of antecedent and consequent. Both courts below have found that the trespass did not aid materially in the use of the detectaphone. Since we accept these concurrent findings, we need not consider a contention based on a denial of their verity.
4.	We hold that the use of the detectaphone by Government agents was not a violation of the Fourth Amendment.
In asking us to hold that the information obtained was obtained in violation of the Fourth Amendment, and that its use at the trial was, therefore, banned by the Amendment, the petitioners recognize that they must reckon with our decision in Olmstead v. United States, 277 U. S. 438. They argue that the case may be distinguished. The suggested ground of distinction is that the Olmstead case dealt with the tapping of telephone wires, and the court adverted to the fact that, in using a telephone, the speaker projects his voice beyond the confines of his home or office and, therefore, assumes the risk that his message may be intercepted. It is urged that where, as in the present case, one talks in his own office, and intends his conversation to be confined within the four walls of the room, he does not intend his voice shall go beyond those walls and it is not to be assumed he takes the risk of someone’s use of a delicate detector in the next room. We think, however, the distinction is too nice for practical application of the Constitutional guarantee, and no reasonable or logical distinction can be drawn between what federal agents did in the present case and state officers did in the Olmstead case.
The petitioners ask us, if we are unable to distinguish Olmstead v. United States, to overrule it. This we are unwilling to do. That case was the subject of prolonged consideration by this court. The views of the court, and
136	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316 U. S.
of the dissenting justices, were expressed clearly and at length. To rehearse and reappraise the arguments pro and con, and the conflicting views exhibited in the opinions, would serve no good purpose. Nothing now can be profitably added to what was there said. It suffices to say that we adhere to the opinion there expressed.
The judgments are
Affirmed.
Mr. Chief Justice Stone and Mr. Justice Frankfurter:
Had a majority of the Court been willing at this time to overrule the Olmstead case, we should have been happy to join them. But as they have declined to do so, and as we think this case is indistinguishable in principle from Olmstead’s, we have no occasion to repeat here the dissenting views in that case with which we agree.
Mr. Justice Jackson took no part in the consideration or decision of these cases.
Mr. Justice Murphy, dissenting:
I cannot agree, for to me it is clear that the use of the detectaphone under the circumstances revealed by this record was an unreasonable search and seizure within the clear intendment of the Fourth Amendment.
One of the great boons secured to the inhabitants of this country by the Bill of Rights is the right of personal privacy guaranteed by the Fourth Amendment. In numerous ways the law protects the individual against unwarranted intrusions by others into his private affairs.1 It compensates him for trespass on his property or against his person. It prohibits the publication against his will
1See generally, Brandeis and Warren, “The Right to Privacy,” 4 Harv. L. Rev. 193 (1890).
GOLDMAN v. UNITED STATES. 137
129	Murphy, J., dissenting.
of his thoughts, sentiments, and emotions, regardless of whether those are expressed in words, painting, sculpture, music, or in other modes.2 It may prohibit the use of his photograph for commercial purposes without his consent.* 8 These are restrictions on the activities of private persons. But the Fourth Amendment puts a restraint on the arm of the Government itself, and prevents it from invading the sanctity of a man’s home or his private quarters in a chase for a suspect, except under safeguards calculated to prevent oppression and abuse of authority.
On the value of the right to privacy, as dear as any to free men, little can or need be added to what was said in Entick v. Carrington, 19 How. St. Tr. 1030, Boyd v. United States, 116 U. S. 616, and Mr. Justice Brandeis’ memorable dissent in Olmstead v. United States, 277 U. S. 438, 471. Suffice it to say that the spiritual freedom of the individual depends in no small measure upon the preservation of that right. Insistence on its retention does not mean that a person has anything to conceal, but means rather that the choice should be his as to what he wishes to reveal, saving only to the Government the right to seek out crime under a procedure with suitable safeguards for the protection of individual rights, such as the warrant whose requisites are set forth in the Fourth Amendment.
'Ibid., pp. 198-199.
8 See Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S. E. 68; Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S. E. 194; Kunz v. Allen, 102 Kan. 883,172 P. 532; Foster-Milbum v. Chinn, 134 Ky. 424,120 S. W. 364; Munden v. Harris, 153 Mo. App. 652,134 S. W. 1076; Flake v. Greensboro News Co., 212 N. C. 780, 195 S. E. 55; Holloman v. Life Ins. Co. of Virginia, 192 S. C. 454, 7 S. E. 2d 169. Of. Henry v. Cherry & Webb, 30 R. I. 13, 73 A. 97; Hillman v. Star Publishing Co., 64 Wash. 691,117 P. 594; Atkinson v. John E. Doherty
Co., 121 Mich. 372; 80 N. W. 285; Jones v. Herald Post Co., 230 Ky. 227, 18 S. W. 2d 972; O’Brien v. Pabst Sales Co. 124 F. 2d 167. See also § 51 of the New York Civil Rights Law.
138	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316U.S.
It will be conceded that if the language of the Amendment were given only a literal construction, it might not fit the case now presented for review. The petitioners were not physically searched. Their homes were not entered. Their files were not ransacked. Their papers and effects were not disturbed. But it has not been the rule or practice of this Court to permit the scope and operation of broad principles ordained by the Constitution to be restricted, by a literal reading of its provisions, to those evils and phenomena that were contemporary with its framing. Cf. Weems v. United States, 217 U. S. 349, 373; United States v. Classic, 313 U. S. 299,316.
The conditions of modern life have greatly expanded the range and character of those activities which require protection from intrusive action by Government officials if men and women are to enjoy the full benefit of that privacy which the Fourth Amendment was intended to provide. It is our duty to see that this historic provision receives a construction sufficiently liberal and elastic to make it serve the needs and manners of each succeeding generation. Cf. Grau v. United States, 287 U. S. 124, 128, and cases cited. Otherwise, it may become obsolete, incapable of providing the people of this land adequate protection. To this end we must give mind not merely to the exact words of the Amendment, but also to its historic purpose, its high political character, and its modern social and legal implications.
With the passing of the years since 1787, marked changes have ensued in the ways of conducting business and personal affairs. Many transactions of a business or personal character that in the eighteenth century were conducted at home are now carried on in business offices away from the home. If the method and habits of the people in 1787 with respect to the conduct of their private business had been what they are today, is it possible to think that the framers of the Bill of Rights would have been
GOLDMAN v. UNITED STATES. 139
129	Murphy, J., dissenting.
any less solicitous of the privacy of transactions conducted in the office of a lawyer, a doctor, or a man of business, than they were of a person’s papers and effects?4
There was no physical entry in this case. But the search of one’s home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person’s privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment.5 Surely the spirit motivating the framers of that Amendment would abhor these new devices no less. Physical entry may be wholly immaterial.® Whether the search of private quarters is accomplished by placing on the outer walls of the sanctum a detectaphone that transmits to the outside listener the intimate details of a private conversation, or by new methods of photography that penetrate walls or overcome distances, the privacy of the citizen is equally invaded by agents of the Government and intimate personal matters are laid bare to view. Such
4 Papers taken from an office in the course of an unreasonable search are taken in violation of the Fourth Amendment. Silverthorne Lumber Co. v. United States, 251 U. S. 385; Gouled v. United States, 255 U. S. 298; Go-Bart Importing Co. v. United States, 282 U. S. 344; United States v. Lejkowitz, 285 U. S. 452.
'Those devices were the general warrants, the writs of assistance and the lettres de cachet.
On the subject of the general warrant, see Entick v. Carrington, 19 How. St. Tr. 1030, and May, Constitutional History of England (2d ed.), vol. Ill, pp. 1-10.
For an account of the writs of assistance, see Quincy (Mass.) 51 (1761) and Gray’s appendix to Quincy’s Reports. See also Tudor, James Otis, p. 66, and John Adams, Works, vol. II, p. 524.
The lettres de cachet are discussed in Chassaigne, Les Lettres de Cachet sous L’ancien Regime (Paris, 1903).
“It is not the breaking of his [man’s] doors, and the rummaging of his drawers, that constitutes the essence of the offence”—those are but “circumstances of aggravation.” Boyd v. United States, 116 U. S. 616, 630.
140	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316U.S.
invasions of privacy, unless they are authorized by a warrant issued in the manner and form prescribed by the Amendment, or otherwise conducted under adequate safeguards defined by statute, are at one with the evils which have heretofore been held to be within the Fourth Amendment, and equally call for remedial action.7
On the basis of the narrow, literal construction of the search and seizure clause of the Fourth Amendment adopted in Olmstead v. United States, 277 U. S. 438,8 Gov-
* A warrant can be devised which would permit the use of a detectaphone. Cf. Article 1, § 12 of the New York Constitution (1938). And, while a search warrant, with its procedural safeguards has generally been regarded as prerequisite to the reasonableness of a search in those areas of essential privacy, such as the home, to which the Fourth Amendment applies (see Agnello v. United States, 269 U. S. 20, 32), some method of responsible administrative supervision could be evolved for the use of the detectaphone which, like the valid search warrant, would adequately protect the privacy of the individual against irresponsible and indiscriminate intrusions by Government officers. See Wigmore, Evidence (3d ed.), vol. 8, § 2184b, pp. 51-2.
While the detectaphone is primarily used to obtain evidence, and while such use appears to be condemned by the rulings of this Court in Gouled v. United States, 255 U. S. 298, and United States v. Lef-kowitz, 285 U. S. 452, I am not prepared to say that this purpose necessarily makes all detectaphone “searches” unreasonable, no matter what the circumstances, or the procedural safeguards employed. Cf. Marron v. United States, 275 U. S. 192. See Wigmore, Evidence (3d ed.), vol. 8, §§ 2251, 2264; 31 Yale L. J. 518, 522; Chafee, Progress of the Law, 1919-1922,35 Harv. L. Rev. 673, 699 ; 32 Col. L. Rev. 386; Cooley, Constitutional Limitations (8th ed.), vol. 1, p. 625.
8 The Olmstead case limits the search and seizure clause to “an official search and seizure of his [defendant’s] person or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house ‘or curtilage’ for the purpose of making a seizure.” 277 U. S. 438, 466.
The decisions of this Court prior to the Olmstead case insisted on a liberal construction of the Fourth Amendment and placed within its compass activities bearing slight, if any, resemblance to the mis-
GOLDMAN v. UNITED STATES. 141
129	Murphy, J., dissenting.
ernment officials could well believe that activities of the character here involved did not contravene the Constitutional mandate. But for my part, I think that the Olmstead case was wrong. The error of the stultifying construction there adopted is best shown by the results to which it leads. It is strange doctrine that keeps inviolate the most mundane observations entrusted to the permanence of paper but allows the revelation of thoughts uttered within the sanctity of private quarters, thoughts perhaps too intimate to be set down even in a secret diary, or indeed, utterances about which the common law drew the cloak of privilege—the most confidential revelations between husband and wife, client and lawyer, patient and physician, and penitent and spiritual adviser. Nor can I see any rational basis for denying to the modern means of communication the same protection that is extended by the Amendment to the sealed letter in the mails. See Ex parte Jackson, 96 U. S. 727. Officers conducting an unreasonable search are seeking evidence as such; the form it takes is of no concern to them.
But even if Olmstead’s case is to stand, it does not govern the present case. It was not the intention of petitioners to project their conversations beyond the walls of petitioner Shulman’s private office.® Whatever may be said of a wire-tapping device that permits an outside telephone conversation to be overheard, it can hardly be doubted that the application of a detectaphone to the walls of a home or a private office constitutes a direct invasion of the privacy of the occupant, and a search of his private quarters.
chiefs known at the time of its adoption. See Boyd v. United States, 116 U. S. 616; Silverthorne Lumber Co. v. United States, 251 U. S. 385; Govled v. United States, 255 U. S. 298.
8 It also appears that the Government agents overheard Shulman’s end of some outside telephone conversations.
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Murphy, J., dissenting.	316U.S.
The circumstance that petitioners were obviously guilty of gross fraud is immaterial. The Amendment provides no exception in its guaranty of protection. Its great purpose was to protect the citizen against oppressive tactics. Its benefits are illusory indeed if they are denied to persons who may have been convicted with evidence gathered by the very means which the Amendment forbids. Cf. Weeks v. United States, 232 U. S. 383. Its protecting arm extends to all alike, worthy and unworthy, without distinction. Rights intended to protect all must be extended to all, lest they so fall into desuetude in the course of denying them to the worst of men as to afford no aid to the best of men in time of need.
The benefits that accrue from this and other articles of the Bill of Rights are characteristic of democratic rule. They are among the amenities that distinguish a free society from one in which the rights and comforts of the individual are wholly subordinated to the interests of the state. We cherish and uphold them as necessary and salutary checks on the authority of government. They provide a standard of official conduct which the courts must enforce. At a time when the nation is called upon to give freely of life and treasure to defend and preserve the institutions of democracy and freedom, we should not permit any of the essentials of freedom to lose vitality through legal interpretations that are restrictive and inadequate for the period in which we live.
MILCOR STEEL CO. v. FULLER CO. 143
Opinion of the Court.
MILCOR STEEL CO. v. GEORGE A. FULLER CO.
ET AL.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 720. Argued March 30, 1942.—Decided April 27, 1942.
1.	It is the claims, not the specifications, that measure the grant of a patent. P. 145.
2.	A disclaimer under the Patent Law, R. S. § 4917, which attempts to add new elements to a claim and thereby changes the character of the claim, is invalid, even though in other respects it narrows the claim. P. 147.
122 F. 2d 292, affirmed.
Certiorari, 314 U. S. 604, to review the affirmance of a judgment dismissing a suit for infringement of a patent.
Mr. George L. Wilkinson, with whom Mr. Asher Blum was on the brief, for petitioner.
Mr. Malcolm K. Buckley, with whom Mr. Conrad Christel was on the brief, for respondents.
Mr. Truman Sunderland Safford filed a brief, as amicus curiae, urging reversal.
Mr. Justice Black delivered the opinion of the Court.
This is a suit brought in the District Court for infringement of two claims of a patent issued to one Holdsworth and assigned to the petitioner. One defense pleaded by the respondents was that Holdsworth was not the original inventor. When a patentee, “through inadvertence, accident, or mistake, and without any fraudulent or deceptive intention . . . has claimed more than that of which he was the original or first inventor . . . ,” Rev. Stat. § 4917, 35 U. S. C. § 65, preserves for him or his as-
144	OCTOBER TERM, 1941.
Opinion of the Court.	316 TJ. S.
signee “all that part which is truly and justly his own, provided the same is a material or substantial part of the thing patented.” The method prescribed for saving the patent in part is “disclaimer of such parts of the thing patented” as the patentee or his assignee “shall not choose to claim.” After the respondents answered, the petitioner filed disclaimers in the patent office with respect to the two claims in suit, purporting to narrow their scope in accordance with the statutory authorization. The defendants then moved for summary judgment on the pleadings pursuant to Rules 12 (c) and 56 (b) of the Federal Rules of Civil Procedure. Their grounds, among others, were that the revised claims added new elements not recited in the original ones; and represented an effort to give the old patent a new scope not previously contemplated and never passed upon in the light of the prior art by the patent office. The District Court found that the disclaimers did import new elements not included in the original claims and held that they rendered the claims invalid, relying upon our decision in Altoona Theatres v. Tri-Ergon Corp., 294 U. S. 477. Accordingly, it entered summary judgment for the defendants. The Circuit Court of Appeals affirmed. 122 F. 2d 292.
As we read the opinion of the court below, it affirms the proposition that, where a disclaimer attempts to add a new element to a claim, the disclaimer is invalid even though it may also make the revised claim narrower than the original. We granted certiorari because of alleged conflict with decisions on the question in other circuits.1 The patent in suit here is for a wall, to be used as a partition between rooms or on the inner side of the walls of the building itself. The necessary parts are a piece
1	See e. g., Payne Furnace & Supply Co. v. Williams-Wallace Co., 117 F. 2d 823; Cincinnati Rubber Mfg. Co. v. Stowe-Woodward, Inc., Ill F. 2d 239.
MILCOR STEEL CO. v. FULLER CO. 145
143	Opinion of the Court.
of metal to be fastened to the ceiling; another to be fastened to the floor; upstanding channel iron supports running between the top and bottom members; metal lathing to be fastened by wires to the skeleton wall in order that plastering may be supported.
The specifications describe and drawings illustrate (1) a top angle iron member with a perforated surface or flange hanging downward so as to fit into slots at the top of the upstanding irons; (2) recesses in the base member providing a snug fit for the bottom part of the upstanding channel irons. The two claims in controversy are printed in the margin.2 As the courts below pointed out, it is these claims, not the specifications, that afford
2	“6. A wall construction for a room having a floor and a ceiling, said wall construction including a base member and a ceiling member, said wall construction also including upstanding wall-supports whose height is less than the maximum vertical distance between said base member and said ceiling member, said upstanding wall supports being located between said base member and said ceiling member, said wall supports being vertically movable relative to said base member and to said ceiling member when said wall supports are assembled with said base member and said ceiling member, and means operative to prevent any substantial tilting movement of said wall supports from, their predetermined upstanding position.
“7. A wall construction for a room having a floor and a ceiling, said Wall construction including a base member and a ceiling member, said Wall construction also including upstanding wall-supports whose height is less than the maximum vertical distance between said base member and said ceiling member, said upstanding wall supports being located between said base member and said ceiling member, said wall supports being vertically movable relative to said base member and to said ceiling member when said wall supports are assembled with said base member and said ceiling member, said base member and said ceiling member being shaped to provide means which are operative to prevent any substantial tilting of said wall supports from their predetermined upstanding position.”
Italics have been added to mark those portions in which the two claims differ from each other.
461263°—43---10
146	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
the measure of the grant to the patentee.8 “Out of all the possible permutations of elements which can be made from the specifications, he reserves for himself only those contained in the claims.” 122 F. 2d 292, 294. The foregoing features appearing in the specifications are not set out in the claims themselves; the claims do not indicate in any way that these features were essential parts of the combination for which the patent was issued. On the contrary, Holdsworth asserted that his specifications in general showed only a “preferred embodiment” of his invention, and with respect to the ceiling member in particular, stated: “I do not wish to be limited to an angle iron for completing the top of the metal construction.”
The disclaimers, however, purported to make these two features essential parts of the claimed combination. One disclaimer substituted for part of one of the original general claims a description of a “ceiling member [which] comprises a vertical depending perforated flange, one side of which is overlapped by metal lathing”; and the other disclaimer substituted for part of another original general claim a description of a “base member . . . composed of a longitudinal strip having recesses to receive the lower ends of the webs of channel wall supports, the flanges of the channel wall supports overlapping the base member adjacent the recesses.” Limiting ourselves, as we must, to the original claims to determine the nature of the combination covered by the patent when it was granted, and comparing that combination with the one purportedly embodied by the claims after the disclaimer, we can only conclude that the revised patent includes new elements which were not present in the original.
3	Rev. Stat. § 4888, 35 U. S. C. § 33, requires that the applicant for a patent “shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.” See Paper Bag Patent Case, 210 U. S. 405, 419; Mahn v. Harwood, 112 U. S. 354, 360-361.
MILCOR STEEL CO. v. FULLER CO. 147
143	Opinion of the Court.
The petitioner’s argument is that the statute authorizes any disclaimer which actually narrows the claim, and that its disclaimer would have the requisite narrowing effect because it would restrict the claims to cover the combination only when the features described in the disclaimers were present.
But in Altoona Theatres v. Tri-Ergon Corp., supra, 489-490, the test which the petitioner argues for here was rejected. Although this Court recognized that an effect of the disclaimer in controversy in the Altoona case was “in one sense to narrow the claims,” it concluded that the disclaimer statute “does not permit the addition of a new element to the combination previously claimed, whereby the patent originally for one combination is transformed into a new and different one for the new combination.”
The Holdsworth patent was for a structure composed of a combination of familiar elements. If there was novelty, it consisted in the combination. “A combination is always an entirety. In such cases, the patentee cannot abandon a part and claim the rest, nor can he be permitted to prove that a part is useless, and, therefore, immaterial. He must stand by his claim as he has made it. If more or less than the whole of his ingredients are used by another, such party . . . has not used the invention or discovery patented. With the change of the elements the identity of the product disappears.” Schumacher v. Cornell, 96 U. S. 549, 554. This Court has explicitly recognized that the disclaimer statute cannot be invoked to justify such a change. Vance v. Campbell, 1 Black 427, 429. And here, as in the Altoona case, the revised claims change the combination set out in the original claims. The disclaimers do more than delete a distinct and separable matter . . . without mutilating or changing what is left standing”; they change the character of the claimed invention and are therefore unau
148	OCTOBER TERM, 1941.
Opinion of the Court.	316 IT. S.
thorized by the disclaimer statute. Hailes v. Albany Stove Co., 123 U. S. 582, 587.
If an alteration of one of the essential elements of a claimed combination were permissible at all, it would be under the reissue statute, Rev. Stat. § 4916, 35 U. S. C. § 64, which grants rights only from the date of reissue and after consideration by the patent office. Altoona Theatres v. Tri-Ergon Corp., supra, 491. To permit such substantial alterations under the disclaimer statute, which, where applicable, gives effect to the revised claims from the date of the original issue without any consideration by the patent office, would be contrary to the policy of the patent laws. In the words of Mr. Justice Bradley, it would permit “a man ... by merely filing a paper drawn up by his solicitor, ¡[to] make to himself a new patent.” Hailes v. Albany Stove Co., supra, 587. Cf. Brooks v. Fiske, 15 How. 212, 219. It would also retroactively create possibilities of innocent infringement where no one would reasonably have suspected them to exist.
The courts below properly decided that the attempted disclaimers here invalidated the claims in controversy. Accordingly, the judgment is
Affirmed.
TRADE COMM’N v. RALADAM CO. 149
Opinion of the Court.
FEDERAL TRADE COMMISSION v. RALADAM COMPANY.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.
No. 826. Argued April 13, 1942.—Decided April 27, 1942.
1.	A judgment refusing to enforce a cease-and-desist order of the Federal Trade Commission because of the inadequacy of the findings and proof as revealed by the particular record is not controlling in later proceedings presenting different facts and a different record. P. 150.
2.	One of the objects of the Federal Trade Commission Act was to prevent potential injury by stopping unfair methods of competition in their incipiency. P. 152.
3.	When the Federal Trade Commission finds that deceptive statements are being made extolling the quality of merchandise in active competition with other merchandise, it is authorized to infer that trade will be diverted from competitors who do not engage in such unfair methods. P. 152.
123 F. 2d 34, reversed.
Certiorari, 315 U. S. 790, to review a judgment setting aside a cease-and-desist order of the Federal Trade Commission.
Mr. Robert L. Stern, with whom Solicitor General Fahy, Assistant Attorney General Arnold, and Mr. Charles H. Weston were on the brief, for petitioner.
Mr. Rockwell T. Gust, with whom Mr. David A. Howell was on the brief, for respondent.
Mr. Justice Black delivered the opinion of the Court
The Circuit Court of Appeals set aside a cease and desist order of the Federal Trade Commission upon the ground that certain findings were not supported by evidence. 123 F. 2d 34. The refusal of the court to enforce the Commission’s order rested in part upon an interpreta-
150	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
tion of this Court’s decision in a prior controversy between the same parties. Federal Trade Comm’n v. Raladam Co., 283 U. S. 643. Because of the importance of questions raised, we granted certiorari.
Section 5 of the Federal Trade Commission Act, 38 Stat. 719, 15 U. S. C. § 45, declares unfair methods of competition in commerce to be unlawful; empowers the Commission to prevent such methods ; and authorizes the Commission after hearings and findings of fact to issue orders requiring violators “to cease and desist from using such method of competition.” In 1929, the Commission, after hearings, found that the Raladam Company had used unfair methods of competition in selling a preparation called Marmola by making misleading and deceptive statements concerning its qualities as a remedy for overweight. The Commission issued a cease and desist order, which the Circuit Court of Appeals vacated. 42 F. 2d 430. This Court affirmed the Court of Appeals’ judgment, saying that there was “neither finding nor evidence from which the conclusion legitimately can be drawn that these advertisements substantially injured or tended . . . to injure the business of any competitor or of competitors generally, whether legitimate or not. ... It is impossible to say whether, as a result of respondent’s advertisements, any business was diverted, or was likely to be diverted, from others engaged in like trade, or whether competitors, identified or unidentified, were injured in their business, or were likely to be injured, or, indeed, whether any other anti-obesity remedies were sold or offered for sale in competition, or were of such a character as naturally to come into any real competition, with respondent’s preparation in the interstate market.” Federal Trade Comm’n v. Raladam Co., supra, 652-653. It is clear that the reasons for refusing to enforce the Commission’s order are grounded upon the inadequacy of the findings and proof, as revealed in the particular record
TRADE COMM’N v. RALADAM CO. 151
149	Opinion of the Court.
then before this Court. Hence, these reasons are not controlling in this case, arising, as it does, out of different proceedings and presenting different facts and a different record for our consideration.
In 1935, the Commission instituted the present proceedings against Raladam, charging unfair methods of competition in violation of § 5 of the Federal Trade Commission Act. Hearings were held and much evidence was heard concerning Raladam’s trade methods since the date of the earlier cease and desist order. This time the Commission found with meticulous particularity that Raladam had made many misleading and deceptive statements to further sales of Marmola; that Marmola had many active rivals for the trade of those who were interested in fatreducing remedies; that Raladam’s misleading statements had the “tendency and capacity” to induce people “to purchase and use respondent’s . . . preparation or medicine for reducing purposes ... in preference to and to the exclusion of the products of competitors, . . . and to divert trade to respondent from such competitors engaged in the sale in interstate commerce of medicines, preparations, systems, methods, books of instruction, and other articles and means designed, intended and used for the purpose of reducing weight.”
These findings were an adequate basis for the Commission’s order. The court below, however, was of the opinion that there was no substantial evidence to support the finding that the alleged unfair methods “substantially injured or tended to injure the business of any competitor.” The evidence shows that sales of Marmola to the consuming public are made at retail drug stores throughout the country; that Raladam distributes Marmola both to wholesalers and retailers; that the wholesalers and retailers who sell Marmola also sell numerous other remedies for taking off fat; that the essential fat-reducing element in Marmola is desiccated thyroid, which is also an
152	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
element in some of the other remedies sold to the public with or without doctors’ prescriptions; that many books of instruction on methods of reducing weight are sold in interstate commerce; and that the gross sales of Marmola were from $350,000 to $400,000 a year. From this and other evidence, the Commission concluded that numerous antifat remedies were offered for sale in the same market as Marmola, and that Marmola was in active competition with them for the favor of the remedy-purchasing public.
It is not necessary that the evidence show specifically that losses to any particular trader or traders arise from Raladam’s success in capturing part of the market. One of the objects of the Act creating the Federal Trade Commission was to prevent potential injury by stopping unfair methods of competition in their incipiency. Fashion Guild v. Trade Comm’n, 312 U. S. 457, 466. And when the Commission finds, as it did here, that misleading and deceptive statements were made with reference to the quality of merchandise in active competition with other merchandise, it is also authorized to infer that trade will be diverted from competitors who do not engage in such “unfair methods.” Federal Trade Comm’n v. Winsted Co., 258 U. S. 483, 493. The findings of the Commission in this case should have been sustained against the attack made upon them.
Raladam contends here, as it did before the Commission and the Circuit Court of Appeals, that the judgment of this Court in the first case makes the issues here in controversy res judicata, and therefore bars these proceedings. It also contends that the denial by this Court and the Circuit Court of Appeals in the earlier proceedings, of the Commission’s motion to offer additional evidence with respect to competitors and injury to competition, should have a like effect. We think these contentions are without merit, and therefore agree with the court below in
MUNICIPAL INVESTORS v. BIRMINGHAM. 153
149	Syllabus.
its determination that a decision on the merits was appropriate.
The respondent has not sought in this Court to sustain the judgment of the court below on any other ground. Accordingly, the judgment is reversed with directions that the order of the Federal Trade Commission be affirmed.
Reversed.
MUNICIPAL INVESTORS ASSOCIATION v. BIRMINGHAM et al.
APPEAL FROM THE SUPREME COURT OF MICHIGAN.
No. 755. Argued April 1, 1942.—Decided April 27, 1942.
1.	When asked to decide whether a contract has been impaired by state legislation, in violation of the Contract Clause of the Constitution, this Court first ascertains whether the alleged contract exists, even though, in so doing, it must determine questions of state law which have not been decided by the state court. P. 157.
2.	Provisions in a municipal charter for making “an additional pro rata assessment” to supply the deficiency when any special assessment shall “prove insufficient” to pay for the improvement for which it was levied, and declaring that the special assessment district bonds issued to pay for an improvement shall “be payable out of the special assessment district fund when the assessment is collected”; together with provisions in the bonds whereby the municipality promises to pay the principal and interest “from the special assessment fund created for the purpose,” and pledges its full faith and credit for the payment of each bond “from the special assessment fund created for the purpose when the same shall have been collected,” do not establish a contractual right in the bondholders to require that the municipality, in order to meet deficiencies in the collection of assessments, shall re-assess lots in the improvement district which have been sold for non-payment of the original assessments. P. 158.
298 Mich. 314, 299 N. W. 90, affirmed.
154	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
Appeal from a judgment refusing a writ of mandamus to compel the City of Birmingham to levy an additional special assessment on land in a special improvement district.
Mr. Claude H. Stevens for appellant.
Messrs. Herbert J. Rushton, Attorney General of Michigan, Ferris D. Stone, Frederic S. Glover, Jr., and Harry Allen were on the brief for appellees.
Mr. Justice Reed delivered the opinion of the Court.
This appeal challenges a decision of the Supreme Court of Michigan, which upheld the constitutionality of Michigan statutes1 extinguishing unmatured special assessments, tax liens or other encumbrances on land sold for tax delinquency, and which therefore refused a writ of mandamus to compel the City of Birmingham to levy an additional special assessment on land so sold, to pay defaulted paving bonds issued in 1928 by its predecessor, the Village of Birmingham. 298 Mich. 314, 299 N. W. 90. The appellant, Municipal Investors Association, as holder of these bonds, claims to have a contract right under the law of Michigan in 1928 to require such an additional assessment, and asserts that the subsequent Michigan statutes construed to prevent the levy impair the obligation of its contract contrary to Article I, § 10 of the United States Constitution.
Determination of this Court’s jurisdiction of the appeal was postponed to the hearing of the case upon the merits. We think that the constitutionality of the two 1937 statutes upheld by the Michigan Supreme Court was sufficiently and seasonably drawn in question in appellant’s reply, and that the jurisdictional requirements of § 237
1Acts Nos. 114, 155, Mich. Pub. Acts of 1937.
MUNICIPAL INVESTORS v. BIRMINGHAM. 155
153	Opinion of the Court.
of the Judicial Code (28 U. S. C. § 344) are satisfied. Appellant challenged the Acts as violative of the Contract Clause. But we find it unnecessary to consider the effect or validity of these statutes, for we think the appellant has failed to establish any contract right to an additional assessment after a sale to enforce an assessment lien under the preexisting Michigan law, in force when the bonds were issued.
The decision refusing mandamus for an additional assessment was entered on the pleadings. These disclose that the Village of Birmingham, in order to pay the cost of paving certain streets, took proceedings in 1928 to assess 23.4% of the cost to the Village at large, and 76.6% to the property abutting the improvement, Special Assessment District No. 146. The property assessment was payable in five equal annual installments commencing with 1928. Of one hundred and ten parcels in District No. 146, about one hundred never paid their shares of the assessment, were offered for sale for these and other unpaid taxes at the annual tax sale of 1938, and were bid in by the State of Michigan. They were not redeemed, and were later sold by the State. About ten parcels in the District paid their shares of the paving assessment and have never been sold for taxes.
In anticipation of the collection of this special assessment the Village had issued in 1928 seventeen annually maturing serial 5^4% bonds. Of these, No. 1 to No. 7 appear to have been paid, No. 8 to No. 11 were refunded, and No. 12 to No. 17, which are held by appellant, have all been in default both as to interest and principal at least since October 1, 1933. A negligible amount is on hand in the special assessment fund, and not over 20% of the amount still owing will be realized from the District’s share in the proceeds of the tax sales. In order to replenish the fund, the appellant seeks to compel the de-
156	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
fendants by the laws in force when the bonds were issued to levy upon all the land in the District, including the lots previously sold for taxes and the original assessment, an additional assessment equal to the unpaid principal and interest.
The general Act under which the Village was incorporated listed among the permissible charter powers a provision “for assessing and reassessing the cost, or any portion thereof, of any public improvement to a special district,” Act No. 278, Public Acts of 1909, § 24 (e); Mich. Comp. Laws (1929) § 1786 (e).2 Pursuant to this authorization, § 15 of Chapter XXI of the village charter provided: “Should any special assessment prove insufficient to pay for the improvement or work for which it was levied, and the expenses incident thereto, the Commission may make an additional pro rata assessment to supply the deficiency; and in case a larger amount shall have been collected than was necessary, the excess shall be refunded ratably to those by whom it was paid.” 3 Section 22 of Chapter XX of the charter stated that special assessment
2 The same act stated that “No village shall have power: ... To issue any bonds without creating a sinking fund for the payment of the same, except special assessment bonds which are a charge upon a special district created for the payment thereof, and serial bonds payable annually.” Act No. 278, Public Acts of 1909, § 26 (k); Mich. Comp. Laws (1929) §1788 (k).
* Section 18 of Chapter X of the charter of the City of Birmingham, adopted in 1933, makes provision for an additional assessment to meet insufficiencies in special assessments “for any cause, mistake or inadvertence.” Section 12 of Chapter XVIII makes these provisions effective for the village debts where legally applicable. Obviously, unless the village charter provision in effect when the bonds were issued authorized additional assessments to meet deficiencies, the city clause could not add that burden to the lots. It would be applicable only if it were a means of enforcing an existing right. Cf. In re Farm Drainage Dist. No. 1, Waupaca County, 232 Wis. 455, 460, 461, 287 N. W. 806,809
MUNICIPAL INVESTORS v. BIRMINGHAM. 157
153	Opinion of the Court.
bonds should “be payable out of the special assessment district fund when the assessment is collected.” In the bonds themselves the Village promised to pay the principal and interest, “said principal and interest however, being payable from the Special Assessment fund created for the purpose . . . The full faith and credit of the Village of Birmingham are hereby pledged for the punctual payment of the principal and interest of this bond from the special assessment fund created for the purpose, when the same shall have been collected.”
The Michigan Supreme Court assumed, without deciding, that these various provisions did include in the bondholders’ contract a right to additional assessments after a tax sale for the payment of deficiencies attributable to non-payment of valid prior assessments. 298 Mich. 314, 319, 299 N. W. 90, 92. As a contract must exist before it can be impaired, and as our conclusion against existence of the contract right settles this case, we feel it proper to consider only whether there was a contract between the bondholders and the Village for an additional assessment on the district property to meet deficiencies, instead of undertaking the resolution of the constitutional issue presented by the challenged statutes of Michigan. While this approach forces us to decide the meaning of Michigan legislation without the assistance of the courts of that State, it is necessary to do so because of the obligation of this Court to determine for itself the basic assumptions upon which interpretations of the Federal Constitution rest.4
The complete charter of the Village is not before us. From the authorized power granted by the Public Act of 1909 under which it was organized, however, from the
4 Appleby v. New York, 271 U. S. 364, 379; Kersh Lake Dist. v. Johnson, 309 U. S. 485, 489-490; Hale v. State Board, 302 U. S. 95, 101.
158	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
language in § 15 of Chapter XXI of the charter providing for “an additional pro rata assessment” and from the terms of the bond, limiting its payment to “the special assessment fund created for the purpose, when the same shall have been collected,” we are satisfied there was no contract to reassess lots once sold for the original assessment. If the stated powers of the Village to levy an assessment on improvement district property required that the lots assessed, after sale for default in their installments, should be subject to an additional assessment to cover such deficiencies, the burden might depress their value to a point where little if anything could be realized for the bondholders, and successful sale for non-payment would be frustrated. This would clearly be true where, as here, a very large proportion of the assessments were defaulted. A prospective investor in the bonds must look ultimately to the sale of each lot for the payment of the amount assessed against that particular parcel.5
Section 15 of the village charter authorizes an additional assessment when the original assessment proves insufficient to pay for the improvement. Assessment bonds may
B A general lien upon lands in a district has been held to be created by suitable statutory provisions. American Securities Co. n. Forward, 220 Cal. 566, 32 P. 2d 343.
In drainage and irrigation districts the cases differ as to whether bonds with the district as obligor are the general obligations of the district or payable only from the special assessments against each parcel.
Separate obligations: Interstate Trust Co. v. Montezuma District, 66 Colo. 219,181 P. 123; State n. Board of Commissioners, 89 Mont. 37, 95, 296 P. 1, 18; Nelson v. Board of Comm’rs, 62 Utah 218, 218 P. 952.
General obligations: American Falls Reservoir Dist. v. Thrall, 39 Idaho 105, 124, 228 P. 236, 241; Noble v. Yancey, 116 Ore. 356, 241 P. 335; State ex rel. Clancy v. Columbia Irrigation Dist., 121 Wash. 79, 87, 208 P. 27, 30.
GEORGIA v. EVANS.	159
153	Syllabus.
be based on undertakings whereby benefited lands may be liable even after they were sold to pay the assessment liens upon them to recover for defaults in sales of other assessed properties. See Kadow v. Paul, 274 U. S. 175. But in the absence of controlling Michigan law, § 15 repels such a construction. The language falls far short of subjecting lots which have been sold to pay tax or assessment liens to an additional assessment for the deficit. Such a construction would defeat the remedy of tax sales as a means of realizing the assessment lien.®
The opinion of the Supreme Court of Michigan does not deal specifically with the status of the lots which have not been sold to satisfy the assessments. In the absence of an assignment of error upon that ground, we express no opinion thereon.
Affirmed.
GEORGIA v. EVANS et al.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 872. Argued April 14, 1942.—Decided April 27, 1942.
A State is a “person” within the meaning of § 7 of the Sherman Act and entitled thereby to sue for treble damages when, as a purchaser of asphalt, it is injured by a combination suppressing competition and fixing prices of that commodity in interstate commerce. United States v. Cooper Corp., 312 U. S. 600, distinguished. P. 162.
123 F. 2d 57, reversed.
’Courts of other states have considered similar questions. Henry Wilcox & Son v. Riverview Dist., 93 Colo. 115, 25 P. 2d 172; Reynard v. Caldwell, 55 Idaho 342, 42 P. 2d 292; Hartz v. Truckenmiller, 228 Iowa 819, 293 N. W. 568; State ex rel. Johnson v. Dayton, 200 Wash. 91, 93 P. 2d 909. But cf. State ex rel. Frazer v. Holt County Court, 135 Mo. 533, 37 S. W. 521; In re Farm Drainage Dist. No. 1, Waupaca County, 232 Wis. 455, 287 N. W. 806 (district was promisor).
160	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Certiorari, 315 U. S. 792, to review the affirmance of a judgment dismissing an action for treble damages under § 7 of the Sherman Act.
Mr. Ellis G. Arnall, Attorney General of Georgia, with whom Mr. E. J. Glower, Assistant Attorney General, was on the brief, for petitioner.
Mr. Edwin W. Moise, with whom Messrs. Hal Lindsay, Felix T. Smith, B. B. Taylor, Barry Wright, Donald R. Richberg, R. L. Wagner, C. S. Gentry, and Marion Smith were on the brief, for respondents.
A brief was filed by thirty-four States, as amici curiae, urging reversal.
Mr. Justice Frankfurter delivered the opinion of the Court.
Complaining that the respondents had combined to fix prices and suppress competition in the sale of asphalt in violation of the Sherman Law, the State of Georgia, which each year purchases large quantities of asphalt for use in the construction of public roads, brought this suit to recover treble damages under § 7 of that Act, 26 Stat. 209, 210; 15 U. S. C. § 15. According to that section, “Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any district court of the United States . . . > and shall recover threefold the damages by him sustained . . .” Section 8 provides that “the word ‘person/ or ‘persons/ wherever used in this act shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country.” 26 Stat. 209, 210; 15 U. S. C. § 7.
GEORGIA v. EVANS.	161
159	Opinion of the Court.
The District Court dismissed the suit on the ground that the State of Georgia is not a “person” under § 7 of the Act. Deeming the question controlled by United States v. Cooper Corp., 312 U. S. 600, the Circuit Court of Appeals for the Fifth Circuit affirmed the judgment. 123 F. 2d 57. The importance of the question in the enforcement of the Sherman Law is attested by the fact that thirty-four States, as friends of the Court, supported Georgia’s request that the decision be reviewed on certiorari. And so we brought the case here.
The only question in the Cooper case was “whether, by the use of the phrase ‘any person,’ Congress intended to confer upon the United States the right to maintain an action for treble damages against a violator of the Act.” 312 U. S. at 604. Emphasizing that the United States had chosen for itself three potent weapons for enforcing the Act—namely, criminal prosecution under §§ 1,2, and 3, injunction under § 4, and seizure of property under § 6—, the Court concluded that Congress did not also give the United States the remedy of a civil action for damages. This interpretation was drawn from the structure of the Act, its legislative history, the practice under it, and past judicial expressions. It was not held that the word “person,” abstractly considered, could not include a governmental body. Whether the word “person” or “corporation” includes a State or the United States depends upon its legislative environment. Ohio v. Helvering, 292 U. S. 360, 370. The Cooper case recognized that “there is no hard and fast rule of exclusion. The purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law.” 312 U. S. at 604-605. Considering all these factors, the Court found that Congress did not give to the Government, in addition to the other remedies ex-461263°»—43" ■ ..*11
162	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
clusively provided for it, the remedy of treble damages— the only remedy originally given to victims, other than the Government, of practices proscribed by the Act.
The considerations which led to this construction are entirely lacking here. The State of Georgia, unlike the United States, cannot prosecute violations of the Sherman Law.1 Nor can it seize property transported in defiance of it. And an amendment was necessary to permit suit for an injunction by others than the United States. See Minnesota v. Northern Securities Co., 194 U. S. 48, 70-71, and Act of October 15,1914, c. 323, § 16, 38 Stat. 730, 737. If the State is not a “person” within § 8, the Sherman Law leaves it without any redress for injuries resulting from practices outlawed by that Act.
The question now before us, therefore, is whether no remedy whatever is open to a State when it is the immediate victim of a violation of the Sherman Law. We can perceive no reason for believing that Congress wanted to deprive a State, as purchaser of commodities shipped in interstate commerce, of the civil remedy of treble damages which is available to other purchasers who suffer through violation of the Act. We have already held that such a remedy is afforded to a subdivision of the State, a municipality, which purchases pipes for use in constructing a waterworks system. Chattanooga Foundry N. Atlanta, 203 U. S. 390. Reason balks against implying denial of such a remedy to a State which purchases materials for use in building public highways. Nothing in the Act, its history, or its policy, could justify so restrictive a construction of the word “person” in § 7 as to exclude a State. Such a construction would deny all redress to
1 In 1914 Congress rejected an amendment to authorize the Attorney General of any State to institute a criminal proceeding, in the name of the United States, to enforce the anti-trust laws. 51 Cong. Rec. 14519, 14527.
GEORGIA v. EVANS.	163
159	Roberts, J., dissenting.
a State, when mulcted by a violator of the Sherman Law, merely because it is a State.2
Reversed.
Mr. Justice Black concurs in the result.
Mr. Justice Roberts:
I agree that this case is not ruled by our decision in United States v. Cooper Corp., 312 U. S. 600. Certain of the reasons adduced in support of that decision are inapplicable here. I am, nevertheless, of opinion that the judgment should be affirmed. I base this conclusion upon the plain words of the Sherman Act. Section 7 provides that “any person who shall be injured in his business or property by any other person,” by any action forbidden by the statute, may sue and recover damages therefor. Section 8 provides that the word “person” or “persons,” wherever used in the Act, “shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country.”
If the word “person” is to include a State as plaintiff, it must equally include a State as a defendant or the language used is meaningless. Moreover, when in § 8 Congress took the trouble to include as “persons” corporations organized under the laws of a State, the inference is plain that the State itself was not to be deemed a corporation organized under its own laws, any more than the United
8 We put to one side the suggestion that if the Sherman Law gives a State a right of action, Article III of the Constitution would give this Court original jurisdiction of such a suit if a State saw fit to pursue its remedy here. If the district courts are given jurisdiction, a State may bring suit there even though under Article III suit might be brought here. United States v. California, 297 U. S. 175, 187.
164	OCTOBER TERM, 1941.
Counsel for Parties.	316U.S.
States is to be deemed a corporation organized under its own laws.
It is not our function to speculate as to what Congress probably intended by the words it used, or to enforce the supposed policy of the Act by adding a provision which Congress might have incorporated but omitted.
WILMINGTON TRUST CO., EXECUTOR, v. HELVERING, COMMISSIONER OF INTERNAL REVENUE.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
No. 775. Argued April 10, 1942.—Decided April 27, 1942.
1.	A finding of the Board of Tax Appeals that certain sales of stock by the taxpayer in this case were ordinary sales and not “short” sales, was supported by substantial evidence and was therefore conclusive. P. 167.
2.	The criteria which the Board employed in determining whether the sales of stock in this case were “short” sales complied with the legal principles announced in Provost v. United States, 269 U. S. 443. P. 168.
3.	The Circuit Court of Appeals is authorized by statute to modify or reverse a decision of the Board of Tax Appeals only if it is “not in accordance with law.” P. 168.
124 F. 2d 156, reversed.
Certiorari, 315 U. S. 789, to review the reversal of a decision of the Board of Tax Appeals, 42 B. T. A. 173, redetermining a deficiency in income tax.
Mr. William S. Potter for petitioner.
Mr. Richard H. Demuth, with whom Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. J. Louis Monarch and Morton K. Rothschild were on the brief, for respondent.
WILMINGTON CO. v. HELVERING. 165
164	Opinion of the Court.
Mr. Justice Douglas delivered the opinion of the Court.
The sole question presented by this case is whether certain sales of shares of stock made by the taxpayer, petitioner’s decedent, were “short” sales or sales of “long” stock. If they were not “short” sales, then the taxpayer was justified in deducting from dividends credited to the “long” shares the amount of dividends charged to the shares sold.
The taxpayer maintained several accounts with a brokerage house—“regular,” “special,” and “short.” The “regular” and “special” accounts were “long” accounts. During the years 1934 and 1935 the taxpayer’s “long” accounts were credited with dividends on certain shares. During the same years, her “short” account was charged with dividends on shares of the same stock issues. The taxpayer did not include in her income tax returns for 1934 and 1935 the dividends credited to her “long” accounts—on the theory that the amount of stock which she owned was not the number of shares credited to her in the “long” accounts, but only the number of shares by which her “long” position exceeded her “short” position in each of the stock issues held in the several accounts. The Commissioner assessed deficiencies on the theory that the sales made through the “short” account were in fact “short” sales, and that the dividends charged to the “short” account represented additional cost of the shares and could not be offset against the dividends credited to the “long” accounts. Accordingly, he ruled that the taxpayer was taxable on all of the dividends credited to her “long” accounts. On a petition for review, the Board of Tax Appeals found that the sales made through the “short” account were sales of shares held in the taxpayer’s “long” accounts. It therefore held that the dividends charged to the “short” account should be offset against the dividend credits.
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42 B. T. A. 173. The Circuit Court of Appeals reversed. 124 F. 2d 156. We granted the petition for certiorari, limited to the question whether the sales in the “short” account were in fact “short” sales, because the action of the Circuit Court of Appeals in setting aside the findings of the Board on that issue was seemingly erroneous under the rule of such cases as Helvering v. Lazarus & Co., 308 U. S. 252.
The findings of the Board were substantially as follows: The sales in question were sales of shares of which the taxpayer held an equal or greater number of the same kind in her “long” accounts. In every such instance the broker, acting under authority from the taxpayer to consider all her accounts as a unit, treated the sales through the “short” account as sales of the taxpayer’s “long” shares. None of these sales was labeled as a “short” sale. The broker required no margin and charged no “short” sale tax. He credited the “short” account with the proceeds and made an entry therein showing delivery of the shares at the time of the execution of the sales to the purchaser. In no such case did the broker borrow any stock from other brokers or customers. Orders were executed on the stock exchange in the regular way, and delivery was made on the next full business day from certificates in “street” names held by the broker’s New York correspondents. Those “street” certificates included shares held by the broker for the taxpayer, though none of them was specifically designated as belonging to the taxpayer. The taxpayer was allowed interest on the proceeds of sale. Dividends were collected for the taxpayer only on the number of shares by which her “long” position exceeded her “short” position. On the other hand, whenever the taxpayer’s “long” accounts contained no shares of the kind sold, the broker executed the sale as a “short” sale, required the customary margin, charged the “short” sale tax, and made delivery from borrowed
WILMINGTON CO. v. HELVERING. 167
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stock. On the basis of such facts, the Board found that “the sales in question were intended to be and were actually executed as ordinary sales, or sales of shares held” in the taxpayer’s “long accounts.”
In overturning that finding of fact, the Circuit Court of Appeals laid great emphasis on the manner in which the transactions were entered on the taxpayer’s books. It also noted that gains or losses were not reported at the moment of the sales, but only when the covering transaction was completed, and that the certificates used in completing the sales were in no way designated as belonging to the taxpayer. And it also stated that it could not be said that the broker did not use borrowed stock to make deliveries on the “short” sales. On that aspect of the case, respondent lays primary emphasis. The contention is that the taxpayer’s “long” stock was not “delivered” in consummation of the sales in the “short” account, since the broker merely made delivery out of certificates in “street” names held by it or for its account, instead of borrowing from other brokers, and since none of those “street” certificates was in any way designated as the taxpayer’s. It is urged that, the facts being undisputed, the question of whether stock was borrowed to complete the sales was a question of law as respects which the Board did not have the final say.
The true character of the “short” account is a question of fact to be determined in the light of the outward or manifested intention of the taxpayer and the way in which the account was actually managed. The designation of the accounts, the fact that, as a matter of bookkeeping, sales made through the “short” account apparently were not reflected in the “long” accounts, the method of reporting gains or losses are some evidence to support the conclusion of the court below. But there are numerous other circumstances which look the other way. They are embraced in the several subsidiary findings which the Board
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made and which we have enumerated. Those findings are supported by substantial evidence and are abundant justification for the Board’s ultimate finding that the sales made through the “short” account were ordinary sales. It is the function of the Board, not the Circuit Court of Appeals, to weigh the evidence, to draw inferences from the facts, and to choose between conflicting inferences. The court may not substitute its view of the facts for that of the Board. Where the findings of the Board are supported by substantial evidence they are conclusive. Hel-vering v. Lazarus & Co., supra; Helvering v. Kehoe, 309 U. S. 277, and cases cited. Under the statute, the court may modify or reverse the decision of the Board only if it is “not in accordance with law.” 44 Stat. 110, 26 U. S. C. § 1141 (c) (1). In this case the criteria which the Board employed in determining whether the sales were “short” sales complied with the legal principles announced in Provost v. United States, 269 U. S. 443.
Reversed.
CHICAGO ET AL. V. FIELDCREST DAIRIES, INC.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 706. Argued March 30, 31, 1942.—Decided April 27, 1942.
The issues involved in a suit in the District Court by a Michigan dairy corporation against an Illinois city and its officials were: first, whether a city ordinance requiring that milk be delivered in “standard milk bottles” should be interpreted as forbidding delivery in paper containers; second, whether, if the ordinance were deemed applicable, it was in conflict with an Illinois statute enacted while the suit was pending; and third, whether, if applicable and valid under the state law, it was invalid under the Federal Constitution. Held that the case should be held by the federal courts to await the outcome of a later suit in the state court in which another cor-
CHICAGO v. FIELDCREST DAIRIES. 169
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poration, parent of the Michigan company, raised substantially the same issues. Railroad Commission v. Pullman Co., 312 U. S. 496, followed. P. 171.
122 F. 2d 132, reversed.
Certiorari, 314 U. S. 604, to review a decree which, on appeal from a decree of the District Court, 35 F. Supp. 451, restrained the city and its officials from prohibiting the use by respondent of paper containers for the distribution of milk.
Messrs. James A. Velde and Walter V. Schaefer, with whom Mr. Barnet Hodes was on the brief, for petitioners.
Mr. Fred A. Gariepy, with whom Mr. Owen Rail was on the brief, for respondent.
By special leave of Court, Mr. Albert E. Hallett, Assistant Attorney General of Illinois, with whom Mr. George F. Barrett, Attorney General, was on the brief, for the State of Illinois, as amicus curiae.
Mr. Justice Douglas delivered the opinion of the Court.
Respondent, a Michigan corporation authorized to do business in Illinois, sells milk to wholesalers and retailers in various cities in the vicinity of Chicago. By an ordinance passed on January 4, 1935, the City of Chicago required that milk or milk products “sold in quantities of less than one gallon shall be delivered in standard milk bottles.” § 3094. Respondent sought a permit from petitioner Board of Health to sell milk in “Pure-Pak” paper containers in that city. That permit was not granted. Thereafter, respondent filed suit against petitioners in the United States District Court for the Northern District of Illinois, alleging, inter alia, that its “single service,
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sterile, sanitary and non-absorbent” containers are “standard milk bottles” within the meaning of the Chicago ordinance; that, if the ordinance is construed as prohibiting respondent from using its paper containers, the ordinance is unconstitutional and invalid under the federal and state constitutions ; and that the refusal of the permit has caused and will cause respondent irreparable damage. The complaint prayed for a declaratory judgment that the ordinance be construed so as not to prohibit respondent from using its containers; or, in the alternative, that the ordinance, insofar as it does prevent such use, is unconstitutional and invalid. Issue was joined. In May, 1939, the District Court referred the cause to a master, who held extended hearings. In July, 1939, the so-called Illinois Milk Pasteurization Plant Law (L. 1939, pp. 660-666; Rev. Stat. 1941, c. 56^, §§ 115-134) was enacted, containing certain provisions regulating the use of single service and paper containers (§ 15), and reserving to cities, villages and incorporated towns the power to regulate the distribution, etc., “of pasteurized milk and pasteurized milk products, provided that such regulation not permit any person to violate any provisions of this Act.” § 19. On April 27,1940, the master submitted his report, finding that respondent’s paper containers were not “standard milk bottles” within the meaning of the ordinance, and that the ordinance as construed was valid and constitutional. In October, 1940, the District Court, on exceptions to the master’s report, held that respondent’s containers were “standard milk bottles” within the meaning of the ordinance. And it went on to hold that, under the Milk Pasteurization Plant Law, the city was without power to prohibit the use of such containers. It entered a decree in accordance with that finding, and enjoined petitioners from interfering with respondent in the sale and delivery of milk and milk products in those con-
CHICAGO v. FIELDCREST DAIRIES. 171
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tamers. 35 F. Supp. 451. On appeal to the Circuit Court of Appeals, that court held that the District Court erred in holding that respondent’s containers were “standard milk bottles” within the meaning of the ordinance. But it concluded that the ordinance, insofar as it prohibited, rather than regulated, the use of paper containers, was invalid by reason of the state Act. And it went on to intimate by way of obiter dictum that, if the ordinance were construed to prohibit the use of respondent’s containers, it would not survive as a constitutional exercise of the police power. 122 F. 2d 132.
On May 15, 1940, while the cause was pending before the District Court, Dean Milk Company, of which respondent is a wholly-owned subsidiary, instituted an action in the Illinois state court against petitioners and other city officials, raising substantially the same issues and seeking substantially the same relief as respondent raised and sought in the federal court. After judgment had been rendered by the District Court in this case, and while the appeal was pending, Dean Milk Company moved in the state court for a decree granting the relief prayed for and retaining jurisdiction by the state court pending final determination of the appeal in this case. Such a decree was entered by the state court in December 1940.
We granted the petition for certiorari because of the doubtful propriety of the District Court and of the Circuit Court of Appeals undertaking to decide such an important question of Illinois law instead of remitting the parties to the state courts for litigation of the state questions involved in the case. Railroad Commission v. Pullman Co., 312 U. S.496.
We are of the opinion that the procedure which we followed in the Pullman case should be followed here. Illinois has the final say as to the meaning of the ordinance in question. It also has the final word on the alleged conflict be
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tween the ordinance and the state Act. The determination which the District Court, the Circuit Court of Appeals, or we, might make could not be anything more than a forecast—a prediction as to the ultimate decision of the Supreme Court of Illinois. Here, as in the Pullman case, “a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication.” 312 U. S. p. 500. Furthermore, the dispute in its broad reach involves a question as to whether a city has trespassed on the domain of a State. Though that issue was not in the case when the complaint was filed, it emerged, due to the passage of the Milk Pasteurization Plant Law, long before the District Court entered its decree. The delicacy of that issue and an appropriate regard “for the rightful independence of state governments” (Beal v. Missouri Pacific R. Co., 312 U. S. 45,50) reemphasize that it is a wise and permissible policy for the federal chancellor to stay his hand in absence of an authoritative and controlling determination by the state tribunals. As we said in the Pullman case, “The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision” and any “needless friction with state policies.” See p. 500 and cases cited; Thompson v. Magnolia Petroleum Co., 309 U. S. 478,483-484. It is an exercise of a “sound discretion, which guides the determination of courts of equity.” Beal v. Missouri Pacific R. Co., supra, p. 50. In this case, that discretion calls for a remission of the parties to the state courts, which alone can give a definitive answer to the major questions posed. Plainly, they constitute the more appropriate forum for the trial of those issues. See 54 Harv. L. Rev. 1379. Considerations of delay, inconvenience, and cost to the parties, which have been urged upon us, do not call for a different result. For we are here concerned with the much larger issue as to the appropriate relationship
CHICAGO v. FIELDCREST DAIRIES. 173
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between federal and state authorities functioning as a harmonious whole.
The desirability of the course which we have suggested is not embarrassed by any question as to whether ready recourse may be had to the state courts. The availability of the state tribunal is obvious, since a case involving substantially identical issues and brought by respondent’s parent corporation is pending in the state court. Cf. Gilchrist v. Interborough Rapid Transit Co., 279 U. S. 159.
It is of course true that respondent sought to raise in its complaint a constitutional issue—an issue which lurks in the case even though it not be deemed substantial. But here, as in the Pullman case, that issue may not survive the litigation in the state courts. If it does not, the litigation is at an end. That again indicates the wisdom of allowing the local law issues first to be resolved by those who have the final say. Avoidance of constitutional adjudications where not absolutely necessary is part of the wisdom of the doctrine of the Pullman case.
We therefore vacate the judgment and remand the cause to the District Court with directions to retain the bill pending a determination of proceedings in the state court in conformity with this opinion.
It is so ordered.
Mr. Justice Roberts concurs in the result.
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STATE TAX COMMISSION OF UTAH v. ALDRICH et al., ADMINISTRATORS.
CERTIORARI TO THE SUPREME COURT OF UTAH.
No. 814. Argued March 12, 1942.—Decided April 27, 1942.
A State may, consistently with the Fourteenth Amendment, impose a tax upon a transfer by death of shares of stock in a corporation which is incorporated under its laws, even though the decedent, of whose estate the shares were a part, was domiciled at the time of death in another State, where the certificates representing the shares were held; though the certificates were never within the State of incorporation; and though for many years the corporation had kept its stock books, records and transfer agents in the State where decedent was domiciled, and had maintained none of these in the State of incorporation. First National Bank v. Maine, 284 U. S. 312, overruled. P. 180.
116 P. 2d 923, reversed.
Certiorari, 315 U. S. 789, to review the affirmance of a declaratory judgment that the transfer of stock by death, here involved, was not subject to tax under the Utah Inheritance Tax Law.
Messrs. J. Lambert Gibson and Garfield 0. Anderson for petitioner.
Mr. Melber Chambers for respondents.
Mr. Justice Douglas delivered the opinion of the Court.
The sole question presented by this case is whether the State of Utah is precluded by the Fourteenth Amendment from imposing a tax upon a transfer by death of shares of stock in a Utah corporation, forming part of the estate of a decedent who, at the time of his death, was domiciled in the State of New York and held there the certificates representing those shares.
In 1940, Edward S. Harkness died testate, being at that time domiciled in New York. His estate was probated
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in New York, where respondents were appointed executors. Respondents were also appointed administrators with the will annexed, in Utah. At the time of his death, Harkness was the owner of 10,000 shares of common stock and 400 shares of preferred stock of the Union Pacific Railroad Co., a Utah corporation. The certificates representing those shares were never within Utah. They were in the possession of Harkness in New York at the time of his death, and are now held by respondents. For many years, the Union Pacific Railroad Co. has kept its stock books and records and transfer agents in New York, and has not maintained any in Utah. These shares are the only property owned by decedent which is claimed to be within the jurisdiction of Utah. At the date of decedent’s death, a New York statute allowed as a credit against the estate tax imposed by New York the amount of any constitutionally valid estate or inheritance tax paid to any other state within three years after the decedent’s death.1
Respondents sought a declaratory judgment in the Utah court holding that the transfer of the shares was not subject to tax by Utah under the provisions of its inheritance tax law.2 The trial court entered judgment for respond
1N. Y. L. 1930, c. 710, § 1, amended L. 1934, c. 639, § 1; McKinney’s Cons. L., Bk. 59, Tax Law, § 249-o. This section was repealed by L. 1940, c. 138. For the present provision, see McKinney, op. dt., Cum. Ann. Pt. (1941) § 249-o.
’Rev. Stat. Utah, 1933, § 80-12-2 provides:
“A tax equal to the sum of the following percentages of the market value of the net estate shall be imposed upon the transfer of the net estate of every decedent, whether a resident or nonresident of this state:
“Three per cent of the amount by which the net estate exceeds $10,000 and does not exceed $25,000;
“Five per cent of the amount by which the net estate exceeds $25,000.”
Sec. 80-12-3 provides:
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Opinion of the Court.	316 U. S.
ents. The Supreme Court of Utah, under the compulsion of First National Bank v. Maine, 284 U. S. 312, affirmed. 116 P. 2d 923. We granted the petition for certiorari so that the constitutional basis of First National Bank v. Maine could be reexamined in the light of such recent decisions as Curry v. McCanless, 307 U. S. 357, and Graves v. Elliott, 307 U. S. 383. And see Commonweal th v. Stewart, 338 Pa. 9,12 A. 2d 444, aff’d 312 U. S. 649.
There can be no doubt but that the judgment below should be affirmed if First National Bank v. Maine is to survive, as the judgment in that case prohibited the State of Maine from doing what the State of Utah is here attempting. But we do not think it should survive. And certainly it cannot if the principles which govern the Curry and Graves cases rest on firm constitutional grounds.
First National Bank v. Maine, like its forerunners Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204, and Baldwin v. Missouri, 281 U. S. 586, read into the Fourteenth Amendment a “rule of immunity from taxation by more than one state.” 284 U. S. p. 326. As we said in the Curry case, that doctrine is of recent origin. Prior to 1930, when Blackstone v. Miller, 188 U. S. 189, was overruled by Farmers Loan & Trust Co. v. Minnesota, the adjudications of this Court clearly demanded a result opposite from that which obtained in First National Bank v. Maine. That was recognized by the majority in the latter case (284 U. S. p. 321)—and properly so, because Blackstone v. Miller rejected the notion that there were constitutional objec-
“The value of the gross estate of a decedent shall be determined by including the value at the time of his death of all property, real or personal, within the jurisdiction of this state, and any interest therein, whether tangible or intangible, which shall pass to any person, m trust or otherwise, by testamentary disposition or by law of inheritance or succession of this or any other state or country, or by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after his death.”
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tions to double taxation of intangibles by States which had command over them or their owner. And see Kidd v. Alabama, 188 U. S. 730, 732. Blackstone v. Miller permitted New York to tax the transfer of debts owed by New York citizens to a decedent who died domiciled in Illinois, although Illinois had taxed the entire succession. Mr. Justice Holmes, speaking for the Court, upheld the power of New York to collect the tax because the transfer of the debts “necessarily depends upon and involves the law of New York for its exercise.” 188 U. S. p. 205. It was that view which the minority in First National Bank v. Maine championed. They maintained that there was no constitutional barrier to taxation by Maine of the transfer of the shares of stock of the Maine corporation, since the nature and extent of the decedent’s interest in the shares were “defined by the laws of Maine, and his power to secure the complete transfer” was “dependent upon them.” 284 U. S. p. 332. That view had been repeatedly expressed in other earlier cases touching on the rights of a State to tax intangibles over which it had command though the owner was a non-resident. Tappan v. Merchants’ Nat. Bank, 19 Wall. 490, 503-504; Hawley v. Malden, 232 U. S. 1, 12; Baker v. Baker, Eccles & Co., 242 U. S. 394, 401; Frick v. Pennsylvania, 268 U. S. 473, 497; Rhode Island Hospital Trust Co. v. Doughton, 270 U. S. 69,81. As stated by Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 429, the power to tax “is an incident of sovereignty, and is co-extensive with that to which it is an incident. All subjects over which the sovereign power of a state extends, are objects of taxation. . . .”
It was that view which we followed in the Curry case. We held there that the Fourteenth Amendment did not prevent both Alabama and Tennessee from imposing death taxes upon the transfer of an interest in intangibles held in trust by an Alabama trustee but passing under the will of a beneficiary decedent domiciled in Tennessee.
461263°—43--12
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We stated that rights to intangibles “are but relationships between persons, natural or corporate, which the law recognizes by attaching to them certain sanctions enforceable in courts. The power of government over them and the protection which it gives them cannot be exerted through control of a physical thing. They can be made effective only through control over and protection afforded to those persons whose relationships are the origin of the rights. . . . Obviously, as sources of actual or potential wealth—which is an appropriate measure of any tax imposed on ownership or its exercise—they cannot be dissociated from the persons from whose relationships they are derived. These are not in any sense fictions. They are indisputable realities.” 307 U. S. p. 366. We held that the power to tax intangibles was not restricted to one State, whether “we regard the right of a state to tax as founded on power over the object taxed, as declared by Chief Justice Marshall in McCulloch v. Maryland, supra, through dominion over tangibles or over persons whose relationships are the source of intangible rights; or on the benefit and protection conferred by the taxing sovereignty, or both.” Id. pp. 367-368. And we added: “Shares of corporate stock may be taxed at the domicile of the shareholder and also at that of the corporation which the taxing state has created and controls; and income may be taxed both by the state where it is earned and by the state of the recipient’s domicile. Protection, benefit, and power over the subject matter are not confined to either state.” Id., p. 368. In the recent case of Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444, we gave renewed expression to the same view: “A state is free to pursue its own fiscal policies, unembarrassed by the Constitution, if by the practical operation of a tax the state has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has
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conferred by the fact of being an orderly, civilized society.” And see Graves v. Schmidlapp, 315 U. S. 657.
Furthermore, the rule of immunity against double taxation espoused by First National Bank v. Maine, had long been rejected in other cases. Kidd v. Alabama, supra; Fort Smith Lumber Co. v. Arkansas, 251U. S. 532; Cream of Wheat Co. v. Grand Forks, 253 U. S. 325. We rejected it again only recently. Illinois Centred R. Co. v. Minnesota, 309 U. S. 157. And as we pointed out in the Curry case, the reasons why the Fifth Amendment “does not require us to fix a single exclusive place of taxation of intangibles for the benefit of their foreign owner” (Burnet v. Brooks, 288 U. S. 378) are no less cogent in case of the Fourteenth. 307 U. S. pp. 369, 370.
The recent cases to which we have alluded are all distinguishable on their facts. But their guiding principles are irreconcilable with the views expressed in First National Bank v. Maine. If we raised a constitutional barrier in this case after having let it down in the Curry case, we would indeed be drawing neat legal distinctions and refinements which certainly cannot be divined from the language of the Constitution. Certainly any differences between the shares of stock in this case and the intangibles in the Curry case do not warrant differences in constitutional treatment so as to forbid taxation by two States in the one case and to permit it in the other. If we perpetuated any such differences, we would be doing violence to the words “due process” by drawing lines where the Fourteenth Amendment fails to draw them. Furthermore, the legal interests in the intangibles here involved are as diverse as they were in the intangibles in the Curry case. And to say that these shares of stock were localized or had an exclusive situs in New York would be to indulge in the fiction which we rejected in the Curry case. Any such attempt to fix their
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whereabouts in New York would disregard the intimate relationship which Utah has to this corporation and its shares.
More specifically, if the question is “whether the state has given anything for which it can ask return” (Wisconsin v. J. C. Penney Co., supra, p. 444), or whether the transfer depends upon and involves the law of Utah for its exercise (Blackstone v. Miller), there can be no doubt that Utah is not restrained by the Fourteenth Amendment from taxing this transfer. The corporation owes its existence to Utah. Utah law defines the nature and extent of the interest of the shareholders in the corporation. Utah law affords protection for those rights. Utah has power over the transfer by the corporation of its shares of stock. Certainly that protection, benefit, and power over the shares would have satisfied the test of Blackstone v. Miller and Curry n. McCanless. But it is said that we are here interested only in the factum of the transfer, and that the stockholder in the case at bar had no need to invoke the law of Utah to effect a complete transfer of his interest. The argument is based on the fact that the transfer office is located outside Utah, and that, under the Uniform Stock Transfer Act which Utah has adopted (Rev. Stat. 1933 § § 18-3-1 et seq.), the trend is to treat the shares as merged into the certificates in situations involving the ownership and transfer of the shares. We do not stop to analyze the many cases which have been cited, nor to speculate as to how Utah would interpret its law in this regard. Suffice it to say, that if that freedom of transfer exists as respondents claim, it stems from Utah law. It finds its ultimate source in the authority which Utah has granted. It is indeed a benefit which Utah has bestowed. For it alone Utah may constitutionally ask a return. In view of these realities, we cannot say with the majority in First National Bank n. Maine, p. 327, that a “transfer from the dead to the living of any specific property is an event
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single in character and is effected under the laws, and occurs within the limits, of a particular state,” so as to preclude Utah from imposing a tax on this transfer.
We are of course not unmindful of the notions expressed in Farmers Loan. & Trust Co. v. Minnesota, and repeated in First National Bank N. Maine, that the view championed by Blackstone v. Miller disturbed the “good relations among the States” and had a “bad” practical effect which led many States “to avoid the evil by resort to reciprocal exemption laws.” 280 U. S. p. 209. But, as stated by the minority in First National Bank v. Maine, “We can have no assurance that resort to the Fourteenth Amendment, as the ill-adapted instrument of such a reform, will not create more difficulties and injustices than it will remove.” 284 U. S. p. 334. More basically, even though we believed that a different system should be designed to protect against multiple taxation, it is not our province to provide it. See Curry v. McCanless, supra, pp. 373-374. To do so would be to indulge in the dangerous assumption that the Fourteenth Amendment “was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.” Mr. Justice Holmes, dissenting, Baldwin v. Missouri, supra, p. 595. It would violate the first principles of constitutional adjudication to strike down state legislation on the basis of our individual views or preferences as to policy, whether the state laws deal with taxes or other subjects of social or economic legislation.
For the reasons stated, we do not think that First National Bank v. Maine should survive. We overrule it. In line with our recent decisions in Curry n. McCanless, Graves v. Elliott and Graves v. Schmidlapp, we repeat that there is no constitutional rule of immunity from taxation of intangibles by more than one State. In case of shares of stock, “jurisdiction to tax” is not restricted to the domiciliary State. Another State which has extended benefits
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or protection, or which can demonstrate “the practical fact of its power” or sovereignty as respects the shares (Blackstone v. Miller, p. 205), may likewise constitutionally make its exaction. In other words, we restore these intangibles to the constitutional status which they occupied up to a few years ago. See Greves v. Shaw, 173 Mass. 205, 53 N. E. 372; Larson v. MacMiller, 56 Utah 84,189 P. 579, and cases collected in 42 A. L. R. pp. 365 et seq.
We reverse the judgment below and remand the cause to the Supreme Court of Utah for proceedings not inconsistent with this opinion.
Reversed.
Mr. Justice Frankfurter, concurring:
A case of this kind recalls us to first principles.
The taxing power is an incident of government. It does not derive from technical legal concepts. The power to tax is coextensive with the fundamental power of society over the persons and things made subject to tax. Each State of the Union has the same taxing power as an independent government, except insofar as that power has been curtailed by the federal Constitution.
The taxing power of the States was limited by the Constitution and the original ten amendments in only three respects: (1) no State can, without the consent of Congress, lay any imposts or duties on imports or exports, except as necessary for executing its inspection laws, Art. I, § 10 [2]; (2) no State can, without the consent of Congress, lay any tonnage duties, Art. I, § 10 [3]; and (3) by virtue of the Commerce Clause, Art. I, § 8 [3], no State can tax so as to discriminate against interstate commerce. (For present purposes, I put the Contract Clause to one side). None of these limitations touches the power of a State to create corporations and the incidental power to tax opportunities which such State-created corporations afford.
STATE TAX COMM’N v. ALDRICH. 183
174	Frankfurter, J, concurring.
This phase of the taxing power, rooted in the established practices of the States in common with other governments, was not suddenly abrogated on July 28,1868, when the Fourteenth Amendment became the law of the land. On the contrary, taxes based on the States’ power over corporations of their own creation thereafter became an increasingly familiar source of revenue. Of course, the Due Process Clause has its application to the taxing powers of the States—a State cannot tax a stranger for something that it has not given him. When a State gives nothing in return for exacting a tax, it may be said that there is no “jurisdiction to tax.” But that phrase obscures rather than enlightens, for it only states a result and does not analyze the Constitutional problem. The right of a State to tax the effective acquisition of membership in a domestic corporation, wherever the piece of paper representing such a taxable interest may be physically located,—the immediate question before us—was not doubted until the decision of this Court only ten years ago in First National Bank v. Maine, 284 U. S. 312. That decision, as was made clear in its dissent, was an unwarranted deviation from unbroken legal history and fiscal practice. Drawn as the decision was “from the void of ‘due process of law’, when logic, tradition and authority have united to declare the right of the State to lay” such a tax (Holmes, J., dissenting in Baldwin v. Missouri, 281 U. S. 586, 596), due regard for the Constitution demands that the deviation be not perpetuated and that the power erroneously withdrawn from the States be again recognized.
Modern enterprise often brings different parts of an organic commercial transaction within the taxing power of more than one State, as well as of the Nation. It does so because the transaction in its entirety may receive the benefits of more than one government. And the exercise by the States of their Constitutional power to tax may
184	OCTOBER TERM, 1941.
Frankfurter, J., concurring.	316U.S.
undoubtedly produce difficult political and fiscal problems. But they are inherent in the nature of our federalism and are part of its price. These difficulties are not peculiar to us. Kindred problems have troubled other constitutional federalisms. For Australia, see Report of the Royal Commission on the Constitution, Parliament of the Commonwealth of Australia (1929), p. 187 et seq.; for Canada, see 1 Report of the Royal Commission on Dominion-Provincial Relations (1940), p. 202 et seq.
“A good deal has to be read into the Fourteenth Amendment to give it any bearing upon this case.” Holmes, J., dissenting in Farmers Loan Co. v. Minnesota, 280 U. S. 204, 218. We would have to read into that Amendment private notions as to tax policy. But whether a tax is wise or expedient is the business of the political branches of government, not ours. Considerations relevant to invalidation of a tax measure are wholly different from those that come into play in justifying disapproval of a tax on the score of political or financial unwisdom.
It may well be that the last word has not been said by the various devices now available—through uniform and reciprocal legislation, through action by the States under the Compact Clause, Art. I, § 10 [3], or through whatever other means statesmen may devise—for distributing wisely the total national income for governmental purposes as between the States and the Nation. But even if it were possible to make the needed adjustments in the fiscal relations of the States to one another and to the Federal Government through the process of episodic litigation— which to me seems most ill-adapted for devising fiscal policies—it is enough that our Constitutional system denies such a function to this Court.
I agree, therefore, that First National Bank N. Maine should be overruled and that the tax imposed by Utah
STATE TAX COMM’N v. ALDRICH. 185
174	Jackson, J., dissenting.
in this case is valid. To refuse to nullify legislation the frailties of which we think we see, is to respect the bounds of our Constitutional authority and not to indulge in a fiction. See James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129. To allow laws to stand is to allow laws to be made by those whose task it is to legislate. The nullification of legislation on Constitutional grounds has been recognized from the beginning as a most “delicate” function, not to be indulged in by this Court simply because it has formal power to do so, but only when compelling considerations leave no other choice. To suggest that when this Court finds that a law is not offensive to the Constitution and that it must therefore stand, we make the same kind of judgment as when on rare occasions we find that a law is offensive to the Constitution and must therefore fall, is to disregard the role of this Court in our Constitutional system since its establishment in 1789.
Mr. Justice Jackson, dissenting:
State taxation of transfer by death of intangible property is in something of a jurisdictional snarl, to the solution of which this Court owes all that it has of wisdom and power. The theoretical basis of some decisions in the very practical matter of taxation is not particularly satisfying.1 But a switch of abstract concepts is hardly to be expected without at least careful consideration of its impact on the very practical and concrete problems of States and taxpayers.
xOf one of them, Mr. Justice Holmes said: “It seems to me that the result reached by the Court probably is a desirable one, but I hardly understand how it can be deduced from the Fourteenth Amendment . . .” Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 211.
186	OCTOBER TERM, 1941.
Jackson, J., dissenting.	316U.S.
Weighing the highly doctrinaire reasons advanced for this decision against its practical effects on our economy and upon our whole constitutional law of state taxation, I can see nothing in the Court’s decision more useful than the proverbial leap from the frying pan into the fire.
I
There is little persuasion and certainly no compulsion in the authorities mustered by the Court’s present opinion, which are either admittedly overruled cases, such as Blackstone v. Miller, 188 IT. S. 189, or admittedly distinguishable ones, such as Curry v. McC unless, 307 U. S. 357; Graves v. Elliott, 307 U. S. 383; Wisconsin v. J. C. Penney Co., 311 U. S. 435. Such authorities are not impressive in vindication of such a judgment. Without discussion of the academic merits of the decision that is being overruled, I am willing to proceed on the estimate of it made at the time of its pronouncement by the present Chief Justice, who said in his dissent: “Situs of an intangible, for taxing purposes, as the decisions of this Court, including the present one, abundantly demonstrate, is not a dominating reality, but a convenient fiction which may be judicially employed or discarded, according to the result desired.” First National Bank v. Maine, 284 IT. S. 312, 332. The Court now discards this fiction in favor of one calling for a different result.
This older rule ascribed a fictional consequence to the domicile of a natural person; it is overruled by ascribing a fictional consequence to the domicile of an artificial corporation. The older rule emphasized dominance by the individual over his intangible property, the tax situs of which followed the domicile of its owner. Today’s new rule emphasizes the dominance of the corporation, a crea-
STATE TAX COMM’N v. ALDRICH. 187
174	Jackson, J., dissenting.
ture of the legal imagination.2 To this fictional personality it ascribes a hypothetical “domicile” in a place where it has but a fraction of its property and conducts only its formal corporate activities; and on the union of these two fictions it permits the chartering State to tax the estates of persons who never lived or did business therein. The reasoning back of the holding is this: Because Utah issued a charter to a corporation, which issued stock to a nonresident, which changed hands at his death, which required a transfer on the corporation’s books, which transfer was permitted by Utah law, Utah got jurisdiction to tax succession to the stock. It is really as remote as that.
No one questions that a State which charters a corporation, even though it amounts to no more than giving “to airy nothing a local habitation and a name,” has the right to exact a charter fee, an incorporation tax, or a franchise tax from the artificial entity it has created. But that such chartering enables the taxing arm of the State to reach the estate of every stockholder, wherever he lives, and to tax the entire value of the stock because of “opportunities which it has given,” “protection which it has afforded,” or “benefits which it has conferred” is quite another matter. Utah is permitted to tax the full value
8 A corporation is defined by John Marshall as “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636. The New York Court of Appeals has said: “A corporation, however, is a mere conception of the legislative mind. It exists only on paper through the command of the legislature that its mental conception shall be clothed with power.” People v. Knapp, 206 N. Y. 373, 381, 99 N. E. 841, 844. “It took half a century of litigation in this Court finally to confer on a corporation, through the use of a fiction, citizenship in the chartering state for jurisdictional purposes. . . . Throughout, the mode of thought was metaphorical.” Mr. Justice Frankfurter, in Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. 8. 165, 169. Compare the cases where courts are obliged to disregard the corporate entity to avoid a variety of injustices. See Wormser, Disregard of the Corporate Fiction (1927).
188	OCTOBER TERM, 1941.
Jackson, J., dissenting.	316 U. S.
of each share of Union Pacific stock passing by death. Any conceivable “opportunity,” “protection,” or “benefit” derived by the Union Pacific stockholders from Utah is negligible in proportion to the values Utah is authorized to tax.
It would be hard to select a case that would better demonstrate the fictional basis of the Court’s doctrine of benefits and protection than this case of Utah and the Union Pacific Railroad. When Utah was admitted to statehood in 1896, the Union Pacific Railroad was already old as a national institution. The first white settlement in Utah made by the Mormons was in its second year when President Taylor recommended to Congress consideration of a railroad to the Pacific as a “work of great national importance and of a value to the country which it would be difficult to estimate.”3 In 1853, Congress appropriated $150,000 to make explorations and surveys to “ascertain the most practical and economical route.”4 In 1860, both the leading political parties in their platforms declared in favor of building such a road.5 President Lincoln, on July 1, 1862, signed6 the war measure creating the Union Pacific Railroad Company and subsidizing the construction of the road,7 which opened on
3 6 Messages and Papers of the Presidents 2558, Message of December 4, 1849. President Buchanan also repeatedly recommended the road as a defense necessity to be constructed under the war power. Id. at 2988; Id., Vol. 7, at 3057,3103,3181.
‘10 Stat. 219.
BTrottman, History of the Union Pacific (1923) 8.
•Sandburg, Abraham Lincoln—The War Years, Vol. 1, 510. See also Vol. 2, 461, for an account of Lincoln’s selection of the location of its eastern terminal.
’It granted a right of way across the public lands owned by the United States and a subsidy loan of $16,000 per mile for the construction on the plain, $48,000 per mile for one hundred and fifty miles over the Rocky Mountains, and $32,000 per mile for the remainder. The construction amounted to 1,034 miles, and the subsidy loan to $27,236,512. The Central Pacific, for 883 miles constructed from San Francisco to
STATE TAX COMM’N v. ALDRICH. 189
174	Jackson, J., dissenting.
May 10, 1869.* 8 The story of the Union Pacific has been a part of our national history. Not even its scandals were local. Its Credit Mobilier scandal rocked the Nation.9
The road continued to be a national problem as well as a national enterprise. President Cleveland recommended to Congress in his message of December 3, 1894 consideration of reorganization.10 11 The steps taken by the Government were reported to the Congress by President McKinley in his annual messages of 1897, 1898, and 1899. He reported the sale of the Union Pacific main line under the decree of the United States Court for the District of Nebraska on November 1 and 2,1897.11 Utah, on July 1,1897, granted a charter to the present Union Pacific Railroad Company, as the Federal Government or any one of several state governments might have done. It has become one of the great and stable transportation systems of the United States.
If it had only the “opportunities” and “benefits” conferred by Utah and only the properties protected by her laws, the Union Pacific would cut little figure either in transportation or finance. It holds its stockholders’ meetings in that State. But it maintains no executive office or stock transfer office in Utah. Its executive and stock transfer offices are in New York City. Its stocks are listed on the New York, Boston, London, and Amsterdam stock exchanges. Over 200,000 shares of its stock were traded on the New York Stock Exchange in 1939.12 Its western operating office is not in Utah, but in Omaha, Nebraska. It is stipulated that less than 9% of its 9877 miles of
meet the Union Pacific, received nearly an equal amount. 12 Stat. 489. Further grants were made by an Act of July 2, 1864, 13 Stat. 356.
811 Messages and Papers of the Presidents 638.
’Bowers, The Tragic Era (1929) 396 et seq.
1013 Messages and Papers of the Presidents 5969.
1113 Messages and Papers of the Presidents 6273, 6343, 6390.
“Moody’s Steam Railroads (1940) 907.
190	OCTOBER TERM, 1941.
Jackson, J., dissenting.	316U.S.
trackage are in Utah and that, during 1939, the railway operating revenue from Utah intrastate business plus the Utah proportion on a mileage basis of its interstate business was 8.97% of the entire gross operating revenues of the company.
What gives the Union Pacific stock its value, all of which is appropriated by this decision to Utah’s taxing power, is its operation in interstate commerce, a privilege which comes from the United States and one which Utah does not give or protect and could not deny. The Union Pacific system itself is in interstate operation, embracing thirteen states and drawing its business from the whole country. Approximately 37% of its total tonnage was received from connecting lines.13 If the values derived from privileges extended by the National Government and from rendering national transportation were to be allocated to any single State for tax purposes, a realistic basis would entitle the five States of Idaho, Kansas, Nebraska, Oregon, and Washington to some consideration, for each embraces, authorizes, and protects by its laws more miles of trackage than does Utah.14
These facts leave nothing of Utah’s claim to tax the full value of Union Pacific shares when transferred by death of a nonresident stockholder, and no basis for the Court’s decision that it may do so, except the metaphysics of the corporate charter.
II
The theories on which this case is decided contrast sharply with certain hard facts which measure the decision’s practical wisdom or lack of it.
13 Moody’s Steam Railroads (1940) 895.
“Mileage of the system is as follows: (1) Idaho, 2051.12; (2) Nebraska, 1355.68; (3) Oregon, 1172.48; (4) Kansas, 1159.87; (5) Washington, 1047.04; (6) Utah, 888.47; (7) Wyoming, 717.32; (8) Colorado, 609.13; (9) California, 390.52; (10) Nevada, 358.12; (11) Montana, 143.46; (12) Iowa, 2.48; (13) Missouri, 2.16. Moody’s Steam Railroads (1940) 893.
STATE TAX COMM’N v. ALDRICH. 191
174	Jackson, J., dissenting.
1.	The effect of the Court’s decision is to intensify the already unwholesome conflict and friction between the States of the Union in competitive exploitation of intangible property as a source of death duties.
The practical issue underlying this case is not whether the Harkness estate shall pay or avoid a transfer tax. The issue is whether Utah or New York will collect this tax. It is admitted that if this Court breathes constitutionality into this Utah tax, all that Utah gets will be credited to the Harkness estate on its tax payable in New York as the State of domicile. The right of a State to tax succession to corporate stock by death of one domiciled therein, while not abrogated, is now subjected to an interfering and overlapping right of the State which chartered the corporation to tax the same stock transfer on a different and inconsistent principle. Since the chartering State has apparently been empowered to exact its tax as a condition of permitting the transfer, the taxing power of the State of the stockholder’s domicile is really subordinated and deferred to the taxing power of the chartering State. By laying its tax on the gross value transferred, irrespective of the net value of the decedent’s estate, the chartering State may give its tax an effective priority of payment over the taxes laid by the domiciliary State and may collect what amounts to an inheritance tax even when there is no net estate to transfer. Thus, through the corporate charter fiction, the chartering State may thrust its own tax with extraterritorial effect between the taxing power of the State of domicile and tax resources to which that State has had, and I think should have, first and, under ordinary circumstances, exclusive resort.
2.	To subject intangible property to many more sources of taxation than other wealth, prejudices its relation to other investments and other wealth by a discrimination which has no basis in the function that intangibles per-
192	OCTOBER TERM, 1941.
Jackson, J., dissenting.	316U.S.
form for our present society.16 Intangibles, except for government issues, are an outgrowth of our modern corporation system. Of relatively recent growth, the corporation has become almost the unit of organization of our economic life. Whether for good or ill, the stubborn fact is that in our present system the corporation carries on the bulk of production and transportation, is the chief employer of both labor and capital, pays a large part of our taxes, and is an economic institution of such magnitude and importance that there is no present substitute for it except the State itself. Except for the easy circulation and ready acceptability of pieces of paper characterized as stocks or bonds, this existing system could not function. It is these intangible symbols or tokens which give liquidity and mobility to otherwise fixed underlying plant assets, which give ready negotiability to fractional interests therein that would otherwise transfer with difficulty, and which divide among many both benefits and risks from aggregation of properties whose successful functioning for society requires unified management of the bulk. The amount of plant and material and goods in process, working capital, good will, and organization at any time devoted
16 The burdens imposed by the present decision are cumulative and must be considered in relation to taxation of intangibles in some circumstances by States other than that of domicile (Curry v. McCunless,
307	U. S. 357; Graves v. Elliott, 307 U. S. 383), and also in reference to the closing of the federal courts to both State and taxpayers where different state courts make inconsistent findings on domicile resulting in estate taxation by two or more States. Massachusetts v. Missouri,
308	U. S. 1; Texas v. Florida, 306 U. S. 398; Worcester County Trust Co. v. Riley, 302 U. S. 292; New Jersey v. Pennsylvania, 287 U. S. 580; Dorrance v. Pennsylvania, 287 U. S. 660 and 288 U. S. 617, certiorari denied to review Dorrance’s Estate, 309 Pa. 151; Hill v. Martin, 296 U. S. 393; Dorrance v. Martin, 298 U. S. 678, certiorari denied to review Dorrance v. Thayer-Martin, 116 N. J. L. 362; Sargent and Tweed, Death and Taxes are Certain—But What of Domicile?, 53 Harvard L. Rev. 68; cf. Treinies v. Sunshine Mining Co., 308 U. S. 66.
STATE TAX COMM’N v. ALDRICH. 193
174	Jackson, J., dissenting.
to enterprise substantially will depend upon the willingness of the public to stand in the position of stockholder or bondholder. When this Court determines that the effect of owning this type of circulating medium is to subject the estate of the owner to an inheritance tax from every State that chartered one of the companies in which he has invested, it imposes a handicap on such ownership that is substantial and influential upon our economy.
Not one substantial evil is said by the opinion in this case to flow from the rule being upset, and evils of some magnitude admittedly follow from the one being reinstated. These consequences the Court declines even to consider, although they bear upon a segment of our economy bigger than the national debt16 and affect more persons than are now in the armed forces.17 Intangibles
“ U. 8. Treasury Statistics of Income for 1938, Part II, p. 4 (latest available) shows that 520,501 corporations filed returns. 169,884 of them reported net income aggregating $6,525,979,257, while 301,148 reported an aggregate loss for the year of $2,853,097,727.
The Commissioner computes dividends paid in cash or assets other than stock to have been $5,013,432,827. Id. at 22.
Balance sheets were submitted by 411,941 corporations showing total assets of $300,021,727,000. Id. at 28.
The volume of intangibles afloat as a result of corporate financing is not specifically calculated, but some idea of it is gleaned from the aggregate of items as follows:
Common stocks...............$74,791,662,000
Preferred stocks........... 18,108,066,000
Bonds, notes and mortgages—
maturity 1 year or more.. 50,278,233,000 Ibid.
171 know of no accurate calculation of the number of persons who hold stocks or bonds. Many estimates are extravagant and include an enormous amount of duplications—for example, the aggregate of stockholders’ lists of all corporations. I think the estimate of Berle and Means as of 1927 that between four and six million persons owned stocks, including an estimated two million employee or customer stockholders, is a reasonable one. The Modern Corporation and Private Property (1934) 374. Many are, of course, also bondholders, and the
461263°—43---13
194	OCTOBER TERM, 1941.
Jackson, J., dissenting.	316U.S.
constitute well above 50% of all property transferred by death,18 and an even greater proportion of that transferred by gift, which I assume is equally vulnerable to this tax.19 The gravity of subjecting such extensive interests to complex, confusing, and overlapping tax jurisdictions should be weighed against the reasons advanced for the change.
The revenue that the States may collect in consequence of this decision is not the measure of the burden it imposes on taxpayers. The ascertainment of taxes of this type is costly and wasteful. Such taxation frequently
number to be added after allowing for duplication is difficult to estimate. It must also, of course, be borne in mind that this includes many very small holdings and that such statistics are of little value in considering the relative benefits from such holdings derived by those in different income brackets.
“United States Treasury Statistics of Income for 1938, Part I, p. 220, shows that 15,221 estates filed returns showing total gross estates of $2,746,143,000, of which real estate was $433,487,000, tangible personal property, $34,637,000, and intangible personal property $2,278,019,000.
The intangibles so reported included:
Capital stock in corporations				$1,079,231,000
State and municipal bonds		242,537,000
Government bonds		148,802,000
Other bonds				164,796,000
Of course it does not follow that the same proportions hold good for estates too small to be reported under federal law. Because they would be more heavily weighted with farm and home owning, I am confident these statistics do not present proportions applicable to all transfers by death. They do, I believe, sustain the statement made in the text.
“United States Treasury Statistics of Income for 1938, Part I, P-264, show total gifts reported for taxation as—
Real Estate			$41,241,000
Stocks and Bonds			 214,583,000
Cash 			 72,	390,000
Insurance 			 21,795,000
Miscellaneous			  49,764,000
STATE TAX COMM’N v. ALDRICH. 195
174	Jackson, J., dissenting.
requires taking out ancillary letters in the State of the corporation’s domicile, the hiring of local counsel, the furnishing of affidavits to local probate courts and inheritance tax officials, and the payment of various fees, costs, and expenses. For the assurance of local creditors, bonds are sometimes required and long kept in force. Realization upon assets and distribution of estates is delayed by inability to get waivers or consents to transfer until after extensive proceedings have been conducted. The seriousness of these burdens is increased if the decedent owns stock in consolidated corporations incorporated in several States; and under this decision stocks of some consolidated railroads would be subject to tax on their full values by five or six States. One need not be unduly soft-hearted towards taxpayers to doubt whether the exhaustion of estates through multiplication of reports, returns, appraisals, litigation, counsel fees, and expenses ultimately makes for a sound fiscal policy or an enlightened social policy.
Moreover, the burdens imposed by this type of taxation are unequal and capricious and in inverse order to the ability of the estate to pay. I suppose we need have little anxiety about Mr. Harkness’s $87,000,000 net estate with its $1,000,000 investment in Union Pacific stock. As we have pointed out, it is not he, but the State of New York, that will pay this tax to the State of Utah. And if New York had no provision in its statutes for credit and Mr. Harkness could have foreseen the shift of position of this Court, it is not likely that he would have been caught with the tax. Those who have large estates and watchful lawyers will find ways of minimizing these burdens. But Mr. Harkness is not a typical Union Pacific stockholder. In 1939, the Union Pacific had 50,131 stockholders.20 The many small stockholders can-
30 Moody’s Steam Railroads (1940) 888.
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not afford professional counsel or evasion devices. The burden of reports and appraisals and foreign tax proceedings bears heavily upon them because of the relatively small amount involved in their transfers. The new tax we have authorized undermines the principle of graduation of tax burdens in proportion to ability to pay. No tax laid on anything less than the total net worth of the estate can be graduated even roughly according to the principle which progressive modern taxation strives to heed. The imposition of unpredictable assessments from many sources makes it impossible for the State of domicile to make intelligent use of its own taxing power as an instrument of enlightened social policy. Chaos serves no social end.
3. A large majority of the States, by experience prior to the First National Bank v. Maine decision, found the system of taxation which this Court imposes on all States today to be unworkable and to constitute a threat to the death tax on intangibles as a State source of revenue. Competitive use by the States of death taxation and immunities invited federal invasion of the field, one phase of which was the enactment by Congress of § 301, Revenue Act of 1926, sustained by this Court in Florida n. Mellon, 273 U. S. 12. There the Federal Government had laid an estate tax, but retained only 20% of the revenue and used an 80% credit provision to equalize the demands of the States. There was an uneasy premonition among the States that overlapping, capricious, and multiple taxation would lead to Federal occupation of the field. Appearing in the First National Bank case as amicus curiae, the New York State Tax Commission urged that both principle and policy prevent the levying of taxes by more than one jurisdiction, and added: “The New York Tax Commission
STATE TAX COMM’N v. ALDRICH. 197
174	Jackson, J., dissenting.
believes that the present is a crucial period in the development of death taxation in this country and that a false step may make it difficult for the states to retain the death tax as a source of substantial revenue.” We revive their difficulties.
Farsighted States saw that the total revenue resources practically available to the States was not increased by overlapping their taxation and invading each other’s domiciliary sources of taxation. Many felt that justice required credits to their own domiciled decedents’ estates for taxes exacted elsewhere, and the credits granted offset largely the revenue derived from the tax. The multiple taxation added substantially to the cost of administration and to the annoyance of taxpayers. Because of these considerations, at the time of argument of First National Bank v. Maine, thirty-seven States had enacted reciprocity statutes which voluntarily renounced revenues from this type of taxation. The Court was urged to stay the hand of sister States which would not cooperate. The restraint laid by this Court in response to those appeals is now withdrawn at the behest of a State which has at no time enacted a reciprocity statute or given a credit for such taxes paid by its domiciled decedents elsewhere. We have not heard the views of any other State nor considered their concern about retaining the source of taxation opened to them. I do not doubt that today’s decision will give a new impetus to Federal absorption of this revenue source and to Federal incorporation of large enterprises.
4. An unfortunate aspect of this decision is that, in common with other judge-made law, it has retroactive effect. Consequently, inequalities and injustices will be suffered by States as well as by individuals. For example, the State of New York has written into its own Constitu-
198	OCTOBER TERM, 1941. •
Jackson, J., dissenting.	316U.S.
tion the limitations on its taxing power which this Court had established by the decision we now overrule.21 Until it can adjust its constitutional provisions, such a State may not take advantage of the tax privileges the Court confers today, although other States may do so. We have not been advised as to the number of States which have repealed or modified reciprocity or credit provisions in their own statutes or constitutions in reliance upon the decision we overrule. Credit provisions contained in statutes may be the foundation for claims for refund against domiciliary States as chartering States proceed to take advantage of the privilege of retroactive taxation accorded them by this decision. Estates closed and distributed under existing laws become indebted by force of this decision to chartering States on claims for transfer tax that may have existed in the state statutes but had never been suspected of having constitutional validity. For what periods these claims may have vitality depends on state
21	Article XVI, § 3 of the New York State Constitution, adopted in 1938, provides:
“Moneys, credits, securities and other intangible personal property within the state not employed in carrying on any business therein by the owner shall be deemed to be located at the domicile of the owner for purposes of taxation, and, if held in trust, shall not be deemed to be located in this state for purposes of taxation because of the trustee being domiciled in this state, provided that if no other state has jurisdiction to subject such property held in trust to death taxation, it may be deemed property having a taxable situs within this state for purposes of death taxation. Intangible personal property shall not be taxed ad valorem nor shall any excise tax be levied solely because of the ownership or possession thereof, except that the income therefrom may be taken into consideration in computing any excise tax measured by income generally. Undistributed profits shall not be taxed.”
That decision apparently ended the necessity for reciprocal exemption and I know of none enacted since. Texas and Missouri appear to have omitted reciprocal exemption provisions in later revisions of their inheritance tax laws.
STATE TAX COMM’N v. ALDRICH. 199
174	Jackson, J., dissenting.
statutes of limitation. Whether personal liability may be asserted against executors and administrators for failure to pay taxes that our decisions did not tolerate at the time the estates were closed, likewise depends on the laws of the chartering States. With confidence we may anticipate that this decision will produce much confusion, some controversy between the States, and a lasty crop of litigation.
Ill
The Court casts aside former limitations on state power to tax nonresidents in such terms as to leave doubt whether any legal limitations are hereafter to be recognized or applied. The opinion of the Court says that the State may “constitutionally make its exaction” “which can demonstrate ‘the practical fact of its power.’ ” The concurring opinion adds that “Each State of the Union has the same taxing power as an independent country, except insofar as that power has been curtailed by the federal Constitution,” and it enumerates three limitations, each of which prohibits a kind of tax or protects kinds of business from tax; but none of them restrains taxation by reference to what we have usually expressed by “jurisdiction.” It is true that the concurring opinion says that “the Due Process Clause has its application to the taxing power of the States,” but we are not told what it may be, and it is difficult to conceive of a situation where it will ever be useful if it may not be considered as a test of jurisdiction to impose a tax.
Despite today’s decision, I trust this Court does not intend to say that might always makes right in the matter of taxation. I hope there is agreement, though unexpressed, that there are limits, and that our problem is to search out and mark those limits. One way to go about it is to say that those States can tax which have the physi-
200	OCTOBER TERM, 1941.
Jackson, J., dissenting.	316U.S.
cal power to do so and have conferred some benefits or protection on the taxpayer. Of course there is nothing in the Constitution about this, but that is a criticism that can be directed at any test that I can think of. My difficulty is that on its face—and as so far applied—this test comes out to the point where might does make right. For in a very real sense every State and Territory in the Union has conferred very real benefits upon every inhabitant of the Union. Some States have seen to it that our food is properly produced and inspected; others have fostered and protected the industry upon which we are utterly dependent for the ordinary conveniences of life and for life itself. All of them have yielded up men to provide government at home and to repel the enemy abroad. I am the very real debtor, but am frank enough to say I hope not a potential taxpayer, of all.
Certain it is that while only corporate stock is expressly mentioned in the opinion or involved in the judgment today, the fiction of benefits and protection is capable of as ready adaptability to other intangible property. Our tomorrows will witness an extension of the taxing power of the chartering or issuing State to corporate bonds and bonds of States and municipalities (by overruling Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204), to bank credits for cash deposited (by overruling Baldwin v. Missouri, 281 U. S. 586), and to choses in action (by overruling Beidler v. South Carolina, 282 U. S. 1). And while today the Court sustains only a death transfer tax, its theories are equally serviceable to sustain an income or excise tax, on dividends from such stock or interest on bonds, or a sales tax, or a gift tax. Whether each chartering or issuing State will be permitted to calculate its tax on some formula that will consider the total property owned by the decedent, I do not know, but in the present
STATE TAX COMM’N v. ALDRICH. 201
174	Jackson, J., dissenting.
trend of decision there is little restraint on such formulas. I therefore take today’s decision to mean that any State may lay substantially any tax on any transfer of intangible property toward which it can spell out a conceivable legal relationship.
And since the Due Process Clause speaks with no more clarity as to tangible than as to intangible property, the question is opened whether our decisions as to taxation of tangible property are not due to be overhauled. And if the State of Utah is not denied jurisdiction over the transfer of this stock owned by a New York resident, it is difficult to see where the Court could find a basis for denying it jurisdiction to prescribe the rule of succession to it.
The Court, it seems to me, will be obliged to draw the line at which state power to reach nonresidents’ estates and extraterritorial transactions comes to an end. I find little difficulty in concluding that exaction of a tax by a State which has no jurisdiction or lawful authority to impose it is a taking of property without due process of law. The difficulty is that the concept of jurisdiction is not defined by the Constitution. Any decision which accepts or rejects any one of the many grounds advanced as jurisdictional for state taxing purposes22 will read into the Constitution an inclusion or an exclusion that is not found in its text. To read into the Constitution the Court’s present concept of jurisdiction through charter granting, and to hold that it follows that the Constitution does not prohibit this tax, is to make new law quite as certainly as to adhere to the concept of jurisdiction ac-
22	See Lowndes, State Taxation of Inheritances, 29 Michigan Law Review 850; Hine, Situs of Shares Issued under the Uniform Stock Transfer Act, 87 University of Pennsylvania Law Review 700.
202	OCTOBER TERM, 1941.
Jackson, J., dissenting.	316U.S.
cording to the decedent’s domicile and to hold that the Constitution therefore does prohibit it.23
I am content with existing constitutional law unless it appears more plainly that it is unsound or until it works badly in our present day and society.
Mr. Justice Roberts concurs in this opinion.
23	But fear of legislating need not intimidate those of either view. The necessity of eventually finding some jurisdictional basis for state action affecting nonresidents presents a problem similar to that stated by Mr. Justice Holmes in Southern Pacific Co. v. Jensen, 244 U. S. 205, 221: “I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.” And another candid jurist has said: “I will not hesitate in the silence or inadequacy of formal sources to indicate as the general line of direction for the judge the following: that he ought to shape his judgment of the law in obedience to the same aims which would be those of a legislator who was proposing to himself to regulate the question.” Cardozo, The Nature of the Judicial Process (1932) 120.
Where prescribed sources of law fail to guide the judicial process, the Swiss Civil Code provides that the judge “must pronounce judgment according to the rule which he would set up if he were legislator himself.” Williams, Sources of Law in the Swiss Civil Code (1923) 34 et seq.; Schoch, The Swiss Conflict of Laws, 55 Harvard Law Review 738, 749, note 57. The Swiss may have thought a candid recognition of what necessarily is the practice would forestall judicial disclaimer of responsibility for the practical consequences of law announced.
MISHAWAKA MFG. CO. v. KRESGE CO. 203
Opinion of the Court.
MISHAWAKA RUBBER & WOOLEN MANUFACTURING CO. v. S. S. KRESGE CO.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.
No. 649. Argued April 1, 1942.—Decided May 4, 1942.
In order that he may recover profits under § 19 of the Trademark Act, the trademark owner is not required to prove that the purchasers of goods bearing the infringing mark were induced by it to believe that the goods were the goods of the trademark owner and purchased for that reason, and that they would otherwise have bought of him. P. 206.
119 F. 2d 316, reversed.
Certiorari, 314 U. S. 603, to review the affirmance of a decree in a suit to enjoin infringements of a trademark and for an accounting of profits.
Mr. George L. Wilkinson, with whom Mr. Eugene M. Giles was on the brief, for petitioner.
Mr. William B. Giles for respondent.
Messrs. Milton Handler and Arthur T. Vanderbilt filed a brief on behalf of the Pepsi-Cola Company, as amicus curiae.
Mr. Justice Frankfurter delivered the opinion of the Court.
The petitioner, which manufactures and sells shoes and rubber heels, employs a trade-mark, registered under the Trade-Mark Act of 1905, 33 Stat. 724, 15 U. S. C. § 81 et seq., consisting of a red circular plug embedded in the center of a heel. The heels were not sold separately, but were attached to shoes made by the petitioner. It has spent considerable sums of money in seeking to gain the
204	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
favor of the consuming public by promoting the mark as assurance of a desirable product. The respondent sold heels not made by the petitioner but bearing a mark described by the District Court as “a circular plug of red or reddish color so closely resembling that of the plaintiff [petitioner] that it is difficult to distinguish the products sold by the defendant from the plaintiff’s products.” The heels sold by the respondent were inferior in quality to those made by the petitioner, and “this tended to destroy the good will created by the plaintiff in the manufacture of its superior product.” Although there was no evidence that particular purchasers were actually deceived into believing that the heels sold by the respondent were manufactured by the petitioner, the District Court found that there was a “reasonable likelihood” that some purchases might have been induced by the purchaser’s belief that he was obtaining the petitioner’s product. “The ordinary purchaser, having become familiar with the plaintiff’s trade-mark, would naturally be led to believe that the heels marketed by the defendant were the product of the plaintiff company.” Concluding that the petitioner’s mark had thus been infringed, the court enjoined future infringement and also ordered that the respondent account to the petitioner for profits made from sales “to purchasers who were induced to buy because they believed the heels to be those of plaintiff and which sales plaintiff would otherwise have made.”
Complaining of this criterion for determining the profits that improperly accrued to the respondent by reason of the infringement, the petitioner appealed to the Circuit Court of Appeals for the Sixth Circuit, which affirmed the decree. 119 F. 2d 316. Deeming the matter to present an important question under the Trade-Mark Act, we brought the case here solely to review the provisions of the decree dealing with the measure of profits and
MISHAWAKA MFG. CO. v. KRESGE CO. 205
203	Opinion of the Court.
damages for the infringement found by the two lower courts. Whether there was such an infringement as to entitle the petitioner to the remedies provided by the federal trade-mark laws is therefore not open here.
The protection of trade-marks is the law’s recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trade-mark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same—to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trade-mark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress. And in this case we are called upon to ascertain the extent of the redress afforded for infringement of a mark registered under the Trade-Mark Act of 1905.
The “right to be protected against an unwarranted use of the registered mark has been made a statutory right” by that Act. Thaddeus Davids Co. v. Davids Mjg. Co., 233 U. S. 461, 471. Section 19 of the Act provides that “upon a decree being rendered in any such case for wrongful use of a trade-mark the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby, and the court shall assess the same or cause the same to be assessed under its direction . . .; and in assessing profits the plaintiff shall be required to prove defendant’s sales only; defendant must
206	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
prove all elements of cost which are claimed.”1 33 Stat. 724, 729; 15 U. S. C. § 99. Infringement and damage having been found, the Act requires the trade-mark owner to prove only the sales of articles bearing the infringing mark. Although the award of profits is designed to make the plaintiff whole for losses which the infringer has caused by taking what did not belong to him, Congress did not put upon the despoiled the burden—as often as not impossible to sustain—of showing that but for the defendant’s unlawful use of the mark, particular customers would have purchased the plaintiff’s goods.
If it can be shown that the infringement had no relation to profits made by the defendant, that some purchasers bought goods bearing the infringing mark because of the defendant’s recommendation or his reputation or for any reason other than a response to the diffused appeal of the plaintiff’s symbol, the burden of showing this is upon the poacher. The plaintiff of course is not entitled to profits demonstrably not attributable to the unlawful use of his mark. Cf. Straus v. Notaseme Co., 240 U. S. 179, 183; compare Sheldon v. Metro-Goldwyn Corp., 309 U. S. 390; Westinghouse Electric Co. v. Wagner Mfg. Co., 225 U. S. 604. The burden is the infringer’s to prove that *
*The committee reports upon the bill which became the 1905 Act make these observations on § 19: “By section 19 provision is made for proceedings in equity against the infringer of a registered trademark. This section corresponds in terms with section 4921 of the Revised Statutes relating to patent cases, except that it specially provides the manner in which profits shall be ascertained. Under existing rules it is necessary for the complainant to prove sales and costs with entire and absolute accuracy. The only persons having knowledge of the cost of making the sales are the defendant or some one in his employ. It has seemed, therefore, only fair and just that if the complainant proves the sales, the defendant should be required to produce evidence of the expenses he was put to in making such sales as an offset against the sales proven by the complainant.” Sen. Rep. No. 3278, 58th Cong., 3d Sess., p. 10; H. Rep. No. 3147, 58th Cong., 3d Sess., p. 9.
MISHAWAKA MFG. CO. v. KRESGE CO. 207
203	Opinion of the Court.
his infringement had no cash value in sales made by him. If he does not do so, the profits made on sales of goods bearing the infringing mark properly belong to the owner of the mark. Hamilton-Brown Shoe Co. v. Wolf Bros., 240 U. S. 251. There may well be a windfall to the trademark owner where it is impossible to isolate the profits which are attributable to the use of the infringing mark. But to hold otherwise would give the windfall to the wrongdoer. In the absence of his proving the contrary, it promotes honesty and comports with experience to assume that the wrongdoer who makes profits from the sales of goods bearing a mark belonging to another was enabled to do so because he was drawing upon the good will generated by that mark. And one who makes profits derived from the unlawful appropriation of a mark belonging to another cannot relieve himself of his obligation to restore the profits to their rightful owner merely by showing that the latter did not choose to use the mark in the particular manner employed by the wrongdoer.
The starting point of the case before us is respondent’s infringement of the petitioner’s trade-mark in violation of the federal Act. The decree is assailed by the petitioner because, upon its reading of the decree, it is awarded only those profits which it can affirmatively prove to have resulted from sales “to purchasers who were induced to buy because they believed the heels to be those of plaintiff, and which sales plaintiff would otherwise have made.” We are not prepared to say that such is not a sensible reading of the language in which the decree was cast, the purpose of which was to recover profits that came to the respondent through its infringement and that in good conscience belong to the petitioner. The decree in effect requires the petitioner to prove by a procession of witnesses, that when they bought heels from the infringer they had a clear, well-focussed consciousness that they were buying the petitioner’s heels and that otherwise they
208	OCTOBER TERM, 1941.
Black, J., dissenting.	316U.S.
would not have bought them. But the shoe is on the other foot. The creation of a market through an established symbol implies that people float on a psychological current engendered by the various advertising devices which give a trade-mark its potency. It is that which the Trade-Mark Act of 1905 protects. We therefore vacate the decree in order that the cause be remanded to the District Court for the entry of a decree in conformity with this opinion. If the petitioner suffered damages beyond the loss of profits the decree should provide for the assessment of such damages.
Reversed.
The Chief Justice and Mr. Justice Roberts took no part in the consideration or decision of this case.
Mr. Justice Black, dissenting, with whom Mr. Justice Douglas and Mr. Justice Murphy concur:
Mishawaka does not sell detached rubber heels. The heels bearing its mark are attached to the rubber boots and shoes it manufactures, and reach the market only as parts of these larger products. Kresge, on the other hand, sells in its retail stores detached rubber heels manufactured by others. Hence, like the courts below, I find it difficult to conclude that there were substantial probabilities of deception and that Kresge’s sales took away business that might otherwise have gone to Mishawaka. In any event, the economic rivalry, if it existed at all, was so remote and indirect that an injunction alone would seem to have afforded ample relief against the infringement, found by both courts below to have been without fraudulent intent.
Moreover, upon the extensive evidence introduced by both parties, the trial court concluded that there was “no direct proof of any ordinary purchaser being misled into believing that heels marketed by the defendant were prod*
U. S. v. CITIZENS LOAN CO. 209
203	Syllabus.
nets of the plaintiff company.” The Circuit Court of Appeals reached a similar conclusion: “No justification is found in the record for an inference that any one appears to have been deceived by appellee’s trade-mark into purchasing its shoe heels and lifts in the belief that he was purchasing shoe heels produced by appellant.” 119 F. 2d 316, 324.
If the respondent had wilfully palmed off the heels it sold as products of the petitioner, and if it had been shown that the petitioner had suffered any injury, I should agree to a decision resolving doubts about the measure of damages in favor of the petitioner. But under the circumstances of this case, I believe the effect of the decision handed down is to grant a windfall to the petitioner and to impose a penalty upon the respondent, neither of which is deserved. Finding nothing in the Trade-Mark Act of 1905 which compels such a result, I can see no abuse of discretion in the decree of the trial court which the Circuit Court of Appeals affirmed. Saxlehner v. Siegel-Cooper Co., 179 U. S. 42. Cf. Straus v. Notaseme Co., 240 U. S. 179, 182-183.
UNITED STATES v. CITIZENS LOAN & TRUST CO., ADMINISTRATOR.
CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.
No. 738. Argued April 6, 1942.—Decided May 4, 1942.
1. Under § 303 of the World War Veterans Act of 1924, as amended by Act of 1925, where the beneficiary of a yearly renewable term insurance policy dies, after having received part of the 240 monthly installments provided for in the contract, and the estate of the insured becomes entitled, the amount payable to the estate is the present value of remaining unpaid installments, computed as of the date of the beneficiary’s death, excluding interest. P. 214.
461263’—43-14
210	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
2.	The fact that, because of the refusal of the Government to recognize the claim, its payment was delayed until after the period for monthly payments provided in the policy had expired, did not entitle the estate in this case to have the interest included in computing the present value of such installments. P. 214.
3.	The provision of the amendatory Act of 1925 that present value shall be computed “as of the date of the last payment made under any existing award,” is confined to cases where, prior to 1924, part payment to such estates had been made in monthly installments, including interest; and the purpose of the amendment was to avoid the retraction of interest already so paid, which would otherwise result from the retroactive lump sum provision of the 1924 Act. P. 213.
74 App. D. C. 244,122 F. 2d 638, reversed.
Certiorari, 314 U. S. 605, to review a judgment recovered in a suit on a veteran’s insurance policy in the District Court for the District of Columbia. The court below, on the plaintiff’s appeal, directed that the recovery be increased.
Mr. Wilbur C. Pickett, with whom Solicitor General Fahy and Messrs. Julius C. Martin, Keith L. Seeg miller, and W. Marvin Smith were on the brief, for the United States.
Mr. Camden R. McAtee for respondent.
Mr. Justice Byrnes delivered the opinion of the Court.
Joseph Kelly Kerr, while in the United States Army during the last war, took out a yearly renewable term insurance policy in the amount of $10,000, naming as beneficiary his father, Eugene Kerr. The insured died November 8, 1919. On March 6, 1920, the War Risk Bureau denied any liability under the contract. Eugene Kerr, the designated beneficiary, died June 24, 1924. This suit was filed November 6,1925.
In the District Court, judgment was rendered denying any recovery on the policy. The Court of Appeals for
U. S. V. CITIZENS LOAN CO. 211
209	Opinion of the Court.
the District of Columbia, on December 4, 1939, reversed the judgment of the District Court. 71 App. D. C. 222, 108 F. 2d 585. The District Court, on April 5, 1940, entered judgment for $3,220.00 in favor of the estate of Eugene Kerr, the beneficiary under the policy, and a judgment for $10,580.00 in favor of the estate of the insured, Joseph Kelly Kerr. Upon rehearing, the District Court, by its order of January 9, 1941, reduced the latter judgment to $8,227.50. On appeal, the Court of Appeals again reversed the District Court and ordered the payment of $10,580.00. 74 App. D. C. 244,122 F. 2d 638. We granted certiorari, 314 U. S. 605.
The insurance contract provided for the payment of 240 monthly installments of $57.50 each. It is not disputed that Eugene Kerr, as beneficiary, was entitled to receive the 56 monthly installments that accrued during his lifetime.1 They aggregated $3,220.00. The portion of the District Court’s judgment which awarded that sum to Eugene Kerr’s estate is not in controversy.
The issue here involves only the amount due the estate of Joseph Kelly Kerr, the insured, on the 184 installments remaining after the death of the beneficiary. The Government contends that the amount due the estate is $8,234, which represents the present value of the 184 installments computed as of the death of the beneficiary on June 24, 1924. Respondent argues that the amount due is $10,580, which is the aggregate of 184 installments of $57.50 each.2
Prior to 1924, the statutes of the United States directed that, when the estate of an insured became eligible to pro-
11, e. from Nov. 8,1919, the date of the death of the insured, through June 8, 1924, the last due date for a monthly installment prior to the beneficiary’s death.
It is agreed that, however this issue is resolved, respondent’s recovery is subject to a deduction of $6.50, the amount of a premium due on the policy for November 1919, the month during which the insured died.
212	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
ceeds under the contract,3 they should be paid in regular monthly installments. The most recent enactment prior to that year was the Act of August 9,1921, which provided: “If no person within the permitted class of beneficiaries survive the insured, then there shall be paid to the estate of the insured the monthly installments payable and applicable under the provisions of Article IV of the War Risk Insurance Act [Act of October 6, 1917, c. 105, 40 Stat. 398, 409] . . .”4
The World War Veterans Act of 19245 superseded the War Risk Insurance Act of 1917 and its amendments. It provided, in § 303:
“If no person within the permitted class of beneficiaries survive the insured, or if before the completion of payments the beneficiary or beneficiaries shall die and there be no surviving person within said permitted class, then there shall be paid to the estate of the insured the present value of the monthly installments thereafter payable under the provisions of this title . . .”
This section altered the method of payment only with respect to benefits payable to the estates of insured. It did not change the method of payment to beneficiaries. Its obvious purpose was to have the obligation to the estate paid in one lump sum rather than in monthly installments. Since these installments included interest as well as principal, Congress desired to eliminate the interest when it provided for the lump sum payment. Accordingly, it declared that the lump sum should be equal to “the pres-
3	The claim to the proceeds might fall to the estate in several ways, such as by the death of the named beneficiary or by the death of an insured who has designated no beneficiary. Since the respondent in this case became entitled as of the death of Eugene Kerr, the beneficiary, the latter will be spoken of as the critical event in our discussion.
4	§ 407, 42 Stat. 148.
6 c. 320,43 Stat. 607.
U. S. v. CITIZENS LOAN CO. 213
209	Opinion of the Court.
ent value of the monthly installments thereafter payable.” The word “thereafter” plainly relates to the death of the beneficiary, in a case like the one before us. And this has been the interpretation placed upon the section by the Veterans Administration ever since, the requirement being that the present value is to be computed as of the date of the death of the beneficiary.
In 1925, § 303 was amended in several respects.6 The only one of these which is important here is the addition of the following words: “said value to be computed as of the date of last payment made under any existing award.” And this is important only because of the confusion which it has generated in the disposition of this case. According to a letter addressed to the Solicitor General by the Administrator of the Veterans Administration on July 14, 1941, the language quoted was added to § 303 to correct a specific inequity which had arisen in a number of cases following the 1924 Act but which is not encountered here. That inequity arose in this way: In several cases the estate of the insured had become entitled to the proceeds of the policy prior to 1924 and a number of the $57.50 monthly installments had already been paid to the estate of the insured at the time Congress enacted § 303 with its provision for a lump sum payment to the estate. Since § 303 was made retroactive to October 6, 1917, the amount due the estate in these cases, as in the others, was held to be the present value of the installments remaining due after the death of the beneficiary, computed as of the date of death of the beneficiary. But in these cases, unlike the others, that portion of the installments already paid to the estate which represented interest had to be deducted from the lump sum award. To avoid this partial withdrawal of funds which had actually been released in these particular cases, Congress provided in the 1925 amendment that the “present value
*43 Stat. 1310.
4
214	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
of the monthly installments thereafter payable” should be computed “as of date of last payment made under any existing award.” Under this formula, the installments which had been paid to the estate of an insured prior to 1924 were not disturbed. The Veterans Administration has consistently treated the 1925 amendment as applicable only to this limited number of cases. In the others, it has invariably computed the “present value” as of the date of death of the beneficiary. This administrative interpretation over a period of 17 years, controlling the settlement of thousands of cases, is entitled to great weight, “and such construction is not to be overturned unless clearly wrong, or unless a different construction is plainly required.” United States v. Jackson, 280 U. S. 183, 193.
In this case, no award had been made prior to 1924, and hence the amount due to the insured’s estate could not be computed “as of date of last payment made under any existing award.” This language of the 1925 amendment therefore cannot be applied to the facts here. But it does not follow that the balance of § 303 does not apply. Indeed, § 303 is the only present authority for the making of any payments to the estate of the insured.7 Disregarding the words added by the 1925 amendment, the section simply requires the payment to the estate of a lump sum equal to “the present value of the monthly installments thereafter payable.” And the latter language, as we have said, has been consistently interpreted to mean “present value” as of the date of death of the beneficiary.
The Court of Appeals was of the opinion that, because recognition of the claim had been delayed until after the passage of the 240 months, the principles of computation
7 The insurance contract is expressly made subject to the War Risk Insurance Act of 1917, and all amendments thereto. See White v. United States, 270 U. S. 175,180.
I
U. S. V. CITIZENS LOAN CO. 215
209	Opinion of the Court.
embodied in the 1924 Act and the 1925 amendment required a settlement as if there had been an award of monthly installments. That is, it took the view that the 184 monthly installments concededly due to the estate should be multiplied by $57.50, which represents a payment of interest as well as principal, and the resulting total of $10,580 awarded to respondent. But one of the purposes of the 1924 and 1925 enactments was to abolish the monthly installment method of settling the claims of veterans’ estates. Congress could not have made clearer its intention that the value of the remaining installments, purged of interest, should be paid in a lump sum to the estate. Both the Veterans Administration and this Court have recognized a legislative policy against the allowance of interest on past due payments on these policies. United States v. Worley, 281 U. S. 339. The error which undermines respondent’s contention and the decision of the Court of Appeals is the failure to give full effect to this Congressional purpose to eliminate interest from the lump sum settlement.
The Court of Appeals was evidently impressed by the delay in the settlement of respondent’s claim. We share that concern. The insured died almost 23 years ago and final disposition of the case is only now in view. But responsibility for the delay is not easily apportioned.8 And in any event, it could not influence our construction of the language of the statute. Congress has authorized neither the payment of damages for the delay nor an award of interest on past due obligations incurred under these insurance certificates, and it is not within our power to do so.
The case is remanded for reinstatement of the judgment of the District Court.
Reversed.
’Although the Veterans Bureau denied recovery on the policy in 1920, it was not until 1925 that this suit was instituted.
216	OCTOBER TERM, 1941.
Syllabus.	316 U. S.
SWIFT & CO. ET AL. v. UNITED STATES et al.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
No. 595. Argued March 6, 9, 1942.—Decided May 4, 1942.
1.	Transportation by railroad of livestock in carload lots to public stockyards includes unloading into suitable pens. § 15, Interstate Commerce Act. P. 223.
2.	Whether the use of stockyards facilities for egress of livestock to the public street after unloading is a part of the transportation service for which charges may reasonably be made, is a question to be decided by the Interstate Commerce Commission in the exercise of its judgment upon the facts of each particular case, and not for decision according to any fixed rule of law. P. 225.
3.	Pursuant to long and uniform practice, direct shipments of livestock made by Chicago meat packers to themselves at the Chicago stockyards are there unloaded in pens furnished by the stockyards company—a, service for which the carrier pays the stockyards, absorbing the charge in its transportation rates; and further “yardage” charges are collected by the stockyards company from the packers for subsequent stockyards services, including the use of the stockyards property for egress of the livestock to the public street. The packing companies asked the Interstate Commerce Commission to establish rules and practices under which they might obtain delivery of the livestock in the pens, with egress for its imme-diate removal to the nearest public street by a way to be designated by the carriers, without payment of yardage charges to the stockyards company or of any charges other than the line-haul rates. Held:
(1)	In determining the reasonableness of the practice, the Commission properly considered its evolution, including the history of dealings between the packers and the stockyards company, and considered the effect of the existing and proposed practices on the interests of the carriers, the public and other shippers. P. 225.
(2)	A finding by the Commission that the practice is reasonable is supported by evidence and is therefore conclusive on this Court. P. 231.
(3)	The Commission, having decided that transportation ended with the unloading of the livestock into the unloading pens, rightly concluded that it had no jurisdiction to inquire into the reasonable-
SWIFT & CO. v. UNITED STATES. 217
216	Opinion of the Court.
ness of practices or charges of the stockyards company beyond that point. P. 231.
(4) In so far as the stockyards company is an agency in transportation, it is subject to the Interstate Commerce Act and to the control of the Interstate Commerce Commission. In so far as it performs stockyards services, it is subject to the Packers and Stock-yards Act and to regulation by the Secretary of Agriculture. P. 232. Affirmed.
Appeal from a decree of the District Court, three judges sitting, which dismissed a bill to set aside an order of the Interstate Commerce Commission.
Mr. Ross Dean Rynder, with whom Mr. Edgar B. Kix-miller was on the brief, for Swift & Co. et al.; and Mr. Paul E. Blanchard, with whom Messrs. Chas. J. Faulkner, Jr. and John Potts Barnes were on the brief, for Armour & Co., appellants.
Mr. Hugh B. Cox, with whom Solicitor General Fahy, Assistant Attorney General Arnold, and Messrs. James C. Wilson, Smith R. Brittingham, Jr., Robert L. Pierce, Daniel W. Knowlton, and E. M. Reidy were on the brief, for the United States et al. ; and Mr. Douglas F. Smith, with whom Mr. Kenneth F. Burgess was on the brief, for the Alton Railroad Co. et al., appellees.
Mr. Justice Jackson delivered the opinion of the Court.
Swift & Company and Omaha Packing Company, its wholly-owned subsidiary, filed with the Interstate Commerce Commission a complaint against the common carriers by railroad which served the Chicago Union Stock Yards, operated by the Union Stock Yard & Transit Company.1 They were later joined by Armour & Com-
1 Other phases of the general problem of the present case have been considered in Adams v. Mills, 286 U. S. 397; Atchison, T. &
218	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
pany, as intervenor, to constitute the interest referred to herein as the packers. Although Armour sought no relief, it was allowed to intervene because it was at the time litigating in the courts a similar complaint, which was later passed on by this Court in Armour & Co. v. Alton R. Co., 312 U. S. 195. The complaint in this case concerned practices of the Union Stock Yard & Transit Company and charges collected by it from the packers, but the Yard Company was not a party to the proceedings. The packers sought a revision of the Yard Company’s practices, which they said were part of the carrier-shipper relation, through the exercise of the Interstate Commerce Commission’s jurisdiction over the railroads and over transportation.
The complaint charged that the packers shipped over lines of defendant carriers from various points of origin throughout the United States to Chicago, Illinois, what are known as “direct shipments” of livestock. “Direct shipments” refers to livestock consigned directly to a packer at the Union Stock Yards, as distinguished from a shipment consigned to a commission merchant at the Stock Yards for sale.2 Direct shipments are generally of livestock which has been purchased by the packer or its buyers at country points or at markets other than
S. F. Ry. Co. v. United States, 295 U. S. 193; Union Stock Yard Co. v. United States, 308 U. S. 213; Armour & Co. v. Alton R. Co., 312 U. S. 195.
’The Commission found, from an analysis of the billing of 3,061 cars unloaded at the Union Stock Yards from January 1935 to March 1938, that 84.4% were consigned to the Stock Yards, and the remaining 15.6% were delivered to the Stock Yards although delivery at that point was not specified in the livestock contracts. “Under the terms of the contract, complainant could have required delivery of the 15.6 percent of shipments either at the stockyards or on defendants’ team tracks, but complainant never requested delivery of those shipments to any point other than the Union Stock Yards.” 238 I. C. C. 179, 189. They were therefore included in “direct shipments.”
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Chicago. On arrival, the cars containing the livestock are placed at unloading or chute pens of the Yard Company by the railroad employees, and the stock is then unloaded and placed in the pens by employees of the Yard Company. For this unloading service, the Yard Company is paid at published tariff rates3 by the railroads, which absorb the charge out of their line-haul rates.
The packers desire immediately to take their consignments from these unloading pens and insist that they desire no further services, and, of course, desire to incur no further charges.
The Yard Company, however, under tariffs filed with the Secretary of Agriculture pursuant to the Packers and Stockyards Act,4 imposes upon the packers a schedule of charges known as yardage charges, which vary from ten cents to forty-five cents per head of stock. The packers say that they desire none of the services, such as weighing, watering, feeding, or holding, which yardage charges compensate, and desire only to move their stock immediately from the unloading pens to the public streets, without payment of the yardage charges. Contending that it is their legal right so to obtain delivery, the packers made sufficient demand upon the Yard Company and upon the railroad companies for immediate and free delivery of their stock from the unloading pens. This was refused, and yardage charges have been paid to the Yard Company under protest. The packers demanded from the Commission relief by way of reparation, and asked the Commission to establish rules and practices under which they may obtain delivery to themselves by the railroads of
Under tariffs filed with the Interstate Commerce Commission by the Yard Company, the railroads pay to the Yard Company $1.25 per single-deck car and $1.50 per double-deck car, for services rendered as their agent in unloading the stock.
‘ Act of August 15,1921, 42 Stat. 159, 7 U. S. C. § 181 et seq.
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direct shipments at the Union Stock Yards in convenient, safe, and suitable pens, with egress for the immediate removal of the livestock to the nearest public street, by a way to be designated by the railroads, without the payment of any yardage charges to the Union Stock Yards & Transit Company, and without the payment of any charges other than the line-haul transportation charges of the railroads.
The Commission, after hearings, denied the packers relief, for reasons later to be considered. It found that the delivery of stock consigned by the packers to themselves at the Stock Yards, into the Yard Company’s pens without affording free egress for the shipments, is not an unreasonable practice on the part of the carriers, and that the yardage charges thereafter assessed by the Union Stockyards & Transit Company are not subject to the Commission’s jurisdiction. 238 I. C. C. 179.
Appellants Swift and Omaha then brought suit in a District Court of three judges for a decree permanently suspending and annulling the order of the Commission and for a remand of the complaint for decision in accordance with principles of law to be determined by the court. Appellant Armour intervened, and participated in the trial. The railroads which had been named as defendants before the Commission also intervened, as defendants in the District Court. After hearing, the District Court held, without opinion, that the Commission’s findings were properly supported by evidence; that the findings made by the Commission were adequate to support its conclusion; that the practices complained of were not unreasonable; and that the Commission did not have jurisdiction of the yardage charges. It dismissed the packers’ complaint, and appeal was taken to this Court.5
8 §§ 210 and 238 (4) of the Judicial Code as amended by the Act of February 13, 1925, 43 Stat. 936, 938, 28 U. S. C. §§47a, 345.
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The many assignments of error may be grouped under three inquiries: (1) Do the packers have an absolute right, as a matter of law, to take their direct shipments of livestock from the unloading pens free from yardage charges? (2) If there is no such absolute right, was the Commission in error in considering the history of dealings between packers and the Yard Company, together with other facts bearing on the reasonableness of the carriers’ method of delivery at the Stock Yards? (3) If the practice as to delivery was correctly held a reasonable method of terminating the carriers’ obligation to furnish transportation, did the Commission have jurisdiction in a proceeding against the railroad companies to inquire into or prescribe the yardage charges complained of?
I
The packers’ contention that they are entitled as a matter of absolute right to delivery of their livestock from the unloading pens without payment of yardage charges, is based upon the decision of this Court in Covington Stock-Yards Co. v. Keith, 139 U. S. 128, and the subsequently enacted § 1 (3) of the Interstate Commerce Act.
In the Covington case, decided on facts antedating the Interstate Commerce Act, this Court said that “A carrier of live, stock has no more right to make a special charge for merely receiving or merely delivering such stock, in and through stock yards provided by itself, in order that it may properly receive and load, or unload and deliver, such stock, than a carrier of passengers may make a special charge for the use of its passenger depot by passengers when proceeding to or coming from its trains, or than a carrier may charge the shipper for the use of its general freight depot in merely delivering his goods for shipment, or the consignee of such goods for its use in merely receiving them there within a reasonable time after they are unloaded from the cars. If the carrier may not make
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such special charges in respect to stock yards which itself owns, maintains or controls, it cannot invest another corporation or company with authority to impose burdens of that kind upon shippers and consignees. The transportation of live stock begins with their delivery to the carrier to be loaded upon its cars, and ends only after the stock is unloaded and delivered, or offered to be delivered, to the consignee, if to be found, at such place as admits of their being safely taken into possession.” 139 U. S. at 135-136.
After the decision in this case, there was enacted § 1 (3) of the Interstate Commerce Act, providing that “The term ‘transportation’ as used in this chapter shall include ... all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit, . . . storage, and handling of property transported . . .” 36 Stat. 539, 545, 49 U. S. C. § 1 (3) (a).
After the enactment of § 1 (3), this Court decided Adams v. Mills, 286 U. S. 397, which arose before the enactment of § 15 (5), set forth below. The propriety of an additional charge for the unloading of livestock at the Chicago Union Stock Yards was in issue, and it was said: “That the yards are, in effect, terminals of the railroads is clear. They are in fact used as terminals; and necessarily so. Whether the unloading in the yards was a part of transportation was not a pure question of law to be determined by merely reading the tariffs. Compare Great Northern Ry. Co. v. Merchants Elevator Co., 259 U. S. 285, 294. The decision of the question was dependent upon the determination of certain facts, including the history of the Stock Yards and their relation to the line-haul carriers; the history of the unloading charge at these yards; and
SWIFT & CO. v. UNITED STATES. 223
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the action of the parties in relation thereto. If there was evidence to sustain the Commission’s findings on these matters, its conclusion that the collection of the extra charge from the shippers was an unreasonable and unlawful practice must be sustained. Atchison, T. & S. F. Ry. Co. v. United States, 232 U. S. 199,221; Los Angeles Switching Case, 234 U. S. 294,310,311.” Id. at 409-410.
On February 28, 1920, prior to this decision and during the pendency of the controversy which led to it, there was enacted § 15 (5) of the Interstate Commerce Act, which provided that: “Transportation wholly by railroad of ordinary livestock in car-load lots destined to or received at public stockyards shall include all necessary service of unloading and reloading en route, delivery at public stockyards of inbound shipments into suitable pens, and receipt and loading at such yards of outbound shipments, without extra charge therefor to the shipper, consignee or owner, except in cases where the unloading or reloading en route is at the request of the shipper, consignee or owner, or to try an intermediate market, or to comply with quarantine regulations. The Commission may prescribe or approve just and reasonable rules governing each of such excepted services. Nothing in this paragraph shall be construed to affect the duties and liabilities of the carriers now existing on February 28, 1920, by virtue of law respecting the transportation of other than ordinary livestock, or the duty of performing service as to shipments other than those to or from public stockyards.” 41 Stat. 456, 486, 49 U. S. C. § 15 (5).
In the subsequent case of Atchison, T. & S. F. Ry. Co. v. United States, 295 U. S. 193, it was pointed out that, in appropriate circumstances, the Commission might properly find that the carriers’ duty to deliver livestock ended with delivery into suitable pens at the Chicago Union
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Stock Yards, and it was recognized that the question of where the carrier’s obligation ends is for the administrative judgment of the Interstate Commerce Commission.
Our most recent decision bearing on the Commission’s power to determine when transportation ends, with reference to shipments of livestock to the Chicago Union Stock Yards, is Armour & Co. v. Alton R. Co., 312 U. S. 195, rendered in the controversy over the propriety of yardage charges made in circumstances precisely similar to those of the present case, by virtue of which Armour & Co. intervened in the present litigation. There it was held by a unanimous Court that Armour’s complaint in the federal District Court should be dismissed, since primary jurisdiction was lodged in the Interstate Commerce Commission ; and it was said that the facts alleged in the complaint revealed that “there are many questions relating to complex transportation problems that must be solved as a prerequisite to a determination of whether the railroads, in violation of contracts or governing laws, have failed properly to deliver petitioner’s livestock.” Id. at 200. By way of illustration, the opinion detailed several questions which would arise, and among them was the following: “At what point did the common carriers’ duty to transport come to an end? Neither the statute nor any applicable principle of governing law can be said to mark this boundary, under all circumstances and conditions and in all cases.” Ibid. The decision agreed with the view of the railroads and courts below that “adjudication of the issues presented relates to such complex transportation problems that determination of the legal questions must necessarily be preceded by the consideration of extensive evidence in a specialized field, and that decision of such questions is by statute vested exclusively in the Interstate Commerce Commission.” Id. at 197. Finally, it was said that “If use of the terminal facilities for egress to the street after unloading of livestock is a
SWIFT & CO. v. UNITED STATES. 225
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part of transportation, as petitioner alleges, and if this use is a service for which reasonable compensation is justified, it cannot be doubted that this charge, like the unloading charge, is a part of that reasonable transportation rate determination of which is committed to the jurisdiction of the Interstate Commerce Commission. And before such long-standing transportation customs can be held illegal, it is of course necessary that evidence be heard.” Id. at 200-201.
Thus it is seen that, before the enactment of § 15 (5), whether transportation included unloading was a question of fact for the determination of the Commission. Adams v. Mills, supra. Section 15 (5) changed this, but it did not alter the situation with respect to yardage services, Atchison, T. & S. F. Ry. Co. v. United States, 295 U. S. 193; and whether they are included in transportation is therefore a question to be decided by the Commission upon the facts of each particular case, and not by mechanical application of a fixed rule of law as contended by the appellants. Atchison, T. & S. F. Ry. Co. n. United States, 295 U. S. 193; Armour & Co. v. Alton R. Co., supra. Otherwise, we erred in requiring “primary resort” to the Commission in the Armour case with respect to the question where transportation ended. Great Northern Ry. Co. v. M er chants Elevator Co., 259 U. S. 285. The propriety of the yardage charges in the present case was a question for decision by the Commission in the exercise of its judgment, and not for decision according to any fixed rule of law.
II
In determining whether the Yard Company’s unloading pens were suitable points at which to terminate the duties of carriers to consignees, and points where the consignees entered into a relationship with someone other than the carriers, the Commission was justified in considering, as it did, all that would account for the evolution
461263°—43--15
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of the practice complained of, as well as the effect of existing and proposed practices on the interest of the carriers, the public, and other shippers. Adams v. Mills, supra, at 409 et seq.; Atchison, T. & S. F. Ry. Co. v. United States, 295 U. S. at 198 et seq.; Armour & Co. v. Alton R. Co., supra, at 201. Neither the railroads nor the Stock Yards exist for the benefit of the packers alone. Their patronage is large and important, but neither in the regulation of the carriers nor in the regulation of the Stock Yards are they entitled to facilities or treatment that will ignore the existence of other interests. The Stock Yards are not only a facility for the transportation of direct shipments from points of country origin to the packers; they also are an important factor in the entire animal industry of the United States. The Commission found that the direct shipments of livestock transported by rail to the packers at Chicago have exceeded 30,000 carloads annually for several years, but that the total annual average rail movement to the Stock Yards was 94,629 carloads.
The bulk of the movement of stock is received in the Yards during the first days of the week, and approximately three-fourths of the daily movement is unloaded between three and eight in the morning. In some instances, immediate removal of the animals from the unloading pens is necessary to preserve an even flow of livestock from the cars into the Yards. Apart from the direct shipments, much of this stock must be watered, fed, and weighed in the Yards. It is removed to holding pens, and one of the important functions of the Stock Yards is to furnish the facilities for marketing. Commission brokers or market agencies receive consignments of livestock and sell them for the account of the producer, sometimes to the packers and sometimes to purchasers who require re-ship-ment.
Shipments must be moved with great rapidity and order, and it may be that this can best be done by employees
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under a single management and discipline. The customary handling over many years led to the building up of a physical plant which the Commission finds makes it physically impossible to remove this stock from the unloading pens except by use of the property of the Yard Company.
The interests of the public and of the community are entitled to consideration. This transportation is of a special kind of property on the hoof, which calls for special handling in the interests of economy, safety, sanitation, and health. The Commission has found that “the evidence fails to disclose how, as a practical matter, an annual volume of 30,000 carloads of livestock could be discharged into and handled through the public streets of Chicago.”6
The existence and suitability of alternative facilities for delivery of livestock were considered by the Commission. Some stock is and can be delivered at team tracks and some at industrial sidings. These facilities are inadequate for handling the entire volume of direct shipments. It does not appear, however, that the existence or adequacy of alternative facilities for delivery at other points is particularly important in the case, because the shipments involved are consigned to the packers at the Union Stock Yards by their own choice. It does not appear that they are demanding an increase of other facilities, and the case has not been considered in that light.
The packers object to consideration of their own part in evolving the situation of which they complain. The Commission, however, considered it and made findings as to the history of the relation between the Yard Company and the packers.
The Commission found that, since the Yard Company began operation in 1865, there has been a line of debarkation between the services which shippers were
" 238 I. C. C. 179, 194.
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entitled to receive for the transportation charges and the services received from the Yard Company. The linehaul carriers have paid the Yard Company for the unloading service and absorbed the charge made for such service out of their line-haul rates. From the beginning, however, all shippers were required to pay to the Yard Company a yardage charge on every animal unloaded. Dealings with respect to those charges were between the Yard Company and the shippers, with no intervention by the carriers. After these practices had been in effect for about twenty-five years, the Yard Company entered into certain arrangements under which these packers participated in the profits from its operations. Some time before 1890, the packers threatened to move their plants from Chicago and to establish facilities of their own for the receipt of their livestock. The packers had acquired a large tract of land in Indiana as a site for their proposed plants. They had also purchased property known as the “Central Stock Yards” near the Union Stock Yards and had erected thereon platforms, pens, sheds, and sidings for the purpose of receiving all cattle and livestock consigned to them. They had also filed a complaint in an Illinois court demanding that the Yard Company be required to permit the line-haul carriers to use its tracks in making deliveries to the packers’ Central Stock Yards.
Having put themselves in this independent position and threatened to reduce the revenues of the Yard Company, the packers negotiated a contract which, in substance, involved the abandonment by the packing companies of this threatened move to Indiana and surrender of their own facilities for receiving direct shipments in return for a participation in the profits and capital of the Yard Company. In 1892, the packers conveyed to Stock Yard interests the Indiana site and the Central Stock Yards, and agreed by contract to dismiss the suit filed
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in the Illinois court and to refrain from filing any similar suit for a period of fifteen years; to continue their business at Packingtown, adjacent to the Union Stock Yards, for fifteen years from July 1, 1891; to have all livestock slaughtered by them on their premises or within two hundred miles of the City of Chicago, during such period, pass through and use the Union Stock Yards, and to pay the usual yardage charge therefor; and they guaranteed that the Yard Company would receive and collect from its yardage charges on packers’ livestock the aggregate sum of $2,000,000 within six years, and agreed to make up any deficiency in that amount. The packers also agreed that, as long as the Yard Company conducted its business in Chicago, they would not interest themselves in any other stockyards in Chicago for the receipt and use of their own livestock.
The packers received income bonds of a new corporation, the security of which was the revenues of the Stock Yards, in the amount of $3,000,000. Swift received approximately one-third. These bonds were subsequently redeemed by the issuing corporation.
The railroad companies were not parties to this agreement, and the Commission found that the packers, at the time the agreement was entered into, did not consider the assessment of the yardage charges to be a matter of any concern to the railroads. During the existence of the agreement described, the packers paid the yardage charges, and participated in the receipts from such charges. This agreement expired in 1907, except for the covenant by the packers not to establish or become interested in any other stockyards for the receipt of their livestock so long as the Yard Company maintained its business in Chicago. It appears, however, that after the expiration of the contract the Yard interests were informed that the packers were still threatening to move their plant from Chicago, and it appears that Swift expected to receive a share of
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the Yard’s earnings as late as 1918, but there is no proof that it did receive anything in addition to the bonds received under the contract of 1892. J. 0. Armour, of Armour & Company, however, received substantial benefits after 1907.
Thus, for more than seventy years the responsibility of the railroads in respect of direct shipments consigned to the packers has ended with the unloading service. The packers, from that point on, have negotiated their own arrangement with the Yard Company. More recently, of course, the Stock Yards have passed under public regulation, and discrimination or rebating of the kind once practiced is no longer possible. The Commission finds that it was the attitude of the packers that their patronage was a thing of value to the Stock Yards, and they proposed to sell that patronage to the Yard Company. The Packers and Stockyards Act having made private arrangements of this kind unlawful,7 the packers now contend that the carriers must protect them against yardage charges on their direct shipments.
It was the packers themselves who suppressed the competitive yards and alternative facilities for unloading their stock. The Commission, however, has not held the packers to be estopped by their conduct. It has only considered the practice and usage of the packers as bearing on the suitability of the Yard Company’s unloading pens as a point of termination of the carriers’ responsibility. The Commission has held it to be a reasonable practice that the railroads’ responsibility for transportation of such direct shipment consigned by the packers to themselves at the Union Stock Yards ends with unloading into the unloading pens, which it found to be suitable, and that the carriers’ failure to negotiate or purchase free egress for such shipments from the unloading pens has
7 42 Stat. 161, 7 U. S. C. § 192.
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not resulted and does not result in an unreasonable practice. There is evidence to support the determination, and the decision of the administrative body charged with making it is therefore conclusive on this Court.8
Ill
Having properly decided that transportation ended when the livestock reached the unloading pens, was the Commission in error in concluding that it had no jurisdiction to inquire into the reasonableness of practices or charges of the Yard Company beyond that point?
The appellants contend that the fact that property of the Yard Company was involved in furnishing egress to the appellants’ shipments did not prevent the Commission from exercising such jurisdiction. The Yard Company, they say, was the agent of the railroads and acted in a dual capacity, as public stockyards subject to the Packers and Stockyards Act and also as a common carrier by railroad subject to the Interstate Commerce Act. In the latter capacity, it is said, the Yard Company, as the railroads’ agent, provides terminal facilities for livestock delivery, which is a part of the railroads’ obligation.
The Stock Yards are named in the railroads’ tariffs as a specific station to which the railroad rates to Chicago are applicable. The line-haul railroads publish an allowance to the Yard Company of $1.25 per single-deck car, and $1.50 per double-deck car, for unloading livestock. The Yard Company also files with the Interstate Commerce Commission its tariff which publishes the same amounts as charges for unloading the livestock “as carrier s agent.” Since unloading is required by statute as apart of the transportation service, the filing of the
Adams v. Mills, supra; Atchison, T. & S. F. Ry. Co. y. United States, 295 U. S. 193; Armour & Co. v. Alton R. Co., supra.
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terms on which it is performed is manifestly proper, although shippers are not concerned with the charge because the railroads absorb it in the line-haul rate. Because the Yard Company in this specific and limited matter acts as agent for the railroads, and in the performance of that transportation service is subject to the jurisdiction of the Interstate Commerce Commission, it does not follow that the Commission may regulate, either directly or somehow, through the railroads, the other practices and charges of the Yard Company.
If the Yard Company is in the dual position of being at once the agent of the carriers for the unloading of the stock and the principal in rendering any subsequent services, so is it under dual regulatory schemesand authorities. In so far as it is an agency in transportation, it is subject to the Interstate Commerce Act and to the control of the Interstate Commerce Commission. In so far as it performs stockyard services, it is subject to the Packers and Stockyards Act and to the regulation of the Secretary of Agriculture. The statutes clearly disclose an intention that jurisdiction of the Secretary of Agriculture over stockyard services shall not overlap that of the Commission over transportation.9 The boundary between the two is the place where transportation ends, and in this case that is established to be the unloading pens.
The Union Stock Yards are a public utility. The decision of the Commission that the transportation ends with unloading leaves the stock in the hands of a public utility—the Union Stock Yards—for delivery to the consignee. Neither the Interstate Commerce Commission nor this Court can assume that the charges or practices
“Section 406 of the Packers and Stockyards Act provides in part: “Nothing in this Act shall affect the power or jurisdiction of the Interstate Commerce Commission, nor confer upon the Secretary concurrent power or jurisdiction over any matter within the power or jurisdiction of such Commission.” 42 Stat. 169, 7 U. S. C. § 226.
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216	Douglas, J., dissenting.
of that utility are unfair or unreasonable, that it is charging for services that are not performed or facilities not used, or that it is imposing on consignees unnecessary services. Nor can the Commission or this Court assume that, if unreasonable practices or charges are imposed by this utility, the Secretary of Agriculture would fail to correct them upon an appropriate complaint in a proceeding in which the Yard Company is a party and may defend its practices for itself. In any event, Congress has provided that the Secretary of Agriculture is the forum in which such charges and practices may be questioned and may be weighed in the interest, not only of the packers, but of others who use the Yards and markets and who might be affected competitively by granting the packers’ present demands. Congress has established an appropriate forum in which any complaint of the packers against the real party in interest may be heard and any lawful grievances adjusted, and the Commission was quite right in refusing to trespass upon its jurisdiction.
It follows that the decree below should be and hereby is
Affirmed.
Mr. Justice Douglas, dissenting:
The question in this case is not where the transportation ends but what the particular transportation service includes. I do not suppose that it would be contended that a railroad could lawfully exact from a passenger who had alighted on the station platform an extra charge for passing through the station to the street. The reason why it could not make that exaction is that, although the transportation ended at the platform, the transportation service included free egress from the station. I think that that principle is applicable and controlling here.
Covington Stock-Yards Co. v. Keith, 139 U. S. 128, which arose prior to the Interstate Commerce Act, applied that
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principle to the delivery of livestock at stockyards. This Court, after stating that a carrier of livestock has no right “to make a special charge for merely receiving or merely delivering such stock, in and through stock yards provided by itself,” added (pp. 135-136): “If the carrier may not make such special charges in respect to stock yards which itself owns, maintains or controls, it cannot invest another corporation or company with authority to impose burdens of that kind upon shippers and consignees. The transportation of livestock begins with their delivery to the carrier to be loaded upon its cars, and ends only after the stock is unloaded and delivered, or offered to be delivered, to the consignee, if to be found, at such place as admits of their being safely taken into possession.”
So far as I am aware, the Covington case has never been overruled. As recently as 1939 we approved it. For we stated in Union Stock Yard Co. n. United States, 308 U. S. 213, 219, after reviewing § § 1 (3) and 15 (5) of the Interstate Commerce Act: “Without the aid of these statutes the transportation of livestock by rail was held to begin with its delivery to the carrier for loading onto its cars, and to end only after unloading for delivery or tender to the consignee at the place of destination. Covington Stock-Yards Co. v. Keith, 139 U. S. 128,136. The same rule has been repeatedly applied since the statute was adopted. Erie R. Co. v. Shuart, 250 U. S. 465, 468; Atchison, T. &
S.	F. Ry. Co. v. United States, 295 U. S. 193,198, and cases cited; Denver Union Stock Yard Co. v. United States, 304 U. S. 470; 2 Hutchison, Carriers, 3d ed. § 510.”
Atchison, T. & S. F. Ry. Co. v. United States, 295 U. S. 193, did not alter that rule. As stated by the majority in that case (295 U. S. p. 200): “The Hygrade Company did not seek and the Commission did not grant relief upon the ground that the carriers failed to provide egress from the unloading pens in the public stockyards to the city streets by means of which consignee’s animals might be
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removed to its plant. Consignee sought free delivery in cars switched into its plant, but the Commission found the switching charge not unreasonable. Consignee also sought free use of the Yards Company’s properties, including the overhead runway to take its animals from holding pens as well as from unloading pens to its plant.” And the majority added (p. 201): “Plainly there is an essential difference between the route from unloading pens to consignee’s plant and a mere way out to the public highways. Transportation does not include delivery within the Hygrade plant or the furnishing of the properties, overhead runway and all, that are used for that purpose.” Although certain general statements in the opinion are not consistent with the rule of the Covington case, a unanimous Court recently explained Atchison, T. & S. F. Ry. Co. v. United States as follows: “There the Commission’s order directing the discontinuance of appellant’s yardage charge to consignees was set aside on the sole ground that the Commission’s findings failed to show that the service for which the charge was made was any part of the loading or unloading services, or otherwise a service which the rail carrier was bound to furnish.” Union Stock Yard Co. v. United States, supra, p. 219. That is amply supported by the reasons given by the majority itself for setting aside the Commission’s order in the Atchison case: “But the Commission, in respect of the shipments covered by its order, made no definite finding as to what constitutes complete delivery or where transportation ends. Its report does not disclose the basic facts on which it made the challenged order. This court will not search the record to ascertain whether, by use of what there may be found, general and ambiguous statements in the report intended to serve as findings may by construction be given a meaning sufficiently definite and certain to constitute a valid basis for the order.” 295 U. S. pp. 201-202. And Armour &Co.y. Alton R. Co., 312 U. S. 195, did not weaken the rule
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of the Covington case. We merely held in that case that the complaint of a packer who sought to be rid of “yardage charges” raised certain administrative problems necessitating primary resort to the Interstate Commerce Commission. We did not reach in that case the merits of that controversy nor the questions of law involved here.1
Hence, I think we reach the question of the application of the rule of the Covington case to this situation unembarrassed by a prior holding.
I do not agree that Congress has left to the Commission the power to eliminate free egress from this particular transportation service. Whatever may have been the scope of the authority of the Commission prior to the Transportation Act of 1920 (Adams v. Mills, 286 U. S. 397), it should be noted that Mr. Justice Brandeis, the author of Adams v. Mills, joined in the dissenting opinion in the Atchison case, which repudiated the notion that the transportation service in this type of shipment was completed at the unloading pens. Furthermore, as stated in the dissenting opinion in the Atchison case, it is clear that Congress itself provided a rule, in § 15 (5) of that Act, which placed on the Commission the duty and the author-
1 It will not do to say that, if the rule of the Covington case applied, we erred in requiring primary resort to the Commission in the Armour case. There were several questions relating to complex transportations involved in that case which required primary determination by the Commission. They included possible readjustments of rate schedules, possible refunds to shippers, and definition of the boundaries of the station named in the tariff. The statement in the Armour case that the statute did not mark the point where the transportation service was completed “under all circumstances and conditions and in all cases” (312 U. S. p. 200) is borne out by the Atchison case, where the consignee, as we have noted, sought free delivery in cars switched into its plant and the use of an overhead runway from holding pens to its plant. Clearly, a determination of the precise facts concerning the characteristics and use of a particular station was necessary before a correct application of the applicable rule of law could be made.
SWIFT & CO. v. UNITED STATES. 237
216	Douglas, J., dissenting.
ity to see to it that tribute was not exacted from a shipper by exaction of a separate charge for egress from the station to the street or other public place. 41 Stat. 456,486, 49 U. S. C. § 15 (5). That section, so far as material here, provides that transportation wholly by railroad of ordinary livestock in carload lots received at public stockyards “shall include all necessary service of unloading and . . . delivery at public stockyards of inbound shipments into suitable pens . . . without extra charge therefor to the shipper, consignee, or owner . . .” To say that carriers need not furnish facilities for delivery and immediate removal of livestock by the consignee, without extra charge, is to give § 15 (5) an interpretation which is not only “ingenious” (Atchison, T. & S. F. Ry. Co. v. United States, supra, p. 205, dissenting opinion) but which is also quite oblivious of the crying abuses which § 15 (5) was designed to correct. The words “all necessary service of unloading and . . . delivery” of livestock at public stockyards must be taken to include all services at a terminal incidental to obtaining delivery of the livestock. Any delivery “into suitable pens” must be taken “to mean pens to which the consignees may gain unimpeded access for the purpose of removing their stock.” Id., p. 206. As stated by Commissioner Eastman in Hygrade Food Products Corp. v. Atchison, T. & S. F. Ry. Co., 195 I. C. C. 553, 559, pens are not “suitable,” within the meaning of § 15 (5), where they do not “permit of reasonable opportunity to accept delivery and remove the livestock from the premises after notice of arrival.” Otherwise, the purpose of § 15 (5) in removing “an old evil” is defeated and “a crop of new ones” is sanctioned “by giving stock yards and rail carriers of livestock carte blanche to impose vexatious charges which for more than thirty years had been condemned by this Court.” Atchison, T. <& S. F. Ry. Co. v. United States, supra, 295 U. S. at p. 206, dissenting opinion.
238	OCTOBER TERM, 1941.
Douglas, J., dissenting.	316U.S.
The legislative history of § 15 (5) was reviewed in the dissenting opinion in the Atchison case. 295 U. S. at pp. 207-208. The mandate contained in § 15 (5) originated with the American National Live Stock Association (59 Cong. Rec. 674) and the National Live Stock Shippers’ League. Hearings, Committee on Interstate and Foreign Commerce, H. R. 4378, 66th Cong., 1st Sess., Vol. I, pp. 139-141. The proposal was not vague. It was that there be “one through rate on live stock for the whole services from point of origin to the destination at public stockyards used at market place which shall include unloading into suitable pens and delivery therein at such stockyards, where the animals may be counted and checked, including such facilities as are necessary or in use for making such delivery.” Id., p. 141. It was the enactment of the rule of the Covington case which was specifically asked. Id., p. 874. The argument was that a railroad would not “make two rates to its own pens if it owned and operated them, and neither should it do so with respect to pens which it uses in the same manner. There should be one fare, the same as a passenger rate, to such depot as they use in a given city.” Id., p. 881. The record shows that Congress was alive to the evils of which the shippers complained and that it endeavored to correct them. As stated by the House Managers, the aim of the amendment introduced in the Senate and amplified in Conference was to provide that the “through rates on live stock should include unloading and other incidental charges.” 59 Cong. Rec. 3264. Indeed, the sole purpose of the amendment was to impose on the Commission the duty and authority to eliminate the practices condemned by the Covington case. In view of that explicit history, it comes as a surprise that the Commission can now abdicate and say that a consignee or owner who has paid a through rate may not have free receipt of his stock at the station. To hold that
SWIFT & CO. v. UNITED STATES. 239
216	Douglas, J., dissenting.
the separate charge for unloading livestock into pens, which § 15 (5) outlawed, may now be exacted for taking the livestock out, is to make the relief afforded by that section illusory indeed.
But it is said that the matter is subject to the Packers and Stockyards Act of 1921 and that, if relief is to be had, the Secretary of Agriculture must give it. The difficulty with that view is that that Act provides, “Nothing in this Act shall affect the power or jurisdiction of the Interstate Commerce Commission, nor confer upon the Secretary concurrent power or jurisdiction over any matter within the power or jurisdiction of such Commission.” 42 Stat. 169, 7 U. S. C. § 226. The boundary between the Commission and the Secretary of Agriculture is not the place where the transportation ends but the time when the transportation service is completed. It is not completed until the consignee has unimpeded access to the station for the purpose of removing the livestock. That view is supported by Union Stock Yard Co. v. United States, supra, where the stockyards argued that their loading and unloading services were subject to regulation by the Secretary of Agriculture and not by the Commission. We held that loading and unloading services were “common carrier services placed under the authority of the Commission by the Interstate Commerce Act.” 308 U. S. p. 221. And we defined the scope of those services in terms of the rule of the Covington case. Id., p. 219. To call the withholding of the stock until an additional fee is paid a stock-yard “service,” is indeed incongruous. It is to forget over half a century of history. It is to take away part of the protection which Congress afforded shippers by § 15 (5). It is to interpret § 15 (5) not liberally, as a remedial provision, but strictly against the stock raisers for whose ultimate benefit it was passed. For years the carriers and stockyards persistently sought to dignify this type of trib-
240	OCTOBER TERM, 1941.
Douglas, J., dissenting.	316U.S.
ute and exploitation as a “stock yard service.” Until the present, they were unsuccessful. They should fail again. The Covington case states the correct rule. It is that rule which Congress enacted into § 15 (5) for the protection of the stock raisers, who ultimately pay the tribute and vexatious charges which the middleman exacts. It is that rule which we should enforce, until Congress changes it.
The Interstate Commerce Commission followed that rule in Hygrade Food Products Corp. v. Atchison, T. & S. F. Ry Co., 195 I. C. C. 553. That case met with reversal here. Atchison, T. & S. F. Ry. Co. v. United States, supra. And the opinion of the Court contained a dictum that “Usage and physical conditions combined definitely to end transportation, at least in respect of these shipments, with unloading into suitable pens as is now required by § 15 (5).” 295 U. S. p. 201. It is that dictum which has haunted this litigation and which largely shaped the ruling of the Commission in the instant case. For the Commission proceeded from the premise that there was “no difference in principle” between the Atchison case and this one, and that this Court had stated in the earlier case “that the obligation of the line-haul carriers ceased when the animals were placed in the unloading pens.” 238 I. C. C. 179, 189-190, 196. But the Commission was under no such compulsion. Commissioner Alldredge was quite right when he pointed out in his dissenting opinion that the Commission misconstrued the opinion of this Court in the Atchison case. 238 I. C. C. pp. 197-198. Hence the conclusion of the Commission, reached in large measure under the compulsion of that erroneous assumption, should not be given the weight normally due findings and conclusions of such an expert body.
We should reaffirm once more the rule of the Covington case and reject the dictum in the Atchison case. We should hold that § 15 (5) is remedial and should be liberally construed and, as the Commission itself held in the
U. S. V. UNIVIS LENS CO.	241
216	Syllabus.
Atchison case, that this particular transportation service includes the time-honored opportunity of the consignee or owner to go to the station and take away his livestock without payment of an additional toll.
The Chief Justice and Mr. Justice Murphy join in this dissent.
UNITED STATES v. UNIVIS LENS CO., INC. et al.*
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 855. Argued April 9, 10, 1942.—Decided May 11, 1942.
1.	The facts establish venue for this suit in the District Court in which it was brought. P. 246.
2.	Sale by a patent-owner of an article which is capable of use only in practicing the patent is a relinquishment of the patent monopoly with respect to that article. P. 249.
3.	A patent does not confer the right to control the resale prices of the patented articles after their sale by the patentee. P. 250.
4.	The owner of a patent covering lens blanks (capable of use only in manufacturing eye glass lenses) and also (as was assumed in this case) covering the process of grinding and polishing them, by which the blanks are converted into finished lenses for use as eye glasses, devised a licensing and price-fixing system, pursuant to which, for a stipulated royalty, one licensee was authorized to make the blanks and sell them to other licensees, who in turn were authorized to buy them from the maker at prices fixed and to finish them as lenses according to the patent and to sell the lenses to other licensees, who were authorized to sell them to the public—the prices in all cases being those fixed by the patent owner. The rewards of the patent owner and the manufacturer of the blanks for the exploitation of the patent and the patented lenses were derived wholly from the proceeds of sales of the blanks by the manufacturer, from which proceeds the royalty was paid. Held:
*Together with No. 856, Univis Lens Co., Inc. et al. v. United States, also on appeal from the District Court of the United States for the Southern District of New York.
461263°—43---16
242	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
(1)	That, with the sale of the lens blanks for use in manufacturing lenses, the patent-owner conferred on the buyer the right to practice the patent with respect to the blanks and parted with the right to assert its patent monopoly with respect to them, and could no longer control the price at which they might be sold in their unfinished, or their finished, forms. P. 250.
(2)	The stipulations for maintenance of prices derived no support from the patent and must stand on the same footing under the Sherman Act as like stipulations with respect to unpatented commodities. P. 251.
5.	Agreements for maintaining prices of goods in interstate commerce, including restrictions imposed by the seller upon resale prices, held unreasonable restraints within the meaning of the Sherman Act. P. 252.
6.	The Miller-Tydings Act can not be so applied to products manufactured in successive stages by different processors that the first processor may control the prices of his successors. P. 253.
7.	Features of a licensing system, which, by themselves, might be lawful, but which are closely identified and interwoven with a scheme of price restrictions violative of the Sherman Act, will be suppressed with the scheme as a whole. P. 254.
No. 855, reversed.
No. 856, affirmed.
Appeal and cross-appeal from a decree of the District Court which granted in part, and in part refused, relief sought by the Government in a suit under the Sherman Act.
Mr. Samuel S. Isseks and Assistant Attorney General Arnold, with whom Solicitor General Fahy and Messrs. James C. Wilson, Richard H. Demuth, and Stanley E. Disney were on the brief, for the United States.
Mr. H. A. Toulmin, Jr., with whom Messrs. Frederick S. Duncan and John M. Mason were on the brief, for appellees in No. 855 and appellants in No. 856.
Mr. Chief Justice Stone delivered the opinion of the Court.
These cases come here on direct appeal and cross appeal from a judgment of the District Court granting in part and denying in part the Government’s prayer for an in-
U. S. v. UNIVIS LENS CO. 243
241	Opinion of the Court.
junction restraining violations of § § 1 and 3 of the Sherman Act, 15 U. S. C. §§ 1,3, which make unlawful any contract, combination or conspiracy in restraint of trade or commerce among the states. The principal questions for decision are:
First: Whether the system established and maintained by the Univis Corporation, appellee and cross appellant, for licensing the manufacture and sale of patented multifocal eyeglass lenses is excluded by the patent monopoly from the operation of the Sherman Act.
Second: Whether if not so excluded the resale price provisions of the licensing system are within the prohibition of the Sherman Act and not exempted from it by the provisions of the Miller-Tydings Act amendment of § 1 of the Sherman Act, 50 Stat. 693.
Appellee, Univis Lens Company, was the owner of a number of patents and two trademarks relating to multifocal lenses. In 1931 it organized appellee, Univis Corporation. The Lens Company then acquired and now holds a majority of the stock of the Corporation. The individual appellees are the principal stockholders of the Lens Company. They are stockholders in the Corporation and are the principal officers of both corporations, which may for the purposes of this suit be treated as though they were a single corporation. Upon the organization of the Corporation, the Lens Company transferred to it all its interest in the patents and trademarks presently involved, and the Corporation then proceeded to set up and has since maintained the licensing system which the Government now assails.
The relevant features of the system are as follows : The Corporation licenses the Lens Company to manufacture lens blanks and to sell them to designated licensees of the Corporation, upon the Lens Company’s payment to the Corporation of an agreed royalty of 50 cents a pair.
244	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
The lens blanks are rough opaque pieces of glass of suitable size, design and composition for use, when ground and polished, as multifocal lenses in eyeglasses. Each blank is composed of two or more pieces of glass of different refractive power, of such size, shape, and composition and so disposed that when fused together in the blank it is said to conform to the specifications and claims of some one of the Corporation’s patents.
The Corporation also issues three classes of licenses— licenses to wholesalers, to finishing retailers and to prescription retailers. The licenses to wholesalers authorize the licensees to purchase the blanks from the Lens Company, to finish them by grinding and polishing, and to sell them to prescription licensees only at prices fixed by the Corporation licensor. In finishing the lenses so as to make them an effective aid to vision of the prospective wearer, to whom the prescription retailer sells, it is necessary for the wholesaler, by grinding the blanks, to conform their curvatures to the prescription supplied by the retailer with his order. By the terms of the license the wholesalers are required to keep full accounts of all sales, showing the sales prices of lenses and the names of the purchasers, and to make them available to representatives of the Corporation.
The licenses to finishing retailers—who purchase the blanks from the Lens Company, grind and polish them and adjust the lenses, in frames or supports, to the eyes of the consumers—contain similar provisions. The retailers are licensed to purchase the blanks of the Lens Company and to sell them to their customers at prices prescribed by the Corporation licensor.
Both the licenses to wholesalers and to finishing retailers require the licensee to notify the Corporation “of any violation on the part of any jobbers or other licensees of the agreements respectively made by them with the Corporation, and to assist the Corporation in all possible ways
U. S. V. UNIVIS LENS CO. 245
241	Opinion of the Court.
in securing evidence against, and enforcing its agreements with such jobbers and licensees.”
The licenses to prescription retailers, who are without facilities for grinding and finishing the lenses, but who prescribe and adjust glasses for their customers, are signed both by the Corporation and a licensor wholesaler, and grant to the retailer a “franchise to prescribe and fit Univis lenses,” in return for which the prescription retailer agrees to sell finished lenses only to consumers and only at prices prescribed by the Corporation.
All the licenses to wholesalers and retailers recite the Corporation’s ownership of the lens patents and purport to confer on the licensee the privilege of selling the patented invention in the manner and to the extent stated. No royalties are exacted of any of the licensees other than the 50 cents collected by the Corporation for each pair of blanks sold by the Lens Company. The rewards of the corporate appellees for the exploitation of the patents and the patented lenses are derived wholly from the sales by the Lens Company of the blanks, from the proceeds of which the 50 cent royalty is paid.
The prices prescribed and maintained under the licensing system are: $3.25 a pair for the blanks sold by the Lens Company to wholesalers, and $4 a pair for those sold to finishing retailers; $7 a pair for finished lenses sold by wholesalers; $16 a pair for white, and $20 for tinted, lenses sold to consumers by prescription and finishing retailers.
The Corporation pursues the policy of issuing licenses to “qualified licensees” who, it is said, are required to maintain “high standards of practice” and to be skilled m the performance of the services which they undertake to render. According to the Corporation’s instructions to its field representatives, “price cutters” are not eligible as prescription retailer licensees. Inquiry is made to ascertain whether prospective licensees advertise prices, and whether they are considered in their communities to
246	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
be price cutters. The Corporation cancels licenses principally because of the failure of licensees to adhere to the price fixing provisions but also because they advertise prices or the acceptance of installment payments, or for other forms of advertising objectionable to it; for selling Univis lenses to customers other than those designated by the Corporation; for not giving a certain percentage of the licensees’ multifocal lens business to Univis; because the licensee is located in a drug, department or jewelry store, or because the licensee engaged in price cutting in the sale of the products of other manufacturers.
For a time the Corporation licensed approximately 20 per cent of the retailers in a locality. It now licenses a larger percentage but not more than 50 per cent. There are approximately 330 wholesaler licensees, 325 finishing retailer licensees and 6,500 prescription retailer licensees located in various states of the Union, including New York and the District of Columbia. The Corporation, by its representatives, solicits licenses and negotiates with licensees in the towns and cities where they conduct their business, including the Southern District of New York. The Lens Company, whose annual sales volume is approximately $1,000,000, ships blanks in interstate commerce from its factory in Ohio to wholesalers and finishing licensees in the various places where they are located, including the Southern District, where its representatives visit licensees for the purpose of instructing them in finishing lens blanks and for promoting sales of Univis lenses. The facts amply established the venue of the court below. Eastman Kodak Co. v. Southern Photo Co., 273 U. S. 359,373.
Of the sixteen patents owned by the Corporation, three are unrelated to the issues of the present case; five are for methods of producing lenses utilized by the Lens Company in manufacturing blanks and do not concern any method or process employed by the licensees who finish
U. S. v. UNIVIS LENS CO. 247
241	Opinion of the Court.
the lens blanks. Each of the remaining eight patents relates to the shape, size, composition and disposition of the pieces of glass of different refractive power in the blanks into which they are fused.
The District Court found, 41 F. Supp. 258, that the claims of each of these eight patents are for a finished lens and that consequently the wholesalers and finishing retailers, in grinding and polishing each lens, practice in part the patent, in conformity to which the Lens Company has manufactured the blanks which it supplies. The court thought that without the granted license the final step in finishing the lens would infringe the patent and concluded that for this reason the Corporation could condition its licenses upon the maintenance by the licensee of the prescribed retail price. See United States v. General Electric Co., 272 U. S. 476. But it held that the prescription retailer licenses are unlawful because their restrictions upon the resale of the finished product are not within the patent monopoly and are proscribed by the Sherman Act.
It also held that certain “fair trade agreements” entered into by the Lens Company with the licensees for the control of resale prices of the finished lenses, were not within the exception to the Sherman Act created by the Miller-Tydings Act. This was because the Lens Company had undertaken to fix the resale price of the finished lenses, which are a different product from the lens blanks which it manufactures and sells. The court accordingly limited the relief which it granted to an injunction restraining respondents from carrying out or enforcing the restrictive provisions of the prescription retailer licenses and the fair trade agreements, and from using its licensing system—as has been done in one instance—as the means of preventing a particular competitior from manufacturing and distributing multifocal lens blanks similar in appearance to those produced by the Lens Company.
248	OCTOBER TERM, 1941
Opinion of the Court.	316U.S.
The Government has not put in issue the validity of the lens patents, but argues that their scope does not extend beyond the structure of the lens blanks and consequently affords no basis for the Corporation’s restrictions on the sale of the finished lenses which the wholesalers and finishing retailers fashion from blanks purchased from the Lens Company. It insists that the novel features of the invention do not include more than the combination of shape, size and arrangement of the described pieces of glass when they are fused into the blank; that the grinding and polishing of the blank involve no practice and add no feature not common to the finishing and “fitting” of other types of multifocal lenses which are not covered by the patents; and that their scope cannot be lawfully extended to a procedure not in itself novel merely because it is applied to an article which embodies the only novel features of the alleged invention, and has by the sale become a lawful subject of commerce.
The record gives no account of the prior art and does not provide us with other material to which, if available, resort might appropriately be had in determining the nature of an alleged invention and the validity and scope of the patent claims founded upon it. In any event, we find it unnecessary, in the circumstances of this case, to decide whether, as the court below held, the patent claims can rightly be said to include the finishing of the blanks.
As appellees concede, the invention of only a single lens patent is utilized in making each blank and finishing it as a lens. We therefore put to one side questions which might arise if the finisher of a particular lens blank utilized the invention of some patent other than the patent which was practiced in part by the manufacture of the blank. And we assume for present purposes, without deciding, that the patent is not fully practiced until the finishing licensee has ground and polished the blank so that it will
U. S. v. UNIVIS LENS CO. 249
241	Opinion of the Court.
serve its purpose as a lens. But merely because the licensee takes the final step in the manufacture of the patented product, by doing work on the blank which he has purchased from the patentee’s licensee, it does not follow that the patentee can control the price at which the finished lens is sold.
Notwithstanding the assumption which we have made as to the scope of the patent, each blank, as appellees insist, embodies essential features of the patented device and is without utility until it is ground and polished as the finished lens of the patent. We may assume also, as appellees contend, that sale of the blanks by an unlicensed manufacturer to an unlicensed finisher for their completion would constitute contributory infringement by the seller. Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U. S. 325, 332-33; cf. Carbice Corp. v. American Patents Corp., 283 U. S. 27, 34.
But in any case it is plain that where the sale of the blank is by the patentee or his licensee—here the Lens Company—to a finisher, the only use to which it could be put and the only object of the sale is to enable the latter to grind and polish it for use as a lens by the prospective wearer. An incident to the purchase of any article, whether patented or unpatented, is the right to use and sell it, and upon familiar principles the authorized sale of an article which is capable of use only in practicing the patent is a relinquishment of the patent monopoly with respect to the article sold. Leitch Mjg. Co. v. Barber Co., 302 U. S. 458, 460-61; B. B. Chemical Co. v. Ellis, 314 U. S. 495. Sale of a lens blank by the patentee or by his licensee is thus in itself both a complete transfer of ownership of the blank, which is within the protection of the patent law, and a license to practice the final stage of the patent procedure. In the present case the entire consideration and compensation for both is the purchase price
250	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
paid by the finishing licensee to the Lens Company. We have no question here of what other stipulations, for royalties or otherwise, might have been exacted as a part of the entire transaction, which do not seek to control the disposition of the patented article after the sale. The question is whether the patentee or his licensee, no longer aided by the patent, may lawfully exercise such control.
The declared purpose of the patent law is to promote the progress of science and the useful arts by granting to the inventor a limited monopoly, the exercise of which will enable him to secure the financial rewards for his invention. Constitution of the United States, Art. I, § 8, Cl. 8; 35 U. S. C. §§ 31, 40. The full extent of the monopoly is the patentee’s “exclusive right to make, use, and vend the invention or discovery.” The patentee may surrender his monopoly in whole by the sale of his patent or in part by the sale of an article embodying the invention. His monopoly remains so long as he retains the ownership of the patented article. But sale of it exhausts the monopoly in that article and the patentee may not thereafter, by virtue of his patent, control the use or disposition of the article. Bloomer v. McQuewan, 14 How. 539, 549-50; Adams v. Burke, 17 Wall. 453; Hobbie v. Jennison, 149 U. S. 355. Hence the patentee cannot control the resale price of patented articles which he has sold, either by resort to an infringement suit, or, consistently with the Sherman Act (unless the Miller-Tydings Act applies), by stipulating for price maintenance by his vendees. Bauer & Cie v. O’Donnell, 229 U. S. 1; Boston Store v. American Graphophone Co., 246 U. S. 8; Straus v. Victor Talking Machine Co., 243 U. S. 490; Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 456-57, and cases cited.
We think that all the considerations which support these results lead to the conclusion that where one has sold
U. S. v. UNIVIS LENS CO. 251
241	Opinion of the Court.
an uncompleted article which, because it embodies essential features of his patented invention, is within the protection of his patent, and has destined the article to be finished by the purchaser in conformity to the patent, he has sold his invention so far as it is or may be embodied in that particular article. The reward he has demanded and received is for the article and the invention which it embodies and which his vendee is to practice upon it. He has thus parted with his right to assert the patent monopoly with respect to it and is no longer free to control the price at which it may be sold either in its unfinished or finished form. No one would doubt that if the patentee’s licensee had sold the blanks to a wholesaler or finishing retailer, without more, the purchaser would not infringe by grinding and selling them. The added stipulation by the patentee fixing resale prices derives no support from the patent and must stand on the same footing under the Sherman Act as like stipulations with respect to unpatented commodities. Ethyl Gasoline Corp. v. United States, supra.
Our decisions have uniformly recognized that the purpose of the patent law is fulfilled with respect to any particular article when the patentee has received his reward for the use of his invention by the sale of the article, and that once that purpose is realized the patent law affords no basis for restraining the use and enjoyment of the thing sold. Adams v. Burke, supra, 456; Keeler v. Standard Folding Bed Co., 157 IT. S. 659; Motion Picture Co. v. Universal Film Co., 243 IT. S. 502; and see cases collected in General Pictures Co. v. Electric Co., 305 U. S. 124,128, n. 1. In construing and applying the patent law so as to give effect to the public policy which limits the granted monopoly strictly to the terms of the statutory grant, Morton Salt Co. v. Suppiger Co., 314 U. S. 488, the particular form or method by which the monopoly is
252	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
sought to be extended is immaterial. The first vending of any article manufactured under a patent puts the article beyond the reach of the monopoly which that patent confers. Whether the licensee sells the patented article in its completed form or sells it before completion for the purpose of enabling the buyer to finish and sell it, he has equally parted with the article, and made it the vehicle for transferring to the buyer ownership of the invention with respect to that article. To that extent he has parted with his patent monopoly in either case, and has received in the purchase price every benefit of that monopoly which the patent law secures to him. If he were permitted to control the price at which it could be sold by others he would extend his monopoly quite as much in the one case as in the other, and he would extend it beyond the fair meaning of the patent statutes and the construction which has hitherto been given to them.
There is thus no occasion for our reconsideration, as the Government asks, of United States v. General Electric Co., supra, on which appellees rely. The Court in that case was at pains to point out that a patentee who manufactures the product protected by the patent and fails to retain his ownership in it can not control the price at which it is sold by his distributors (272 U. S. at 489). Accordingly, neither the Lens Company nor the Corporation, by virtue of the patents, could after the sale of the lens blank exercise any further control over the article sold.
The price fixing features of appellees’ licensing system, which are not within the protection of the patent law, violate the Sherman Act save only as the fair trade agreements may bring them within the Miller-Tydings Act. Agreements for price maintenance of articles moving in interstate commerce are, without more, unreasonable restraints within the meaning of the Sherman Act because they eliminate competition, United States v. Trenton Pot-
U. S. v. UNIVIS LENS CO. 253
241	Opinion of the Court.
teries Co., 273 U. S. 392; United States v. Socony-Vacuum Co., 310 U. S. 150, and restrictions imposed by the seller upon resale prices of articles moving in interstate commerce were, until the enactment of the Miller-Tydings Act, 50 Stat. 693, consistently held to be violations of the Sherman Act. Ethyl Gasoline Co. v. United States, supra, 457, and cases cited.
The Miller-Tydings Act provides that nothing in the Sherman Act “shall render illegal, contracts or agreements prescribing minimum prices for the resale of a commodity which bears, or the label or container of which bears, the trade mark, brand, or name of the producer or distributor of such commodity and which is in free and open competition with commodities of the same general class produced or distributed by others . . .” whenever such agreements are lawful where the resale is made.
The contracts entered into by the Lens Company with the licensees of the Corporation stipulate for the maintenance of the prices which are prescribed by the licensing system. Appellees assert, and we assume for present purposes, that the blanks which the Lens Company sells and the finished lenses are marked by appellees’ trademark as required by the statute. In the contracts the Lens Company is designated as the manufacturer of “eye glass lenses” which are distributed and sold under the trademark of the manufacturer. But the Lens Company manufactures the blanks and not the finished lenses to which the resale prices apply. It is therefore not the manufacturer of the “commodity” which the licensees sell, and the licensees are not engaged in the “resale” of the same commodity they buy. We find nothing in the language of the Miller-Tydings Act, or in its legislative history, to indicate that its provisions were to be so applied to products manufactured in successive stages by different processors that the first would be free to control the price of
254	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
his successors. The prescribed prices are thus not within the Miller-Tydings exception to the Sherman Act.
Appellees stress the features of their licensing system by which it is said they protect the public interest and their own good will by the selection as licensees of those who are specially skilled and competent to render the service which they undertake. But if we assume that such restrictions might otherwise be valid, cf. Fashion Guild v. Trade Commission, 312 U. S. 457, 467, these features are so interwoven with and identified with the price restrictions which are the core of the licensing system that the case is an appropriate one for the suppression of the entire licensing scheme even though some of its features, independently established, might have been used for lawful purposes. Ethyl Gasoline Corp. v. United States, supra, 461. The injunction of the District Court will therefore be continued, and extended so as to suppress all the license contracts and the maintenance of the licensing system which appellees have established, other than the Corporation’s license to the Lens Company. The judgment in No. 856 is affirmed. The judgment in No. 855 is reversed, and both cases are remanded to the district court for the entry of an appropriate decree in conformity to this opinion.
No. 855 reversed.
No. 856 affirmed.
Mr. Justice Jackson took no part in the consideration or decision of these cases.
COCHRAN v. KANSAS.	255
Opinion of the Court.
COCHRAN v. KANSAS et al.
CERTIORARI TO THE SUPREME COURT OF KANSAS.
No. 510. Argued April 7, 8, 1942.—Decided May 11, 1942.
1.	The conclusion of the Supreme Court of Kansas—that the record of criminal proceedings in a state court showing that the defendant was represented throughout by counsel and revealing on its face no irregularity in the trial is sufficient refutation of his unsupported charge in a petition for habeas corpus that he was denied the right to summon witnesses and to testify for himself—is accepted in this case. P. 256.
2.	Upon review of a judgment of a state supreme court denying a petition for a writ of habeas corpus which alleged that the petitioner, having been convicted of crime and incarcerated in a penitentiary, had endeavored to appeal from his conviction within the time allowed by state law, but without success because the prison officials, following prison rules, had suppressed his appeal documents; but where it did not appear that the truth of these allegations had been inquired into before dismissal of the petition— held that the case should be sent back to the state court for further proceedings. P. 256.
153 Kan. 777, 113 P. 2d 1048, reversed.
Certiorari, 314 U. S. 588, to review a judgment of the Supreme Court of Kansas dismissing a petition for a writ of habeas corpus.
Mr. H. Thomas Austern for petitioner.
Mr. Jay Kyle, Assistant Attorney General of Kansas, with whom Mr. Jay S. Parker, Attorney General, was on the brief, for respondents.
Mr. Justice Black delivered the opinion of the Court.
In 1933, the petitioner Cochran was convicted by a jury in a Kansas state court upon a charge of passing a $12.60 check with knowledge that it was forged. His motion for a new trial was overruled. Upon a finding that Cochran
256	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
had previously been convicted of two other felonies, the court sentenced him to life imprisonment as an habitual criminal pursuant to a Kansas statute. Kan. Gen. Stat. (Corrick, 1935) § 21-107a. Two days later, he was sent to the state penitentiary, where he has since been confined.
In January, 1941, Cochran, acting in his own behalf, filed an original application for habeas corpus in the Supreme Court of Kansas. His application sets out the allegations, among others, that the trial judge had denied him the right to summon witnesses and to testify on his own behalf; and that officials of the state penitentiary enforcing prison rules there in effect had suppressed appeal documents he had prepared, thereby making it impossible for him to perfect an appeal during the two year period allowed by Kansas statute. The State filed a return containing a certified copy of the information on which Cochran was tried, journal entries of the trial, an order overruling Cochran’s motion for a new trial, and the judgment and sentence.
The Kansas Supreme Court denied the writ, stating that “the records of courts are not set aside upon the unsupported statements of a defeated litigant.” 153 Kan. 777, 113 P. 2d 1048, 1049. We accept the court’s conclusion that the record, showing that Cochran was represented by counsel throughout, and revealing on its face no irregularities in the trial, is sufficient refutation of his unsupported charge that he was denied the right to summon witnesses and testify for himself.
But the allegations that prison officials frustrated Cochran’s efforts to perfect an appeal are a different matter. Since these allegations relate to a period subsequent to Cochran’s commitment, and since that is the latest event referred to in the record, the record itself affords no refutation. Nor are these allegations denied in any other part of the State’s answer. Moreover, the opinion of the court itself recognizes that these allegations had “some basis,’
COCHRAN v. KANSAS.	257
255	Opinion of the Court.
pointing out that, “under rules . . . prevailing at the penitentiary” for some time following Cochran’s commitment, he was prevented from sending out a petition for habeas corpus, and that it was not until October, 1935 (after the time for appeal had expired) that such a petition was actually filed. On the other hand, nothing in the opinion indicates that the court denied the application on the ground that it had canvassed the allegations and supporting affidavits of Cochran and three others pertaining to suppression of appeal and had concluded that they were untrue.
Cochran’s application for habeas corpus does not bear the name of counsel. Not a lawyer, he apparently prepared it himself. On the issue of denial of opportunity to perfect an appeal, he alleged that the “record shows that the duly authorized officers and prison officials exercised unlawful authority by surpressing your petitioners appeal documents,” etc. In its brief and argument before us, the State has contended that the word “record” can refer only to the trial record set out in its return to Cochran’s application. Since that record does not show the alleged suppression, it is urged that Cochran’s application was properly denied because wholly unsupported. As we have pointed out, the record of the trial court proceedings, relating as it did to a period ending with Cochran’s commitment, could prove nothing with respect to independent subsequent events. Hence, to place the construction urged by the State on the word “record” as used by Cochran would not merely impute to him a technical precision which his application as a whole contradicts; it would render the application entirely meaningless.
The State properly concedes that if the alleged facts pertaining to suppression of Cochran’s appeal “were disclosed as being true before the supreme court of Kansas, there would be no question but that there was a violation of the equal protection clause of the Fourteenth amend-
4612630—43--17
258	OCTOBER TERM, 1941.
Syllabus.	316 U. S.
ment.” And in Kansas, habeas corpus is recognized as affording a remedy for a person held in prison in violation of a right guaranteed by the Federal Constitution.1 However inept Cochran’s choice of words, he has set out allegations supported by affidavits, and nowhere denied, that Kansas refused him privileges of appeal which it afforded to others. Since no determination of the verity of these allegations appears to have been made, the cause must be remanded for further proceedings.
Reversed.
UNITED STATES v. NUNNALLY INVESTMENT CO.
CERTIORARI TO THE COURT OF CLAIMS.
No. 990, October Term, 1940. Argued March 10, 11, 1942.—Decided May 11, 1942.
1.	A judgment for a refund of income taxes in a suit against the Collector is not a bar to a later suit against the United States for an additional refund of income taxes for the same year, paid to the same Collector. Sage v. United States, 250 U. S. 33. P. 260.
2.	The taxpayer sold all its assets for a consideration consisting of cash and the assumption by the purchaser of certain obligations including federal taxes for previous years. The purchaser paid part of these taxes in 1920, and the remainder in 1921 and 1922. In determining a deficiency for 1920, the Commissioner used a lower basis of the assets sold than was used by the taxpayer and included in the selling price the full amount of the taxes which the purchaser had assumed. The taxpayer, having paid, sued the Collector and recovered a refund based upon the Commissioner’s understatement of the basis of the assets sold. Held, that the judgment against the Collector did not bar a suit against the United States claiming further refund on the ground that the taxes assumed by the purchaser which were not paid in 1920 were not taxable as income of that year. Pp. 259, 264.
92 Ct. Cis. 358,36 F. Supp. 332, affirmed. *
’See e. g. In re Jarvis, 66 Kan. 329, 31 P. 2d 576. Cf. Smith v. O’Grady, 312 U. S. 329.
U. S. v. NUNNALLY INVESTMENT CO. 259
258	Opinion of the Court.
Certiorari, 313 U. S. 584, to review a judgment granting a refund of money erroneously collected as income tax.
Mr. Arnold Raum, with whom Solicitor General Fahy, Assistant Attorney General Clark, and Mr. J. Louis Monarch and Mrs. Elizabeth B. Davis were on the brief, for the United States.
Mr. W. A. Sutherland for respondent.
Mr. Justice Frankfurter delivered the opinion of the Court.
This is a suit against the United States to recover taxes for the year 1920. In that year the taxpayer, the respondent here, sold its business and all its assets to another corporation. The consideration consisted of cash and the assumption of certain of the respondent’s obligations, including federal taxes for previous years. The purchaser paid part of these taxes in 1920, the remainder in 1921 and 1922. In determining a deficiency for the year 1920, the Commissioner employed a lower basis of the assets sold than was used by the respondent. The Commissioner computed the selling price by including the full amount of the taxes which the purchaser agreed to assume. After paying the assessed tax, the respondent filed a claim for refund, alleging only that the Commissioner had understated the basis of the assets sold. In due course a suit was brought against the Collector in the District Court. A settlement was reached, under which judgment for the taxpayer was entered. In accordance with their agreement, neither party appealed.
Thereafter, the respondent filed a second refund claim, asserting that the taxes assumed by the purchaser which were not paid in 1920 were not taxable to the respondent m that year. This claim was rejected, and a suit against the United States was begun in the Court of Claims.
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Opinion of the Court.	316U.S.
Holding that the judgment against the Collector in the District Court was not res judicata of the taxpayers’ claim in this suit against the United States, the Court of Claims (with one judge dissenting) gave judgment for the respondent. 36 F. Supp. 332. In view of the importance of this question in the administration of the federal income tax law and its relation to the decision in Moore Ice Cream Co. v. Rose, 289 U. S. 373, we brought the case here. 314 U. S. 702.
Nearly a quarter-century ago in Sage v. United States, 250 U. S. 33, this Court upon full consideration announced the doctrine that the United States is a “stranger” to a judgment resulting from a suit brought against a collector, and that such a judgment is, therefore, not a bar in a subsequent action upon the same claim against the United States. This was not a novel doctrine. The result was drawn from the conception of a suit against a collector as “personal,” since he was personally responsible for illegally exacting monies under the claim that they were due as taxes. Such a “personal” remedy against the collector, derived from the common-law action of indebitatus assumpsit, has always been part of our fiscal administration. Unless the application given to this remedy by the doctrine of the Sage case has been displaced by Congress or renounced by later decisions of this Court, the judgment must stand. Concededly, Congress has not done so. And although recognition has been made of the technical nature of a suit against a collector, no support can be found for the contention that the Sage doctrine has been discarded as an anachronism. On the contrary, the rule has been reaffirmed in an unbroken line of authority.
Soon after the decision in the Sage case, the question was presented whether an action against a collector could be continued against his successor. This Court held that it could not, because the Sage case had settled that such a suit was “personal.” See Smietanka v. Indiana Steel
U. S. V. NUNNALLY INVESTMENT CO. 261
258	Opinion of the Court.
Co., 257 U. S. 1; Union Trust Co. v. Wardell, 258 U. S. 537. In Bankers Coal Co. n. Burnet, 287 U. S. 308, a suit against a collector with respect to taxes for the years 1914-1919 had resulted in a determination that the taxpayer was entitled to a depletion allowance of five cents per ton on coal mine royalties. It was contended that this determination was res judicata of that issue in a subsequent action against the Commissioner relating to taxes for later years. The Court, again relying on the Sage case, rejected the argument in these words: “With respect to this contention it is sufficient to say that the suit in the District Court was not against the Commissioner of Internal Revenue, the respondent here, but against the Collector, judgment against whom is not res ad judicata against the Commissioner or the United States.” 287 U. S. at 311-312.
The Government leans heavily upon Moore Ice Cream Co. v. Rose, 289 U. S. 373. In that case the constitutionality of § 1014 of the Revenue Act of 1924, 43 Stat. 253, 343, providing that a taxpayer may recover an unlawful federal tax even though he paid the tax without protest, was upheld as applied to a payment without protest made prior to the enactment of the provision. In reaching this conclusion, the Court noted that, under R. S. § 989, 28 U. S. C. § 842, a collector who acts under the directions of the Secretary of the Treasury, or other proper officer of the Government, “is entitled as of right to a certificate converting the suit against him into one against the Government ... A suit against a Collector who has collected a tax in the fulfillment of a ministerial duty is today an anomalous relic of bygone modes of thought. He is not suable as a trespasser, nor is he to pay out of his own purse. He is made a defendant because the statute has said for many years that such a remedy shall exist, though he has been guilty of no wrong, and though another is to Pay. . . . There may have been utility in such procedural
262	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
devices in days when the Government was not suable as freely as now. . . . They have little utility today, at all events where the complaint against the officer shows upon its face that in the process of collecting he was acting in the line of duty, and that in the line of duty he has turned the money over. In such circumstances his presence as a defendant is merely a remedial expedient for bringing the Government into court.” 289 U. S. at 381-83.
The Government urges that, even though the Moore Ice Cream case was not concerned with the conclusiveness of a judgment in a suit against the collector, its rationale undermined the Sage doctrine. But such has not been the influence of the Moore Ice Cream case on the subsequent course of decisions relevant to our purpose. Tait v. Western Maryland Ry. Co., 289 U. S. 620, decided by a unanimous Court three weeks after the decision in the Moore Ice Cream case, is incontrovertible proof that the Sage doctrine was left unimpaired. The Court there held that a judgment in a suit against the Commissioner was binding in a subsequent action against the United States and the collector. The doctrine in the Sage case was explicitly reaffirmed: “In a suit for unlawful exaction the liability of a collector is not official but personal. Sage n. United States, 250 U. S. 33; Smietanka v. Indiana Steel Co., 257 U. S. 1; Graham de Foster v. Goodcell, 282 U. S. 409, 430. And for this reason a judgment in a suit to which he was a party does not conclude the Commissioner or the United States. Bankers Pocahontas Coal Co. v. Burnet, 287 U. S. 308, 311. We think, however, that where a question has been adjudged as between a taxpayer and the Government or its official agent, the Commissioner, the Collector, being an official inferior in authority, and acting under them, is in such privity with them that he is estopped by the judgment.” 289 U. S. at 627.
More recently, in Sunshine Coal Co. v. Adkins, 310 U. S. 381, where the principle of res judicata was applied to
U. S. v. NUNNALLY INVESTMENT CO. 263
258	Opinion of the Court.
suits to which an administrative agency was a party, the Court again expressly adhered to the doctrine of the Sage case: “Cases holding that a judgment in a suit against a collector for unlawful exaction is not a bar to a subsequent suit by or against the Commissioner or the United States {Sage v. United States, 250 U. S. 33; Bankers Pocahontas Coal Co. v. Burnet, 287 U. S. 308) are not in point, since the suit against the collector is ‘personal and its incidents, such as the nature of the defenses open and the allowance of interest, are different.’ ” 310 U. S. at 403. And earlier in this term in United States v. Kales, 314 U. S. 186, in speaking of the right of a taxpayer to maintain separate suits against a collector and the Government for tax payments made to two collectors on income derived from a single transaction in a single tax year, the Court said: “The judgment against the collector is a personal judgment, to which the United States is a stranger except as it has obligated itself to pay it. See Sage v. United States, supra; Smietanka v. Indiana Steel Co., supra, 4, 5. While the statutes have for most practical purposes reduced the personal liability of the collector to a fiction, the course of the legislation indicates clearly enough that it is a fiction intended to be acted upon to the extent that the right to maintain the suit and its incidents, until judgment rendered, are to be left undisturbed. . . . The right to pursue the common law action against the collector is too deeply imbedded in the statutes and judicial decisions of the United States to admit of so radical a departure from its traditional use and consequences as the Government now urges, without further Congressional action.” 314 U. S. at 199-200.
In summary, therefore, an imposing series of opinions has fortified the original authority of the Sage doctrine. No doubt the precise question raised in each of these cases was different from the one now before us, and each case might have been decided without reference to the prin-
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Opinion of the Court.	316U.S.
ciples underlying the rule in the Sage case. But this only serves to emphasize the obduracy of the doctrine as part of the historical scheme of revenue administration. It would have been easy in all of these cases to dissipate the force of the doctrine which the Sage case represents by rejecting it and resting the decision in that case upon the alternative ground afforded by the Act of July 27, 1912, c. 256, 37 Stat. 240. That this long line of cases should have referred to and relied upon the Sage case without rejecting the doctrine for which it was cited only underlines still further its persistence.
Even when this Court found that the common-law right to sue the collector had argumentatively been withdrawn, see Cary v. Curtis, 3 How. 236, Congress promptly restored that right. Act of February 26, 1845, c. 22, 5 Stat. 727. The problem of legal remedies appropriate for fiscal administration rests within easy Congressional control. Congress can deal with the matter comprehensively, unembarrassed by the limitations of a litigation involving only one phase of a complex problem. The Government itself does not now ask us to jettison the whole notion of suing a collector personally. It merely asks us to eliminate one consequence of that conception. In the field of custom duties Congress has devised a comprehensive and interrelated scheme of administrative and judicial remedies. See Act of June 17,1930, 46 Stat. 590, 734,19 U. S. C. §§ 1514-15; Freund, Administrative Powers over Persons and Property, pp. 553-60. If the doctrine of the Sage case is now to be abandoned, such a determination of policy in the administration of the income tax law should be made by Congress, which maintains a Joint Committee on Internal Revenue Taxation charged with the duty of investigating the operation of the federal revenue laws and recommending such legislation as may be deemed desirable.
Affirmed.
U. 8. v. MASONITE CORP. 265
258	Syllabus.
Mr. Justice Jackson took no part in the consideration or decision of this case.
Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Byrnes dissent for the reasons (1) that here, unlike the situation in United States v. Kales, 314 U. S. 186, the taxpayer had but a single cause of action and could have raised every issue with respect to the validity of the taxes in the earlier suit; (2) that here, unlike the situation in Sage v. United States, 250 U. S. 33, 38-39, there had been no intervening legislation which created rights and lifted the bar of the judgment in the earlier suit; and (3) that in the earlier suit the United States became “a party to the judgment as a matter of law” (Griswold, Res Judicata in Federal Tax Cases, 46 Yale L. Journ. 1320,1342), since in these days the presence of the collector as a defendant who acts “in the line of duty” is “merely a remedial expedient for bringing the Government into court.” Moore Ice Cream Co. v. Rose, 289 U. S. 373, 383.
UNITED STATES v. MASONITE CORPORATION ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 723. Argued April 9, 10,1942.—Decided May 11, 1942.
1.	A price-fixing combination of competitors in interstate trade violates the Sherman Act. P. 274.
2.	Acceptance by competitors, without previous agreement, of an invitation to participate in a plan, the necessary consequence of which, if carried out, will be restraint of interstate commerce, renders them liable as conspirators under the Sherman Act. P. 275.
3.	The fixing of prices by one member of a group pursuant to express delegation, acquiescence, or understanding of the others, is no less illegal than if done by their direct, joint action. P. 276.
266	OCTOBER TERM, 1941.
Counsel for Parties.	316 U. S.
4.	A combination fixing prices in interstate commerce can not be justified by business reasons or by its tendency to increase distribution of the commodity without increase of price to consumers, or by its tendency to promote competition between dealers. P. 276.
5.	A patent affords no immunity for a monopoly not plainly within the grant; and the grant can not be extended by contract. P. 277.
6.	When a patented article is disposed of to a purchaser, it passes beyond the monopoly protected by the patent law. P. 277.
7.	A determination as to whether a particular disposition of a patented article exhausts the patent monopoly is not governed by the form of the transaction but depends upon whether there has been such a disposition that it may fairly be said the patentee has received his reward for the use of the article. P. 278.
8.	In making such a determination, regard must be had for the dominant concern of the patent system, viz., promotion of the progress of science and the useful arts; the reward to the inventor is secondary and merely a means to an end. P. 278.
9.	The scope of the patentee’s statutory right to “vend” cannot be determined by the private law of sales alone. Such rights must be strictly construed since patents are privileges restrictive of a free economy. P. 280.
10.	Numerous corporations which were in active competition with each other as dealers in building materials entered into a combination whereby one of them, which manufactured and sold material called “hardboard” for which it held a patent, undertook to constitute the others its del credere agents for the sale of that product through their respective sales organizations at prices fixed by the patent owner. Held, that this arrangement went beyond the patent privilege and violated the Sherman Act. United States v. General Electric Co., 272 U. S. 476, distinguished. Pp. 280, 282.
40 F. Supp. 852, reversed.
Appeal from a decree of the District Court which dismissed a bill brought by the United States under the Sherman Act.
Messrs. Hugh B. Cox and Assistant Attorney General Arnold, with whom Solicitor General Fahy and Messrs. Samuel S. Isseks, Archibald Cox, James C. Wilson, and Marcus A. Hollabaugh were on the brief, for the United States.
Mr. Charles H. Tuttle, with whom Messrs. Louis Quarles, Fletcher Lewis, and Herbert H. Dyke were on the
U. S. v. MASONITE CORP.	267
265	Opinion of the Court.
brief, for the Masonite Corporation; Mr. Andrew J. Dall-stream, with whom Messrs. Oscar R. Ewing and William T. Gossett were on the brief, for the Celotex Corporation; Mr. William Piel, Jr. was on a brief for the Flintkote Company; Messrs. Horace R. Lamb and Walter F. Kaufman were on a brief for the Armstrong Cork Company; and Messrs. John B. Faegre, Timothy N. Pfeiffer, Theodore Kiendl, Elmer E. Finck, Henry K. Urion, and Charles W. Briggs were on a brief for the Insulite Company et al.— appellees.
Mr. Justice Douglas delivered the opinion of the Court.
The question presented by this case is whether appellees have combined to restrain trade or commerce in violation of § § 1 and 2 of the Sherman Act. 15 IT. S. C. §§ 1, 2, 26 Stat. 209. The bill to enjoin the alleged violations of the Act was dismissed by the District Court (40 F. Supp. 852) on the authority of United States v. General Electric Co., 272 U. S. 476. The case is here on appeal. 15 U. S. C. § 29, 32 Stat. 823,36 Stat. 1167; 28 U. S. C. § 345, Judicial Code, § 238.
The appellees are Masonite Corporation, Celotex Corporation, Certain-Teed Products Corporation, Johns-Manville Sales Corporation, Insulite Company, Flintkote Company, National Gypsum Company, Wood Conversion Company, Armstrong Cork Company, and Dant & Russell, Inc. Each is engaged either in manufacturing and selling building materials, or in selling building materials manufactured by others. All maintain selling organizations and to a large extent compete in the same markets. As we shall see, some have competing patents, though others do not. Masonite is a manufacturer and distributor of hardboard. Hardboard—a homogeneous, hard, dense, grainless, synthetic board—is made from wood chips. It has a high tensile strength, low water absorption and a density that ranges from 30 to 60 lbs. per
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Opinion of the Court.	316U.S.
cubic foot. It is used in the building industry as wallboard, panelling, flooring, ceilings and forms into which concrete is poured. It also has numerous industrial uses. Masonite began its production of hardboard in 1926 and distributed it through its own selling organization. Between March 30, 1926 and March 20, 1928, four patents were issued to it, the claims of which covered both hardboard and the processes for making it. Celotex for some period prior to 1928 had been manufacturing and selling insulation board—a fibre board which has a density of less than 30 lbs. per cubic foot and which is softer and lighter, has a lower tensile strength, and is less resistant to water than hardboard. In 1928, Celotex announced that it intended to begin the manufacture of hardboard from bagasse, a waste product from the grinding of sugar cane. It began production in 1929. Several patents were issued to it. Late in 1928, Masonite notified Celotex that its hardboard infringed Masonite’s patents. Various discussions were had with a view of avoiding patent litigation by entering into a cross-licensing agreement. Masonite refused. Celotex continued to manufacture and sell hardboard. Its production increased from about 800,000 square feet in 1929 to about 12,000,000 square feet in 1933. It sold its product in competition with Masonite’s hardboard and marketed it at prices lower than Masonite sold its hardboard. In 1931, Masonite instituted suit against Celotex for infringement of one of its patents. The District Court held Masonite’s patent valid but not infringed. 1 F. Supp. 494. Masonite appealed. The Circuit Court of Appeals held that Masonite’s patent was both valid and infringed. 66 F. 2d 451. A petition for a writ of certiorari was filed in this Court in September, 1933. About that time Masonite renewed negotiations with Celotex. Those negotiations resulted in a settlement of the patent litigation and in the execution of the so-called
ü. S. v. MASONITE CORP. 269
265	Opinion of the Court.
“agency” agreement of October 10, 19331—one of the agreements which is here attacked and which we discuss later.
Shortly after the decision of the Circuit Court of Appeals in the patent litigation between Celotex and Masonite, the latter company sent the same proposed “agency” agreement which it had worked out with Celotex to various of the appellees. Johns-Manville Sales Corporation, National Gypsum Company, Armstrong Newport Company (predecessor of Armstrong Cork Company), Hawaiian Cane Products Ltd. (assignor of Certain-Teed Products Corporation), and Wood Conversion Company each executed identical agreements with Masonite on various dates between October 31,1933 and June 25,1934. As each agreement was made, Masonite informed the other party of the existence and terms of each of the agreements which Masonite had previously made with the others. And as each contract was executed, Masonite sent copies to the companies which had previously executed similar contracts.
Insulite, a manufacturer of insulation board, began producing hardboard in 1930. Its production rose from about 4,500,000 square feet in 1932 to about 9,000,000 square feet in 1933, and amounted to over 7,000,000 square feet annually in 1934 and 1935. There was some evidence that it was selling hardboard at prices lower than those of Masonite. It was advised by Masonite in July, 1933, of possible legal action if it continued to manufacture and sell hardboard. It received from Masonite a copy of the proposed “agency” agreement. It formally advised Ma-
In 1932, receivers for Celotex were appointed by the United States istrict Court for the District of Delaware and an ancillary receiver was appointed by the United States District Court for the Northern istrict of Illinois. The agreement with Masonite was authorized by those courts.
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Opinion of the Court.	316U.S.
sonite of its refusal to enter into any such agreement in December, 1933. In March, 1934, Masonite filed suit against a dealer who handled Insulite’s hardboard charging infringement of one of Masonite’s patents. Insulite undertook the defense; but, before issue was joined, negotiations between Insulite and Masonite resulted in the execution in February, 1935 of a so-called “agency” agreement substantially identical with the agreement between Masonite and Celotex.2 At that time, Insulite knew that Masonite and the other companies had previously executed the other agreements.
Disputes arose between Masonite and the so-called “agents” concerning the operation and construction of the “agency” agreements. As a result, the agreements were modified in 1936. Each agreement when executed in 1936 was placed in escrow. The escrow agreement was signed by each of the companies and included the name of each of the other “agents.” Each “agent” knew at that time that Masonite proposed to make substantially identical agreements with the others. The escrow agreement provided that it should become effective only when all the “agents” had agreed to it. The new agreements became effective October 29,1936. In 1937, Flintkote Company and Dant & Russell, Inc. entered into identical agreements with Masonite. Though their agreements differed somewhat from the 1936 agreements, they were substantially similar for present purposes. Both companies knew, when they signed the contracts, that similar “agency” agreements existed between Masonite and the other appellees.
By each of the 1933 agreements, Masonite designated the other party as an “agent” and appointed it as a “del
2 At the time Insulite entered into this agreement with Masonite, its parent company was in receivership in the United States District Court for the District of Minnesota. The receivership court authorized Insulite to execute the agreement with Masonite.
U. S. V. MASONITE CORP. 271
265	Opinion of the Court.
credere factor” to sell Masonite’s hardboard products. The “agent” expressly acknowledged the validity of Masonite’s hardboard patents so long as the agreement remained in force. The “agent” agreed to promote the sale of Masonite hardboards. Masonite agreed to manufacture designated hardboard products in specified sizes and to ship on orders and specifications from the “agent” to any place within the continental United States or Hawaii. Masonite agreed to designate from time to time the minimum selling price and the maximum terms and conditions of sale at which the “agent” might sell Masonite’s products. The list prices and terms of sale were to be the minimum prices and maximum terms of sale at which Masonite was either offering or making sales to its customers. The right to change the list prices and terms of sale was vested solely in Masonite and might be exercised on 10 days’ notice. It was agreed that Masonite was bound to adhere to the prices, and terms and conditions of sale which it fixed for its “agents.” In case the “agent” sold for less than the minimum price, it was obligated to pay liquidated damages at a specified rate. On direct shipments to the “agent,” the hardboards “shall be received and held on consignment” and “title thereto shall remain” in Masonite until sold by the “agent.” The minimum prices were f. o. b. Masonite’s factory, the “agent” paying freight and transportation costs, and sales and other taxes. The agent” also agreed at its expense to carry insurance on all products consigned to it. The “agent’s” compensation was fixed by way of specified commissions on each sale. The “agent” was prohibited from making sales (except for off-sized boards) to any person other than specified classes. Those provisions permitted the “agent” to sell only to the construction industry, the industrial market being reserved for Masonite. The “agent” agreed to compensate Masonite by advancing one-half of the difference between the list price and the agent’s discount within 20
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Opinion of the Court.	316 U. S.
days after the close of the month in which the order was shipped, and the balance within 20 days after the close of the month in which the products were sold by the “agent” to its customers. In case of direct shipments by Masonite to the customers of the “agent,” the latter agreed to pay the entire amount due Masonite within 20 days after the close of the month in which the shipment was made. The “agent” agreed not to use the trade name or the trade marks of Masonite. But the latter agreed to mark, without extra cost, all hardboard with the “agent’s” or its customer’s name or trade mark, if the “agent” or customers so desired. And Masonite reserved the right to mark all products sold by the “agent” with Masonite’s patent notice. Masonite warranted that the products were to be “good, workmanlike products of a character and quality equal to that currently manufactured by it and sold to its customers.” Its liability was to be limited to replacing, without cost to the “agent,” any “defective material when the defect is one of manufacture.” The “agent” agreed to make monthly reports on inventory consigned and on hand. For any default of the “agent,” Masonite could terminate the arrangement on 30 days’ notice. Masonite could also terminate in case of the bankruptcy, receivership, or insolvency of the “agent,” or in case the “agent” failed to order from Masonite at least 1,500,000 square feet of hardboard products for any six months’ period. The “agent” could terminate the agreement on six months’ w’ritten notice. On termination of the agreement, the “agent” agreed to “purchase and pay for all products consigned to it and unsold”; or, at the option of Masonite, the latter might have the products returned to it and refund to the “agent” all advances made by the “agent” to or for Masonite’s account. Masonite agreed to issue to the “agent” at its request “a license to manufacture and sell hard boards” under its patents on specified terms and conditions and on payment of designated sums—$200,000 if
U. S. v. MASONITE CORP. 273
265	Opinion of the Court.
the license was issued before December 31, 1934, and decreasing amounts if the license was issued at subsequent dates. Masonite reserved the right to inspect and examine, through certified public accountants, the physical inventory and the books and records of the “agent” relating to the transactions covered by the agreement. Masonite agreed to save harmless and protect the “agent” and its customers against any claim that the hardboards infringed any patent owned by others than the parties to the agreement. Provisions for arbitration and for assignment of the agreement were included. And it was provided that the agreement should continue “during the life of that one” of specified patents of Masonite “having the longest term to run, including any reissues, extensions or improvements thereof,” unless the agreement was sooner terminated by either party. Each agreement had attached a form of “license” to manufacture and sell, to be used in case the option license was exercised.3
’There were in some cases supplemental agreements. Thus, Celo-tex agreed to withdraw its petition for a writ of certiorari in this Court, Masonite waived an accounting in connection with that infringement suit, and each of the parties agreed to pay its own costs and expenses incurred in that litigation. In the case of Insulite, Masonite agreed to dismiss the patent suit which it had instituted against one of Insulite’s dealers, without prejudice to the patent claims of either party. Masonite also agreed to purchase a press from Insulite, and to lease that press to Insulite on condition that any hardboard made with it should be of the type theretofore manufactured by Insulite and should not be marketed except “by sale for export only.” Masonite could terminate Insulite’s right to manufacture for export by offering to sell Insulite hardboard for that purpose. This agreement was without prejudice to Masonite’s rights or the rights of its foreign licensees under Masonite’s foreign patents.
In 1937, both Insulite and Masonite had applications for patents relating to hardboard pending in the Patent Office. Certain claims of these applications were involved in interference proceedings. Masonite was contending that Insulite was infringing its patents in Finland. By contract, the interference proceedings were settled, in 1938, by Masonite conceding priority to certain patent claims of Insulite and 461263°—43------18
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We need not stop to analyze the 1936 agreements. They contained numerous changes and elaborations. But they are not important for the purposes of this case, since the pattern of the relationship between appellees was fixed in 1933 and its fundamental characteristics were maintained, not basically altered, in 1936. Nor need we stop to explore all of the contentions made by the United States. They include arguments that there has been an illegal division of markets (Addyston Pipe Steel Co. v. United States, 175 U. S. 211); that the “agency” agreements have been used to control unlawfully other materials sold in combination with hardboard, the subject matter of Masonite’s patents (Carbice Corp. v. American Patents Dev. Corp., 283 U. S. 27); that, in some instances, the combination unlawfully controlled the price of hardboard “owned” by the “agents” (Ethyl Gasoline Corp. v. United States, 309 U. S. 436); and that the arrangement included agreements to suppress the use of patents, contrary to the rule of Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, and Standard Oil Co. v. United States, 283 U. S. 163, 174. But we can put these contentions to one side without expressing an opinion on them. For there is one phase of the case which is decisive. That is the agreement for price-fixing.
But for Masonite’s patents and the del credere agency agreements, there can be no doubt that this is a pricefixing combination which is illegal per se under the Sherman Act. United States v. Trenton Potteries Co., 273 U. S. 392; Ethyl Gasoline Corp. v. United States, 309 U. S. 436; United States v. Socony-Vacuum Oil Co., 310 U. S. 150. That is true though the District Court found that,
by Insulite giving Masonite an exclusive royalty-free license under all of Insulite’s patents and patent applications relating to hardboard. The license excluded Insulite from using the patents. The alleged infringement of the Finnish patents was settled by Masonite assigning its Finnish patents to Insulite.
U. S. v. MASONITE CORP. 275
265	Opinion of the Court.
in negotiating and entering into the first agreements, each appellee, other than Masonite, acted independently of the others, negotiated only with Masonite, desired the agreement regardless of the action that might be taken by any of the others, did not require as a condition of its acceptance that Masonite make such an agreement with any of the others, and had no discussions with any of the others. It is not clear at what precise point of time each appellee became aware of the fact that its contract was not an isolated transaction but part of a larger arrangement. But it is clear that, as the arrangement continued, each became familiar with its purpose and scope. Here, as in Interstate Circuit, Inc. v. United States, 306 U. S. 208, 226, “It was enough that, knowing that concerted action was contemplated and invited, the distributors gave their adherence to the scheme and participated in it.” The circumstances surrounding the making of the 1936 agreements and the joinder in 1937 of the two other companies leave no room for doubt that all had an awareness of the general scope and purpose of the undertaking. As this Court stated in the Interstate Circuit case (p. 227): “It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators. . . . Acceptance by competitors, without previous agreement, of an invitation to participate in a plan, the necessary consequence of which, if carried out, is restraint of interstate commerce, is sufficient to establish an unlawful conspiracy under the Sherman Act.” And as respects statements of various appellees that they did not intend to join a combination or to fix prices, we need only say that they must be held to have intended the necessary and direct consequences of their acts and cannot be heard to say the contrary.” United States v. Patten, 226 U. S. 525, 543. Nor can the fact that Masonite alone fixed the prices, and that the other appellees never consulted with Mason-
276	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
ite concerning them, make the combination any the less illegal. Prices are fixed when they are agreed upon. United States v. Socony-Vacuum Oil Co., supra, p. 222. The fixing of prices by one member of a group, pursuant to express delegation, acquiescence, or understanding, is just as illegal as the fixing of prices by direct, joint action. Id. Since there was price-fixing, the fact that there were business reasons which made the arrangements desirable to the appellees, the fact that the effect of the combination may have been to increase the distribution of hardboard, without increase of price to the consumer, or even to promote competition between dealers, or the fact that from other points of view the arrangements might be deemed to have desirable consequences would be no more a legal justification for price-fixing than were the “competitive evils” in the Socony-Vacuum case.
But it is urged that the arrangement is saved from the Sherman Act by the General Electric case. The District Court so held, as we have noted. In that connection, the District Court found that Masonite’s patents on hardboard were “fundamental and basic,” that there was no monopoly or restraint other than the monopoly or restraint granted by the patents, that the parties had an honest and sincere intent to recognize and exercise the rights belonging to Masonite under its patents, and that the agreements constituted a “true agency” to carry out that purpose. We assume arguendo that the patents in question, owned by Masonite, are valid. But we do not agree that the “agency” device saved the arrangement from the Sherman Act.
Del credere agency has an ancient lineage and has been put to numerous business and mercantile uses. Chorley, Del Credere, 45 Law Quarterly Rev. 221; Mechem, Agency (2d ed.) ch. IV. But, however useful it may be in allocating risks between the parties and determining their rights inter se, its terms do not ne'cessarily control
U. S. v. MASONITE CORP. 277
265	Opinion of the Court.
when the rights of others intervene, whether they be creditors or the sovereign. See Klaus, Sale, Agency and Price Maintenance, 28 Col. L. Rev. 441, 443-450. We assume in this case that the agreements constituted the appellees as del credere agents of Masonite. But that circumstance does not prevent the arrangement from running afoul of the Sherman Act. The owner of a patent cannot extend his statutory grant by contract or agreement. A patent affords no immunity for a monopoly not fairly or plainly within the grant. We have recently stated in Morton Salt Co. v. Suppiger Co., 314 U. S. 488, 492, that “the public policy which includes inventions within the granted monopoly excludes from it all that is not embraced in the invention. It equally forbids the use of the patent to secure an exclusive right or limited monopoly not granted by the Patent Office and which it is contrary to public policy to grant.” Beyond the limited monopoly which is granted, the arrangements by which the patent is utilized are subject to the general law. Standard Sanitary Mjg. Co. v. United States, supra; Boston Store v. American Graphophone Co., 246 U. S. 8, 25; Ethyl Gasoline Corp. v. United States, supra.
We do not have here any question as to the validity of a license to manufacture and sell, since none of the "agents” exercised its option to acquire such a license from Masonite. Hence we need not reach the problems presented by Bement v. National Harrow Co., 186 U. S. 70, and that part of the General Electric case which dealt with the license to Westinghouse Company. Rather, we are concerned here only with a license to vend. But it will not do to say that, since the patentee has the power to refuse a license, he has the lesser power to license on his own conditions. There are strict limitations on the power of the patentee to attach conditions to the use of the patented article. As Chief Justice Taney said in Bloomer v. McQuewan, 14 How. 539, 549, when the patented product
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Opinion of the Court.	316 U. S.
“passes to the hands of the purchaser, it is no longer within the limits of the monopoly. It passes outside of it, and is no longer under the protection of the act of Congress.” And see Adams v. Burke, 17 Wall. 453; Hobble v. Jennison, 149 U. S. 355. In applying that rule, this Court has quite consistently refused to allow the form into which the parties chose to cast the transaction to govern. The test has been whether or not there has been such a disposition of the article that it may fairly be said that the patentee has received his reward for the use of the article. Straus v. Victor Talking Machine Co., 243 U. S. 490; Boston Store v. American Graphophone Co., supra. And see United States v. Univis Lens Co., ante, p. 241. In determining whether or not a particular transaction comes within the rule of the Bloomer case, regard must be had for the dominant concern of the patent system. As stated by Mr. Justice Story in Pennock n. Dialogue, 2 Pet. 1,19, the promotion of the progress of science and the useful arts is the “main object”; reward of inventors is secondary and merely a means to that end. Or, in the words of Mr. Justice Daniel in Kendall n. Winsor, 21 How. 322,329, “Whilst the remuneration of genius and useful ingenuity is a duty incumbent upon the public, the rights and welfare of the community must be fairly dealt with and effectually guarded. Considerations of individual emolument can never be permitted to operate to the injury of these.” And see Blount Mjg. Co. v. Yale & Towne Mfg. Co., 166 F. 555.
That must be the point of departure for decision on the facts of cases such as the present one lest the limited patent privilege be enlarged by private agreements so as to by-pass the Sherman Act. Ethyl Gasoline Corp. v. United States, supra, pp. 456-459. Certainly if the del credere agency device were given broad approval, whole industries could be knit together so as to regulate prices and suppress competition. That would allow the patent
U. S. V. MASONITE CORP. 279
265	Opinion of the Court.
owner, under the guise of his patent monopoly, not merely to secure a reward for his invention but to secure protection from competition which the patent law, unaided by restrictive agreements, does not afford. Doubtless there is a proper area for utilization by a patentee of a del credere agent in the sale or disposition of the patented article. A patentee who employs such an agent to distribute his product certainly is not enlarging the scope of his patent privilege if it may fairly be said that that distribution is part of the patentee’s own business and operates only to secure to him the reward for his invention which Congress has provided. But where he utilizes the sales organization of another business—a business with which he has no intimate relationship—quite different problems are posed since such a regimentation of a marketing system is peculiarly susceptible to the restraints of trade which the Sherman Act condemns. And when it is clear, as it is in this case, that the marketing systems utilized by means of the del credere agency agreements are those of competitors of the patentee, and that the purpose is to fix prices at which the competitors may market the product, the device is, without more, an enlargement of the limited patent privilege and a violation of the Sherman Act. In such a case the patentee exhausts his limited privilege when he disposes of the product to the del credere agent. He then has, so far as the Sherman Act is concerned, no greater rights to price maintenance4 than the owner of an unpatented commodity would have. Dr.
4 It should be noted in this connection that the Miller-Tydings Act (50 Stat. 693) which amended § 1 of the Sherman Act so as to legalize certain types of resale price agreements expressly excluded any contract or agreement, providing for the establishment or maintenance of minimum resale prices on any commodity herein involved, between manufacturers, or between producers, or between wholesalers, or between brokers, or between factors, or between retailers, or between persons, firms, or corporations in competition with each other.”
280	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Miles Medical Co. v. John D. Parks & Sons Co., 220 U. S. 373. Our reasons for that conclusion are as follows:
Congress has provided that a patentee shall have the “exclusive right to make, use, and vend the invention or discovery” for a limited period. 46 Stat. 376,35 U. S. C. § 40. But the scope of the right to “vend” cannot be determined by reference to the private law of sales alone. Since patents are privileges restrictive of a free economy, the rights which Congress has attached to them must be strictly construed so as not to derogate from the general law beyond the necessary requirements of the patent statute. United States v. Univis Lens Co., Inc., supra. So far as the Sherman Act is concerned, the result must turn not on the skill with which counsel has manipulated the concepts of “sale” and “agency” but on the significance of the business practices in terms of restraint of trade.
In this case, some of the appellees had patents on hardboard, some did not. But each was tied to Masonite by an agreement which expressly recognized the validity of Masonite’s patents during the life of the agreement and which required the distribution of the patented product at fixed prices. In the General Electric case, the Court thought that the purpose and effect of the marketing plan was to secure to the patentee only a reward for his invention. We cannot agree that that is true here. In this case, the price regulation was based on mutual agreement among distributors of competing products, some of whom had competing patents, as we have noted. None of these patents, except possibly some held by Celotex, had been held to conflict with or infringe the Masonite patents. Nor are we warranted in assuming, in absence of a definite adjudication, that one grant by the Patent Office is more valid than another. It is true that the District Court found that, both before and after the agreements in question, the various appellees had been active in attempting to find a substitute for the patented hard-
U. S. v. MASONITE CORP. 281
265	Opinion of the Court.
board which would not infringe Masonite’s so-called “basic” patents; that they were not successful in that search ; that the agreements did not discourage or dissuade them from their efforts to discover or develop non-infringing products; that they were willing and intended to terminate their respective agency agreements whenever it should become commercially possible to offer a competitive non-infringing product ; and that many of the appellees have in fact distributed products which were in many respects competitive with hardboard. But those circumstances are not controlling.
The power of Masonite to fix the price of the product which it manufactures, and which the entire group sells and with respect to which all have been and are now actual or potential competitors, is a powerful inducement to abandon competition. The extent to which that inducement in a given case will have or has had the desired effect is difficult, if not impossible, of measurement. The forces which that influence puts to work are subtle and incalculable. Active and vigorous competition then tends to be impaired, not from any preference of the public for the patented product, but from the preference of the competitors for a mutual arrangement for price-fixing which promises more profit if the parties abandon rather than maintain competition. The presence of competing patents serves merely to accentuate that tendency and to underline the potency of the forces at work. Control over prices thus becomes an actual or potential brake on competition. This kind of marketing device thus, actually or potentially, throttles or suppresses competing and noninfringing products and tends to place a premium on the abandonment of competition. It is outside our competence to inquire whether the result was or was not beneficent, or whether the evil was or was not realized. As in case of an appraisal of the reasonableness of prices which
282	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
are fixed, such a determination could satisfactorily be made “only after a complete survey of our economic organization and a choice between rival philosophies” (United States v. Trenton Potteries Co., supra, 273 U. S. at p. 398) and only after weighing a host of intangibles. United States v. Socony-Vacuum Oil Co., supra. The power of this type of combination to inflict the kind of public injury which the Sherman Act condemns renders it illegal per se. If it were sanctioned in this situation, it would permit the patentee to add to his domain at public expense by obtaining command over a competitor. He would then not only secure a reward for his invention; he would enhance the value of his own trade position by eliminating or impairing competition. That would be no more permissible than a contract between a copyright owner and one who has no copyright, or a contract between two copyright owners or patentees, to restrain the competitive distribution of the copyrighted or patented articles in the open market. Interstate Circuit, Inc. v. United States, supra, p. 230. As stated in Standard Sanitary Mfg. Co. v. United States, supra, 226 U. S. at p. 49, rights conferred by patents “do not give any more than other rights an universal license against positive prohibitions. The Sherman law is a limitation of rights, rights which may be pushed to evil consequences and therefore restrained.”
Since the transactions here challenged were in interstate commerce, no question as to the violation of the Sherman Act remains.
But it is urged that the agreements made by the appellees in 1941, after the present suit was instituted, mark an abandonment of the former combination; and that, since the new arrangement is unobjectionable, there is nothing to enjoin. The difficulty with that contention is that the 1941 agreements, though improved models of an agency arrangement, removed none of the features which we have found to be fatal. They still are unmistakable
REEVES v. BEARDALL.	283
265	Opinion of the Court.
price-fixing agreements with competitors. And if there were any lingering doubt as to whether the appellees were parties to a conspiracy, it is dispelled at this point. A committee of the appellees was appointed to draft the new agreement. The agreement was completed after meetings at which representatives of all of the appellees attended. The 1941 agreements were the product of joint and concerted action.
Reversed.
Mr. Justice Roberts and Mr. Justice Jackson did not participate in the consideration or decision of this case.
REEVES v. BEARDALL, EXECUTOR.
certiorari to the circuit court of appeals for the FIFTH CIRCUIT.
No. 841. Submitted April 8, 1942.—Decided May 11, 1942.
Under Rule 54 (b) of the Rules of Civil Procedure a judgment which terminates the action with respect to one of several claims joined in a complaint is final for purposes of appeal under Jud. Code § 128, though the other claims remain undisposed of, where the several claims arose out of wholly separate and distinct transactions or engagements. P. 285.
Reversed.
Certiorari, 315 U. S. 790, to review a decision of the Circuit Court of Appeals which dismissed an appeal under Jud. Code § 128 upon the ground that the judgment appealed from was not a final judgment.
Mr. Daniel Burke submitted for petitioner.
Messrs. Charles R. Scott and C. P. Dickinson submitted for respondent.
Mr. Justice Douglas delivered the opinion of the Court.
The sole question presented by this case is whether the Circuit Court of Appeals committed error in dismissing
284	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
the appeal from the District Court on the ground that the judgment in question was “not final.”
The jurisdiction of the District Court was invoked on the basis of diversity of citizenship. The complaint contained three counts. Count I contained a claim on a promissory note executed by respondent’s decedent. Count II contained a claim on an alleged contract between petitioner and respondent’s decedent, whereby the latter agreed not to change her will, in consideration of petitioner’s return of certain securities and petitioner’s agreement not to press for payment of the note. Specific performance, or, in the alternative, damages equal to the net value of the estate, was sought. Count III contained a claim against one Hamer, who was alleged to hold certain assets of decedent to which petitioner was entitled by reason of the contract on which Count II was based. The prayer was for an accounting against Hamer. Respondent moved to dismiss Counts II and III. The motion was granted, with permission to the petitioner to amend. Counts II and III were amended in respects not material here. Respondent then moved to dismiss Count II. Petitioner having announced that she did not desire to amend, the court granted the motion and ordered that “final judgment” be entered on Count II in favor of respondent. An appeal to the Circuit Court of Appeals was dismissed without opinion, on the ground that it “was taken from a judgment that is not final.” We granted the petition for certiorari because of an apparent conflict between that decision and such cases from other circuits as Collins v. Metro-Goldwyn Pictures Corp., 106 F. 2d 83.
In this type of case the Circuit Court of Appeals has appellate jurisdiction to review by appeal only “final decisions.” Judicial Code § 128, 28 U. S. C. § 225. The Rules of Civil Procedure provide: “When more than one claim for relief is presented in an action, the court at any
REEVES v. BEARDALL.	285
283	Opinion of the Court.
stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may enter a judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is so entered, the court by order may stay its enforcement until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.” Rule 54(b). That rule, the joinder provisions (see Rules 13, 14, 18, 20), and the provision of Rule 42 which permits the court to order a separate trial of any separate claim or issue, indicate a “definite policy” (Collins V. Metro-Goldwyn Pictures Corp., supra, p. 85) to permit the entry of separate judgments where the claims are “entirely distinct.” 3 Moore, Federal Practice, Cum. Supp. 1941, p. 96. Such a separate judgment will frequently be a final judgment and appealable, though no disposition has been made of the other claims in the action. Bowles v. Commercial Casualty Ins. Co., 107 F. 2d 169, 170. That result promotes the policy of the Rules in expediting appeals from judgments which “terminate the action with respect to the claim so disposed of,” though the trial court has not finished with the rest of the litigation. See Federal Rules of Civil Procedure, Proceedings of Institutes, Washington & New York (1938), p. 329.
The Rules make it clear that it is “differing occurrences or transactions, which form the basis of separate units of judicial action.” Atwater v. North American Coal Corp., Ill F. 2d 125, 126. And see Moore, op. cit., 92-101; 49 Yale L. Journ. 1476. If a judgment has been entered which terminates the action with respect to such a claim, it is final for purposes of appeal under § 128 of the Judicial
286	OCTOBER TERM, 1941.
Syllabus.	316 U.S.
Code. The judgment here in question meets that test. The claim against respondent on the promissory note was unrelated to the claim on the contract not to change the will. Those two claims arose out of wholly separate and distinct transactions or engagements. And the question as to Hamer’s liability to account to petitioner would arise only in the event that the claim on the contract not to change the will was sustained. Hence no question is presented here as respects the appealability of a judgment dismissing a complaint as to one of several defendants alleged to be jointly liable on the same claim. See Hunte-man v. New Orleans Public Service, Inc., 119 F. 2d 465. After the entry of the judgment on Count II, the claim based on the contract not to change the will was terminated and could not be affected by any action which the Court might take as respects the remaining claims. Nothing remained to be done except appeal.
The judgment therefore was final.
Reversed.
SEMINOLE NATION v. UNITED STATES.*
CERTIORARI TO THE COURT OF CLAIMS.
No. 348. Argued April 1, 2, 1942.—Decided May 11, 1942.
1. A claim against the Government by the Seminole Nation, based on Article VIII of the Treaty of August 7, 1856, whereby the Government undertook to provide a certain sum annually for ten years, to be used for specified purposes, but which, in the amount claimed, was diverted to the clothing and feeding of refugee Indians, held to have been released by Article VIII of the Treaty of March 21, 1866, and properly disallowed by the Court of Claims. P. 290.
*Opinion reported herein as amended by order of June 8, 1942, post, p. 651.
SEMINOLE NATION v. U. S. 287
286	Syllabus.
2.	Payment by the Government to the tribal treasurer of the Seminole Nation, of certain amounts which, by Article III of the Treaty of 1866, the Government agreed to pay for the support of schools, satisfied the obligation of the Treaty and defeats recovery, whether payment to the tribal treasurer was authorized or not, since the schools actually received the benefit of the payments. P. 292.
3.	Under § 11 of the Act of April 26, 1906, a sum due under Article III of the Treaty of 1866, was in 1907 properly paid by the Government to the United States Indian Agent for the Seminóles. P. 292.
4.	A provision in Article VI of the Treaty of 1866, whereby the Government undertook to construct at a cost not exceeding $10,000 “suitable agency buildings” on the Seminole reservation, held not breached. P. 293.
5.	In respect of a claim of the Seminole Nation based on the Government’s obligation, under a provision of Article VIII of the Treaty of 1856, to establish a trust fund in a specified amount and to pay the interest therefrom to the members of the Seminole Nation per capita as an annuity, held:
(a)	The Court of Claims properly deducted the amount of overpayments found to have been made by the Government in certain years. P. 294.
(b)	Under the Act of 1906, which was not repealed by the jurisdictional act, payments in 1907, 1908, and 1909 were properly made to the United States Indian Agent for the Seminóles, P. 294.
(c)	As to payments made from 1870 to 1874 directly to the tribal treasurer and to designated creditors, pursuant to requests of the Seminole General Council, the Court of Claims should have made findings, since the issue was material, as to whether the General Council, during the years in question, was corrupt, venal, and false to its trust; whether, if such were the fact, it was known to the administrative officers of the Government charged with the disbursement of Indian moneys; and whether the Seminole Nation received the benefit of any of the payments. This branch of the case is remanded to the Court of Claims in order that the essential findings of fact may be made. Pp. 294, 300.
6.	Certain payments made by the Government to the tribal treasurer of the Seminole Nation, after the passage of the Curtis Act of June 28, 1898, held not to have contravened § 19 of that Act, since that section forbade only payments to tribal officers which were to be
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Opinion of the Court.	316U.S.
distributed by them to individual members of the tribe. However, this branch of the case also is remanded to the Court of Claims for further findings as to whether from 1899 to 1907 tribal officers were mulcting the Seminole Nation; if so, whether administrative officers of the Government disbursing moneys to the Seminóles had knowledge thereof; and whether the Seminole Nation received the benefit of payments made to the tribal treasurer. Pp. 301, 307.
7.	In respect to amounts which were expended gratuitously by the Government for the benefit of the Seminole Nation, and which, under Act of August 12, 1935, may be offset against the Government’s liability, held that the Court of Claims should find and designate the precise expenditures to be used as offsets, instead of finding generally all the items which the Government may ever be entitled to use. P. 308.
93 Ct. Os. 500, reversed in part.
Certiorari, 314 U. S. 597, to review a judgment of the Court of Claims, as modified on motion for a new trial, in a suit by the Seminole Nation against the Government, brought under a special jurisdictional Act of August 16, 1937.
Mr. Paul M. Niebell, with whom Messrs. W. W. Pryor and C. Maurice Weidemeyer were on the brief, for petitioner.
Mr. Charles R. Denny, with whom Solicitor General Fahy, Assistant Attorney General Littell, and Mr. Vernon L. Wilkinson were on the brief, for the United States.
Mr. Justice Murphy delivered the opinion of the Court.
This suit to adjudicate certain claims of the Seminole Nation against the United States growing out of various treaties, agreements, and acts of Congress is now before us for the second time. After we reversed, 299 U. S. 417, for want of jurisdiction in the Court of Claims, a previous
SEMINOLE NATION v. U. S. 289
286	Opinion of the Court.
judgment of that court awarding the Seminole Nation $1,317,087.27/ the jurisdictional barrier was removed bystatute,* 2 * * and the Seminole Nation then filed a second amended petition in the Court of Claims, reasserting the six items of claim previously denied by this Court on jurisdictional grounds.8 The Court of Claims thereupon disallowed three items in their entirety, allowed one in full, and allowed the remaining two in part, deciding that the Seminole Nation was entitled to $18,388.30, against which the United States was entitled to gratuity offsets in the amount of $705,337.33/ Accordingly, the second amended petition was ordered dismissed.5 6 * We granted certiorari on a petition challenging the correctness of the decision below on each of the five items disallowed in whole or in part, and as to numerous items which the court included in its list of gratuity offsets.
’82 Ct. Cis. 135.
2 The Act of August 16,1937, c. 651, 50 Stat. 650, conferred jurisdiction on the Court of Claims to reinstate and retry, on the merits, claims of the Five Civilized Tribes previously dismissed because set up by amended petition after the expiration of the time limit fixed in the respective jurisdictional acts.
’Seven items, amounting to $1,307,478.02, were considered by this Court in 299 U. S. 417. As to six of those items it was concluded that no jurisdiction existed in the Court of Claims, and no decision on the merits of those claims was expressed. The seventh item was examined on its merits and disallowed in large part. 299 U. S. 417, 431.
‘The Act of August 12, 1935, c. 596, 49 Stat. 571, 596, 25 U. S. C. § 475a, provides in part:
“In all suits now pending in the Court of Claims by an Indian tribe or band which have not been tried or submitted, and in any suit hereafter filed in the Court of Claims by any such tribe or band, the Court of Claims is hereby directed to consider and to offset against any amount found due the said tribe or band all sums expended gratuitously by the United States for the benefit of the said tribe or band; . .
6 93 Ct. Cis. 500.
461263°—43---19
290	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
I
We are of opinion that petitioner, the Seminole Nation, is entitled to no additional allowance on Items One, Three, and Four of its claim.
Item One.
This item is a claim for $61,563.42, based on Article VIII of the Treaty of August 7,1856,11 Stat. 699, 702, whereby the Government promised the Seminole Nation:
“to provide annually for ten years the sum of three thousand dollars for the support of schools; two thousand dollars for agricultural assistance; and two thousand two hundred dollars for the support of smiths and smith shops . . .”
The Court of Claims found that Congress annually made the necessary appropriation of $7,200 to discharge this obligation during the fiscal years from 1858 to 1867, inclusive; that only $10,436.58 was actually expended for the purposes specified in the Treaty; and that the balance ($61,563.42) was diverted and disbursed by the Government prior to June 30, 1866, for the purpose of clothing and feeding refugee and destitute Indians driven from their homes during the Civil War because of their loyalty to the Union.
Petitioner’s claim to the diverted balance was properly disallowed because petitioner released its claim by Article VIII of the Treaty of March 21, 1866, 14 Stat. 755, 759, which provides:
“The stipulations of this treaty are to be a full settlement of all claims of said Seminole nation for damages and losses of every kind growing out of the late rebellion, and all expenditures by the United States of annuities in clothing and feeding refugee and destitute Indians since
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the diversion of annuities for that purpose, consequent upon the late war with the so-called confederate states. And the Seminóles hereby ratify and confirm all such diversions of annuities heretofore made from the funds of the Seminole nation by the United States. And the United States agree that no annuities shall be diverted from the objects for which they were originally devoted by treaty stipulations with the Seminóles, to the use of refugee and destitute Indians, other than the Seminóles or members of the Seminole nation, after the close of the present fiscal year, June thirtieth, eighteen hundred and sixty-six.”
It is unnecessary to consider petitioner’s contention that by this Article it did not ratify the diversions in question because they were made from the funds of the United States and not from funds of the Seminole Nation. The first sentence of Article VIII of Treaty of 1866, quoted above, constitutes a release to the United States of all expenditures of annuities diverted for the purpose of clothing and feeding refugee Indians. There is no requirement that the annuities there referred to must be derived “from the funds of the Seminole nation,” and there is no indication that the releases contained in the first sentence of Article VIII are dependent upon the ratification contained in the second sentence. The payments due the Seminole Nation under Article VIII of the Treaty of 1856 clearly come within the scope of the release—being annual payments, they were annuities, and they were diverted for the purpose of clothing and feeding refugee Indians.
Item Three.
This claim for $61,347.20 grows out of Article III of the Treaty of 1866, in which the Government agreed to estab-
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lish a $50,000 trust fund for the Seminole Nation and to pay thereon annual interest of 5% ($2,500) for the support of schools.
During the period from 1867 to 1874, the Government only partially discharged this annual obligation, disbursing only $16,902.80 of the $20,000 appropriated for that purpose. It is here undisputed that, as the Court of Claims held, petitioner is entitled to the deficiency of $3,097.20.
The Court of Claims correctly disallowed the balance of this Item. During the twenty-three years from 1875 to 1898, the annual payments, amounting in all to $57,500, were paid directly to the tribal treasurer. Since that official disbursed annually not less than $2,500 in excess of amounts he was otherwise obligated to expend for the maintenance of schools,8 there is no need to inquire whether payment to that official was authorized. The schools actually received the benefit of the money. That satisfied the obligation of the Treaty and defeats recovery.
The remainder of this Item, $750, was paid to the United States Indian Agent for the Seminóles in 1907. Such payment was proper under § 11 of the Act of April 26, 1906, c. 1876, 34 Stat. 137, 141/ and nothing in the * 7
"Petitioner does not question this finding of the Court of Claims. See Annual Reports of the Commissioner of Indian Affairs: 1876, pp. 212-213; 1877, pp. 690-691; 1878, pp. 286-287; 1879, pp. 341-342; 1881, pp. 280-281; 1883, pp. 90, 250-251; 1884, pp. 270-271; 1886, pp. 146, 154; 1887, pp. 98, 110; 1888, pp. 113, 122; 1890, pp. 89, 94; 1891, pp. 240,250; 1892, pp. 247, 256; 1893, pp. 143,147; 1894, p. 140; 1895, pp. 155, 161; 1896, pp. 151-158.
7	“That all revenues of whatever character accruing to the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes, whether before or after dissolution of the tribal governments, shall, after the approval hereof, be collected by an officer appointed by the Secretary of the Interior under rules and regulations to be prescribed by him; and he shall cause to be paid all lawful claims against said tribes which may have been contracted after July first, nineteen hundred and two, or for
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applicable jurisdictional act8 indicates any intention on the part of Congress to override or repeal the Act of 1906.
Item Four.
The Government agreed in Article VI of the Treaty of 1866 to construct, “at an expense not exceeding ten thousand ($10,000) dollars, suitable agency buildings” on the Seminole reservation. In 1870 and 1872, $931.76 was expended for agency buildings and repairs. Petitioner’s claims for the difference of $9,068.24 between this sum and $10,000 is without merit. In 1872, Congress appropriated $10,000 to fulfill this treaty obligation;9 $9,030.15 of this appropriation was expended for some undisclosed purpose, as only $969.85 was returned to surplus. The Court of Claims found that an agency building was erected on the Seminole reservation in 1873.19 Petitioner makes no claim that the building erected was unsuitable. Since the Government’s promise was not to expend $10,000, but to erect suitable buildings at a cost not in excess of $10,000, it follows that there was no violation of the treaty provision, and hence no right of recovery.
II
With respect to Items Two and Five we are of opinion that the cause must be remanded to the Court of Claims for further material findings of fact.
Item Two.
This is a claim for $154,551.28 based on one of the provisions of Article VIII of the Treaty of 1856, namely, the which warrants have been regularly issued, such payments to be made from any funds in the United States Treasury belonging to said tribes. . .
8	Act of May 20, 1924, c. 162, 43 Stat. 133, as amended by 44 Stat. 568, 45 Stat. 1229, and 50 Stat. 650.
’Act of May 18,1872, c. 172, 17 Stat. 122, 132.
10 See report of the Commissioner of Indian Affairs for 1873, pp. 211— 212.
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Government’s promise to establish a $500,000 trust fund (originally two funds of $250,000 each), the annual interest therefrom ($25,000) to be paid over to the members of the Seminole Nation per capita as an annuity. The findings of the Court of Claims show that, although Congress appropriated $25,000 annually for each of the fiscal years in controversy (1867-1898, 1907-1909), the Government did in fact fail to make direct per capita disbursements of a portion of the funds appropriated in 1867-1874, 1876, and 1879, the underpayments for those years totalling $92,051.28, and that one-half the appropriation in 1907 and the entire appropriation in 1908 and 1909 ($62,-500 in all), instead of being paid directly to the individual Seminóles, was paid to the United States Indian Agent for the Seminole Nation.
The Court of Claims reduced petitioner’s claim for $154,551.28, based on these underpayments and alleged mispayments, to $13,501.10, allowing the Government three setoffs, consisting of (a) overpayments of $12,127.54 made in 1875, 1877, 1880, 1882, and 1883; (b) payment of $62,500 made to the United States Indian Agent for the Seminóles in 1907, 1908, and 1909; and (c) payments of $66,422.64 made pursuant to requests of the Seminole General Council during the period from 1870 to 1874.
The overpayments were rightly deducted, cf. Wisconsin Central R. Co. v. United States, 164 U. S. 190, and petitioner does not contend otherwise. Nor is petitioner entitled to any part of the $62,500 paid directly to the Indian Agent, for such payments were proper under the Act of 1906, 34 Stat. 137, 141, which, as pointed out in the discussion of Item Three, ante, was not repealed by the jurisdictional act, 43 Stat. 133. There is thus left for consideration only the payments from 1870 to 1874 made pursuant to requests of the Seminole General Council and totalling $66,422.64; of this amount, $37,500 was
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paid directly to the tribal treasurer, and the remaining $28,922.64 to designated creditors.
The Government contends that, since those payments were made at the request of the tribal council, the governing body of a semiautonomous political entity, possessing the power to enter into treaties and agreements with the United States, the tribe is not now entitled to receive payment a second time; and that, despite the fact that the Treaty of 1856 provided that the payments were to be made per capita for the benefit of each individual Indian, these payments at the request of the General Council discharged the treaty obligation, because the agreement was one between the United States and the Seminole Nation and not one between the United States and the individual members of the tribe.
The argument for the Government, however sound it might otherwise be, fails to recognize the impact of certain equitable considerations and the effect of the fiduciary duty of the Government to its Indian wards. The jurisdictional act, 43 Stat. 133, expressly confers jurisdiction on the Court of Claims to adjudicate “all legal and equitable claims,” arising under treaty or statute, which the Seminole Nation may have against the United States, and the second amended petition avers:
“That since the passage of said Act of April 15, 1874, it was reported by the officers of defendant [the United States] that the Seminole tribal officials were misappropriating the Seminole tribal funds entrusted to them, and robbing the members of the tribe of an equal share of the tribal income. That the reports of the Dawes Commission show conclusively that the governments of the Five Civilized Tribes were notoriously and incurably corrupt, that every branch of the service was infested with favoritism, graft and crookedness, and that by such methods the tribal officers acquired large fortunes, while the other
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members entitled to share in the tribal income received little benefit therefrom.”
It is a well established principle of equity that a third party who pays money to a fiduciary for the benefit of the beneficiary, with knowledge that the fiduciary intends to misappropriate the money or otherwise be false to his trust, is a participant in the breach of trust and liable therefor to the beneficiary. Cf. Duncan v. Jaudon, 15 Wall. 165; Manhattan Bank v. Walker, 130 U. S. 267. See Bogert, Trusts and Trustees (1935), vol. 4, §§ 901,955; Scott, Trusts (1939), vol. 3, § 321.1; American Law Institute, Restatement of the Law of Trusts (1935), § 321. The Seminole General Council, requesting the annuities originally intended for the benefit of the individual members of the tribe, stood in a fiduciary capacity to them. Consequently, the payments at the request of the Council did not discharge the treaty obligation if the Government, for this purpose the officials administering Indian affairs and disbursing Indian moneys, actually knew that the Council was defrauding the members of the Seminole Nation.
Furthermore, this Court has recognized the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people. E. g., Cherokee Nation v. Georgia, 5 Pet. 1; United States v. Kagama, 118 U. S. 375; Choctaw Nation v. United States, 119 U. S. 1; United States v. Pelican, 232 U. S. 442; United States v. Creek Nation, 295 U. S. 103; Tulee v. Washington, 315 U. S. 681. In carrying out its treaty obligations with the Indian tribes, the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress11 and *
“There is no better example of this than the facts of the instant case. Despite the lapse of time and the bar of the statute of limitations, Congress authorized the Court of Claims to adjudicate all legal
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numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards. Payment of funds at the request of a tribal council which, to the knowledge of the Government officers charged with the administration of Indian affairs and the disbursement of funds to satisfy treaty obligations, was composed of representatives faithless to their own people and without integrity would be a clear breach of the Government’s fiduciary obligation.* 12 If those were the circumstances, either historically notorious so as to be judicially noticed or otherwise open to proof, when the $66,422.64 was paid over at the request of the Seminole General Council during the period from 1870 to 1874, the Seminole Nation is entitled to recover that sum, minus such amounts as were actually expended for the benefit of the Nation by the Council.
Having formulated the proper rule of law, we must examine the facts of this case. Although the Court of
and equitable claims, arising under statute or treaty, which the Seminole Nation may have against the United States. And after an adverse decision by this Court on jurisdictional grounds, 299 U. S. 417, Congress again removed the bar. 50 Stat. 650.
12	As was well said by Chief Judge (later Mr. Justice) Cardozo in Meinhard v. Salmon, 249 N. Y. 458, 464, 164 N. E. 545, 546:
Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions. . . . Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd.”
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Claims had jurisdiction of this issue, for such an action for breach of fiduciary duty growing out of treaty obligations is clearly an equitable claim within the meaning of the jurisdictional act, 43 Stat. 133, the court did not consider, and hence made no findings on this issue. We think the issue material. During the period in question, 1870-1874, the administration of Indian affairs and the disbursement of Indian moneys were lodged with the Department of the Interior. The Commissioner of Indian Affairs, under the general supervision of the Secretary of the Interior, actively supervised these matters.13 There are ample indications in the record before us that the Seminole General Council was mulcting the Nation and that the proper Government officials may well have had knowledge thereof at the time some, at least, of the payments were made. For about this time the Commissioner of Indian Affairs received several warnings from his subordinates that “injustice to the majority” of the Seminóles existed,14 that the chiefs were in the habit “of taking out what amount they
13	See R. S. §§ 441,444,445,463, 464, 2089. Cf. Act of April 15,1874, c. 97,18 Stat. 29.
14	On December 6,1869, the United States Indian Agent for the Seminóles wrote to the Commissioner of Indian Affairs as follows:
“I would state that they are in the habit of calling Councils, for any little thing that may arise, and spending from 2 to 15 days without effecting anything whatever, which would be of the least service to the nation [Seminole], except in expending the funds; which are taken out of those ordered paid per ‘capita’ to the nation.
“I find that it has been the custom heretofore for the Chiefs to order how the payment should be made, but at the same time making return to the department, upon rolls as if it had been paid per ‘capita’.
“I think that it is an injustice to the majority of the people, comprising this nation and the only way to avoid unnecessary expenditure of money for Councils, etc. which are of but little benefit to the nation (for example the last council held cost the nation $700.00 for edibles alone and did no business) is for the department to give special orders in reference as to what amount shall be turned over to the chiefs and the balance paid to heads of families in person.”
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chose” from the annuities,10 that the Seminoles were “in bad hands,” 16 and that the chiefs intended “to ‘gobble’ the next money for the purpose of keeping up their government.” 17 And the Acting Commissioner of Indian Affairs was evidently aware, in 1872, of the possibility that the Council was faithless, for he declined to change the method of payment at the request of the Seminole Chiefs “until the
16 In his annual report to the Commissioner of Indian Affairs, dated September 1, 1870, the United States Indian Agent for the Seminoles said:
“Per capita payments are, in some instances, I think, a great evil; but as the system cannot be abolished, this nation [Seminole] having no constitutional government, and until such a form of government be adopted, I would recommend that the provisions of the treaty be rigidly enforced, and no moneys allowed to be paid except to the heads of families. Heretofore, as I have reported, the chiefs have been in the habit of taking out what amount they chose, allowing the balance to be paid per capita. This is an injustice, as few receive the bulk of their annuities.” Report of the Secretary of the Interior, 41st Cong., 3d Sess. (1870-71), vol. 1, pp. 766-767.
16	The report of John P. C. Shanks, Special Commissioner, to the Commissioner of Indian Affairs, dated August 9, 1875, states:
These claims are enormous in amount, and show too clearly that the Seminoles are in bad hands. These parties who had these claims (except Harjo, who is an assignee) are or have been officials in the Nation. Robert Johnson is a negro, and is interpreter to the Chief; Chupco is present chief; John Jumper was former chief; James Factor, a half breed, is treasurer; E. J. Brown is a white man, formerly U. S. Indian Agent of the Seminole Nation, since has had the address to procure his admission as a member of the tribe.
These men have evidently stood together in the wrong, of procuring such allowances, and did stand together in refusing to relinquish the claims, or a part of them, except a deduction for present payment upon claims which did not bear interest.”
17	On November 20, 1878, special agent Meacham wrote the Commissioner of Indian Affairs that “Some of the Band Chiefs are tyrants and despots, holding their people under abject fear and in some instances of actual servitude.” The letter also referred to the intention of the Chiefs “to ‘gobble’ the next money for the purpose of keeping up their government.”
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Department shall be fully satisfied that a proper disposition will be made of the funds if paid in the manner proposed by the Chiefs.”18
We do not say that all this establishes liability on the part of the Government, for it is not our function, in reviewing judgments of the Court of Claims, to make basic findings of fact. When the Court of Claims fails to make findings on a material issue, it is proper to remand the case for such findings. Cf. Universal Battery Co.v.United States, 281 U. S. 580, 584-585. We do think, however, that the matter outlined above was sufficient to require the Court of Claims to make findings on this material issue, that is, findings as to whether the Seminole General Council, during the years 1870 to 1874, was corrupt, venal, and false to its trust; whether the appropriate Government officials, charged with the duty of administering Indian affairs and disbursing funds to the Seminóles, knew of that corruption, venality, and faithlessness, if such in fact existed, when any of the payments in question were made at the request of the Council; and, if so, whether the Nation received the benefit of any of those payments. Accordingly, this phase of the case must be remanded so that the Court of Claims can consider such relevant evidence and other data as may be brought to its attention, make the necessary findings of fact, and thus determine whether this case fits into the rule which we have enunciated.
“On January 5, 1872, the Acting Commissioner of Indian Affairs wrote the United States Indian Agent for the Seminóles:
“In reply to your letter of the 20 Dec. last, and to the request of the Seminole Chiefs that their National funds be hereafter paid to the Treasurer of the Nation instead of per capita, I have to say that it is not deemed advisable to change the manner in which payment of annuities to these Indians has heretofore been made until the Department shall be fully satisfied that a proper disposition will be made of the funds if paid in the manner proposed by the Chiefs.”
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Item Five.
This is a claim for the moneys, $864,702.58 in all, paid to the Seminole tribal treasurer after the passage of the Curtis Act of June 28,1898, c. 517,30 Stat. 495,502. The payments were made during the fiscal years 1899 to 1907 and consisted of the following items: (a) $212,500 paid to discharge the per capita obligation under Article VIII of the Treaty of 1856 (see Item Two, ante); (b) $29,750 paid to discharge the obligation of Article III of the Treaty of 1866 providing for the support of schools (see Item Three, ante) and for the support of the Seminole Government; (c) $622,156.87 paid pursuant to § 12 of the Act of March 2,1889, c. 412, 25 Stat. 980, 1004, providing for the payment of interest at five per centum per annum on $1,500,000 “to be paid semi-annually to the treasurer of said nation”; and, (d) $295.71, the “proceeds of labor.”
Section 19 of the Curtis Act, 30 Stat. 495,502, provides: “That no payment of any moneys on any account whatever shall hereafter be made by the United States to any of the tribal governments or to any officer thereof for disbursement, but payments of all sums to members of said tribes shall be made under direction of the Secretary of the Interior by an officer appointed by him; and per capita payments shall be made direct to each individual in lawful money of the United States, and the same shall not be liable to the payment of any previously contracted obligation.”
Petitioner insists that this section prohibited the Government from making the payments in question to the Seminole treasurer, and that it is entitled to recover the sums illegally so paid.
Assuming, without deciding, that § 19 is applicable to the Seminole Nation and that an action could be brought by the Nation for payments made in violation thereof, there can be no recovery here because none of
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the payments contravened § 19. The text of that section and its legislative history demonstrate that it prohibits only payments to tribal officers which are “for disbursement”—i. e., payments to be distributed by them to members of the tribe. If the first clause of § 19 is construed as prohibiting all payments to the tribe or its officers, then the later clauses, providing only for payments to members and per capita payments, are inadequate to dispose of the problems raised by the first clause. For then no provision is made for the expenses of maintaining and conducting the tribal government, despite the fact that the Seminole tribal government was not only to continue after the Curtis Act but was in fact relieved of the necessity of securing Presidential approval of its legislation19 by an agreement ratified three days after the passage of that statute. See 30 Stat. 567, 569. Section 19, as originally introduced in the House, provided that payments of “all expenses incurred in transacting their business” were to be made under the direction of the Secretary of the Interior.20 The deletion of this clause is persuasive that Congress intended that tribal officers should retain the right to disburse their funds for the expenses of their respective tribal governments. For these reasons we think § 19 prohibits payment by the Government to the tribal
19	Act of June 7,1897, c. 3,30 Stat. 62, 84.
20	Section 19, as originally introduced, was as follows:
“. . . that no payment of any moneys on any account whatever shall hereafter be made to any of the tribal governments or to any officer thereof for disbursement, but payments of all expenses incurred in transacting their business and of all sums to members of said tribes shall be made under direction of the Secretary of the Interior by an officer appointed by him; and per capita payments shall be made direct to each individual in lawful money of the United States, and the same shall not be liable to the payment of any previously contracted obligation.” [Italics supplied.] H. R. 8581, 55th Cong., 2d Sess., 31 Cong. Rec. 3869.
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treasurer only when such payments are to be distributed by him to members of the tribe. It has no application to money earmarked for educational or tribal purposes, and money intended for any purpose the tribe may designate.
None of the payments in question were for disbursement to the individual members of the Seminole Nation. While the sum of $212,500 was paid pursuant to Article VIII of the Treaty of 1856, and while that obligation ivas originally an annuity payable per capita to the individual Seminóles, the character and purpose of this interest payment were by agreement changed into a payment for the benefit of the Seminole Nation itself, and this before the payment of the $212,500 from 1899 to 1907. The Act of April 15, 1874, c. 97, 18 Stat. 29, authorized the Commissioner of Indian Affairs, with the sanction of the Secretary of the Interior and the President, to pay this annuity into the treasury of the Seminole Nation, provided $5,000 was annually appropriated out of the annuity by the General Council for the school fund, and provided “that the consent of said tribe to such expenditures and payment shall be first obtained.” By act of the Seminole General Council on April 2, 1879, the Seminole Nation accepted the provisions of the Act of 1874, and consented that all annuities due or to become due under Article VIII of the Treaty of 1856 should be paid into the Seminole treasury, to be used as the tribal council should provide. This was a consensual conversion of the Government’s obligation from payments to individuals to payments to the tribe, and § 19 of the Curtis Act is inapplicable to the $212,500 paid pursuant to this converted agreement.
While none of the payments were in violation of § 19 of the Curtis Act and there can therefore be no recovery on that score, the Government is not necessarily relieved of all liability for this $864,702.58 claim. There remains
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for consideration the fiduciary duty of the Government, as discussed in Item Two, ante. During this period, 1899 to 1907, as from 1870 to 1874, the Secretary of the Interior and the Commissioner of Indian Affairs supervised Indian matters and the disbursement of Indian moneys. Apparently, it was the practice of the Department of the Interior to deposit the Seminole funds with the Assistant Treasurer of the United States at St. Louis to the credit of the tribal treasurer; the Indian agent for the Five Civilized Tribes did not disburse the Seminole payments although he did distribute moneys to the other tribes.21 Shortly before the payments in question were made, the Commission to the Five Civilized Tribes22 pointedly described in its annual reports to the Secretary of the Interior and Congress the unbridled corruption of the various tribal governments, without singling out any particular government for unenviable distinction. Thus:
“Corruption of the grossest kind, openly and unblush-ingly practiced, has found its way into every branch of the service of the tribal governments. All branches of the governments are reeking with it, and so common has it become that no attempt at concealment is thought necessary. The governments have fallen into the hands of a few able and energetic Indian citizens, nearly all mixed blood and adopted whites, who have so administered their affairs and have enacted such laws that they are enabled
21	Letter of Assistant Attorney General Van Devanter to the Secretary of the Interior, dated July 12, 1898; H. Doc. vol. 23, 57th Cong., 1st Sess. (1901-1902), p. 231.
“Commonly known as the Dawes Commission. It was created by the Act of March 3, 1893, c. 209, 27 Stat. 612, 645, to negotiate with the Creeks, Cherokees, Choctaws, Chickasaws, and Seminóles for the extinguishment of tribal titles to land, the allotment of their lands in severalty, and the division of their funds equally among the members of those tribes.
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to appropriate to their own exclusive use almost the entire property of the Territory of any kind that can be rendered profitable and available.”23
And again :
“The Commission is compelled by the evidence forced upon them during their examination into the administration of the so-called governments in this Territory to report that these governments in all their branches are wholly corrupt, irresponsible, and unworthy to be longer trusted with the care and control of the money and other property of Indian citizens, much less their lives, which they scarcely pretend to protect.”24
While these warnings were of a general nature, specific complaints of misgdvernment, venality, and fraudulent conduct on the part of the Seminole leaders were brought to the attention of the Secretary of the Interior and the Commissioner of Indian Affairs. By a letter to the Secretary of the Interior, dated January 24, 1898, certain Seminóles remonstrated against the ratification of the agreement concluded with the Seminole leaders on De-ceihber 16, 1897. The remonstrance alleged misgovernment and the participation by these leaders in a land swindle at the expense of the tribe. The Secretary laid this protest before Congress.25 During much of the period
23	Report dated November 20, 1934, Appendix B. H. Ex. Doc., vol. 14, 53d Cong., 3d Sess. (1894-95), p. LXVIII. See also pp. lxix-lxx.
24	Report dated November 18, 1895, Exhibit A, H. Doc., vol. 14, 54th Cong., 1st Sess. (1895-96), p. XCV. See also pp. LXXXVII, XCIII-XCIV.
And see report dated October 11, 1897, Exhibit B, H. Doc., vol. 12, 55th Cong., 2d Sess. (1897-98), pp. CXIX, CXXI.
25	See S. Doc. 105, 55th Cong., 2d Sess., (1898), pp. 2-4. This remonstrance stated in part:
There was the sum of $191,294.20 which never entered the treasuries of the United States or the Seminóles. The reply given to us about he disposition of this money by our authorities was that during the 461263°—43-------20
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Opinion of the Court.	316 U. S.
in question, 1899-1907, and for some time prior thereto, two half-breed brothers were principal chief and treasurer, respectively, of the Seminole Nation. Together they ran a trading store in the Seminole country and extended credit by giving due bills, good only in trade at their store, to individual Seminoles in the amount of annuities or other payments owing those individuals. The activities of these brothers, and their system of credit in particular, were attacked on the floor of Congress in 1896 and 1897,26 and severely criticized by an investigator for the Department of Justice in 1905, part of whose report was set forth in a letter from the Acting Commissioner of Indian Affairs to the Secretary of the Interior, dated November 11,1905.27
transfer of these lands to the United States there was a lawyer who negotiated the agreement and took that amount for his pay. The name of the lawyer was never mentioned and no receipt of the alleged deal was ever shown. We call your attention to this. We ask that you take note of the town-site laws of Wewoka and see to whom only these laws are beneficial and whom they oppress. . . .
“We beg leave to state further that we have no law regulating the bond of our treasurer or chief, and according to the Seminole law no action or bill can be placed before the council without the consent of the chief. Our laws do not admit of an auditor, and our people are entirely ignorant of the condition of our finances. . . . We ask that any disposition of moneys belonging to the Seminoles and the management of their schools be made with the approval of the Secretary of the Interior. . . .”
28 See 28 Cong. Rec. 2070; 29 Cong. Rec. 1261.
27This report stated in part:
“It is not too much to say that, in view of the ignorance of these Indians, this system of credit is dishonest. It should be condemned because it keeps these Indians in a constant state of poverty. They do not realize that these due bills are in fact money, and the result is that they are squandered without care. I am not informed as to whether the Department of the Interior has knowledge of this state of affairs. It should be brought to its attention, so that, if possible, it may take steps looking to the breaking up of the system, which can
SEMINOLE NATION v. U. S. 307
286	Opinion of the Court.
All this tends to show that the Seminole tribal officers might have been faithless to their trust during the period in question, and that the Government officials administering Indian affairs and disbursing Seminole funds might have been aware of that faithlessness at the time payments were made to the Seminole treasurer. Here again the Court of Claims did not address itself to, and made no findings on, this material issue. As we said in the discussion of Item Two, ante, it is not our function to make basic findings of fact. Again, we do not say that the showing with respect to this Item establishes breach of the Government’s fiduciary obligation, but we are of opinion that it is sufficient to justify remanding this branch of the case to the Court of Claims for further findings, in the light of such evidence as may be brought to its atten-be done by having the appropriations distributed in some other manner.”
Wm. L. Bowie, Special Investigator for the Interior Department, reported to the Superintendent for the Five Civilized Tribes in 1916 that:
“Governor Brown and his brother have been in the mercantile business in the Seminole Nation for many years. It is a fact much commented upon by those acquainted with Seminole tribal affairs, that for a number of years Governor Brown held the dual relationship to the members of the Seminole tribe of governor and paymaster on the one hand, and Indian trader on the other hand.”
“. . . In my opinion, Governor Brown has shown in his transactions with John Smith and Lizzie Yahola, that he has little regard for the welfare and protection of the Indians in general, and it is unfortunate that he occupies a position which enables him by reason of the confidence placed in him as such official to impose upon them.”
On the basis of reports from subordinates Assistant Commissioner of Indian Affairs Merrit recommended to the Commissioner of Indian Affairs, by a letter dated July 20, 1916, that the Seminole tribal government be abolished as “the only way to prevent Brown and Crain from continuing to use their official positions to advance their personal interests at the expense of the Indians under their authority.”
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Opinion of the Court.	316U.S.
tion, as to whether the Seminole tribal officers were mulcting the Nation from 1899 to 1907; whether, if such were the case, the appropriate Government officials administering Indian affairs and disbursing moneys to the Seminóles had knowledge thereof at the time any of the payments to the tribal treasurer were made; and, if so, whether the Seminole Nation received the benefit of any sums expended by the tribal treasurer. On the basis of these findings, the Court of Claims can then determine whether there was a breach of the Government’s fiduciary obligation, as defined in the discussion of Item Two, ante, and if there was a breach, the resultant liability.
Ill
Petitioner asserts that the Court of Claims committed numerous errors with respect to the items which it included in the list of gratuitous offsets, and the Government admits that the court erred in a few instances. However, since the case must be remanded to determine whether the Government has any further obligation on Items Two and Five, we deem it unnecessary to consider in detail the challenged offsets.
One phase of this question does require attention. In Seminole Nation v. United States, No. 830, post, p. 310, petitioner asserted that the Court of Claims gave the Government credit there for an offset which it had employed in the instant case, thus allowing a double credit. To avoid this confusion the Court of Claims should find and designate the precise gratuitous expenditures to be offset against the Government’s liability, instead of finding generally all the items which the Government may ever be entitled to use. Gratuity offsets resemble a fund in a bank, to be drawn upon by the Government in successive Indian claims cases until exhausted. Since they may be needed in future cases, it becomes important to know pre-
SEMINOLE NATION v. U. S. 309
286	Opinion of the Court.
cisely what items have been employed to extinguish liability in a particular case, as the instant case and No. 830 demonstrate. The disadvantage of the alternative, to treat as binding in subsequent suits involving the same parties the findings of the Court of Claims that the Government has total offsets in a certain amount, is evident because it may require this Court to do a vain thing, that is, to examine offsets which might never be needed and which, even if disapproved, would not change the result reached by the Court of Claims.
The judgment below is reversed, with the exception of the disposition of Items One, Three and Four which is in all respects affirmed, and the entire cause is remanded to the Court of Claims with directions to make further findings with respect to Items Two and Five; to determine the additional liability of the Government, if any, thereon; and, to find and designate the particular gratuitous expenditures to be offset against the Government’s total liability.
Upon the remand the Court of Claims will be free to consider any legal or equitable defenses which the Government may interpose to the claims asserted there by petitioner.
So ordered.
Mr. Justice Reed took no part in the consideration or decision of this case.
Mr. Justice Jackson dissents.
310	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
SEMINOLE NATION v. UNITED STATES.*
CERTIORARI TO THE COURT OF CLAIMS.
No. 830. Argued April 2, 1942.—Decided May 11, 1942.
1.	The acquisition from the Creek Nation and the transfer to the Seminole Nation, by the United States in 1882, of a 175,000 acre tract, held unrelated to an alleged deficiency in a tract previously transferred to the Seminoles pursuant to Article III of the Treaty of March 21, 1866, since at the time of the 1882 transfer no suggestion of a deficiency in the treaty grant had been advanced. P. 315.
2.	Under the Act of August 12,1935, which, in the settlement of claims against the United States by an Indian tribe, authorized offsets of sums expended gratuitously by the United States for the benefit of the tribe, the Court of Claims is required to find the amount of the liability, if any, of the United States on the claim of the tribe, and to designate and find the exact amount of the gratuitous expenditures which may be utilized to extinguish, in whole or in part, that liability. P. 315.
94 Ct. Cis. 240, reversed.
Certiorari, 315 U. S. 791, to review a judgment dismissing the petition of the Seminole Nation in a suit against the United States under a special jurisdictional Act.
Mr. C. Maurice Weidemeyer, with whom Messrs. Paul M. Niebell and W. W. Pryor were on the brief, for petitioner.
Mr. Charles R. Denny, with whom Solicitor General Fahy and Assistant Attorney General Littell were on the brief, for the United States.
Mr. Justice Murphy delivered the opinion of the Court.
The question presented for decision is whether the United States remains under any obligation to the
*Opinion reported herein as amended by order of May 25, 1942, post, p. 647.
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310	Opinion of the Court.
Seminole Nation with respect to Article III of the Treaty of March 21, 1866, 14 Stat. 755, 756, which provides in part:
“. . . The United States having obtained by grant of the Creek nation the westerly half of their lands, hereby grant to the Seminole nation the portion thereof hereafter described, which shall constitute the national domain of the Seminole Indians. Said lands so granted by the United States to the Seminole nation are bounded and described as follows, to wit: Beginning on the Canadian river where the line dividing the Creek lands according to the terms of their sale to the United States by their treaty of February 6, 1866, following said line due north to where said line crosses the north fork of the Canadian river; thence up said north fork of the Canadian river a distance sufficient to make two hundred thousand acres by running due south to the Canadian river; thence down said Canadian river to the place of beginning. In consideration of said cession of two hundred thousand acres of land described above, the Seminole nation agrees to pay therefor the price of fifty cents per acre, amounting to the sum of one hundred thousand dollars, . .
Petitioner’s claim is for just compensation for the alleged taking by the United States of an asserted deficiency in the tract granted by this Article.
Late in 1866, before the boundaries of the Seminole domain had been located, the Seminóles moved to what was assumed to be their treaty land.1 The first survey
Although negotiations were in progress with the Creeks at the time the Seminole treaty was made and a treaty was signed with them on February 6, 1866, the Creek treaty was not concluded until June 14, 1866. See 14 Stat. 785. The dividing line between the two halves of the Creek country was not settled until the Bardwell survey was approved in 1872.
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Opinion of the Court..	316 U. S.
of the line dividing the Creek and the Seminole territories, made by one Rankin, in 1868, under a contract with the Superintendent of Indian Affairs, was not approved by the Department of the Interior. In 1871 one Bardwell re-surveyed the dividing line and placed it seven miles west of the Rankin line. Two months later, at the direction of the Government, one Robbins ran the western boundary of the Seminole lands so as to include 200,000 acres from the Bardwell line. According to Robbins’ calculations, 200,000.03 acres were included between the Canadian river on the south, the north fork of the Canadian river on the north, the Bardwell line on the east and the Robbins line on the west. The Bardwell and Robbins surveys were both approved by the Secretary of the Interior on February 5, 1872.
Meanwhile, pursuant to Article I of the Treaty of February 27,1867,15 Stat. 531,2 the Pottawatomie tribe selected a tract bounded “by the West line of the Seminole lands,” and on November 9,1870, the Secretary of the Interior approved that selection. In 1872, after the location of the Robbins line, the Pottawatomies occupied the territory immediately west of that line. Subsequently, the Government allotted and patented the lands west of the Robbins line to the Pottawatomies in severalty, or sold and
8 By that Article the United States agreed that a delegation from the Pottawatomies should accompany a government commission to the Indian country “. . . in order to select, if possible, a suitable location for their people without interfering with the locations made for other Indians; and if such location shall be found satisfactory to the Pottawatomies, and approved by the Secretary of the Interior, such tract of land, not exceeding thirty miles square, shall be set apart as a reservation for the exclusive use and occupancy of that tribe; and upon the survey of its lines and boundaries, and ascertaining of its area, and payment to the United States for the same, as hereinafter mentioned and set forth, the said tract shall be patented to the Pottawatomie nation.”
SEMINOLE NATION v. U. S. 313
310	Opinion of the Court.
patented them to settlers and turned the purchase price into the Treasury as public money.3
The Bardwell survey disclosed that a considerable area east of the Seminole-Creek dividing line had been occupied by the Seminóles, who had made substantial improvements on this land. In order that the Seminóles might retain the lands which they had improved, Congress authorized negotiations for the purchase of these lands east of the Bardwell line. Act of March 3, 1873, 17 Stat. 626. An agreement was entered into on February 14, 1881, with the Creek Nation whereby that Nation ceded land east of the Bardwell line to the United States, the agreement providing that the eastern boundary of the land ceded was to be drawn so that the tract would aggregate 175,000 acres. Creek Nation v. United States, 93 Ct. Cis. 561, 566. The Creeks received $175,000 for this tract. Act of August 5, 1882, 22 Stat. 257, 265. This land became a part of the Seminole domain and was disposed of either by allotment to members of the tribe or by sale for the account of the tribe.
The possibility of a deficiency in the original 200,000 acre tract was first suspected in 1900? By an amended
3 Provision was made for allotting the lands to the Pottawatomies in severalty by Act of May 23,1872,17 Stat. 159, and Act of February 8, 1887, 24 Stat. 388. By an agreement ratified by Act of March 3, 1891, 26 Stat. 989, 1016-1017, the Pottawatomies ceded to the Government the tract assigned to them. It was stipulated in the agreement that all allotments in severalty, made or to be made, should be completed and confirmed, and that other allotments in severalty could be made until February 8, 1891. The ratifying act provided that the remaining lands were to be opened to settlement as public lands. 26 Stat. 1026.
Letter from the Commissioner of Indian Affairs to the Secretary of the Interior, dated February 5, 1900.
Letter from the Acting Secretary of the Interior to the Commis-gi°n to the Five Civilized Tribes, dated October 16, 1900.
314	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
petition filed in the Court of Claims in 1937,5 the Seminole Nation alleged that, owing to an error in the location of the Robbins line, the territory enclosed between the Robbins and Bardwell lines was 11,550.54 acres short of 200,000 acres, and that the United States took from the Seminóles 11,550.54 acres west of the Robbins line when the Government patented that land to individuals in 1892 and subsequent years. Judgment was prayed against the United States for value at the time of taking of the 11,550.54 acres, with interest at the rate of five percent per annum. The Court of Claims made no finding as to whether a shortage in fact existed in the tract between the Bardwell and Robbins lines, but held that, in any event, the Seminole Nation was more than compensated for the alleged shortage by the Government’s purchase for the Seminóles of 175,000 acres of land from the Creek Nation. The court also stated that, even if petitioner were entitled to recover for any deficit in the 200,000 acre tract, the Government would be entitled to offset the value of the 175,000 acre tract as a gratuitous expenditure under the Act of August 12, 1935, 49 Stat. 571, 596, a value assumed to be far in excess of the value of whatever deficit there may have been. We granted certiorari because of the close connection between this case and Semino le Nation v. United States, No. 348, ante, p. 286.6
The judgment of the Court of Claims cannot be sustained on either of the grounds advanced. The Government in this Court agrees to this proposition and
6 The original petition was filed in 1930. The amended petition was filed after the amendment to the jurisdictional act. 43 Stat. 133, as amended by 50 Stat. 650.
’Petitioner has here limited its claim to 10,351.82 acres, adopting the shortage given in the report, dated March 18, 1941, of Arthur D. Kidder, District Cadastral Engineer of the General Land Office, who surveyed the area after the original petition was filed.
SEMINOLE NATION v. U. S. 315
310	Opinion of the Court.
suggests that the cause be remanded to the Court of Claims.
I
Underlying the denial of recovery for any deficit in the 200,000 acre tract because petitioner was compensated therefor “fifteen-fold” by the receipt of an additional 175,000 acres, is the theory that the acquisition of land by the Seminóles under the Treaty of 1866 and the acquisition of additional land to the east by transfer from the Creeks in 1882 were but two parts of an integral transaction, intended to give the Seminóles 200,000 acres of land and thus discharge the obligation of the Treaty of 1866. However, the facts do not support that theory, for in 1882 the suggestion that a shortage existed in the supposed 200,000 acre tract between the Bardwell and Robbins lines had not yet been advanced. There was therefore no thought at the time the transfer of the 175,000 acre tract was made that the Government thereby fulfilled its treaty obligation by compensating the Seminóles for a deficiency in the original tract.
II
The Act of August 12, 1935, 49 Stat. 571, 596, directs the Court of Claims, in suits by an Indian tribe or band, “to consider and to offset against any amount found due the said tribe or band all sums expended gratuitously by the United States for the benefit of the said tribe or band.” This language plainly requires the Court of Claims to find, first, that money is due from the United States, to consider then whether the United States has gratuitously spent sums for the benefit of the tribe and, if it finds such gratuitous expenditures, to offset them against the amount found due.
In allowing the gratuity offset here, the Court of Claims fell short of complying with the requirements of the offset
316	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
statute. There was no finding that the United States was under any liability to the Seminole Nation; the Court stated only that the value of the 175,000 acre tract was “far in excess of the value of whatever deficit there may have been.” The shortcomings of this approach are evident. As we said in Seminole Nation v. United States, No. 348, ante, p. 286, gratuity offsets resemble a fund in a bank, to be drawn on by the Government as needed. If the Government owes nothing, it is entitled to a dismissal on that ground, and should not be compelled to use its gratuity offsets. If liability exists on the Government’s part, the exact amount of gratuitous expenditures utilized to extinguish that liability, in whole or in part, should be precisely found and designated. The Government should not be held to satisfy its liability by the use of gratuity expenditures in excess of the liability. Conversely, the Indian tribe is entitled to have an exact determination of the amount owed it by the United States in order that an amount of gratuity expenditures equal to the liability may be exhausted, or that, if the available offsets are insufficient, it receive a money judgment for the difference. Otherwise, confusion and the possibility of a double credit for a single offset arise, as this case and No. 348 abundantly demonstrate. In the latter case, a gratuity offset in the amount of $165,847.17 on account of the purchase of the 175,000 acre tract from the Creeks was allowed, and here the assumed value of that tract is the offset employed by the Court of Claims.
The judgment is reversed and the cause remanded to the Court of Claims with directions to consolidate it with No. 348; to determine whether a shortage exists in the 200,000 acre tract; to determine whether the Government is liable therefor, and the amount of such liability, if a shortage exists; and, to find and designate the precise gratuitous expenditures used to offset the total liability,
SIOUX TRIBE v. U. S.	317
310	Syllabus.
if any, arising from this claim and from Items Two and Five of No. 348.
Reversed.
Mr. Justice Reed took no part in the consideration or decision of this case.
Mr. Justice Jackson dissents.
SIOUX TRIBE OF INDIANS v. UNITED STATES.
certiorari to the court of claims.
No. 798. Argued April 10, 1942.—Decided May 11, 1942.
1.	Orders of the President, in 1875 and 1876, withdrawing areas of public lands from sale and settlement and setting them apart for the use of the Sioux Indians as additions to their permanent treaty reservation, conveyed no interest to the tribe for which it was entitled to compensation from the United States when, by subsequent executive orders, the lands were restored to the public domain. Pp. 325, 330.
2.	Since the Constitution places the authority to dispose of public lands exclusively in Congress, the Executive’s power to convey any interest in these lands must be traced to Congressional delegation of its authority. P. 326.
3.	The basis of decision in United States v. Midwest Oil Co., 236 U. S. 459, was that, so far as the power to withdraw public lands from sale is concerned, such a delegation could be spelled out from long-continued Congressional acquiescence in the executive practice. P. 326.
4.	The answer to whether a similar delegation occurred with respect to the power to convey a compensable interest in these lands to the Indians must be found in the available evidence of what consequences were thought by the Executive and Congress to flow from the establishment of executive order reservations. P. 326.
5.	There was no express constitutional or statutory authorization for the conveyance of a compensable interest to the tribe by the executive orders of 1875 and 1876, and no implied Congressional delegation of the power to do so can be inferred from the evidence of Congressional and executive understanding. P. 331.
318	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
6.	The inclusion of executive order reservations in the provisions of the General Allotment Act for allotting reservation land to Indians in severalty, did not amount to a recognition of tribal ownership of the land prior to allotment. P. 330.
94 Ct. Cis. 450, affirmed.
Certiorari, 315 U. S. 790, to review a judgment, in a suit against the United States under a special jurisdictional Act. The judgment denied recovery of compensation for land alleged to have been taken by the United States from the petitioning tribe of Indians.
Mr. Ralph H. Case, with whom Messrs. James S. Y. Ivins and Richard B. Barker were on the brief, for petitioner.
Solicitor General Fahy, with whom Assistant Attorney General Littell and Messrs. Vernon L. Wilkinson, Roger P. Marquis, and Archibald Cox were on the brief, for the United States.
Mr. Justice Byrnes delivered the opinion of the Court.
This is an action to recover compensation for some 5^2 million acres of land allegedly taken from the petitioner tribe in 1879 and 1884. The suit was initiated under the Act of June 3, 1920, 41 Stat. 738, permitting petitioner to submit to the Court of Claims any claims arising from the asserted failure of the United States to pay money or property due, without regard to lapse of time or statutes of limitation. The Court of Claims denied recovery, 94 Ct. Cis. 150, and we brought the case here on certiorari.
The facts as found by the Court of Claims are as follows:
In 1868 the United States and the Sioux Tribe entered into the Fort Laramie Treaty (15 Stat. 635). By Article II of this treaty, a certain described territory, known as the Great Sioux Reservation and located in what is now South
SIOUX TRIBE V. U. S.	319
317	Opinion of the Court.
Dakota and Nebraska, was “set apart for the absolute and undisturbed use and occupation” of the Tribe. The United States promised that no persons, other than government officers and agents discharging their official duties, would be permitted “to pass over, settle upon, or reside in the territory described in this article, or in such territory as may be added to this reservation for the use of said Indians.” For their part, the Indians relinquished “all claims or right in and to any portion of the United States or Territories, except such as is embraced within the limits aforesaid.” No question arises in this case with respect to the lands specifically included within the Reservation by this treaty.
The eastern boundary of the Great Sioux Reservation, as constituted by the Ft. Laramie Treaty, was the low water mark on the east bank of the Missouri River.1 The large tract bordering upon and extending eastward from the east bank of the river remained a part of the public domain open to settlement and afforded easy access to the Reservation. As a result, great numbers of white men “infested” the region for the purpose of engaging in the liquor traffic. Anxiety over this development led the Commissioner of Indian Affairs, on January 8,1875, to suggest to the Secretary of the Interior that he request the President to issue an executive order withdrawing from sale and setting apart for Indian purposes a certain large tract of the land along the eastern bank of the Missouri River. In the Commissioner’s letter to the Secretary of the Interior, and in the latter’s letter of January 9th to the President, the reason advanced for the proposed executive order was that it was “deemed necessary for the suppression of the liquor traffic with the Indians upon the Missouri River.” On
The Great Sioux Reservation also included two small theretofore existing reservations located on the east bank of the river. They are of no consequence so far as the present dispute is concerned.
320	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
January 11,1875, the President signed the suggested order. It described the territory affected and provided that it “be, and the same hereby is, withdrawn from sale and set apart for the use of the several tribes of Sioux Indians as an addition to their present reservation.” On two occasions thereafter, once in February and again in May, white persons who had settled on the land in question prior to the issuance of the executive order and who feared that its effect was to deprive them of their holdings, were informed by the Commissioner of Indian Affairs that the object of the executive order was “to enable the suppression of the liquor traffic with the Indians on the Missouri River,” that it did not affect the existing rights of any persons in the area, that it was not “supposed that the withdrawal will be made permanent,” and that no interference with the peaceful occupancy of the territory had been intended.
On March 13,1875, the Commissioner of Indian Affairs addressed another letter to the Secretary of the Interior. In it he recommended that the Secretary request the President to withdraw from sale and set apart for Indian purposes another tract of land bordering the Great Sioux Reservation, this time to the north and northeast. The reason given was similar to that for which the first order had been sought: “viz: the suppression of the liquor traffic with Indians at the Standing Rock Agency.” As a “further reason for said request” the Commissioner stated that “the Agency buildings, as now located at Standing Rock, are outside the reservation as defined by [the Fort Laramie] treaty . . . but are included in the tract proposed to be withdrawn.” The Secretary forwarded the Commissioner’s report to the President with his concurrence, repeating that the “enlargement of the Sioux reservation in Dakota” was “deemed necessary for the suppression of the liquor traffic with the Indians at the Standing Rock Agency.” On March 16, 1875, the President issued a second executive order describing the tract
SIOUX TRIBE V. U. S.	321
317	Opinion of the Court.
of land involved and declaring that it “be, and the same hereby is, withdrawn from sale and set apart for the use of the several tribes of the Sioux Indians as an addition to their present reservation in said Territory.”
In mid-May of 1875 the Secretary of War transmitted to the Secretary of the Interior a letter from the officer in command of the Southern District of the Military Department of Dakota in which it was pointed out that a small tract of land along the eastern bank of the Missouri River opposite the southern corner of the Sioux Reservation was still open to settlement and afforded “a very nice point for whiskey sellers and horse thieves.” Upon the basis of this letter, the Commissioner recommended to the Secretary of the Interior and the Secretary recommended to the President the issuance of still a third executive order withdrawing the described tract from settlement. On May 20, 1875, the executive order was issued in the same form as its two predecessors.
Finally, upon a similar complaint from the Acting Agent of the Standing Rock Agency that a small piece of land to the north of the reservation was being used as a base of operations by persons selling liquor and ammunition to the Sioux Indians, the Commissioner of Indian Affairs and the Secretary of the Interior recommended a further order to “effectually cut off these whiskey dealers.” In his letter to the Secretary dated November 24, 1876, the Commissioner stated: “It is not proposed to interfere with the vested rights, or the legitimate business of any settler who may be upon this tract.” The President issued a fourth executive order in the usual form on November 28, 1876. On December 13, 1876, the Commissioner notified the agent at Standing Rock that the order had been issued, and added that it was “not intended to interfere with the vested rights of any settlers upon this tract or with the legitimate business pursuits of any person lawfully residing within its limits.”
461263’—43-21
322	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
About two and a half years after the last of these four executive orders withdrawing lands from sale and setting them apart for the use of the Sioux, the Commissioner of Indian Affairs submitted to the Secretary of the Interior a report upon a suggestion that the orders be modified so as to permit the return of the lands to the public domain. The report, dated June 6,1879, reviewed the problems arising from the liquor trade during the years following the Fort Laramie treaty, recalled that the purpose of the four executive orders of 1875 and 1876 had been to eliminate this traffic, observed that they had “to a great extent accomplished the object desired, viz: the prevention of the sale of whiskey to the Indians,” and concluded that any change in the boundaries established by the executive orders would “give renewed life to this unlawful traffic, and be detrimental to the best interests of the Indians.”
Three weeks later, however, upon reconsideration, the Commissioner informed the Secretary that, in his opinion, the lands included in the executive orders of 1875 and 1876 might be “restored to the public domain, and the interests of the Indians still be protected.” In explanation he stated:
“These lands were set apart for the purpose, as alleged, of preventing illegal liquor traffic with the Indians. At the time said lands were set apart there was no law providing a punishment for the sale of liquor to Indians, ‘except to Indians in the Indian country/ but, by the Act of February 27,1877, (19 Stat. 244) persons who now engage in liquor traffic with Indians, no matter in what locality, are liable to a penalty of $300, and two years imprisonment, and, therefore, the necessity for so large a reservation for the protection of these Indians in this respect does not now exist.” 2
’Letter from Commissioner to Secretary of the Interior, dated June 27, 1879.
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317	Opinion of the Court.
Accordingly, he recommended that the lands withdrawn from sale by the President in 1875 and 1876 be returned to the public domain, with the exception of three small tracts directly opposite the Cheyenne, Grand River, and Standing Rock agencies. On August 9, 1879, an executive order to this effect was promulgated and the land, with the exceptions indicated, was “restored to the public domain.” Five years later, the Commissioner informed the Secretary that the Grand River Agency had ceased to exist and that the agents at Cheyenne and Standing Rock considered it no longer necessary to withhold the tracts opposite their agencies from the public domain “for the purpose for which they have thus far been retained.” Consequently, an executive order was prepared and signed by the President on March 20, 1884, restoring these three small pieces of land to the public domain, “the same being no longer needed for the purpose for which they were withdrawn from sale and settlement.”
One additional event remains to be noted. In the Indian Appropriation Act for 1877, approved August 15,1876 (19 Stat. 176,192), Congress provided:
“• . . hereafter there shall be no appropriation made for the subsistence of said Indians [i. e., the Sioux], unless they shall first agree to relinquish all right and claim to any country outside the boundaries of the permanent reservation established by the treaty of eighteen hundred and sixty-eight [the Fort Laramie treaty] for said Indians; and also so much of their said permanent reservation as lies west of the one hundred and third meridian of longitude [the western boundary set by the Fort Laramie treaty had been the 104th meridian], and shall also grant right of way over said reservation to the country thus ceded for wagon or other roads, from convenient and accessible points on the Missouri River . . .”
On September 26, 1876—a date subsequent to the first three of the four executive orders setting apart additional
324	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
lands for the use of the Sioux, but about two months prior to the last of those orders—the Sioux Tribe signed an agreement conforming to the conditions imposed by Congress in the Indian Appropriation Act and promised to “relinquish and cede to the United States all the territory lying outside the said reservation, as herein modified and described
Petitioner’s position is that the executive orders of 1875 and 1876 were effective to convey to the Tribe the same kind of interest in the lands affected as it had acquired in the lands covered by the Fort Laramie Treaty, that the executive orders of 1879 and 1884 restoring the lands to the public domain deprived petitioner of this interest, and that it is entitled to be compensated for the fair value of the lands as of 1879 and 1884. The Government defends on several grounds: first, that, in general, the President lacked authority to confer upon any individual or group a compensable interest in any part of the public domain; second, that, even if he had the power to convey such a compensable interest, the President did not purport to do so in this case; and third, that, in any event, by the treaty of 1876 the Sioux relinquished whatever rights they may have had in the lands covered by the first three of the four executive orders.
Section 3 of Article IV of the Constitution confers upon Congress exclusively “the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” Nevertheless, “from an early period in the history of the government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses.” Grisar v. McDowell, 6 Wall. 363, 381. As long ago as 1830, Con-
8 This treaty was ratified by the Act of February 28, 1877 (19 Stat. 254).;
SIOUX TRIBE V. U. S.	325
317	Opinion of the Court.
gress revealed its awareness of this practice and acquiesced in it.4 By 1855 the President had begun to withdraw public lands from sale by executive order for the specific purpose of establishing Indian reservations.5 From that date until 1919,6 hundreds of reservations for Indian occupancy and for other purposes were created by executive order. Department of the Interior, Executive Orders Relating to Indian Reservations, passim; United States v. Midwest Oil Co., 236 U. S. 459, 469-470. Although the validity of these orders was occasionally questioned,7 * 9 doubts were quieted in United States v. Midwest Oil Co., supra. In that case, it was squarely held that, even in the absence of express statutory authorization, it lay within the power of the President to withdraw lands from the public domain. Cf. Mason v. United States, 260 U. S. 545.
The Government therefore does not deny that the executive orders of 1875 and 1876 involved here were effective to withdraw the lands in question from the public domain. It contends, however, that this is not the issue presented by this case. It urges that, instead, we are called upon to determine whether the President
4 The Pre-emption Act of May 29,1830, excluded from its provisions
any land, which is reserved from sale by Act of Congress, or by order of the President.” 4 Stat. 420,421. “Lands included in any reservation, by any treaty, law, or proclamation of the President” were excluded
from the operation of the Pre-emption Act of September 4, 1841. 5 Stat. 453, 456.
“Cohen, Handbook of Federal Indian Law (1941) 299; Department
of the Interior, Executive Orders Relating to Indian Reservations, Vol. I, p. 79.
9	By § 27 of the Act of June 30, 1919, Congress declared that thereafter “no public lands of the United States shall be withdrawn by Executive Order, proclamation, or otherwise, for or as an Indian reservation except by Act of Congress.” 41 Stat. 3, 34. In 1927, Congress added a provision that any future changes in the boundaries of executive order reservations should be made by Congress alone. § 4, 44 Stat. 1347.
’ See 14 Op. A. G. 181 (1873). But cf. 17 Op. A. G. 258 (1882).
326	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
had the power to bestow upon the Sioux Tribe an interest in these lands of such a character as to require compensation when the interest was extinguished by the executive orders of 1879 and 1884. Concededly, where lands have been reserved for the use and occupation of an Indian Tribe by the terms of a treaty or statute, the tribe must be compensated if the lands are subsequently taken from them. Shoshone Tribe v. United States, 299 U. S. 476; United States v. Shoshone Tribe, 304 U. S. Ill; United States v. Klamath Indians, 304 U. S. 119. Since the Constitution places the authority to dispose of public lands exclusively in Congress, the executive’s power to convey any interest in these lands must be traced to Congressional delegation of its authority. The basis of decision in United States v. Midwest Oil Co. was that, so far as the power to withdraw public lands from sale is concerned, such a delegation could be spelled out from long continued Congressional acquiescence in the executive practice. The answer to whether a similar delegation occurred with respect to the power to convey a compensable interest in these lands to the Indians must be found in the available evidence of what consequences were thought by the executive and Congress to flow from the establishment of executive order reservations.8
8 This question is an open one. It is true that language appearing in two decisions of this Court suggests that the tribal title to a reservation is the same whether the reservation has been created by statute or treaty or by executive order. Re Wilson, 140 U. S. 575, 577; Spalding v. Chandler, 160 U. S. 394, 403. Cf. C. N. Cotton, 12 L. D. 205 (1890); William F. Tucker et al., 13 L. D. 628 (1891). In Re Wilson, however, it was conceded by all concerned that an executive order reservation was “Indian country” within the meaning of that term as it appeared in certain statutes defining the criminal jurisdiction of United States courts and territorial courts. No question was raised by the case with respect to the character of the tribe’s interest in the reservation. Moreover, the dictum referred to was based upon the assumption that the allotment Act of 1887 (24 Stat. 388) amounted to a Congressional recognition of tribal title to executive order reser-
SIOUX TRIBE V. U. S.	327
317	Opinion of the Court.
It is significant that the executive department consistently indicated its understanding that the rights and interests which the Indians enjoyed in executive order reservations were different from and less than their rights and interests in treaty or statute reservations. The annual reports of the Commissioner of Indian Affairs during the years when reservations were frequently being established by executive order contain statements that the Indians had “no assurance for their occupation of these lands beyond the pleasure of the Executive,”9 that they “are mere tenants at will, and possess no permanent rights to the lands upon which they are temporarily permitted to remain,”10 and that those occupying land in executive
vations. The invalidity of this assumption is demonstrated in a later portion of our opinion. The issue in Spalding v. Chandler concerned the effect of the Pre-emption Act of September 4, 1841 (5 Stat. 453) upon an Indian reservation created by treaty and preserved by executive order and did not involve a determination of whether the Indians enjoyed a compensable interest in an executive order reservation. And twenty-eight years thereafter when the Attorney General ruled, on the authority of United States v. Midwest OH Co., that executive order reservations were not a part of the public domain for purposes of the General Leasing Act of 1920 (41 Stat. 437), he took occasion to remark: “Whether the President might legally abolish, in whole or in part, Indian reservations once created by him, has been seriously questioned (12 L. D. 205; 13 L. D. 628) and not without strong reasons; for the Indian rights attach when the lands are thus set aside; and moreover, the lands then at once become subject to allotment under the General Allotment Act. Nevertheless, the President has in fact, and in a number of instances, changed the boundaries of executive order Indian reservations by excluding lands therefrom, and the question of his authority to do so has not apparently come before the courts.” 34 Op. A. G. 171, 176 (emphasis added).
’Annual Report of Commissioner of Indian Affairs (1872), H. R. Exec. Doc., 42d Cong., 3d Sess., Vol. Ill, No. 1, part 5, p. 472.
10 Id. (1878), H. R. Exec. Doc., 46th Cong., 3d Sess., Vol. IX, No. 1, part 5, p. 486; id. (1880), H. R. Exec. Doc., 46th Cong., 3d Sess., Vol. IX, No. 1, part 5, p. 96.
328	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
order reservations “do not hold it by the same tenure with which Indians in other parts of the Indian Territory possess their reserves.”11
Although there are abundant signs that Congress was aware of the practice of establishing Indian reservations by executive order, there is little to indicate what it understood to be the kind of interest that the Indians obtained in these lands. However, in its report in 1892 upon a bill to restore to the public domain a portion of the Colville executive order reservation, the Senate Committee on Indian Affairs expressed the opinion that under the executive order “the Indians were given a license to occupy the lands described in it so long as it was the pleasure of the Government they should do so, and no right, title, or claim to such lands has vested in the Indians by virtue of this occupancy.”11 12
Petitioner argues that its position finds support in § 1 of the General Allotment Act of February 8, 1887,13 which provides:
“That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and, he hereby is, authorized ... to cause said reservation ... to be surveyed . . . and to allot the lands in said reservation in severalty to any Indian located thereon . . .”
By § 5, provision was made for issuance of patents to the allottees, by which the United States promised to hold the lands in trust for the allottees and their heirs for 25 years,
11	Id. (1886), H. R. Exec. Doc., 49th Cong., 2d Sess., Vol. 8, No. 1, part 5, p. 88.
12	8. Rep. No. 664,52d Cong., 1st Sess., p. 2.
M24 Stat. 388.
SIOUX TRIBE V. U. S.	329
317	Opinion of the Court.
and thereafter to convey to them full title. Petitioner urges that, by including executive order reservations within the provisions of this Act, Congress revealed its belief that the degree of ownership enjoyed by Indian tribes is identical whether the reservation is created by treaty, statute, or executive order. But there is much to contradict this interpretation. For example, during the course of the debate on the measure, Senator Dawes, a member of the Committee reporting the bill, frequently distinguished between the character of title enjoyed by the Indians on statute and treaty reservations and that enjoyed by those on executive order reservations, and no exception was taken to his remarks. 17 Cong. Rec. 1559, 1630, 1631, 1763. Moreover, in its 1892 report on the bill to abolish a portion of the Colville reservation, to which we have referred, the Senate Committee on Indian Affairs explained:
“An erroneous idea seems to have grown up, that the Indian allotment act [of 1887] and its amendments have given additional sanctions to executive reservations, and operated to confer titles upon the Indians occupying them they did not before possess ... At the time of the enactment of this statute, there were fifty-six executive reservations, embracing perhaps from 75,000,000 to 100,-000,000 acres of the public lands, in which the Indians had no right or claim of title and which could be extinguished by act of the President. It would be preposterous to place such a construction upon the language of this act as would divest the United States of its title to these lands.”14
This statement by the Committee which reported the general Allotment Act of 1887, made within five years of its passage, is virtually conclusive as to the significance
M S. Rep. No. 664, 52d Cong., 1st Sess., p. 2.
330	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
of that Act. We think that the inclusion of executive order reservations meant no more than that Congress was willing that the lands within them should be allotted to individual Indians according to the procedure outlined. It did not amount to a recognition of tribal ownership of the lands prior to allotment. Since the lands involved in the case before us were never allotted—indeed, the executive orders of 1879 and 1884 terminated the reservation even before the Allotment Act was passed,—we think the Act has no bearing upon the issue presented.
Perhaps the most striking proof of the belief shared by Congress and the Executive that the Indians were not entitled to compensation upon the abolition of an executive order reservation is the very absence of compensatory payments in such situations. It was a common practice, during the period in which reservations were created by executive order, for the President simply to terminate the existence of a reservation by cancelling or revoking the order establishing it. That is to say, the procedure followed in the case before us was typical. No compensation was made, and neither the Government nor the Indians suggested that it was due.15 It is true that on several of the many occasions when Congress itself abolished executive order reservations, it provided for a measure of compensation to the Indians. In the Act of July 1, 1892, restoring to the public domain a large portion of the Colville reservation,16 and in the Act of February 20, 1893, restoring a portion of the White Mountain Apache Indian Reservation,17 Congress directed that the proceeds
“ See, e. g., Department of the Interior, Executive Orders Relating to Indian Reservations, Vol. I, pp. 5, 6, 21, 30, 37, 43, 44, 48-50; Hearings before a Subcommittee of the Committee on Indian Affairs on S. 1722 and S. 3159,69th Cong., 1st Sess., pp. 104-105.
“27 Stat. 62, 63.
17 27 Stat. 469, 470.
SIOUX TRIBE V. U. S.	331
317	Opinion of the Court.
from the sale of the lands be used for the benefit of the Indians. But both acts contained an explicit proviso: “That nothing herein contained shall be construed as recognizing title or ownership of said Indians to any part of said . . . Reservation, whether that hereby restored to the public domain or that still reserved by the Government for their use and occupancy.” Consequently, the granting of compensation must be regarded as an act of grace rather than a recognition of an obligation.
We conclude therefore that there was no express constitutional or statutory authorization for the conveyance of a compensable interest to petitioner by the four executive orders of 1875 and 1876, and that no implied Congressional delegation of the power to do so can be spelled out from the evidence of Congressional and executive understanding. The orders were effective to withdraw from sale the lands affected and to grant the use of the lands to the petitioner. But the interest which the Indians received was subject to termination at the will of either the executive or Congress and without obligation to the United States. The executive orders of 1879 and 1884 were simply an exercise of this power of termination, and the payment of compensation was not required.
Affirmed.
The Chief Justice took no part in the consideration or decision of this case.
332	OCTOBER TERM, 1941.
Counsel for Parties.	316 U. S.
PENCE v. UNITED STATES.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 665. Argued March 11, 12, 1942.—Decided May 11, 1942.
1.	In an action on a government life insurance policy the Government is entitled to a directed verdict on the ground of fraud where material representations relating to his health made by the insured in his application for the insurance, and relied upon by the Government in issuing the policy, are clearly contradicted by statements made by him after issuance of the policy in support of claims for disability benefits; where the later representations leave no doubt of the falsity of the earlier ones nor of the applicant’s knowledge of their falsity, and are neither contradicted, qualified nor explained by other evidence in the case. P. 338.
2.	The representations in the sworn application for government life insurance were not evidence of their own veracity when challenged as false and fraudulent. P. 339.
3.	Upon the facts above stated the requisite intent to defraud is presumed. P. 339.
121 F. 2d 804, affirmed.
Certiorari, 314 U. S. 602, to review a judgment entered by the District Court on a verdict for the present petitioner in an action on a government life insurance policy. The District Court denied the Government’s motion, under Rule 50 (b), for judgment notwithstanding the verdict or for a new trial.
Mr. William B. Collins for petitioner.
Mr. Richard H. Demuth, with whom Solicitor General Fahy and Messrs. Julius C. Martin, Wilbur C. Pickett, W. Marvin Smith, and Keith L. Seegmiller were on the brief, for the United States.
PENCE v. UNITED STATES. 333
332	Opinion of the Court.
Mr. Justice Jackson delivered the opinion of the Court.
This action was begun in the United States District Court for the Eastern District of Wisconsin by the petitioner, a widow, as sole beneficiary of a policy of United States Government life insurance issued to her deceased husband, Doctor Lawrence W. Pence. The only contested issue was raised by the Government’s affirmative defense that the policy had been reinstated as the result of fraudulent representations in Doctor Pence’s application for reinstatement of the policy after it had lapsed for nonpayment of premium.
At the close of the evidence in the trial court, the Government moved for a directed verdict in its favor. The trial judge withheld a ruling on the motion under Rule 50 (b) of the Rules of Civil Procedure and submitted the case to the jury, which returned a general verdict for the petitioner. The Government then moved under Rule 50 (b) for judgment notwithstanding the verdict, and, in the alternative, for a new trial. The trial judge denied both motions and entered judgment on the verdict for the petitioner. The Government appealed to the Circuit Court of Appeals for the Seventh Circuit, which held, with one judge dissenting, that the evidence was insufficient to establish a case for the consideration of the jury and that there was no independent ground requiring that a new trial be granted. It reversed the judgment of the District Court and remanded the cause for further proceedings in harmony with its opinion. 121 F. 2d 804. We granted certiorari. 314 U. S. 602.
Petitioner contends that the evidence raised a question of fact for the consideration of the jury, and that the
334	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
decision of the Circuit Court of Appeals therefore denies her the right to trial by jury.1
Doctor Pence had been a physician and medical officer in the military service of the United States from August 7, 1918, to January 9, 1919. While in the service he obtained a $10,000 policy of yearly renewable War Risk term insurance, which he allowed to lapse on March 2, 1920, for nonpayment of the premium due on February 1, 1920. In 1925 he gave up a private medical practice to accept employment as a physician with the Government, acting thereafter as a specialist in eye, ear, nose, and throat diseases at various veterans’ hospitals and homes maintained by the Government. On June 21, 1927, Pence applied for reinstatement and conversion of the lapsed term policy. The policy was accordingly reinstated and converted effective July 1,1927; and, except for the question of fraud,2 was in force at the time of his death on September 21, 1934.
In his application for reinstatement, Pence categorically denied, among other things, that he had ever been treated for any disease of the throat, heart or stomach. So also did he deny that since the lapse of the policy he had consulted any physician in regard to his health, or had been ill or prevented by ill health from attending to his usual occupation.
At the trial there was submitted in evidence a communication from the Regional Medical Officer at Sioux Falls, South Dakota, to the Manager of the Veterans’ Administration in Milwaukee, Wisconsin, and dated Decem-
1This right was conferred by amendment to § 19 of the World War Veterans Act, 43 Stat. 1302,38 U. S. C. § 445. Whitney v. United States, 8 F. 2d 476; Hacker v. United States, 16 F. 2d 702; United States v. Salmon, 42 F. 2d 353; United States v. Green, 107 F. 2d 19; H. R. Rep. No. 1518,68th Cong., 2d Sess., p. 2.
aA defense on this ground is authorized by § 307 of the World War Veterans Act, 38 U. S. C. § 518.
PENCE v. UNITED STATES. 335
332	Opinion of the Court.
ber 9, 1931. This reported that a gastro-intestinal X-ray examination had been made of Pence at the Sioux Falls Veterans’ Hospital on April 6,1925, and had resulted in a diagnosis of “suspected duodenal pathology.” Pence made several statements, subsequent to the reinstatement of his insurance and in support of claims for disability benefits from the Government, that this examination had been made at his request. Mrs. Pence admitted that she knew that such an examination had been made.
About fifteen months after his application for reinstatement, and on August 27, 1928, Pence applied to the Government for disability compensation, claiming that he was disabled by chronic sinusitis, ethmoiditis, atrophic rhinitis, and by myocarditis. On September 7, 1928, he executed and submitted a sworn statement in support of his application for disability compensation that he suffered from the following disabilities: “sinusitis, frontal, ethmoiditis, chronic, atrophic rhinitis, chronic, with loss of sense of smell, myocarditis, chronic . . . incurred . . . on or about October 1918.” He also stated “That a physician was called in to treat me on Jan. 1927, when he pronounced my disability sinusitis, frontal, acute exacerbation and prescribed serum and local treatment tending to induce drainage. Treatment was carried out by myself. Was confined to bed for 8 days.” Together with this he submitted a supporting “Physician’s Affidavit,” by Doctor L. Grant Glickman, a practicing physician stationed at the time of the asserted examination at the National Home at Leavenworth, Kansas, where Pence was stationed; and employed at the time of the trial by the Veterans’ Administration at Fort Snelling, Minnesota.3
This affidavit contained the following: “I first examined the claimant on Jan. 16, 1927. His complaint at that time was: Frontal sinusiris & Ethmoiditis, chronic. Upon physical examination I found t e following symptoms present: Headache, severe; bloody purulent discharge from nose. I diagnosed the injury or disease as Chronic
336	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
In 1931 and 1933 Pence made statements in support of other claims for benefits, similar to those set forth above in that they contradicted the representations made in his application for reinstatement involved in this case. On November 28, 1931, he submitted a statement in support of an application for retirement, to the effect that in 1918 a camp physician, by whose authority he remained in barracks under special care while in service, examined his heart and told him it was “shot”; that he had acute myocarditis and a severe gastric upset which “turned out to be a forerunner of duodenal ulcer which perforated in 1920 and again in 1925”; and that because of distress and certain symptoms he later requested a gastro-intestinal examination at the Veterans’ Bureau office at Sioux Falls, South Dakota. He concluded his statement: “I never had a day of sickness in my life before this and I do not believe I have had an entirely well one since.” On December 8,1933, he submitted a sworn application for pension for disability resulting from active military service, stating that since the beginning of service one civilian physician had treated him for sinusitis and myocarditis; and four others for sinusitis alone. One of the latter examinations was stated to have been made by Doctor Glick-man in 1926, and another was stated to have been made at a time after the lapse of the policy in suit.
Doctor Glickman was produced at the trial as a witness for the Government, in whose employ he still was at the time. The trial judge ruled out, as improper, questions by petitioner’s counsel bearing upon the question whether ethmoiditis & frontal sinusitis with an auto exacerbation. The prognosis was fair but incurable. I do believe the claimant’s disability is attributable to his military service, for the following reasons: Statement of claimant that above trouble followed influenza in service. Never troubled before that time with above disabilities. Claimant continued under my care until Jan. 25, 1927, during which time I treated him as follows: Argyrol instillations & packs. Serum therapy.”
PENCE v. UNITED STATES. 337
332	Opinion of the Court.
disciplinary action had been taken against Glickman and others because of the execution of affidavits in support of Pence’s claim for disability compensation and other of his claims. Upon being asked whether he had an independent recollection of the examination referred to, he stated that he had copies of “records,” but not the “originals.” The Government’s attorney then asked: “Well, Doctor, do you have a recollection of your examination— refresh your recollection of your examination of Dr. Lawrence Pence in January, 1927?” Glickman answered “I do.” The Government could not locate the record of the treatment made on Glickman’s report as officer of the day—apparently the only record made of the treatment— and it was not produced at the trial.
Glickman testified further as follows: Pence called upon him for treatment on January 16,1927, while he was acting as officer of the day. He concluded that Pence was suffering from sinusitis and ethmoiditis. Pence knew what his findings were, and stated that he was suffering from a recurrence of a chronic condition. Glickman treated Pence at Pence’s home on two or three occasions between January 16 and January 25. Mrs. Pence was at home then, although perhaps not on all occasions. Pence had no cold, but Glickman prescribed a cold serum for him, and also some argyrol packs.
Mrs. Pence testified, however, that: She had no knowledge that her husband had consulted a physician. She was close to him, and constantly with him, and believed that he would have told her of anything seriously the matter with him. He never told her, however, of consulting a physician, or that he suffered from sinusitis, ethmoiditis, or myocarditis. Her husband led an active, vigorous life, and was never confined to bed, except by occasional colds, and suffered from no other sickness. It appeared from her testimony, however, that she was unable to differentiate between a “cold” and a sinus infection.
461263°—43--22
338	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
Pence’s two sons and two friends also testified to his active life and apparent good health.
With the evidence in this condition, the Circuit Court of Appeals held that the District Court erred in refusing to withdraw the case from the jury.
The Government, which the Circuit Court of Appeals held was entitled to a directed verdict, had the burden of proof on the issue of fraud. Under the circumstances we have recited, the credibility of Doctor Glickman, its witness, was clearly for the jury. The evidence of the gastrointestinal examination was likewise insufficient to sustain the direction of a verdict. We assume, without deciding, that the jury could not have refused to believe that such an examination had been made. Yet the jury could have properly refused to deduce from this all the necessary elements of the defense of fraud, established by our decisions to be: (1) a false representation (2) in reference to a material fact (3) made with knowledge of its falsity (4) and with the intent to deceive (5) with action taken in reliance upon the representation.4
The case of the Government for a directed verdict rests, therefore, upon the statements of Pence made after the reinstatement of his insurance and contradicting the representations in his application for reinstatement. Their admissibility as against the beneficiary-plaintiff, Mrs. Pence, is not in issue on this record, for they were introduced by the Government and received in evidence without objection.5
* Claflin v. Commonwealth Ins. Co., 110 U. S. 81; Lehigh Zinc & Iron Co. n. Bamford, 150 U. S. 665, 673; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613; cf. Derry v. Peek, 14 App. Cas. 337, 374.
’Compare Truelsch v. Miller, 186 Wis. 239, 250, 202 N. W. 352; Connecticut Mutual Life Ins. Co. v. Hillmon, 188 U. 8. 208. It does not appear from the report of the Hillmon case whether the insured had the power to change the beneficiary, as Pence did in the present case. § 301 of the World War Veterans Act, 38 U. 8. C.
PENCE v. UNITED STATES. 339
332	Opinion of the Court.
Pence’s representations in the application were not evidence of their own veracity.6 His later contrary statements were repeated, and usually under oath; they are in no way improbable, and are the statements of one who, being himself a doctor, spoke with knowledge of the subject and bearing of his statements. His admissions left no room for conjecture as to the falsity of the previous statements in the application, and of his knowledge of such falsity. From these facts the requisite intent to defraud is presumed,7 and therefore need not be proven in the absence of countervailing evidence. Materiality and reliance were conclusively established by evidence introduced at the trial, if indeed such proof were needed.
§ 512. The effect of such a power to make the insured’s statements admissible against the beneficiary has frequently been dealt with by the courts and commentators. 4 Wigmore, Evidence (2d ed.) 146, note 6; Kales, Admissibility of Declarations of the Insured against the Beneficiary, 6 Columbia Law Review 509; Morgan, The Rationale of Vicarious Admissions, 42 Harvard Law Review 461, 477-78; Finale, The Admissibility of Declarations of the Assured in Life Insurance Litigation, 8 St. John’s Law Review 258; 4 Minnesota Law Review 359.
The cash, loan, and other values of the policy in suit to Pence at the time of his various statements contradicting the representations in his application for reinstatement and conversion of the policy in suit do not appear in the record. Compare § 301 of the World War Veterans Act, 38 U. S. C. § 512.
If the law were otherwise, it would follow that a verdict could never be directed in favor of a party alleging fraud in any case in which the falsity of a representation was in issue. Yet, verdicts have frequently been directed in such circumstances. Cf. Bella S. S. Co. v. Insurance Co. of North America, 5 F. 2d 570; Aetna Life Ins. Co. v. Bolding, 57 F. 2d 626; Aetna Life Ins. Co. v. Perron, 69 F. 2d 401, certiorari denied, 293 U. S. 570; Columbian National Life Ins. Co. v. Rodgers, 93 F. 2d 740.
''Claflin v. Commonwealth Ins. Co., 110 U. S. 81, 95; Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 622; cf. Agnew v. United States, 165 U. S. 36, 53; Stipcich v. Metropolitan Life Ins. Co., 277 U. S. 311, 316-317.
340	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316U.S.
No evidence in the case served in any way to contradict, qualify, or explain Pence’s admissions.8 We are of opinion that, in the absence of any such evidence, his admissions established so overwhelming a case in favor of the Government as to require the direction of a verdict in its favor,9 and the decision of the Circuit Court of Appeals is, therefore,
Affirmed.
Mr. Justice Murphy, dissenting:
In view of the high value and importance attached by custom and tradition to the right of jury trial as a feature of our federal jurisprudence, and the significant emphasis provided by the federal and state constitutions, scrupulous care should be exercised by courts and judges to avoid rulings, on motions for the direction of a verdict, which in effect wrongfully deprive a litigant of the cherished right. On such a motion our function is not to evaluate the evidence for the purpose of determining whether fraud has been committed. I am unable to agree with the opinion of the Court, because I think there was sufficient evidence to justify submitting the issue of fraud to the jury.
The opinion of the Court recognizes that the testimony of Glickman and the evidence of the gastro-intestinal examination were insufficient to sustain the direction of a
8 The denial of Pence’s various claims is in no way inconsistent with the truth of his admissions here involved, since his claims were allowable only in the event of actual physical disability at the time. That a man is not presently disabled in no way militates against the truth of statements that he had previously consulted a physician, etc.
0 Wilkinson v. Kitchin, 1 Lord Raymond 89; Decker v. Poper, 1 Selwyn, Nisi Prius (13th ed.) 91; Hendrick v. Lindsay, 93 U. S. 143; Arthur v. Morgan, 112 U. S. 495; Anderson County Commissioners v. Beal, 113 U. S. 227, 241-242; Chesapeake & Ohio Ry. Co. v. Martin, 283 U. S. 209, 216.
PENCE v. UNITED STATES. 341
332	Murphy, J., dissenting.
verdict, and correctly states the issue thus: “The case of the Government for a directed verdict rests, therefore, upon the statements of Pence made after the reinstatement of his insurance and contradicting the representations in his application for reinstatement.” So stated, the case presents a controverted question of fact, and, in view of the evidence in this case, it was for the jury to find the answer by resolving the conflict between the two contrary sets of self-serving statements made by Pence.
It is admitted that “Pence’s representations in the application were not evidence of their own veracity.” As an abstract matter one would suppose that Pence’s later conflicting statements were likewise “not evidence of their own veracity.” However, it is said that reasonable men have no choice but to admit the truth of those later statements, because they “were repeated, and usually under oath; they are in no way improbable, and are the statements of one who, himself a doctor, spoke with knowledge of the subject and bearing of his statements.” These factors might be persuasive to a jury that the later statements were true, but it is quite a different thing to hold that they absolutely compel belief. On the basis of the record, an equally plausible premise is that the statements m the application were the true ones. Pence was never absent from work for any appreciable period of time. The reports of his physical examinations from 1928 to his death were not altogether consistent, and any defect disclosed was evidently thought insufficient to warrant allowing any of his various claims for disability benefits, etc. His widow testified that they were “pretty close to one another,” that she believed he would have told her if anything was seriously wrong with him, and that she had no knowledge of any serious ailment or consultation with a physician on his part. All this casts doubt on the truth of Pence’s statements made after his. application for the
342	OCTOBER TERM, 1941.
Syllabus.	316 U.S.
reinstatement of his insurance and entitled the jury to pass judgment on them.
Whether Pence was a malingerer or not, disavowing and then asserting injury and disease as a means of collecting different benefits from the Government, is not for us to decide. Suspicion that such was the case does not justify usurping the jury’s function of determining, in the light of all the evidence, which of Pence’s statements were true and which were false. The case was properly submitted to the jury. Its verdict, rendered on substantial evidence, should not have been set aside.
Mr. Justice Black and Mr. Justice Douglas join in this dissent.
UNITED STATES bx bbl. COY v. UNITED STATES ET al.
certiorari to the circuit court of appeals for the
SIXTH CIRCUIT.
No. 973. Argued May 4, 5, 1942.—Decided May 25, 1942.
1.	Where a judgment of the Circuit Court of Appeals affirms an order of the District Court denying for want of jurisdiction a motion to correct a sentence made by the convict after expiration of the term in which the sentence was imposed, the time allowed for petition to this Court for a writ of certiorari is governed by Rule XI of the Rules in Criminal Cases, and is 30 days after the entry of the judgment of the Circuit Court of Appeals. P. 344.
2.	The failure of the Rules in Criminal Cases to fix the time allowed for appealing such an order of the District Court to the Circuit Court of Appeals is a casus omissus which left in full force § 8 (c) of the Judiciary Act of February 13, 1925, requiring application for the allowance of appeals to the Circuit Court of Appeals to be made within three months after the entry of the order appealed from. P« 345.
124 F. 2d 1019, dismissed.
U. S. EX bel. COY v. UNITED STATES. 343
342	Opinion of the Court.
Certiorari, post, p. 652, to review a judgment affirming an order of the District Court, 38 F. Supp. 610, dismissing a motion to correct a sentence out of term for want of jurisdiction.
Mr. James E. Fahey for petitioner.
Mr. H. G. Ingraham, with whom Solicitor General Fahy and Assistant Attorney General Berge were on the brief, for respondents.
Per Curiam.
In 1937, petitioner was tried and convicted on an indictment charging him with violation of §§ 2 (a) and (b) of the Act of May 18,1934,12 U. S. C. § 588(b), which respectively define the offenses (a) of taking or attempting to take by force from any person money or property belonging to a bank insured with the Federal Deposit Insurance Corporation, and (b), in the commission of such offense, assaulting any person, or putting in jeopardy the life of any person by use of a dangerous weapon.
The first count of the indictment charged the forcible taking of money of the bank from the person of another. The second count charged the same taking by use of a dangerous weapon, and the third alleged a conspiracy of petitioner with others to commit the offenses set out in the first two counts. Petitioner was sentenced to twenty years imprisonment on count one, and a year and a day on each of counts two and three, the three sentences to run consecutively. He took no appeal, but two years later moved in the trial court to set aside the sentence on the first count on the ground that the offense charged in the first was included in that charged in the second. The District Court denied the motion, holding that its jurisdiction of the cause ended with the term of court in which petitioner was sentenced. 38 F. Supp. 610.
344	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
After the lapse of more than the five days prescribed by Rule III of the Rules in Criminal Cases, but less than the three months prescribed by § 8 (c) of the Act of February 13,1925,28 U. S. C. § 230, petitioner filed a notice of appeal and asked leave to appeal in forma pauperis, which the District Court allowed. The Circuit Court of Appeals affirmed the order denying petitioner’s application “upon the grounds and for the reasons set forth in the opinion of the District Judge.” 124 F. 2d 1019. We granted certiorari on a petition filed more than thirty days after the entry of judgment by the court below, and requested counsel, in presenting the case here, to discuss the questions whether the time for appeal to the Circuit Court of Appeals and for petition for certiorari to this Court are governed by the Rules in Criminal Cases, and if not what statute applies.
Rule XI of the Criminal Rules provides that “Petition to the Supreme Court of the United States for writ of certiorari to review a judgment of the appellate court shall be made within thirty (30) days after the entry of the judgment of that court.” If the judgment of the Court of Appeals is one to which Rule XI applies, the petition for certiorari was filed too late and we are without jurisdiction. Petitioner insists that the present proceeding is one not embraced in the Criminal Rules since they make no provision governing the appeal from the order of the District Court; that, consequently, certiorari to review the judgment of the Circuit Court of Appeals, as in other proceedings not within the Criminal Rules, is governed by § 8 (a) of the Act of February 13, 1925, as amended, 28 U. S. C. § 350, which allows three months for filing the petition. Cf. Nye v. United States, 313 U. S. 33, 43-44.
The Criminal Rules were promulgated by this Court, 292 U. S. 661, pursuant to the Act of March 8, 1934, 18 U. S. C. § 688, which authorized the Court to adopt “rules
U. S. EX REL. COY v. UNITED STATES. 345
342	Opinion of the Court.
of practice and procedure with respect to any or all proceedings after verdict, or finding of guilt by the court if a jury has been waived, or plea of guilty, in criminal cases in district courts of the United States.” The statute expressly authorized the Court to “prescribe the times for and manner of taking appeals and applying for writs of certiorari.” In adopting the rules it was the purpose of this Court to expedite appeals in criminal proceedings; and, as declared in its order promulgating them, they were to apply “in all proceedings” after pleas or verdict or finding of guilt and “in all subsequent proceedings in such cases in the United States Circuit Courts of Appeals . . . and in the Supreme Court of the United States.”
The failure to provide in Rule III or elsewhere for appealing an order like the present from the District Court to the Circuit Court of Appeals is a casus omissus which left in full force § 8 (c) of the Judiciary Act of February 13,1925, 28 U. S. C. § 230, which requires application for the allowance of appeals to the Circuit Court of Appeals to be made within three months after the entry of the order appealed from. But the judgment of the Circuit Court °f Appeals in this case is a judgment in a criminal proceeding after verdict and judgment of conviction, and the petition for certiorari to review the judgment is a “subsequent proceeding” in such a case to which Rule XI specifically applies.
We see no reason for excepting the petition for certiorari from the thirty-day limitation of Rule XI merely because the draftsmen omitted to provide in Rule III for an appeal from the order of the District Court in cases like the present. On the contrary, since the purpose in adopting the Rules was to expedite criminal appeals, and the Rules in terms apply to petitions for certiorari in criminal cases, the express* requirements of Rule XI cannot rightly be disregarded even though the general purpose was not
346	OCTOBER TERM, 1941.
Syllabus.	316 U.S.
made completely effective because of the failure to provide a short period for appeal from the order of the District Court. Despite this omission, Rule XI has made the purpose effective in the case of review by certiorari in this Court.
The writ will accordingly be dismissed for failure to comply with Rule XI. We have no occasion to pass on the question whether the District Court’s denial of the application, on a ground which the Government suggests was erroneous, will bar a subsequent application to the District Court for similar relief.
Dismissed.
NORTHERN PACIFIC RAILWAY CO. et al. v. UNITED STATES et al.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA.
No. 927. Argued April 29, 30, 1942.—Decided May 25, 1942.
The Interstate Commerce Commission found that, at certain complaining markets, the railroads absorbed switching charges on competitive grain shipments (i. e., traffic originating at points served by more than one railroad), but not on non-competitive or local traffic (originating at points served by only one railroad), while at all other markets in central-western territory the carriers absorbed the switching charges on both competitive and non-competitive shipments. This practice, it found, was at variance with the general purpose of the grain-rate structure to bring about “an adjustment under which the rates to and from all western markets would be on relatively the same level, or an adjustment under which the rates to and from the markets would approximate a mileage parity,” and was supported neither by revenue considerations nor sound transportation factors, and was unreasonable. Held, that a cease-and-desist order based upon these findings was within the statutory and constitutional powers of the Commission. P. 348.
41 F. Supp. 439, affirmed.
NORTHERN PACIFIC RY. CO. v. U. S. 347
346	Opinion of the Court.
Appeal from a decree of the District Court dismissing a suit to set aside an order of the Interstate Commerce Commission. See 245 I. C. C. 11.
Mr. J. P. Plunkett, with whom Messrs. L. B. da Ponte, M. L. Countryman, Jr., F. G. Dorety, and R. J. Hagman were on the brief, for appellants.
Mr. Smith R. Brittingham, Jr., with whom Solicitor General Fahy, Assistant Attorney General Arnold, and Messrs. Robert L. Pierce, Daniel W. Knowlton, and E. M. Reidy were on the brief, for the United States et al.; and Mr. Neal E. Williams submitted for the Public Service Commission of North Dakota et al., appellees.
Per Curiam.
This is an appeal from a decree of the District Court, 41 F. Supp. 439, dismissing a suit to set aside an order of the Interstate Commerce’ Commission, 245 I. C. C. 11, requiring the appellant railroads to cease and desist from maintaining certain absorption rules and practices found to be unduly discriminatory and unreasonable, and therefore offensive to the Interstate Commerce Act, 49 U. S. C. §§1(6), 3(1), 15(1).
Upon complaint of the Minneapolis Traffic Association, representing grain interests in Minneapolis, St. Paul, and Duluth, Minnesota, and Superior, Wisconsin, the Commission instituted an inquiry into the practices of the rail carriers at the complaining markets, with respect to absorption of connecting-line switching charges on so-called noncompetitive or local shipments (i. e., originating at points served by only one railroad) of grain, grain products, and seeds. After extensive hearings, the Commission found that at the complaining markets the railroads generally absorbed the switching charges on competitive traffic (i. e., originating at points served by more than one rail
348	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. 8.
road) but not on noncompetitive or local traffic, while at all other markets in central-western territory the carriers absorbed the switching charges on both competitive and noncompetitive shipments. This practice, the Commission concluded, was wholly at variance with the general purpose of the grain-rate structure to bring about “an adjustment under which the rates to and from all western markets would be on relatively the same level, or an adjustment under which the rates to and from the markets would approximate a mileage parity.” 245 I. C. C. 11, 13. It was further found that the carriers’ absorption practices at the complaining markets were supported neither by revenue considerations nor sound transportation factors, and that the widespread absorption of switching charges on noncompetitive traffic at other important markets was strong evidence of the reasonableness of such practice and of the unreasonableness of the carriers’ refusal to absorb such charges at the complaining markets. Upon the basis of these findings, the Commission entered the order challenged on this appeal.
Neither the validity of the Commission’s findings nor its compliance with procedural safeguards is assailed here. The order is attacked on the ground that the Commission has exceeded its constitutional and statutory powers.
Section 1 (6) of the Interstate Commerce Act requires common carriers subject to the Act “to establish, observe and enforce . . . just and reasonable regulations and practices affecting classifications, rates, or tariffs, . . . and all other matters relating to or connected with the receiving, handling, transporting, storing, and delivery of property . . . which may be necessary or proper to secure the safe and prompt receipt, handling, transportation, and delivery of property . . . upon just and reasonable terms, and every unjust and unreasonable classification, regulation, and practice is prohibited and declared to be un-
NORTHERN PACIFIC RY. CO. v. U. S. 349
346	Opinion of the Court.
lawful.” Section 3 (1) makes it unlawful for common carriers to give “any undue or unreasonable preference or advantage to any particular person,... locality,... region, district, territory, or any particular description of traffic, in any respect whatsoever; or to subject any particular person, . . . locality, . . . region, district, territory, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . .” Section 15 (1) authorizes and empowers the Commission, upon finding that a practice of carriers is “unjust or unreasonable or unjustly discriminatory,” to make an appropriate cease-and-desist order.
We are of opinion that these statutory provisions furnish ample authority for the order made here by the Commission. The findings sufficiently support the Commission in undertaking to remove a discrimination as between grain shippers and markets. As was noted only the other day in Board of Trade v. United States, 314 U. S. 534, 548, involving another phase of the elaborate and delicately balanced grain rate structure, “We certainly have neither technical competence nor legal authority to pronounce upon the wisdom of the course taken by the Commission.” Since the action of the Commission was based upon relevant transportation considerations and the Constitutional contentions are plainly without merit, the order will not be set aside. Los Angeles Switching Case, 234 U. S. 294; Board of Trade v. United States, supra.
Affirmed.
350	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
PEYTON v. RAILWAY EXPRESS AGENCY, INC.
ET AL.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 903. Submitted May 1, 1942.—Decided May 25, 1942.
1.	A suit against a single interstate carrier to recover damages resulting from a negligent failure to deliver a package shipped interstate by express is a suit arising under a law regulating commerce, viz., under the Carmack Amendment, as amended,—of which the District Court has jurisdiction irrespective of the amount involved. Jud. Code §24(8). P. 352.
2.	Whether a suit arises under a law of the United States must appear from the plaintiff’s pleading, not the defenses which may be interposed to, or be anticipated by it. A pleading that adequately discloses a present controversy dependent for its outcome upon the construction of a federal statute satisfies this requirement. P. 353.
124 F. 2d 430, reversed.
Certiorari, 315 U. S. 793, to review a judgment sustaining a dismissal by the District Court for want of jurisdiction of an action against the express company for nondelivery.
Robert L. Peyton submitted pro se.
Messrs. Harry S. Marx and Charles C. Evans submitted for respondents.
Per Curiam.
Petitioner brought this suit in the District Court for the Western District of Texas, alleging that respondent, known to be an interstate carrier, had negligently failed to deliver to the addressee in California a package shipped from Waco, Texas, and claiming damages in the sum of $750,-000. The trial court ordered petitioner to attach to his complaint a copy of the express receipt which he received
PEYTON v. RY. EXPRESS AGENCY. 351
350	Opinion of the Court.
upon delivering the package to respondent. This receipt contained a $50 valuation. Thereupon the court granted respondent’s motion to dismiss the complaint on the ground that the amount in controversy was less than the $3,000 necessary to sustain jurisdiction under 28 U. S. C. § 41(1), Jud. Code § 24(1). The Court of Appeals for the Fifth Circuit affirmed. We granted certiorari to inquire whether the suit could be maintained under 28 U. S. C. § 41(8), Jud. Code § 24(8), granting the district courts jurisdiction “Of all suits and proceedings arising under any law regulating commerce,” irrespective of the amount involved.
The pertinent act of Congress is 49 U. S. C. § 20(11), originally the Carmack Amendment of 1906, 34 Stat. 593, since amended several times to its present form. The section requires an interstate common carrier receiving property for shipment to issue a receipt or bill of lading. The carrier is made liable to the holder “for any loss, damage, or injury to such property caused by it” or connecting carriers. If the injury does not occur on the initial carrier’s line, but it responds in damages, it is entitled to recover over from the responsible carrier. Further, the initial carrier is made liable to the shipper for full damages sustained, notwithstanding any limitation of liability in the receipt or bill of lading, with the exception, important here, that where a carrier by authority or direction of the Interstate Commerce Commission maintains rates dependent upon the value of the property declared in writing by the shipper, such declaration also limits liability of the carrier for loss or damage to an amount not in excess of the declared value.
Following the Carmack Amendment, this Court in several cases upheld the power of the receiving carrier to limit its liability to an agreed valuation, made to obtain the lower of two or more rates. See Adams Express Co. v.
352	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. 8.
Croninger, 226 U. S. 491; Missouri, K. & T. Ry. Co. v. Harriman, 227 U. S. 657; Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278. The so-called First Cummins Amendment of March 4,1915, 38 Stat. 1196, prohibited in general any such limitation of liability. By the Second Cummins Amendment of August 9, 1916, 39 Stat. 441, Congress adopted the present provisions authorizing limitation of liability in the manner already noted, and substantially restored the rule of Adams Express Co. v. Croninger, supra.
Respondent, confessing error, asserts that under § 20 (11) as it now stands, a suit brought against a single interstate carrier for its negligent non-delivery, is one not merely to enforce a common law liability limited by an Act of Congress; but that petitioner’s cause of action has its origin in and is controlled by such Act, and so “arises under” it. Any doubts as to the correctness of this position 1 are resolved by the Act of January 20, 1914, c. 11, 38 Stat. 278, 28 U. S. C. § 71, regulating removal to the federal courts of suits brought under the Carmack Amendment in the state courts.
After the Carmack Amendment a conflict of decisions had developed in the lower federal courts on the question whether suits for damages brought against interstate carriers under the amendment were suits “arising under” an act regulating commerce, so that their removal from state to federal district courts would be permitted. McGoon v. Northern Pacific Ry. Co., 204 F. 998; Storm Lake Tub & Tank Factory v. Minneapolis & St. L. R. Co., 209 F. 895; Adams v. Chicago G. W. Ry. Co., 210 F. 362. The deci-
1 Compare Cincinnati, N. O. & T. P. Ry. Co. v. Rankin, 241 U. 8. 319,326; Chicago & E. I. R. Co. v. Collins Co., 249 U. S. 186,191, with Adams Express Co. v. Croninger, 226 U. S. 491, 505; Missouri, K. & T. Ry. Co. v. Harriman, 227 U. S. 657, 672; Southern Ry. Co. V. Prescott, 240 U. S. 632,639-40.
PEYTON v. RY. EXPRESS AGENCY. 353
350	Opinion of the Court.
sion in the McGoon case, sustaining removal jurisdiction irrespective of the amount in controversy, was followed by the removal of many small suits against carriers to the federal district courts. Congress ended this practice by the Act of January 20,1914, which forbade removal of suits under the Carmack Amendment involving less than $3,000.
The report of the House Judiciary Committee on H. R. 9994, 63d Cong., 2d Sess. (which was the same in substance as S. 3484, which became the 1914 law), expressly recognized the effect and authority of the decision in the McGoon case. In prohibiting removals where less than $3,000 is in controversy, instead of imposing the $3,000 limitation directly on all suits brought in the federal courts under the Carmack Amendment, Congress recognized that such suits arise under a law regulating commerce within the meaning of 28 U. S. C. § 41 (8), and sanctioned the exercise of original jurisdiction by the district courts in such cases. See H. Rep. No. 120, 63d Cong., 2d Sess.; also 51 Cong. Rec. 1327,1544-1548.
Whether a suit arises under a law of the United States must appear from the plaintiff’s pleading, not the defenses which may be interposed to, or be anticipated by it. Petitioner’s pleading, which we have summarized, satisfies this requirement, since it adequately discloses a present controversy dependent for its outcome upon the construction of a federal statute. See Tennessee v. Union & Planters’ Bank, 152 U. S. 454; Louisville & Nashville Ry. Co. n. Mottley, 211U. S. 149; The Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 25; Taylor v. Anderson, 234 U. S. 74; Gully v. First National Bank, 299 U. S. 109, 113.
Reversed.
461263°—43-23
354	OCTOBER TERM, 1941.
Counsel for Parties.	316 U. S.
STEWART et al. v. UNITED STATES.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 848. Argued April 27, 28, 1942.—Decided May 25, 1942.
1.	The findings in this case, supported by substantial evidence, establish that the Mexican grant to Castro, as confirmed by the Board of Land Commissioners, and conveying Mare Island, in San Pablo Bay, California, does not include the large area of tule marsh claimed by the petitioners in this case. P. 358.
2.	Under Mexican law the ownership of land bordering on navigable water extends to the line of the highest high tide. P. 359.
3.	The decree of the Board of Land Commissioners confirming the grant to Castro and fixing the boundary is to be interpreted according to the common law in force in California at the time it was entered. Under that law, the boundary would be the line of ordinary high water mark. P. 359.
4.	Where a decree confirming a Mexican grant described the land confirmed as "a place . . . called . . . Mare Island . . .,” adding that being an island it was bounded by the water’s edge, evidence of what was commonly known as Mare Island is admissible, not to attack the decree but to interpret and apply it in identifying the boundaries intended. P. 362.
121 F. 2d 705, reversed.
29 F. Supp. 59, affirmed.
Certiorari, 315 U. S. 791, to review a decree reversing a decree of the District Court which dismissed a bill by the United States seeking to quiet title to an area of marsh land lying in the vicinity of the Mare Island Navy Yard.
Messrs. Robert L. Lipman and Allan P. Matthew, with whom Messrs. J. M. Mannon, Jr. and A. Crawford Greene were on the brief, for petitioners.
Mr. Richard H. Demuth, with whom Solicitor General Fahy, Assistant Attorney General Littell, and Messrs. Oscar A. Provost, H. G. Ingraham, and Philip Buettner were on the brief, for the United States.
STEWART v. UNITED STATES. 355
354	Opinion of the Court.
Mr. Justice Roberts delivered the opinion of the Court.
This is a suit by the United States to quiet its title to a large area of tule marsh lands lying northwest of the Mare Island Navy Yard in San Pablo Bay in California. United States v. O’Donnell, 303 U. S. 501, was a similar suit to quiet the Government’s title to marsh lands lying between the high land on which the Navy Yard is located and the lands in controversy, which terminated favorably to the Government. In both cases, the Government de-raigned title through a grant by the Mexican Governor of California to one Castro, and certain mesne conveyances by Castro and his grantees. In both cases, the defendants claimed title under the State of California, on the theory that the State acquired the lands under the Swamp Lands Act of September 28, 1850.1 The O’Donnell case involved the validity of the grant to Castro, the validity of the decree of the Board of Land Commissioners confirming that grant, the question of priority of right as between the United States as purchaser of the land granted to Castro and the State of California and its grantees under the Swamp Lands Act. The decision in that case settled these questions in favor of the Government.
In the O’Donnell case, it was contended that the lands there in controversy were not embraced within the grant to Castro. The District Court found against the contention and the Circuit Court of Appeals approved the finding. We refused to review the concurrent findings of the lower courts.
In the present case, the petitioners do not contest the rulings in the O’Donnell case. Their defences are that their lands, which they hold under patents issued for swamp and overflowed lands, under the Swamp Lands Act, were never part of the land granted to Castro by the Mexi-can Governor; and further that, if they were, the decision ^c. 84,9 Stat. 519,43 U. S. C. § 982.
356	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
in San Francisco Savings Union v. Irwin, 28 F. 708, affirmed 136 U. S. 578, constitutes a ruling as to their title which ought now to be followed. In addition, they claim that the action of the United States is barred by the Act of March 3,1891,2 which prohibits suit by the United States to annul any patent after six years from the date of issue. They also contend that laches, estoppel, and failure to undertake to do equity as a condition of obtaining the desired relief require a decree dismissing the bill.
The case was tried before the same District Judge who presided at the trial of the O’Donnell case. Upon the basis of the pleadings and proofs, he made, inter alia, the following findings of fact bearing upon the defence that the lands in controversy were not included in the grant to Castro or the confirmation thereof, and hence never passed to the United States as ultimate transferee of Castro’s title:
That none of the lands involved was ever a part of Mare Island.
That none of these lands was, either at the time of the grant to Castro or at the time of the proceedings for confirmation of the grant, a part of the lands known as, or referred to as, or by the name of, Mare Island.
That none of the lands was embraced in or covered by the grant of Mare Island to Castro.
That none of the lands was ever occupied by, or in possession of, Castro.
That none of the lands was claimed as a part of, or to be a part of, Mare Island.
That none of the lands was covered by, or embraced within, the confirmation proceedings or the order of confirmation of the Board or the decree of the District Court confirming the order of confirmation of the Board.
2 c. 561, § 8, 26 Stat. 1095, 1099.
STEWART v. UNITED STATES. 357
354	Opinion of the Court.
That none of the lands was purchased or acquired by the United States as part of its purchase of Mare Island.
The judge also further made findings that the petitioners’ title was derived from the United States through the State of California under the Swamp Lands Act. He concluded that the action was barred by the Statute of Limitations and that the United States was not the owner of the lands in suit.3
The Circuit Court of Appeals reversed the decree by a vote of 2 to l.4 The dissenting judge said: “The District Court found, in effect, that the ‘place’ which at the time of the grant to Castro and at the time of the confirmation to Bissell and Aspinwall was called Isla de la Yegua or Mare Island, did not include any of the land here in controversy. The finding is amply supported by evidence.”
The majority of the court did not overrule the findings of the District Judge above outlined. After making a reference to the evidence, they said: “But whatever may be the fact there is no occasion to inquire into the extent of Castro’s occupancy, or into the matter of early repute.” They held that, whatever the extent of the Mexican grant to Castro, the decree of the Board of Land Commissioners, made pursuant to the Act of March 3, 1851,5 established a definite boundary—the line of ordinary high water mark—which was controlling. It is conceded that a portion of the marsh lands embraced in Survey No. 34, which are the lands involved in the O’Donnell case, is, and has been, above ordinary high water mark. The court held that there was some land above that mark in the narrow neck of land conveyed by Survey No. 34 and
3	29 F. Supp. 59.
4	121 F. 2d 705.
5	c. 41, 9 Stat. 631.
358	OCTOBER TERM, 1941.
Opinion of the Court.	316 IT. S.
connecting the high land on which the Navy Yard is constructed with the large tract of about 7500 acres covered by Survey No. 569, which constitutes the land in this suit. Construing the decree of the Commissioners in accordance with the common law of California in force at the time of the confirmation of the Castro grant, the Court held that the tract confirmed to Castro’s grantees comprised not only the high land on which the Navy Yard stands but the narrow strip to the northwestward embraced in Survey No. 34, and the large tract of tule marsh lying still farther to the northwestward embraced in Survey No. 569. On account of the importance of the questions involved, we granted certiorari.
We are of opinion that, in the light of the District Court’s findings, which are undisturbed, the Circuit Court of Appeals erred in reversing the District Court’s judgment. It is evident that the Circuit Court of Appeals accepted, or at least did not overrule, the findings of the District Judge. If, as we think, these findings were supported by substantial evidence, there is no principle of law which requires a decision that the decree of confirmation extended the tract actually granted to Castro so as to embrace the marsh lands, title to which is in controversy.
The record before the Commissioners shows that, on October 30, 1840, Castro petitioned that he be granted an island called “Mare Island,” that the Governor ad interim granted his petition on October 31,1840, and that on May 2, 1841, the Governor of the Californias, one Alvarado, confirmed Castro’s ownership in fee of the same island “in all its extent,” which he designated as “the Island named La Yegua.” There was no evidence before the Commissioners, and none in the trial of this case, to the effect that Castro occupied any portion of the tule marsh in controversy. The testimony before the Commissioners
STEWART v. UNITED STATES. 359
354	Opinion of the Court.
was devoted almost entirely to the question of the authenticity and good faith of the grant to Castro. The only evidence with respect to the size or extent of the island was that given by a witness, Vallejo, who resided near it. He testified that the island was two and one-half miles in length and contained about half a league of land. This description does not include the marsh land involved in the present case but covers only the high land where the Navy Yard is located.
The petition of Bissell and Aspinwall for a confirmation to them of title to the lands granted to Castro by the Commissioners was filed August 31, 1852. It stated that the subject of the grant was “the Island called ‘Isla de la Yegua’ ” and asked that the Commissioners confirm to them the said “tract of land.” The decree of the Commissioners, after stating that the claim was valid and the application for confirmation should be allowed, continued: “The place of which confirmation is hereby given is situate in the Bay of San Francisco and is called Tsla de la Yegua’ or Mare Island and being an Island is bounded by the water’s edge.”
It is undisputed that the original grant to Castro was governed by the Mexican law and that, under that law, the title of an owner of land bordering on navigable waters ran to the line of the highest high tide. The record contains evidence indicating that, at such highest tide, the neck of land to the northwestward of the high land on which the Navy Yard is located was covered, at least at certain points, by water. This fact could not alter boundaries definitely fixed by the Commission’s decree, which is to be interpreted according to the common law in force in California at the time it was entered. Under the common law, the boundary would be the line of ordinary high water. But the boundary of the Mexican grant is of some significance in determining what the Mexican Gov
360	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
ernor intended to, and did in fact, grant to Castro, especially as both grant and confirmation referred to the tract as what is named or called Mare Island.
It is to be observed that the decree of confirmation refers not to a tract of land but to a “place” and to the place which “is called” Mare Island.
At the time the decree of confirmation was entered, several early maps of the area existed which, although they did not designate Mare Island by any name, showed the high land as entirely surrounded by water. They indicate a channel across the low neck of marsh land to the westward of the high promontory on which the Navy Yard is constructed.
Coming to about the date of the grant and confirmation, we find several significant maps. One of these, made by an Army lieutenant in 1848, shows an actual break at the northerly end of the high land and indicates that, at this point, water covered the land, at least at high tide. The island thus delimited is marked on the map “Mare Island” and the low tule marsh to the northwestward is not comprehended in the area so designated. Another, made by one Ellis in 1852, marks the high land “Mares Island.” All the area to the northwest of the high land, including the land in controversy, is shown as water. A third, made by one Ringgold, a Commander of the Navy in 1850, shows the swamp land to the northwest of what is now the Navy Yard tract but designates only the latter as Mare Island.
Seven United States Coast and Geodetic Survey Charts, dated respectively 1851, 1851, 1856, 1859, 1861, 1863, and 1915, designate only the high land by the name of “Mare Island.” The United States Geological Survey prepared maps of the Napa quadrangle and the Mare Island quadrangle in 1902 and 1916. In each, the high land is marked Mare Island and the land in controversy is marked “Island No. 1.” The State Geological Survey of California pre-
STEWART v. UNITED STATES. 361
354	Opinion of the Court.
pared a map in 1873 which applies the name “Mare Island” to the high land.
San Francisco Savings Union v. Irwin, supra, was tried about 1885. The Coast and Geodetic Survey prepared a map for use in that case which shows only the high land as constituting Mare Island. In the trial of the instant case, it was testified that the land in controversy has been for some years known as “Cross Island.”
Shortly before the Government purchased Mare Island, and as a basis of the purchase, a Board of Officers known as the Sloat Board reported on the island as a site for a navy yard. This report was made before the confirmation proceedings were concluded. One of the plans attached to the report purports to be a plan of Mare Island, showing its topography. The plan covers only the high land. The report states that Mare Island is “bounded on the east by Mare Island Straits which separates it from the City of Vallejo on the west by the bay of San Pablo, and on the north by a large tract of tule land, extending several miles in the direction of Sonoma.” The report speaks of the “north end” of the island as more uniform than the southerly end, so that it may easily be reduced to a convenient grade. These remarks cannot well apply to the tule marsh in question. The report states that the island contains, “including the tule opposite Vallejo, about 900 acres.” There is a further statement that the whole length of the island is about two miles. This describes only the high land, as the length would be about ten miles if the tule marsh in controversy were included.
The foregoing facts seem to us to furnish adequate support for a finding that what was granted to Castro was the high land known at the time as Mare Island, and not the great extent of tule marsh lying to the northwestward of the former which was apparently not occupied or claimed by Castro or commonly understood to be a part
362	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
of the land called Mare Island. All that the decree purported to confirm was the title to a “place . . . called ... Mare Island.” Even if the high land was connected by a narrow neck with the tule marsh to the northwestward, that high land might still be called an island either because the narrow neck of low marsh land to its westward was sometimes flooded or because the name “island” was colloquially applied to a piece of land which a geographer would more accurately call a peninsula.6
The Court of Appeals, however, held, and the Government here urges, that the facts recited are immaterial in view of the terms of the decree of confirmation. The undoubted principle that, when such a decree defines the boundaries of a tract with precision, the decree cannot be attacked on the ground that the boundaries named were erroneous,7 is invoked. But the question remains, whether the petitioners’ contention in this case amounts to such an attack. The description in the decree of confirmation is at best but a vague one. It is of a “place . . . called . . . Mare Island.” If there were nothing more, it would be competent to show what was in fact the place so known or called. The Government’s contention is, however, that, because the Commission added that, being an island, it was bounded by the water’s edge, this supererogatory statement gives a fixed and definite boundary which overcomes any vagueness inherent in the designation of the place granted. We think no such strict
6	It is common knowledge that lands not in fact surrounded by water are sometimes called islands. See, Century Dictionary; Webster’s New International Dictionary; Encyclopedia Brittanica, 14th Ed., Vol. XII, p. 715; Vol. Ill, p. 381. And compare California State Geological Survey Map of 1873, showing lands called Deer Island, Simms Island, and Green Island.
7	United States v. Halleck, 1 Wall. 439; Higueras n. United States, 5 Wall. 827; United States v. Hancock, 133 U. S. 193.
STEWART v. UNITED STATES. 363
354	Opinion of the Court.
rule has been applied in the interpretation of deeds or, indeed, of decrees of confirmation of Mexican grants in like circumstances. On the contrary, courts have repeatedly resorted to evidence of what was commonly known and called a ranch, or lot, or other place, in order to correct erroneous boundaries stated in a deed description or a decree of confirmation.8 Thus to explain the meaning and extent of a decree is not to attack it for error, but to reconcile all of the descriptive language used to designate the tract title to which is confirmed.
We are of opinion that the evidence in question was of probative value; that its reception and consideration did not run counter to the rule that the decree of confirmation was not open to attack by reason of erroneous description of the land confirmed, and that the proofs furnished a basis for a finding of fact that the land in controversy was not a part of that granted to Castro and confirmed to his vendees. This view renders it unnecessary to discuss the other questions presented by the petitioners. The judgment of the Circuit Court of Appeals is reversed and that of the District Court is affirmed.
Reversed.
8	Parker v. Kane, 22 How. 1; United States v. De Haro, 25 Fed. Cas. 803; Piper v. True, 36 Cal. 606; Haley v. Amestoy, 44 Cal. 132; Wise v. Watts, 239 F. 207.
364	OCTOBER TERM, 1941.
Opinion of the Court.	316 U.S.
WILLIAMS MANUFACTURING CO. v. UNITED SHOE MACHINERY CORP.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH DISTRICT.
No. 332. Argued February 13, 1942.—Decided May 25,1942.
2.	In a patent infringement suit, concurrent findings of the two lower federal courts to the effect that combinations claimed, though involving old mechanical constructions, combine these in the machine in a new way, so as to produce a new result, are findings of fact which will not be disturbed by this Court where there is evidence to support them. P. 367.
2.	A claim in a patent for a new combination of specified means, applicable to a portion of an old machine, which describes or refers to the older mechanism in order to show the application and operation of the improvement, is not to be construed as embracing the old as well as the new. P. 368.
3.	Certain claims of a patent to McFeely for improvements in automatic heel-lasting machines, sustained. Pp. 364, 370.
121 F. 2d 273, affirmed.
Certiorari, 314 U. S. 600, to review the affirmance of a decree of the District Court, 29 F. Supp. 1015, sustaining certain claims of a patent, in a suit for infringement.
Mr. H. A. Toulmin, Jr. for petitioner.
Mr. Harrison F. Lyman, with whom Messrs. Charles E. Hammett, Jr. and Thomas J. Ryan were on the brief, for respondent.
Mr. Justice Roberts delivered the opinion of the Court.
The suit was for the infringement of Claims 6,23,42,85, and 91 of the McFeely Patent No. 1,558,737 for improvements in automatic heel lasting machines. The District Court held the claims valid and infringed.1 The Circuit Court of Appeals affirmed.2
129 F. Supp. 1015.
8121 F. 2d 273.
WILLIAMS CO. v. SHOE MACH. CORP. 365
364	Opinion of the Court.
The defendant sought certiorari on the ground that the claims were invalid under recent decisions of this court because they constituted attempts to repatent a broad combination of old devices—bed lasters and automatic tackers—and embodied only aggregations of new unpatentable mechanisms with old mechanical combinations. In pressing us to grant the writ, the petitioner insisted that it desired no retrial of the facts but merely a proper application of the law to the facts found by the courts below. We granted the writ.
In the manufacture of shoes, after the upper, the lining, and the counter have been placed on a wooden last, and an insole has been tacked to the last, the protruding edges of the materials are flattened over the insole and tacked down at the toe and shank of the shoe. The next operation is “heel seat lasting,” which consists of conforming the upper materials and insole snugly to the contour of the heel of the last and fastening them down with tacks. Originally this was done by hand. Later so-called “bed” machines were used which employed horizontally moving plates, called “wipers,” to flatten the projecting materials over the heel seat, where they were tacked by hand. Heel lasting on a bed machine involves the repeated use of levers and a foot treadle, and the result is not uniform.
March 2,1915, McFeely obtained a patent for a machine which would automatically perform, in one power stroke, the wiping and tacking necessary to complete the process of heel seat lasting. In this patent he claimed numerous combinations of means to accomplish specific steps in the process, amongst others combinations to effect the clamping of the last, and positioning it during the process, and to operate the wipers and the tackers in proper relation to the last. A declared purpose was that the machine should be able to last the heels of shoes of different sizes. One machine was built in accordance with the patent and used for some time. It was found to work satisfactorily on
366	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
shoes of a small range of sizes, but not to work on shoes of a wide range of sizes as would be required in the operations of the ordinary factory.
October 27,1925, McFeely obtained the patent involved in this case for improvements3 of the lasting machine described in his earlier patent. The improvements embodied in the claims in suit had to do with a new combination of elements for clamping the last in the machine, a new combination of elements for the operation of wipers and tackers in fixed relation to each other and to the heel of the last, and a new combination of means for positioning the last vertically and automatically altering the position during the operation. A manual adj ustment was a part of each of these combinations by which the heel clamping, the wiping and tacking, and the vertical positioning mechanisms could be adjusted in advance for different sizes of shoes. The respondent is the assignee of both McFeely patents.
The petitioner purchased from a German maker, and used, four machines which were found by the courts below to be exact copies of the respondent’s commercial machines made under the patent in suit. So thorough was the imitation that even minor features not covered by the patent were copied. At the time of the trial, alterations had been made in the petitioner’s machines, but the courts below found that these were for the purpose of avoiding infringement and that they were not effective to that end.
If the petitioner’s statements in support of the application for certiorari are taken at face value, the point for decision is extremely narrow. In argument, however, the * S.
8 “Any person who has invented or discovered any new and useful . ; . machine ... or any new and useful improvements thereof . • • may . . . obtain a patent therefor.” R. S. 4886, as amended, 35 U.
S. C. § 31.
WILLIAMS CO. v. SHOE MACH. CORP. 367
364	Opinion of the Court.
petitioner sought to overturn the concurrent findings below and to have us redetermine the question of the novelty and usefulness of the improvements described in the combination claims held valid and infringed.
The courts below have concurrently found that none of the earlier patents cited, including that of McFeely, embodied the combinations of the challenged claims covering means for clamping and holding the last, means for the movement of wipers and tackers in fixed relation to each other, and means for the timed vertical positioning of the last during the power stroke of the machine, each combination including means for manually adjusting the mechanism in advance for different sizes of shoes. These findings are to the effect that the new combinations, while they involve old mechanical constructions, combine these in a new way so as to produce an improved result. These are findings of fact,4 despite the petitioner’s apparent contention to the contrary, and we will not disturb such concurrent findings where, as here, there is evidence to support them.5 The claim that the combinations are merely of old elements, which perform no new function and produce no new result, must be overruled.
We come to the petitioner’s contention that the courts below have held the patent valid and infringed on the theory that the improvements and adjustments disclosed in the claims entitle McFeely to repatent the entire combination of the old devices, known as bed lasters and automatic tackers. Petitioner argues that they have so held only because the mechanism of the patented machine permits of its operation upon a wider range of sizes of shoes
4	Battin v. Taggert, 17 How. 74,85; Bischoff v. Wethered, 9 Wall. 812, 814; Thomson Spot Welder Co. v. Ford Motor Co., 265 U. S. 445, 446; Stilz v. United States, 269 U. S. 144,147.
5	Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 416,422; Adamson v. Gilliland, 242 U. S. 350.
368	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
than the machine earlier patented, and that it does so operate merely because of three trifling mechanical adjustments which it embodies.
The contention is not in accord with the holdings below. It is true that both courts found that manual adjustments are provided which are not found in the earlier McFeely patent or in the prior art as applied to the three combinations embodied in the claims in suit. But the findings do not stop there. In respect of each claimed combination, both courts have found that they embody other improvements, in addition to mere manual preliminary adjustments, and that each combination exhibits invention in that its elements cooperate in a new and useful way to accomplish an improved result.
The petitioner, however, contends that the breadth of the claims in suit is such that, instead of patenting the combinations claimed as improvements over the prior art, and restricting the claims to the improvements, the patentee sought to blanket every machine which combines the old bed laster with the equally old automatic tacking device. It is said that our decisions in Bassick Mjg. Co. n. Hollingshead, 298 IT. S. 415, and Lincoln Engineering Co. v. Stewart-Warner Corp., 303 U. S. 545, forbid any such extension of the patent monopoly.
We think, however, that each of the claims is confined to a combination of specified means applicable only to a restricted portion and function of the whole machine. In stating his claims, the patentee sometimes says “a machine of the class described having, in combination,...” Obviously, no machine will infringe which does not have in combination the means specified in each of the claims for accomplishing the particular portion of the total operation covered by the claim. Other claims refer to “a lasting mechanism of the class described having, in combination, . . The same comment is applicable. Other claims read: “In a machine of the class described, the combina-
WILLIAMS CO. v. SHOE MACH. CORP. 369
364	Opinion of the Court.
tion . . Such preliminary statement is commonly and properly used to specify the type of machine in which the claimed subsidiary combination of elements works an improvement over the prior art.® In describing the novel combinations embodied in the claims, it was necessary to make reference to certain portions of the machine in connection with which the new combinations were to operate and with which they were to dovetail,* 7 but, in mentioning these other mechanical parts, the claim does not purport to embody them as elements of the claimed combination. To construe such a claim for a combination of new elements intended to be embodied in some well recognized mechanical aggregation, such as a sewing machine or a washing machine, as a claim covering all the mechanical details, or all the well known parts of the machine, would be to nullify every patent for an improvement in a type of machine long in use and would invalidate thousands of patents for improvements in standard machines. It would be difficult to describe an improvement in a washing machine without naming such a machine as the thing to which the patent is addressed, and equally difficult to refrain from referring to various parts of the machine, such as the tub or the motor which actuates the washer. But it has never been thought that a claim limited to an improvement in some element of the machine is, by such reference, rendered bad as claiming a monopoly of tubs or motors used in washing machines.
’Compare e. g. Grier v. Wdt, 120 U. S. 412, 420, 421; Morley Machine Co. v. Lancaster, 129 U. S. 263,266; Keystone Manufacturing Co. v. Adams, 151 U. S. 139,142; Deering n. Winona Harvester Works, 155 U. S. 286, 289, 290; Boyd v. Janesville Hay Tool Co., 158 U. S. 260, 264; Kokomo Fence Machine Co. v. Kitselman, 189 U. S. 8, 10, 14; Altoona Publix Theatres v. American Tri-Ergon Corp., 294 U. S. 477, 482.
7 Compare McCormick v. Talcott, 20 How. 402, 404; Loom Company v. Higgins, 105 U. S. 580,586.
461263°—43-24
370	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Bassick Mjg. Co. v. Hollingshead, supra, and Lincoln Engineering Co. v. Stewart-Warner Corp., supra, lend no support to the petitioner’s argument. Those were suits for contributory infringement. In the Bassick case, the invention was of an improved pin fitting for receiving grease. The combination claimed was stated as a combination of a grease gun, a coupler, and a pin fitting of the improved type. It was sought to convict one who sold grease guns, common in the prior art, of contributory infringement because the seller knew, and intended, that the guns should be used with the improved pin fitting. The effort was to extend the monopoly embodied in the improved pin fitting so as to prevent sale or use of well known grease guns of the prior art, although whatever was novel in the improved pin fitting was peculiar to itself and had nothing to do with the grease gun commonly used in connection with all pin fittings. Had the claim merely recited that it applied to an improved type of pin fitting to be used in connection with grease guns and couplers, the claim .for the pin fitting would have been good, and would not have been rendered bad by the statement that the fitting was intended for use in connection with those other instrumentalities.
The Lincoln Engineering case went on the same principle.
The present suit for infringement is not for the use of an automatic bed lasting and tacking machine as such. It is for the use in such a machine of improvements of certain features of the machine. The respondent does not pretend to fix liability on the petitioner for contributory infringement by reason of the use of an automatic power driven lasting and tacking machine which does not employ the novel improvements of the combinations claimed, and could not do so. It is admitted, as it must be, that the petitioner is free to use the machine shown in the first Mc-Feely patent, which has expired, or any other automatic
WILLIAMS CO. v. SHOE MACH. CORP. 371
364	Black, J., dissenting.
lasting and tacking machine which does not embody the three improvements covered by the claims in suit.8 It is not free, however, to use such a machine if it embodies any one of the three combinations embraced in those claims respectively. The use of these combinations is the basis of its liability for infringement.
The decree is
Affirmed.
Mr. Justice Black, dissenting, with whom Mr. Justice Douglas and Mr. Justice Murphy concur.
I
In 1873, Mr. Justice Bradley, speaking for this Court in Carlton v. Bokee, said: “We think it proper to reiterate our disapprobation of these ingenious attempts to expand a simple invention of a distinct device into an all-embracing claim, calculated by its wide generalizations and ambiguous language to discourage further invention in the same department of industry and to cover antecedent inventions. Without deciding that a repetition of substantially the same claim in different words will vitiate a patent, we hold that where a specification by ambiguity and a needless multiplication of nebulous claims is calculated to deceive and mislead the public, the patent is void.” 17 Wall. 463, 471-472. I believe that the patent of which the five claims now held valid are a part embodies every one of the vices referred to by Mr. Justice Bradley, and many more besides.
I recognize that the automatic power-driven heel seat laster, the machine to which these five claims relate, is a great technological achievement. But it is not the work of a single person, nor can it be attributed to any one generation. On the contrary, it represents the sum of gradual developments wrought by the skill, perseverance,
8 Seymour v. Osborne, 11 Wall. 516, 541,548.
372	OCTOBER TERM, 1941.
Black, J., dissenting.	316 TJ. S.
and creative genius of countless persons throughout many centuries. To this finished machine, contributions have been made by those who first harnessed steam, gas, and electricity to machinery, as well as those who discovered and used in combination cams, pivots, pulleys, belts, latches, triggers, springs and spring latches, brakes and brake blocks.
The exact date of the first use of machines in the manufacture of shoes is not known. But we know that, in 1790, Thomas Saint secured a patent in England on a machine for the fastening of soles to uppers; and that, in 1810, M. I. Brunel secured a patent in this country on a machine to perform the same function. The progress of the art for the next fifty years culminated in the stitching machine jointly patented by Blake and McKay in 1860. By 1876, this and subsequent McKay shoe machines were earning more than a half million dollars in annual patent royalties for him, and had given him the dominant position in the industry. During this period another current of invention produced the cable nailing machine which cut nails and drove them automatically. And in 1883, Jan Ernst Matz-eliger invented and patented a machine which “could simultaneously and in a minute’s time hold the last in place to receive the leather; move it forward step by step so that the other coaching parts might draw the leather over the heel; properly punch and grip the upper and draw it down over the last; lay the leather properly at the heel and toe; feed the nails and hold them in position for driving; and then discharge the completed shoe from the machine.”1 The foregoing inventions and numerous others patented and put into use by the close of the century completely transformed the nature of shoe manufacturing. Reviewing these and other developments, the United States Census Report of 1900 concluded that “the
1 Dictionary of American Biography, “Matzeliger, Jan Ernst.”
WILLIAMS CO. v. SHOE MACH. CORP. 373
364	Black, J., dissenting.
genius of the American inventor has provided for every detail of shoemaking, even the smallest processes being performed by mechanical devices of some kind.”2
The United Shoe Machinery Company was formed in 1899. It combined in one enterprise the more important companies in the shoe machinery industry at the time, and brought under unified control the multitude of patents which those companies owned. Since that time, the United Shoe Machinery Company or its parent, the United Shoe Machinery Corporation, which is the respondent in this case, has continuously and overwhelmingly dominated the industry. The shoe machinery patents which the respondent had acquired by 1918 were recognized by this Court to be “too great in number for explanation or enumeration.” United States v. United Shoe Mach. Co., 247 U. S. 32, 40. In 1920, the Federal District Court for the Eastern District of Missouri found that the respondent controlled, through its system of leasing, at least 95% of all the shoe machinery used in the United States. See United Shoe Mach. Co. v. United States, 258U.S. 451,455.
The narrow field into which the patent in controversy was projected had already been so crowded by prior patents, a multitude of which were owned by the respondent, that the area left for patentable invention was very small. As the brief treatment in the Court’s opinion indi-
* Census Reports (12th Census, 1900), Vol. IX, part III, 756. On the development of the shoe machinery industry, see Gannon, Shoe Making, passim, and his article “Shoe Industry in the United States” in Encyclopedia Americana; Hazard, Organization of Boot and Shoe Industry in Massachusetts before 1875, passim; Kaempffert, A Popular History of American Invention, Vol. II, 404-434; Dictionary of American Biography, “Goodyear, Charles [Jr.],” “McKay, Gordon,” “Matzeliger, Jan Ernst,” “Winslow, Sidney Wilmot”; Encyclopaedia of the Social Sciences, “Leather Industries,” e.g., 307-309.
374	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. S.
cates, the inventions set out in the claims now held valid, if inventions at all, are comparatively simple improvements of an automatic power-driven heel seat lasting machine.
The work of a heel seat lasting machine is to bend and flatten out the overlapping part of the shoe upper over the insole and then tack it down so that it will be ready for attaching the heel. In the performance of these operations the incompleted shoe is firmly held by a clasping device in a proper position to permit the leather to be bent and flattened by “wipers” and fastened to the insole by “tackers.”
It is to the clasping device, the wipers, and the tackers that the asserted improvements relate. The operation of these parts must be carefully coordinated, and the coordination must be maintained when the machine is adjusted for different sizes of shoes. Means to accomplish the necessary coordination over a range of different sizes had been claimed in a prior patent3 which, like the patent in suit, was issued to Ronald F. McFeely and assigned to the respondent. The courts below found and the respondent here argues that, although the machine made in accordance with the first McFeely patent “successfully lasted shoes of specific sizes, it proved incapable of operating satisfactorily upon a range of sizes large enough to adapt it for commercial operation in the ordinary shoe factory.” 121 F. 2d 273,278.
The improvements said to cure the deficiencies in the earlier machine are covered in the five claims here held valid. Insofar as these claims set out anything not contained in the first McFeely patent, the modifications are
3 Claim No. 167, for example, of the earlier McFeely patent (No. 1,129,881) sets out “means to adjust the back stop for shoes of different sizes including provision for indicating the correct adjustment for particular sizes.”
WILLIAMS CO. v. SHOE MACH. CORP. 375
364	Black, J., dissenting.
not at all complex. The tackers and wipers, formerly connected in a manner which permitted some slight independence of movement, were now rigidly interconnected so that one could not move without the other; and a handle was substituted for a screw nut as a means of making a preliminary manual adjustment for shoes of different sizes. Changes of equal simplicity were made in the “hold-down” and the “heel band,” two of the parts which clasp the shoe and hold it in place during the actual lasting process.
There is no doubt that the United Shoe Machinery Corporation, particularly since it maintains a patent department in which patent lawyers are regularly employed, could have caused these simple improvements to be patented separately and without ambiguity or prolixity. No possible justification can be offered for inextricably combining the description of the alleged improvements with a description of a complete lasting machine. Let us now turn to the patent in suit to see how far it meets the requirement of R. S. § 4888, 35 U. S. C. § 33, that a patentee “shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.”
The patent as a whole sets out 137 claims covering 16 large closely printed pages; it includes 11% more pages of specifications and numerous drawings; it has a text of more than 25,000 words, about 14,000 of which are devoted to the claims. Remarks of Judge Learned Hand, made with respect to a patent much shorter than the one before us, are pertinent here: “Such claims violate the very purpose of any claims at all, which is to define the forbidden field. In such a waste of abstract verbiage ... it takes the scholastic ingenuity of a St. Thomas with the patience of a yogi to decipher their meaning, as they stand.” Victor Talking Mach. Co. v. Thomas A. Edison, Inc., 229 F. 999,1001. Alexander Graham Bell’s basic patent on the
376	OCTOBER TERM, 1941.
Black, J., dissenting.	316U.S.
telephone, a pioneer invention,4 * affords an illuminating contrast. All of Bell’s claims—he found five ample—contain in the aggregate 229 words, less than many single claims of this patent; and the entire text of his patent is about one-tenth the length of this one.6 The second Mc-Feely patent, unlike Bell’s, discloses no pioneer invention. On the contrary, McFeely stated in his application that he was seeking to patent improvements. Yet, the features of a heel seat laster are set out so comprehensively and in such detail that a trained person would be able to build a complete machine with only this improvement patent as his primary source of information.
If the machine as a whole were being claimed in the second McFeely, arguments of some plausibility could perhaps be made to justify the length of the patent. For the automatic heel seat laster in its entirety is a highly complex machine combining a number of interrelated mechanisms in a manner which, as the court below pointed out, enables it to perform its intricate function “in the fraction of a second and too swiftly for the eye to follow.” 121 F. 2d 273, 274. But we must not allow ourselves to confuse the old and the new. The impressive speed of the machine is not the result of the improvements. Like most of the other admirable qualities of the machine as a whole, it was attainable before the improvements were patented and to it the improvements made no contribution.
Even if there is some conceivable basis for crediting the machine as a whole to McFeely’s genius, he was not entitled to claim it in this patent. For his earlier patent, even lengthier than this one, had described and claimed as patentable invention every feature of the machine except the minor improvements to which we have referred.
4 See Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 561-
562.
B Telephone Cases, 126 U. S. 1, 4-14.
WILLIAMS CO. v. SHOE MACH. CORP. 377
364	Black, J., dissenting.
One who invents improvements on a prior invention, whether his own or someone else’s, may patent the improvements separately. But I do not believe that our patent system was intended to allow the indiscriminate jumbling of the new and the old which would permit the inventor of improvements to extend his domain of monopoly by perpetuating rights in old inventions beyond the 17 years period Congress has provided.
If we turn from the patent as a whole to the individual claims, we find in many of them the same ground for criticism: the introduction of something new is taken as an occasion for reclaiming the old. Claim 42, one of the five claims held valid and infringed, is illustrative. In these proceedings, the respondent makes this claim the basis of his assertion that the second McFeely embodies a patent-able improvement in the hold-down mechanism, the part of the machine which holds the shoe in the appropriate vertical position during the lasting operation. But there is no clear and distinct statement in Claim 42 so limiting its scope. On the contrary, the trial court referred to this claim as “a general claim covering the machine based on the McFeely patent in suit,” and the language of the claim itself purports to cover a “machine of the class described.” 6
6 Claim 42 provides: “A machine of the class described having, in combination, clamping means to embrace one end of a last and shoe, end wipers positioned to operate on the edges of the upper at said end of the shoe, a hold-down mounted for vertical movement and positioned to engage the bottom of the last and shoe, a support for a last and shoe constructed and arranged for manually effected movement to engage the last and shoe with said clamping means and hold-down, power operated mechanism effective to move said support forcibly to press the last and shoe against said clamping means and hold-down and to actuate the clamping means, mechanism effective in timed relation to the clamping means to depress the hold-down and support to position the shoe bottom determinately below the plane of the wipers, mechanism operative to actuate the wipers to break down the edge of
378	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. S.
Not only does 42 claim many old elements, but they are claimed in the same manner and with the same emphasis as the hold-down mechanism. Included among these old elements are: “clamping means to embrace one end of a last and shoe”; “end wipers positioned to operate on the edges of the upper at the said end of the shoe”; “a support for a last and shoe constructed and arranged for manually effected movement to engage the last and shoe with [the] clamping means and hold-down”; and “mechanism operative to actuate the wipers to break down the edge of the upper over the bottom of the positioned last and shoe.” All of these old elements were to operate in exactly the same manner prescribed either in the first McFeely or other prior patents, and they were to perform the same functions they had always performed.
We have held that if a claim does not contain a distinct and specific statement of what the patentee claims to be new, it is void. General Electric Co. v. Wabash Co., 304 U. S. 364. And we have also held void a claim which sets out an improvement of one part of an old combination but at the same time purports to cover the improvement in combination with old parts which perform no new function. Lincoln Co. v. Stewart-Wearner Corp., 303 U. S. 545. Claim 42, today held valid, clearly violates both of these standards.
the upper over the bottom of the positioned last and shoe, the said holddown mechanism being automatically operative subsequently deter-minately to raise the hold-down, the said power operated mechanism being operative substantially coincidently correspondingly to raise the said support to engage the bottom of the last and shoe with said holddown with the shoe bottom positioned substantially in the plane of the wipers, and the end wiper mechanism being subsequently operative in timed relation to wipe over and compact the broken down edge of the upper over the bottom of the last and shoe, and manually adjustable means for determinately varying the amount of vertical movement of the hold-down.”
WILLIAMS CO. v. SHOE MACH. CORP. 379
364	Black, J., dissenting.
I believe it could be conclusively shown that almost all of the 137 claims are objectionable for one or both of the same reasons as Claim 42. But the unnecessary length of this patent makes it impracticable to present a complete exposition of the vices of each separate claim in a judicial opinion. It may be possible, however, to suggest in a few brief statements the extent of the deficiencies and their cumulative tendency “to deceive and mislead the public” with respect to the scope of the patent. Carlton v. Bokee, supra, 472.
Of the 137 claims, 68 purport to cover in unambiguous language either “a machine of the class described” or “a lasting machine” or “a heel seat lasting mechanism” without any hint of limitation to a claimed improvement. The use of such broad language cannot be dismissed as an inconsequential matter of form, since in substance these claims embrace, with varying degrees of comprehensiveness, all the fundamental features of an automatic power driven heel seat laster.7
7 Claim 55 is illustrative. It provides: “A heel seat lasting machine having, in combination, clamping means to embrace the heel end of a shoe, wipers to operate upon the upstanding edges of the upper at the clamped end of the shoe, means to support a last and shoe in inverted position, means to raise said support to position the last and shoe for co-operation with the clamping means with the bottom of the shoe above the operating plane of the wipers, means to operate the clamping means to embrace the heel end of the positioned shoe, mechanism operative determinately to depress said last and shoe support relatively to the clamping means to upwipe the upper over the sides of the last and to position the shoe with its bottom in a plane determinately below the operating plane of the wipers with the upper edges in said operating plane, and means subsequently to operate said wipers in timed relation to the shoe support to break down the upstanding edges of the upper over the heel seat, said support operating mechanism being subsequently effective in timed relation determinately to raise said support and shoe to position the shoe bottom in the operating plane of the wipers, and said wiper operating means being subsequently effective in timed relation to operate the wipers to wipe down and compact over the heel seat the broken down edges of the upper.”
380	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. S.
All but one6 * 8 of the remaining 79 claims are introduced by the somewhat limiting phrase “in a machine of the class described.” But in almost all of these the introduction is followed by a recital of old elements claimed in the same manner as they were in the earlier MoFeely,9 and here again the aggregate effect is to reclaim a heel seat lasting machine in its entirety.
Recent studies conducted by the Temporary National Economic Committee show that the technique employed in the second McFeely patent is not unusual.10 In essence,
6 Claim 39 purports to cover “an end lasting mechanism,” but it,
too, attempts to reclaim various old elements.
9	Claim 84 is illustrative. It provides: “In a machine of the class
described, the combination with last and shoe positioning means, of end embracing wipers, operating means for said wipers including parts movable to effect a preliminary adjustment of the wipers to the contour of the shoe while other portions of said operating means are stationary, and tackers movable inwardly over the shoe and connected to said wipers for preliminary adjustment with them.”
10	E. g., a “Memorandum of Policy” from the files of an industrial corporation, set out in the TNEC Hearings, contains the following guidance for the corporation’s patent division:
“Continuing the Monopoly by Us or Others
“It often happens that if minor improvements are protected by patents, machines and processes licensed under the original basic patents are given a much longer earning life by the fact that the minor improvements continue the protection on the machines, and even when the basic patents expire, others are prevented from using the latest commercial form of the machine.
“Example: The . . . basic patents expired several years ago. Nobody, however, dare use the present type of . . . machine because of improvements covered by minor patents. Likewise, if the original patent protection obtained on particular machines should not be sustained by the Courts, yet a second line of defense patents covering details and improvements may become a most valuable asset.
“It has always been our ambition to obtain patents which will be related to furnace, melting and refining, feeding, delivery, forming, automatic handling, carrying, stacking and annealing. Conceivably
WILLIAMS CO. v. SHOE MACH. CORP. 381
364	Black, J., dissenting.
it is an attempt to utilize minor improvements to perpetuate exclusive enjoyment of a major instrument of production which rightfully belongs to the public. Distinct separation of the new would afford guidance to those who wished to use the old when the exclusive rights to it expired. On the other hand, blurring the lines of separation places anyone who attempts to use any part of the amalgam in jeopardy of burdensome infringement suits. Where the patent owner has ample resources to bear the costs of repeated litigation, the power of the infringement suit to stifle competition is increased. And where potential competitors are weak and few, it may afford a practically complete protection for the preservation of undeserved monopoly.
The circumstances here are most favorable for the use of patent privileges as a deterrent to all competition. By its vagueness and generality, the patent in suit creates an overhanging threat to anyone who might want to produce any kind of heel seat lasting machinery. And this threat is intensified by the universal recognition of the patent owner’s long established rule over the entire shoe machinery industry.
Moreover, it is entirely unrealistic to judge this patent in isolation. It is a stage of a process which the record shows we might lose patent domination of one or more important links, but still retain practical control of the whole chain by means of controlling the most efficient form of the other links.” TNEC Hearings, Part 2, 777-778.
Cf. TNEC Monograph No. 31, 160: “A patent provides a sanction but it is about to expire—by some means or other its life must be prolonged. An improvement alone is hardly enough; its importance must be magnified until the line between invention and improvement is completely blurred. A multiplication of improvements is far better; it creates at least an appearance that an industrial art is being transformed.”
382	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. S.
began years before and is still continuing, a process by which it appears possible for the respondent to make the monopoly endless. The first McFeely patent, assigned to the respondent, embraced the whole universe of prior development in heel seat lasting machines. About a year after it was issued, the United Shoe Machinery Company became the owner of another patent on a lasting machine, Brock No. 1,188,616. The 77 claims of this patent reembody too many of the features previously covered by the first McFeely to allow enumeration here. Four years later, Pym No. 1,368,968, also on a lasting machine, was issued and assigned to the respondent. Of the 172 claims of this patent, there is another multitude embodying identical features of the first McFeely. Although applied for about a year after the first McFeely, the patent in suit was not issued until 1925, four years after the Pym patent. The second McFeely appears to be only the currently used weapon; the record reveals another in the respondent’s arsenal, awaiting service when this one is no longer useful.11 To date, the series of overlapping patents has been continuous. There is no reason to suppose that abandonment of so successful a practice is contemplated for the future.
The discouragement to future invention and the potentialities of deceiving and misleading the public, which this Court condemned 70 years ago, are here present in fullest measure. Carlton v. Bokee, supra. Opposed to departure from the salutary rule announced by Mr. Justice Bradley, I believe the patent before us should be declared void.
11	Jorgensen No. 1,852,015, issued in 1932 and assigned to the respondent, purports to cover improvements on a machine for shaping shoe uppers “over lasts or other forms.” It states that the invention “is herein illustrated as embodied in a machine for lasting the heel ends of shoes, but it is to be understood that in its more general aspects it is not limited to heel-end-lasting machines.”
WILLIAMS CO. v. SHOE MACH. CORP. 383
364	Black, J., dissenting.
II
In addition to the foregoing reasons for declaring the entire patent void, there is an independent narrower ground for reversing the decision below. The five claims here relied upon set out only an aggregation of old elements not constituting patentable invention.12 And where, as here, an appellate court can determine from a mere construction and comparison of patents that an alleged new invention is in reality identical with inventions claimed in prior patents, the question of patentability should be reviewed. Heald v. Rice, 104 U. S. 737, 749. Cf. Singer Co. v. Cramer, 192 U. S. 265, 275.
It was the view of both courts below that, although a machine manufactured under McFeely’s earlier patent had “successfully lasted shoes of specific sizes, it proved incapable of operating satisfactorily upon a range of sizes large enough to adapt it for commercial operation in the ordinary shoe factory.” The five claims in suit relate to three small adjustments of the first McFeely machine, intended to cure this alleged deficiency. The respondent nowhere asserts that the adjustments were intended to accomplish any other purpose or that in fact they did. Nor did the courts below rest their conclusions upon findings that any other purpose was accomplished. They found novelty and usefulness in the increased adaptability of the later machines over a wider range of sizes; and in the minor mechanical changes made to cure the shortcomings of the earlier machine, they found patentable invention.
12	The petitioner’s application for certiorari clearly raises this issue. One of the reasons we brought the case here was the opportunity it would afford to consider the petitioner’s contention that the second McFeely “merely aggregates old adjusting features with an old combination ... in conflict with the principles applied in such cases as Grinnell v. Johnson Co., 247 U. S. 426.”
384	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. S.
But novelty and usefulness are not enough, for, to be patentable, improvements “must, under the Constitution and the statute, amount to an invention or discovery.” Thompsons. Boisselier, 114 U. S. 1,11. And even though improvements produce “a more convenient and economical mechanism,” or a “more convenient and more salable” product, or a machine of “greater precision,” they are not patentable if they “sprang naturally from the expected skill of the maker’s calling.”13 As this Court said in 1875, “Perfection of workmanship, however much it may increase the convenience, extend the use, or diminish expense, is not patentable.” Reckendorf er v. Faber, 92 IT. S. 347, 356-357. Cf. Cuno Engineering Corp. v. Automatic Devices Corp., 314 U. S. 84,90-92.
A comparison of the patent in suit with patents of the past shows that the improvements here were but duplications of old elements to obtain an old result and their application to the first McFeely machine was no more than a common mechanical expedient. The objective, adapting the machine to shoes of different sizes, suggests its own means of accomplishment.
Even before 1900, automatic tacking machines and automatic wiping machines, adaptable to shoes of different sizes, had been in use commercially. In connection with the issuance of his earlier patent, McFeely represented that he had succeeded in combining tackers and wipers in a single machine and that his patent therefore set out a pioneer invention, disclosing the first machine organized for the entire process of heel seat lasting. The United Shoe Machinery Company built a machine in accordance with the patent and placed it in a factory for testing pur-
™ Grinnell Washing Mach. Co. n. Johnson Co., 247 U. S. 426, 434; Office Specialty Mjg. Co. v. Fenton Mfg. Co., 174 U. S. 492, 498; Altoona Theatres v. Tri-Ergon Corp., 294 U. S. 477, 486; American Road Mach. Co. v. Pennock & Sharp Co., 164 U. S. 26, 41.
WILLIAMS CO. v. SHOE MACH. CORP. 385
364	Black, J., dissenting.
poses. Shoes lasted on it were sold to the factory owner’s regular shoe trade. McFeely had described in detail means to set the parts before the lasting operation began so that the machine would properly do its work whatever the size of the shoe.14 It is said the tests revealed that these preliminary adjustment devices were not adequate to accommodate all sizes, although they did permit the machine to function satisfactorily on some.
The problem was to enable the operator in advance to enlarge or diminish the area within which the tackers, wipers, and shoe clasping devices would do their work as the shoe to be lasted might be larger or smaller. The most obvious answer was adjustments to permit appropriate positioning of the parts. Three separate hand adjustments were therefore provided to set the tacker-wiper combination, the heel clasping device, and the hold-down mechanism. The adjustments were so arranged that the operator of the machine could either by use of a set screw or handle place these separate parts in appropriate positions for the particular size of shoe to be lasted. The positions set by the operator are maintained until reset for shoes of another size.
Technological knowledge and development had advanced too far by 1916 to warrant elevation of such hand adjustments to the privileged position reserved for inventions. Either in or out of the combination these adjust-
u The following excerpt from the specifications of the earlier McFeely is illustrative: “In Fig. 18 the back stop is shown as formed on a rack bar adjustable by a shaft 690 having a handle at the side of the machine with a pawl in it to engage a locking ratchet 691 having marked on it graduations indicating the proper adjustment for different sizes. The ratchet can be adjusted to position the graduations for different groups of sizes such as men’s, women’s or children’s sizes.” And the first claim sets out “means for fixing the gripper in different positions of adjustment both vertically and horizontally relatively to the last spindle for lasts of different heights and lengths.”
461263°—43--25
386	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. 8.
ments performed no more than the old functions that adjustments by hand levers and set screws had always performed. Yet without these hand adjustments the problem alleged to have been revealed by operation of the first McFeely machine would not have been met. For hand adjustments were the indispensable elements of the claimed improvements. Since I believe that such adjustments should not be raised to the dignity of patentable invention I think the five claims should be held invalid.
No argument is made that the remaining elements standing alone would have caused the machine to function satisfactorily on shoes of all sizes. Nevertheless, I shall give the reasons for my belief that there is not patentable invention in the remaining elements of the five claims.
Tacker-Wiper Connection. In the first machine, the tackers and wipers were loosely connected in a manner allowing a slight independence of movement. Demonstration of the machine indicated that more satisfactory results would be obtained if tackers and wipers maintained a fixed relationship to each other throughout all the movements of the lasting operation. Here again the problem suggested its own answer. It is difficult to imagine that any mechanic would be ignorant of the principle that if two parts are fastened together, they will move simultaneously. The change in the tacker-wiper mechanism was no more than the application of this principle. Tackers and wipers were more rigidly interconnected. Even if such an expedient could ever have been invention, it had been anticipated in the field of shoe machinery as far back as 1881, when Geoge W. Copeland, Matthias Brock, and Joseph E. Crisp obtained Patent No. 244,714 on an automatic power-driven lasting machine which claimed a combination of wiper plates and fasteners to be moved simultaneously to the proper position for wiping and fastening the sole. I can see no evidence whatever of an exercise of
WILLIAMS CO. v. SHOE MACH. CORP. 387
364	Black, J., dissenting.
the inventive faculty in the fastening of tackers and wipers rigidly together so as to cause them to move simultaneously and maintain a fixed relationship with each other.
Heel Band and Hold-Down. The first McFeely, as had many prior patents, described a U-shaped leather heel band adapted to grip and hold the shoe while it was wiped and tacked. It is asserted that the patent in suit added attachments which permit the heel band to slide relative to its supports. The first McFeely also described a holddown device for maintaining the shoe in appropriate vertical position for the lasting operations. It is asserted that the claim of the second McFeely which provides for the hold-down mechanism modifies the first by introducing a new “sequence of operations.” The asserted modifications of both heel band and hold-down are claimed in conjunction with the hand adjustments previously discussed.
Since the beginning of shoe lasting, it has been recognized that the shoe must be held firmly in the proper position for wiping and tacking. Heel bands and hold-downs similar to those claimed here appear in the record in numerous drawings, specifications, and claims of a long series of patents prior to the one before us. The great number of patents, embodying apparently limitless variations of the same basic principles, suggests that the public had before McFeely’s second patent already paid in fullest measure for heel bands and hold-downs.
Examination of only three of these patents—Plant No. 958,280 (1910), Keyes No. 1,023,854 (1912), and Brock No. 1,188,616 (1916)—is enough to show complete anticipation of the entire principle of the sliding heel band capable of forward and backward movement if not every essential mechanical detail.
The general claim of the second McFeely which sets out the hold-down mechanism is said to provide for a “particular sequence” of operations. Insofar as the ambiguities
388	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. S.
of this claim18 permit such a deduction, there is nevertheless a failure to disclose any patentable invention. Of course, the sequence of operations in which the hold-down plays a crucial part is important. For the shoe must be maintained in such a vertical position that the successive strokes of the wipers will perform their proper function. If the shoe is too low with respect to the wipers, the leather will not be bent down sufficiently far; if the shoe is too high with respect to the wipers, the wipers will hit the shoe below the insole and therefore will not produce any bending of the leather at all. But in setting out a mechanism to insure the proper relationship between the level of the shoe and the level of the wipers during successive strokes of the machine, the second McFeely patent is by no means new. Claim 49 of the first McFeely patent includes a “provision for changing relatively the plane of action of the wipers and the position of the shoe between successive actuations of the wipers.” And in Claim 164 of the first McFeely it appears that the hold-down mechanism was recognized as having a major role in accomplishing this purpose. For Claim 164 specifically provides “means for automatically actuating the hold down upwardly and then downwardly again between the initial advance of the wiper and a final retraction of the wiper.” If the “sequence” of the second McFeely is any different, the difference cannot be seen in the provisions of the claim relied upon, nor is it explained in the record; if, as I believe, the “sequence” in both patents is the same, the second is invalid because anticipated.
In short, this record shows that the old elements composing the asserted improvements here had been described and redescribed, claimed and reclaimed as patent-able inventions. The respondent has used every one of 15 *
15 See discussion of the invalidity of this claim (No. 42) at pp.
377-378, supra.
WILLIAMS CO. v. SHOE MACH. CORP. 389
364	Black, J., dissenting.
them in previous patents now expired. It should not be allowed to continue its exclusive control over their use and enjoyment.
There is perhaps another possible ground for concluding that the five claims set out patentable invention. Conceivably the three asserted improvements, although each separately is no more than a mechanical expedient or a simple adaptation of prior invention, could be accepted in combination as an exercise of the inventive faculty. The court below apparently did evaluate the improvements in combination, for it found that, taken together, they resulted in a “new unitary mode of operation of the entire machine.” 121 F. 2d 273, 278. But the statement is unexplained, and I cannot find support for it in the record. On the contrary, comparison of the first and second McFeely patents shows that the basic mode of operation of the entire machine in both was identical. In the earlier machine, the shoe was placed on a last at the end of a jack, firmly held in position while the wiping and tacking took place, and then released. In these fundamental respects, the mode of operation provided for in the second McFeely patent is the same, whatever modifications McFeely may have added for the purpose of increasing adaptability to different sizes of shoes not having affected it in the slightest.
In any event, “each claim must stand or fall, as itself sufficiently defining invention, independently of the others.” Altoona Theatres v. Tri-Ergon Corp., 294 U. S. 477, 487. None of the five claims here in suit discloses a “new unitary mode of operation of the entire machine.” Even if it were possible to deduce from the five claims taken together that McFeely had made such a disclosure, nevertheless the patent ought not to be treated as if the disclosure had actually been made in appropriate form. For the creation of a sixth claim, a combination of the other
390	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. S.
five, which McFeely himself failed to include in his patent would entail a kind of constructive patenting procedure for which there is no judicial or statutory precedent.
The courts below concluded that the five claims in suit embodied patentable invention. In reaching this conclusion, which I believe is overwhelmingly refuted by examination of the claims themselves against the background of prior developments in the art, heavy reliance was placed on two extrinsic considerations: commercial success and the presumption of validity arising from the fact of issuance of a patent by the Patent Office.
Commercial Success. When it is a close question whether the changes embodied in a later patent are a sufficient advance over earlier patents to constitute patentable invention, the measure of commercial success of the later patent has been recognized by courts as affording some aid in reaching a conclusion. But while commercial success has been said to have relevance in resolving doubts, Smith v. Hall, 301 U. S. 216, 233, it cannot transform an exercise of the common skill of a calling, or an adaptation readily suggested by experience with prior inventions, or an aggregation of familiar mechanical expedients into patentable invention. Cf. Hildreth v. Mastoras, 257 U. S. 27,34. And where the patent in question reëmbodies a prior patent not yet expired, its commercial success does quite the reverse of establishing patentability; it establishes the seriousness of the infringement. If the reëmbodied prior patent has expired, or if it is owned by the owner of the later patent, commercial success is one index of success in appropriating what should have been available to the public or in extending special privileges beyond the legally permitted term.
I have already given the reasons which convince me that no patentable invention is set out in the five claims in suit. The force of none of those reasons is affected by the commercial success which the respondent has realized. After
WILLIAMS CO. v. SHOE MACH. CORP. 391
364	Black, J., dissenting.
examining the record, I can find no serious doubts to be resolved. All I can deduce from the commercial success of the respondent with these machines is the magnitude of the consequences to the public who have had to pay for the respondent’s extension of an undeserved monopoly through the use of an invalid patent.
Even if the issue of patentable invention were a doubtful one, the force of deductions that might normally be drawn from commercial success is greatly reduced in the circumstances of this case. For, by virtue of its dominant position in the shoe machinery industry, the United Shoe Machinery Corporation was not seriously threatened by loss of business to competitors when it withdrew the first McFeely machine from commercial use. Because there was no compelling economic incentive to hasten the commercial adaptation of the first McFeely machine, the inferences to be made from its withdrawal are extremely weak. Controlling the shoe machinery business to the extent that it did, the respondent was able to accelerate or delay the commercial exploitation of its heel seat lasting machine at its pleasure.
Moreover, the record indicates that the commercial success relied upon by the courts below would be inconclusive with respect to the second McFeely patent under any circumstances. For there is uncontroverted testimony that of the 1250 later machines in commercial use only 12 were built in accordance with the disclosures of the second McFeely patent. The remainder embody features set out in a subsequent patent, Jorgensen No. 1,852,015, or a prior patent, Hoyt No. 1,508,394, (declared invalid by the court below) or both. Since I believe that the commercial success of the respondent’s machine could in no event establish the validity of the five claims in suit, I do not find it necessary to determine how much of the commercial success of the respondent’s machines is to be attributed to features not set out in the second McFeely
392	OCTOBER TERM, 1941.
Black, J., dissenting.	316U.S.
patent. Such a determination does not appear to have been made in the entire course of proceedings in this case.
Presumption of validity arising from issuance. Quoting from the opinion of this Court in Radio Corp. n. Radio Laboratories, 293 U. S. 1, 8, the court below stated that the present case obliged it “to give consideration to the rule that ‘one otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance? ” 121 F. 2d 273, 277. For reasons I have already set out I can agree neither that the second McFeeley is “a patent fair upon its face” nor that the evidence of non-patentability has no more than a “dubious preponderance.” Hence, the prerequisites for establishing a presumption of validity are not here present. In the absence of a statutory prescription to the contrary, I see no reason for extending the presumption of validity arising from the mere issuance of a patent beyond the narrow compass indicated by the passage quoted from the Radio Corporation case.
On the other hand, there are many positive reasons for not doing so. A patent is a grant of exclusive privilege. Yet it is normally issued in a non-adversary proceeding. Indeed, it is the practice of the Patent Office to keep patent applications on file in secrecy until the time of issuance.16 The public, who will be excluded for 17 years from the field granted to the applicant, are represented only insofar as the enormous volume of business permits the examining staff of the Patent Office to watch out for the public interest.1T Moreover, the patent examiner, unlike the court in an infringement suit, does not have the benefit of the
” Rule No. 15, Rules of Practice, United States Patent Office.
* See Report of Science Advisory Board, set out in TNEC Hearings, Part 3, 1139, 1140.
WILLIAMS CO. v. SHOE MACH. CORP. 393
364	Black, J., dissenting.
researches of opposing counsel upon the state of the prior art. Even where the Patent Office conducts interference proceedings for the purpose of determining priority of invention, a contestant is not permitted to prove that a stranger to the proceedings was the first inventor. He can oppose only his own claim of priority against that of the other party. See Loftin v. Smith, 126 F. 2d 514, 515.
Whatever the small weight to be given to the presumption arising from issuance of a patent, it is here overcome by the special circumstance of this case. For the patent in suit, like the prior one on which it is asserted to have made improvements, was issued to the same patentee and assigned to the same owner. In this kind of situation, the burden of establishing the validity of the second patent is increased, this Court having said that in this “class of cases it must distinctly appear that the invention covered by the later patent was a separate invention, distinctly different and independent from that covered by the first patent.” Miller v. Eagle Manufacturing Co., 151 U. S. 186,198. At very best, the presumption of validity arising from the mere issuance of a patent might be permitted to tip the scale when other considerations leave the issue of patentability in equilibrium. In the present case, I believe that the emphasis of the court below on this presumption was entirely misplaced.
As I view this patent its total impact is appalling. Out of its great bulk, the respondent is able to assert only three simple improvements embraced in five claims. And on examination, it appears that these improvements fall far below the established requirements of patentable invention. Yet by its terms the patent as a whole purports to appropriate for exclusive use, not merely these improvements, but a major instrument of production in its entirety. Furthermore, this patent is one of a group which seems to have an interminable capacity for self-perpetua-
394	OCTOBER TERM, 1941.
Opinion of the Court.	316 U.S.
tion. If judicial approval is to be given to patents of this kind, the public benefits which might reasonably be hoped for under the constitutional provisions and the federal statutes relating to patents can never be attained.
MAGRUDER, COLLECTOR OF INTERNAL REVENUE, v. SUPPLEE et ux.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH DISTRICT.
No. 947. Argued April 30,1942.—Decided May 25,1942.
Where, in a sale of real estate, current taxes, which are a lien on the property and for which the vendor is personally liable under the state law, are apportioned, so that the vendee pays the part proportional to the fraction of the tax year ensuing after the purchase, the payment is not deductible by the vendee in his income tax return as “taxes paid” within the meaning of § 23 (c) of the Revenue Act of 1936, but is part of the purchase price. P. 397.
123 F. 2d 399, reversed.
Certiorari, 315 U. S. 794, to review the affirmance of a judgment for a refund of income taxes, 36 F. Supp. 722.
Mr. Douglas Maggs argued the cause, and Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key, Arnold Raum, and Michael H. Cardozo, IV, were on the brief, for petitioner.
Mr. Nathan J. Felsenberg, with whom Mr. James M. Hoffa was on the brief, for respondents.
Mr. Justice Murphy delivered the opinion of the Court.
During the years 1936 and 1937, respondents purchased various parcels of real estate in Baltimore, Maryland. In each instance, the state and city taxes on the real estate for the current year had not been paid at the time of
MAGRUDER v. SUPPLEE.	395
394	Opinion of the Court.
purchase. The various contracts provided for the apportionment of these current real estate taxes, respondents agreeing to pay the amount of the taxes, and the vendors undertaking to bear the burden of that portion of the taxes arithmetically allocable to the fraction of the year that had expired prior to the date of purchase. Adjustments were accordingly made in the purchase prices to reflect this arrangement.
Respondents paid the local authorities the full amounts necessary to discharge the tax liability. In their 1936 and 1937 income tax returns, which were on the cash basis, they deducted that portion of those taxes “allocable” to the periods after purchase. The Commissioner of Internal Revenue ruled that the amounts in question were not deductible under § 23 (c) of the Revenue Act of 1936, 49 Stat. 1648,1659,1 but instead were merely part of the cost of the properties. Accordingly, he made a deficiency assessment which was paid under protest. This suit for refund followed. The District Court held the amounts were deductible,1 2 and the Circuit Court of Appeals affirmed3 on the authority of its previous decision in Commissioner v. Rust’s Estate, 116 F. 2d 636. We granted certiorari because of an asserted conflict with Lijson v. Commissioner, 98 F. 2d 508.
The question for decision is whether the amounts apportioned by respondents on the basis of the fractions of the taxable years remaining after the several purchases constitute “taxes paid within the taxable year” within the
1	“Sec. 23. Deductions from Gross Income.
In computing net income there shall be allowed as deductions:
(c) Taxes Generally.—Taxes paid or accrued within the taxable year, . . .”
2	36 F. Supp. 722.
2123 F. 2d 399.
396	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
meaning of § 23 (c) of the Revenue Act of 1936, 49 Stat. 1648, 1659, and hence are deductible.
The guiding principle for determining whether a payment satisfying a tax liability is a “tax paid” within the meaning of § 23 (c) is furnished by the applicable Treasury regulation, which states that “In general taxes are deductible only by the person upon whom they are imposed.”4 See Colston v. Burnet, 61 App. D. C. 192, 59 F. 2d 867; Small v. Commissioner, 27 B. T. A. 1219; Paul, Selected Studies in Federal Taxation, Second Series, p. 24. Resort must be had here to the laws of Maryland and of the City of Baltimore to determine upon whom the state and city real estate taxes were imposed. Walsh-McGuire Co. v. Commissioner, 97 F. 2d 983, 984; cf. Helvering n. Fuller, 310 U. S. 69, 74-75; and see Paul, op. tit. supra, pp. 23-24.
To illustrate concretely the workings of the Maryland tax system with respect to respondents’ purchases, the property bought on May 10,1936, may be taken as typical of all the other transactions. The assessment date, or “date of finality,” for both state and city taxes was October 1,1935.5 These taxes were for the calendar year 19366 * 8 and
4 Article 23 (c)—1 of Treasury Regulations 94, promulgated under the Revenue Act of 1936. This is a regulation of long standing. See
Treasury Regulations 86, promulgated under the Revenue Act of 1934, Article 23 (c)-l; Treasury Regulations 77, promulgated under the
Revenue Act of 1932, Article 151; Treasury Regulations 74, promulgated under the Revenue Act of 1928, Article 151; Treasury Regulations 69, promulgated under the Revenue Act of 1926, Article 131;
Treasury Regulations 65, promulgated under the Revenue Act of 1924, Article 131.
8 Ann. Code of Maryland (Flack, 1939), Vol. 2, Art. 81, § 26 (b), provides that state and local taxes shall have the same date of finality as is provided by local law, and the date of finality for Baltimore with respect
MAGRUDER v. SUPPLEE.	397
394	Opinion of the Court.
became due and payable on January 1,1936/ although the default date for city taxes was not until July 1, 1936, and for state taxes January 1, 1937.* 7 8 * Both the state and the city had liens against the property from the due date, January 1, 1936.® And, respondents’ vendor became personally liable for these taxes before the sale. An action of assumpsit could have been brought against him for the taxes at any time after the due date.10 Had he sold the property between October 1, 1935 and January 1,1936, he apparently would still have remained personally liable, and if he had gone into bankruptcy after such sale the taxing authorities would have had a provable claim against him. In re Wells, 4 F. Supp. 329; cf. Baltimore v. Perrin, 178 Md. 101,107, 12 A. 2d 261.
It is thus apparent that tax liens had attached against the properties and that respondents’ predecessors in title had become personally liable for the taxes prior to any of the purchases. The attachment of a lien for taxes against property before its sale has been held to prohibit the ven-
to any tax year is October 1 of the preceding year. See Code, Public Local Laws of Maryland (Flack, 1930), Art. 4, § 40.
“Taxes are imposed annually on a calendar year basis. See Ann. Code of Maryland (Flack, 1939), Vol. 2, Art. 81, §26 (a) and (b) ; Code, Public Local Laws of Maryland (Flack, 1930), Art. 4, § 40.
7 See Ann. Code of Maryland (Flack, 1939), Vol. 2, Art. 81, § 46 (b), which provides that state taxes are payable on January 1. Sec. 46 (a) provides that local taxes shall be payable in accordance with local law, and under local law Baltimore taxes are due on January 1. Code, Public Local Laws of Maryland (Flack, 1930), Art. 4, §40.
“Code, Public Local Laws of Maryland (Flack, 1930), No. 4, §40; Ann. Code of Maryland (Flack, 1939), Vol. 2, Art. 81, § 74.
’Ann. Code of Maryland (Flack, 1939), Vol. 2, Art. 81, § 72.
10 Ann. Code of Maryland (Flack, 1939), Vol. 2, Art. 81, §154. See County Commissioners v. Clagett, 31 Md. 210; Bassett v. Ocean City, 118 Md. 114, 119, 84 A. 262; Free v. Greene, 175 Md. 36, 41, 199 A. 857.
398	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
dee from deducting, as “taxes paid,” amounts paid by him to discharge this liability. Lijson v. Commissioner, 98 F. 2d 508; Walsh-McGuire Co. v. Commissioner, 97 F. 2d 983; Merchants Bank Bldg. Co. v. Helvering, 84 F. 2d 478; Helvering v. Missouri State Life Ins. Co., 78 F. 2d 778, 781. A tax lien is an encumbrance upon the land, and payment, subsequent to purchase, to discharge a preexisting lien is no more the payment of a tax in any proper sense of the word than is a payment to discharge any other encumbrance, for instance a mortgage. It is true that respondents here could not have retained the properties unless the taxes were paid, but it is also true that they could not retain them without paying the purchase price. It is no answer therefore to say that the property was burdened with the taxes and that respondents became obligated to pay them. There was a burden, but it was contractually assumed. In discharging this assumed obligation respondents were not paying taxes imposed upon them within the meaning of § 23 (c). For “only the person owning the property at that time [i.e., when the tax lien attaches] is subjected to the burden which the law imposes; and only the person who has been thus subjected to the burden of the tax is entitled to a deduction for paying it. Payment by a subsequent purchaser is not the discharge of a burden which the law has placed upon him, but is actually as well as theoretically a payment of purchase price; for, after the lien attaches and the taxing authority becomes pro tanto an owner of an interest in the property, payment of the tax by a purchaser is nothing but a part of the payment for unencumbered title.” Judge Parker, dissenting in Commissioner v. Rust’s Estate, 116 F. 2d 636, 641.
Furthermore, respondents paid taxes for which their vendors were personally liable. This was clearly the payment of a tax imposed upon another and therefore not deductible by respondents. Cf. Walsh-McGuire Co. v. Commissioner, 97 F. 2d 983; Gatens Investment Co. v.
MAGRUDER v. SUPPLEE.	399
394	Opinion of the Court.
Commissioner, 36 B. T. A. 309; Kohlsaat v. Commissioner, 40 B. T. A. 528. And see Commissioner v. Coward, 110 F. 2d 725, 727.
Thus either a pre-existing tax lien or personal liability for the taxes on the part of a vendor is sufficient to foreclose a subsequent purchaser, who pays the amount necessary to discharge the tax liability, from deducting such payment as a “tax paid.” Where both lien and personal liability coincide, as here, there can be no other conclusion than that the taxes were imposed on the vendors. Respondents simply paid their vendors’ taxes; they cannot deduct the amounts, or any portion thereof, paid to discharge liabilities so firmly fixed against their predecessors in title by the laws of Maryland.
The view of the court below that the parties’ contractual arrangement for apportionment of the tax burden was controlling is untenable.11 Parties cannot change the incidence of local taxes by their agreement. And it is misleading to speak of real estate taxes as “applicable” to the fractional part of a tax period following purchase. Such taxes are simply one form of raising revenue for the support of government. They are not like rent, nor are they paid for the privilege of occupying property for any given period of time.
The judgment below is
Reversed.
11 The opinion below was a per curiam affirmance on the authority of Commissioner v. Rust’s Estate, 116 F. 2d 636. The Court there relied on the fact that the parties had agreed to apportion the tax obligation, p. 640.
400	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
HILL v. TEXAS.
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS.
No. 1119. Argued May 11, 1942.—Decided June 1, 1942.
1.	Evidence held sufficient to make out a prima facie case of systematic discrimination against Negroes in the selection of grand jurors,— violative of the Fourteenth Amendment. P. 404.
2.	State grand jury commissioners who consciously omit to place any Negro on the grand jury list, making no efforts to ascertain whether there are in the county Negroes qualified under the state law to serve as jurors, fail to perform their constitutional duty, recognized by § 4 of the Civil Rights Act of March 1, 1875. P. 404.
3.	Where the evidence shows, without contradiction, that a large number of Negroes who are literate reside in the county from which grand jurors are drawn, there is no room to infer that there are not among them literate householders of good moral character, qualified and available for grand jury service under the state law. P. 404.
157 S. W. 2d 369, reversed.
Certiorari, post, p. 655, to review a judgment sustaining a conviction for rape.
Mr. J. Forrest McCutcheon submitted for petitioner.
Messrs. Pat Coon, Assistant Attorney General of Texas, and Spurgeon E. Bell, with whom Mr. Gerald C. Mann, Attorney General, was on the brief, for respondent.
Mr. Chief Justice Stone delivered the opinion of the Court.
Petitioner, a negro, was indicted for the crime of rape by the grand jury for Dallas County, Texas. When the case was called for trial he submitted to the court his verified written motion to quash the indictment because he had been denied the equal protection of the laws guaranteed by the Fourteenth Amendent. The grounds of his motion were that negroes had been excluded from the
HILL v. TEXAS.	401
400	Opinion of the Court.
grand jury which returned the indictment, and that the jury commissioners and other state officers charged with the duty of organizing and impanelling grand juries in Dallas County have for many years systematically excluded, and in this case did exclude, negroes from the grand jury because of their race.
After hearing evidence the court denied the motion and proceeded with the trial, which resulted in a verdict and judgment of conviction. The Texas Court of Criminal Appeals upheld the trial court’s ruling on the motion and affirmed the judgment. — Tex. Cr. —; 157 S. W. 2d 369. It held that petitioner had not sustained the burden of proof resting on him to show that the failure to select negroes for service on the grand juries in Dallas County was because of their race rather than their lack of statutory qualifications for grand jury service. We granted certiorari, post, p. 655, to inquire whether the court’s ruling is consonant with our decisions in Neat v. Delaware, 103 U. S. 370; Pierre v. Louisiana, 306 U. S. 354; and Smith v. Texas, 311 U. S. 128.
Article 339 of the Texas Code of Criminal Procedure provides that a grand juror must be a citizen of the state and county, qualified to vote there, a freeholder within the state or a householder within the county, of sound mind and good moral character, able to read and write. He must not have been convicted of a felony or be under indictment or other legal accusation of any felony. The section directs that “whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes cannot be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror.”
In rejecting the proof of discrimination on which petitioner relied, the Texas Court of Criminal Appeals said appellant assumed the burden of sustaining his allega-461263°—43------26
402	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
tions by proof. He attempted to do so by showing certain facts from which, as he claims, such a conclusion could be reasonably drawn. He showed that 58,000 white persons and 8,000 negroes paid poll taxes in Dallas County, but the record is silent as to how many of them were male and how many were female persons; nor is it shown how many of these male persons could read and write; nor how many of them were freeholders in the state or householders in the county.” And the State argues here that in these circumstances there can be no inference that long-continued failure of the county officials to select members of the colored race to serve on grand juries is discriminatory, without proof that there are members of that race living in the county who are qualified to serve as grand jurors.
The state filed a general denial of petitioner’s motion, but submitted no answering affidavits, and called no witnesses, and so the only question before us is whether petitioner made out a prima facie case of the discriminatory exclusion of negroes from the grand jury. Petitioner called as witnesses two of the three grand jury commissioners, whose duty it is to summon sixteen men, of whom twelve are selected for service on each grand jury in Dallas County (articles 338, 357). They testified that the commission had summoned, for service on the grand jury which returned the indictment, members of the white race with whom they were acquainted and whom they knew to be qualified to serve. They testified that members of the commission had no prejudice against the colored race; that they discussed the possibility of selecting negroes to serve, and that they knew negroes in the county. One testified: “I personally did not know of a qualified negro that I thought would make a good grand juror.” The other testified he did not know which of the negroes of his acquaintance could read and write. Both testified that they made no investigation or inquiry to ascertain
HILL v. TEXAS.	403
400	Opinion of the Court.
whether there were negroes in the county qualified for grand jury service.
An assistant district attorney for the county, who had lived in Dallas County for twenty-seven or twenty-eight years and had served for sixteen years as a judge of the criminal court in which petitioner was tried and convicted, testified that he never knew of a negro being called to serve on a grand jury in the county. The district clerk of the county, whose duty it is to certify the grand jury list to the sheriff (article 344), knew of no citations issued for negroes to serve upon the grand jury. A colored witness, a property owner and poll tax payer in Dallas County, engaged in the insurance and bonding business, and resident in the county for fifty-four years, testified that he had often been called to serve as a petit juror but had never known of any colored man to be called as a grand juror. Two other colored witnesses, property owners and poll tax payers, who had lived in the county for twenty-five years, had never known of a negro to be called on a grand jury. There was also evidence already mentioned which the Texas Court of Criminal Appeals found sufficient to show that of the 66,000 poll tax payers in the county 8,000 were negroes.
Another witness estimated the total negro population of the county as 55,000. Actually this was an underestimate, for the 1940 census shows the total population of the county to be 398,564, of whom 61,605 are negroes, and, of these, 19,133 are males twenty-one years old or more. The census of 1930 showed only 7.5 percent of the negro population of the county to be illiterate. The census data of 1940 show that of the 17,263 male negroes in the county who were twenty-five years of age or more, 16,107 had attended grade school or higher institutions of learning. Of these, 7,979 had attended grade school from five to eight years; 1,970 had attended high school from
404	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
one to three years, and 1,124 for four years; 466 had attended college from one to three years, and 284 for four years or more.
We think petitioner made out a prima facie case, which the State failed to meet, of racial discrimination in the selection of grand jurors which the equal protection clause forbids. As we pointed out in Smith v. Texas, supra, 131, chance or accident could hardly have accounted for the continuous omission of negroes from the grand jury lists for so long a period as sixteen years or more. The jury commissioners, although the matter was discussed by them, consciously omitted to place the name of any negro on the jury list. They made no effort to ascertain whether there were within the county members of the colored race qualified to serve as jurors, and if so who they were. They thus failed to perform their constitutional duty—recognized by § 4 of the Civil Rights Act of March 1, 1875, 8 U. S. C. § 44, and fully established since the decision in 1881 of Neal v. Delaware, supra—not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds. Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case, discrimination necessarily results where there are qualified negroes available for jury service. With the large number of colored male residents of the county who are literate, and in the absence of any countervailing testimony, there is no room for inference that there are not among them householders of good moral character, who can read and write, qualified and available for grand jury service.
HILL v. TEXAS.	405
400	Opinion of the Court.
More than sixty years ago, in Neal v. Delaware, supra, 397, a case substantially like the present, this Court laid down the rule which we think controlling here:
“The showing thus made, including, as it did, the fact (so generally known that the court felt obliged to take judicial notice of it) that no colored citizen had ever been summoned as a juror in the courts of the State,—although its colored population exceeded twenty thousand in 1870, and in 1880 exceeded twenty-six thousand, in a total population of less than one hundred and fifty thousand,—presented a prima facie case of denial, by the officers charged with the selection of grand and petit jurors, of that equality of protection which has been secured by the Constitution and laws of the United States. It was, we think, under all the circumstances, a violent presumption which the State court indulged, that such uniform exclusion of that race from juries, during a period of many years, was solely because, in the judgment of those officers, fairly exercised, the black race in Delaware were utterly disqualified, by want of intelligence, experience, or moral integrity, to sit on juries.”
And recently we held in Pierre v. Louisiana, supra, that a prima facie case of race discrimination had been established where there had been a long-continued failure to select colored citizens for service on grand juries in a county, 50 per cent of whose population, or approximately 7,000, were colored, of whom from 70 to 80 per cent were shown to be literate. We thought, as we think here, that had there been evidence obtainable to contradict the inference to be drawn from this testimony, the State would not have refrained from introducing it, and that the evidence which was introduced sufficiently showed that there
406	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S
were colored citizens of the county qualified and available for service on the grand jury.
A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for Texas may indict and try him again by the procedure which conforms to constitutional requirements. But no State is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the. defendant innocent or guilty. Tumey v. Ohio, 273 U. S. 510, 535. It is the State’s function, not ours, to assess the evidence against a defendant. But it is our duty as well as the State’s to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand, because the Constitution prohibits the procedure by which it was obtained. Equal protection of the laws is something more than an abstract right. It is a command which the State must respect, the benefits of which every person may demand. Not the least merit of our constitutional system is that its safeguards extend to all—the least deserving as well as the most virtuous.
Reversed.
COLUMBIA SYSTEM v. U. S. 407
Counsel for Parties.
COLUMBIA BROADCASTING SYSTEM, INC. v. UNITED STATES et al.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 1026. Argued May 1, 1942.—Decided June 1, 1942.
1.	To maintain a suit under § 402 (a) of the Federal Communications Act of 1934, and the Urgent Deficiencies Act of October 22, 1913, 38 Stat. 219, 220, the action of the Commission sought to be set aside must be an "order,” and the bill must state a cause of action in equity. P. 415.
2.	Where regulations promulgated by order of the Federal Communications Commission in the exercise of its rule-making power, to govern its policy and action in the licensing of broadcasting stations, provide that there shall be no renewal of the licenses of stations whose contracts with a broadcasting network contain certain provisions proscribed by the Commission and that such licenses may be revoked, which regulations if valid alter the contractual rights of the networks, a network organization whose business is so dependent upon the maintenance and renewal of such contracts that their cancellation, or the threat of it, will cause irreparable injury to its enterprise and property, is entitled to a judicial review of the order and regulations whose validity is challenged, by a suit brought under § 402 (a) of the Federal Communications Act of 1934, without awaiting action by the Commission for enforcement of the regulations against a station licensee. Pp. 416, 425.
44 F. Supp. 688, reversed.
Appeal from a decree of the District Court dismissing for want of jurisdiction a bill to set aside an order of the Federal Communications Commission.
Mr. Charles E. Hughes, Jr., with whom Messrs. John J. Burns, Allen S. Hubbard, Harold L. Smith, and Richard W. Hogue, Jr. were on the brief, for appellant.
Mr. Telford Taylor, with whom Solicitor General Fahy and Messrs. Robert L. Stern, Richard S. Salant, Charles R. Benny, Harry M. Plotkin, and Max Goldman were on the
408	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
brief, for the United States et al.; and Mr. Louis G. Caldwell, with whom Messrs. Leon Lauterstein, Emanuel Dan-nett, and Percy H. Russell, Jr. were on the brief (Mr. Donald C. Beelar entered an appearance), for the Mutual Broadcasting System, Inc.,—appellees.
Mr. Chief Justice Stone delivered the opinion of the Court.
The Federal Communications Commission, by its order of May 2, 1941, as amended by its order of October 11, 1941, promulgated regulations which purport to require the Commission to refuse to grant a license to any broadcasting station which enters into certain defined types of contract with any broadcasting network organization. These regulations, it is alleged, affect adversely appellant’s contractual relations with broadcasting stations and impair its ability to carry on its business in maintaining and operating its nationwide broadcasting network. The regulations as amended on October 11,1941, together with a supplemental “minute” promulgated by the Commission on October 31, 1941, are set forth at the end of this opinion, post, p. 425. The question for our decision is whether appellant is entitled to secure a judicial review of the order by a suit brought under § 402 (a) of the Communications Act of 1934, 48 Stat. 1093, 47 U. S. C. § 402 (a), and the Urgent Deficiencies Act, 38 Stat. 219, 28 U. S. C. § 47.
Pursuant to § 402 (a) appellant brought the present suit against the United States in the Southern District of New York, to enjoin enforcement of the Commission’s order as contrary to the public interest and beyond the Commission’s statutory authority, and on the further ground, if the order be deemed within that authority, that the statute is an unconstitutional delegation of legislative power by Congress in violation of Article I, § 1 of the Constitution, and operates to deprive appellant of property
COLUMBIA SYSTEM v. U. S. 409
407	Opinion of the Court.
without due process of law in violation of the Fifth Amendment. The case was heard by a court of three judges, which permitted the Commission and the Mutual Broadcasting Company to intervene as defendants. It granted appellees’ motion to dismiss the complaint for want of jurisdiction, 44 F. Supp. 688, and stayed the operation of the Commission’s order pending direct appeal to this Court.
In 1938 the Communications Commission authorized an investigation “to determine what special regulations applicable to radio stations engaged in chain or other broadcasting are required in the public interest, convenience, or necessity.” Extensive hearings were held by a committee consisting of three members of the Commission, at whose request the national networks, including appellant, intervened. In June, 1940, the committee made a report, on the basis of which briefs were filed and oral argument was presented before the full Commission by the three national networks and other interested parties. In May, 1941, the Commission issued its “Report on Chain Broadcasting” and ordered the adoption of the regulations which, in their amended form, are the subject of the present controversy.
The relevant facts stated in the bill of complaint are as follows: Appellant or its predecessor has been engaged in the business of nationwide network or chain broadcasting since 1927. It has a large amount of physical property used in the business and has built up a valuable goodwill. For its broadcasts it maintains a staff of employees and expends large amounts for musicians and broadcasting performers. It has commitments by long-term contracts aggregating more than $4,000,000 for broadcasting expenditures, including those for the use of land and buildings and for the furnishing of news and broadcasting programs in the next few years. Appellant’s total property devoted to its broadcasting business exceeds $18,000,000 in value;
410	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
its earnings from the network exceeded $3,000,000 in both 1939 and 1940.
Chain broadcasting is the means by which radio programs are made available to all or a large part of the nationwide radio audience. It is defined by the Communications Act, 47 U. S. C. § 153 (p), as the “simultaneous broadcasting of an identical program by two or more connected stations.” The chain broadcaster prepares radio programs, for which it engages performers in advance, and simultaneously broadcasts them over a large number of radio stations to which the programs are transmitted from some central point of origination by wire telephone lines leased by the broadcaster, here the appellant. The programs, which are prepared well in advance of the broadcast and given by persons employed for the purpose by appellant, are of two classes—commercial programs sponsored and paid for by advertisers, and sustaining programs furnished by appellant and not paid for by any advertiser.
Appellant’s network comprises 123 stations in 122 cities in the United States. It is so operated as to enable ninety per cent of the radio audience of the United States to listen simultaneously to programs provided by appellant and broadcasted over these stations. Appellant owns and operates seven of the stations and leases an eighth, all licensed by the Commission. With the remaining 115 stations it enters into individual contracts, usually for periods of five years, terminable in some instances by appellant on twelve months’ notice. By these contracts, appellant undertakes to furnish each station with an average of at least sixty hours per week of network sustaining and sponsored programs. The sustaining programs are furnished without charge, the station being free to use them or not as it chooses. Appellant undertakes to furnish the station with all commercial programs which the sponsor requests the station to broadcast and to pay the station a specified
COLUMBIA SYSTEM v. U. S. 411
407	Opinion of the Court.
hourly rate for the use of its facilities in broadcasting such programs. Appellant agrees not to furnish its programs to other stations in the same city; the affiliated station, with exceptions not now material, agrees not to broadcast the program of any other network. Of critical importance in the present litigation is the stipulation of the affiliated station that it will, upon not less than twenty-eight days’ notice from appellant, broadcast the sponsored or commercial program furnished to it by appellant for at least fifty “converted” hours (averaging seventy-nine regular clock hours) per week.
These provisions of appellant’s contracts are alleged to be indispensable to the maintenance and efficient operation of its network and to the existence of a strong and efficient network broadcasting system, and necessary to enable appellant to compete with other advertising media. On May 2,1941, the Commission issued its order which, as amended by its order of October 11,1941, promulgated the “Chain Broadcasting Regulations” of which appellant complains, and which the Commission characterized in its Report as “the expression of the general policy we will follow in exercising our licensing power.”1 The regulations provide that no license shall be granted to a broadcast
1 The Commission in its Report says, p. 85:
“We believe that the announcement of the principles we intend to apply in exercising our licensing power will expedite business and further the ends of justice.
“Announcements of policy may take the form of regulations or of general public statements. In either case, the applicant’s right to a hearing on the question whether he does in fact propose to operate in the public interest is fully preserved. The regulations we are adopting are nothing more than the expression of the general policy we will follow in exercising our licensing power. The formulation of a regulation in general terms is an important aid to consistency and predictability and does not prejudice any rights of the applicant. Good administrative practice would seem to demand that such a statement of policy or rules and regulations be promulgated wherever sufficient information is available upon which they may be based.”
412	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
station having contracts with a network organization, containing any of several provisions which are characteristic of appellant’s contracts with its affiliates. These include provisions by which the station is prevented from broadcasting the programs of any other network organization (3.101) ; or which prevent another station serving substantially the same area from broadcasting the network programs not taken by the station applying for license, or prevent another station serving a substantially different area from broadcasting any program of the network organization (3.102) ; or by which the station contracts for affiliation with the network for a period longer than two years (3.103) ; or by which the station “options for network programs any time subject to call on less than 56 days’ notice or more time than a total of three hours” within each of four specified segments of the broadcast day, the regulation declaring “such options may not be exclusive as against other network organizations and may not prevent or hinder the station from optioning or selling any or all of the time covered by the option, or other time, to other network organizations” (3.104) ; or which prevent the station (a) from rejecting network programs which the station reasonably believes to be unsatisfactory or unsuitable or (b) from substituting for the network program a program of outstanding local or national importance (3.105).
After making its order of May 2, 1941, the Commission deferred its effective date until further order. By its order of October 11,1941, the Commission fixed the effective date as November 15, 1941, and directed “that the effective date of Regulation 3.106 with respect to any station may be extended from time to time in order to permit the orderly disposition of properties,” and “that the effective date of Regulation 3.107 shall be suspended indefinitely and any further order of the Commission placing said Regulation 3.107 in effect shall provide for not less
COLUMBIA SYSTEM v. U. S. 413
407	Opinion of the Court.
than six months’ notice and for further extension of the effective date from time to time in order to permit the orderly disposition of properties.”
The bill of complaint also alleges that the purpose and effect of the regulations are to prohibit station licensees from having agreements of the kind which appellant has with its affiliates; that prior to the order of May 2, 1941, it was the practice of the Commission to renew the licenses of stations annually and that the licensed stations have had a reasonable expectancy of the annual renewal of their licenses; that 115 licensed stations have such contracts with appellant, expiring at various times between the original effective date of the regulations and December 31, 1947. It is alleged that when their current licenses expire, at the latest, and perhaps earlier through the revocation of existing licenses, such stations face the loss of their licenses if they perform or continue in force or renew any existing contracts containing the described provisions.
The bill alleges that since the stations fear the loss of their licenses, as a result of the regulations, they will not negotiate for or renew affiliation contracts containing such provisions. And because they fear the loss of their licenses, the stations have threatened to cancel and repudiate their affiliation contracts, and many have notified appellant that they will not be bound by their contracts after the regulations become effective. As a consequence, appellant’s ability to conduct its business and maintain its public broadcasting service is seriously impaired and the regulations will make the operation of appellant’s business more costly, reduce its earnings and render its property and business less valuable.
The bill of complaint was filed October 30, 1941. The following day the Commission promulgated a supplemental “minute” setting up a procedure by which the validity of the regulations might be tested upon application for a license by an individual licensee. The minute declared
414	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
that if a station wished to challenge the regulations the Commission would grant a temporary extension of its license until there had been a final court determination of the issues. In the event of such litigation, and if the validity of the regulations were sustained, “the Commission will nevertheless grant a regular license to the licensee, otherwise entitled thereto, who has unsuccessfully litigated that issue, if the licensee thereupon conforms to the decision.”
An affidavit subsequently submitted by appellant in support of its motion for a temporary injunction states that since the Commission’s minute of October 31st, appellant has continued to receive indications that its affiliates will cancel and repudiate their contracts and refuse to renew them, and has received no indication that the minute has or will have the effect of inducing stations to assume the burden of testing the validity of the regulations. Attached to the affidavit are letters from five affiliates, written after October 31st, indicating their intention not to be bound by the contracts. The affidavit also states appellant’s belief that it would have received more such letters had it not been for its circulation of information concerning the pendency of this suit.
Accepting the allegations of the complaint as true, as for present purposes we must, it is evident that application by the Commission of its regulations in accordance with their terms would disrupt appellant’s broadcasting system and seriously disorganize its business. As the bill alleges, station licenses have been renewable by the Commission annually,2 whereas appellant’s contracts are for five year periods and many of them will survive the expiration of the existing licenses to the affiliated stations. Under Regulations 3.101,3.102,3.103 and 3.104, each affili-
8 On October 11, 1941, the Commission amended Regulation 3.34 to make the normal license period two years.
COLUMBIA SYSTEM v. U. S. 415
407	Opinion of the Court.
ate must repudiate his contract or be denied the renewal of his license. In either case, this would deprive appellant of the station’s participation in its network, for which its contracts call.
Regulation 3.104 not only requires all options by appellant to be exercised on 56 days’ rather than 28 days’ notice as at present, but provides that no option time is exclusive of other networks, and thus allows to appellant no option time within which it can command the use of affiliated stations for any program for broadcasting on a national scale. These sections together thus operate to break down the network enterprise in which appellant and its affiliates are by their contracts cooperating, and to substitute a system in which every station is available to every network on a “first come first served basis.”
The Commission concedes by its brief that, as provided by § 312 (a), “Any station license may be revoked . . . because of conditions revealed by such statements of fact as may be required [of a licensee] from time to time which would warrant the Commission in refusing to grant a license on an original application.” Consequently the regulations by their terms, read in conjunction with § 312 (a), expose licensees, who renew their affiliation contracts, to revocation proceedings by the Commission whenever, upon a statement which the Commission may require, it appears that the licensee has entered into an affiliation contract which the regulations proscribe.
A proceeding to set aside an order of the Commission under § 402 (a) and the Urgent Deficiencies Act is a plenary suit in equity. Hence the questions raised by the motion to dismiss are whether the Commission’s order is an “order,” review of which is authorized by § 402 (a) of the Act, and if so whether the bill states a cause of action in equity. The suit cannot be maintained unless both questions are answered in the affirmative.
416	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Section 402 (a) makes applicable the provisions of the Urgent Deficiencies Act to “suits to enforce, enjoin, set aside, annul, or suspend any order of the Commission” except orders “granting or refusing an application for a construction permit for a radio station, or for a radio station license, or for renewal of an existing radio station license, or for modification of an existing radio station license, or suspending a radio operator’s license.” Review of the orders excepted from § 402 (a) is by appeal to the Court of Appeals of the District of Columbia under the provisions of § 402 (b). See Scripps-Howard Radio v. Federal Communications Comm’n, ante, p. 4. Since the Commission’s order neither grants, denies nor modifies any license, any review in advance or independently of an application for a station license must be under § 402 (a), and then only if the Commission’s order promulgating the regulations is an “order” within the meaning of this section. The particular label placed upon it by the Commission is not necessarily conclusive, for it is the substance of what the Commission has purported to do and has done which is decisive. Powell v. United States, 300 U. S. 276, 284-85; A. F. oj L. v. Labor Board, 308 U. S. 401,408.
The Commission’s investigation of the contractual relations between the networks and the stations, which resulted in the order now under attack, was for the stated purpose of prescribing regulations of such relationships. The order authorizing the investigation recited that the proceeding was taken under § 303 (i) of the Act, which gives the Commission “authority to make special regulations applicable to radio stations engaged in chain broadcasting.” Since the Commission is not in terms given authority to regulate contractual relations between the stations and the networks, regulation of them could be accomplished only by regulating licensed radio stations which participate in chain broadcasting. It was by regulations in terms applicable to such stations that the Com-
COLUMBIA SYSTEM v. U. S. 417
407	Opinion of the Court.
mission sought to control their contractual relationships with the networks.
The order is thus in its genesis and on its face, and in its practical operation, an order promulgating regulations which operate to control such contractual relationships, and it was adopted by the Commission in the avowed exercise of its rule-making power. Such regulations which affect or determine rights generally, even though not directed to any particular person or corporation, when lawfully promulgated by the Interstate Commerce Commission, have the force of law and are orders reviewable under the Urgent Deficiencies Act. Assigned Car Cases, 274 U. S. 564; United States v. B. & O. R. Co., 293 U. S. 454. And regulations of like character, by which the Communications Commission has prescribed generally the records and accounts to be kept by telephone companies subject to its jurisdiction, are similarly reviewable under § 402 (a). A.T.&T.Co. v. United States, 299 U. S. 232.
The regulations here prescribe rules which govern the contractual relationships between the stations and the networks. If the applicant for a license has entered into an affiliation contract, the regulations require the Commission to reject his application. If a licensee renews his contract, the regulations, with the sanction of § 312 (a), authorize the Commission to cancel his license. In a proceeding for revocation or cancellation of a license, the decisive question is whether the station, by entering into a contract, has forfeited its right to a license as the regulations prescribe. It is the signing of the contract which, by virtue of the regulations alone, has legal consequences to the stations and to appellant. The regulations are not any the less reviewable because their promulgation did not operate of their own force to deny or cancel a license. It is enough that failure to comply with them penalizes licensees, and appellant, with whom they contract. If an administrative order has that effect it is reviewable and it 461263°—43------27
418	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
does not cease to be so- merely because it is not certain whether the Commission will institute proceedings to enforce the penalty incurred under its regulations for non-compliance. Assigned Car Cases, supra; A. T. & T. Co. v. United States, supra.
The regulations are rules which in proceedings before the Commission require it to reject and authorize it to cancel licenses on the grounds specified in the regulations without more. If the regulations are valid they alter the status of appellant’s contracts and thus determine their validity in advance of such proceedings. By striking them down by a determination proclaimed in advance that licenses shall be cancelled or refused because of a previous failure to comply with the regulations, they impose a penalty and sanction for noncompliance far more drastic than the fines customarily inflicted for breach of reviewable administrative orders.
Most rules of conduct having the force of law are not self-executing but require judicial or administrative action to impose their sanctions with respect to particular individuals. Unlike an administrative order or a court judgment adjudicating the rights of individuals, which is binding only on the parties to the particular proceeding, a valid exercise of the rule-making power is addressed to and sets a standard of conduct for all to whom its terms apply. It operates as such in advance of the imposition of sanctions upon any particular individual. It is common experience that men conform their conduct to regulations by governmental authority so as to avoid the unpleasant legal consequences which failure to conform entails. And in this case it is alleged without contradiction that numerous affiliated stations have conformed to the regulations to avoid loss of their licenses with consequent injury to appellant.
Such regulations have the force of law before their sanctions are invoked as well as after. When, as here, they
COLUMBIA SYSTEM v. U. S. 419
407	Opinion of the Court.
are promulgated by order of the Commission and the expected conformity to them causes injury cognizable by a court of equity, they are appropriately the subject of attack under the provisions-of § 402 (a) and the Urgent Deficiencies Act. A. T. & T. Co. v. United States, supra; Rochester Telephone Corp. v. United States, 307 U. S. 125; Interstate Commerce Comm’n v. Goodrich Transit Co., 224 U. S. 194; Kansas City So. Ry. Co. v. United States, 231 U. S. 423; Assigned Car Cases, supra; Chicago, R. I. & P. Ry. Co. v. United States, 284 U. S. 80; United States v. B. & 0. R. Co., supra.
It is no answer to say that the regulations are addressed only to the Commission and merely prohibit it from granting—and authorize it to cancel—licenses in the case of all stations entering into such contracts, and that accordingly all stations are left free to enter into contracts or not, as they choose. They are free only in the sense that all those who do not choose to conform to regulations which may be determined to be lawful are free by their choice to accept the legal consequences of their acts. Failure to comply with the regulations entails such consequences to the station owner and to appellant. These are the loss of the affiliated stations’ licenses if they adhere to their contracts, and disruption of appellant’s network through the declared unlawfulness of the contracts, if the regulations are valid.
The purposes sought to be accomplished by § 402 (a) and the Urgent Deficiencies Act would be defeated if a suitor were unable to resort to them to avoid reasonably anticipated irreparable injury resulting from such legal consequences of the Commission’s order, merely because the Commission as yet has neither refused to renew a license, as the regulations require, nor cancelled a license, as the regulations permit. Such an argument addressed to the form rather than the substance of the order was rejected in Powell v. United States, supra [300 U. S. 276];
420	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. 8.
cf. A. F. of L. v. Labor Board, supra, 308 U. S. 408. The Powell case likewise repudiates the suggestion that, merely because the order is not in terms addressed to those whose rights are affected, they cannot seek its review. See also Western Pacific R. Co. v. Southern Pacific Co., 284 U. S. 47; Claiborne-Annapolis Ferry Co. v. United States, 285 U. S. 382.
The order here is not one, as the Government argues and as the court below seemed to think, where the complainant’s rights are affected only on the contingency of future administrative action, as in United States v. Los Angeles & S. L. R. Co., 273 U. S. 299; cf. Rochester Telephone Corp. v. United States, supra, 307 U. S. 130. As the Court declared in the Los Angeles case, 309, 310, reviewable orders are “an exercise either of the quasi-judicial function of determining controversies or of the delegated legislative function of rate making and rule making.” And the Court pointed out that the “so-called order” in that case did not “determine any right or obligation” or change the plaintiff’s “existing or future status or condition,” and that it was “merely the formal record of conclusions reached after a study of data collected in the course of extensive research conducted by the Commission” and “is the exercise solely of the function of investigation.”
Here the Commission exercised its rule-making power by adopting regulations whose operation is not made subject to future administrative determinations, save only as the Commission may be called on to decide in any given case whether a station’s contract with a network is within the regulations. The regulations’ applicability to all who are within their terms does not depend upon future administrative action. Instead, they operate to control such action and to determine in advance the rights of others affected by it. The Commission gave its own recognition
COLUMBIA SYSTEM v. U. S. 421
407	Opinion of the Court.
that such is their operation by its successive postponements of the effective date of the order for a period now expired, and by its suspension of Regulations 3.106 and 3.107, in order to enable the networks to dispose of their properties.
Of course, the Commission was at liberty to follow a wholly different procedure. Instead of proclaiming general regulations applicable to all licenses, in advance of any specific contest over a license, it might have awaited such a contest to declare that the policy which these regulations embody represents its concept of the public interest. As a matter of sound administrative practice, both the rule-making proceeding and the specific license proceeding undoubtedly have much to commend them. But they are by no means the same, nor do they necessarily give rise to the same kind of judicial review. Having adopted this order under its rule-making power, the Commission cannot insist that the appellant be relegated to that judicial review which would be exclusive if the rulemaking power had never been exercised and consequently had never subjected appellant to the threatened irreparable injury.
The court below assumed that if appellant had any equitable cause of action, it must be prosecuted in an ordinary suit and not under the provisions of the Urgent Deficiencies Act. But we think this mistakes both the nature of the regulations and the purpose of suits under that Act, as incorporated in § 402 (a). Such a cause of action obviously can arise only because of the operation of the regulations. The regulations are the effective implement by which the injury complained of is wrought, and hence must be the object of the attack. It is because they are an exercise of the rule-making power, and because they presently determine rights on the basis of which the Commission is required to withhold licenses and au
422	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
thorized to cancel them, that there is an order within the meaning of § 402 (a)’ and the Urgent Deficiencies Act.
The Commission argues that, since its Report characterized the regulations as announcements of policy, the order promulgating them is no more subject to review than a press release similarly announcing its policy. Undoubtedly, regulations adopted in the exercise ot the administrative rule-making power, like laws enacted by legislatures, embody announcements of policy. But they may be something more.. When, as here, the regulations are avowedly adopted in the exercise of that power, couched in terms of command and accompanied by an announcement of the Commission that the policy is one “which we will follow in exercising our licensing power,” they must be taken by those entitled to rely upon them as what they purport to be—an exercise of the delegated legislative power—which, until amended, are controlling alike upon the Commission and all others whose rights may be affected by the Commission’s execution of them. The Commission’s contention that the regulations are no more reviewable than a press release is hardly reconcilable with its own recognition that the regulations afford legal basis for cancellation of the license of a station if it renews its contract with appellant.
Appellant’s standing to maintain the present suit in equity is unaffected by the fact that the regulations are not directed to appellant and do not in terms compel action by it or impose penalties upon it because of its action or failure to act. It is enough that, by setting the controlling standards for the Commission’s action, the regulations purport to operate to alter and affect adversely appellant’s contractual rights and business relations with station owners whose applications for licenses the regulations will cause to be rejected and whose licenses the regulations may cause to be revoked. Chicago Junction Case, 264 U. S. 258, 266-68; Western Pacific R. Co. v.
COLUMBIA SYSTEM v. U. S. 423
407	Opinion of the Court.
Southern Pacific Co., supra; Claiborne-Annapolis Ferry Co. v. United States, supra; compare, in the case of an attack upon the validity of a statute, Truax v. Raich, 239 U. S. 33, 38-39; Pierce v. Society of Sisters, 268 U. S. 510.
What we have said of the allegations of the complaint, and of the effect of the Commission’s order if those allegations are sustained upon the trial, is enough to establish the threat of irreparable injury to appellant’s business and to show also that the injury can not be avoided, as the Commission suggests, by appellant’s intervention in proceedings upon applications for renewal of licenses by its affiliates or in proceedings to cancel their licenses, if and when such proceedings are instituted. Appellant has sufficiently alleged that the affiliates are cancelling or threatening to cancel their contracts in order to conform to the regulations. It is to avoid the irreparable injury which would result from such wholesale cancellations of its contracts, induced by the force of the regulations, that appellant makes its attack on them now rather than in later proceedings on the individual applications for licenses in those cases, if any, in which the stations are willing to seek licenses without complying with the prerequisites laid down by the regulations.
The issues in such a proceeding are not necessarily the same as the issues here. Intervention in it would afford appellant no assurance either of an adjudication of appellant’s contentions or that the action of other stations would be governed by it. Moreover, if the Commission’s order is, as we hold, a reviewable order, appellant is free to seek review under § 402 (a). It is not thereby, as the court below seemed to think, improperly substituting a different procedure and court for that which Congress has prescribed for the trial of like issues so far as they may be raised on review of an order denying a license. Such issues may likewise be involved in a proceeding, upon the Commission’s own motion, for modification or cancellation
424	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
of a license, which concededly is reviewable under § 402 (a). See Scripps-Howard Radio v. Federal Communications Comm’n, ante, p. 4. But review of the order by a licensee in such a proceeding affords no adequate remedy. If ever instituted, which is uncertain, it would come too late to save appellant from the injury wrought by the outlawry of its contracts.
Nor does the Commission’s minute, filed after the present suit was brought, afford an adequate basis for requiring appellant to seek relief by intervention in a proceeding on application for a license reviewable under § 402 (b). In that event the minute would not operate to broaden the issues involved in the renewal application. Nor would it afford a basis for restraining enforcement of the regulations as to other affiliated stations, pending adjudication of the validity of the regulations. Without full exploration of the subject, such as can be had only at the trial, we cannot say that the minute will afford a sufficient inducement to persuade the affiliated stations to cease cancellations and assume the initiative in litigating the validity of the regulations and of the contracts which they undertake to condemn. The affidavit filed in the court below on the application for a stay is to the contrary. And in any case, we are of the opinion that there are no equitable principles by which the right of appellant, upon the showing made by its complaint and affidavit, to test the order under § 402 (a) can justly be suspended to await action which the station owners may or may not take in assuming the burden of challenging the regulations.
We need not stop to discuss here the great variety of administrative rulings which, unlike this one, are not reviewable—either because they do not adjudicate rights or declare them legislatively, or because there are adequate administrative remedies which must be pursued before resorting to judicial remedies, or because there is no occasion to resort to equitable remedies. But we should
COLUMBIA SYSTEM v. U. S. 425
407	Opinion of the Court.
not for that reason fail to discriminate between them and this case in which, because of its peculiar circumstances, all the elements prerequisite to judicial review are present. The ultimate test of reviewability is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow, the results of which the regulations purport to control.
We conclude that the Commission’s promulgation of the regulations is an order reviewable under § 402 (a) of the Act, and that the bill of complaint states a cause of action in equity. The stay now in effect will be continued, on terms to be settled by the court below.
Reversed.
Mr. Justice Black took no part in the consideration or decision of this case.
Orders and regulations of the Federal Communications Commission, considered in the foregoing opinion of the Court:
ORDER OF MAY 2, 1941, AS AMENDED OCTOBER 11, 1941
Now, therefore, it is hereby ordered, That the following regulations be and they are hereby adopted:
Sec. 3.101. Exclusive affiliation of station.—No license shall be granted to a standard broadcast station having any contract, arrangement, or understanding, express or implied, with a network organization under which the station is prevented or hindered from, or penalized for, broadcasting the programs of any other network organization.
Sec. 3.102. Territorial exclusivity.—No license shall be granted to a standard broadcast station having any contract, arrangement, or understanding, express or implied, with a network organization which prevents or hinders
426	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. 8.
another station serving substantially the same area from broadcasting the network’s programs not taken by the former station, or which prevents or hinders another station serving a substantially different area from broadcasting any program of the network organization. This regulation shall not be construed to prohibit any contract, arrangement, or understanding between a station and a network organization pursuant to which the station is granted the first call in its primary service area upon the programs of the network organization.
Sec. 3.103. Term of affiliation.—-No license shall be granted to a standard broadcast station having any contract, arrangement, or understanding, expressed or implied, with a network organization which provides, by original term, provisions for renewal, or otherwise for the affiliation of the station with the network organization for a period longer than two years: Provided, That a contract, arrangement, or understanding for a period up to two years, may be entered into within 120 days prior to the commencement of such period.
Sec. 3.104. Option time.—No license shall be granted to a standard broadcast station which options for network programs any time subject to call on less than 56 days’ notice, or more time than a total of three hours within each of four segments of the broadcast day, as herein described. The broadcast day is divided into 4 segments, as follows: 8:00 a. m. to 1.00 p.m.; 1:00 p.m. to 6:00 p.m.; 6:00 p. m. to 11:00 p. m.; 11:00 p. m. to 8:00 a. m. Such options may not be exclusive as against other network organizations and may not prevent or hinder the station from optioning or selling any or all of the time covered by the option, or other time, to other network organizations.
Sec. 3.105. Right to reject programs.—No license shall be granted to a standard broadcast station having any contract, arrangement, or understanding, express or implied, with a network organization which (a), with respect to programs offered pursuant to an affiliation contract, prevents or hinders the station from rejecting or refusing network programs which the station reasonably believes to be unsatisfactory or unsuitable; or which (b), with respect to network programs so offered or already con-
COLUMBIA SYSTEM v, U. S. 427
407	Opinion of the Court.
tracted for, prevents the station from rejecting or refusing any program which, in its opinion, is contrary to the public interest, or from substituting a program of outstanding local or national importance.
Sec. 3.106. Network ownership of stations.—No license shall be granted to a network organization, or to any person directly or indirectly controlled by or under common control with a network organization, for more than one standard broadcast station where one of the stations covers substantially the service area of the other station, or for any standard broadcast station in any locality where the existing standard broadcast stations are so few or of such unequal desirability (in terms of coverage, power, frequency, or other related matters) that competition would be substantially restrained by such licensing.
Sec. 3.107. Dual network operation.—No license shall be issued to a standard broadcast station affiliated with a network organization which maintains more than one network: Provided, That this regulation shall not be applicable if such networks are not operated simultaneously, or if there is no substantial overlap in the territory served by the group of stations comprising each such network.
Sec. 3.108. Control by networks of station rates. — No license shall be granted to a standard broadcast station having any contract, arrangement, or understanding, express or implied, with a network organization under which the station is prevented or hindered from, or penalized for, fixing or altering its rates for the sale of broadcast time for other than the network’s programs.
[Effective date.] These regulations shall become effective immediately: Provided, That, with respect to existing contracts, arrangements or understandings, or network organization station licenses, the effective date shall be deferred until November 15, 1941: Provided further, That the effective date of Regulation 3.106 with respect to any station may be extended from time to time in order to permit the orderly disposition of properties; and Provided further, That the effective date of Regulation 3.107 shall be suspended indefinitely and any further order of the Commission placing said Regulation 3.107 in effect shall provide for not less than six months’ notice and for
428	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
further extension of the effective date from time to time in order to permit the orderly disposition of properties.
THE MINUTE OF OCTOBER 31, 1941
The Commission today adopted the following minute setting forth the procedure that it will follow in applying the policies announced in the Chain Broadcasting Regulations:
If a station wishes to contest the validity of the Chain Broadcasting Regulations adopted in Docket No. 5060, or the reasonableness of their application to the particular station, its license will be set for hearing. In order to insure that the station may remain on the air and be in no way injured by any such Commission proceeding and appeal to court from a decision in such proceeding, the Commission will grant such licensee a temporary extension of its license, with renewals from time to time until there has been a final determination of the issues raised at such hearing. In the event of such litigation, and if the validity of the application of the Chain Broadcasting Regulations to such licensee is sustained by the courts, the Commission will nevertheless grant a regular license to the licensee, otherwise entitled thereto, who has unsuccessfully litigated that issue, if the licensee thereupon conforms to the decision.
The supplementary decision and order in Docket No. 5060 indefinitely suspended Regulation 3.107, relating to the operation of more than one network by a single network organization. No similar suspension was made of that portion of Regulation 3.106, relating to network operation of more than one standard broadcast station with substantially overlapping service areas. The Commission will postpone indefinitely any action to prevent such dual station operation if it is shown that the operation of two stations in any city is indispensable to the continued operation of two networks by a single network organization.
The adoption of the foregoing procedure is without prejudice to the rights of any person who may petition the Commission for modification or stay of the Chain Broadcasting Regulations.
COLUMBIA SYSTEM v. U. S. 429
407	Frankfurter, J., dissenting.
Mr. Justice Frankfurter, dissenting:
The criteria governing judicial review of “orders” under the Urgent Deficiencies Act were defined by a unanimous Court in United States v. Los Angeles & S. L. R. Co., 273 U. S. 299, 309-10: “The so-called order here complained of is one which does not command the carrier to do, or to refrain from doing, any thing; which does not grant or withhold any authority, privilege or license; which does not extend or abridge any power or facility; which does not subject the carrier to any liability, civil or criminal; which does not change the carrier’s existing or future status or condition; which does not determine any right or obligation.” If “broadcasting company” were substituted for “carrier,” this analysis of the legal consequences of the action of the Interstate Commerce Commission in the Los Angeles case would fit perfectly the legal consequences of the action of the Federal Communications Commission in making public the challenged regulations.
The fact that an action of an administrative agency occasions even irreparable loss does not in itself afford sufficient grounds for judicial review. Even if the Commission committed a wrong, the question of judicial reviewability still remains that put in the Los Angeles case, 273 U. S. at 313, to wit, is it “a wrong for which Congress provides a remedy under the Urgent Deficiencies Act” of October 22,1913,38 Stat. 208,219, as incorporated in § 402 (a) of the Communications Act of 1934?
For Congress has not authorized resort to the federal courts merely because someone feels aggrieved, however deeply, by an action of the Federal Communications Commission. A District Court of the United States can take a case only when Congress has authorized that type of case to be taken. Congress did not leave opportunity for reviewing damaging action by the Federal Communica-
430	OCTOBER TERM, 1941.
Frankfurter, J., dissenting.	316 U. S.
tions Commission to the general equity powers of the district courts. It circumscribed the power of the courts in relation to the Commission in the most detailed way. Its incorporation by reference, in the Communications Act of 1934, of the scope of review allowed in reviewing an “order” of the Interstate Commerce Commission gave all the precise, definite, and technical boundaries which the concept of a reviewable “order” had acquired through the decisions of this Court prior to the enactment of the Communications Act. The precise requirements of an “order” of the Commission for purposes of judicial review are therefore as inflexible as though they were written into the Act itself.
Our problem, then, is this: Does the issuance of the chain broadcasting regulations constitute an “order” reviewable in a proceeding brought under § 402(a) of the Communications Act, in the light of the settled rules for determining what such an “order” is when a determination of the Interstate Commerce Commission is made the basis of judicial review. It is therefore necessary to put out of mind what this case is not. It is not the invocation of equity jurisdiction in order to avoid threatened irreparable harm resulting from the criminal enforcement of an unconstitutional statute, as in Pierce v. Society of Sisters, 268 U. S. 510. Nor do we have here a resort to equity because it is essential for the protection of asserted rights that criminal prosecutions unauthorized by law be restrained, as in Shields v. Utah Idaho R. Co., 305 U. S. 177, 183.
In promulgating these regulations the Communications Commission merely announced its conception of one aspect of the public interest, namely, the relationship of certain provisions in network-affiliation contracts to the obligation of a station licensee to render the most effective service to the listening public. The regulations themselves
COLUMBIA SYSTEM v. U. S. 431
407	Frankfurter, J., dissenting.
determine no rights. They alter the status of neither the networks nor licensees. As such they require nobody— neither the networks, the licensees, nor the Commission— to do anything. They are merely an announcement to the public of what the Commission intends to do in passing upon future applications for station licenses. No action of the stations or the networks can violate the regulations, for there is nothing the regulations require them to do or refrain from doing.
Announcements of general policies intended to be followed by administrative agencies customarily take any one of various forms. Sometimes they are noted in the agency’s annual report to Congress, sometimes in a public announcement or press release, and sometimes, as was the case here, they are published as “rules” or “regulations.” See Final Report of the Attorney General’s Committee on Administrative Procedure (1941), pp. 26-27. But whatever form such announcements may take, their nature and effect is the same. The reason why the Commission formulated its chain broadcasting policy in the form of a “regulation” is given in its report: “We believe that the announcement of the principles we intend to apply in exercising our licensing power will expedite business and further the ends of justice. . . . Good administrative practice would seem to demand that such a statement of policy or rules and regulations be promulgated wherever sufficient information is available upon which they may be based.” Report on Chain Broadcasting, Federal Communications Commission, Order No. 37, Docket No. 5060, p. 85.
With respect to its jurisdiction over matters relating to radio broadcasting, the Communications Commission is essentially a licensing agency. Its regulatory power over the industry is derived, for the most part, from its authority to grant and withhold station licenses. Under § 309
432	OCTOBER TERM, 1941.
Frankfurter, J., dissenting.	316 U. S.
of the Communications Act of 1934 the Commission is required to examine each application for a station license and to determine in each case whether a grant would serve public interest, convenience, or necessity. As was noted in Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134, 138, the Act “expresses a desire on the part of Congress to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission?’ To that end, Congress established an administrative procedure under which the Commission must make a specific determination in each case whether the public interest would be served by granting the particular application before it. No announcement of general licensing policy can relieve the Commission of its statutory obligation to examine each application for a license and determine whether a grant or denial is required by the public interest.
The Commission recognized this fact in issuing these regulations. It explicitly stated that a determination of the requirements of the public interest will, in spite of the regulations, still have to be made in passing upon particular applications: “Announcements of policy may take the form of regulations or of general public statements. In either case, the applicant’s right to a hearing on the question whether he does in fact propose to operate in the public interest is fully preserved. The regulations we are adopting are nothing more than the expression of the general policy we will follow in exercising our licensing power. The formulation of a regulation in general terms is an important aid to consistency and predictability and does not prejudice any rights of the applicant.” Report on Chain Broadcasting, supra, p. 85.
Subsequent to the promulgation of the regulations, the Commission found that substantial modifications were necessary. In its supplemental report on these amend-
COLUMBIA SYSTEM v. U. S. 433
407	Frankfurter, J., dissenting.
ments, the Commission gave further evidence of the flexible nature of the regulations: “The Commission stands ready at all times to amend and modify its regulations upon the petition of any network, national or regional, or any station or group of stations if it can be shown that those regulations prevent profitable network operations, or unduly disturb any aspect of broadcasting, or that because of special or changed circumstances the chain broadcasting regulations should not be applicable to any particular situation.” Moreover, in its Minute of October 31, 1941, designed primarily to protect the interests of station licensees who contest the validity of the regulations, the Commission again made it abundantly clear that the regulations were not final: “If a station wishes to contest the validity of the Chain Broadcasting Regulations . . ., or the reasonableness of their application to the particular station, its license will be set for hearing.”
The regulations do not, therefore, commit the Commission to any definitive course of action in passing upon applications for licenses. Consistently with the regulations (and, parenthetically, consistently with the authority of the Commission to depart from general regulations where such departure is in the public interest, see Radio Commission v. Nelson Bros. Co., 289 U. S. 266, 285), the Commission is free to dilute them with amendments and exceptions. The construction of the regulations and their application to particular situations is still in the hands of the Commission. Administrative adjudication is still open. Before its completion it is not ripe for judicial review.
The characteristics of the administrative determinations in all the cases on which the Court’s opinion relies were wholly different. In each one the force of the law, either through criminal prosecution or injunction or fine or some other judicial remedy, could immediately be brought to 461263°—43------28
434	OCTOBER TERM, 1941.
Frankfurter, J., dissenting.	316 U. S.
bear to enforce the command of the administrative agency. In none of the cases was an administrative action held reviewable which in itself entailed no immediate legal consequences.
Thus, in the Assigned Car Cases, 274 U. S. 564, suit was brought under the Urgent Deficiencies Act to annul an order of the Interstate Commerce Commission prescribing for all railroads within its jurisdiction a rule governing distribution of cars for the transportation of bituminous coal. Under § 402 of the Transportation Act of 1920, 41 Stat. 456, 476, 49 U. S. C. § 1 (12) (14), the carriers were required “to make just and reasonable distribution of cars,” and the Commission was authorized to “establish reasonable rules, regulations, and practices with respect to car service by carriers by railroad.” Failure of a carrier to comply with such regulations issued by the Commission was declared unlawful, subjecting the carrier to a fine of $100 for each offense. Since the order of the Commission commanded carriers to take specified actions, and since the failure to comply with the order would bring immediate legal sanctions, the order was held reviewable.
Similarly, in United States v. B. & 0. R. Co., 293 U. S. 454, the Interstate Commerce Commission required railroads subject to its jurisdiction to equip locomotives with a suitable type of power-operated reverse gear. The Boiler Inspection Act, 36 Stat. 913, 916, expressly provided that violation by a carrier of any rule or regulation issued by the Commission under the Act was punishable by a fine recoverable in a civil action. A suit under the Urgent Deficiencies Act to set aside the Commission’s order was therefore entertained.
A. T.& T. Co. v. United States, 299 U. S. 232, was a suit under § 402 (a) of the Communications Act of 1934, the same provision upon which jurisdiction of the present litigation is based, to set aside an order of the Federal Communications Commission prescribing a uniform system of
COLUMBIA SYSTEM v. U. S. 435
407	Frankfurter, J., dissenting.
accounts for telephone companies within the Act. Section 220 (a) authorized the Commission to prescribe such forms of accounts, and § 220 (d) made the failure or refusal of a company to keep accounts in the manner prescribed by the Commission unlawful, punishable by a $500 forfeiture for each day of the continuance of the offense. Because of the legal sanctions immediately attaching upon its violation, the order was held reviewable.
In Interstate Commerce Comm’n v. Goodrich Transit Co., 224 U. S. 194, the Commission, under the authority vested in it by § 20 of the Interstate Commerce Act, issued orders prescribing forms of accounts, records, and memoranda and calling for annual reports of carriers by water. Section 20 (7) made it unlawful for such carriers to keep any accounts other than those prescribed by the Commission. A suit to set aside the orders was therefore entertained. Similarly, in Kansas City So. Ry. v. United States, 231 U. S. 423, suit was brought to annul regulations of the Interstate Commerce Commission prescribing a uniform bookkeeping and accounting system for interstate railway carriers. Since carriers who failed to keep accounts as ordered by the regulations were subject to penalties under § 20 (7) of the Act, jurisdiction was taken. And in Chicago, R. I. & P. Ry. Co. v. United Stales, 284 U. S. 80, the Interstate Commerce Commission prescribed car-hire settlement rules governing use by common carriers of each other’s cars. Violation of such rules by carriers was declared unlawful and subject to fines. Consequently, a suit to set aside the rules was entertained.
Of course, the mere fact that an administrative order determines a status does not mean that it is not reviewable. If an administrative determination of status has the effect of subjecting a person to legal obligations, whether embodied in statute or previously formulated administrative commands, or otherwise affecting legal rights, such a determination possesses the elements of a
436	OCTOBER TERM, 1941.
Frankfurter, J., dissenting.	316 U. S.
reviewable order. Thus, in Rochester Telephone Corp. v. United States, 307 U. S. 125, the Federal Communications Commission had issued orders requiring all telephone carriers subject to the Communications Act of 1934 to file schedules of their charges, copies of contracts with other carriers, etc. Section 203 (e) of the Act provides that a carrier which fails or refuses to comply with such rules of the Commission shall forfeit $500 for each offense, and $25 for each day of its continuance. After investigation and hearing, the Commission determined that the Rochester Telephone Corporation was a telephone carrier subject to the Act and therefore subject to the previously promulgated general orders directed to carriers within the Commission’s jurisdiction. “The order of the Communications Commission in this case was therefore reviewable. It was not a mere abstract declaration regarding the status of the Rochester under the Communications Act, nor was it a stage in an incomplete process of administrative adjudication. The contested order determining the status of the Rochester necessarily and immediately carried direction of obedience to previously formulated mandatory orders addressed generally to all carriers amenable to the Commission’s authority. Into this class of carriers the order under dispute covered the Rochester, and by that fact, in conjunction with the other orders, made determination of the status of the Rochester a reviewable order of the Commission.” Rochester Telephone Corp. n. United States, 307 U. S. at 143-44. Compare A. F. of L. v. Labor Board, 308 U. S. 401, 408. Unlike the action taken by the Federal Communications Commission in the Rochester case, its action here carried no directions of obedience of any kind to anyone.
It is said that the regulations derive legal effect through § 312 (a) giving the Commission authority to revoke licenses, and that “by virtue of the regulations alone,” the networks and their affiliates are now subjected to legal
COLUMBIA SYSTEM v. U. S. 437
407	Frankfurter, J., dissenting.
detriment. But this is merely another way of phrasing the main contention that the regulations at once and without further action by the Commission release legal sanctions. But the regulations have no such effect. To be sure, the Commission can revoke a station license “because of conditions revealed by such statements of fact as may be required from time to time which would warrant the Commission in refusing to grant a license on an original application.” But the Commission may never require a licensee to file a statement of fact under § 312 (a); its provisions may therefore never come into operation. In any event, the regulations as such do not subject licensees to any sanctions. A license can be revoked under § 312 (a) because of the licensee’s failure to operate its station in the public interest, as required by the statute. The regulations adopted by the Commission cannot operate to revoke any licenses. It is only after a proceeding has been started (in which the licensee is entitled to a hearing during which the revocation order is suspended) and adversely concluded against a party that legal sanctions come into play—the Commission can bring proceedings to enforce its order of revocation and, correspondingly, the licensee can bring suit under § 402 (a) challenging the validity of the Commission’s termination of the license.
Section 502 of the Communications Act provides that the violation of “any rule, regulation, restriction, or condition made or imposed by the Commission under authority of this Act” shall be a criminal offense. Would the renewal by a licensee of its network-affiliation contract subject it to the criminal penalties imposed by § 502? Obviously not, for the regulations do not forbid a licensee from taking that or any other action. And, for the same reason, a license could not be revoked under the provision of § 312 (a) which authorizes revocation “for violation
438	OCTOBER TERM, 1941.
Frankfurter, J., dissenting.	316 U. S.
of or failure to observe . . . any regulation of the Commission authorized by this Act. . . .” If the Commission had issued regulations which ordered licensees to do or refrain from doing something, the problem would be entirely different. Violation by a licensee of such a regulation would be grounds for revocation of its license, under § 312 (a), and for the imposition of criminal penalties, under § 502. And, the other requisites being present, such a regulation could be reviewed as a final administrative determination.
This leaves only the suggestion that since the action taken by the Commission, although not the completion of its adjudicatory process, nevertheless drastically affects substantial business interests, it is proper for the courts to intercede at this stage. Even if this argument were to be considered as if it had never before been made to and rejected by this Court, its infirmities are obvious. As a practical matter, the impact upon the business operations of the networks and their affiliated stations would probably be as disturbing as if the policies formulated in the regulations had been expressed through a press release, or if only the report, which is not only the foundation of the regulations but also embodies them, had been published without the regulations which are only the summary of the report, or if Congress itself had incorporated these regulations into the text of the Communications Act. It will hardly be argued that any of these steps could be the subject of judicial review before the Commission acted upon particular applications. But assume that the greater formality given to the announcement of the Commission’s statement of policy through the regulations intensified the practical business consequences. Congress has not conferred upon the district courts jurisdiction over “practical business consequences.” They can review action of administrative
COLUMBIA SYSTEM v. U. S. 439
407	Frankfurter, J., dissenting.
agencies only when there is an “order,” and when Congress in § 402 (a) made only an “order” of the Communications Commission reviewable, it incorporated the settled doctrine established by an unbroken series of decisions in this Court that the courts could review only a final determination by an agency whereby its administrative process has been concluded.
This is not the first time that the federal courts have been urged to sit in judgment upon “practical business consequences” where the action to be reviewed did not represent the final stage of administrative adjudication. The arguments made in this case have been made in the past but heretofore have always been rejected by this Court. The classic formulation and application of the doctrine of finality as to orders under the Urgent Deficiencies Act was contained in United States v. Los Angeles & S. L. R. Co., 273 U. S. 299. In view of the thoroughness of the argument at the bar, and the weightiness of the opinion, that case has ever since been regarded as furnishing the guideposts in this field of law. It should govern here.
Suit was brought there to annul and enjoin an order of the Interstate Commerce Commission determining the final valuation for rate-making purposes of the Los Angeles & Salt Lake Railroad Company, which operated a thousand miles of railroad lines. The valuation fixed by the Commission was $45,200,000; the carrier claimed that, if the Commission had employed proper standards of valuation, the figure would be $70,000,000, a difference of $24,800,000. At the time suit was brought, approximately 250,000 miles of railroad lines throughout the country were undergoing valuation. The validity of the criteria employed by the Commission in the case of the Los Angeles & Salt Lake Railroad Company was therefore of enormous national significance. In the words of
440	OCTOBER TERM, 1941.
Frankfurter, J., dissenting.	316U.S.
Commissioner Eastman, “This case deals with an issue of greater moment to the country than any that we have ever determined.” 75 I. C. C. 523. These issues, involving practically every phase of valuation law, were canvassed in an adversary proceeding before the Commission lasting nearly a year and a half, resulting in a report of one hundred and forty pages, and expressed in a formal “order” of ten pages. Counsel for the railroad company there, as do counsel for the broadcasting company here, relied upon the practical finality of the order as a basis for review: “As a practical matter, the Commission in any and all proceedings in which it has occasion to use this valuation will give it not prima facie but conclusive effect. In the valuation proceeding before the Commission which resulted in this order petitioner introduced its evidence of the value of the properties and the proceeding resulted in a valuation greatly at variance with the evidence and contentions of petitioner. No greater effect will be given to evidence which petitioner may introduce in some future proceeding before the Commission in an attempt to overcome the prima facie effect accorded by the Act to this valuation order. Therefore, unless and until set aside and annulled, this valuation will stand as a continuing menace against petitioner, and may be repeatedly used to petitioner’s prejudice in rate, division, consolidation, securityissue and recapture proceedings.” Brief for Appellee, pp. 64-65.
The Court specifically referred to this argument of counsel: “One [argument in support of jurisdiction] is that since the Commission has by reason of errors of law and of judgment grossly undervalued the property, its report will, unless suppressed, injure the credit of the carrier with the public.” Finding, however, that the order did not finally determine any legal rights, the Court refused review: “Its [the Commission’s] conclusions, if erroneous in law, may
COLUMBIA SYSTEM v. U. S. 441
407	Frankfurter, J., dissenting.
be disregarded. But neither its utterances, nor its processes of reasoning, as distinguished from its acts, are a subject for injunction.” 273 U. S. at 314-15?
To argue that irreparable injury implies reviewability is, in effect, to contend that there must be a remedy because the plaintiff claims serious damage. But in these situations—in reviewing “orders” under the Urgent Deficiencies Act—federal courts can give a remedy only to enforce a legal right, and a legal right cannot be derived merely by concluding that a particular claim of hardship should afford a remedy. While formally we may appear to be dealing with technicalities, behind these considerations lie deep issues of policy in the division of authority as between administrative agencies and courts in carrying out the constitutional will of Congress. The source of the misconception underlying the claim for equitable relief in this case is the assumption that this is merely an ordinary invocation of equity, as though it were a controversy between two litigants of which only the courts are or can be seized. What we are here concerned with is due regard for the proper distribution made by Congress of legal authority as between two law-enforcing agencies of government, the administrative and the judicial. See United States v. Morgan, 307 U. S. 183, 190-91; Federal Communications Comm’n v. Pottsville Broadcasting Co., 309 U. S. 134.
1 To the same effect is United States v. Illinois Central R. Co., 244 IT. S. 82. There the Interstate Commerce Commission issued an order fixing the time and place for hearing complaints made by various coal companies seeking damages against railroads for failing to supply a sufficient number of coal cars for their shipping needs. The railroads brought suit under the Urgent Deficiencies Act to annul this order, alleging that unless the hearing were restrained, the railroads would be put to enormous expense and inconvenience. The Court held that the notice of hearing “had no characteristic of an order, affirmative or negative,” and since it “was a mere incident in the proceeding,” the suit could not be entertained. 244 U. S. at 89.
442	OCTOBER TERM, 1941.
Frankfurter, J., dissenting.	316 U. S.
This case illustrates anew the influence of a particular instance of felt hardship in derailing legal principles from customary tracks. But this is not an isolated case. If threatened damage through general pronouncement of policy for future administrative action, even if cast in the formal language of a regulation, is to give rise to equitable review apart from the rule that judicial review is premature because of want of administrative finality, the same basis of irreparable harm which is here equated to jurisdiction will bear rich litigious fruit in the case of “regulations” issued by the Securities and Exchange Commission which are damaging in their immediate repercussions to stock exchange and holding companies, or regulations announced by the Treasury for the guidance of taxpayers but which adversely affect business interests, or regulations by the Federal Power Commission, etc. Suppose, for example, that the Commissioner of Internal Revenue issues a ruling that profits derived by radio stations from their network operations are subject to a tax deemed by them onerous and illegal. Could a network successfully bring a suit in equity prior to the imposition of such taxes to invalidate the ruling on the ground that its practical consequence was the cancellation of or refusal to renew network affiliations? One had supposed that the answer was clearly no. But surely in principle the problem is essentially that of the cases before us.
A final consideration remains. We are not dealing with the reviewability of administrative orders in. vacuo. The reviewability of an order of the Federal Communications Commission depends upon the statutory scheme of judicial review embodied in § 402 of the Communications Act of 1934. Therefore, even if the regulations could be deemed to possess the essential attributes of a reviewable order, it would not inevitably follow that the order is reviewable in the manner provided for by § 402 (a) of the Act. The scope and historical background of the provisions for judi-
COLUMBIA SYSTEM v. U. S. 443
407	Frankfurter, J., dissenting.
cial review contained in the Communications Act of 1934 have too recently been canvassed, see Scripps-Howard Radio v. Federal Communications Comm’n, ante, p. 4; Federate ommunications Comm’n v. Columbia Broadcasting System, 311 U. S. 132; Federal Communications Comm’n v. Pottsville Broadcasting Co., 309 U. S. 134, to require detailed consideration here. Briefly, the Act created two avenues by which orders of the Federal Communications Commission were open to review by the federal courts. Under § 402 (a), incorporating the provisions of the Urgent Deficiencies Act of October 22, 1913, 38 Stat. 208,219, relating to judicial review of orders of the Interstate Commerce Commission, a suit to enforce, set aside, annul, or suspend an order of the Federal Communications Commission may be brought in a specially constituted district court, with a right of direct appeal to this Court, only if the order does not fall within the exceptions enumerated by § 402 (b), namely, orders granting or denying applications for station licenses or construction permits and for renewal or modification of licenses. Review of the orders comprehended within § 402 (b) is available only through an appeal to the Court of Appeals for the District of Columbia, with no right of direct appeal to this Court.
If the regulations do constitute an order, what kind of an order can it be? It must be in the nature of a blanket denial, operating in juturo, to be sure, of applications for renewal of station licenses. But the Act expressly precludes judicial review of orders denying renewal applications of licensees in any manner other than that prescribed by § 402 (b), to wit, by an appeal to the Court of Appeals for the District of Columbia. As the court below held, the effect of taking jurisdiction in these cases is to substitute a different court and a different procedure for those specified by Congress. This Court has not in the past displayed such an indifference to the particularities
444	OCTOBER TERM, 1941.
Frankfurter, J., dissenting.	316U.S.
of legislation defining the jurisdiction of the lower federal courts. On the contrary, only last Term did the Court insist upon strict compliance with the statutory scheme for judicial review established by the Communications Act of 1934. See Federal Communications Comm’n v. Columbia Broadcasting System, 311 U. S. 132.
Even if we were free to disregard the scheme for judicial review which Congress has established, I could not agree that an appeal under § 402 (b) would not be an adequate means for testing the claims made in the present litigation. There is essentially only one issue on the merits in this proceeding, namely, whether the adoption by the Commission of the policies expressed in the regulations transgresses its statutory and constitutional authority. But this issue could be raised and fully determined in an appeal under § 402 (b) from an order denying a renewal application. Indeed, in its Minute of October 31, 1941, the Commission explicitly stated that the validity of the regulations could be put in issue in a renewal proceeding. If anything, therefore, the issues in an appeal under § 402 (b) would be broader and not narrower than the issues here. Moreover, since the reasonableness of the application of the regulations to the particular situation would also be in issue in the renewal proceeding, the reviewing court would have before it a record containing elements of concreteness and particularity not present in the record now before us.
The Commission’s Minute enables a licensee to contest the validity of the regulations, or the reasonableness of applying them to the particular case, without fear of losing its license. “In order to insure that the station may remain on the air and be in no way injured by any such Commission proceeding [contesting the validity of the regulations] and appeal to court from a decision in such proceeding, the Commission will grant such licensee a
COLUMBIA SYSTEM v. U. S. 445
407	Frankfurter, J., dissenting.
temporary extension of its license, with renewals from time to time until there has been a final determination of the issues raised at such hearing. In the event of such litigation, and if the validity of the application of the Chain Broadcasting Regulations to such licensee is sustained by the courts, the Commission will nevertheless grant a regular license to the licensee, otherwise entitled thereto, who has unsuccessfully litigated that issue, if the licensee thereupon conforms to the decision.”
Plainly, therefore, a licensee is under no compulsion to cancel or modify its affiliation contract. Licensees who regard the regulations as invalid are free to continue their existing contracts and at the same time challenge the regulations in the orderly manner provided by the Act—and without any danger of losing their right to continue broadcasting. Similarly, the interests of the networks may be protected through intervention in renewal proceedings. Under the Commission’s procedure, Rule 1.102 of the Rules of Practice and Procedure, where a renewal application is designated for hearing because of the licensee’s contractual arrangements with others, the latter are customarily permitted to intervene. See, for example, Application of E. J. Regan and F. Arthur Bostwick, Docket No. 5788; Application of John H. Stenger, Jr., Docket No. 5430.
We need go no farther than this litigation to perceive the unfortunate effects of premature judicial review. The chain broadcasting regulations were issued on May 2, 1941, more than a year ago. They were adopted by the Commission as a consequence of its finding, after an investigation lasting more than three years, that certain features of network-affiliation contracts prevented licensees from effectively discharging their obligation to render the fullest service to the listening public. The policy formulated by the Commission may or may not be wise—that is not our concern. But we cannot blink the fact that this litigation has for more than a year pre-
446	OCTOBER TERM, 1941.
Frankfurter, J., dissenting.	316 U. S.
vented the Commission from testing by experience the practical wisdom of a policy found by it to be required by the public interest. The commencement of a proceeding under § 402 (b) would not have presented the jurisdictional problems present in this proceeding. Surely those desirous of a speedy adjudication of the issue of the validity of the regulations were aware that the commencement of a proceeding under § 402 (a) would not produce a prompt adjudication on the merits, but that it would instead result in postponing for a considerable period the effective date of the regulations, with all the contingent advantages afforded by such postponement.
Hardship there may well come through action of an administrative agency. But to slide from recognition of a hardship to assertion of jurisdiction is once more to assume that only the courts are the guardians of the rights and liberties of the people. In denying that it had power to review the action of the Federal Communications Commission because that body had not yet determined a legal right, the court below, as Judge Learned Hand’s opinion abundantly proves, was not respecting a rule of etiquette. On the contrary, it merely recognized that the federal courts are entrusted with the correction of administrative errors or wrong-doing only to the extent of Congressional authorization. To say that the courts should reject the doctrine of administrative finality and take jurisdiction whenever action of an administrative agency may seriously affect substantial business interests, regardless of how intermediate or incomplete the action may be, is, in effect, to imply that the protection of legal interests i§ entrusted solely to the courts. The unbroken current of this Court’s decisions in construing the scope of judicial review under the Urgent Deficiencies Act, and which is the only warrant for jurisdiction in this case, repels such a contention. The decision should therefore be affirmed.
Mr. Justice Reed and Mr. Justice Douglas join in this dissent.
NAT. BROADCASTING CO. v. U. S. 447
Opinion of the Court.
NATIONAL BROADCASTING CO., INC., et al. v. UNITED STATES et al.
appeal from the district court of the united states FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 1025. Argued April 30, May 1,1942.—Decided June 1,1942.
Decided in accordance with No. 1026, Columbia Broadcasting System v. United States, ante, p. 407. P. 449.
44 F. Supp. 688, reversed.
Appeal from a decree of the District Court dismissing for want of jurisdiction a bill to set aside an order of the Federal Communications Commission.
Mr. John T. Cahill, with whom Messrs. David M. Wood, Thomas H. Middleton, A. L. Ashby, and E. W. Middleton were on the brief, for appellants.
Mr. Telford Taylor, with whom Solicitor General Fahy and Messrs. Robert L. Stern, Richard S. Salant, Charles R. Denny, Harry M. Plotkin, and Max Goldman were on the brief, for the United States et aL; and Mr. Louis G. Caldwell, with whom Messrs. Leon Lauterstein, Emanuel Dan-nett, and Percy H. Russell, Jr. were on the brief (Mr. Donald C. Beelar entered an appearance), for the Mutual Broadcasting System, Inc., appellees.
Mr. Chief Justice Stone delivered the opinion of the Court.
This is a companion case to Columbia Broadcasting System v. United States, ante, p. 407. Both present substantially similar facts and the same issues of law.
Appellant, National Broadcasting Company, maintains two radio broadcasting systems, the “blue network” and the “red network.” The two other appellants operate radio broadcasting stations licensed by the Communica
448	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
tions Commission, and have entered into contracts with National similar to those involved in the Columbia case and to those of other stations which participate in National’s networks.
Appellants brought the present suit in the Southern District of New York to set aside the order of the Commission of May 2, 1941, as amended by its order of October 11,1941, promulgating the Chain Broadcasting Regulations which we considered in the Columbia case, on the grounds that the order is beyond the Commission’s statutory authority or, if within it, that the statute is an unconstitutional delegation of the legislative power of Congress in violation of Article I, § 1 of the Constitution, and operates to deprive appellants of property without the due process of law guaranteed by the Fifth Amendment.
The district court of three judges dismissed the complaint, 44 F. Supp. 688, holding that the Commission’s order is not reviewable under the provisions of § 402 (a) of the Communications Act of 1934,48 Stat. 1093, 47 U. S. C. § 402 (a), and the Urgent Deficiencies Act, 38 Stat. 219, 28 U. S. C. § 47, but stayed the operation of the order pending direct appeal to this Court.
According to the allegations of the bill of complaint, National conducts its broadcasting business in substantially the same manner as Columbia. It establishes telephone wire connections with licensed broadcasting stations with which it enters into contracts for limited periods for chain broadcasting of its radio programs. These contracts do not require that the station shall broadcast the programs of no other chain than National. But a feature of them is the option given to National for use of the station on 28 days’ notice for certain specified periods of radio time in broadcasting commercial network programs provided by National. It is alleged that, because of the contract provisions, the regulations will require the stations affiliated with National to abandon their contracts
NAT. BROADCASTING CO. v. U. S. 449
447	Opinion of the Court.
or lose their licenses either by the Commission’s cancellation of or refusal to renew them. The bill of complaint makes a sufficient showing of irreparable injury to National, including an allegation that forty-eight affiliated stations have served notice of abrogation of the contracts.
For the reasons stated at length in the opinion in the Columbia case, we hold that the order of the Commission is reviewable in the present suit by the district court of three judges. The bill of complaint states a cause of action in equity. The judgment will accordingly be reversed and the cause remanded for further proceedings.
Unlike the Columbia case, the record discloses no facts showing what effect the Commission’s minute adopted after the present suit was brought has had or will have upon the cancellation of appellants’ contracts by the affiliated stations. So far as relevant that will be a matter for consideration by the court below, as will be the question, not considered here, whether the appellants other than National are proper parties plaintiff.
As in the Columbia case the stay now in effect will be continued, on terms to be settled by the court below.
Reversed.
Mr. Justice Black took no part in the consideration or decision of this case.
Mr. Justice Reed, Mr. Justice Frankfurter and Mr. Justice Douglas dissent for the reasons set forth in the dissenting opinion in Columbia Broadcasting System v. United States, ante, p. 407.
461263’—43-29
450	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
AMERICAN CHICLE CO. v. UNITED STATES.
CERTIORARI TO THE COURT OF CLAIMS.
No. 913. Argued April 29, 1942.—Decided June 1, 1942.
1.	Under § 131 (f) of the Revenue Acts of 1936 and 1938, allowing to a domestic corporation in respect of dividends received from a foreign subsidiary, a tax credit of that proportion of “taxes paid” by the subsidiary which the amount of the dividend bears to the amount of the subsidiary’s “accumulated profits” (i. e., its income less taxes thereon), the words “taxes paid” are properly construed as meaning so much of the subsidiary’s taxes as are attributable to its “accumulated profits,” or the same proportion of the total taxes which the accumulated profits bear to the total profits. P. 452.
2.	A change by the Commissioner of Internal Revenue in the administrative practice, to conform to the plain meaning of the Revenue Act, and operating prospectively, is not precluded by an antecedent administrative interpretation though of long standing. P. 454.
94 Ct. Cis. 699,41 F. Supp. 537, affirmed.
Certiorari, 315 U. S. 793, to review the dismissal of a suit to recover an alleged overpayment of income taxes.
Mr. Erwin N. Griswold for petitioner.
Mr. J. Louis Monarch, with whom Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and Archibald Cox and Mrs. Elizabeth B. Davis were on the brief, for the United States.
Mr. Justice Roberts delivered the opinion of the Court.
This case involves the application of § 131 (f) of the Revenue Acts of 1936 and 1938/ which allows a tax credit to domestic corporations in respect of income received from foreign subsidiaries.
During the taxable years 1936,1937, and 1938, the petitioner, a domestic corporation, received dividends from foreign subsidiaries of which it was sole stockholder. The
149 Stat. 1648, 1696; 52 Stat. 447, 506; 26 U. S. C. § 131.
AMERICAN CHICLE CO. v. U. S. 451
450	Opinion of the Court.
subsidiaries paid taxes upon their earnings to the countries of their domicile. In its income tax returns, the petitioner claimed the credit allowed by § 131 for the foreign taxes so paid. The Commissioner of Internal Revenue computed the credit at a less sum than that the petitioner claimed. The petitioner paid the resultant taxes, and presented claims for refund, which were rejected. This action was brought in the Court of Claims for asserted overpayments.
The sole matter in controversy is the proper method of arriving at the credit granted by § 131. That section permits a domestic corporation to credit against its tax the amount of income, war-profits, and excess-profits taxes paid or accrued during the taxable year to any foreign country, with certain limits set by subsections (b) (1) and (2). The purpose of the provision, like that of its predecessor, § 238 of the Revenue Act of 1921,2 is to obviate double taxation.3
Section 131 (f), dealing with taxes of a foreign subsidiary,4 provides that, for the purpose of the section, a domestic corporation receiving dividends from such a subsidiary “in any taxable year shall be deemed to have paid the same proportion of any income, war-profits, or excessprofits taxes paid” by the subsidiary to a foreign country, “upon or with respect to the accumulated profits” of the subsidiary “from which such dividends were paid, which the amount of such dividends bears to the amount of such accumulated profits.” “Accumulated profits” of the subsidiary are defined as “the amount of its gains, profits, or income in excess of the income, war-profits, and excessprofits taxes imposed upon or with respect to such profits or income.”
2	42 Stat. 227,258.
3	Burnet v. Chicago Portrait Co., 285 U. S. 1.
4	A foreign corporation of whose voting stock the taxpayer owns a majority.
452	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
The parties are in agreement as to the fraction to be used in calculating the proportion. The numerator is the dividends received by the parent. The denominator is the “accumulated profits” of the subsidiary. The dispute relates to the multiplicand to which the fraction is to be applied. The petitioner says it is the total foreign taxes paid by the subsidiary. The respondent says it is the taxes paid upon or with respect to the accumulated profits of the subsidiary; i. e., so much of the taxes as is properly attributed to the accumulated profits, or the same proportion of the total taxes which the accumulated profits bear to the total profits. The Court of Claims so held.5 Since several decisions have gone the other way,6 we granted certiorari.
If the language of the Revenue Act is to be given effect, the Government’s view seems correct. The statute does not purport to allow a credit for a stated proportion of the total foreign taxes paid or the foreign taxes paid “upon or with respect to” total foreign profits, but for taxes paid “upon or with respect to” the subsidiary’s “accumulated profits,” which, by definition, are its total taxable profits less taxes paid.
If, as is admitted, the purpose is to avoid double taxation, the statute, as written, accomplishes that result The parent receives dividends. Such dividends, not its subsidiary’s profits, constitute its income to be returned for taxation. The subsidiary pays tax on, or in respect of, its entire profits; but, since the parent receives distributions out of what is left after payment of the foreign tax,— that is, out of what the statute calls “accumulated profits,” it should receive a credit only for so much of the foreign
3 94 Ct. Cis. 699, 41 F. Supp. 537.
e F. W. Woolworth Co. v. United States, 91 F. 2d 973; International Milling Co. v. United States, 89 Ct. Cis. 128,27 F. Supp. 592; Aluminum Co. of America v. United States, 123 F. 2d 615.
AMERICAN CHICLE CO. v. U. S. 453
450	Opinion of the Court.
tax paid as relates to or, as the Act says, is paid upon, or with respect to, the accumulated profits.
Hence we think that, under the plain terms of the Act, the Commissioner and the court below were right in limiting the credit by the use as multiplicand of a proportion of the tax paid abroad appropriately reflecting the relation of accumulated profits to total profits of the subsidiary. But the petitioner insists that the legislative history and a long indulged administrative construction require us, in effect, to elide the phrase “upon or with respect to the accumulated profits” of the foreign subsidiary.
Section 240 (c) of the Revenue Act of 19187 allowed the domestic parent receiving dividends from a foreign subsidiary a credit for the same proportion of the taxes paid by the foreign corporation during the taxable year to any foreign country which the amount of the dividends received by the parent during the taxable year bore to the total taxable income of the subsidiary upon or with respect to which such taxes were paid.
This provision had the same object as § 131 of the Revenue Acts of 1936 and 1938; that is, to avoid double taxation. The difficulty with it was that it did not relate the credit to the accumulated profits or surplus of the subsidiary out of which the dividends were paid. Thus, if dividends were paid out of surplus earned in prior years, and it happened that the subsidiary paid no tax to the foreign country in the taxable year in question, the parent could claim no credit whatever. There were other eccentric results flowing from the provision of the Act of 1918.
In the Revenue Act of 1921, § 238 (e)8 was the analogous section. The draftsman of the section stated to the Senate Committee in charge of the measure: “I rewrote the old provision, safeguarding it from some abuses which - 7 C. 18, 40 Stat. 1057, 1082.
8 c. 136, 42 Stat. 227, 259.
454	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
it was open to and closing up some of the gaps that were in the old provision.” Section 238 (e) is substantially the same as § 131 (f). The alterations of § 240 (c) of the Act of 1918 were made to permit identification of the accumulated profits of each taxable year out of which the dividends might have been paid and to give credit for a proportion of the subsidiary’s taxes attributable to such accumulated profits.
The Chairman of the Senate Finance Committee indicated that the calculation of the proportion of foreign tax paid would be exactly the same as it had been under the 1918 Act. But this would be true only if the dividends were paid in a given year out of the prior year’s earnings and taxes were paid in the same year in respect of the same prior year’s earnings. The petitioner seeks in this case to apply the proportion provided by the 1918 Act; but this is to ignore the alterations made in that Act in 1921 which have ever since been retained. In Committee hearings and in Congressional Reports with respect to the purpose and effect of the changes wrought by the 1921 Act, there were statements indicating an understanding that the credit was to be proportioned to the dividends made available to the parent in this country.
The Treasury made no regulation applicable to § 238 (e) of the Revenue Act of 1921. It provided a form for reporting the tax, which sanctioned the petitioner’s method of computing the credit; and, from 1921 to 1930, the Commissioner calculated credits for foreign subsidiaries’ taxes by that method. In 1930, however, the Treasury promulgated a new form which required the credit to be computed in the way the Commissioner did in the present case; and promulgated Regulations 77 under the Revenue Act of 1932, which, in Article 698, required the computation of the credit in the same manner. The regulations have since remained unchanged: See Regulations 103 §§ 19.131-3 and 19.131-8. Although
BETTS v. BRADY.	455
450	Syllabus.
the regulations definitely govern this case, and were made prior to the years in controversy, the petitioner insists that the antecedent administrative interpretation long in force renders it impossible for the Commissioner to promulgate a regulation changing for the future the earlier practice, even though the new regulation comports with the plain meaning of the statute. We think the contention cannot be sustained.9
The judgment is
Affirmed.
BETTS v. BRADY, WARDEN.
CERTIORARI TO HON. CARROLL T. BOND, A JUDGE OF THE STATE OF MARYLAND, BEING A JUDGE OF THE COURT OF APPEALS OF MARYLAND FROM THE CITY OF BALTIMORE.
No. 837. Argued April 13, 14, 1942.—Decided June 1, 1942.
1.	In the light of the applicable law of Maryland, an order of the Chief Judge of the Court of Appeals, he being also the judge of that court from the City of Baltimore, denying petitioner’s release upon a writ of habeas corpus, held reviewable here by certiorari under Jud. Code §237, as a “final judgment” of the “highest court” in which a decision of the federal question involved could be had. P. 458.
2.	A judgment of a state tribunal denying release on habeas corpus,
which is not reviewable in any other state court and ends the particular proceeding, is a final judgment within the meaning of Jud. Code § 237, notwithstanding that under the state law the prisoner retains the right to seek discharge by applications to other courts and judges successively. P. 460.	1
3.	The due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment, although a denial by a State of rights or privileges specifically embodied in that and others of the first eight amendments may, in certain circumstances, or in connection with other elements, operate, in a given case, to deprive a litigant of due process of law in violation of the Fourteenth. P. 461.
8 Helvering v. Wilshire OU Co., 308 U. S. 90; Helvering v. Reynolds, 313 U. S. 428; White v. Winchester Country Club, 315 U. S. 32.
456	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
4.	The application of the due process clause to state criminal proceedings is not governed by hard and fast rules. Asserted denial of due process is to be tested by appraisal of all facts in the case; and that which, in one setting, may constitute a denial of due process, because it is a denial of fundamental fairness shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such a denial. P. 462.
5.	Decisions of this Court do not lay down a rule that in every case, whatever the circumstances, one charged with crime, who is unable to obtain counsel, must be furnished counsel by the State. P. 462.
6.	A review of state constitutional and statutory provisions on the subject, in connection with the common law, demonstrates that, in the great majority of the States, it has been the considered judgment of the people, their representatives and their courts that an appointment of counsel for indigent defendants in criminal cases is not a fundamental right, essential to a fair trial, and that the matter has generally been deemed one of legislative policy. In the light of this evidence it can not be said that the concept of due process incorporated in the Fourteenth Amendment obliges the States, whatever may be their own views, to furnish counsel in every such case. P. 471.
7.	Upon the facts of this case, the refusal of a state court to appoint counsel to represent an indigent defendant at a trial in which he was convicted of robbery, did not deny him due process of law in violation of the Fourteenth Amendment. P. 472.
Affirmed.
Certiorari, 315 U. S. 791, to review an order of a judge of the Court of Appeals of Maryland from the City of Baltimore, denying petitioner’s release upon a writ of habeas corpus.
Messrs. Jesse Slingluff, Jr. and G. Van Velsor Wolf for petitioner.
Messrs. William C. Walsh, Attorney General of Maryland, and Robert E. Clapp, Jr., Assistant Attorney General, with whom Mr. Morton E. Rome was on the brief, for respondent.
Mr. Justice Roberts delivered the opinion of the Court.
The petitioner was indicted for robbery in the Circuit Court of Carroll County, Maryland. Due to lack of funds,
BETTS v. BRADY.	457
455	Opinion of the Court.
he was unable to employ counsel, and so informed the judge at his arraignment. He requested that counsel be appointed for him. The judge advised him that this would not be done, as it was not the practice in Carroll County to appoint counsel for indigent defendants, save in prosecutions for murder and rape.
Without waiving his asserted right to counsel, the petitioner pleaded not guilty and elected to be tried without a jury. At his request witnesses were summoned in his behalf. He cross-examined the State’s witnesses and examined his own. The latter gave testimony tending to establish an alibi. Although afforded the opportunity, he did not take the witness stand. The judge found him guilty and imposed .a sentence of eight years.
While serving his sentence, the petitioner filed with a judge of the Circuit Court for Washington County, Maryland, a petition for a writ of habeas corpus alleging that he had been deprived of the right to assistance of counsel guaranteed by the Fourteenth Amendment of the Federal Constitution. The writ issued, the cause was heard, his contention was rejected, and he was remanded to the custody of the prison warden.
Some months later, a petition for a writ of habeas corpus was presented to Hon. Carroll T. Bond, Chief Judge of the Court of Appeals of Maryland, setting up the same grounds for the prisoner’s release as the former petition. The respondent answered, a hearing was afforded, at which an agreed statement of facts was offered by counsel for the parties, the evidence taken at the petitioner’s trial was incorporated in the record, and the cause was argued. Judge Bond granted the writ but, for reasons set forth in an opinion, denied the relief prayed and remanded the petitioner to the respondent’s custody.
The petitioner applied to this court for certiorari directed to Judge Bond. The writ was issued on account of the importance of the jurisdictional questions involved
458	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
and conflicting decisions1 upon the constitutional question presented. In awarding the writ, we requested counsel to discuss the jurisdiction of this court, “particularly (1) whether the decision below is that of a court within the meaning of § 2371 2 * * S of the Judicial Code, and (2) whether state remedies, either by appeal or by application to other judges or any other state court, have been exhausted.”
1.	Sec. 237 of the Judicial Code declares this court competent to review, upon certiorari, “any cause wherein a final judgment . . . has been rendered ... by the highest court” of a State “in which a decision could be had” on a federal question. Was Judge Bond’s judgment that of a court within the meaning of the statute? Answer must be made in the light of the applicable law of Maryland.
Art. 4, § 6 of the State Constitution provides: “All Judges shall by virtue of their offices be Conservators of the Peace throughout the State; . . .” Sec. 1 of Art. 42 of the Public General Laws of Maryland (Flack’s 1939 Edition) invests the Court of Appeals and the Chief Judge thereof, the Circuit Courts for the respective counties, and the several judges thereof, the Superior Court of Baltimore City, the Court of Common Pleas of that city, the Circuit Court and Circuit Court No. 2 of Baltimore City, the Baltimore City Court, and the judges of the said courts, out of court, and the Judge of the Court of Appeals from the City of Baltimore, with power to grant writs of habeas corpus and to exercise jurisdiction in all matters pertaining thereto.
1 In re McKnight, 52 F. 799; Wilson v. Lanagan, 99 F. 2d 544; Boyd
v. O’Grady, 121 F. 2d 146; Carey v. Brady, 125 F. 2d 253; Common-
wealth ex rel. Schultz v. Smith, 139 Pa. Super. Ct. 357, 11 A. 2d 656;
Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A. 2d 1.
S28U. S. C. § 344 (b).
BETTS v. BRADY.	459
455	Opinion of the Court.
Although it is settled that the grant to the Court of Appeals of the power to issue the writ is unconstitutional and void,3 and although the statute does not confer on individual judges of the Court of Appeals the power to issue a writ and proceed thereon, nevertheless, those judges, as conservators of the peace, have the power under the quoted section of the Constitution.4 In any event, Judge Bond is the Chief Judge of the Court of Appeals and the judge of that court from the City of Baltimore and, as such, is empowered to act.
Sections 2 to 6, inclusive, 9 to 12 inclusive, and 17 of the statute prescribe the procedure governing the issue of the writ, its service, the return, and the hearing. No question is made but that Judge Bond complied with these provisions. It is, therefore, apparent that in all respects he acted in a judicial capacity and that, in his proper person, he was a judicial tribunal having jurisdiction, upon pleadings and proofs, to hear and to adjudicate the issue of the legality of the petitioner’s detention. If Judge Bond had been sitting in term time as a member of a court, clothed with power to act as one of the members of that court, his judgment would be that of a court within the scope of § 237. Doubt that his judgment in the present instance is such arises out of our decision in McKnight v. James, 155 U. S. 685, where we refused to review the denial of a discharge by a judge of an inferior court of Ohio who issued the writ and heard the case at chambers. It appeared that the petitioner had addressed his petition to a judge of the Circuit Court instead of the court itself; and that, for this reason, the order of the judge was not reviewable by the Supreme Court of Ohio as it would have been had the writ been addressed
* State v. Glenn, 54 Md. 572, 596; Sevinskey n. Wagus, 76 Md. 335, 25 A. 468.
4 Ex parte O’Neill, 8 Md. 227; Ex parte Mavlsby, 13 Md. 625.
460	OCTOBERS TERM, 1941.
Opinion of the Court.	316 U. S.
to the Circuit Court though heard by a single judge. The petitioner had not exhausted his state remedy since, though he could have obtained a decision by the highest court of the State, he had avoided doing so, and then sought to come to this court directly from the order of the Circuit Judge on the theory that that judge’s order was the final order of the highest court of the State which could decide his case. In a later decision, we referred to this and other cognate cases as deciding that appeals do not lie to this court from orders by judges at chambers,5 but the fundamental reason for denying our jurisdiction was that the appellant had not exhausted state remedies.
In view of what has been said of the power of Judge Bond as a judicial tribunal to hear and finally decide the cause, and of the judicial quality of his action we are of opinion that his judgment was that of a court within the intendment of § 237.
2.	Did the judgment entered comply with the requirement of § 237 that it must be a final judgment rendered by the highest court in which a decision could be had? Again answer must be made in the light of the applicable law of Maryland. The judgment was final in the sense that an order of a Maryland judge in a habeas corpus case, whatever the court to which he belongs, is not reviewable by any other court of Maryland except in specific instances named in statutes which are here inapplicable.6 It is true that the order was not final, and the petitioner has not exhausted state remedies in the sense that in Maryland, as in England, in many of the States, and in the federal courts, a prisoner may apply succes
6	Craig v. Hecht, 263 U. S. 255, 276.
6 Bell v. State, 4 Gill. 301; Ex parte O’Neill, 8 Md. 227; In re Coston, 23 Md. 271; Coston v. Coston, 25 Md. 500; State v. Glenn, 54 Md. 572; Annapolis v. Howard, 80 Md. 244, 30 A. 910; Petition of Otho Jones, 179 Md. 240,16 A. 2d 901.
BETTS v. BRADY.	461
455	Opinion of the Court.
sively to one judge after another and to one court after another without exhausting his right.7 We think this circumstance does not deny to the judgment in a given case the quality of finality requisite to this court’s jurisdiction. Although the judgment is final in the sense that it is not subject to review by any other court of the State, we may, in our discretion, refuse the writ when there is a higher court of the State to which another petition for the relief sought could be addressed,8 but this is not such a case. To hold that, since successive applications to courts and judges of Maryland may be made as of right, the judgment in any case is not final, would be to deny all recourse to this court in such cases.
Since Judge Bond’s order was a final disposition by the highest court of Maryland in which a judgment could be had of the issue joined on the instant petition we have jurisdiction to review it.
3.	Was the petitioner’s conviction and sentence a deprivation of his liberty without due process of law, in violation of the Fourteenth Amendment, because of the court’s refusal to appoint counsel at his request?
The Sixth Amendment of the national Constitution ap^ plies only to trials in federal courts.9 The due process clause of the Fourteenth Amendment does not incorporate,
7	Judge Bond intimates that § 3 of Art. 42, as amended by Laws 1941, c. 484 permits the use of a rule to show cause (cf. Holiday v. Johnston, 313 U. S. 342) or other form of preliminary inquiry to avoid the necessity of the issue of a writ and a hearing where a redundant petition is filed disclosing no new matter. See, Salinger v. Loisel, 265 U. S. 224, 231-232. He determined, however, in this case to issue the writ and afford a hearing.
8	Tenner v. Dvllea, 314 U. S. 692.
8 United States v. Dawson, 15 How. 467, 487; Twitched v. Pennsylvania, 7 Wall. 321,325; Spies v. Illinois, 123 U. S. 131,166; In re Sawyer, 124 U. S. 200, 219; Brooks v. Missouri, 124 U. S. 394, 397; Eilen-becker v. District Court, 134 U. S. 31, 34, 35; West v. Louisiana, 194 U. S. 258, 263; Howard v. Kentucky, 200 U. S. 164,172.
462	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
as such, the specific guarantees found in the Sixth Amendment,10 11 although a denial by a State of rights or privileges specifically embodied in that and others of the first eight amendments may, in certain circumstances, or in connection with other elements, operate, in a given case, to deprive a litigant of due process of law in violation of the Fourteenth.11 Due process of law is secured against invasion by the federal Government by the Fifth Amendment, and is safeguarded against state action in identical words by the Fourteenth. The phrase formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.12 In the application of such a concept, there is always the danger of falling into the habit of formulating the guarantee into a set of hard and fast rules, the application of which in a given case may be to ignore the qualifying factors therein disclosed.
The petitioner, in this instance, asks us, in effect, to apply a rule in the enforcement of the due process clause. He says the rule to be deduced from our former decisions is that, in every case, whatever the circumstances, one charged with crime, who is unable to obtain counsel, must be furnished counsel by the State. Expressions in the
10	Hurtado v. California, 110 U. S. 516; Maxwell v. Dow, 176 U. S. 581; West v. Louisiana, 194 U. S. 258; Tunning v. New Jersey, 211U. 8. 78; Frank v. Mangum, 237 U. S. 309; Snyder v. Massachusetts, 291 U. S. 97; Pdlko n. Connecticut, 302 U. 8.319.
11	Compare Twining v. New Jersey, 211 U. 8. 78, 98; Powell v. Alabama, 287 U. S. 45; Palko v. Connecticut, 302 U. 8. 319, 323 ff.
“ Compare Lisenba n. Califomia, 314 U. S. 219, 236-237.
BETTS v. BRADY.	463
455	Opinion of the Court.
opinions of this court lend color to the argument,13 but, as the petitioner admits, none of our decisions squarely adjudicates the question now presented.
In Powell v. Alabama, 287 U. S. 45, ignorant and friendless negro youths, strangers in the community, without friends or means to obtain counsel, were hurried to trial for a capital offense without effective appointment of counsel on whom the burden of preparation and trial would rest, and without adequate opportunity to consult even the counsel casually appointed to represent them. This occurred in a State whose statute law required the appointment of counsel for indigent defendants prosecuted for the offense charged. Thus the trial was conducted in disregard of every principle of fairness and in disregard of that which was declared by the law of the State a requisite of a fair trial. This court held the resulting convictions were without due process of law. It said that, in the light of all the facts, the failure of the trial court to afford the defendants reasonable time and opportunity to secure counsel was a clear denial of due process. The court stated further that “under the circumstances . . . the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process,” but added: “Whether this would be so in other criminal prosecutions, or under other circumstances, we need not determine. All that it is necessary now to decide, as we do decide, is that, in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign
n Powell v. Alabama, 287 U. S. 45, 73; Gros jean v. American Press Co., 297 U. S. 233, 243, 244; Johnson v. Zerbst, 304 U. S. 458, 462; Avery v. Alabama, 308 U. S. 444, 447.
464	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
counsel for him as a necessary requisite of due process of law, . .
Likewise, in Avery v. Alabama, 308 U. S. 444, the state law required the appointment of counsel. The claim which we felt required examination, as in the Powell case, was that the purported compliance with this requirement amounted to mere lip service. Scrutiny of the record disclosed that counsel had been appointed and the defendant had been afforded adequate opportunity to prepare his defense with the aid of counsel. We, therefore, overruled the contention that due process had been denied.
In Smith v. O’Grady, 312 U. S. 329, the petition for habeas corpus alleged a failure to appoint counsel but averred other facts which, if established, would prove that the trial was a mere sham and pretense, offensive to the concept of due process. There also, state law required the appointment of counsel for one on trial for the offense involved.
Those cases, which are the petitioner’s chief reliance, do not rule this. The question we are now to decide is whether due process of law demands that in every criminal case, whatever the circumstances, a State must furnish counsel to an indigent defendant. Is the furnishing of counsel in all cases whatever dictated by natural, inherent, and fundamental principles of fairness? The answer to the question may be found in the common understanding of those who have lived under the Anglo-American system of law. By the Sixth Amendment the people ordained that, in all criminal prosecutions, the accused should “enjoy the right ... to have the assistance of counsel for his defence.” We have construed the provision to require appointment of counsel in all cases where a defendant is unable to procure the services of an attorney, and where the right has not been intentionally and
BETTS v. BRADY.	465
455	Opinion of the Court.
competently waived.14 Though, as we have noted, the Amendment lays down no rule for the conduct of the States, the question recurs whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment. Relevant data on the subject are afforded by constitutional and statutory provisions subsisting in the colonies and the States prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the States to the present date. These constitute the most authoritative sources for ascertaining the considered judgment of the citizens of the States upon the question.
The Constitutions of the thirteen original States, as they were at the time of federal union, exhibit great diversity in respect of the right to have counsel in criminal cases. Rhode Island had no constitutional provision on the subject until 1843, North Carolina and South Carolina had none until 1868.. Virginia has never had any. Maryland, in 1776, and New York, in 1777, adopted provisions to the effect that a defendant accused of crime should be “allowed” counsel. A constitutional mandate that the accused should have a right to be heard by himself and by his counsel was adopted by Pennsylvania in 1776, New Hampshire in 1774, by Delaware in 1782, and by Connecticut in 1818. In 1780 Massachusetts ordained that the defendant should have the right to be heard by himself or his counsel at his election. In 1798 Georgia provided that the accused might be heard by himself or counsel, or both. In 1776 New Jersey guaranteed the accused the same privileges of witnesses and counsel as their prosecutors “are or shall be entitled to.”
14 Johnson v. Zerbst, 304 U. S. 458.
461263°—43---30
466	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. 8.
The substance of these provisions of colonial and early state constitutions is explained by the contemporary common law. Originally, in England, a prisoner was not permitted to be heard by counsel upon the general issue of not guilty on any indictment for treason or felony.15 The practice of English judges, however, was to permit counsel to advise with a defendant as to the conduct of his case and to represent him in collateral matters and as respects questions of law arising upon the trial.16 In 1695 the rule was relaxed by statute17 to the extent of permitting one accused of treason the privilege of being heard by counsel. The rule forbidding the participation of counsel stood, however, as to indictments for felony, until 1836, when a statute accorded the right to defend by counsel against summary convictions and charges of felony.18 In misdemeanor cases and, after 1695, in prosecutions for treason, the rule was that the defense must be conducted either by the defendant in person or by counsel, but that both might not participate in the trial.19
In the light of this common law practice, it is evident that the constitutional provisions to the effect that a defendant should be “allowed” counsel or should have a right “to be heard by himself and his counsel,” or that he might be heard by “either or both,” at his election, were intended to do away with the rules which denied representation, in whole or in part, by counsel in criminal prosecutions, but were not aimed to compel the State to provide counsel for a defendant. At the least, such a construction by State courts and legislators can not be said to lack reasonable basis.
15 Chitty Criminal Law (5th Am. Ed.) Vol. 1, p. 406.
18	Chitty, supra, Vol. I, p. 407; Rex v. Parkins, 1 C. & P. 314.
17	7 Will. 3, c. 3, § 1.
18	6 & 7 Will. 4, c. 114, §§ I and II.
19	Rex v. White, 3 Camp. N. P. 97; Regina v. Boucher, 8 C. & P. 655.
BETTS v. BRADY.	467
455	Opinion of the Court.
The statutes in force in the thirteen original States at the time of the adoption of the Bill of Rights are also illuminating. It is of interest that the matter of appointment of counsel for defendants, if dealt with at all, was dealt with by statute rather than by constitutional provision. The contemporary legislation exhibits great diversity of policy.20 *
The constitutions of all the States, presently in force, save that of Virginia, contain provisions with respect to the assistance of counsel in criminal trials. Those of nine
20 Connecticut had no statute, although it was the custom of the courts to assign counsel in all criminal cases. Swift, “System of Laws, Connecticut,” 1796, Vol. II, p. 392. In Delaware Penn’s Laws of 1719, c. XXII, and in Pennsylvania the Act of May 31, 1718, § III
(Mitchell and Flanders’ Statutes at Large of Penna., 1682-1801, Vol. Ill, p. 201) provided for appointment only in case of “felonies of death.” Georgia has never had any law on the subject. Maryland had no such law at the time of the adoption of the Bill of Rights. An Act of 1777 in Massachusetts gave the right to have counsel appointed in cases of treason or misprision of treason. Laws of the Commonwealth of Massachusetts from Nov. 28,1780 to Feb. 28,1807, c. LXXI, Vol. II, Appendix, p. 1049. By an Act of Feb. 8,1791, New Hampshire required appointment in all cases where the punishment was death. Metcalf’s Laws of New Hampshire, 1916, Vol. 5, pp. 596, 599. An Act of New Jersey of March 6,1795, § 2, required appointment in the case of any person tried upon an indictment. Acts of the General Assembly of the Session of 1794, c. DXXXII, p. 1012. New York apparently had no statute on the subject. See Act. Feb. 20, 1787, Laws of New York, Sessions 1st to 20th (1798), Vol. I, pp. 356-7. An Act of 1777 of North Carolina made no provision for appointment, but accorded defendants the right to have counsel. Laws of North Carolina, 1789, pp. 40, 56. Rhode Island had no statute until 1798, when one was passed in the words of the Sixth Amendment. Laws 1798, p. 80. South Carolina, by Act of August 20,1731, limited appointment to capital cases. Grimke’s So. Car. Pub. Laws, 1682-1790, p. 130. Virginia, by Act of Oct. 1786, enacted with respect to one charged with treason or felony that “the court shall allow him counsel ... if he desire it.” Hening’s Statutes of Virginia, 1785-1788, Vol. 12, p. 343.
468	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. 8.
States21 may be said to embody a guarantee textually the same as that of the Sixth Amendment, or of like import. In the fundamental law of most States, however, the language used indicates only that a defendant is not to be denied the privilege of representation by counsel of his choice.22
In three States, the guarantee, whether or not in the exact phraseology of the Sixth Amendment, has been held to require appointment in all cases where the defendant * 23
“ Georgia (Art. I, Par. V); Iowa (Art. I, § 10); Louisiana (Art. I, § 9); Michigan (Dec. of Rights, Art. II, § 19); Minnesota (Art. I, § 6); New Jersey (Art. I, § 8); North Carolina (Art. I, § 11); Rhode Island (Art. I, § 10); West Virginia (Art. Ill, § 14).
23	Some assert the right of a defendant “to appear and defend in person and by counsel.” Arizona (Art. II, § 24); Colorado (Art. II, § 16); Illinois (Art. II, § 9); Missouri (Art. II, § 22); Montana (Art. Ill, § 16); New Mexico (Art. II, § 14); South Dakota (Art. VI, § 7); Utah (Art. I, § 12); Wyoming (Art. I, § 10). Others phrase the right as that “to be heard by himself and [his] counsel”: Arkansas (Art. II, § 10); Delaware (Art. I, § 7); Indiana (Art. I, § 13); Kentucky (Bill of Rights, § 11); Pennsylvania (Art. I, §9); Tennessee (Art. I, §9); Vermont (Ch. I, Art. 10th); or “by himself and by counsel”: Connecticut (Art. I, §9); or “by himself and counsel”: New Hampshire (Bill of Rights, 15th); Oklahoma (Art. II, § 20); Oregon (Art. I, § 11); Wisconsin (Art. I, § 7); or “by himself and counsel or either”: Alabama (Art. I, §6); “by himself or counsel or [by] both”: Florida (Dec. of Rights, § 11); Mississippi (Art. Ill, § 26); South Carolina (Art. I, § 18); Texas (Art. I, § 10). The verbiage sometimes employed is: “to appear and defend in person and with counsel”: California (Art. I, §13), Idaho, (Art. I, §13); North Dakota (Art. I, §13); Ohio (Art. I, § 10); or “in person or by counsel”; Kansas (Bill of Rights, §10); Nebraska (Art. I, §11); Washington (Art. I, §22). Nevada (Art. I, § 8) and New York (Art. I, § 6) add: “as in civil actions.” Some constitutions formulate the right as one “to be heard by himself and his counsel at his election” or “himself and his counsel or either at his election”: Massachusetts (Part I, §12), Maine (Art. I, §6). Maryland (Dec. of Rights, Art. 21) states the right as that “to be allowed counsel.”
BETTS v. BRADY.	469
455	Opinion of the Court.
is unable to procure counsel.23 In six, the provisions (one of which is like the Sixth Amendment) have been held not to require the appointment of counsel for indigent defendants.23 24 In eight, provisions, one of which is the same as that of the Sixth Amendment, have evidently not been viewed as requiring such appointment, since the courts have enforced statutes making appointment discretionary, or obligatory only in prosecutions for capital offenses or felonies.25 *
In twelve States, it seems to be understood that the constitutional provision does not require appointment of
23	Elam v. Johnson, 48 Ga. 348; Delk v. State, 99 Ga. 667, 26 S. E. 752; Fugate v. Commonwealth, 254 Ky. 663, 72 S. W. 2d 47; Carpenter v. Dana County, 9 Wis. 274.
24	Cutts v. State, 54 Fla. 21,45 So. 491; McDonald v. Commonwealth, 173 Mass. 322, 53 N. E. 874; People v. Dudley, 173 Mich. 389,138 N. W. 1044; People v. Williams, 225 Mich. 133,195 N. W. 818; People v. Harris, 266 Mich. 317, 253 N. W. 312; People v. Crandell, 270 Mich. 124, 258 N. W. 224; Commonwealth v. Smith, 344 Pa. 41, 24 A. 2d 1; State v. Sweeney, 48 S. D. 248,203 N. W. 460; State v. Yoes, 67 W. Va. 546, 68 S. E. 181; cf. Pardee v. Salt Lake County, 39 Utah 482, 118 P. 122.
25	Alabama: Code (1940) Tit. 15, § 318; Campbell v. State, 182 Ala. 18,62 So. 57; Gilchrist v. State, 234 Ala. 73,173 So. 651; Clark n. State, 239 Ala. 380, 195 So. 260. Louisiana: Code Crim. Proc. (Dart, 1932) Tit. XIII, Art. 143; State v. Davis, 171 La. 449, 131 So. 295. Maryland: Annotated Code (Flack, 1939), Art. 26, Par. 7, p. 1060; cf. the decision below and Coates v. Maryland, 180 Md. 502, 25 A. 2d 676. Mississippi: Annotated Code (1930) Crim. Proc., c. 21, § 1262; Laws 1934, c. 303; Reed v. State, 143 Miss. 686, 109 So. 715; Robinson v. State, 178 Miss. 568, 173 So. 451. Rhode Island: General Laws 1938, c. 625, § 62; Acts & Resolves, 1891, c. 921, p. 165; State v. Hudson, 55 R. 1.141,179 A. 130. South Carolina: Code 1932, Vol. 1, § 979; State v. Jones, 172 S. C. 129, 173 S. E. 77. Texas: Lopez v. State, 46 Tex. Cr. 473, 80 S. W. 1016; Faggett v. State, 122 Tex. Cr. 399, 55 S. W. 2d 842; Thomas v. State, 132 Tex. Cr. 549, 106 S. W. 2d 289; Austin v. State, 51 S. W. 249. Vermont: Public Laws (1933) c. 57, § 1424; c.
101, § 2327; c. 102, § 2370; State v. Gomez, 89 Vt. 490, 96 A. 190.
470	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
counsel, since statutes of greater or less antiquity call for such appointment only in capital cases or cases of felony or other grave crime,26 or refer the matter to the discretion of the court.27 In eighteen States the statutes now require the court to appoint in all cases where defendants are unable to procure counsel.28 But this has not always been
29 Arkansas: Steel & McCampbell’s Compiled Laws of Arkansas Territory, 1835, “Crimes and Misdemeanors,” § 37, p. 194; Gantt’s Digest of Ark. Stats. 1874, Crim. Proc. c. 43, Art. XII, § 1824, p. 410; Pope’s Digest (1937), Vol. 1, c. 43, § 3877, p. 1180. Delaware: Penn’s Laws, c. XXII (1719); Rev. Code (1935) c. 114, 4305-6. Kansas: Gen. Stats. 1868, c. 82, § 160, p. 845; Gen. Stats. 1935, c. 62, § 1304, p. 1449. Maine: Act of March 8,1826, § 6, p. 146; R. S. Apr. 17, 1857, c. 134, § 12, p. 713; R. S. 1930, c. 146, § 14, p. 1655. Minnesota: Act of March 5, 1869, G. L. 1869, c. LXXII, § 1; Mason’s Minn. Stats. (1927) Vol. 2, c. 94, § 9957. Missouri: Casselberry’s Rev. Stats. 1845, pp. 434, 443-4, 458; Rev. Stats. (1939) Crim. Proc. § 4003. Nebraska: Gen. Stats. 1873, c. 58, § 437, p. 821; Comp. Stat. (1929) Crim. Proc. Art. 18, § 29-1803. New Hampshire: R. S. 1843, Tit. XXVII, c. 225, p. 457; Pub. Laws (1926), c. 368, Laws 1937, c. 22. Washington: Territorial Stats. 1881, c. LXXXV, § 1063; Rem. Rev. Stats. Vol. 4, c. 2, § 2305.
” Arizona: Code (1939) Art. 9, §§ 44-904,44-905. Colorado: Colo. Stats. Annotated (1935), Vol. 2, c. 48, § 502, p. 1148. Maryland: Laws 1886, c. 46, p. 66; Anno. Code (Flack, 1939), Art. 26, par. 7.
28 California, Penal Code, Deering (1937), Pt. 2, Tit. 6, c. 1, § 987; Idaho, Code Anno. (1932) § 19-1412; Illinois, R. S. 1935, c. 38, f 754; Iowa, Code 1939, c. 640, § 13773; Kansas, Laws 1941, c. 291; Michigan, Statutes Ann. § 28.1253; Montana, Rev. Codes Ann. (1935) c. 73, § 11886; Nevada, Comp. Laws (1929) Cr. L. & Proc. § 10883; New Jersey, N. J. Stat. Ann. § 2: 190-3; New York, Thompson’s Laws (1939) Pt. II, Code of Crim. Proc. § 308; North Dakota, Comp. Laws (1913) Vol. II, § 8965; Ohio, Throckmorton’s Code Ann. (1940) § 13439-2; Oklahoma, Stats. Ann. Tit. 22, § 1271; Oregon, Comp. Laws Ann. Vol. 3, § 26-804; South Dakota, Code (1939) § 34.1901; Tennessee, Michie’s Code (1938) § 11734; Utah, R. S. (1938) Code Cr. Proc. § 105-22-12; Wyoming, R. S. (1931) § 33-501. Connecticut provides official public defenders available to all persons unable to retain counsel. G. S. (Revision of 1930), c. 335, § 6476.
At least as early as 1903 (3 Edw. 7, c. 38) England adopted a Poor Prisoners’ Defence Act, under which a rule was adopted whereby an
BETTS v. BRADY.	471
455	Opinion of the Court.
the statutory requirement in some of those States.* 28 29 And it seems to have been assumed by many legislatures that the matter was one for regulation from time to time as deemed necessary, since laws requiring appointment in all cases have been modified to require it only in the case of certain offenses.30
This material demonstrates that, in the great majority of the States, it has been the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial. On the contrary, the matter has generally been deemed one of legislative policy. In the light of this evidence, we are unable to say that the concept of due process incorporated in the Fourteenth Amendment obligates the States, whatever may be their own views, to furnish counsel in every such case. Every court has power, if it deems
accused might defend by counsel assigned by the court. Bowen-Row-lands, Criminal Proceedings, London (1904) pp. 46-47. The existing statute is the Poor Prisoners’ Defence Act (1930) 20 & 21 Geo. 5, c. 32. See Archbold’s Criminal Pleading, Evidence and Practice, 30th Ed. (1938) p. 167. Under this act a poor defendant is entitled as of right to counsel on a charge of murder, but assignment of counsel is discretionary in other cases.
28See e. g. earlier and more restricted statutes: Idaho, Terr. Laws, 2d Sess., 1864, c. II, p. 246; Iowa, Act of January 4,1839, § 64; Korf v. Jasper County, 132 la. 682, 108 N. W. 1031; Michigan, Laws 1857, Act No. 109, p. 239; Montana, Act January 12, 1872, c. IX, § 196; Nevada, Comp. L. 1861-73, c. LIII. Changes in the statutes of other
States might be cited. Compare Notes 20 and 28.
30 Louisiana. Compare Laws, 1855, Act No. 121; State v. Ferris, 16 La. Ann. 424; State v. Bridges, 109 La. 530, 33 So. 589, with La. Code Crim. Proc. (Dart) 1932, Tit. XIII, Art. 143. Nebraska. Compare Laws of 1869, p. 163, with Comp. Stats. (1929) § 29-1803. Washington. Compare Code of Washington Terr. (1881) c. LXXXV, § 1063 with Rem. Rev. Stats. Vol. 4, c. 2, § 2305. And compare Texas Code Crim. Proc. (1856), Pt. Ill, Arts. 466-7 with Vernon’s Stats. (1936), Art. 1917, and Lopez v. State, 46 Tex. Cr. 473, 80 S. W. 1016, and Thomas n. State, 132 Tex. Cr. 549,106 S. W. 2d 289.
472	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
proper, to appoint counsel where that course seems to be required in the interest of fairness.
The practice of the courts of Maryland gives point to the principle that the States should not be straight-jacketed in this respect, by a construction of the Fourteenth Amendment. Judge Bond’s opinion states, and counsel at the bar confirmed the fact, that in Maryland the usual practice is for the defendant to waive a trial by jury. This the petitioner did in the present case. Such trials, as Judge Bond remarks, are much more informal than jury trials and it is obvious that the judge can much better control the course of the trial and is in a better position to see impartial justice done than when the formalities of a jury trial are involved.31
In this case there was no question of the commission of a robbery. The State’s case consisted of evidence identifying the petitioner as the perpetrator. The defense was an alibi. Petitioner called and examined witnesses to prove that he was at another place at the time of the commission of the offense. The simple issue was the veracity of the testimony for the State and that for the defendant. As Judge Bond says, the accused was not helpless, but was a man forty-three years old, of ordinary intelligence, and ability to take care of his own interests on the trial of that narrow issue. He had once before been in a criminal court, pleaded guilty to larceny and served a sentence and was not wholly unfamiliar with criminal procedure. It is quite clear that in Maryland, if the situation had been otherwise and it had appeared that the petitioner was, for any reason, at a serious disadvantage by reason of the lack
81 Judge Bond adds: “Certainly my own experience in criminal trials over which I have presided (over 2000, as I estimate it), has demonstrated to me that there are fair trials without counsel employed for the prisoners.”
BETTS v. BRADY.	473
455	Opinion of the Court.
of counsel, a refusal to appoint would have resulted in the reversal of a judgment of conviction. Only recently the Court of Appeals has reversed a conviction because it was convinced on the whole record that an accused, tried without counsel, had been handicapped by the lack of representation.32
To deduce from the due process clause a rule binding upon the States in this matter would be to impose upon them, as Judge Bond points out, a requirement without distinction between criminal charges of different magnitude or in respect of courts of varying jurisdiction. As he says: “Charges of small crimes tried before justices of the peace and capital charges tried in the higher courts would equally require the appointment of counsel. Presumably it would be argued that trials in the Traffic Court would require it.” And, indeed, it was said by petitioner’s counsel both below and in this court, that as the Fourteenth Amendment extends the protection of due process to property as well as to life and liberty, if we hold with the petitioner, logic would require the furnishing of counsel in civil cases involving property.
As we have said, the Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the Amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.
The judgment is
Affirmed.
[Over]
32 Coates v. State, 180 Md. 502, 25 A. 2d 676.
474	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. S.
Mr. Justice Black, dissenting, with whom Mr. Justice Douglas and Mr. Justice Murphy concur.
To hold that the petitioner had a constitutional right to counsel in this case does not require us to say that “no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.” This case can be determined by a resolution of a narrower question: whether in view of the nature of the offense and the circumstances of his trial and conviction, this petitioner was denied the procedural protection which is his right under the Federal Constitution. I think he was.
The petitioner, a farm hand, out of a job and on relief, was indicted in a Maryland state court on a charge of robbery. He was too poor to hire a lawyer. He so informed the court and requested that counsel be appointed to defend him. His request was denied. Put to trial without a lawyer, he conducted his own defense, was found guilty, and was sentenced to eight years’ imprisonment. The court below found that the petitioner had “at least an ordinary amount of intelligence.” It is clear from his examination of witnesses that he was a man of little education.
If this case had come to us from a federal court, it is clear we should have to reverse it, because the Sixth Amendment makes the right to counsel in criminal cases inviolable by the Federal Government. I believe that the Fourteenth Amendment made the Sixth applicable to the states.1 But this view, although often urged in dissents, has never been accepted by a majority of this Court
1 Discussion of the Fourteenth Amendment by its sponsors in the Senate and House shows their purpose to make secure against invasion by the states the fundamental liberties and safeguards set out in the Bill of Rights. The legislative history and subsequent course of the amendment to its final adoption have been discussed in Flack, “The Adoption of the Fourteenth Amendment.” Flack cites the Congres
BETTS v. BRADY.	475
455	Black, J., dissenting.
and is not accepted today. A statement of the grounds supporting it is, therefore, unnecessary at this time. I believe, however, that, under the prevailing view of due process, as reflected in the opinion just announced, a view which gives this Court such vast supervisory powers that I am not prepared to accept it without grave doubts, the judgment below should be reversed.
This Court has jugt declared that due process of law is denied if a trial is conducted in such manner that it is “shocking to the universal sense of justice” or “offensive to the common and fundamental ideas of fairness and right.” On another occasion, this Court has recognized that whatever is “implicit in the concept of ordered liberty” and “essential to the substance of a hearing” is within the procedural protection afforded by the constitutional guaranty of due process. Pdlko n. Connecticut, 302 U. S. 319, 325, 327.
The right to counsel in a criminal proceeding is “fundamental.” Powell v. Alabama, 287 U. S. 45,70; Gros jean v. American Press Co., 297 U. S. 233, 243-244. It is guarded from invasion by the Sixth Amendment, adopted to raise an effective barrier against arbitrary or unjust deprivation of liberty by the Federal Government. Johnson v. Zerbst, 304 U. S. 458, 462.
An historical evaluation of the right to a full hearing in criminal cases, and the dangers of denying it, were set out in the Powell case, where this Court said: “What . . . does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the person asserting the right . . . Even the in
sional debates, committee reports, and other data on the subject. Whether the amendment accomplished the purpose its sponsors intended has been considered by this Court in the following decisions, among others: O’Neil v. Vermont, 144 U. S. 323, dissent, 337; Maxwell v. Dow, 176 U. S. 581, dissent, 605; Twining v. New Jersey, 211 U. S. 78, 98-99, dissent, 114.
476	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. S.
telligent and educated layman . . . lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel in every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” Powell v. Alabama, supra, 68-69. Cf. Johnson v. Zerbst, supra, 462-463.
A practice cannot be reconciled with “common and fundamental ideas of fairness and right,” which subjects innocent men to increased dangers of conviction merely because of their poverty. Whether a man is innocent cannot be determined from a trial in which, as here, denial of counsel has made it impossible to conclude, with any satisfactory degree of certainty, that the defendant’s case was adequately presented. No one questions that due process requires a hearing before conviction and sentence for the serious crime of robbery. As the Supreme Court of Wisconsin said, in 1859, “ . . . would it not be a little like mockery to secure to a pauper these solemn constitutional guaranties for a fair and full trial of the matters with which he was charged, and yet say to him when on trial, that he must employ his own counsel, who could alone render these guaranties of any real permanent value to him. . . . Why this great solicitude to secure him a fair trial if he cannot have the benefit of counsel?” Carpenter v. Dane County, 9 Wis. 274, 276-277.
Denial to the poor of the request for counsel in proceedings based on charges of serious crime has long been regarded as shocking to the “universal sense of justice” throughout this country. In 1854, for example, the Supreme Court of Indiana said: “It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty, should be debarred of counsel because he was too poor to employ such aid. No Court could be respected, or respect itself, to sit and hear
BETTS v. BRADY.	477
455	Black, J., dissenting.
such a trial. The defence of the poor, in such cases, is a duty resting somewhere, which will be at once conceded as essential to the accused, to the Court, and to the public.” Webb v. Baird, 6 Ind. 13,18. And most of the other States have shown their agreement by constitutional provisions, statutes, or established practice judicially approved, which assure that no man shall be deprived of counsel merely because of his poverty.2 Any other practice seems to me to defeat the promise of our democratic society to provide equal justice under the law.
Appendix
I.	States which require that indigent defendants in noncapital as well as capital criminal cases be provided with counsel on request:
A.	By Statute. Arizona: Revised Statutes of Arizona Territory, 1901, Penal Code, Pt. II, Title VII, § 858; Arizona Code Ann. 1939, Vol. Ill, § 44-904. Arkansas: Compiled Laws, Arkansas Territory, 1835, Crimes and Misdemeanors, § 37; Pope’s Digest, 1937, Vol. I, c. 43, § 3877. California: California Penal Code of 1872, § 987; Deering’s Penal Code, 1937, § 987. Idaho: Territorial Criminal Practice Act, 1864, § 267; Idaho Code, 1932, §§ 19-1412, 19-1413. Illinois: Rev. Stat. 1874, Criminal Code, § 422; Jones’s Ill. Stat. Ann. 1936, § 37.707.
2 In thirty-five states, there is some clear legal requirement or an established practice that indigent defendants in serious non-capital as well as capital criminal cases (e.g., where the crime charged is a felony, a “penitentiary offense,” an offense punishable by imprisonment for several years) be provided with counsel on request. In nine states, there are no clearly controlling statutory or constitutional provisions and no decisive reported cases on the subject. In two states, there are dicta in judicial decisions indicating a probability that the holding of the court below in this case would be followed under similar circumstances. In only two states (including the one in which this case arose) has the practice here upheld by this Court been affirmatively sustained. Appended to this opinion is a list of the several states divided into these four categories.
478	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. S.
Cf. Laws, 1933,430-431. See also, Vise v. County of Hamilton, 19 Ill. 78, 79 (1857). Iowa: Territorial Laws, 1839, Courts, § 64; Iowa Code, 1939, § 13773. Kansas: See Compilation published in 1856 as S. Doc. No. 23, 34th Cong., 1st Sess., 520 (c. 129, Art. V, § 4). Laws, 1941, c. 291. Louisiana: Act of May 4, 1805, of the Territory of Orleans, § 35; Dart’s Louisiana Code of Criminal Procedure, 1932, Title XIII, Art. 143. Minnesota: Minnesota General Laws, 1869, c. LXXII, § 1; Mason’s Minnesota Statutes, 1927, §§ 9957, 10667. Missouri: Digest of Laws of Missouri Territory, 1818, Crimes and Misdemeanours, § 35; Rev. Stat. 1939, § 4003. Montana: Montana Territory Criminal Practice Act of 1872, § 196 (Laws of Montana, Codified Stat. 1871-1872,220); Revised Code, 1935, § 11886. Nebraska: General Statutes, 1873, c. 58, § 437; Compiled Stat. 1929, § 29-1803. Nevada: Act of November 26, 1861 (Compiled Laws, 1861-1873, Vol. I, 477, 493); Compiled Laws, 1929, Vol. 5, § 10883. New Hampshire: Laws, 1907, c. 136; Laws, 1937, c. 22. New Jersey: Act of March 6, 1795, § 2; New Jersey Stat. § 2.190-3. New York: Code of Criminal Procedure, § 308 (enacted in 1881, still in force). See People v. Supervisors of Albany County, 28 How. Pr. 22, 24 (1864). North Dakota: Dakota Territory Code of Procedure, 1863, § 249 (Rev. Codes, 1877, Criminal Procedure, 875); Compiled Laws, 1913, Vol. II, §§ 8965, 10721. Ohio: Act of February 26, 1816, § 14 (Chase, Statutes of Ohio, 1788-1833, Vol. II, 982); Throckmorton’s Ohio Code Ann. 1940, Vol. II, § 13439-2. Oklahoma: Oklahoma Territorial Stat. 1890, c. 70, § 10; Stat. Ann. 1941 Supp., Title 22, § 464. Oregon: Act of October 19, 1864 (General Laws, 1845-* 1864, c. 37, § 381; Laws 1937, c. 406 (Compiled Laws Ann., Vol. Ill, § 26-804). South Dakota: Dakota Territory Code of Procedure, 1863, § 249 (Rev. Codes, 1877, Criminal Procedure 875); Code of 1939, Vol. II, § 34.1901. Tennessee: Code of 1857-1858, §§ 5205, 5206; Code of 1938,
BETTS v. BRADY.	479
455	Black, J., dissenting.
§§ 11733, 11734. Utah: Laws of Territory of Utah, 1878, Criminal Procedure, § 181; Rev. Stat. 1933, § 105-22-12. Washington: Statutes of Territory of Washington, 1854, Criminal Practice Act, § 89; Remington’s Revised Statutes, 1932, Vol. IV, §§ 2095, 2305. Wyoming: Laws of Wyoming Territory, 1869, Criminal Procedure, § 98; Rev. Stat. 1931, § 33-501.
B. By judicial decision or established practice judicially approved. Connecticut: For an account of early practice in Connecticut, see Zephaniah Swift “A System of the Laws of the State of Connecticut,” Vol. II, 392: “The chief justice then, before the prisoner is called upon to plead, asks the prisoner if he desires counsel, which if requested, is always granted, as a matter of course. On his naming counsel, the court will appoint or assign them. If from any cause, the prisoner decline to request or name counsel, and a trial is had, especially in the case of minors, the court will assign proper counsel. When counsel are assigned, the court will enquire of them, whether they have advised with the prisoner, so that he is ready to plead, and if not, will allow them proper time for that purpose. But it is usually the case that the prisoner has previously employed and consulted counsel, and of course is prepared to plead.” See Powell v. Alabama, 287 U. S. 45, footnote, 63-64. See also, Connecticut General Statutes, Revision of 1930, §§ 2267, 6476. Florida: Cutts v. State, 54 Fla. 21, 23, 45 So. 491 (1907). See Compiled General Laws, 1927, § 8375 (capital crimes). Indiana : Webb v. Baird, 6 Ind. 13,18 (1854). See also Knox County Council v. State ex rel. McCormick, 217 Ind. 493, 497-498,29 N. E. 2d 405 (1940); State v. Hilgemann, 218 Ind. 572,34 N. E. 2d 129, 131 (1941). Michigan: People v. Crandell, 270 Mich. 124, 127, 258 N. W. 224 (1935). Pennsylvania: Commonwealth v. Richards, 111 Pa. Super. 124, 169 A. 464 (1933). See Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41,49,59,24 A. 2d 1. Virginia: Watkins v. Commonwealth, 174 Va. 518, 521-525, 6 S. E. 2d 670 (1940).
480	OCTOBER TERM, 1941.
Black, J., dissenting.	316 U. S.
West Virginia: State v. Kellison, 56 W. Va. 690,692-693, 47 S. E. 166 (1904). Wisconsin: Carpenter v. Dane County, 9 Wis. 274 (1859). See Stat. 1941, § 357.26.
C. By constitutional provision. Georgia: Constitution of 1865, Art. 1, Par. 8. See Martin v. Georgia, 51 Ga. 567, 568 (1874). Kentucky: Kentucky Constitution, § 11. See Fugate v. Commonwealth, 254 Ky. 663, 665, 72S.W. 2d 47 (1934).
II.	States which are without constitutional provision, statutes, or judicial decisions clearly establishing this requirement:
Colorado: General Laws, 1877, §§ 913-916; Colorado Stat. Ann. 1935, Vol. 2, c. 48, §§ 502, 505, as amended by Laws of 1937, 498, § 1. See Abshier v. People, 87 Colo. 507, 517, 289 P. 1081. Delaware: See 6 Laws of Delaware 741; 7 id. 410; Rev. Code, 1935, §§ 4306, 4310. Maine: See Rev. Stat. 1857, 713; Rev. Stat. 1930, c. 146, §14. Massachusetts: See McDonalds. Commonwealth, 173 Mass. 322, 327, 53 N. E. 874 (1899). New Mexico. North Carolina. Rhode Island: See State v. Hudson, 55 R. 1.141,179 A. 130 (1935); General Laws, 1938, c. 625, § 62. South Carolina: See State v. Jones, 172 S. C. 129, 130, 173 S. E. 77 (1934); Code, 1932, Vol. I, § 980. Vermont.
III.	States in which dicta of judicial opinions are in harmony with the decision by the court below in this case:
Alabama: Gilchrist v. State, 234 Ala. 73, 74, 173 So. 651. Mississippi: Reed v. State, 143 Miss. 686, 689, 109 So. 715.
IV.	States in which the requirement of counsel for indigent defendants in non-capital cases has been affirmatively rejected:
Maryland: See, however, Coates v. State, 180 Md. 502,
25	A. 2d 676. Texas: Gilley v. State, 114 Tex. Cr. 548,
26	S. W. 2d 1070. But cf. Brady v. State, 122 Tex. Cr. 275, 278, 54 S. W. 2d 513.
STANDARD OIL CO. v. JOHNSON. 481
Counsel for Parties.
STANDARD OIL COMPANY OF CALIFORNIA v. JOHNSON, TREASURER OF CALIFORNIA.
APPEAL FROM THE SUPREME COURT OF CALIFORNIA.
No. 1125. Argued May 5, 1942.—Decided June 1, 1942.
1.	Where the validity of a state statute, as construed, was drawn in question in the state court on the ground of its being repugnant to the Constitution of the United States, an appeal lies under Jud. Code § 237 (a) from a judgment of the state court sustaining the statute. P.482.
2.	In upholding a state tax on sales of motor fuel, as applied to sales to United States Army Post Exchanges, under a state statute containing an express exception of fuel sold to the Government of the United States or any department thereof, the state court construed the exception as inapplicable because, as it concluded upon a consideration of the relation of such Exchanges to the United States, they were not instrumentalities or agencies of the United States. Held, a decision of a federal question by which this Court is not bound upon appeal. P. 483.
3.	Army Post Exchanges are established and operated under regulations of the Secretary of War, authorized by Acts of Congress, and having the force of law. P. 483.
4.	Army Post Exchanges are arms of the Federal Government—integral parts of the War Department partaking of its immunity under the Federal Constitution and statutes. P. 485.
5.	Since there is no way of knowing whether the California Supreme Court would have construed the Act in question as applicable to Post Exchanges if it had correctly understood their federal status, a determination of the constitutionality of such application is not called for by the present record; and the case is therefore remanded to that court for further proceedings. P. 485.
19 Cal. 2d 104,119 P. 2d 329, reversed.
Appeal from the affirmance of a judgment against the oil company in an action to recover a tax payment.
Mr. Francis R. Kirkham, with whom Messrs. Felix T. Smith and Sigvald Nielson were on the brief, for appellant.
Mr. Adrian A. Kragen, Deputy Attorney General of California, with whom Messrs. Earl Warren, Attorney General, 461263°—43-------31
482	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
and H. H. Linney, Assistant Attorney General, were on the brief, for appellee.
Solicitor General Fahy, Assistant Attorney General Clark, Judge Advocate General Myron C. Cramer, and Messrs. Sewall Key, Arnold Raum, Alvin J. Rockwell, and Fred W. Llewellyn filed a brief on behalf of the United States, as amicus curiae, urging dismissal of the appeal.
Mr. Justice Black delivered the opinion of the Court.
The California Motor Vehicle Fuel License Tax Act1 imposes a license tax, measured by gallonage, on the privilege of distributing any motor vehicle fuel. Section 10 states that the Act is inapplicable “to any motor vehicle fuel sold to the government of the United States or any department thereof for official use of said government.” The appellant, a “distributor”2 within the meaning of the Act, sold gasoline to the United States Army Post Exchanges in California. The State levied a tax, and the appellant paid it under protest. The appellant then filed this suit in the Superior Court of Sacramento County seeking to recover the payment on two grounds: (1) that sales to the Exchanges were exempt from tax under § 10; (2) that, if construed and applied to require payment of the tax on such sales, the Act would impose a burden upon instrumentalities or agencies of the United States contrary to the Federal Constitution. Holding against the appellant on both grounds, the trial court rendered judgment for the State. The Supreme Court of California affirmed. 19 Cal. 2d 104, 119 P. 2d 329. Since validity of the state statute as construed was drawn in question on
"Cal. Stats. 1923, pp. 572, 573, 574; 1927, p. 1309; 1933, pp. 1636, 1637; 1937, p. 2219.
“Section 7 of the Act provides: “For the purposes of this act all motor vehicle fuel sold, donated, consigned for sale, bartered or used shall be deemed to be distributed. . . .”
STANDARD OIL CO. v. JOHNSON. 483
481	Opinion of the Court.
the ground of its being repugnant to the Constitution, we think the case is properly here on appeal under § 237 (a) of the Judicial Code.
Since § 10 of the California Act made the tax inapplicable “to any motor vehicle fuel sold to the government of the United States or any department thereof,” it was necessary for the Supreme Court of California to determine whether the language of this exemption included sales to post exchanges. If the court’s construction of § 10 of the Act had been based purely on local law, this construction would have been conclusive, and we should have to determine whether the statute so construed and applied is repugnant to the Federal Constitution. But in deciding that post exchanges were not “the government of the United States or any department thereof,” the court did not rely upon the law of California. On the contrary, it relied upon its determination concerning the relationship between post exchanges and the Government of the United States, a relationship which is controlled by federal law. For post exchanges operate under regulations of the Secretary of War pursuant to federal authority. These regulations and the practices under them establish the relationship between the post exchange and the United States Government, and together with the relevant statutory and constitutional provisions from which they derive, afford the data upon which the legal status of the post exchange may be determined. It was upon a determination of a federal question, therefore, that the Supreme Court of California rested its conclusion that, by § 10, sales to post exchanges were not exempted from the tax. Since this determination of a federal question was by a state court, we are not bound by it. We proceed to consider whether it is correct.
On July 25,1895, the Secretary of War, under authority of Congressional enactments3 promulgated regulations
’ 16 Stat. 315, 319; 18 Stat. 337.
484	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
providing for the establishment of post exchanges.* 4 These regulations have since been amended from time to time and the exchange has become a regular feature of Army posts. That the establishment and control of post exchanges have been in accordance with regulations rather than specific statutory directions does not alter their status, for authorized War Department regulations have the force of law.5 *
Congressional recognition that the activities of post exchanges are governmental has been frequent. Since 1903,® Congress has repeatedly made subtantial appropriations to be expended under the direction of the Secretary of War for construction, equipment, and maintenance of suitable buildings for post exchanges. In 1933 and 1934, Congress ordered certain moneys derived from disbanded exchanges to be handed over to the Federal Treasury.7 And in 1936, Congress gave consent to state taxation of gasoline sold by or through post exchanges, when the gasoline was not for the exclusive use of the United States.8
The commanding officer of an Army Post, subject to the regulations and the commands of his own superior officers, has complete authority to establish and maintain an exchange. He details a post exchange officer to manage its affairs. This officer and the commanding officers of the various company units make up a council which supervises exchange activities. None of these officers receives any compensation other than his regular salary. The object of the exchanges is to provide convenient and reliable sources where soldiers can obtain their ordinary needs at
* G. 0. 46, Hdqrs. of the Army.
8 United States v. Eliason, 16 Pet. 291, 302; Gratiot v. United States,
4 How. 80, 117-118.
•32 Stat. 927, 938.
7	47 Stat. 1571,1573 ; 48 Stat. 1224,1229. See Hearings, House, War
Department Appropriation Bill, 1934, 72d Cong., 2d Sess., 648.
8	49 Stat. 1519,1521, amended by 54 Stat. 1059,1060-1061.
STANDARD OIL CO. v. JOHNSON. 485
481	Opinion of the Court.
the lowest possible prices. Soldiers, their families, and civilians employed on military posts here and abroad can buy at exchanges. The Government assumes none of the financial obligations of the exchange. But government officers, under government regulations, handle and are responsible for all funds of the exchange which are obtained from the companies or detachments composing its membership. Profits, if any, do not go to individuals. They are used to improve the soldiers’ mess, to provide various types of recreation, and in general to add to the pleasure and comfort of the troops.
From all of this, we conclude that post exchanges as now operated are arms of the Government deemed by it essential for the performance of governmental functions. They are integral parts of the War Department, share in fulfilling the duties entrusted to it, and partake of whatever immunities it may have under the Constitution and federal statutes. In concluding otherwise, the Supreme Court of California was in error.
Whether the California Supreme Court would have construed the Motor Vehicle Fuel License Act as applicable to post exchanges if it had decided the issue of legal status of post exchanges in accordance with this opinion, we have no way of knowing. Hence, a determination here of the constitutionality of such an application of the Act is not called for by the state of the record. Cf. Minnesota v. National Tea Co., 309 U. S. 551, 557. Accordingly, we reverse the judgment and remand the cause to the court below for further proceedings not inconsistent with this opinion.
Reversed.
486	OCTOBER TERM, 1941.
Counsel for Parties.	316U.S.
QUERY ET AL., CONSTITUTING THE SOUTH CAROLINA TAX COMMISSION, v. UNITED STATES ET AL.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 619. Argued May 5, 1942.—Decided June 1, 1942.
1.	A suit to restrain the enforcement of a state tax on the purchase and sale of goods at Army Post Exchanges, upon the ground that such Exchanges are federal instrumentalities and that therefore the state statute imposing the tax is, as applied to them, unconstitutional, is a suit cognizable by a three-judge District Court, under Jud. Code § 266. Pp. 487, 490.
2.	An appeal from a decree of injunction granted by a three-judge District Court under Jud. Code § 266, lies directly to this Court, not to the Circuit Court of Appeals. P. 490.
3.	Where appeals in such a case were taken erroneously to the Circuit Court of Appeals and from that court to this, and the time within which a direct appeal from the three-judge District Court to this Court, under Jud. Code § 266, had elapsed, the decree of the Circuit Court of Appeals was vacated and the cause remanded to the District Court for the entry of a fresh decree from which a timely appeal might be taken. P. 491.
121 F. 2d 631, vacated.
Certiorari, post, p. 653, to review a decree sustaining an injunction against enforcement of a state sales tax as applied to the purchase and sale of goods at Army Post Exchanges.
Mr. Claude K. Wingate, with whom Mr. John M. Daniel was on the brief, for petitioners.
Assistant Attorney General Clark, with whom Solicitor General Fahy, Judge Advocate General Myron C. Cramer, and Messrs. Sewall Key, Arnold Raum, and Alvin J. Rockwell were on the brief, for respondents.
QUERY v. UNITED STATES. 487
486	Opinion of the Court.
Mr. Justice Black delivered the opinion of the Court.
A statute of South Carolina imposes a license tax for the privilege of selling tobacco products, playing cards, soft drinks, and other enumerated articles.1 The United States and two Army officers brought this suit against the members of the South Carolina Tax Commission to enjoin enforcement of this statute with respect to activities of United States Army Post Exchanges located within the state. The bill alleged that post exchanges are instrumentalities of the United States, operating as voluntary unincorporated organizations under the direction and supervision of the United States Army and in accordance with rules and regulations promulgated by the Secretary of War; that the respondents had ordered that the tax be applied to the purchase and sale of commodities by the exchanges; that enforcement would inflict immediate and irreparable damage for which the complainants were without any plain, speedy, and efficient remedy in the courts of South Carolina; that the Congressional consent given by a recent federal statute (54 Stat. 1059) for the imposition of certain kinds of state taxes within “federal areas” did not extend to the imposition of taxes on the purchases and sales of commodities by post exchanges; and that the threatened application of the South Carolina statute would interfere with the activities of the United States Government and would be repugnant to the Constitution of the United States. The respondents’ answer admitted the threatened enforcement and the absence of remedy in the ! South Carolina courts, but denied that post exchanges are instrumentalities of the United States and that application of the statute to them would be repugnant to the United States Constitution. With respect to the federal statute
1 Code of Laws of South Carolina (1932) Vol. II, §§ 2527-2557.
488	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
referred to in the complaint, the answer stated: “. . . no consent of Congress is necessary to permit the State to levy its lawful tax ... , the territorial immunity having been removed by Public Act No. 819, 76th Congress.”
A Federal District Court of three judges, satisfying the requirements of § 266 of the Judicial Code,2 heard the case and granted the injunction sought by the complainants. 37 F. Supp. 972. The opinion accompanying the decree stated, however, that the three judges were of the view that a district judge alone had exclusive jurisdiction to pass upon the case; and that the decree should therefore be considered “not as the decree of a three-judge court, but as his decree, from which appeal lies to the Circuit Court of Appeals and not to the Supreme Court.” Nevertheless, all three judges signed the decree “so that in the event it should hereafter be determined that the case was one for three judges under the statute, an appropriate decree will have been entered.” 37 F. Supp. 972, 977. The Circuit Court of Appeals, of the same view on the question of jurisdiction, granted an appeal and affirmed. 121 F. 2d 631.
If no more than a question of construction of a federal statute had been involved, there would have been no necessity for a three-judge court pursuant to § 266. Ex
’28 U. S. C. § 380. This section provides in part: “No interlocutory injunction suspending or restraining the enforcement, operation, or execution of any statute of a State by restraining the action of any officer of such State in the enforcement or execution of such statute . . . shall be issued or granted . . . unless the application for the same shall be presented to . . . and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. ... An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying ... an interlocutory injunction in such case.”
QUERY v. UNITED STATES. 489
486	Opinion of the Court.
parte Buder, 271 U. S. 461, 466-467. As a basis for its conclusion that a court of one District Judge was the appropriate forum here, the District Court stated that the “question involved is whether under the provisions of Public Act No. 819, 76th Cong., 3d Sess., . . . the taxes imposed by . . . the State Statute, are applicable to and collectible from the United States Army Post Exchange at Fort Jackson, Richland County, South Carolina.”3 And both courts below thought that disposition of the case required only a determination of the status of post exchanges within the meaning of the federal statute. 37 F. Supp. 972, 973, 977; 121 F. 2d 631, 632. But the complainants sought to restrain the state officers from enforcing the state statute upon the ground of the unconstitutionality of the threatened application. Not only was unconstitutionality the ground asserted by the complaints for the relief sought, but it appears that the relief awarded was predicated on the same ground. Cf. Wilentz v. Sovereign Camp, 306 U. S. 573, 576.
For the federal Act, so far as here relevant, merely declares that “no person shall be relieved from liability” for certain state taxes “on the ground that the sale or use, with respect to which such tax is levied, occurred in whole or in part within a federal area.” A proviso adds that the “Act shall not be deemed to authorize the levy or collection of any tax on or from the United States or any instrumentality thereof.” The complainants, assert
8 There was a stipulation between the parties that if the complainants should prevail with respect to the post exchanges at Fort Jackson, the relief granted should be applicable to certain other post exchanges, ships’ stores, and officers’ clubs. Both courts below proceeded on the assumption, which we accept here, that all of these organizations were located in “federal areas.” To this extent, if any, that this assumption is incorrect, Public Act No. 819 (54 Stat. 1059) has no relevance whatsoever.
490	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
ing that the post exchange is a federal instrumentality to which the statutory consent does not apply, rest their entire case upon a non-statutory ground: the immunity from state taxation which they contend must be given, under the Constitution, to the post exchange as an instrumentality of the United States. And notwithstanding its assertion that only the meaning of the federal statute was involved, the District Court nevertheless found it necessary to include in the opinion accompanying the decree a statement that the threats and attempts to enforce the state statute “constitute an interference with the activities of the United States, and are unconstitutional.”
Here a substantial charge has been made that a state statute, as applied to the complainants, violates the Constitution. Under such circumstances, we have held that relief in the form of an injunction can be afforded only by a three-judge court pursuant to § 266. Stratton v. St. Louis S. W. Ry. Co., 282 U. S. 10; Ex parte Bransford, 310 U. S. 354, 361. And this is not, like Phillips v. United States, 312 U. S. 246, a case in which the state officials threatened to engage in conduct which state law could not reasonably be construed to authorize. The complainants in this case sought interlocutory and permanent injunctions against “the enforcement, operation, or execution” of a “statute of a State”; they sought to restrain the action of officers “of such State in the enforcement or execution of such statute”; and their attack was based entirely “upon the ground of the unconstitutionality of such statute.”
Since there was such complete satisfaction of the conditions which make § 266 applicable, the cause was a proper one for a three-judge court and appeal did not lie to the Circuit Court of Appeals. But a direction by us to the Circuit Court of Appeals to dismiss the appeal
BRILLHART v. EXCESS INS. CO. 491
486	Counsel for Parties.
which the petitioners brought to it would, without more, terminate the litigation. For the time within which a direct appeal might have been brought to this Court under § 266 has elapsed. In the present circumstances, however, we think the petitioners’ right to such an appeal should be preserved. Cf. Phillips v. United States, supra, 254. The judgment below is therefore vacated and the cause remanded to the District Court for the entry of a fresh decree, from which a timely appeal may be taken if the petitioners so desire.
It is so ordered.
BRILLHART, ADMINISTRATOR, v. EXCESS INSURANCE COMPANY OF AMERICA.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.
No. 772. Argued April 8,1942.—Decided June 1,1942.
Before dismissing a suit brought under the Federal Declaratory Judgments Act and presenting only local questions, upon the ground that another suit involving the same subject matter and between the same parties is pending in a state court, the federal court must determine in the first instance whether the claims set up by the plaintiff have been foreclosed by local law, or can adequately be tested in the suit in the state court. P. 495.
121F. 2d 776, reversed.
Certiorari, 314 U. S. 606, to review a decree which reversed a decree of the District Court dismissing a bill filed under the Federal Declaratory Judgments Act.
Mr. Clarence C. Chilcott for petitioner.
Messrs. Dick H. Woods and Paul R. Stinson for respondent.
492	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
Mr. Justice Frankfurter delivered the opinion of the Court.
The Excess Insurance Company of America, the respondent here, brought this suit for a declaratory judgment to determine its rights under a reinsurance agreement made in 1932 with the Central Mutual Insurance Company of Chicago, Illinois. By that contract the respondent agreed to reimburse Central, within specified limits, for any “ultimate net loss” (defined as “the sum actually paid in cash in settlement of losses”) sustained by Central under automobile public liability policies thereafter to be issued. Central undertook to notify the respondent of any accident that might be covered by the reinsurance agreement. In 1934, Central issued a public liability policy to Cooper-Jarrett, Inc. Later in that year, the petitioner’s decedent was killed by a truck leased by Cooper-Jarrett, Inc., and suit was brought against the latter in a Missouri state court. Central refused to defend the suit, however, claiming that the policy did not cover the accident.
While the suit was pending, both Central and Cooper-Jarrett, Inc., encountered financial difficulties. By order of an Illinois state court, Central was liquidated and all claims against it barred. Cooper-Jarrett, Inc., filed a petition for reorganization under § 77B in the Missouri federal District Court, and the final decree in that proceeding discharged it from any judgment that had been or might be obtained by the petitioner. Cooper-Jarrett, Inc., having abandoned defense of the suit, the petitioner obtained a default judgment of $20,000 against it on April 22, 1939, and subsequently instituted garnishment proceedings against Central in a Missouri state court. Being unable to recover any part of the judgment from either Cooper-Jarrett, Inc., or Central, the petitioner on May
BRILLHART v. EXCESS INS. CO. 493
491	Opinion of the Court.
29,1940, made the respondent a party to the garnishment proceeding through service on the Missouri superintendent of insurance.
But, in the meantime, the respondent had filed this suit for a declaratory judgment in the federal District Court for Kansas. Its bill showed diversity of the parties’ citizenship and the requisite jurisdictional amount. It alleged, inter alia, that, when the bill in the federal suit was filed, the respondent was not a party to the garnishment proceeding in the state court; that, in violation of the terms of the reinsurance agreement, Central had never notified the respondent either of the accident resulting in the death of the petitioner’s decedent or of the suit brought against Cooper-Jarrett, Inc.; that the respondent’s only obligation under the reinsurance agreement was to indemnify Central against loss for sums actually paid in cash in settlement of losses for which Central was liable, and, since Central had never satisfied the claim against Cooper-Jarrett, Inc., the respondent could not be obligated in any way under the reinsurance agreement; that Cooper-Jarrett, Inc., was not liable to the petitioner for the death of his decedent; that, even if it were, Central was obligated to defend the suit, and its failure to do so discharged the respondent of any liability under the reinsurance agreement; that, even if it were originally liable, the discharge of Central and Cooper-Jarrett, Inc., had the effect of releasing the respondent; and that, in any event, the default judgment against Cooper-Jarrett, Inc., had been fraudulently obtained.
The petitioner moved to dismiss the suit, principally on the ground that the issues involved in the suit could now be decided in the garnishment proceeding pending in the Missouri state court. The District Court dismissed the bill, apparently because of a reluctance to prolong the
494	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
litigation,1 without considering whether the claims asserted by the respondent could, under Missouri law, be raised in the pending garnishment proceeding. The Circuit Court of Appeals held that dismissal of the suit was an abuse of discretion, but, instead of remitting the cause for a proper exercise of the District Court’s discretion, reversed the judgment with directions that the District Court proceed to a determination on the merits. 121 F. 2d 776. In view of the important question affecting the inter-relationship of the state and federal courts in the administration of the Federal Declaratory Judgments Act, 28 U. S. C. § 400, we brought the case here. 314 U. S. 606.
Although the District Court had jurisdiction of the suit under the Federal Declaratory Judgments Act, it was under no compulsion to exercise that jurisdiction. The petitioner’s motion to dismiss the bill was addressed to the discretion of the court. Aetna Casualty Co. v. Quarles, 92 F. 2d 321; Maryland Casualty Co. v. Consumers Finance Service, 101 F. 2d 514; American Automobile Ins. Co. v. Freundt, 103 F. 2d 613; see Note, 51 Yale L. J. 511. Compare Canada Malting Co. v. Paterson Co., 285 U. S. 413, 422-23; Douglas n. New York, N. H. & H. R. Co., 279 U. S. 377. The motion rested upon the claim
1 It is difficult to ascertain from the record the precise grounds for the District Court’s action. Some light is shed by the following colloquy, which occurred at the conclusion of the argument upon the motion to dismiss the bill:
“The Court: As I understand, the merits of the case with reference to the death of this decedent have never been tried?
“Mr. Woods [counsel for the respondent]: That is correct, and it is almost six years now.
“The Court: Well, I don’t think that this court will interfere with that. The case will be dismissed. You may draw a journal showing that after this long lapse of time, after your litigation in Missouri, that this court feels in its discretion that it ought not to interfere with that litigation in any way.”
BRILLHART v. EXCESS INS. CO. 495
491	Opinion of the Court.
that, since another proceeding was pending in a state court in which all the matters in controversy between the parties could be fully adjudicated, a declaratory judgment in the federal court was unwarranted. The correctness of this claim was certainly relevant in determining whether the District Court should assume jurisdiction and proceed to determine the rights of the parties. Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties. Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided.
Where a District Court is presented with a claim such as was made here, it should ascertain whether the questions in controversy between the parties to the federal suit, and which are not foreclosed under the applicable substantive law, can better be settled in the proceeding pending in the state court. This may entail inquiry into the scope of the pending state court proceeding and the nature of defenses open there. The federal court may have to consider whether the claims of all parties in interest can satisfactorily be adjudicated in that proceeding, whether necessary parties have been joined, whether such parties are amenable to process in that proceeding, etc.
We do not now attempt a comprehensive enumeration of what in other cases may be revealed as relevant factors governing the exercise of a District Court’s discretion. It is enough that it appears from the record before us that the District Court did not consider whether, under applicable local law, the claims sought to be adjudicated by the respondent in this suit for a declaratory judgment had either been foreclosed by Missouri law or could adequately be tested in the garnishment proceeding pending in the
496	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Missouri state court. This was a matter for determination, certainly in the first instance, by the District Court. Nor did the Circuit Court of Appeals, in reversing the judgment of the District Court, purport to find that under controlling Missouri law the issues set up by the respondent in this suit could not be contested in the pending Missouri proceeding.2
Whether and under what circumstances a reinsurer can be reached through a judgment against the insured are questions of local law. Whether the judgment against Cooper-Jarrett, Inc., could serve as a basis for garnishment proceedings against the respondent was therefore a matter of Missouri law. But that issue was never tendered before the Kansas District Court; that court did not profess to pass upon it, and the Circuit Court of Appeals, in reversing the decree of dismissal, shed no light upon it.
If the lower courts had found that under Missouri law the respondent’s claims could not adequately be tested in the pending garnishment proceeding, or that Missouri
2 The opinion of the Circuit Court of Appeals contains a single sentence which, if read without reference to its context, might appear to be such a finding: “The issues in the garnishment action could not determine the liability of appellant [the respondent here] under its reinsurance contract.” 121 F. 2d at 778. But, as we read its opinion, the court below clearly was referring only to the garnishment action against Central before the respondent was joined as a party. Of course, at that time the respondent would have no opportunity to raise in the garnishment proceeding the claims which it asserted in the federal suit for a declaratory judgment. But when the petitioner’s motion to dismiss the federal suit was filed, the respondent had been made a party to the garnishment proceeding. And, as its opinion shows, the Circuit Court of Appeals did not find that under Missouri law the claims raised by the respondent in the federal suit, which were governed by Missouri law and were not previously foreclosed by it, could not be adjudicated in the garnishment proceeding after the respondent had been joined as a party.
BRILLHART v. EXCESS INS. CO. 497
491	Opinion of the Court.
law on the subject was doubtful, and upon the basis of such a finding had taken jurisdiction of this suit for a declaratory judgment, we would not disturb such a finding. But no such finding can be extracted from this record. And it is not for us to attempt to pronounce independently upon Missouri law. To do so would be to disregard the limitations inherent^ in our appellate jurisdiction. It is not our function to find our way through a maze of local statutes and decisions on so technical and specialized a subject as the scope of a garnishment proceeding in a particular jurisdiction. For one thing, it is too easy to lose our way. For example, there are numerous decisions of the Supreme Court of Missouri which declare a general principle that the garnishee can assert any defenses in a garnishment proceeding that would be open in a suit brought against him by the judgment debtor. E. g., Weil v. Tyler, 38 Mo. 545, 547; McDermott v. Donegan, 44 Mo. 85, 89; Sheedy v. Second National Bank, 62 Mo. 17, 24. We do not cite these decisions to show that the respondent’s claims in this case could adequately be tested in the garnishment proceeding pending in the Missouri state court. For the crux of our ruling is that we should not be called upon to make such a determination in the first instance. But these utterances of the Missouri Supreme Court do serve as a warning that scattered opinions of an intermediate appellate court of a State may convey only doubts and confusion to one inexpert in the law of that State and yet be entirely clear and consistent when placed in the mosaic of the w’hole law of that State. Compare Mr. Justice Brandéis dissenting in Railroad Commission v. Los Angeles Ry. Corp., 280 U. S. 145, 164. We are not concerned here with the burden of proof in establishing facts as to which only the parties to a private litigation are interested. We are concerned rather with the duty of 461263°—43----32
498	OCTOBER TERM, 1941.
Douglas, J., concurring.	316U.S.
the federal courts to determine legal issues governing the proper exercise of their jurisdiction.
The cause should be remanded to the District Court in order that it may properly exercise its discretion in passing upon the petitioner’s motion to dismiss this suit.
Reversed.
Mr. Justice Douglas, concurring:
If we had here only the question as to whether the issues framed by respondent in this suit could be litigated in the statutory garnishment proceeding in Missouri, I would agree with the views expressed by the Chief Justice. But there is the further, and for me the controlling, question whether, as stated by the majority, the claims raised by respondent had been “previously foreclosed” under Missouri law. It is a fair inference from this record that respondent, like Central, received notice and had an opportunity to defend the suit brought against Cooper-Jarrett, although all of the attendant circumstances do not clearly appear. Under Missouri law the general rule seems to be that notice and opportunity to defend binds the reinsurer on judgments against the reassured. See e. g. Strong v. Phoenix Ins. Co., 62 Mo. 289; Gantt v. American Central Ins. Co., 68 Mo. 503; City of St. Joseph v. Union Ry. Co., 116 Mo. 636, 643, 22 S. W. 794; Finkle v. Western Auto. Ins. Co., 224 Mo. App. 285, 300, 26 S. W. 2d 843. By statute (6 Mo. Stat. Ann. §§ 5898, 5899) the liability of the insurance company becomes absolute when loss occurs; and judgment against the insured establishes privity between the injured party and the insurer. See Schott v. Auto Ins. Underwriters, 326 Mo. 92, 31 8. W. 2d 7; Lajoie v. Central West Casualty Co., 228 Mo. App. 701, 71 S. W. 2d 803; Ta-verno v. American Auto Ins. Co., 232 Mo. App. 820, 112 S. W. 2d 941. The problem is whether by reason of the insurer’s liability under the policy and the statute, and
BRILLHART v. EXCESS INS. CO. 499
491	Stone, C. J., dissenting.
respondent’s liability under its reinsurance contract (see e. g. Homan v. Employers Reinsurance Corp., 345 Mo. 650, 136 S. W. 2d 289), notice and opportunity to defend the earlier suit were sufficient (Schott v. Auto Ins. Underwriters, supra) to bind respondent as reinsurer. Respondent’s charges of fraud center on the adequacy of the notice which it received and the failure of the insured and the insurer to defend. That seems to be but one phase of the question whether under Missouri law respondent was bound by the judgment in the earlier suit.
The exercise of jurisdiction under the Federal Declaratory Judgments Act is certainly not compulsory; it is discretionary. Borchard, Declaratory Judgments (2d ed.), p. 312. If it may fairly be said under Missouri law that respondent was bound by its failure or refusal to defend the earlier suit after notice, then it would clearly be an abuse of discretion for the District Court to take or at least to retain jurisdiction of the cause in case it appeared after a hearing on that issue that respondent was so bound.
Mr. Chief Justice Stone, dissenting:
I think the decision of the Circuit Court of Appeals was right and should be affirmed.
Respondent, reinsurer of an automobile public liability insurance policy, has been made a party to a garnishment proceeding instituted under the Missouri statutes by petitioner, who has secured a Missouri default judgment upon a liability of the insured said to be covered by the policy. By this suit brought in the federal District Court for Kansas, respondent now seeks among other things to set aside the judgment, so far as it establishes liability against the insurer, as fraudulently obtained.
Respondent’s bill of complaint states a cause of action which it is entitled to have adjudicated in some court.
500	OCTOBER TERM, 1941.
Stone, C. J., dissenting.	316U.S.
The considerations suggested by Mr. Justice Douglas are of course relevant to the merits of respondent’s case, and should be tried with other issues wherever and whenever they are to be tried. As the District Court below had jurisdiction—and as no other reason is advanced for declining jurisdiction—it was plainly its duty to hear and decide all the issues necessary for disposition of the case unless it was made to appear with reasonable certainty that the issues could be adjudicated in the Missouri courts. Petitioner assumed that burden by his motion in the District Court for an order dismissing the suit and remitting respondent to the state courts. The data, including statements of the facts spread upon the record, which he submitted in support of the motion have now received the consideration of three courts. None of them has said, and in the circumstances of this case no federal court could say, either with binding authority or with reasonable certainty, that respondent can litigate in the Missouri courts its asserted right to set aside petitioner’s judgment for fraud. Petitioner, who is not a citizen or resident of Missouri and not subject to the jurisdiction of its courts unless he voluntarily appears in an action there, has not said, and in this Court has carefully avoided saying, that he would appear in any independent suit brought in the Missouri courts to attack the judgment.
Further, it affirmatively appears that the question whether respondent can litigate its present cause of action in the statutory garnishment proceeding in Missouri is at best not free from doubt. The Missouri garnishment statutes do not deal expressly with the nature of the issues that can be raised in a garnishment proceeding. Missouri Revised Statutes, 1939, §§ 1560-1589. But the Missouri intermediate appellate courts seem to agree that in such a proceeding the garnishee cannot challenge the validity and effectiveness of the judgment save for want of juris-
BRILLHART v. EXCESS INS. CO. 501
491	Stone, C. J., dissenting.
diction of the court which rendered it. Potter v. Whitten, 161 Mo. App. 118, 131-32, 142 S. W. 453; Nevatt v. Springfield Normal School, 79 Mo. App. 198, 201; Reid, Murdock & Co. v. Mercurio, 91 Mo. App. 673, 678. The Missouri Supreme Court has never disapproved these decisions.
The Court of Appeals below in deciding that the cause should be litigated in the present suit declared, 121 F. 2d at 778:
“A federal court may not refuse to assume jurisdiction merely on the ground that another remedy is available or because another suit is pending, if the controversy between the parties will not necessarily be determined therein. Maryland Casualty Co. v. Consumers Finance Service, Inc., 101 F. 2d 514.”
Here it is evident, despite the diligence of counsel, that the ability of respondent to assert its cause of action in the Missouri garnishment proceeding is uncertain and must remain so until the Supreme Court of Missouri has spoken. Just how respondent’s ability to maintain its suit in Missouri can be made more certain or even reasonably probable, or how the cause of justice will be advanced by compelling respondent to begin over again the nearly three years’ course of litigation which it has now traveled, is not revealed. The concededly erroneous decision of the District Court has been reversed by the Circuit Court of Appeals. Unless this Court is now prepared to say that respondent’s ability to maintain the suit in the state court is free from doubt, we should leave the judgment undisturbed and not deny to respondent the benefit of the federal jurisdiction which Congress has sanctioned. One of the chief purposes of creating the diversity of citizenship jurisdiction was to afford to suitors an unclouded opportunity to assert their rights in the federal courts when the exigencies of state court jurisdiction of subject matter or
502	OCTOBER TERM, 1941.
Syllabus.	316 U.S.
parties, or both together, as in this case, render doubtful their ability to proceed in the state courts. In such a case a suitor ought not to be penalized, as respondent plainly is, for invoking the federal jurisdiction.
The Missouri law, if not conclusively against the assertion of the present cause in the Missouri garnishment proceeding, is at least so doubtful that respondent ought not to be compelled to seek the futile prophecy of the district court in Kansas as to how the Missouri courts will resolve an unsettled point of Missouri practice. Since petitioner has failed to sustain his burden of showing that the case is a proper one for dismissal, the District Court should exercise its jurisdiction by proceeding to determine the merits without further delay. If this litigation is ever to end, it is important for it to get started.
Mr. Justice Roberts and Mr. Justice Jackson join in this dissent.
FAITOUTE IRON & STEEL CO. et al. v. CITY OF ASBURY PARK.
APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY.
No. 896. Argued April 28, 1942.—Decided June 1, 1942.
Under the New Jersey Municipal Finance Act, a plan for the adjustment or composition of the claims of creditors of an insolvent municipality may be made binding on all creditors, if approved by the municipality, by the Municipal Finance Commission, and by creditors representing 85 per cent of the indebtedness affected, and if adopted, under prescribed conditions, by the State Supreme Court. As applied to holders of defaulted bonds and interest coupons of a municipality, who, under an adjustment decreed by the state court, were obliged to convert their bonds into others bearing a lower rate of interest, held:
1. The Act is not inoperative as inconsistent with the bankruptcy power exercised by Congress. P. 507.
FAITOUTE CO. v. ASBURY PARK. 503
502	Opinion of the Court.
2.	The Act does not effect an unconstitutional impairment of the obligation of contracts. P. 509.
3.	The question of the validity of the Act as applied to secured claims, is not involved and not decided. P. 516.
127 N. J. L. 239, 21 A. 2d 796, affirmed.
Appeal from a judgment affirming the dismissal, by the Supreme Court of New Jersey, 19 N. J. Misc. 322,19 A. 2d 445, of a suit to recover upon bonds and interest coupons issued by the municipality.
Mr. Arthur T. Vanderbilt for appellants.
Mr. Ward Kremer for appellee.
Mr. Justice Frankfurter delivered the opinion of the Court.
A New Jersey statute, adopted in 1931, authorized state control over insolvent municipalities. By a supplementary law, enacted in 1933, a plan for adjustment of the claims of creditors of such an insolvent municipality could be made binding upon ajl creditors. The question is whether an adjustment so authorized by a state impairs rights in violation of the Constitution of the United States.
The City of Asbury Park is a seashore resort with a resident population of 15,000. It presents a familiar picture of optimistic and extravagant municipal expansion caught in the destructive grip of general economic depression: elaborate beachfront improvements, costs in excess of estimates, deficits not annually met by taxation, declining real-estate values, inability to refinance a disproportionately heavy load of short-term obligations, and, inevitably, default. Accordingly, in January, 1935, availing themselves of the New Jersey Municipal Finance Act, creditors applied to the Supreme Court of New Jersey to place the state Municipal Finance Commission in control of the city’s finances.
504	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
The legislation was enacted “to meet the public emergency arising from a default in the payment of municipal obligations, and the resulting impairment of public credit,” Laws of New Jersey (1931), c. 340, § 405. In broad terms, the legislation, through combined administrative and judicial action, adapted the underlying principles of an equity receivership to the solution of the problem of insolvent municipalities. By a supplementing Act, Laws of New Jersey (1933), c. 331, a “plan of adjustment or composition of the claims of all creditors” may be submitted on their behalf to the supreme court of the state. If approved by 85 per cent in amount of the creditors and by the municipality and the Commission, such plan of adjustment may be adopted “if the court by its justice determines (1) that the municipality is unable to pay in full according to their terms the claims proposed to be adjusted or composed, and perform its public functions and preserve the value of property subject to taxation, (2) that the adjustment or composition is substantially measured by the capacity of a municipality to pay, (3) that it is in the interest of all the creditors affected thereby, and (4) that it is not detrimental to other creditors of the municipality.” The plan cannot be authorized, however, if it involves any reduction of the principal amount of any outstanding obligation. Any creditor is entitled to appear and to be heard, but a plan which is so authorized by the court is binding upon all creditors whether or not they appear, and the substitution of new obligations for old in carrying out the plan is made effective from the day fixed by judicial order. To effectuate such a plan, the Act provides further that the court shall retain jurisdiction and “thereafter no creditor whose claim is included in such adjustment or composition shall be authorized to bring any action or proceeding of any kind or character for the enforcement of his claim except with the permission of the supreme
FAITOUTE CO. v. ASBURY PARK. 505
502	Opinion of the Court.
court and then only to recover and enforce the rights given him by the adjustment or composition.”1
Pursuant to this legislative scheme, the City of Asbury Park was on March 7, 1935, placed under the control of the Municipal Finance Commission; on February 1,1936, a plan for the refunding of its bonded debt was filed in the State Supreme Court, and that court took jurisdiction of
1 The text of the legislation as incorporated in N. J. Revised Statutes (1937), tit. 52, c. 27, indicates the careful character of the legislation:
“52: 27-34. Petition by creditors; plan of adjustment or composition; parties; notice. Upon the verified petition of any creditors of a municipality in which the commission shall function, made on behalf of themselves and all other creditors of the municipality, for the approval of a plan of adjustment or composition of the claims of all creditors or of a class or classes of them similarly situated, which plan shall be submitted with and made a part of the petition, the supreme court by a justice thereof may take jurisdiction of the subject matter and order the filing of the petition in the office of the clerk of the supreme court.
“The municipality and the commission shall be made parties to such proceeding. All creditors of the municipality shall be made parties thereto by notice to be published and given in such manner as the supreme court by its justice may direct. Any creditor of the municipality may appear and assert his rights.
“52: 27-35. Allegations in petition. In the petition the creditors shall allege that the municipality is or will be unable to pay in full according to their terms the claims proposed to be adjusted or composed and perform its public functions and preserve the value of property subject to taxation, that the adjustment or composition proposed in the plan is substantially measured by the capacity of the municipality to pay, is in the interests of all the creditors affected thereby, and is not detrimental to other creditors of the municipality.
“52: 27-36. Approval by supreme court justice of plan of adjustment or composition; findings. In any such proceeding, after hearing on the plan proposed or on the plan as modified by order and if such plan as proposed or modified is approved in writing by creditors representing eighty-five per cent in amount of the indebtedness affected thereby and by the municipality and the commission, the supreme court by a justice thereof may by order authorize and approve such adjustment or composition if the court by its justice determines (1) that the munic
506	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
the proceedings; the plan, as amended, was approved by the court on July 21,1937; on September 28, 1937, it was duly approved by the Municipal Finance Commission; on April 29,1938, it was consented to by creditors representing “85 per cent in amount of the indebtedness affected” by the plan; and, on June 15,1938, it was put into opera-
ipality is unable to pay in full according to their terms the claims proposed to be adjusted or composed, and perform its public functions and preserve the value of property subject to taxation, (2) that the adjustment or composition is substantially measured by the capacity of the municipality to pay, (3) that it is in the interest of all the creditors affected thereby, and (4) that it is not detrimental to other creditors of the municipality.
“52: 27-37. Approved plan binding on all creditors; substituted obligations. The plan of adjustment so authorized and approved shall forthwith and without any further action of any kind be binding upon all the creditors included in the plan, whether or not they appear in the proceeding. In so far as said plan provides for the substitution of any new bonds, notes or other obligations of the municipality in place of any outstanding bonds, notes or other obligations, or claims then outstanding, such substitution shall be effectual from and after such date as may be fixed in such order.
“52: 27-38. Continuance of stay of proceedings against municipality; action by creditor to enforce claim restricted. After the institution of any proceeding provided for by this article and pending the determination thereof, the supreme court by a justice thereof may by order continue the stay provided by sections 52: 27-32.1 and 52: 27-33 of this title.
‘Tn the event that a plan shall be authorized and approved pursuant to this article the court shall retain jurisdiction of such proceeding and thereafter no creditor whose claim is included in such adjustment or composition shall be authorized to bring any action or proceeding of any kind or character for the enforcement of his claim except with the permission of the supreme court and then only to recover and enforce the rights given him by the adjustment or composition.
“52: 27-39. Reduction in principal of outstanding notes or bonds prohibited. Notwithstanding any provisions of this article the commission shall not approve any adjustment or composition, or plan presented pursuant to this article, which provides for the reduction in the principal amount of any outstanding notes or bonds of the municipality.”
FAITOUTE CO. v. ASBURY PARK.	507
502	Opinion of the Court.
tion. The plan provided for the refunding of $10,750,000 of outstanding bonds; these were to be exchanged by the consenting creditors for new bonds to be issued in accordance with the terms of the plan approved by the court.
The appellants were holders of defaulted bonds and interest coupons issued by the City of Asbury Park in 1929 and 1930—prior, therefore, to the legislation which authorized the proceedings resulting in the challenged refunding scheme. The bonds of the appellants were part of the $10,750,000 of refunded bonds which, under the adjustment decreed by the court, could only be converted into new bonds maturing in 1966 and bearing a lower rate of interest than the original bonds. Deeming the arrangement authorized under the New Jersey statute to be violative of the Constitution of the United States, the appellants brought this suit for the face value of the old bonds and coupons. The Supreme Court of New Jersey dismissed the suit, 19 N. J. Misc. 322,19 A. 2d 445; the Court of Errors and Appeals affirmed the dismissal, 127 N. J. L. 239, 21 A. 2d 796; and the case is here on appeal under § 237(a) of the Judicial Code, as amended, 28 U. S. C. § 344.
If the New Jersey legislation which is the foundation of the refunding plan for the City of Asbury Park is valid, appellants’ claim on the old bonds was barred by law, and the judgment below must stand. The validity of that legislation is assailed on two grounds. It is contended, first, that the New Jersey laws constitute municipal bankruptcy legislation, that that field of law-making has been preempted by Congress, and that the New Jersey legislation is therefore inoperative. To this argument a few dates furnish a short answer. The present court proceedings began on February 1, 1936. The first federal Municipal Bankruptcy Act was declared unconstitutional on May 25, 1936. Ashton v. Cameron County Dist., 298 U. S. 513. The refunding plan now assailed was approved, as we have seen, on July 21,1937. It was thus authorized
508	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
more than a year before the enactment of the only relevant federal statute, the Act of August 16, 1937, 50 Stat. 653, amending the Bankruptcy Act to provide for the composition of indebtedness of taxing agencies. Assuming Congress had power to do so, this Act did not profess to terminate a pending state court proceeding like that now in question. It would offend the most settled habits in the relationship between the States and the Nation to imply such a retroactive nullification of state authority over its subordinate organs of government.
We prefer, however, to dispose of this objection on a broader ground. Not until April 25, 1938, was the power of Congress to afford relief similar to that given by New Jersey for its municipalities clearly established, United States v. Bekins, 304 U. S. 27, and then only because Congress had been “especially solicitous to afford no ground” for the “objection” that an exercise of federal bankruptcy over political subdivisions of the State “might materially restrict its control over its fiscal affairs” whereby States would no longer be “free to manage their own affairs.” The statute was “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 . . . 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.” 304 U. S. at 50, 51. New Jersey expressly prohibits any municipality to avail itself of a federal bankruptcy act “unless the approval of the municipal finance commission ... be first had and obtained.” Revised Statutes of New Jersey (1937), 52: 27-40. The City of Asbury Park has never attempted to resort to a federal bankruptcy court, and the New Jersey Municipal Finance Commission has not authorized it to do so. Can it be that a power that was not recognized until 1938, and when so recognized, was carefully circumscribed to reserve full freedom
FAITOUTE CO. v. ASBURY PARK.	509
502	Opinion of the Court.
to the States, has now been completely absorbed by the Federal Government—that a State which, as in the case of New Jersey, has after long study devised elaborate machinery for the autonomous regulation of problems so peculiarly local as the fiscal management of its own household, is powerless in this field? We think not.
This brings us to the second and main contention, namely, that the appellants’ claims in the form of the bonds and coupons issued by the City of Asbury Park, constituted contracts, the obligation of which is impaired by the denial of their right to recover thereon and by their transmutation, without their consent, into the securities authorized by the plan of adjustment.
The principal asset of a municipality is its taxing power and that, unlike an asset of a private corporation, can not be available for distribution. An unsecured municipal security is therefore merely a draft on the good faith of a municipality in exercising its taxing power. The notion that a city has unlimited taxing power is, of course, an illusion. A city cannot be taken over and operated for the benefit of its creditors, nor can its creditors take over the taxing power. Indeed, so far as the Federal Constitution is concerned, the taxing power of a municipality is not even within its own control—it is wholly subordinate to the unrestrained power of the State over political subdivisions of its own creation. “A municipal corporation ... is a representative not only of the State, but is a portion of its governmental power . . . The State may withdraw these local powers of government at pleasure, and may, through its legislature or other appointed channels, govern the local territory as it governs the State at large. It may enlarge or contract its powers or destroy its existence.” United States N. Railroad Company, 17 Wall. 322,329. And see Hunter v. Pittsburgh, 207 U. S. 161.
In effect, therefore, the practical value of an unsecured claim against the city is inseparable from reliance upon
510	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
the effectiveness of the city’s taxing power. The only remedy for the enforcement of such a claim is a mandamus to compel the levying of authorized taxes. The experience of the two modern periods of municipal defaults, after the depressions of ’73 and ’93, shows that the right to enforce claims against the city through mandamus is the empty right to litigate. See Hillhouse, Lessons from Previous Eras of Default (chap. IV in Chatters, Municipal Debt Defaults) ; Report of the Securities and Exchange Commission on the Study and Investigation of the Work, Activities, Personnel and Functions of Protective and Reorganization Committees (1936), Pt. IV : Committees for the Holders of Municipal and Quasi-Municipal Obligations, passim; Dimock, Legal Problems of Financially Embarrassed Municipalities, contained in Summary of Proceedings, American Bar Assn., 1st Annual Meeting (1935), Section of Municipal Law, p. 12 [see also XXII Virginia L. Rev. 39].
How, then, can claims against a financially embarrassed city be enforced? Experience shows that three conditions are essential if the municipality is to be kept going as a political community and, at the same time, the utmost for the benefit of the creditors is to be realized: impartial, outside control over the finances of the city; concerted action by all the creditors to avoid destructive action by individuals; and rateable distribution. In short, what is needed is a temporary scheme of public receivership over a subdivision of the State. A policy of every man for himself is destructive of the potential resources upon which rests the taxing power which in actual fact constitutes the security for unsecured obligations outstanding against a city.
To deny a State the means of giving substance to the taxing power which alone gives meaning to unsecured municipal obligations, is to hold, in effect, that the right to pursue a sterile litigation is an “obligation” protected by
FAITOUTE CO. v. ASBURY PARK.	511
502	Opinion of the Court.
the Constitution of the United States. For there is no remedy when resort is had to “devices and contrivances” to nullify the taxing power which can be carried out only through authorized officials. See Rees v. City of Watertown, 19 Wall. 107,124. And so we have had the spectacle of taxing officials resigning from office in order to frustrate tax levies through mandamus, and officials running on a platform of willingness to go to jail rather than to enforce a tax levy (see Raymond, State and Municipal Bonds, 342-43), and evasion of service by tax collectors, thus making impotent a court’s mandate. Yost v. Dallas County, 236 U. S. 50, 57. But if taxes can only be protected by the authority of the State and the State can withdraw that authority, the authority to levy a tax is imported into an obligation to pay an unsecured municipal claim, and there is also imported the power of the State to modify the means for exercising the taxing power effectively in order to discharge such obligation, in view of conditions not contemplated when the claims arose. Impairment of an obligation means refusal to pay an honest debt; it does not mean contriving ways and means for paying it. The necessity compelled by unexpected financial conditions to modify an original arrangement for discharging a city’s debt is implied in every such obligation for the very reason that thereby the obligation is discharged, not impaired.
More than fifty years ago, Lord Bryce pointed out that the debt and taxation of American cities had reached “an alarming figure.” Bryce, The American Commonwealth, p. 607. Beginning with 1915, the evil consequences of the unhealthy financial conditions of New Jersey municipalities began to occupy the attention of its legislature. Investigations by expert bodies led to a series of enactments tightening state control over municipal finances. See Reports of New Jersey Legislative Commission for the Survey of Municipal Financing, 1915,1916,1917; Reports
512	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
of New Jersey Commission on Municipal Taxation and Finance, particularly Report No. 2 (Municipal and County Debt, 1931). The Depression- intensified the need for state control, and the establishment of the Municipal Finance Commission with the powers outlined above was designed, as stated by the legislature, to meet “the public emergency arising from a default in the payment of municipal obligations, and the resulting impairment of public credit.” But this emergency, as the decisions in this Court during the last ten years amply testify, did not evaporate. Students of the subject have pointed out that, in the depression of 1893 as in that of 1873, “the worst financial difficulties for municipalities came in the fourth year of the depression.” See Hillhouse, supra, at 14. History repeated itself, certainly as to New Jersey municipalities. See Report of New Jersey Municipal Finance Commission, 1937, and Second Annual Report of the Local Government Board (to which the functions of the Municipal Finance Commission were transferred in 1939), 1940, p. 11. The whole history of New Jersey legislation leaves no doubt that the State was bent on holding the municipalities to their obligations by utilizing the most widely approved means for making them effective. The intervention of the State in the fiscal affairs of its cities is plainly an exercise of its essential reserve power to protect the vital interests of its people by sustaining the public credit and maintaining local government. The payment of the creditors was the end to be obtained, but it could be maintained only by saving the resources of the municipality—the goose which lays its golden eggs, namely, the taxes which alone can meet the outstanding claims.
The real constitutional question is whether the Contract Clause of the Constitution bars the only proven way for assuring payment of unsecured municipal obligations. For, in the light of history, and more particularly on the
FAITOUTE CO. v. ASBURY PARK. 513
502	Opinion of the Court.
basis of the recommendations of its expert advisers, the New Jersey legislature was entitled to find that in order to keep its insolvent municipalities going, and at the same time fructify their languishing sources of revenue and thus avoid repudiation, fair and just arrangements by way of compositions, scrutinized and authorized by a court, might be necessary, and that to be efficacious such a composition must bind all, after 85 per cent of the creditors assent, in order to prevent unreasonable minority obstruction. As the court below pointed out, in view of the slump of the credit of the City of Asbury Park before the adoption of the plan now assailed, appellants’ bonds had little value; the new bonds issued under the plan, however, are not in default and there is a very substantial market for them. The refunding scheme, as part of a comprehensive plan for salvaging Asbury Park, both governmentally and financially, was so successful that the refunding bonds were selling at around 69 at the time of refunding, while at about the time the present suit was brought commanded a market at better than 90. See Second Annual Report of the New Jersey Local Government Board, 1940, p. 39.
From time to time, ever since Sturges v. Crowninshield, 4 Wheat. 122, 199, it has been stated that a state insolvency act is limited by the Contract Clause of the Constitution in authorizing composition of preexisting debts. So it is, but it all depends on what is affected by such a composition and what state power it brings into play. The dictum from Sturges n. Crowninshield is one of those inaccurate generalizations that have gained momentum from uncritical repetition.
If a State retains police power with respect to building and loan associations, Veix v. Sixth 'Ward Assn., 310 U. S. 32, 38, because of their relation to the financial well-being of the State, and if it may authorize the reorganization of an insolvent bank upon the approval of a state superin-4612630—43—33
514	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. 8.
tendent of banks and a court, but over the dissent of one-fourth of the depositors (except preferred or secured claimants), Doty v. Love, 295 U. S. 64, a State should certainly not be denied a like power for the maintenance of its political subdivisions and for the protection not only of their credit but of all the creditors by an adjustment assented to by at least 85 per cent of the creditors, approved by the commission of the State having oversight of its municipalities, and found wise and just after due hearing by a court.
The Constitution is “intended to preserve practical and substantial rights, not to maintain theories.” Davis v. Mills, 194 U. S. 451, 457. Particularly in a case like this are we in the realm of actualities and not of abstractions and paper rights, of what things are worth in dollars and cents, and in what is proposed to realize paper values. “The question whether the remedy on this contract was impaired materially is affected not only by the precarious character of the plaintiff’s right, but by considerations of fact—of what the remedy amounted to in practice.” Pittsburgh Steel Co. v. Baltimore Equitable Soc., 226 U. S. 455, 459. This was said of the claim of a creditor of a private corporation. How much more pertinent is it to claims of these appellants against the municipality of Asbury Park in the circumstances before us.2 To say that the right of
8 Compare Chicago, B. & Q. R. Co. v. Nebraska, 170 U. S. 57, 72. “Usually, where a contract, not contrary to public policy, has been entered into between parties competent to contract, it is not within the power of either party to withdraw from its terms without the consent of the other; and the obligation of such a contract is constitutionally protected from hostile legislation. Where, however, the respective parties are not private persons, dealing with matters and things in which the public has no concern, but are persons or corporations whose rights and powers were created for public purposes, by legislative acts, and where the subject-matter of the contract is one which affects the safety and welfare of the public, other principles apply. Contracts of the latter description are held to be within the supervis-
FAITOUTE CO. v. ASBURY PARK. 515
502	Opinion of the Court.
the Asbury Park bondholders in 1935 was of precarious character is pure understatement. And we have already seen how empty was the remedy with which to enforce that right.
“In the books there is much talk about distinctions between changes of the substance of the contract and changes of the remedy ... The dividing line is at times obscure.” Worthen Co. v. Kavanaugh, 295 U. S. 56,60. The dividing line will remain obscure if we deal with empty abstract rights instead of worldly gains and losses, if we indulge in doctrinaire talk about “rights” and “remedies,” instead of giving these concepts a content that carries meaning to the understanding of men. Here we have no such action as that disclosed in Worthen Co. v. Kavanaugh, supra, where with “studied indifference to the interests of the mortgagee or to his appropriate protection,” legislation was found “to have taken from the mortgage the quality of an acceptable investment for a rational investor,” and the challenged changes of remedy were found to be “an oppressive and unnecessary destruction of nearly all the incidents that give attractiveness and value to collateral security.” Here we have just the opposite—no security whatever except the effective taxing power of the municipality ; the effective taxing power of the municipality prostrate without state intervention to revive the famished finances of the city; state intervention, carefully devised, worked out with scrupulous detail and with due regard to the interests of all the creditors, and scrutinized to that end by the state judiciary with the result that that which was ing power and control of the legislature when exercised to protect the public safety, health and morals, and that clause of the Federal Constitution which protects contracts from legislative action cannot in every case be successfully invoked. The presumption is that when such contracts are entered into it is with the knowledge that parties cannot, by making agreements on subjects involving the rights of the public, withdraw such subjects from the police power of the legislature.”
516	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. 8.
a most depreciated claim of little value has, by the very scheme complained of, been saved and transmuted into substantial value. To call a law so beneficent in its consequences on behalf of the creditor who, having had so much restored to him, now insists on standing on the paper rights that were merely paper before this resuscitating scheme, an impairment of the obligation of contract is indeed to make of the Constitution a code of lifeless forms instead of an enduring framework of government for a dynamic society.
We do not go beyond the case before us. Different considerations may come into play in different situations. Thus we are not here concerned with legislative changes touching secured claims. The New Jersey courts have held that under this very statute tax anticipations and revenue notes stand on an entirely different footing from other municipal obligations, and in relation to them no claim is affected by the Municipal Finance Commission Act of 1931. State v. Fort Lee, 14 N. J. Misc. 895, 188 A. 689; affirmed 118 N. J. L. 181,191 A. 836. The differentiation thus made by New Jersey regarding various obligations in itself indicates the detailed care with which the legislation of the State proceeded in readjusting outstanding municipal obligations.
Affirmed.
Mr. Justice Reed concurs in the result.
KIRSCHBAUM CO. v. WALLING. 517
Counsel for Parties.
A. B. KIRSCHBAUM CO. v. WALLING, ADMINISTRATOR OF THE WAGE & HOUR DIVISION, U. S. DEPARTMENT OF LABOR.*
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
No. 910. Argued April 28, 29,1942.—Decided June 1,1942.
1.	The Fair Labor Standards Act of 1938 held applicable to employees engaged in the maintenance and operation of a building whose tenants are engaged principally in the production of goods for interstate commerce. P. 524.
2.	Such employees are engaged in an “occupation necessary to the production” of goods in interstate commerce, within the meaning of § 3 (j) of the Act. P. 524.
3.	The employees here involved can not be regarded as engaged in “service establishments” within the exemption of § 13 (a) (2) of the Act. P. 526.
124 F. 2d 567 and 125 F. 2d 278, affirmed.
Certiorari, 315 U. S. 792, to review, in No. 910, the affirmance of a decree enjoining the petitioners from an alleged violation of the Fair Labor Standards Act, 38 F. Supp. 204; and, in No. 924, the reversal of a decree denying such an injunction, 38 F. Supp. 207.
Mr. William Clarke Mason, with whom Mr. Frederick H. Knight was on the brief, for petitioner in No. 910. Mr. Walter Gordon Merritt, with whom Messrs. Kenneth C. Newman, Henry Clifton, Jr., and Robert R. Bruce were on the brief, for petitioners in No. 924.
Solicitor General Fahy, with whom Messrs. Richard H. Demuth, Warner W. Gardner, Irving J. Levy, Mortimer
*Together with No. 924, Arsenal Building Corp, et al. v. Walling, Administrator of the Wage & Hour Division, U. S. Department of Labor, on writ of certiorari, 315 U. S. 792, to the Circuit Court of Appeals for the Second Circuit.—Argued April 29, 1942.
518	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
B. Wolf, and Norman S. Altman were on the briefs, for respondent. Mr. Abner Brodie was also on the brief for respondent in No. 910.
Mr. Justice Frankfurter delivered the opinion of the Court.
In United States v. Darby, 312 U. S. 100, and Opp Cotton Mills v. Administrator, 312 U. S. 126, the constitutionality of the Fair Labor Standards Act of 1938,52 Stat. 1060,29 U. S. C. § 201 et seq., was sustained. In the cases now before us we are required to consider the scope of the Act in relation to a particular phase of industrial activity. Specifically, the problem is this: Under § 6 of the Act an employer must pay prescribed minimum wages “to each of his employees who is engaged in commerce or in the production of goods for commerce,” and under § 7 overtime compensation must be given “any of his employees who is engaged in commerce or in the production of goods for commerce.” Section 3 (j) provides that “for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed ... in any process or occupation necessary to the production thereof, in any State.” The employees here are engaged in the operation and maintenance of a loft building in which large quantities of goods for interstate commerce are produced. Does the Fair Labor Standards Act extend to such employees?
The facts in the two cases differ only in minor detail. In No. 910, the petitioner owns and operates a six-story loft building in Philadelphia. The tenants are, for the most part, manufacturers of men’s and boys’ clothing. In No. 924, the petitioners own and operate a twenty-two story building located in the heart of the New York City clothing manufacturing district. Practically all of the
KIRSCHBAUM CO. v. WALLING. 519
517	Opinion of the Court.
tenants manufacture or buy and sell ladies’ garments. Concededly, in both cases the tenants of the buildings are principally engaged in the production of goods for interstate commerce. In No. 910, the petitioner employs an engineer, three firemen, three elevator operators, two watchmen, a porter, a carpenter, and a carpenter’s helper. In No. 924, the controversy involves two firemen, an electrician, fourteen elevator operators, two watchmen, and six porters. These employees perform the customary duties of persons charged with the effective maintenance of a loft building. The engineer and the firemen produce heat, hot water, and steam necessary to the manufacturing operations. They keep elevators, radiators, and fire sprinkler systems in repair. The electrician maintains the system which furnishes the tenants with light and power. The elevator operators run both the freight elevators which start and finish the interstate journeys of goods going from and coming to the tenants, and the passenger elevators which carry employees, customers, salesmen, and visitors. The watchmen protect the buildings from fire and theft. The carpenters repair the halls and stairways and other parts of the buildings commonly used by the tenants. The porters keep the buildings clean and habitable.
Deeming these employees within the Act because of their relationship to the activities of the tenants, the Administrator brought suits to enjoin the petitioners from violating the Act by paying wages at lower rates than those fixed by the Act. In No. 910, the District Court granted an injunction, 38 F. Supp. 204, and the Circuit Court of Appeals for the Third Circuit affirmed. 124 F. 2d 567. In No. 924, the District Court denied an injunction, 38 F. Supp. 207, but the Circuit Court of Appeals for the Second Circuit reversed. 125 F. 2d 278. Despite
520	OCTOBER TERM, 1941.
Opinion of the Court.	316U.S.
this concurrence of views of the two Circuit Courts of Appeals,1 we brought the cases here because of the important questions presented as to the scope of the Fair Labor Standards Act. 315 U. S. 792.
To search for a dependable touchstone by which to determine whether employees are “engaged in commerce or in the production of goods for commerce” is as rewarding as an attempt to square the circle. The judicial task in marking out the extent to which Congress has exercised its constitutional power over commerce is not that of devising an abstract formula. Perhaps in no domain of public law are general propositions less helpful and indeed more mischievous than where boundaries must be drawn, under a federal enactment, between what it has taken over for administration by the central Government and what it has left to the States. To a considerable extent the task is one of accommodation as between assertions of new federal authority and historic functions of the individual States. The expansion of our industrial economy has inevitably been reflected in the extension of federal authority over economic enterprise and its absorption of authority previously possessed by the States. Federal legislation of this character cannot therefore be construed without regard to the implications of our dual system of government.
The body of Congressional enactments regulating commerce reveals a process of legislation which is strikingly empiric. The degree of accommodation made by Congress from time to time in the relations between federal and state governments has varied with the subject mat-
1 Compare Warren-Bradshaw Drilling Co. v. Hall, 124 F. 2d 42; Killingbeck v. Garment Center Capitol, Inc., 259 App. Div. (N. Y.) 691, 20 N. Y. S. 2d 521; Robinson n. Massachusetts Mut. Life Ins. Co., 158 S. W. 2d 441 (Tenn.) ; Cecil v. Gradison, 40 N. E. 2d 958 (Ohio App.) ; Pedersen v. Fitzgerald Construction Co., 262 App. Div. (N. Y.) 665, 30 N. Y. 8. 2d 989.
KIRSCHBAUM CO. v. WALLING. 521
517	Opinion of the Court.
ter of the legislation, the history behind the particular field of regulation, the specific terms in which the new regulatory legislation has been cast, and the procedures established for its administration. See, e.g., Virginian Ry. Co. v. Federation, 300 U. S. 515. Thus, while a phase of industrial enterprise may be subject to control under the National Labor Relations Act, a different phase of the same enterprise may not come within the “commerce” protected by the Sherman Law. Compare, for example, United Leather Workers v. Herkert, 265 U. S. 457, and Levering & Garrigues Co. v. Morrin, 289 U. S. 103, with Labor Board n. Friedman-Harry Marks Clothing Co., 301 U. S. 58, and Labor Board v. Fainblatt, 306 U. S. 601. Sim-ilarly, enterprises subject to federal industrial regulation may nevertheless be taxed by the States without putting an unconstitutional burden on interstate commerce. Compare Heisler v. Thomas Colliery Co., 260 U. S. 245, and Oliver Iron Co. v. Lord, 262 U. S. 172, with Sunshine Coal Co. v. Adkins, 310 U. S. 381.
We cannot, therefore, indulge in the loose assumption that, when Congress adopts a new scheme for federal industrial regulation, it thereby deals with all situations falling within the general mischief which gave rise to the legislation. Such an assumption might be valid where remedy of the mischief is the concern of only a single unitary government. It cannot be accepted where the practicalities of federalism—or, more precisely, the underlying assumptions of our dual form of government and the consequent presuppositions of legislative draftsmanship which are expressive of our history and habits—cut across what might otherwise be the implied range of the legislation. Congress may choose, as it has chosen frequently in the past, to regulate only part of what it constitutionally can regulate, leaving to the States activities which, if isolated, are only local. One need refer only to the history of Congressional control over the rates of intrastate carriers
522	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
which affect interstate commerce,2 and the amendment of August 11, 1939, to the Federal Employers’ Liability Act, extending the scope of that Act to employees who “shall, in any way directly or closely and substantially, affect” interstate commerce, 53 Stat. 1404. Compare Federal Trade Commission v. Bunte Bros., 312 U. S. 349. The history of Congressional legislation regulating not only interstate commerce as such but also activities intertwined with it, justifies the generalization that, when the Federal Government takes over such local radiations in the vast network of our national economic enterprise and thereby radically readjusts the balance of state and national authority, those charged with the duty of legislating are reasonably explicit and do not entrust its attainment to that retrospective expansion of meaning which properly deserves the stigma of judicial legislation.
The Administrator does not contend that the employees in the cases before us are within the Act because Congress could have placed them there. The history of the legislation leaves no doubt that Congress chose not to enter areas which it might have occupied. As passed by the House, the bill applied to employers “engaged in commerce in any industry affecting commerce.” See H. Rep. No. 2182,75th Cong., 3rd Sess., p. 2; 83 Cong. Rec. 7749-50. But the bill recommended by the conference applied only to employees “engaged in commerce or in the production of goods for commerce.” H. Rep. No. 2738, 75th Cong., 3rd Sess., pp. 29-30; 83 Cong. Rec. 9158, 9266-67. Moreover, in one of
a For the gradual development of this extension of federal authority, see Shepard v. Northern Pacific Ry. Co., 184 F. 765, reversed sub nom. Minnesota Rate Cases, 230 U. S. 352; Houston, E. & W. T. Ry. Co. v. United States, 234 U. S. 342, as applied in Illinois Central R. Co. v. Public Utilities Comm’n, 245 U. S. 493, and as confirmed by § 416 of the Transportation Act of 1920, 41 Stat. 456, 484, and as extended by § 13 (4) of the Interstate Commerce Act, Wisconsin Railroad Comm’n v. Chicago, B. & Q. R. Co., 257 U. S. 563.
KIRSCHBAUM CO. v. WALLING. 523
517	Opinion of the Court.
its intermediate stages, the measure incorporated the Shreveport doctrine, Houston, E. & W. T. Ry. Co. v. United States, supra, in that it was specifically made applicable to intrastate production which competed with goods produced in another State. S. 2475, 75th Cong. 3rd Sess., as recommitted December 17, 1937, § 8(a). But, as reported by the House Committee on Labor, this provision was deleted. S. 2475, supra, as reported April 21,1938; see H. Rep. 2182, supra.
Since the scope of the Act is not coextensive with the limits of the power of Congress over commerce, the question remains whether these employees fall within the statutory definition of employees “engaged in commerce or in the production of goods for commerce,” construed as the provision must be in the context of the history of federal absorption of governmental authority over industrial enterprise. In this task of construction, we are without the aid afforded by a preliminary administrative process for determining whether the particular situation is within the regulated area. Unlike the Interstate Commerce Act and the National Labor Relations Act and other legislation, the Fair Labor Standards Act puts upon the courts the independent responsibility of applying ad hoc the general terms of the statute to an infinite variety of complicated industrial situations. Our problem is, of course, one of drawing lines. But it is not at all a problem in mensuration. There are no fixed points, though lines are to be drawn. The real question is how the lines are to be drawn —what are the relevant considerations in placing the line here rather than there. To that end we have tried to state with candor the larger considerations of national policy, legislative history, and administrative practicalities that underlie the variations in the terms of Congressional commercial regulatory measures and which therefore should govern their judicial construction.
524	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
We start with the weighty opinions of the two Circuit Courts of Appeals that the employees here are within the Act because they were engaged in occupations “necessary to the production” of goods for commerce by the tenants. Without light and heat and power the tenants could not engage, as they do, in the production of goods for interstate commerce. The maintenance of a safe, habitable building is indispensable to that activity. The normal and spontaneous meaning of the language by which Congress defined in § 3 (j) the class of persons within the benefits of the Act, to wit, employees engaged “in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof,” encompasses these employees, in view of their relation to the conceded production of goods for commerce by the tenants. The petitioners assert, however, that the building industry of which they are part is purely local in nature and that the Act does not apply where the employer is not himself engaged in an industry partaking of interstate commerce. But the provisions of the Act expressly make its application dependent upon the character of the employees’ activities. And, in any event, to the extent that his employees are “engaged in commerce or in the production of goods for commerce,” the employer is himself so engaged.3 Nor can we find in the Act, as do the petitioners, any requirement that employees must themselves participate in the physical process of the making of the goods before they can be regarded as engaged in their production. Such a construction erases the final clause of § 3(j) which includes employees engaged “in any process or occu-
8 The exact scope of the provisions of the Act dealing with the composition, authority, and procedure of advisory committees is not now before us. But, in any event, we do not find in them any limitation upon the area of regulation outlined by §§ 6 and 7.
KIRSCHBAUM CO. v. WALLING. 525
517	Opinion of the Court.
pation necessary to the production” and thereby does not limit the scope of the statute to the preceding clause which deals with employees “in any other manner working on such goods.”
But the petitioners urge that § 3 (j) cannot be construed literally, that Congress surely did not design the Act to apply to every employee who happens to perform services that are essential to the production of goods for commerce. But because some employees may not be within the Act even though their activities are in an ultimate sense “necessary” to the production of goods for commerce, it does not follow that no employees whose activities are “necessary” are entitled to the benefits of the Act. Section 3 (j) cannot thus be read out of the Act. The lower court in No. 924 met the petitioners’ argument by finding the Act applicable to these employees because their work was “in kind substantially the same as it would be if the manufacturers employed them directly.” In the immediate situation, the answer may be adequate; but as a guiding criterion it may prove too much. “Necessary” is colored by the context not only of the terms of this legislation but of its implications in the relation between state and national authority. We cannot, in construing the word “necessary,” escape an inquiry into the relationship of the particular employees to the production of goods for commerce. If the work of the employees has only the most tenuous relation to, and is not in any fitting sense “necessary” to, the production, it is immaterial that their activities would be substantially the same if the employees worked directly for the producers of goods for commerce.
We agree, however, with the conclusion of the courts below. In our judgment, the work of the employees in these cases had such a close and immediate tie with the process of production for commerce, and was there
526	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
fore so much an essential part of it, that the employees are to be regarded as engaged in an occupation “necessary to the production of goods for commerce.” What was said about a related problem is not inapposite here: “Whatever terminology is used, the criterion is necessarily one of degree and must be so defined. This does not satisfy those who seek for mathematical or rigid formulas. But such formulas are not provided by the great concepts of the Constitution such as ‘interstate commerce,’ ‘due process,’ ‘equal protection.’ In maintaining the balance of the constitutional grants and limitations, it is inevitable that we should define their applications in the gradual process of inclusion and exclusion. There is thus no point in the instant case in a demand for the drawing of a mathematical line. And what is reasonably clear in a particular application is not to be overborne by the simple and familiar dialectic of suggesting doubtful and extreme cases.” Santa Cruz Co. v. Labor Board, 303 U. S. 453, 467. “What is needed is something of that common-sense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of problems of causation.” Gully v. First National Bank, 299 IT. S. 109, 117.
A final objection to the decisions below need not detain us long. The petitioners’ buildings cannot be regarded as “service establishments” within the exemption of § 13 (a) (2). Selling space in a loft building is not the equivalent of selling services to consumers, and, in any event, the “greater part” of the “servicing” done by the petitioners here is not in intrastate commerce. The suggestion that the Act, if applied to these employees, goes beyond the bounds of the commerce power is without merit. Labor Board Cases, 301 U. S. 1; United States v. Darby, supra; Opp Cotton Mills v. Administrator, supra.
In both cases the judgment is
Affirmed.
HELVERING v. CEMENT INVESTORS. 527
517	Syllabus.
Mr. Justice Roberts:
I dissent. I think the power of Congress does not reach the purely local activities in question. If it did, the commerce power alone would support regulation of any local action, since it is conceivable that such activity, however remotely, “affects” commerce or is “necessary” to the production of goods for commerce.
But I am convinced that Congress never intended by the statute to reach the employees of the petitioners. Neither the words of the Act, nor its legislative history, nor the purpose to be served, requires the application of the statute in these cases.
HELVERING, COMMISSIONER OF INTERNAL REVENUE, v. CEMENT INVESTORS, INC.*
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.
No. 644. Argued April 27, 1942.—Decided June 1, 1942.
A plan for the reorganization of a corporation and its wholly-owned subsidiary in a proceeding under § 77B of the Bankruptcy Act, provided for the creation of a new company which would assume the obligations of the bonds of the parent company and would issue income bonds and common stock in exchange for the first mortgage bonds of the subsidiary company, the latter having been guaranteed as to principal and interest by the parent company. Stockholders of the debtor companies were to receive in exchange for their stock only warrants for the purchase of shares of the new company. The plan was confirmed by the bankruptcy court and was consummated by a conveyance of the assets of the old companies to the new by the debtor companies, the bankruptcy trustee, and the trustee under the indenture securing the bonds of the sub
*Together with No. 645, Helvering, Commissioner of Internal Revenue, v. James Q. Newton Trust, and No. 646, Helvering, Commissioner of Internal Revenue, v. Newton, also on writs of certiorari, 315 U. S. 825, to the Circuit Court of Appeals for the Tenth Circuit.
528	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
sidiary company. The new securities were issuable to, or on the order of, the reorganization managers, acting as “agents” of the security holders. Immediately after the consummation of the plan, all of the issued shares of the new company (552,660 common shares of an authorized 1,000,000) belonged to the former holders of the bonds of the old subsidiary company. Nearly two years later, only 465 shares had been issued to holders of warrants. Held:
1.	The transaction was not a “reorganization” within § 112 (g) (1) (B) of the Revenue Act of 1936 (Helvering v. Southwest Consolidated Corp., 315 U. S. 194), nor within § 112 (g) (1) (C) of that Act. P. 530.
2.	The transaction satisfies the requirements of § 112 (b) (5) of the Revenue Act of 1936, and no gain resulting therefrom to holders of bonds of the subsidiary company is to be recognized. P. 531.
The legislative history of § 112 (b) (5) supports this conclusion.
3.	The “reorganization” provisions of the Revenue Acts do not furnish the exclusive methods for securing a deferment of gains or losses arising out of transactions popularly known as corporate readjustments or reorganizations. P. 533.
4.	Whether a tax liability in this case may have been incurred under § 112 (a)—a question not fairly within the issues as framed by the Commissioner, and not decided below—is not here determined. P. 535.
122 F. 2d 380, 416, affirmed.
Certiorari, 315 U. S. 825, to review affirmances of decisions of the Board of Tax Appeals, 42 B. T. A. 473, in favor of the taxpayers.
Assistant Attorney General Clark, with whom Solicitor General Fahy and Messrs. Sewall Key, J. Louis Monarch, and Samuel H. Levy were on the briefs, for petitioner.
Mr. Stephen H. Hart, with whom Mr. James B. Grant was on the brief, for respondent in No. 644. Mr. Richard M. Davis for respondents in Nos. 645 and 646.
Mr. Justice Douglas delivered the opinion of the Court.
The issue presented by these cases is whether, under § 112(b)(5) of the Revenue Act of 1936 (49 Stat. 1648,
HELVERING v. CEMENT INVESTORS. 529
527	Opinion of the Court.
1678, 26 U. S. C. § 112 (b) (5)), the gain of the taxpayers from the transactions in question should be recognized.
The taxpayers owned first mortgage bonds of Colorado Industrial Co., which was a wholly-owned subsidiary of the Colorado Fuel and Iron Co. The bonds were guaranteed both as to principal and interest by the parent company. After defaults on these bonds, and on other bonds issued by the parent company, each company filed a petition under § 77B of the Bankruptcy Act. A plan of reorganization was formulated by committees of the security holders. It provided for the formation of a new company, to which all the assets of the two debtor companies would be transferred. The new company would assume the obligations of the bonds of the old parent company, Colorado Fuel and Iron Co., and issue income bonds and common stock in exchange for the bonds of the old subsidiary company, Colorado Industrial Co. The stockholders of the debtor companies would receive no interest in the new company; but in exchange for their stock they would receive warrants for the purchase of shares of the new company. Approval of the plan by the requisite percentage of security holders was obtained. The plan was confirmed by the court in April, 1936, and was duly consummated as follows: The debtor companies, the bankruptcy trustee, and the trustee under the indenture securing the bonds of the old subsidiary company, conveyed the assets of the debtors to the new company. The new securities were issuable to, or on the order of, the reorganization managers, who were acting, as stated in the plan, as “agents” of the security holders. The reorganization managers effected an exchange of the old securities for the new on or about September 1,1936. Immediately after the consummation of the plan, all of the issued shares of the new company (552,660 shares of common, out of an authorized issue of 1,000,000 shares) belonged to the former holders of the bonds of the old subsidiary company. No stock was issued 461263°—43------34
530	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. 8.
by the new company to other parties until October, 1936, when 37 shares were issued on exercise of the warrants. By June, 1938, only 465 shares had been issued to holders of the warrants.
Each of the taxpayers in these cases exchanged his Colorado Industrial Co. bonds for income bonds and common stock of the new company In each case, the fair market value of the new securities exceeded the basis of the old. The Commissioner determined deficiencies on the ground that the profit from the exchange was a taxable gain. The Board of Tax Appeals held for the taxpayers. See 42 B. T. A. 473. The Circuit Court of Appeals affirmed (122 F. 2d 380,416), holding, inter alia, that the exchange met the requirements of § 112 (b) (5). We granted the petitions for certiorari because the application of § 112 (b) (5) to receivership or bankruptcy reorganizations raised important problems in the administration of the income tax law.
It is plain from Helvering v. Southwest Consolidated Corp., 315 U. S. 194, which involved identical definitions of the term “reorganization” as are involved here, that this transaction does not meet the requirements of § 112 (g) (1) (B) of the 1936 Act.1 The assets of the old companies were not acquired in exchange “solely” for voting stock of the new company, since income bonds and warrants were also issued. It is also clear that the requirements of § 112 (g) (1) (C) were not satisfied, since clause C “contemplates that the old corporation or its stockholders, rather than its creditors, shall be in the dominant position of
1In Helvering v. Southwest Consolidated Corp., supra, no question as to the applicability of § 112 (b) (5) was involved. The only question raised or considered by the Board or the Circuit Court of Appeals, or passed on by this Court, was whether or not the transaction in question qualified as a “reorganization” under § 112 (g) (1) of the 1934 Act.
HELVERING v. CEMENT INVESTORS. 531
527	Opinion of the Court.
‘control’ immediately after the transfer and not excluded or relegated to a minority position.” Id., p. 202. But it does not necessarily follow that § 112 (b) (5) is inapplicable. Sec. 112 (b) (5) provides:
“No gain or loss shall be recognized if property is transferred to a corporation by one or more persons solely in exchange for stock or securities in such corporation, and immediately after the exchange such person or persons are in control of the corporation; but in the case of an exchange by two or more persons this paragraph shall apply only if the amount of the stock and securities received by each is substantially in proportion to his interest in the property prior to the exchange.”
“Control” is defined in § 112 (h) to mean
“the ownership of stock possessing at least 80 per centum of the total combined voting power of all classes of stock entitled to vote and at least 80 per centum of the total number of shares of all other classes of stock of the corporation.”
If it may be said that property was transferred by the bondholders to the new corporation, then the other requirements of § 112 (b) (5) were satisfied. For the bondholders, as owners of all of the outstanding shares of the new corporation, were in “control” of it “immediately after the exchange.” And it has not been disputed that the stock and income bonds acquired by each bondholder were substantially in proportion to his interest in the assets of the debtor companies prior to the exchange. Petitioner, however, maintains that the only transfer within the meaning of § 112 (b) (5) was effected by the debtor companies, the bankruptcy trustee, and the indenture trustee; and that the exchange of the bonds for the new securities was merely part of the mechanics for consummation of the plan, and not an exchange by which “property” was
532	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
transferred to the new corporation. Though we agreed with the latter proposition, it would not necessarily follow that the requirements of § 112 (b) (5) were not met.
In case of reorganizations of insolvent corporations, the creditors have the right to exclude the stockholders entirely from the reorganization plan. When the stockholders are excluded and the creditors of the old company become the stockholders of the new, “it conforms to realities to date their equity ownership” from the time when the processes of the law were invoked “to enforce their rights of full priority.” Helvering v. Alabama Asphaltic Limestone Co., 315 U. S. 179. Under that approach, the ownership of the equity in these debtor companies effectively passed to these creditors at least when § 77B proceedings were instituted. But however their interest in the property may be described, it clearly was an equitable claim in or to it. It was that equitable interest with which the plan dealt. The transfer of the properties of the debtor companies to the new corporation was made pursuant to that plan. The plan was approved by the requisite percentage of these creditors, as required by § 77B (e) (1) of the Bankruptcy Act. Thus it is fair to say that the property transferred was property in which the creditors had an equitable interest, and that the transfer was made with their authority and on their behalf. Certainly, “property,” as used in § 112 (b) (5), includes such an interest in property. And we see no reason to conclude that a beneficial owner of, or equitable claimant to, property is precluded from consummating an exchange which qualifies under § 112 (b) (5) merely because the actual conveyance is made by his trustee or title holder. In situations comparable to this one, the Board of Tax Appeals has held that § 112 (b) (5) is applicable. Leckie v. Commissioner, 37 B. T. A. 252; Miller & Paine v. Commissioner, 42 B. T. A. 586. Cf. Rockford Brick & Tile Co. v. Commissioner, 31 B. T. A. 537. We accept its view.
HELVERING v. CEMENT INVESTORS. 533
527	Opinion of the Court.
The legislative history of § 112 (b) (5) supports that conclusion. Sec. 112 (b) (5) and the “reorganization” provisions are rather closely related. See Miller, Hendricks, and Everett, Reorganizations and Other Exchanges in Income Taxation (1931), ch. 6. While the “reorganization” provisions are restricted to inter-corporate transactions, § 112 (b) (5) is not so confined, since the phrase “one or more persons” includes “individuals, trusts or estates, partnerships and corporations.” Treasury Reg. 94, Art. 112 (b) (5)-l. But there is no indication that the “reorganization” provisions were designed as the exclusive method of deferring recognition of gain or loss in all cases of corporate readjustments or reorganizations. The history of § 112 (b) (5) makes clear that it too was designed to function in that field (American Compress & Warehouse Co. v. Bender, 70 F. 2d 655, 657-658) and to permit deferment of gains or losses where “there has been a mere change in the form of ownership” or where the taxpayer has not “closed out a losing venture.” Portland Oil Co. v. Commissioner, 109 F. 2d 479,488. Sec. 112 (b) (5) derives from § 202 (c) (3) of the 1921 Act. 42 Stat. 229, 230. Its legislative history shows that it was designed to permit “readjustments”2 without present recognition of gain or loss by allowing property to be transferred to a controlled corporation by an individual, a partnership, a corporation, or others.3 See Hearings, Senate Committee on Finance, Proposed Revenue Act of 1921, 67th Cong., 1st Sess., May 9-27, 1921, pp. 536-537, 546, 557-558; Magill, Taxable Income (1936), pp. 123-131.
2 H. Rep. No. 350, 67th Cong., 1st Sess.; S. Rep. No. 275, 67th Cong., 1st Sess., Committee Reports on the Revenue Acts, 1913-1938, Int. Rev. Buh., pp. 175-176, 188-189.
8 For the result which would otherwise obtain in such situations, see Insurance & Title Guarantee Co. v. Commissioner, 36 F. 2d 842, and cases cited.
534	OCTOBER TERM, 1941.
Opinion of the Court.	316 U.S.
If a transaction meets the requirements of § 112 (b) (5), the basis of the property in the hands of the acquiring corporation is the same as it would be in the hands of the transferor. § 113 (a) (8). See P. A. Birren & Son, Inc. v. Commissioner, 116 F. 2d 718. A similar result obtains in case of a transaction which qualifies as a “reorganization.” See § 113 (a) (7) (B). And the theory underlying the two basis provisions is the same. Miller, Hendricks, and Everett, op. cit., pp. 304, 404; S. Rep. No. 398, 68th Cong., 1st Sess., Committee Reports on the Revenue Acts, 1913-1938, Int. Rev. Bull., pp. 278-279. The close relationship between §112 (b) (5) and the “reorganization” provisions is further evidenced by the fact that they overlap to a degree. Thus, a transaction which meets the requirements of clause B or clause C of § 112 (g) (1) may also qualify under § 112 (b) (5). In short, the “reorganization” provisions do not furnish the exclusive methods for securing a deferment of gains or losses arising out of transactions popularly known as corporate readjustments or reorganizations. The instant transaction comes fairly within the family of business readjustments for which § 112 (b) (5) was designed. Hence the fact that it cannot meet the statutory standards of a “reorganization” does not necessarily mean that it cannot qualify as an “exchange,” any more than the failure to satisfy one clause of the “reorganization” provisions means that none can be satisfied.
But the argument seems to be that, even though there was an “exchange” which met the requirements of § 112(b) (5), there was nevertheless a gain which is taxable. That gain, it is suggested, arose from the acquisition by the taxpayers of their equitable interest in the properties in substitution for their old bonds. And it is argued that, unlike the situation which obtains under the “reorganization” provisions (Helvering v. Alabama Asphaltic Limestone Co., supra), § 112 (b) (5) covers only the exchange itself
SKINNER v. OKLAHOMA.	535
527	Syllabus.
and not the antecedent steps in connection with a plan of reorganization. Thus the contention seems to be that, since a gain arose from a transaction which was separate and distinct from and anterior to the exchange of property for the new securities, it must be recognized under the general rule of § 112 (a). We express no view on that contention. The deficiencies were not assessed on that transaction but only upon the exchange of stock and securities in the new corporation for bonds of the old. We will not consider here for the first time the question whether a tax liability may have been incurred under § 112 (a) by reason of the earlier transaction, a question not fairly within the issues as framed by the Commissioner and hence not decided below. Cf. Helvering v. Wood, 309 U. S. 344, 349.
Affirmed.
SKINNER v. OKLAHOMA ex rel. WILLIAMSON, ATTORNEY GENERAL.
CERTIORARI TO THE SUPREME COURT OF OKLAHOMA.
No. 782. Argued May 6, 1942.—Decided June 1, 1942.
1.	A statute of Oklahoma provides for the sterilization, by vasectomy or salpingectomy, of “habitual criminals”—an habitual criminal being defined therein as any person who, having been convicted two or more times, in Oklahoma or in any other State, of “felonies involving moral turpitude,” is thereafter convicted and sentenced to imprisonment in Oklahoma for such a crime. Expressly excepted from the terms of the statute are certain offenses, including embezzlement. As applied to one who was convicted once of stealing chickens and twice of robbery, held that the statute violated the equal protection clause of the Fourteenth Amendment. P. 537.
2.	The State Supreme Court having sustained the Act, as applied to the petitioner here, without reference to a severability clause, the question whether that clause would be so applied as to remove the particular constitutional objection is one which may appropriately be left for adjudication by the state court. P. 542.
189 Okla. 235,115 P. 2d 123, reversed.
536	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Certiorari, 315 U. S. 789, to review the affirmance of a judgment in a proceeding under the Oklahoma Habitual Criminal Sterilization Act, wherein it was ordered that the defendant (petitioner here) be made sterile.
Messrs. W. J. Hulsey, H. I. Aston, and Guy L. Andrews submitted for petitioner.
Mr. Mac Q. Williamson, Attorney General of Oklahoma, for respondent.
Mr. Justice Douglas delivered the opinion of the Court.
This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race—the right to have offspring. Oklahoma has decreed the enforcement of its law against petitioner, overruling his claim that it violated the Fourteenth Amendment. Because that decision raised grave and substantial constitutional questions, we granted the petition for certiorari.
The statute involved is Oklahoma’s Habitual Criminal Sterilization Act. Okla. Stat. Ann. Tit. 57, §§ 171, et seq.; L. 1935, pp. 94 et seq. That Act defines an “habitual criminal” as a person who, having been convicted two or more times for crimes “amounting to felonies involving moral turpitude,” either in an Oklahoma court or in a court of any other State, is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in an Oklahoma penal institution. § 173. Machinery is provided for the institution by the Attorney General of a proceeding against such a person in the Oklahoma courts for a judgment that such person shall be rendered sexually sterile. §§ 176, 177. Notice, an opportunity to be heard, and the right to a jury trial are provided. § § 177-181. The issues triable in such a proceeding are narrow and con-
SKINNER v. OKLAHOMA.	537
535	Opinion of the Court.
fined. If the court or jury finds that the defendant is an “habitual criminal” and that he “may be rendered sexually sterile without deteriment to his or her general health,” then the court “shall render judgment to the effect that said defendant be rendered sexually sterile” (§ 182) by the operation of vasectomy in case of a male, and of salpingectomy in case of a female. § 174. Only one other provision of the Act is material here, and that is § 195, which provides that “offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses, shall not come or be considered within the terms of this Act.”
Petitioner was convicted in 1926 of the crime of stealing chickens, and was sentenced to the Oklahoma State Reformatory. In 1929 he was convicted of the crime of robbery with firearms, and was sentenced to the reformatory. In 1934 he was convicted again of robbery with firearms, and was sentenced to the penitentiary. He was confined there in 1935 when the Act was passed. In 1936 the Attorney General instituted proceedings against him. Petitioner in his answer challenged the Act as unconstitutional by reason of the Fourteenth Amendment. A jury trial was had. The court instructed the jury that the crimes of which petitioner had been convicted were felonies involving moral turpitude, and that the only question for the jury was whether the operation of vasectomy could be performed on petitioner without detriment to his general health. The jury found that it could be. A judgment directing that the operation of vasectomy be performed on petitioner was affirmed by the Supreme Court of Oklahoma by a five to four decision. 189 Okla. 235,115 P. 2d 123.
Several objections to the constitutionality of the Act have been pressed upon us. It is urged that the Act cannot be sustained as an exercise of the police power, in view
538	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
of the state of scientific authorities respecting inheritability of criminal traits.1 It is argued that due process is lacking because, under this Act, unlike the Act1 2 upheld in Buck n. Bell, 274 IT. S. 200, the defendant is given no opportunity to be heard on the issue as to whether he is the probable potential parent of socially undesirable offspring. See Davis v. Berry, 216 F. 413; Williams v. Smith, 190 Ind. 526,131N. E. 2. It is also suggested that the Act is penal in character and that the sterilization provided for is cruel and unusual punishment and violative of the Fourteenth Amendment. See Davis v. Berry, supra. Cf. State v. Feilen, 70 Wash. 65,126 P. 75; Mickle v. Henrichs, 262 F. 687. We pass those points without intimating an opinion on them, for there is a feature of the Act which clearly condemns it. That is, its failure to meet the requirements of the equal protection clause of the Fourteenth Amendment.
We do not stop to point out all of the inequalities in this Act. A few examples will suffice. In Oklahoma, grand larceny is a felony. Okla. Stats. Ann. Tit. 21, §§ 1705, 5. Larceny is grand larceny when the property taken exceeds $20 in value. Id. § 1704. Embezzlement is punishable “in the manner prescribed for feloniously stealing property of the value of that embezzled.” Id. § 1462. Hence, he who embezzles property worth more than $20 is guilty of a felony. A clerk who appropriates over $20 from his employer’s till {id. § 1456) and a stranger who steals the same
1	Healy, The Individual Delinquent (1915), pp. 188-200; Sutherland, Criminology (1924), pp. 112-118, 621-622; Gillin, Criminology and Penology (1926), c. IX; Popenoe, Sterilization and Criminality, 53 Rep. Am. Bar. Assoc. 575; Myerson et al., Eugenical Sterilization (1936), c. VIII; Landman, Human Sterilization (1932), c. IX; Summary of the Report of the American Neurological Association Committee for the Investigation of Sterilization, 1 Am. Joum. Med. Jur. 253 (1938).
2	And see State v. Troutman, 50 Ida. 673, 299 P. 668; Chamberlain, Eugenics in Legislatures and Courts, 15 Am. Bar Assn. Journ. 165; Castle, The Law and Human Sterilization, 53 Rep. Am. Bar Assoc., 556, 572; 2 Bill of Rights Review 54.
SKINNER v. OKLAHOMA.	539
535	Opinion of the Court.
amount are thus both guilty of felonies. If the latter repeats his act and is convicted three times, he may be sterilized. But the clerk is not subject to the pains and penalties of the Act no matter how large his embezzlements nor how frequent his convictions. A person who enters a chicken coop and steals chickens commits a felony (id. § 1719); and he may be sterilized if he is thrice convicted. If, however, he is a bailee of the property and fraudulently appropriates it, he is an embezzler. Id. § 1455. Hence, no matter how habitual his proclivities for embezzlement are and no matter how often his conviction, he may not be sterilized. Thus, the nature of the two crimes is intrinsically the same and they are punishable in the same manner. Furthermore, the line between them follows close distinctions—distinctions comparable to those highly technical ones which shaped the common law as to “trespass” or “taking.” Bishop, Criminal Law (9th ed.) Vol. 2, §§ 760, 799, et seq. There may be larceny by fraud rather than embezzlement even where the owner of the personal property delivers it to the defendant, if the latter has at that time “a fraudulent intention to make use of the possession as a means of converting such property to his own use, and does so convert it.” Bivens v. State, 6 Okla. Cr. 521, 529, 120 P. 1033, 1036. If the fraudulent intent occurs later and the defendant converts the property, he is guilty of embezzlement. Bivens v. State, supra; Flohr v. Territory, 14 Okla. 477,78 P. 565. Whether a particular act is larceny by fraud or embezzlement thus turns not on the intrinsic quality of the act but on when the felonious intent arose— a question for the jury under appropriate instructions. Bivens v. State, supra; Riley v. State, 64 Okla. Cr. 183, 78 P. 2d 712.
It was stated in Buck v. Bell, supra, that the claim that state legislation violates the equal protection clause of the Fourteenth Amendment is “the usual last resort of constitutional arguments.” 274 U. S. p. 208. Under our con
540	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
stitutional system the States in determining the reach and scope of particular legislation need not provide “abstract symmetry.” Patsone v. Pennsylvania, 232 U. S. 138, 144. They may mark and set apart the classes and types of problems according to the needs and as dictated or suggested by experience. See Bryant v. Zimmerman, 278 U. S. 63, and cases cited. It was in that connection that Mr. Justice Holmes, speaking for the Court in Bain Peanut Co. v. Pinson, 282 U. S. 499, 501, stated, “We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” Only recently we reaffirmed the view that the equal protection clause does not prevent the legislature from recognizing “degrees of evil” {Truax v. Raich, 239 U. S. 33, 43) by our ruling in Tigner v. Texas, 310 U. S. 141, 147, that “the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” And see Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362. Thus, if we had here only a question as to a State’s classification of crimes, such as embezzlement or larceny, no substantial federal question would be raised. See Moore v. Missouri, 159 U. S. 673; Hawker v. New York, 170 U. S. 189; Finley v. California, 222 U. S. 28; Patsone v. Pennsylvania, supra. For a State is not constrained in the exercise of its police power to ignore experience which marks a class of offenders or a family of offenses for special treatment. Nor is it prevented by the equal protection clause from confining “its restrictions to those classes of cases where the need is deemed to be clearest.” Miller v. Wilson, 236 U. S. 373, 384. And see McLean v. Arkansas, 211 U. S. 539. As stated in Buck v. Bell, supra, p. 208, “. . . the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow.”
SKINNER v. OKLAHOMA.	541
535	Opinion of the Court.
But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of “equal protection of the laws is a pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 U. S. 356, 369. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U. S. 337. Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma’s line between larceny by fraud and embezzlement is determined, as we have noted, “with reference to the time when the
542	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
fraudulent intent to convert the property to the taker’s own use” arises. Riley v. State, supra, 64 Okla. Cr. at p. 189, 78 P. 2d p. 715. We have not the slightest basis for inferring that that line has any significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment, the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn. See Smith v. Wayne Probate Judge, 231 Mich. 409, 420-421,204 N. W. 40. In Buck n. Bell, supra, the Virginia statute was upheld though it applied only to feeble-minded persons in institutions of the State. But it was pointed out that “so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached.” 274 U. S. p. 208. Here there is no such saving feature. Embezzlers are forever free. Those who steal or take in other ways are not. If such a classification were permitted, the technical common law concept of a “trespass” (Bishop, Criminal Law, 9th ed., vol. 1, §§ 566, 567) based on distinctions which are “very largely dependent upon history for explanation” (Holmes, The Common Law, p. 73) could readily become a rule of human genetics.
It is true that the Act has a broad severability clause.8 But we will not endeavor to determine whether its applica-
3	Sec. 194 provides:
“If any section, sub-section, paragraph, sentence, clause or phrase of this Act shall be declared unconstitutional, or void for any other reason by any court of final jurisdiction, such fact shall not in any manner invalidate or affect any other or the remaining portions of this Act, but
SKINNER v. OKLAHOMA.	543
535	Stone, C. J., concurring.
tion would solve the equal protection difficulty. The Supreme Court of Oklahoma sustained the Act without reference to the severability clause. We have therefore a situation where the Act as construed and applied to petitioner is allowed to perpetuate the discrimination which we have found to be fatal. Whether the severability clause would be so applied as to remove this particular constitutional objection is a question which may be more appropriately left for adjudication by the Oklahoma court. Dorchy v. Kansas, 264 U. S. 286. That is reemphasized here by our uncertainty as to what excision, if any, would be made as a matter of Oklahoma law. Cf. Smith v. Cahoon, 283 U. S. 553. It is by no means clear whether, if an excision were made, this particular constitutional difficulty might be solved by enlarging on the one hand or contracting on the other (cf. Mr. Justice Brandeis dissenting, National Life Ins. Co. v. United States, 277 U. S. 508, 534-535) the class of criminals who might be sterilized.
Reversed.
Mr. Chief Justice Stone, concurring:
I concur in the result, but I am not persuaded that we are aided in reaching it by recourse to the equal protection clause.
If Oklahoma may resort generally to the sterilization of criminals on the assumption that their propensities are transmissible to future generations by inheritance, I seriously doubt that the equal protection clause requires it to aPply the measure to all criminals in the first instance, or to none. See Rosenthal n. New York, 226 U. S. 260, 271;
the same shall continue in full force and effect. The Legislature hereby declares that it would have passed this Act, and each section, subsection, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more other sections, sub-sections, paragraphs, sentences, clauses or phrases be declared unconstitutional.”
544	OCTOBER TERM, 1941.
Stone, C. J., concurring.	316 U. S.
Keokee Coke Co. v. Taylor, 234 U. S. 224, 227; Patsone v. Pennsylvania, 232 U. S. 138, 144.
Moreover, if we must presume that the legislature knows—what science has been unable to ascertain—that the criminal tendencies of any class of habitual offenders are transmissible regardless of the varying mental characteristics of its individuals, I should suppose that we must likewise presume that the legislature, in its wisdom, knows that the criminal tendencies of some classes of offenders are more likely to be transmitted than those of others. And so I think the real question we have to consider is not one of equal protection, but whether the wholesale condemnation of a class to such an invasion of personal liberty, without opportunity to any individual to show that his is not the type of case which would justify resort to it, satisfies the demands of due process.
There are limits to the extent to which the presumption of constitutionality can be pressed, especially where the liberty of the person is concerned (see United States v. Carotene Products Co., 304 U. S. 144,152, n. 4) and where the presumption is resorted to only to dispense with a procedure which the ordinary dictates of prudence would seem to demand for the protection of the individual from arbitrary action. Although petitioner here was given a hearing to ascertain whether sterilization would be detrimental to his health, he was given none to discover whether his criminal tendencies are of an inheritable type. Undoubtedly a state may, after appropriate inquiry, constitutionally interfere with the personal liberty of the individual to prevent the transmission by inheritance of his socially injurious tendencies. Buck v. Bell, 274 U. S. 200. But until now we have not been called upon to say that it may do so without giving him a hearing and opportunity to challenge the existence as to him of the only facts which could justify so drastic a measure.
SKINNER v. OKLAHOMA.	545
535	Stone, C. J., concurring.
Science has found and the law has recognized that there are certain types of mental deficiency associated with delinquency which are inheritable. But the State does not contend—nor can there be any pretense—that either common knowledge or experience, or scientific investigation,1 has given assurance that the criminal tendencies of any class of habitual offenders are universally or even generally inheritable. In such circumstances, inquiry whether such is the fact in the case of any particular individual cannot rightly be dispensed with. Whether the procedure by which a statute carries its mandate into execution satisfies due process is a matter of judicial cognizance. A law which condemns, without hearing, all the individuals of a class to so harsh a measure as the present because some or even many merit condemnation, is lacking in the first principles of due process. Morrison v. 'California, 291 U. S. 82, 90, and cases cited; Taylor v. Georgia, 315 U. S. 25. And so, while the state may protect itself from the demonstrably inheritable tendencies of the individual which are injurious to society, the most elementary notions of due process would seem to require it to take appropriate steps to safeguard the liberty of the individual by affording him, before he is condemned to an irreparable injury in his person, some opportunity to show that he is without such inherit-able tendencies. The state is called on to sacrifice no permissible end when it is required to reach its objective by a reasonable and just procedure adequate to safeguard rights of the individual which concededly the Constitution protects.
1 See Eugenical Sterilization, A Report of the Committee of the American Neurological Association (1936), pp. 150-52; Myerson, Summary of the Report, 1 American Journal of Medical Jurisprudence 253; Pope-noe, Sterilization and Criminality, 53 American Bar Assn. Reports 575; Jennings, Eugenics, 5 Encyclopedia of the Social Sciences 617, 620-21; Montagu, The Biologist Looks at Crime, 217 Annals of American Academy of Political and Social Science 46.
461263°—43--35	[Over]
546	OCTOBER TERM, 1941.
Jackson, J., concurring.	316 U. S.
Mr. Justice Jackson concurring:
I join the Chief Justice in holding that the hearings provided are too limited in the context of the present Act to afford due process of law. I also agree with the opinion of Mr. Justice Douglas that the scheme of classification set forth in the Act denies equal protection of the law. I disagree with the opinion of each in so far as it rejects or minimizes the grounds taken by the other.
Perhaps to employ a broad and loose scheme of classification would be permissible if accompanied by the individual hearings indicated by the Chief Justice. On the other hand, narrow classification with reference to the end to be accomplished by the Act might justify limiting individual hearings to the issue whether the individual belonged to a class so defined. Since this Act does not present these questions, I reserve judgment on them.
I also think the present plan to sterilize the individual in pursuit of a eugenic plan to eliminate from the race characteristics that are only vaguely identified and which in our present state of knowledge are uncertain as to transmissibility presents other constitutional questions of gravity. This Court has sustained such an experiment with respect to an imbecile, a person with definite and observable characteristics, where the condition had persisted through three generations and afforded grounds for the belief that it was transmissible and would continue to manifest itself in generations to come. Buck v. Bell, 274 U. S. 200.
There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority—even those who have been guilty of what the majority define as crimes. But this Act falls down before reaching this problem, which I mention only to
WARD v. TEXAS.	547
535	Opinion of the Court.
avoid the implication that such a question may not exist because not discussed. On it I would also reserve judgment.
WARD v. TEXAS.
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS.
No. 974. Argued May 6, 1942.—Decided June 1, 1942.
1.	The use in a prosecution for murder of a confession obtained by officers of the law by coercing the accused, is forbidden by the due process clause of the Fourteenth Amendment. P. 555.
2.	The evidence shows that law enforcement officers, acting beyond their authority and in violation of state law, arrested without a warrant an ignorant Negro, accused of murder, and took him by night and day to strange towns in several counties; incarcerated him in several jails; and by these means and by persistent questioning, coerced him to confess. The use of the confesión at the trial voids the conviction. Pp. 550, 555.
158 S. W. 2d 516, reversed.
Certiorari, post, p. 653, to review a judgment affirming a sentence. The conviction was of murder without malice, and the punishment assessed was confinement for three years in the state penitentiary.
Messrs. Leon A. Ransom and W. Robert Ming, Jr. for petitioner.
Messrs. Pat Coon, Assistant Attorney General of Texas, and Spurgeon E. Bell, with whom Mr. Gerald C. Mann, Attorney General, was on the brief, for respondent.
Mr. Justice Byrnes delivered the opinion of the Court.
Petitioner William Ward, a negro, was indicted at the September 1939 term of the District Court of Titus County, Texas, for the murder of Levi Brown, a white man. He was placed on trial at that term but the jury
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Opinion of the Court.	316 U. S.
was unable to agree upon a verdict. At the January 1941 term he was again tried and found guilty of murder without malice, the jury assessing his punishment at confinement in the state penitentiary for three years. Upon appeal the Court of Criminal Appeals reversed the judgment of the District Court. On the State’s motion for rehearing, the Court reversed itself and affirmed the judgment. Petitioner’s motion for rehearing was denied, one judge dissenting. 158 S. W. 2d 516. A petition for a writ of certiorari was granted in jorma pauperis.
The evidence introduced at the trial was such that the jury could have drawn the following conclusions: The deceased, who was seventy-two years old, .lived in Omaha, in Morris county. He had previously resided at Mount Pleasant, in the adjoining county of Titus. He went to Mount Pleasant on Saturday, June 24,1939. On Saturday evening he was seen for the last time, talking to petitioner and a negro woman on a street corner two and a half blocks south of where his body was found. He then moved off northward along the street followed at a little distance by petitioner and the woman. A short time later petitioner and the woman returned to the corner. They separated there and she walked off to the south while he returned in the direction in which the deceased had gone. The body was discovered on Sunday morning lying in a field in grass about knee high. There were no signs of a struggle and no evidence of robbery. The skin on the neck was bruised and discolored, the face was swollen and the eyes distended. The front of the trousers was open and there was blood on. the tail of the shirt. For some time the deceased had been afflicted with a heart ailment, and under advice of his physician regularly took digitalis. He had taken a dose on Saturday before leaving his home. The examing physician, however, found that death was due to strangulation.
WARD v. TEXAS.	549
547	Opinion of the Court.
The Court of Criminal Appeals in its final opinion denying petitioner’s motion for a rehearing concluded: “It may be stated bluntly that no conviction could be sustained in the present case without the confession of appellant.” The details of the confession need not be recited. It is sufficient to say that in it petitioner stated that under his agreement with deceased he was to receive one dollar; that the deceased refused to pay him and cursed him and hit him; that he grabbed the deceased, choked him for nearly five minutes, and not knowing whether he was dead or alive left him on the ground.
Petitioner contends that this confession was signed by him only after he had been arrested without a warrant, taken from his home town, driven for three days from county to county, placed in a jail more than 100 miles from his home, questioned continuously, and beaten, whipped and burned by the officer to whom the confession was finally made. We granted certiorari in order to determine whether the confession was the result of such coercion and duress that its use by the State at the trial constituted a denial of the due process of law guaranteed by the Fourteenth Amendment.
In its first opinion reversing the judgment of conviction, the Texas Court of Criminal Appeals concluded that the methods employed in obtaining the confession violated applicable Texas statutes. It added that the reversal of the conviction was “in keeping with the recent decision of the Supreme Court of the United States in White v. State of Texas, 310 U. S. 530,” in which we set aside a conviction because it was based upon a confession obtained by means repugnant to the due process clause of the Fourteenth Amendment. But in its second opinion reinstating the judgment of conviction, the Court of Criminal Appeals decided that there was a conflict of evidence with respect to the issues upon which the admissibility of the confession
550	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
depended and that the question of admissibility was solely for the jury and had been submitted with proper instructions. It concluded that “no matter what our personal belief might be, we do not feel that we have, nor do we usurp the power to set aside the finding of this jury in the case at bar.”
Each State has the right to prescribe the tests governing the admissibility of a confession. In various States there may be various tests. But when, as in this case, the question is properly raised as to whether a defendant has been denied the due process of law guaranteed by the Federal Constitution, we cannot be precluded by the verdict of a jury from determining whether the circumstances under which the confession was made were such that its admission in evidence amounts to a denial of due process.
The undisputed evidence shows that the signing of the confession was preceded by the following events. Petitioner was employed as a house servant in Mount Pleasant by Judge S. B. Caldwell, a member of the bar of Titus county. When the body of the deceased was discovered on Sunday, June 25, petitioner was taken to the court house for questioning along with several other negroes. He pleaded his innocence. During the examination he was slapped by a constable named Redfearn, who gave as his reason that petitioner told him he “didn’t know what he was talking about and Quilla Gaddis was a liar.” Having no justification for holding him in custody, the county attorney, at the request of Judge Caldwell, let petitioner return to his home. Thereafter, on Sunday and Monday, he was questioned by officers several times and reiterated his assertions of innocence. On Tuesday, the officers were still questioning several negroes in connection with their investigation of the crime. According to the county attorney, they had no evidence by Tuesday night to justify the arrest of petitioner. On that night, while petitioner was attending a party at his church in Mount Pleasant, he was called
WARD v. TEXAS.	551
547	Opinion of the Court.
out, handcuffed, and taken into custody by the sheriff of Morris county, which adjoins Titus county. The sheriff was not accompanied by any officer of Titus county. He took petitioner and another negro in his car and drove them out of the city to Hart’s Creek, where he had arranged to meet Constable Redfearn of Titus county, the man who had slapped petitioner on Sunday. The officers then carried petitioner and two other negroes to Daingerfield in Morris county, where the deceased had resided, then to Pittsburg in Camp county, and then to Gilmer in Upshur county, where he spent the night in jail. On Wednesday night he was taken back to jail in Pittsburg. Constable Redfearn visited him from time to time, and on Thursday morning took him to Tyler in Smith county, where Redfearn placed him in the custody of two highway patrolmen, advising them of the details of the crime. About thirty minutes later, the patrolmen carried petitioner to Athens, in Henderson county, and turned him over to Sheriff Sweeten. Athens is 110 miles from Mount Pleasant. During this time he had been questioned continuously. According to the county attorney of Titus county, who questioned petitioner in three different jails on three different days, petitioner stated, once in Gilmer and again in Pittsburg, that he would be glad to make any statement that “I wanted him to make but that he didn’t do it.” After Sheriff Sweeten had talked to petitioner, the latter signed the confession before a county attorney. Within six hours after his arrival in Athens he was returned to Tyler. Eventually he was taken back to Gilmer, where he was kept until the trial.
These facts are not disputed. Petitioner’s contention that he was beaten, whipped and burned by Sheriff Sweeten just before the confession was made, however, was squarely denied. All of the officers involved asserted that he had not been mistreated, with the exception of the slap by Redfearn. Sweeten’s explanation of how the confession was
552	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
obtained was: “ We j ust talked that confession out of him. It took us 20 to 30 minutes to get that confession.” And one of the patrolmen who took petitioner to the jail in Athens stated: “We just talked to him to get that state-' ment. Yes sir, we just sweet talked him out of it.” Several witnesses who were not officers testified that they had examined petitioner’s body and found no bruises or burns. Only the sheriff of Titus county corroborated petitioner’s charges. He testified that when petitioner was back in the Gilmer jail several days after the confession, “I saw some marks on his neck and shoulders and arms that appeared to be cigarette stub burns. Yes sir, they were fresh. There were several of them on his body.”
Conceding that the question of physical mistreatment was conclusively resolved by the jury’s verdict, we return to the admitted facts. There can be no doubt that from first to last the officers acted without authority of law. The sheriff of Morris county had no power to arrest petitioner in Titus county. Without the boundaries of Morris county he had no more authority than any private citizen. Ledbetter v. State, 23 Tex. App. 247, 5 S. W. 226; Hooper n. Diesher, 113 S. W. 2d 966, 967. Nor did Constable Red-fearn of Titus county have the right to take petitioner into custody. Under Article 215 of the Texas Code of Criminal Procedure, the sheriff must procure a warrant before making an arrest unless he has been advised by a credible person that a felony has been committed and that the offender is about to escape. See Rutherford v. State, 104 Tex. Cr. 127,283 S. W. 512. And Article 217 provides that the person making the arrest must immediately take the person arrested before the magistrate if the arrest is made without a warrant. Neither the sheriff of Morris county nor Constable Redfearn made any effort to secure a warrant. Instead of taking petitioner to the nearest magistrate, they took him away from the nearest magistrate. There was no pretense that the arrest was made because of in forma
WARD v. TEXAS.	553
547	Opinion of the Court.
tion that he was about to escape. He had been released on Sunday after his first detention, and on Tuesday evening he was attending a party at his church, when the sheriff of Morris county arrested him.
Petitioner contends that he was moved from Titus county because the officers feared that if he were placed in jail there Judge Caldwell would apply for a writ of habeas corpus to secure his release, and because they would be able to obtain the confession from him more easily in a strange place. The State’s answer is that the officers’ purpose was to protect him from threatened mob violence.
In the first place, the procedure required by law was not observed in making the removal. Article 262 of the Code of Criminal Procedure provides that, if there is no safe jail in the county in which the prosecution is carried on, the magistrate may commit the prisoner to the nearest safe jail in any other county. Here no application was made to a magistrate for a committal to a jail in another county.
In the second place, the evidence of threatened mob violence is extremely vague and by no means adequately explains the course of the officers’ activities. The only testimony on this subject is that, in Morris county where deceased lived, one or two persons had expressed the opinion that the man who killed him should be given a “neck-tie party,” and that some people in Titus county had talked about the “possibility of threatening mob violence.” Yet, immediately after the arrest, petitioner was taken into Morris county, where the feeling was supposedly running highest. In conversation with two attorneys in Mount Pleasant prior to the Tuesday night arrest, Constable Red-fearn complained about “the trouble we were having in questioning William Ward” because of Judge Caldwell’s interference. At the trial he stated: “In moving the defendant, as I have testified, the sole and only consideration in doing so was to get a statement from the negro in talking to him alone or in connection with others who
554	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
possibly knew something about the crime and I was protecting him against rumors of possible mob violence.” Rolston, county attorney of Titus county, was asked at the trial whether the reason for taking petitioner out of Titus county was to prevent Judge Caldwell “from getting out a writ of habeas corpus.” He replied: “I do not know whether that is all the reason or not. I didn’t advise the officers to take him out. ... I know there was some plan on foot to take him out.” And he testified further: “It is a fact that Mr. Redfearn and some of the other officers told me about the Edwards negro, that they were going to try to get them out of Mount Pleasant and question her and then question William and try to confront the two with the statement of each other and try to get them to break down and tell the truth about it.”
Speaking of the conduct of the officers, the Court of Criminal Appeals in its first opinion said: “We give effect to the good faith and intent of the officers in moving appellant out of Titus county in order to secure his safety. Yet we cannot subscribe to the idea that it was necessary to carry him 110 miles, to Athens, Texas, for that purpose. That such was not the reason appellant was carried to Athens is demonstrated by the fact that he was kept there only twenty or thirty minutes,1 and was carried back to Tyler immediately after he had made the confession. The conclusion is inescapable that he was carried to Athens as part of the plan to ‘get a statement from the negro,’ and which had failed up to that time.” We are not persuaded that the initial removal of petitioner from Titus county was prompted by fear for his safety, but we concur in the
1 It appears from the record that petitioner was actually in Athens for several hours. However, the significant fact that he was returned to Tyler immediately after signing the confession is not controverted. It is difficult to imagine that the object in carrying him from Tyler to Athens was to secure him from harm.
WARD v. TEXAS.	555
547	Opinion of the Court.
Texas Court’s opinion as to the motive that prompted the officers to transport him as far as Athens.
The effect of moving an ignorant negro by night and day to strange towns, telling him of threats of mob violence, and questioning him continuously is evident from petitioner’s statement to County Attorney Rolston that he would be glad to make any statement that Rolston desired. Disregarding petitioner’s claims that he was whipped and burned, we must conclude that this confession was not free and voluntary but was the product of coercion and duress, that petitioner was no longer able freely to admit or to deny or to refuse to answer, and that he was willing to make any statement that the officers wanted him to make.
This Court has set aside convictions based upon confessions extorted from ignorant persons who have been subjected to persistent and protracted questioning, or who have been threatened with mob violence, or who have been unlawfully held incommunicado without advice of friends or counsel, or who have been taken at night to lonely and isolated places for questioning.2 Any one of these grounds would be sufficient cause for reversal. All of them are to be found in this case.
The use of a confession obtained under such circumstances is a denial of due process, and the judgment of conviction must be reversed.
Reversed.
2 Wan v. United States, 266 U. S. 1, 14; Brown v. Mississippi, 297 U. S. 278; Chambers v. Florida, 309 U. S. 227, 241; Canty v. Alabama, 309 U. S. 629; White v. Texas, 310 U. S. 530; Lomax v. Texas, 313 U. S. 544; Vernon v. Alabama, 313 U. S. 547.
556	OCTOBER TERM, 1941.
Counsel for Parties.	316 U. S.
CHRYSLER CORPORATION et al. v. UNITED STATES.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF INDIANA.
No. 1036. Argued May 1,4,1942.—Decided June 1,1942.
A corporation, sued by the Government under the Anti-Trust Law, consented to a restraining decree which contained an express condition that the defendant would be freed from a provision forbidding financial dealings with any finance company if, on or before a future day named, no final decree imposing a similar restraint had been entered in a like suit then pending in another District Court against its competitor. The decree expressly reserved in the court power to modify its provisions. Held, that the power was not abused by orders postponing the time for compliance with the condition because of delays in the other suit, since the basic purpose of the consent decree was to have the ultimate rights of the parties determined by the other litigation, and since the function of the time limitation was to protect the defendant from being placed at a competitive disadvantage through undue delay of that litigation on the part of the Government, whereas it did not appear that the time extension had had that effect, and there was evidence to support a finding that the other suit had been prosecuted diligently. P. 562.
Affirmed.
Appeal from an order of the District Court modifying a decree which had been entered by consent in a prosecution under the Anti-Trust Law.
Mr. Nicholas Kelley, with whom Messrs. William Stanley and William D. Donnelly were on the brief, for appellants.
Mr. Albert Holmes Baldridge argued the cause, and Solicitor General Fahy, Assistant Attorney General Arnold, and Mr. Charles H. Weston were on the brief, for the United States.
CHRYSLER CORPORATION v. U. S. 557
556	Opinion of the Court.
Mr. Justice Byrnes delivered the opinion of the Court.
On May 27, 1938, an indictment was returned against appellants (referred to hereafter as Chrysler) and Commercial Credit Company and certain subsidiaries of the latter in the District Court for the Northern District of Indiana. Two similar indictments were returned on the same day, one against Ford Motor Company and certain finance companies affiliated with it, and the other against General Motors Corporation and General Motors Acceptance Corporation, its subsidiary. The gist of each of these indictments was that the automobile manufacturer had combined and conspired with its affiliated finance company or companies to restrain trade and commerce in the wholesale and retail sale and financing of its automobiles, in violation of the Sherman Act.1
During the ensuing months, Chrysler and Ford reached an agreement with the Government that the indictments against them would be quashed and consent decrees entered. Consequently, on November 7,1938, bills of equity were filed against Chrysler and Ford, praying for injunctions against the acts complained of. Answers were filed,1 2 and on November 15,1938, the consent decrees were entered.
The lengthy decree against Chrysler need not be described in detail.3 Paragraph 6 imposed numerous specific restraints upon discriminatory practices by Chrysler in favor of Commercial Credit Company. Paragraph 7 imposed correlative restraints upon Commercial Credit Company in its dealings with Chrysler. Paragraph 12A
126 Stat. 209,15 U. S. C. § 1.
2 Chrysler’s answer included an allegation that it had completely terminated its affiliation with Commercial Credit Company by February, 1938.
* The consent decree against Ford is substantially the same.
558	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
contained alternative provisions depending upon the outcome of the then still pending criminal proceedings against General Motors. It provided: (1) that if those proceedings should not result in conviction, every provision of this consent decree against Chrysler should be suspended until such time as a substantially identical decree should be obtained against General Motors; or (2) that upon conviction of General Motors in the criminal proceedings, or upon the entry of a decree in a civil action against General Motors, or upon January 1,1940—whichever should occur first—Chrysler should be free of all restraints imposed by paragraph 6, to the extent that substantially identical restraints had not been imposed upon General Motors by the verdict of guilty, or by the civil decree, and until such restraints were imposed.
The question before us concerns paragraph 12, which is separate and distinct from paragraph 12A. Paragraph 12 forbade Chrysler to “make any loan to or purchase the securities of” Commercial Credit Company or any other credit company. It then provided:
“It is an express condition of this decree that notwithstanding the provisions of the preceding paragraph of this paragraph 12 and of any other provisions of this decree, if an effective final order or decree not subject to further review shall not have been entered on or before January 1, 194-1, requiring General Motors Corporation permanently to divest itself of all ownership and control of General Motors Acceptance Corporation and of all interest therein, then and in that event, nothing in this decree shall preclude the manufacturer [Chrysler] from acquiring and retaining ownership of and/or control over or interest in any finance company, or from dealing with such finance company and with the dealers in the manner provided in this decree or in any order or modification or suspension thereof entered pursuant to paragraph 12a . . .” Italics added.
CHRYSLER CORPORATION v. U. S. 559
556	Opinion of the Court.
Affiliation between Chrysler and Commercial Credit Company, or another finance company, was thus singled out for special treatment in paragraph 12. The various restraints imposed by paragraphs 6 and 7 were subject to termination upon the contingencies described in paragraph 12A, but the prohibition against affiliation was subject to expiration upon the distinct and different contingency described in paragraph 12, viz., the entry of “an effective final order or decree not subject to further review ... on or before January 1, 1941, requiring General Motors Corporation permanently to divest itself of all ownership and control of General Motors Acceptance Corporation and of all interest therein . . .”
Jurisdiction of the cause was retained by the District Court, in paragraph 14, for the purpose of enabling the parties to apply at any time “for such further orders and directions as may be necessary or appropriate in relation to the construction of or carrying out of this decree” or “for the modification thereof.”
The criminal proceedings against General Motors resulted in conviction of the corporation on November 17, 1939. General Motors appealed to the Circuit Court of Appeals for the Seventh Circuit. On May 1, 1941, that Court affirmed the conviction and on July 2, 1941, denied rehearing. 121 F. 2d 376. A petition for certiorari was denied on October 13, 1941, 314 U. S. 618. A petition for rehearing was denied on November 10, 1941, 314 U. S. 710.
Meantime, a civil suit for an injunction had been instituted by the Government against General Motors on October 4, 1940 in the District Court for the Northern District of Illinois. On October 26, 1940, the Government agreed to an extension of time to answer to January 20, 1941. This extension of time rendered it impossible for the Government to obtain “an effective final order or decree” against General Motors before January 1, 1941, as
560	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
required by paragraph 12 of the consent decree against Chrysler. Accordingly, on December 17, 1940, the Government filed a motion in the District Court in Indiana asking that paragraph 12 of the consent decree against Chrysler be modified by substituting “January 1, 1942” for “January 1,1941.” Chrysler opposed this motion, but on December 21, 1940 an order was entered changing the date as requested. Chrysler appealed to this Court from the order of modification, but the appeal was dismissed on December 8, 1941 for want of a quorum of Justices qualified to sit, 314 U. S. 583, and on January 5, 1942 rehearing was denied, 314 U. S. 716.
Pursuant to additional stipulations between the Government and General Motors, the time to answer the Government’s complaint in the civil suit in the Illinois District Court was successively extended to January 27, 1941, to May 1, 1941, to June 15, 1941, and to June 21, 1941. On the latter date, the Government filed an amended complaint. By agreement, the time in which to answer this amended complaint was extended to July 15, 1941. General Motors then sought a further extension of time to answer the amended complaint, urging that the civil suit should be postponed pending a final determination of the criminal case and that it was about to petition for a writ of certiorari in the criminal case. The Government refused to agree to an extension, stating that any further delay might prejudice the Government in connection with its consent decree against Chrysler. The District Court nevertheless entered an order for an indefinite extension of the time in which General Motors might answer the amended complaint. On December 1, 1941, the Government moved the District Court to set a day certain by which General Motors would be required to answer and otherwise plead. In the motion and in an accompanying affidavit, the Government explained the connection be-
CHRYSLER CORPORATION v. U. S. 561
556	Opinion of the Court.
tween the consent decree against Chrysler and the civil suit against General Motors. After a hearing on the motion, the District Court set January 15,1942, as the date by which General Motors would be required to answer.
The date fixed by the last mentioned order of the District Court in Illinois in the suit against General Motors created further difficulty with respect to the consent decree in the Chrysler case in the District Court of Indiana. It had now become impossible for the Government to obtain “an effective final order or decree” against General Motors, within the meaning of paragraph 12 of the Chrysler consent decree, prior to January 1,1942. On December 22, 1941, therefore, the Government moved the District Court in Indiana for a second modification of paragraph 12 of the Chrysler consent decree by substituting “January 1,1943” for “January 1,1942.” In its answer Chrysler opposed the modification. The Government offered in evidence a transcript of the proceedings in the civil suit against General Motors. Hearing on the motion was continued to February 16, 1942. On that date no additional evidence was introduced, but argument of counsel was heard.
The District Court thereupon made the following findings of fact: (a) that the District Court had specifically retained jurisdiction to modify the consent decree; (b) that paragraph 12 was “framed upon the basis that the ultimate rights of the parties thereunder should be determined by the Government’s civil antitrust proceedings against General Motors Corporation and affiliated companies”; (c) that “time was not of the essence with respect to lapse of the bar against affiliation [between Chrysler and Commercial Credit Company or any other finance company]”; (d) “that to safeguard defendants against undue delay in such proceedings the decree provided for suspension of certain of its prohibitions in the event con-4612630—43------36
562	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
victions were not obtained in the criminal case against General Motors Corporation by January 1, 1940”; (e) “that the decree provided for a termination of the bar against affiliation, if the civil proceedings against General Motors Corporation were not successfully concluded by a court of last resort by January 1, 1941”; (f) that a conviction had been obtained in the criminal proceedings against General Motors on November 17, 1939; (g) “that the Government has proceeded diligently and expeditiously in its suit to divorce General Motors Acceptance Corporation from General Motors Corporation”; and (h) “that further extension of the bar against affiliation will not impose a serious burden upon defendants.” It then concluded as a matter of law “that the purpose and intent of the decree will be carried out if Chrysler is given the opportunity at any future time to propose a plan for the acquisition of a finance company, and to make a showing that such plan is necessary to prevent Chrysler Corporation from being put at a competitive disadvantage during the pendency of complainant’s civil litigation against General Motors Corporation, et al.”
Upon the basis of these findings and conclusions, the District Court entered an order modifying paragraph 12 by changing the date to January 1, 1943, in compliance with the Government’s motion. The case is before us on direct appeal from this order. 15 U. S. C. § 29, 28 U. S. C. §345.
It is clear that under paragraph 14 of the original decree the District Court had jurisdiction to modify it. The question is whether the change in date in paragraph 12 amounted to an abuse of this power to modify. We think that the test to be applied in answering this question is whether the change served to effectuate or to thwart the basic purpose of the original consent decree. United States v. Swift & Co., 286 U. S. 106.
CHRYSLER CORPORATION v. U. S. 563
556	Opinion of the Court.
The text of the decree itself plainly reveals the nature of that purpose. It was, as stated in the District Court’s findings, “that the ultimate rights of the parties thereunder should be determined by the Government’s civil antitrust proceedings against General Motors Corporation and affiliated companies.” The time limitation was inserted to protect Chrysler from being placed at a competitive disadvantage in the event that the Government unduly delayed the initiation and prosecution of the General Motors injunctive proceedings. The District Court found “that the Government has proceeded diligently and expeditiously in its suit to divorce General Motors Acceptance Corporation from General Motors Corporation.” There is room for argument that this statement is markedly generous to the Government, inasmuch as the civil suit against General Motors was not instituted until almost two years after the entry of the consent decree and only three months prior to the limiting date in paragraph 12. But the finding is supported by several circumstances: the extended course of the appeals in the criminal proceedings against General Motors, for which the Government was not responsible; the obvious bearing of the results in that litigation upon the method of handling the civil litigation with General Motors; and the ruling of the District Court in Illinois in July, 1941, in the General Motors civil action, indefinitely extending the time to answer despite the Government’s objection, presumably to await the final disposition of the criminal case. In view of these considerations, the finding of the court below was not unreasonable, and we do not think that the Government lost its right to seek a modification of the decree.
The controlling factor thus becomes whether the extension of the ban on affiliation contained in paragraph 12 places Chrysler at a competitive disadvantage. Chrysler made no showing to that effect in the District Court. The
564	OCTOBER TERM, 1941.
Frankfurter, J., dissenting.	316 U. S.
order of December 21, 1941 set the hearing for February 16,1942, with the explanation that Chrysler had “requested a continuance in order to produce further evidence.” But on February 16 no evidence was forthcoming. The record therefore reveals that Chrysler terminated its affiliation with Commercial Credit in 1938 before the consent decree was entered, and does not reveal that it has since asserted any desire or intention to affiliate with Commercial Credit or with any other finance company. Moreover, we cannot be blind to the fact that the complete cessation of the manufacture of new automobiles and light trucks has drastically minimized the significance of the competitive factor.4 Consequently there is no warrant for disturbing the finding of the court below “that further extension of the bar against affiliation will not impose a serious burden upon defendants.” If Chrysler desires to affiliate with a finance company and feels that its inability to do so places it at a disadvantage with its competitors, it should make such a showing to the District Court. That court expressly declared that Chrysler was free at any time to propose a plan for affiliation and to demonstrate that such a plan is necessary to avoid unfairness.
Affirmed.
Mr. Justice Roberts, Mr. Justice Murphy and Mr. Justice Jackson took no part in the consideration or decision of this case.
Mr. Justice Frankfurter, dissenting:
In the spring of 1938 the Government instituted criminal proceedings against the three leading automobile manufacturers, Chrysler, Ford, and General Motors. For pres-
4 See the order of January 21,1942, of the Director of Priorities of the Office of Production Management. F. R. Docs. 41-636, 42-637, 7 F. R. 473.
CHRYSLER CORPORATION v. U. S. 565
556	Frankfurter, J., dissenting.
ent purposes, Ford may be disregarded. Each indictment charged violation of the Sherman Law arising out of the manufacturer’s affiliation with a finance company and its employment of certain trade practices. Chrysler was prepared to consent to a decree prohibiting it from affiliation with any finance company, in addition to its acceptance of restraints against alleged illegal trade practices, provided, however, that the Government succeeded in obtaining similar relief against General Motors. The problem before the negotiators of the consent decree was, therefore, that of determining how long Chrysler should remain subject to the restraints imposed by the decree while General Motors, contesting the claims of the Government, refused to come to terms with it and put it to its law. As the Government recognizes in its brief here, Chrysler was “entitled to protection against undue delay in the prosecution of the proceedings against General Motors.” With respect to the prohibition against affiliation, the problem was solved by providing in paragraph 12 that if the Government should not have obtained a final decree against General Motors by January 1, 1941, requiring General Motors to divest itself of all interest in its affiliated finance company, the prohibition against Chrysler would cease. This was made an “express condition” notwithstanding any other provisions in the decree.1 Obviously, it was an essential feature of the consent
1 The full text of Paragraph 12 is as follows:
“The Respondent Finance Company shall not pay to any automobile manufacturing company and the Manufacturer shall not obtain from any finance company any money or other thing of value as a bonus or commission on account of retail time sales paper acquired by the finance company from dealers of the Manufacturer. The Manufacturer shall not make any loan to or purchase the securities of Respondent Finance Company or any other finance company, and if it shall pay any money to Respondent Finance Company or any other finance company with
566	OCTOBER TERM, 1941.
Frankfurter, J.., dissenting.	316U.S.
decree against Chrysler that the prohibition of affiliation with the finance company should result in this great competitive disadvantage only long enough to enable the Government to press its claim against General Motors to successful conclusion with all reasonable speed. The parties might have refrained from fixing any definite period, leaving the matter wholly for determination in the future and by undefined standards of reasonableness. Instead, the Government chose to specify with particularity the length of the period—more than two years—in which Chrysler would be required to bear competitive hardships resulting
the purpose or effect of inducing or enabling such finance company to offer to the dealers of the Manufacturer a lower finance charge than it would offer in the absence of such payment, it shall offer in writing to make, and if such offer is accepted it shall make, payment upon substantially similar bases, terms and conditions to every other finance company offering such lower finance charge; provided, however, that nothing in this paragraph contained shall be construed to prohibit the Manufacturer from acquiring notes, bonds, commercial paper, or other evidence of indebtedness of Respondent Finance Company or any other finance company in the open market.
“It is an express condition of this decree that notwithstanding the provisions of the preceding paragraph of this paragraph 12 and of any other provisions of this decree, if an effective final order or decree not subject to further review shall not have been entered on or before January 1, 1941, requiring General Motors Corporation permanently to divest itself of all ownership and control of General Motors Acceptance Corporation and of all interest therein, then and in that event, nothing in this decree shall preclude the Manufacturer from acquiring and retaining ownership of and/or control over or interest in any finance company, or from dealing with such finance company and with the dealers in the manner provided in this decree or in any order of modification or suspension thereof entered pursuant to paragraph 12a. The Court, upon application of the respondents or any of them, will enter an order or decree to that effect at the foot of this decree, and the right of any respondent herein to make the application and to obtain such order or decree is expressly conceded and granted.”
CHRYSLER CORPORATION v. U. S. 567
556	Frankfurter, J., dissenting.
from the lack of the same restraints upon General Motors.
Considering the scope and nature of the decree, the interests, both public and private, with which it was dealing, and its technical draftsmanship, there can be no doubt that the precise limits of paragraph 12 were not casually or carelessly defined. Of course, the District Court had the power to modify the consent decree in order to effectuate its basic purposes. The fact that the decree embodied the agreement of the parties no more limited the power of the court than if it had been a contested decree. Swift & Co. v. United States, 276 U. S. 311; United States v. Swift & Co., 286 U. S. 106,114; United States v. International Harvester Co., 274 U. S. 693. The decree itself contains an express recognition of the court’s power of modification, but such a reservation plainly added nothing to the decree and subtracted nothing from the significance of terms made an express condition of the imposed restraint. The burden was still, as it always is, on the moving party— and here it was the Government—to show that circumstances justified a change in such terms. In fact, on December 17, 1940, within three weeks of the expiration of the restraint against Chrysler, the Government sought for an extension of that restraint for another year upon the grounds that the time “was by mistake of the parties underestimated.” The extension was opposed, but granted by the District Court. An appeal was brought here but was dismissed on December 8, 1941, “for want of a quorum of Justices qualified to sit.” Chrysler Corporation v. United States, 314 U. S. 583. A week later, the present proceedings were begun for a further extension. The effect of the modification sought by the Government and granted by the court below was to extend until January 1, 1943, the restrictions upon Chrysler’s freedom of action which were not imposed upon its principal rival.
568	OCTOBER TERM, 1941.
Frankfurter, J,., dissenting.	316U.S.
In order to justify a modification having such drastic business consequences, it was surely incumbent upon the Government to show that it had proceeded with all deliberate speed against General Motors. The record reveals that no such showing was made. The history of the litigation against General Motors proves that it could not have been made. Although the consent decree against Chrysler was entered on November 15, 1938, the trial in the criminal action against General Motors was not begun until October 9, 1939. This trial resulted in a conviction against General Motors on November 17,1939. Since the trial judge did not instruct the jury that affiliation as such was unlawful, and indeed the contrary, the criminal proceeding could no longer be claimed to control the validity of the affiliation prohibited by paragraph 12 of the Chrysler decree. Consequently, it is irrelevant that the criminal proceedings against General Motors were not finally concluded until this Court denied certiorari on October 13, 1941. But, in any event, the contingencies of review of a criminal conviction do not justify holding in abeyance an equity suit, even though it concerns a related issue, when the determination of that equity suit within a time certain, to wit, January 1, 1941, explicitly defined the duration of the restraint imposed upon Chrysler. The appeal of the criminal conviction against General Motors was at last disposed of in the Circuit Court of Appeals on May 1,1941. 121F. 2d 376. But even then the Government did nothing to press the equity suit, indeed it promoted its further delay.
It was not until October 4, 1940, that the Government brought a civil suit in equity against General Motors. This was almost two years after the entry of the decree against Chrysler, and, perhaps more important, less than three months before the date upon which the bar against
CHRYSLER CORPORATION v. U. S. 569
556	Frankfurter, J., dissenting.
Chrysler was to be lifted. Here again the record contains nothing to explain this period of inaction, when, by the express terms of the decree, the duty of action was laid upon the Government and the result of such action was of obvious business importance to the status of Chrysler under its decree. Nor does the record show that the Government undertook to prevent any untoward delays in the determination of the General Motors civil suit. On the contrary, no less than six times did the Government agree to extensions of the time within which General Motors should plead. On October 26, 1940, the Government acquiesced in an extension to January 20, 1941; on January 16,1941, in an extension to January 27, 1941; on January 24, 1941, in an extension of more than three months, to May 1, 1941; on April 21, 1941, in a further extension to June 15, 1941; and on June 13, 1941, in an additional extension to June 21, 1941. On that date, the Government filed an amended complaint, and on June 28,1941, it agreed to a further extension to July 15,1941. On the latter date, General Motors requested the court that it be given a further extension; the request recited the Government’s opposition to the motion because of its effect upon the Chrysler decree. The court nevertheless granted General Motors an indefinite extension. On November 29, 1941, the Government for the first time moved that General Motors be required to file an answer or other pleading. In response to this motion, the court ordered that General Motors file a pleading by January 15,1942.
This is the background of fact in the light of which the District Court was required to judge whether the Government was equitably entitled to impose upon Chrysler for a further period the curtailment of its freedom of action embodied in the consent decree. Relevant to its determination, also, was the fact that paragraph 12 provided
570	OCTOBER TERM, 1941.
Frankfurter, J., dissenting.	316 U. S.
only that, if the Government did not obtain a final order of divorcement against General Motors by January 1, 1941, then nothing in the decree against Chrysler would prohibit the latter from affiliating with a finance company. Nothing in paragraph 12 gave, or even purported to give, Chrysler any immunity from the antitrust laws after January 1, 1941. Therefore, if the decree were not modified, it would not mean that the Government would be powerless to proceed against Chrysler if the latter resumed the activities forbidden by the decree. The Government would still be free to take any action it might have taken before Chrysler consented to the decree against it.
A court of equity is not just an umpire between two litigants. In a very special sense, the public interest is in its keeping as the conscience of the law. The circumstance that one of the parties is the Government does not in itself mean that the interest which it asserts defines and comprehends the public interest which the court must vindicate. A modification of a decree requested by the Government is not ipso facto a modification warranted by considerations which control equity. Regard for the proper administration of justice, which makes determinations depend upon proof and not upon unsupported assertions of one of the litigants, is a vital aspect of the public interest. The burden obviously rested upon the Government to show good cause for disregarding an express provision in a carefully framed decree, and extending to twice its original duration the period of restraint against Chrysler. So to enlarge the burden of the decree without any such showing by the Government is a one-sided restriction of Chrysler’s freedom of action, at least of its right to prove that the restricted action is innocent. Instead of exacting such proof from the Government, the District Court cast upon Chrysler the duty of showing that it would not be preju-
CHRYSLER CORPORATION v. U. 8.	571
556	Frankfurter, J., dissenting.
diced if the fetters remained after the period fixed by the decree. He who seeks relief from equity has the burden of showing that he is entitled to it. It is unfair to cast upon Chrysler the burden of proving that it would not be harmed if the Government got what it wanted. As a practical business matter, Chrysler is not standing on an abstract right to devise means of financing its sales simply because it is not ready today with arrangements for a financial corporation, and the war precludes them. Such arrangements cannot be devised overnight. It may well take a year to get them under way.
Considering, on the one hand, the drastic economic disadvantage to which Chrysler is put, in being subjected to the hazard of contempt proceedings if it takes any steps toward preparing for affiliation in the future, and, on the other hand, the failure of the Government to explain the apparent lack of diligence in prosecuting the proceedings against General Motors and to show that the modification was necessary to achieve the purposes of the consent decree, I am bound to conclude that the order of the District Court, unexplained by any opinion, was not within the proper limits of its discretion.
Mr. Justice Reed joins in this dissent.
572	OCTOBER TERM, 1941.
Syllabus.
OVERNIGHT MOTOR TRANSPORTATION CO., INC. v. MISSEL.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 939. Argued April 6, 7, 1942.—Decided June 8, 1942.
1.	An employee of an interstate motor transportation company, who acted as rate clerk and performed other incidental duties, held “engaged in commerce” within the meaning of § 7 of the Fair Labor Standards Act of 1938, and entitled to the benefit of its overtime provisions. P. 574.
2.	In the exercise of its power to regulate wages and hours of employment in interstate commerce, Congress may increase wages for overtime, not merely to safeguard the health of employees, but also to discourage overtime work, with a view to spreading employment and for other purposes. P. 576.
3.	It is a purpose of the Fair Labor Standards Act not merely to increase substandard pay, but to discourage overtime work by requiring extra pay for it even though the wages, as contracted for and paid by the employer, for both regular hours and overtime, exceed the statutory minimum. P. 577.
4.	Section 7 (a) of the Act requires payment to the employee, for overtime, of not less than one and one-half times the “regular rate at which he is employed,” meaning the rate actually agreed on and paid by the employer if greater than the statutory minimum. P. 577.
5.	Where the employment contract is for a fixed weekly wage and variable or fluctuating hours of work, the “regular rate” in the statutory sense, for any particular week, is the quotient of the amount paid per week divided by the number of hours worked in that week. Walling v. Belo Corp., post, p. 624, dist’d. P. 580.
6.	The provision of § 16 (b) of the Fair Labor Standards Act making an employer who violates § 6 or § 7 liable to the employees affected, not only in the amount of his unpaid minimum wages or unpaid overtime compensation, but in an additional equal amount as liquidated damages,—held constitutional as applied to an employer whose failure to comply resulted from inability to determine whether the employee was covered by the Act. P. 581.
126 F. 2d 98, affirmed.
OVERNIGHT MOTOR CO. v. MISSEL. 573
572	Opinion of the Court.
Certiorari, 315 U. S. 791, to review a judgment which reversed a judgment of the District Court, 40 F. Supp. 174, in an action brought against an employer by its employee to recover alleged unpaid overtime compensation and an equal amount in addition as liquidated damages, and counsel fee.
Messrs. J. Ninian Beall and John R. Norris for petitioner.
Mr. George A. Mahone, with whom Messrs. W. Ham-ilton Whiteford and William 0. Tydings were on the brief, for respondent.
Briefs of amici curiae were filed by Solicitor General Fahy and Messrs. Arnold Raum, Warner W. Gardner, Mortimer B. Wolf, and Jacob D. Hyman on behalf of the Administrator of the Wage and Hour Division, U. S. Department of Labor, urging affirmance; and by Mr. J. Ninian Beall on behalf of the American Trucking Associations, Inc., in support of petitioner.
Mr. Justice Reed delivered the opinion of the Court.
This case involves the application of the overtime section of the Fair Labor Standards Act of 19381 to an employee working irregular hours for a fixed weekly wage. * 1 2 3
’“Sec. 7. (a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce—
(1)	for a workweek longer than forty-four hours during the first year from the effective date of this section.
(2)	for a workweek longer than forty-two hours during the second year from such date, or
(3)	for a workweek longer than forty hours after the expiration of the second year from such date,
unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 52 Stat. 1063; 29 U.S.C.§207,
574	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Respondent, Missel, was an employee of the petitioner, Overnight Motor Transportation Company, a corporation engaged in interstate motor transportation as a common carrier. He acted as rate clerk and performed other incidental duties, none of which were connected with safety of operation. The work for which he was employed involved wide fluctuations in the timé required to complete his duties. The employment of respondent began before the effective date of the Fair Labor Standards Act, October 24, 1938, and terminated October 19, 1940. Until November 1,1938, his salary was $25.50 per week and thereafter $27.50. Time records are available for only a third of the critical period, and these show an average workweek of 65 hours, with a maximum of 80 for each of two weeks in the first year of the Act’s operation and a maximum of 75 hours in each of three weeks in the second year. Nothing above the weekly wage was paid, because these maximum workweeks, computed at the statutory minimum rates with time and a half for overtime for the years in question, would not require an addition to the weekly wage.
Respondent brought a statutory action to recover alleged unpaid overtime compensation in such sum as might be found due him, an additional equal amount as liquidated damages, and counsel fee.2 The trial court, refus-
2 “Sec. 16. . . .
“(b) Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similiarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs,
OVERNIGHT MOTOR CO. v. MISSEL. 575
572	Opinion of the Court.
ing to hear evidence on the precise amount claimed, decided in favor of the petitioner on the ground that an agreement for a fixed weekly wage for irregular hours satisfied the requirements of the Act. Under such circumstances the court was of the view that pay would be adequate which amounted to the required minimum for the regular hours and time and a half the minimum for overtime. 40 F. Supp. 174. The Circuit Court of Appeals reversed with directions to enter judgment for the plaintiff in accordance with its opinion, an order which we interpret as authorizing a hearing in the trial court as to the amounts due. 126 F. 2d 98. As the questions involved were important in the administration of the Fair Labor Standards Act, we granted certiorari.
Petitioner renews here its contentions that the private right to contract for a fixed weekly wage with employees in commerce is restricted only by the requirement that the wages paid should comply with the minimum wage schedule of the Fair Labor Standards Act, § 6, with overtime pay at time and a half that minimum, that in any event the Act does not preclude lump sum salaries in excess of the minimum, and that a contrary interpretation of the statute would render it unconstitutional.
It is plain that the respondent as a transportation worker was engaged in commerce within the meaning of the Act,8 and unless specifically exempted was entitled to whatever benefits the overtime provisions conferred.
While now conceding that United States V. Darby, 312 U. S. 100, settles the constitutional power of Congress to
allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 52 Stat. 1069, 29 U. S. C. § 216.
3	“Sec. 3. As used in this Act—
(b) ‘Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof.” 52 Stat. 1060, 29 U. S. C. § 203.
576	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
legislate against labor conditions detrimental to a minimum standard of living required for the general well-being of workers, petitioner argues that there is no power under the Constitution to regulate the hours or wages of workers whose pay, in every instance, at least equals the minimum and whose hours are not injurious to health. Freedom of contract between employer and employee, it is urged, is destroyed by such an interpretation.4 But hours or wages not patently burdensome to health may yet be subject to regulation to achieve other purposes. We assume here the statutory objectives discussed later, i. e., that the Act is aimed at hours as well as wages. The commerce power is plenary,5 may deal with activities in connection with production for commerce,6 and, as said in the Darby case, may extend “to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce.” p. 118. Long hours may impede the free interstate flow of commodities by creating friction between production areas with different length work weeks, by offering opportunities for unfair competition, through undue extension of hours, and by inducing labor discontent apt to lead to interference with commerce through interruption of work. Overtime pay probably will not solve all problems of overtime work, but Congress may properly use it to lessen the irritations. Substandard labor conditions were deemed by Congress to be “injurious to the
* “It is Petitioner’s contention that though the constitutionality is
clearly settled as to the question of correcting ‘sub-standard labor conditions,’ a construction of the Act which has no relationship whatsoever to ‘sub-standard labor conditions’ would nonetheless be unconstitutional, for the potentiality of such a construction is to destroy freedom of contract between employer and employee.”
6	Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1,37.
8 Santa Cruz Co. v. Labor Board, 303 U. S. 453,464.
OVERNIGHT MOTOR CO. v. MISSEL. 577
572	Opinion of the Court.
commerce and to the states from and to which the commerce flows.” United States v. Darby, 312 U. S. 100,115. To protect that commerce from the consequences of production of goods under substandard conditions, it may choose means reasonably adapted to those ends, including regulation of intrastate activities, p. 121, by minimum wage and maximum hour requirements, p. 123. Compare Santa Cruz Co. v. Labor Board, 303 U. S. 453, 466. If overtime pay may have this effect upon commerce, private contracts made before or after the passage of legislation regulating overtime cannot take the overtime transactions “from the reach of dominant constitutional power.” Norman v. B. & 0. R. Co., 294 U. S. 240, 306-311. If, in the judgment of Congress, time and a half for overtime has a substantial effect on these conditions, it lies with Congress’ power to use it to promote the employees’ well-being.
Statutory Construction. The petitioner attacks the basic conceptions upon which the Circuit Court of Appeals determined that the compensation paid by the respondent violated § 7 (a) of the Act.7 That court felt that “one of the fundamental purposes of the Act was to induce worksharing and relieve unemployment by reducing hours of work.” We agree that the purpose of the Act was not limited to a scheme to raise substandard wages first by a minimum wage and then by increased pay for overtime work. Of course, this was one effect of the time and a half provision, but another and an intended effect was to require extra pay for overtime work by those covered by the Act even though their hourly wages exceeded the statutory minimum. The provision of § 7 (a) requiring this extra pay for overtime is clear and unambiguous. It calls for 150% of the regular, not the minimum, wage. By this requirement, although overtime was not flatly prohibited,
7	Note 1 supra.
461263°—43-37
578	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
financial pressure was applied to spread employment to avoid the extra wage and workers were assured additional pay to compensate them for the burden of a workweek beyond the hours fixed in the Act. In a period of widespread unemployment and small profits, the economy inherent in avoiding extra pay was expected to have an appreciable effect in the distribution of available work. Reduction of hours was a part of the plan from the beginning. “A fair day’s pay for a fair day’s work” was the objective stated in the Presidential message which initiated the legislation.8 That message referred to a “general maximum working week,” “longer hours on the payment of time and a half for overtime” and the evil of “overwork” as well as “underpay.” The message of November 15, 1937, calling for the enactment of this type of legislation referred again to protection from excessive hours.9 Senate Report No. 884, just cited, page 4, the companion House Report10 * and the Conference report11 all spoke of maximum hours as a separately desirable object. Indeed, the form of the Act itself in setting up two sections of standards, § 6 for wages and § 7 for hours, emphasizes the duality of the Congressional purpose. The existence of such a purpose is no less certain because Congress chose to use a less drastic form of limitation than outright prohibition of overtime. We conclude that the Act was designed to require payment for overtime at time and a half the regular pay, where that pay is above the minimum, as well as where the regular pay is at the minimum.12
8	May 24, 1937, 81 Cong. Rec. 4983, 75th Cong., 1st Sess., Sen. Rep. No. 884 on S. 2475, July 6,1937, p. 2.
9	82 Cong. Rec. 11, 75th Cong., 2d Sess.
10	House Rep. 1452, 75th Cong., 1st Sess., pp. 14,15.
“83 Cong. Rec. 9246,9254.
12 Cf. Bumpus n. Continental Baking Co., 124 F. 2d 549, 551; Carleton Screw Products Co. n. Fleming, 126 F. 2d 537, 539; Tidewater Optical Co. v. Wittkamp, 179 Va. 545, 551,19 S. E. 2d 897, 899; McMillan v. Wilson & Co., 212 Minn. 142, 2 N. W. 2d 838,839; see United States v. Darby, 312 U. S. 100,125.
OVERNIGHT MOTOR CO. v. MISSEL. 579
572	Opinion of the Court.
We now come to the determination of the meaning of the words “the regular rate at which he is employed.” Since we have previously determined in this opinion, in the discussion of petitioner’s objection to the application of the Act on the ground of unconstitutionality, that the scope of the commerce power is broad enough to support federal regulation of hours, we are concerned at this point only with the method of finding the regular rate under the contract with respondent. Congress might have sought its objective of clearing the channel of commerce of the obstacles of burdensome labor disputes by minimum wage legislation only. We have seen that it added overtime pay. The wages for minimum pay are expressed in terms of so much an hour. Sec. 6 (a) (1)—“Not less than 25 cents an hour” with raises for succeeding years or by order of the Administrator under § 8. Cf. Opp Cotton Mills n. Admininstr at or, 312 U. S. 126. Neither the wage, the hour nor the overtime provisions of §§ 6 and 7 on their passage spoke specifically of any other method of paying wages except by hourly rate.13 But we have no doubt that pay by the week, to be reduced by some method of computation to hourly rates, was also covered by the Act.14 It is likewise abundantly clear from the words of § 7 that the unit of time under that section within which to distinguish regular from overtime is the week. “No employer shall . . . employ any of his employees . . . (1) for a workweek longer than, forty-four hours ...” § 7 (a) (l).15
18 Sec. 3 (m) defined wage to include board, lodging or other facility customarily furnished employees. The Joint Resolution of June 26, 1940, for work relief and relief for the fiscal year 1941, § 3 (f) deals with piece work in Puerto Rico or the Virgin Islands. 54 Stat. 611, 616.
“Any other interpretation would render almost useless the exemptions from the Act of employees in “executive, administrative, professional, or local retailing capacity, or in the capacity of outside salesman.” § 13 (a) (1). Such employees are rarely paid by the hour.
16 The legislative history of the Fair Labor Standards Act is inconclusive as to the intended meaning of the words “the regular rate at which
580	OCTOBER TERM, 1941.
Opinion of the Court..	316 U. S.
No problem is presented in assimilating the computation of overtime for employees under contract for a fixed weekly wage for regular contract hours which are the actual hours worked,16 to similar computations for employees on hourly rates. Where the employment contract is for a weekly wage with variable or fluctuating hours the same method of computation produces the regular rate for each week. As that rate is on an hourly basis, it is regular in the statutory sense, inasmuch as the rate per hour does not vary for the entire week, though week by week the regular rate varies with the number of hours worked. It is true that the longer the hours, the less the rate and the pay per hour. This is not an argument, however, against this method of determining the regular rate of employment for the week in question. Apart from the Act, if there is a fixed weekly wage regardless of the length of the workweek, the longer the hours the less are the earnings per hour. This method of computation has been approved by each circuit court of appeals which has considered such problems. See Warren-Bradshaw Drilling Co. v. Hall, 124 F. 2d 42, 44; Bumpus v. Continental Baking Co., 124 F. 2d 549,552, cf. Carleton Screw Products Co. v. Fleming, 126 F. 2d 537,541. It is this quotient which is the “regular rate at which an employee is employed” under contracts of the types described and applied in this paragraph for fixed weekly compensation for hours, certain or variable.17
he is employed.” The committee reports do not discuss them. The bill which came out of the conference and was adopted changed “regular hourly rate” of previous bills (S. 2475, introduced May 24,1937; H. R. 7200, introduced May 24,1937 ; and S. 2475 in the Senate, April 20, Calendar Day May 25, 1938) to “regular rate.” Conference Report, 83 Cong. Rec. 9247, 75th Cong., 3rd Sess. “Hourly” may have been omitted as not descriptive of piecework or salary payments.
1# Wage divided by hours equals regular rate. Time and a half regular rate for hours employed beyond statutory maximum equals compensation for overtime hours.
. 17 This has been the Administrator’s interpretation of the Act. Interpretative Bulletin No. 4 issued October 21, 1938, revised November,
OVERNIGHT MOTOR CO. v. MISSEL. 581
572	Opinion of the Court.
Petitioner invokes the presumption that contracting parties contemplate compliance with law and contends that accordingly there is no warrant for construing the contract as paying the employee only his base pay or “regular rate,” regardless of hours worked. It is true that the wage paid was sufficiently large to cover both base pay and fifty per cent additional for the hours actually worked over the statutory maximum without violating section six. But there was no contractual limit upon the hours which petitioner could have required respondent to work for the agreed wage, had he seen fit to do so, and no provision for additional pay in the event the hours worked required minimum compensation greater than the fixed wage. Implication cannot mend a contract so deficient in complying with the law. This contract differs from the one in Walling v. Belo Corp., post, p. 624, where the contract specified an hourly rate and not less than time and a half for overtime, with a guaranty of a fixed weekly sum, and required the employer to pay more than the weekly guaranty where the hours worked at the contract rate exceeded that sum.
In the Circuit Court of Appeals18 it was held that the liquidated damages provision, § 16(b) of the Act, 52 Stat. 1069, was mandatory on the courts, regardless of the good
1940. While the interpretative bulletins are not issued as regulations under statutory authority, they do carry persuasiveness as an expression of the view of those experienced in the administration of the Act and acting with the advice of a staff specializing in its interpretation and application. Cf. United States v. American Trucking Assns., 310 U. S. 534, 549; United States v. Darby, 312 U. S. 100, 118, n. 2; Graves v. Armstrong Creamery Co., 154 Kan. 365, 370, 118 P. 2d 613, 616. Even negative construction may be significant. Trade Comm’n v. Bunte Bros., 312 U. S. 349, 351, 352.
Regulations on records issued pursuant to § 11 (a) have since September 15, 1941, referred to Interpretative Bulletin 4 for the method of computation. 6 Fed. Reg. 4695, n. 9.
18126 F. 2d 98, 111, and cases cited which so construed the Act.
582	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
faith of the employer or the reasonableness of his attitude. Petitioner attacks this conclusion as a denial of due process because, if the damage provision is mandatory, the employer is “without opportunity to test the issues before the courts,” citing Ex parte Young, 209 U. S. 123, Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651, and other similar cases. Petitioner points out that, if there was a failure to pay the statutory overtime, it resulted from an inability to determine whether the employee was covered by the Act.
Section 13 (b) (I)19 exempts from § 7 employees for whom the Interstate Commerce Commission has power to establish maximum hours of service. This exemption was derived from the Motor Carrier Act of 1935, 49 Stat. 543, which authorized the Commission to regulate “maximum hours of service of employees.” A definitive order leaving employees with the duties of respondent subject to the Fair Labor Standards Act was not passed by the Commission until March 4, 1941,20 after respondent’s employment ended. This conclusion, however, was foreshadowed by the ruling of the Commission, December 29, 193721 that it would limit regulations concerning maximum hours to employees whose functions affected the safety of operations. Other orders, bulletins and opinions pointing to the final conclusion intervened.22 These various determinations now make it clear that respondent
19	“Sec. 13. ... (b) The provisions of section 7 shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935; . . .” 52 Stat. 1068; 29 U. S. C. § 213 (b).
20	Ex parte MC-2, 28 M. C. C. 125.
21	Ex parte MC-2, 3 M. C. C. 665, 667.
“March 25, 1939, Interpretative Bulletin, Wage & Hour Division No. 9; May 9, 1939, Ex parte MC-28, 13 M. C. C. 481, 488; June 15, 1939, Ex parte MC-C-139, 16 M. C. C. 497; May 27, 1940, United States v. American Trucking Assns., 310 U. S. 534.
OVERNIGHT MOTOR CO. v. MISSEL. 583
572	Opinion of the Court.
was subject at all times since the effective date of the Fair Labor Standards Act to its provisions. The Interstate Commerce Commission never had the power to regulate his hours.
Perplexing as petitioner’s problem may have been, the difficulty does not warrant shifting the burden to the employee. The wages were specified for him by the statute,23 and he was no more at fault than the employer. The liquidated damages for failure to pay the minimum wages under §§ 6 (a) and 7 (a) are compensation, not a penalty or punishment by the Government.24 Cf. Huntington v. Attrill, 146 U. S. 657, 667, 668, 674, 681; Cox v. Lykes Brothers, 237 N. Y. 376,143 N. E. 226. The retention of a workman’s pay may well result in damages too obscure
23	Cf. Labor Board v. Electric Vacuum Cleaner Co., 315 U. S. 685, 697-698.
24	The Government has collected the cases under the Act upon the point: “One line of cases holds that the ‘double damages’ do not constitute a penalty incurred under the laws of the United States within the meaning of §§ 24(9) and 256 of the Judicial Code (28 U. S. C. §§ 41(9) and 371). Robertson v. Argus Hosiery Mills, 121 F. 2d 285, 286 (C. C. A. 6th), certiorari denied, 314 U. S. 681; Stewart v. Hickman, 36 F. Supp. 861 (W. D. Mo.); Kvligowski v. Hart, 43 F. Supp. 207, 4 Wage Hour Rept. 203 (N. D. Ohio); Wingate v. General Auto Parts Co., 40 F. Supp. 364 (W. D. Mo.); Barron v. F. H. E. Oil Co., 4 Wage Hour Rept. 551 (W. D. Tex.); Hart v. Gregory, 218 N. C. 184, 10 S. E. 2d 644; Forsyth v. Central Foundry Co., 240 Ala. 277, 198 So. 706; Graves v. Armstrong Creamery Co., 154 Kan. 365, 118 P. 2d 613; Emerson v. Mary Lincoln Candies, 173 Misc. 531, 17 N. Y. S. 2d 851; affirmed 261 App. Div. 879, 26 N. Y. S. 2d 489; affirmed, 287 N. Y. 33, 38 N. E. 2d 234; Abroe v. Lindsay Bros. Co., 300 N. W. 456 (S. Ct. Minn.); Tapp v. Price-Bass Co., 147 S. W. 2d 107 (S. Ct. Tenn.); Duke v. Helena-Glendale Ferry Co., 159 S. W. 2d 74,5 Wage Hour Rept. 206 (S. Ct. Ark.); Dennis v. Equitable Equipment Co., 7 So. 2d 397 (Ct. App. La.); Adair v. Traco Division, 192 Ga. 59, 14 S. E. 2d 466. . . . The other line of cases holding § 16 (b) to be remedial rather than penal involves determination of the applicable statute of limitations. Collins v. Hancock, 4 Wage Hour Rept. 522 (D. La. Caddo Parish); Tucker v. Hitchcock, No. 370, S. D. Fla., Oct. 2, 1941; Klotz v. Ippolito, 40 F. Supp. 422 (S. D. Texas).”
584	OCTOBER TERM, 1941.
Syllabus.	316 U.S.
and difficult of proof for estimate other than by liquidated damages. Atchison, T. & S. F. Ry. Co. v. Nichols, 264 U. S. 348, 351; James-Dickinson Co. v. Harry, 273 U. S. 119. Nor can it be said that the exaction is violative of due process. It is not a threat of criminal proceedings or prohibitive fines, such as have been held beyond legislative power by the authorities cited by petitioner. Even double damages treated as penalties have been upheld as within constitutional power.25
Affirmed.
The Chief Justice concurs in the result. Mr. Justice Roberts dissents.
JONES v. OPELIKA.
NO. 280. CERTIORARI TO THE SUPREME COURT OF ALABAMA.
BOWDEN ET AL. V. FORT SMITH.
NO. 314. CERTIORARI TO THE SUPREME COURT OF ARKANSAS.
JOBIN v. ARIZONA.
NO. 966. APPEAL FROM THE SUPREME COURT OF ARIZONA.
Argued (No. 280) February 5, 1942 and (Nos. 314 and 966) April 30, 1942.—Decided June 8, 1942.
1. A city ordinance which requires that licenses be procured and that taxes reasonable in amount be paid, for the conduct of various businesses within the municipality, including the business of selling books and pamphlets on the streets or from house to house, and which is general and non-discriminatory in its incidences, does not infringe the liberties of free speech, free press or free exercise of
25	Cf. Missouri Pacific Ry. Co. v. Humes, 115 U. S. 512; Minneapolis & St. Louis Ry. Co. v. Beckwith, 129 U. 8. 26; Kansas City Southern Ry. Co. v. Anderson, 233 U. 8. 325.
JONES v. OPELIKA.	585
584	Opinion of the Court.
religion when applied to a member of a religious organization who is engaged in selling the printed propaganda of his sect. Pp. 593,598.
2. One who sells religious literature on city streets, without having complied with provisions of an ordinance validly requiring that he first apply for and obtain a license and pay a license tax, can not defend upon the ground that the ordinance is rendered unconstitutional as to him by a provision purporting to empower the licensing authority to revoke licenses without notice. Lovell v. Griffin, 304 U. S. 444, distinguished. P. 599.
7 So. 2d 503, affirmed.
202 Ark. 614, 151 S. W. 2d 1000, affirmed.
118 P. 2d 97, affirmed.
The first two of these cases were brought here by writs of certiorari, 314 U. S. 593, 315 U. S. 793. The third came up by appeal. In each case the review was of a judgment affirming a conviction and fine for violation of a city ordinance declaring it unlawful to sell books or pamphlets within the municipal limits without having obtained a license and paid a license tax.
Mr. Hayden C. Covington, with whom Mr. Joseph F. Rutherford was on the brief (Mr. Alfred A. Albert entered an appearance), for petitioner in No. 280. Messrs. Osmond K. Fraenkel and Hayden C. Covington for petitioners in No. 314. Mr. Hayden C. Covington for appellant in No. 966.
Mr. John W. Guider, with whom Mr. William S. Duke was on the brief, for respondent in No. 280. No appearance for respondent in No. 314 and appellee in No. 966.
Mr. Osmond K. Fraenkel filed a brief in No. 280 (with Mr. James A. Simpson), and in No. 966 on behalf of the American Civil Liberties Union, as amicus curiae, urging reversal.
Mr. Justice Reed delivered the opinion of the Court.
By writ of certiorari in Nos. 280 and 314 and by appeal in No. 966 we have before us the question of the constitu
586	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S..
tionality of various city ordinances imposing the license taxes upon the sale of printed matter for nonpayment of which the appellant, Jobin, and the petitioners, Jones, Bowden and Sanders, all members of the organization known as Jehovah’s Witnesses, were convicted.
No. 280
The City of Opelika, Alabama, filed a complaint in the Circuit Court of Lee County, charging petitioner Jones with violation of its licensing ordinance by selling books without a license, by operating as a Book Agent without a license, and by operating as a transient agent, dealer or distributor of books without a license.1 The license fee for Book Agents (Bibles excepted) was $10 per annum, that for transient agents, dealers or distributors of books $5.1 2
1	“4. Penalties. It shall be unlawful for any person ... to engage in any of the businesses or vocations for which a license may be required without first having procured a license therefor, and any violation hereof shall constitute a criminal offense, and shall be punishable by fine . . . and by imprisonment.
“9. Persons Engaged In Two or More Vocations. All trades or vocations dealing in two or more of the articles or engaged in two or more of the trades or vocations for which licenses are required by the City, shall pay for and take out licenses for each line of business, calling or vocation.
• • • > >
“12. Vocations Not Specified Herein. Any applicant desiring to conduct any business or vocation other than those specified in this license ordinance shall make application to the President of the Commission, who shall thereon fix a reasonable license for such business or vocation and instruct the Clerk as to the amount so fixed.”
2	“Agents (Annual Only)
Book Agents (Bibles excepted).................... 10.00
Transient or itinerant agents selling rugs, antiques, goods,
wares, merchandise or taking orders for same... 25.00
JONES v. OPELIKA.	587
584	Opinion of the Court.
Under § 1 of the ordinance, all licenses were subject to revocation in the discretion of the City Commission, with or without notice.8 There is a clause providing for severance in case of invalidity of any section, condition or provision.4 * Petitioner demurred, alleging that the ordinance, because of unlimited discretion in revocation and requirement of a license, was an unconstitutional encroachment upon freedom of the press. During the trial, without a jury, these contentions, with the added claim of interference with freedom of religion, were renewed at the end of the city’s case, and at the close of all the evidence. The court overruled these motions, and found petitioner guilty on evidence that, without a license, he had been displaying pamphlets in his upraised hand and walking on a city street selling them two for five cents.6 The court excluded, as irrelevant, testimony designed to show that the petitioner was an ordained minister, and that his activities
“Peddlers, or itinerant dealers, distributors or salesmen not otherwise included in this schedule (Annual Only)......75.00
“Transient Agents or Dealers or Distributors of Books (Annual Only)............................................. 5.00
“Transient Dealers......................................25.00
(Not covered heretofore in this schedule, definition same as transient dealer.)
“There will be an issuance fee of $0.50 added to and collected on each license.”
* “1. Right of Qty to Revoke. All licenses, permits or other grants to carry on any business, trade, vocation, or professions for which a charge is made by the City shall be subject to revocation in the discretion of the City Commission, with or without notice to the licensee.”
“Should any section, condition, or provision or any rate or amount scheduled as against any particular occupation exhibited in the foregoing schedule be held void or invalid, such invalidity shall not affect any other section, rate or provision of this license schedule.”
8 His wife was selling pamphlets from a portable stand on the sidewalk nearby.
588	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
were in furtherance of his beliefs and the teachings of Jehovah’s Witnesses. Once again, by an unsuccessful motion for new trial, the constitutional issues were raised. The Court of Appeals of Alabama reversed the conviction on appeal, because it thought the unlimited discretion of the City Commission to revoke the licenses invalidated the ordinance. Without discussion of this point, the Supreme Court of Alabama decided that nondiscriminatory licensing of the sale of books or tracts was constitutional, reversed the Court of Appeals, and stayed execution pending certiorari. 241 Ala. 279,3 So. 2d 76. This Court, having granted certiorari, 314 U. S. 593, dismissed the writ for lack of a final judgment. 315 U. S. 782. The Court of Appeals thereupon entered a judgment sustaining the conviction, which was affirmed by the Alabama Supreme Court and is final. 242 Ala. 549, 7 So. 2d 503. We therefore grant the petition for rehearing of the dismissal of the writ, and proceed with the consideration of the case.
No. 314
Petitioners Bowden and Sanders were arrested by police officers of Fort Smith, Arkansas, brought before the Municipal Court on charges of violation of City Ordinance No. 1172, and convicted. They appealed to the Sebastian Circuit Court, and there moved to dismiss on the ground that the ordinance was an unconstitutional restriction of freedom of religion and of the press, contrary to the Fourteenth Amendment. The circuit judge heard the case de novo without a jury, on stipulated facts. The ordinance required a license “For each person peddling dry goods, notions, wearing apparel, household goods or other articles not herein or otherwise specifically mentioned $25 per month, $10 per week, $2.50 per day.”6
’ “Be it Ordained by the Board of Commissioners of the City of Fort Smith, Arkansas:
“Section 1. That the license hereinafter named shall be fixed and imposed and collected at the following rates and sums and it shall be un-
JONES v. OPELIKA.	589
584	Opinion of the Court.
The petitioners, in the exercise of their beliefs concerning their duty to preach the gospel, admitted going from house to house without a license, playing phonographic transcriptions of Bible lectures, and distributing books setting forth their views to the residents in return for a contribution of twenty-five cents per book. When persons desiring books were unable to contribute, the books were in some instances given away free. The circuit judge concluded as a matter of law that the books were “other articles” and that petitioners were guilty of peddling without a license. A motion for new trial was denied. On appeal the Supreme Court of Arkansas held the ordinance constitutional on the authority of its previous decision in Cook v. Harrison, 180 Ark. 546, 21 S. W. 2d 966, and affirmed the convictions. 202 Ark. 614,151 S. W. 2d 1000. This Court denied certiorari, 314 U. S. 651, but later, because of the similarity of the issues presented to those in the Jobin case, No. 966, vacated the denial of certiorari and issued a writ. 315 U. S. 793.
No. 966
The City of Casa Grande, Arizona, by ordinance made it a misdemeanor for any person to carry on any occupation or business specified without first procuring a license.7
lawful for any person or persons to exercise or pursue any of the following vocations of business in the city of Fort Smith, Arkansas, without first having obtained a license therefor from the city clerk and having paid for the same. ...
“Section 40. For each person peddling dry goods, notions, wearing apparel, household goods or other articles not herein or otherwise specifically mentioned $25 per month, $10 per week, $2.50 per day. A person, firm or corporation using two or more men in their peddling business $50 per annum.”
’“Section 1. It shall be unlawful for any person ... to carry on any trade, calling, profession, occupation or business, in this ordinance specified, without first having procured a license from the City of Casa Grande, so to do, . . . and each and every day or fractional part of a
590	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Transient merchants, peddlers and street vendors were listed as subject to a quarterly license fee of $25.00, payable in advance.8 In the Superior Court of Pinal County, Jobin was tried and convicted by a jury on a complaint charging that, not having “a permanent place of business in the City,” he there carried on the “business of peddling, vending, selling, offering for sale and soliciting the sale of
day that any trade, calling, profession, business or occupation in this ordinance specified is conducted or carried on without such license shall be a misdemeanor, . . .
“Section 2. It shall be the duty of the City Clerk ... to prepare and to issue a license under this ordinance for every person . . . liable to pay a license hereunder. . . .
“Section 4. ... Every person having such a license, and not having a fixed place of business shall carry such license with him at all times while carrying on the trade ... or business for which the same was granted. Every person . . . having a license . . . shall produce and exhibit the same, . . . whenever requested to do so by any police officer or by any other officer authorized to issue, inspect or collect licenses.”
8“Section 12. Peddlers, Transient Merchants, Vendors, defined:
(A)	‘Transient Merchant’ within the meaning of this ordinance shall include every person who, not for or in connection with a business at a fixed place within the City of Casa Grande, solicits orders from house to house for the future delivery of goods, or who shall deliver goods previously solicited by a solicitor at retail, or an order for future delivery.
(B)	As used in this ordinance, the term ‘peddlers’ shall include solicitors and other vendors not having a permanent place of business in the City of Casa Grande, and who are not specifically licensed or permitted to sell any class of goods whatsoever.
(C)	As used in this ordinance, the term ‘Street Vendors’ includes all persons engaged in selling in or upon the streets, alleys or vacant grounds within the City, any goods, wares, merchandise or articles, including photographs, and also includes all persons engaged in conducting upon the streets, alleys, or vacant grounds of the City any ring, knife or similar game, or any ‘faker’ business, game or device.
All persons coming within the definition of the occupations defined herein shall pay a quarterly license fee of Twenty Five Dollars ($25.00), in advance.”
JONES v. OPELIKA.	591
584	Opinion of the Court.
goods, wares and merchandise, to wit: pamphlets, books and publications without first having procured a license,” contrary to the ordinance. The evidence for the State showed that, without a license, the appellant called at two homes and a laundry, and offered for sale and sold books and pamphlets of a religious nature. At one home, accompanied by his wife, he was refused admission, but was allowed by the girl who came to the door to play a portable phonograph on the porch. The girl purchased one of his stock of books, “Religion,” for a quarter, and received a pamphlet free. During the conversation, he stated that he was an ordained minister preaching the gospel, and quoted passages from the Bible. At the second home, the lady of the house allowed him and his wife to enter and play the phonograph, but she refused to buy either books or pamphlets. When departing the appellant left some literature on the table, although informed by the lady that it would not be read and had better be given to someone else. At the laundry, the appellant introduced himself as one of the Jehovah’s Witnesses and discussed with the proprietor their work and religion generally. The proprietor bought the book “Religion” for a quarter, but declined to buy others at the same price. He was given a pamphlet free. When arrested, the appellant stated that he was “selling religious books and preaching the gospel of the kingdom,” and that because of his religious beliefs he would not take out a license. A motion at the close of the evidence for a directed verdict of acquittal, on the ground that the ordinance violated the Fourteenth Amendment, was denied. The jury was instructed to acquit unless it found the defendant was selling books or pamphlets. It returned a verdict of guilty. On appeal, the Supreme Court of Arizona held that the ordinance, an “ordinary occupational license tax ordinance,” did not deny freedom of religion and of the press, and affirmed the conviction. 118 P. 2d 97. An appeal to this Court
592	OCTOBER TERM, 1941.
Opinion of the Court.	316 TJ. S.
was allowed under § 237 of the Judicial Code, 28 U. S. C. § 344.
The Opelika ordinance required book agents to pay $10.00 per annum, transient distributors of books (annual only) $5.00. The license fee in Casa Grande was $25 per quarter, that in Fort Smith ranged from $2.50 per day to $25 per month. All the fees were small, yet substantial. But the appellant and the petitioners, so far as the records disclose, advanced no claim and presented no proof in the courts below that these fees were invalid because so high as to make the cost of compliance a deterrent to the further distribution of their literature in those cities. Although petitioners in No. 314 contended that their enterprise was operated at a loss, there was no suggestion that they could not obtain from the same sources which now supply the funds to meet whatever deficit there may be, sums sufficient to defray license fees also. The amount of the fees was not considered in the opinions below, except for a bare statement by the Alabama court that the exaction was “reasonable,” and neither the briefs nor the assignments of error in this Court have directed their attack specifically to that issue. Consequently there is not before us the question of the power to lay fees, objectionable in their effect because of their size, upon the constitutionally protected rights of free speech, press or the exercise of religion. If the size of the fees were to be considered, to reach a conclusion one would desire to know the estimated volume, the margin of profit, the solicitor’s commission, the expense of policing and other pertinent facts of income and expense. In the circumstances, we venture no opinion concerning the validity of license taxes if it were proved, or at least distinctly claimed, that the burden of the tax was a substantial clog upon activities of the sort here involved? The
0 Cf. Seaboard Air Line Ry. Co. v. Watson, 287 IT. S. 86; New York v. Kleinert, 268 IT. S. 646; Dewey v. Des Moines, 173 IT. S. 193; and
JONES v. OPELIKA.	593
584	Opinion of the Court.
sole constitutional question considered is whether a non-discriminatory license fee, presumably appropriate in amount, may be imposed upon these activities.
We turn to the constitutional problem squarely presented by these ordinances. There are ethical principles of greater value to mankind than the guarantees of the Constitution, personal liberties which are beyond the power of government to impair. These principles and liberties belong to the mental and spiritual realm, where the judgments and decrees of mundane courts are ineffective to direct the course of man. The rights of which our Constitution speaks have a more earthy quality. They are not absolutes* 10 11 to be exercised independently of other cherished privileges, protected by the same organic instrument. Conflicts in the exercise of rights arise, and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of religion, speech and the press, guaranteed by the Fourteenth Amendment,11 and on the other the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment to ensure orderly living, without which constitutional guarantees of civil liberties would be a mockery.12 Courts, no more than Constitutions, can intrude into the consciences of men or compel them to believe contrary to their faith or think contrary
Clark v. Paul Gray, Inc., 306 U. S. 583; Standard Stock Food Co. v. Wright, 225 U. S. 540.
10	Valentine v. Chrestensen, ante, 52, 54-55; Chaplinsky v. New Hampshire, 315 U. S. 568, 571, and cases cited; Minersville School District v. Gobitis, 310 U. S. 586, 594; Cantwell v. Connecticut, 310 U. 8. 296, 304, 310; Schneider v. State, 308 U. S. 147, 165; Hague v. C. I. O., 307 U. S. 496, 515-516; De Jonge V. Oregon, 299 U. 8. 353, 364.
11	Chaplinsky v. New Hampshire, 315 U. S. 568, 570-571; Cantwell v. Connecticut, 310 U. S. 296, 303; Schneider v. State, 308 U. S. 147, 160; Lovell v. Griffin, 303 U. S. 444, 450; Gitlow v. New York, 268 U. S. 652.
12	Cox v. New Hampshire, 312 U. S. 569, 574; Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398, 435.
461263°—43--38
594	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
to their convictions; but courts are competent to adjudge the acts men do under color of a constitutional right, such as that of freedom of speech or of the press or the free exercise of religion, and to determine whether the claimed right is limited by other recognized powers, equally precious to mankind.13 So the mind and spirit of man remain forever free, while his actions rest subject to necessary accommodation to the competing needs of his fellows.
If all expression of religion or opinion, however, were subject to the discretion of authority, our unfettered dynamic thoughts or moral impulses might be made only colorless and sterile ideas. To give them life and force, the Constitution protects their use. No difference of view as to the importance of the freedoms of press or religion exists. They are “fundamental personal rights and liberties.” Schneider v. State, 308 U. S. 147,161. To proscribe the dissemination of doctrines or arguments which do not transgress military or moral limits is to destroy the principal bases of democracy,—knowledge and discussion. One man, with views contrary to the rest of his compatriots, is entitled to the privilege of expressing his ideas by speech or broadside to anyone willing to listen or to read. Too many settled beliefs have in time been rejected to justify this generation in refusing a hearing to its own dissentients. But that hearing may be limited by action of the proper legislative body to times, places and methods for the enlightenment of the community which, in view of existing social and economic conditions, are not at odds with the preservation of peace and good order.
This means that the proponents of ideas cannot determine entirely for themselves the time and place and manner for the diffusion of knowledge or for their evangelism, any more than the civil authorities may hamper or suppress the public dissemination of facts and prin
v Cantwell v. Connecticut, 310 U. S. 296, 303; Reynolds v. United States, 98 U. S. 145,166.
JONES v. OPELIKA.	595
584	Opinion of the Court.
ciples by the people.14 The ordinary requirements of civilized life compel this adjustment of interests. The task of reconcilement is made harder by the tendency to accept as dominant any contention supported by a claim of interference with the practice of religion or the spread of ideas. Believing, as this Nation has from the first, that the freedoms of worship and expression are closely akin to the illimitable privileges of thought itself, any legislation affecting those freedoms is scrutinized to see that the interferences allowed are only those appropriate to the maintenance of a civilized society. The determination of what limitations may be permitted under such an abstract test rests with the legislative bodies, the courts, the executive, and the people themselves, guided by the experience of the past, the needs of revenue for law enforcement, the requirements and capacities of police protection, the dangers of disorder, and other pertinent factors.
Upon the courts falls the duty of determining the validity of such enactments as may be challenged as unconstitutional by litigants.15 In dealing with these delicate adjustments, this Court denies any place to administrative censorship of ideas or capricious approval of distributors. In Lovell v. Griffin, 303 U. S. 444, the requirement of permission from the city manager invalidated the ordinance, pp. 447 and 451; in Schneider v. State, that of a police officer, pp. 157 and 163. In the Cantwell case, the secretary of the public welfare council was to determine whether the object of charitable solicitation was worthy, p. 302. We held the requirement bad.16 Ordinances abso-
14	Cox v. New Hampshire, 312 U. S. 569, 573, 576; Cantwell v. Connecticut, 310 U. S. 296, 306; Schneider v. State, 308 U. S. 147, 160.
15	Cf. Schneider v. State, supra, 161.
M Cf. Hague v. C. I. O., 307 U. S. 496, 516.
596	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
lutely prohibiting the exercise of the right to disseminate information are, a fortiori, invalid.17
The differences between censorship and complete prohibition, either of subject matter or the individuals participating, upon the one hand, and regulation of the conduct of individuals in the time, manner and place of their activities upon the other, are decisive. “One who is a martyr to a principle . . . does not prove by his martyrdom that he has kept within the law,” said Mr. Justice Cardozo, concurring in Hamilton v. Regents, 293 U. S. 245, 268, which held that conscientious objection to military training would not excuse a student, during his enrollment, from attending required courses in that science.18 There is to be noted, too, a distinction between nondiscrimina-tory regulation of operations which are incidental to the exercise of religion or the freedom of speech or the press and those which are imposed upon the religious rite itself or the unmixed dissemination of information. Casual reflection verifies the suggestion that both teachers and preachers need to receive support for themselves as well as alms and benefactions for charity and the spread of knowledge. But when, as in these cases, the practitioners of these noble callings choose to utilize the vending of their religious books and tracts as a source of funds, the financial aspects of their transactions need not be wholly disregarded. To subject any religious or didactic group to a reasonable fee for their money-making activities does not require a finding that the licensed acts are purely commercial. It is enough that money is earned by the sale
17 Hague v. C. I. 0., 307 U. S. 496, 501, 518, invalidates an ordinance forbidding any person to “distribute or cause to be distributed or strewn about any street or public place any newspapers, paper, periodical, book, magazine, circular, card, or pamphlet,” p. 501; Schneider v. State, 308 U. S. 147, 162, holds similar prohibitory ordinances unconstitutional.
“ Cf. City of Manchester v. Leiby, 117 F. 2d 661, requirement of badge for street selling of books, papers or pamphlets.
JONES v. OPELIKA.	597
584	Opinion of the Court.
of articles. A book agent cannot escape a license requirement by a plea that it is a tax on knowledge. It would hardly be contended that the publication of newspapers is not subject to the usual governmental fiscal exactions, Giragi v. Moore, 301 U. S. 670; 48 Ariz. 33, 58 P. 2d 1249; 49 Ariz. 74, 64 P. 2d 819, or the obligations placed by statutes on other business. Associated Press v. Labor Board, 301 U. S. 103, 130. The Constitution draws no line between a payment from gross receipts or a net income tax and a suitably calculated occupational license. Commercial advertising cannot escape control by the simple expedient of printing matter of public interest on the same sheet or handbill. Valentine v. Chrestensen, ante, p. 52. Nor does the fact that to the participants a formation in the streets is an “information march,” and “one of their ways of worship,” suffice to exempt such a procession from a city ordinance which, narrowly construed, required a license for such a parade.19
When proponents of religious or social theories use the ordinary commercial methods of sales of articles to raise propaganda funds, it is a natural and proper exercise of the power of the State to charge reasonable fees for the privilege of canvassing. Careful as we may and should be to protect the freedoms safeguarded by the Bill of Rights, it is difficult to see in such enactments a shadow of prohibition of the exercise of religion or of abridgement of the freedom of speech or the press. It is prohibition and unjustifiable abridgement which are interdicted, not taxation. Nor do we believe it can be fairly said that because such proper charges may be expanded into unjustifiable abridgements they are therefore invalid on their face. The freedoms claimed by those seeking relief here are guaranteed against abridgement by the Fourteenth Amendment. Its commands protect their rights. The legislative power of municipalities must yield when
19 Cox v. New Hampshire, 312 U. S. 569, 572, 573, 576.
598	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
abridgement is shown. Compare Grosjean v. American Press Co., 297 U. S. 233, with Giragi v. Moore, 301 U. S. 670. If we were to assume, as is here argued, that the licensed activities involve religious rites, a different question would be presented. These are not taxes on free will offerings. But it is because we view these sales as partaking more of commercial than religious or educational transactions that we find the ordinances, as here presented, valid. A tax on religion or a tax on interstate commerce may alike be forbidden by the Constitution. It does not follow that licenses for selling Bibles or for manufacture of articles of general use, measured by extrastate sales, must fall. It may well be that the wisdom of American communities will persuade them to permit the poor and weak to draw support from the petty sales of religious books without contributing anything for the privilege of using the streets and conveniences of the municipality. Such an exemption, however, would be a voluntary, not a constitutionally enforced, contribution.
In the ordinances of Casa Grande and Fort Smith, we have no discretionary power in the public authorities to refuse a license to any one desirous of selling religious literature. No censorship of the material which enters into the books or papers is authorized. No religious symbolism is involved, such as was urged against the flag salute in Minersville School District v. Gobitis, 310 IT. S. 586. For us there is no occasion to apply here the principles taught by that opinion. Nothing more is asked from one group than from another which uses similar methods of propagation. We see nothing in the collection of a nondiscriminatory license fee, uncontested in amount, from those selling books or papers, which abridges the freedoms of worship, speech or press. Cf. Grosjean v. American Press Co., 297 IT. S. 233, 250. As to the claim that even small license charges, if valid, will impose upon the itinerant colporteur a crushing ag
JONES v. OPELIKA.	599
584	Opinion of the Court.
gregate, it is plain that if each single fee is, as we assume, commensurate with the activities licensed, then though the accumulation of fees from city to city may in time bulk large, he will have enjoyed a correlatively enlarged field of distribution. Cf. Coverdale v. Pipe Line Co., 303 U. S. 604, 612-613. The First Amendment does not require a subsidy in the form of fiscal exemption. Giragi v. Moore, supra. Accordingly, the challenge to the Fort Smith and Casa Grande ordinances fails.
There is an additional contention by petitioner as to the Opelika ordinance. It is urged that, since the licenses were revocable, arbitrarily, by the local authorities, note 3, supra, there can be no true freedom for petitioners in the dissemination of information, because of the censorship upon their actions after the issuance of the license. But there has been neither application for, nor revocation of, a license. The complaint was bottomed on sales without a license. It was that charge against which petitioner claimed the protection of the Constitution. This issue he had standing to raise. Smith v. Cahoon, 283 U. S. 553, 562. From what has been said previously, it follows that the objection to the unconstitutionality of requiring a license fails. There is no occasion, at this time, to pass on the validity of the revocation section, as it does not affect his present defense. Highland Farms Dairy v. Agnew, 300 U. S. 608, 616; Lehon v. City of Atlanta, 242 U. S. 53, 56.
In Lovell v. Griffin, 303 U. S. 444, we held invalid a statute which placed the grant of a license within the discretion of the licensing authority. By this discretion, the right to obtain a license was made an empty right. Therefore the formality of going through an application was naturally not deemed a prerequisite to insistence on a constitutional right. Here we have a very different situation. A license is required that may properly be required. The fact that such a license, if it were granted, may subse-
600	OCTOBER TERM, 1941.
Stone, C. J., dissenting.	316 U. S.
quently be revoked does not necessarily destroy the licensing ordinance. The hazard of such revocation is much too contingent for us now to declare the licensing provisions to be invalid. Lovell v. Griffin has, in effect, held that discretionary control in the general area of free speech is unconstitutional. Therefore, the hazard that the license properly granted would be improperly revoked is far too slight to justify declaring the valid part of the ordinance, which is alone now at issue, also unconstitutional.
The judgments in Nos. 280,314 and 966 are
Affirmed.
Mr. Chief Justice Stone :
The First Amendment, which the Fourteenth makes applicable to the states, declares: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.” I think that the ordinance in each of these cases is on its face a prohibited invasion of the freedoms thus guaranteed, and that the judgment in each should be reversed.
The ordinance in the Opelika case should be held invalid on two independent grounds. One is that the annual tax in addition to the 50 cent “issuance fee” which the ordinance imposes is an unconstitutional restriction on those freedoms, for reasons which will presently appear. The other is that the requirement of a license for dissemination of ideas, when, as here, the license is revocable at will without cause and in the unrestrained discretion of administrative officers, is likewise an unconstitutional restraint on those freedoms.
The sole condition which the Opelika ordinance prescribes for grant of the license is payment of the designated annual tax and issuance fee. The privilege thus purchased, for the period of a year, is forthwith revocable in the unrestrained and unreviewable discretion of the
JONES v. OPELIKA.	601
584	Stone, C. J., dissenting.
licensing commission, without cause and without notice or opportunity for a hearing. The case presents in its baldest form the question whether the freedoms which the Constitution purports to safeguard can be completely subjected to uncontrolled administrative action. Only recently this Court was unanimous in holding void on its face the requirement of a license for the distribution of pamphlets which was to be issued in the sole discretion of a municipal officer. Lovell v. Griffin, 303 IT. S. 444,451. The precise ground of our decision was that the ordinance made enjoyment of the freedom which the Constitution guarantees contingent upon the uncontrolled will of administrative officers. We declared:
“We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his ‘Appeal for the Liberty of Unlicensed Printing.’ And the liberty of the press became initially a right to publish ‘without a license what formerly could be published only with one.’ While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision.”
That purpose cannot rightly be defeated by so transparent a subterfuge as the pronouncement that, while a license may not be required if its award is contingent upon the whim of an administrative officer, it may be if its retention and the enjoyment of the privilege which it purports to give are wholly contingent upon his whim. In either case, enjoyment of the freedom is dependent upon the same contingency, and the censorship is as effective in
602	OCTOBER TERM, 1941.
Stone, C. J., dissenting.	816 U. S.
one as in the other. Nor is any palliative afforded by the assertion that the defendant’s failure to apply for a license deprives him of standing to challenge the ordinance because of its revocation provision, by the terms of which retention of the license and exercise of the privilege may be cut off at any time without cause.
Indeed, the present ordinance is a more callous disregard of the constitutional right than that exhibited in Lovell v. Griffin, supra. There at least the defendant might have been given a license if he had applied for it. In any event he would not have been compelled to pay a money exaction for a license to exercise the privilege of free speech—a license which if granted in this case would have been wholly illusory. Here the defendant Jones was prohibited from distributing his pamphlets at all, unless he paid in advance a year’s tax for the exercise of the privilege and subjected himself to termination of the license without cause, notice or hearing, at the will of city officials. To say that he who is free to withhold at will the privilege of publication exercises a power of censorship prohibited by the Constitution, but that he who has unrestricted power to withdraw the privilege does not, would be to ignore history and deny the teachings of experience, as well as to perpetuate the evils at which the First Amendment was aimed.
It is of no significance that the defendant did not apply for a license. As this Court has often pointed out, when a licensing statute is on its face a lawful exercise of regulatory power, it will not be assumed that it will be unlawfully administered in advance of an actual denial of application for the license. But here it is the prohibition of publication, save at the uncontrolled will of public officials, which transgresses constitutional limitations and makes the ordinance void on its face. The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands. Lovell v.
JONES v. OPELIKA.	603
584	Stone, C. J., dissenting.
Griffin, supra, 452-53; Smith v. Cahoon, 283 U. S. 553,562. The question of standing to raise the issue in this case is indistinguishable from that in the Lovell case, where it was resolved in the only manner consistent with the First Amendment.
The separability provision of the Opelika ordinance1 cannot serve, in advance of judicial decision by the state court, to separate those parts which are constitutionally applicable from those which are not. We have no means of knowing that the City would grant any license if the license could not be made revocable at will. The state court applied the ordinance as written. It did not rely or pass upon the effect to be given to the separability clause, or determine whether any effect was to be given to it. Until it has done so, this Court—as we decided only last Monday—must determine the constitutional validity of the ordinance as it stands and as it stood when obedience to it was demanded and punishment for its violation inflicted. Skinner v. Oklahoma, ante, p. 535; Smith v. Cahoon, supra, 563-64.
In all three cases the question presented by the record and fully argued here and below is whether the ordinances—which as applied penalize the defendants for not having paid the flat fee taxes levied—violate the freedom of speech, press, and religion guaranteed by the First and Fourteenth Amendments. Defendants’ challenge to the ordinances, naming them, is a challenge to the substantial taxes which they impose, in specified amounts, and not to some tax of a different or lesser amount which some other ordinance might levy. In their briefs here they argue, as upon the records they are entitled to do, that the taxes are an unconstitutional burden on the right of
1 “Should any section, condition, or provision or any rate or amount scheduled as against any particular occupation exhibited in the foregoing schedule be held void or invalid, such invalidity shall not effect any other section, rate or provision of this license schedule.”
604	OCTOBER TERM, 1941.
Stone, C. J., dissenting.	316 U. S.
free speech and free religion, comparable to license taxes which this Court has often held to be an inadmissible burden on interstate commerce. They argue also that the cumulative effect of such taxes, in town after town throughout the country, would be destructive of freedom of the press for all persons except those financially able to distribute their literature without soliciting funds for the support of their cause.
While these are questions which have been studiously left unanswered by the opinion of the Court, it seems inescapable that an answer must be given before the convictions can be sustained. Decision of them cannot rightly be avoided now by asserting that the amount of the tax has not been put in issue; that the tax is “uncontested in amount” by the defendants, and can therefore be assumed by us to be “presumably appropriate,” “reasonable,” or “suitably calculated”; that it has not been proved that the burden of the tax is a substantial clog on the activities of the defendants, or that those who have defrayed the expense of their religious activities will not willingly defray the license taxes also. All these are considerations which would seem to be irrelevant to the question now before us—whether a flat tax, more than a nominal fee to defray the expenses of a regulatory license, can constitutionally be laid on a non-commercial, non-profit activity devoted exclusively to the dissemination of ideas, educational and religious in character, to those persons who consent to receive them.
Nor is the essential issue here disguised by the reiterated characterization of these exactions, not as taxes but as “fees”—a characterization to which the records lend no support. All these ordinances on their face purport to be an exercise of the municipality’s taxing power. In none is there the slightest pretense by the taxing authority, or the slightest suggestion by the state court, that the “fee” is to defray expenses of the licensing system. The
JONES v. OPELIKA.	605
584	Stone, C. J., dissenting.
amounts of the “fees,” without more, demonstrate that such a contention is groundless. In No. 280, Opelika itself contends that the issue relates solely to its power to raise money for general revenue purposes, and the Supreme Court of Alabama referred to the levy as a “reasonable” “tax.” The tax exacted by Opelika, on the face of the ordinance, is in addition to a 50 cent “issuance fee,” which alone is presumably what the city deems adequate to defray the cost of administering the licensing system. Similarly in the Fort Smith and Casa Grande cases, the state courts sustained the ordinances as a tax, and nothing else. If this litigation has involved any controversy—and the state courts all seemed to think that it did—the controversy has been one solely relating to the power to tax, and not the power to collect a “fee” to support a licensing system which, as has already been indicated, has no regulatory purpose other than that involved in the raising of revenue.
This Court has often had occasion to point out that where the State may, as a regulatory measure, license activities which it is without constitutional authority to tax, it may charge a small or nominal fee sufficient to defray the expense of licensing, and similarly it may charge a reasonable fee for the use of its highways by interstate motor traffic which it cannot tax. Compare Clark v. Paul Gray, Inc., 306 U. S. 583, 598-600, with Ingels v. Morf, 300 U. S. 290, and cases cited; see Cox v. New Hampshire, 312 U. S. 569, 576-77. But we are not concerned in these cases with a nominal fee for a regulatory license, which may be assumed, for argument’s sake, to be valid. Here the licenses are not regulatory, save as the licenses conditioned upon payment of the tax may serve to restrain or suppress publication. None of the ordinances, if complied with, purports to, or could, control the time, place or manner of the distribution of the books and pamphlets concerned. None has any discernible relationship to the
606	OCTOBER TERM, 1941.
Stone, C. J., dissenting.	316 U. S.
police protection or the good order of the community. The only condition and purpose of the licenses under all three ordinances is suppression of the specified distributions of literature in default of the payment of a substantial tax fixed in amount and measured neither by the extent of the defendants’ activities under the license nor the amounts which they receive for and devote to religious purposes in the exercise of the licensed privilege. Opelika exacts a license fee for book agents of $10 per annum, and of $5 per annum for transient distributors of books, in addition to a 50 cent “issuance fee” on each license. The Supreme Court of Alabama found it unnecessary to determine whether both or only one of these taxes was payable by defendant Jones. The Fort Smith tax of $25 a month, or $10 a week, or $2.50 a day is substantial in amount for transient distributors of literature of the character here involved; the Opelika exaction is even more onerous when applied against one who may be in the city for only a day or two; and the tax of $25 per quarter exacted by the Casa Grande ordinance, adopted in a community having an adult population of less than 1,000 and applied to distributions of literature like the present, is prohibitive in effect.
In considering the effect of such a tax on the defendants’ activities, it is important to note that the state courts have applied levies obviously devised for the taxation of business employments—in the first case the “business or vocation” of “book agent”; in the second the business of peddling specified types of merchandise or “other articles”; in the third, the practice of the callings of “peddlers, transient merchants and vendors”—to activities which concededly are not ordinary business or commercial transactions. As appears by stipulation or undisputed testimony, the defendants are Jehovah’s Witnesses, engaged in spreading their religious doctrines in conformity to the teachings of St. Matthew, Matt. 10:11-14 and
JONES v. OPELIKA.	607
584	Stone, C. J., dissenting.
24:14, by going from city to city, from village to village, and house to house, to proclaim them. After asking and receiving permission from the householder, they play to him phonograph records and tender to him books or pamphlets advocating their religious views. For the latter they ask payment of a nominal amount, two to five cents for the pamphlets and twenty-five cents for books, as a contribution to the religious cause which they seek to advance. But they distribute the pamphlets, and sometimes the books, gratis when the householder is unwilling or unable to pay for them. The literature is published for such distribution by non-profit charitable corporations organized by Jehovah’s Witnesses. The funds collected are used for the support of the religious movement, and no one derives a profit from the publication and distribution of the literature. In the Opelika case, the defendant’s activities were confined to distribution of literature and solicitation of funds in the public streets.
No one could doubt that taxation which may be freely laid upon activities not within the protection of the Bill of Rights could, when applied to the dissemination of ideas, be made the ready instrument for destruction of that right. Few would deny that a license tax laid specifically on the privilege of disseminating ideas would infringe the right of free speech. For one reason among others, if the State may tax the privilege it may fix the rate of tax and, through the tax, control or suppress the activity which it taxes. Magnano Co. n. Hamilton, 292 U. S. 40,45; Grosjean v. American Press Co., 297 U. S. 233, 244-45. If the distribution of the literature had been carried on by the defendants without solicitation of funds, there plainly would have been no basis, either statutory or constitutional, for levying the tax. It is the collection of funds which have been seized upon to justify the extension, to the defendants’ activities, of the tax laid upon business callings. But if we assume, despite our recent
608	OCTOBER TERM, 1941.
Stone, C. J., dissenting.	316 U. S.
decision in Schneider v. State, 308 U. S. 147, 163, that the essential character of these activities is in some measure altered by the collection of funds for the support of a religious undertaking, still it seems plain that the operation of the present flat tax is such as to abridge the privileges which the defendants here invoke.
It lends no support to the present tax to insist that its restraint on free speech and religion is non-discriminatory because the same levy is made upon business callings carried on for profit, many of which involve no question of freedom of speech and religion and all of which involve commercial elements—lacking here—which for present purposes may be assumed to afford a basis for taxation apart from the exercise of freedom of speech and religion. The constitutional protection of the Bill of Rights is not to be evaded by classifying with business callings an activity whose sole purpose is the dissemination of ideas, and taxing it as business callings are taxed. The immunity which press and religion enjoy may sometimes be lost when they are united with other activities not immune. Valentine v. Chrestensen, ante, p. 52. But, here, the only activities involved are the dissemination of ideas, educational and religious, and the collection of funds for the propagation of those ideas, which we have said is likewise the subject of constitutional protection. Schneider v. State, supra; Cantwell v. Connecticut, 310 U. S. 296, 304-07.
The First Amendment is not confined to safeguarding freedom of speech and freedom of religion against discriminatory attempts to wipe them out. On the contrary, the Constitution, by virtue of the First and the Fourteenth Amendments, has put those freedoms in a preferred position. Their commands are not restricted to cases where the protected privilege is sought out for attack. They extend at least to every form of taxation which, because it is a condition of the exercise of the privilege, is capable of being used to control or suppress it.
JONES v. OPELIKA.	609
584	Stone, C. J., dissenting.
Even were we to assume—what I do not concede—that there could be a lawful non-discriminatory license tax of a percentage of the gross receipts collected by churches and other religious orders in support of their religious work, cf. Giragi v. Moore, 301 U. S. 670, we have no such tax here. The tax imposed by the ordinances in these cases is more burdensome and destructive of the activity taxed than any gross receipts tax. The tax is for a fixed amount, unrelated to the extent of the defendants’ activities or the receipts derived from them. It is thus the type of flat tax which, when applied to interstate commerce, has repeatedly been deemed by this Court to be prohibited by the commerce clause. See McGoldrick v. Berwind-White Co., 309 U. S. 33, 55-57, and cases cited; cf. Best & Co. v. Maxwell, 311 U. S. 454, 456. When applied, as it is here, to activities involving the exercise of religious freedom, its vice is emphasized in that it is levied and paid in advance of the actvities taxed, and applied at rates well calculated to suppress those activities, save only as others may volunteer to pay the tax. It requires a sizable out-of-pocket expense by someone who may never succeed in raising a penny in his exercise of the privilege which is taxed.
The defendants’ activities, if taxable at all, are taxable only because of the funds which they solicit. But that solicitation is for funds for religious purposes, and the present taxes are in no way gauged to the receipts. The taxes are insupportable either as a tax on the dissemination of ideas or as a tax on the collection of funds for religious purposes. For on its face a flat license tax restrains in advance the freedom taxed and tends inevitably to suppress its exercise. The First Amendment prohibits all laws abridging freedom of press and religion, not merely some laws or all except tax laws. It is true that the constitutional guaranties of freedom of press and religion, like the commerce clause, make no distinction between fixed-sum 461263’—43------39
610	OCTOBER TERM, 1941.
Stone, C. J., dissenting.	316 U. S.
taxes and other kinds. But that fact affords no excuse for courts, whose duty it is to enforce those guaranties, to close their eyes to the characteristics of a tax which render it destructive of freedom of press and religion.
We may lay to one side the Court’s suggestion that a tax otherwise unconstitutional is to be deemed valid unless it is shown that there are none who, for religion’s sake, will come forward to pay the unlawful exaction. The defendants to whom the ordinances have been applied have not paid it and there is nothing in the Constitution to compel them to seek the charity of others to pay it before protesting the tax. It seems fairly obvious that if the present taxes, laid in small communities upon peripatetic religious propagandists, are to be sustained, a way has been found for the effective suppression of speech and press and religion despite constitutional guaranties. The very taxes now before us are better adapted to that end than were the stamp taxes which so successfully curtailed the dissemination of ideas by eighteenth century newspapers and pamphleteers, and which were a moving cause of the American Revolution. See Collett, History of the Taxes on Knowledge, vol. 1, c. 1; May, Constitutional History of England, 7th ed., vol. 2, p. 245; Hanson, Government and the Press, 1695-1763, pp. 7-14; Morison, The English Newspaper, 1622-1932, pp. 83-88; Grosjean v. American Press Co., supra, 245-49. Vivid recollections of the effect of those taxes on the freedom of press survived to inspire the adoption of the First Amendment.
Freedom of press and religion, explicitly guaranteed by the Constitution, must at least be entitled to the same freedom from burdensome taxation which it has been thought that the more general phraseology of the commerce clause has extended to interstate commerce. Whatever doubts may be entertained as to this Court’s function to relieve, unaided by Congressional legislation, from burdensome taxation under the commerce clause, see Gwin,
JONES v. OPELIKA.	611
584	Murphy, J., dissenting.
White & Prince, Inc. v. Hennef or d, 305 U. S. 434, 441, 446-55; McCarroll n. Dixie Lines, 309 U. S. 176, 184-85, it cannot be thought that that function is wanting under the explicit guaranties of freedom of speech, press and religion. In any case, the flat license tax can hardly become any the less burdensome or more permissible, when levied on activities within the protection extended by the First and Fourteenth Amendments both to the orderly communication of ideas, educational and religious, to persons willing to receive them, see Cantwell v. Connecticut, supra, and to the practice of religion and the solicitation of funds in its support. Schneider v. State, supra.
In its potency as a prior restraint on publication, the flat license tax falls short only of outright censorship or suppression. The more humble and needy the cause, the more effective is the suppression.
Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Murphy join in this opinion.
Mr. Justice Murphy, with whom the Chief Justice, Mr. Justice Black, and Mr. Justice Douglas concur, dissenting.
When a statute is challenged as impinging on freedom of speech, freedom of the press, or freedom of worship, those historic privileges which are so essential to our political welfare and spiritual progress, it is the duty of this Court to subject such legislation to examination, in the light of the evidence adduced, to determine whether it is so drawn as not to impair the substance of those cherished freedoms in reaching its objective. Ordinances that may operate to restrict the circulation or dissemination of ideas on religious or other subjects should be framed with fastidious care and precise language to avoid undue encroachment on these fundamental liberties. And the protection of the Constitution must be extended to all, not
612	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316 U. S.
only to those whose views accord with prevailing thought but also to dissident minorities who energetically spread their beliefs. Being satisfied by the evidence that the ordinances in the cases now before us, as construed and applied in the state courts, impose a burden on the circulation and discussion of opinion and information in matters of religion, and therefore violate the petitioners’1 rights to freedom of speech, freedom of the press, and freedom of worship in contravention of the Fourteenth Amendment, I am obliged to dissent from the opinion of the Court.
It is not disputed that petitioners, Jehovah’s Witnesses, were ordained ministers preaching the gospel, as they understood it, through the streets and from house to house, orally and by playing religious records with the consent of the householder, and by distributing books and pamphlets setting forth the tenets of their faith. It does not appear that their motives were commercial, but only that they were evangelizing their faith as they saw it.
In No. 280 the trial court excluded as irrelevant petitioner’s testimony that he was an ordained minister and that his activities on the streets of Opelika were in furtherance of his ministerial duties. The testimony of ten clergymen of Opelika that they distributed free religious literature in their churches, the cost of which was defrayed by voluntary contribution, and that they had never been forced to pay any license fee, was also excluded. It is admitted here that petitioner was a Jehovah’s Witness and considered himself an ordained minister.
The Supreme Court of Arizona stated in No. 966 that appellant was “a regularly ordained minister of the denomination commonly known as Jehovah’s Witnesses . . . going from house to house in the city of Casa Grande preaching the gospel, as he understood it, by means of his
’For convenience, appellant in No. 966, petitioners in No. 314, and petitioner in No. 280 are herein collectively referred to as “petitioners.”
JONES v. OPELIKA.	613
584	Murphy, J., dissenting.
spoken word, by playing various religious records on a phonograph, with the approval of the householder, and by distributing printed books, pamphlets and tracts which set forth his views as to the meaning of the Bible. The method of distribution of these printed books, pamphlets and tracts was as follows: He first offered them for sale at various prices ranging from five to twenty-five cents each. If the householder did not desire to purchase any of them he then left a small leaflet summarizing some of the doctrines which he preached.” 118 P. 2d 97,98.
The facts were stipulated in No. 314. Each petitioner “claims to be an ordained minister of the gospel . . . They do not engage in this work for any selfish reason but because they feel called to publish the news and preach the gospel of the kingdom to all the world as a witness before the end comes. . . . They believe that the only effective way to preach is to go from house to house and make personal contact with the people and distribute to them books and pamphlets setting forth their views on Christianity.” Petitioners “were going from house to house in the residential section within the city of Fort Smith . . . presented to the residents of these houses various booklets, leaflets and periodicals setting forth their views of Christianity held by Jehovah’s Witnesses.” They solicited “a contribution of twenty-five cents for each book,” but “these books in some instances are distributed free when the people wishing them are unable to contribute.” 151 S. W. 2d 1000, 1001.
There is no suggestion in any of these three cases that petitioners were perpetrating a fraud, that they were demeaning themselves in an obnoxious manner, that their activities created any public disturbance or inconvenience, that private rights were contravened, or that the literature distributed was offensive to morals or created any “clear and present danger” to organized society.
The ordinance in each case is sought to be sustained as a system of non-discriminatory taxation of various busi
614	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316 IT. S.
nesses, professions, and vocations, including the distribution of books for which contributions are asked, for the sole purpose of raising revenue.2 Any inclination to take the position that petitioners, who were proselytizing by distributing informative literature setting forth their religious tenets, and whose activities were wholly unrelated to any commercial purposes, were not within the purview of these occupational tax ordinances,3 is foreclosed by the decisions of the state courts below to the contrary. As so construed, the ordinances, in effect, impose direct taxes on the dissemination of ideas and the distribution of literature, relating to and dealing with religious matters, for which a contribution is asked in an attempt to gain converts, because those were petitioners’ activities. Such taxes have been held to violate the Fourteenth Amendment, McConkey v. Fredericksburg, 179 Va. 556, 19 S. E. 2d 682; State V. Greaves, 112 Vt. 222, 22 A. 2d 497; Blue Island v. Kozul, 379 Ill. 511, 41 N. E. 2d 515; and that should be the holding here.4
Freedom of Speech and Freedom of the Press.
In view of the recent decisions of this Court striking down acts which impair freedom of speech and freedom
2	Respondent in No. 280 contends that the question presented “in no respect relates to regulatory or police power action of a municipal government, but is concerned only with the municipality’s right to levy taxes.”
The Supreme Court of Arizona stated in No. 966 that “the ordinance on its face is the ordinary occupational license tax ordinance.”
3	Several courts have taken this position. State ex rel. Semansky v. Stark, 196 La. 307,199 So. 129; People v. Finkelstein, 170 N. Y. Misc. 188, 9 N. Y. S. 2d 941; Thomas n. Atlanta, 59 Ga. App. 520, 1 S. E. 2d 598; State v. Meredith, 197 S. C. 351,15 S. E. 2d 678; State ex rel. Hough v. Woodruff, 147 Fla. 299, 2 So. 2d 577; Cincinnati v. Mosier, 61 Ohio App. 81,22 N. E. 2d 418. Compare, Gregg v. Smith, 8 L. R. Q. B. (1872-3), p. 302; Duncan v. Gairns, 27 Canadian Cr. Cases 440; but see Rex v. Stewart, 53 Canadian Cr. Cases 24.
4	And see Rutledge, J., dissenting in Busey v. District of Columbia, 129 F. 2d 24, decided April 15, 1942.
JONES v. OPELIKA.	615
584	Murphy, J., dissenting.
of the press no elaboration on that subject is now necessary. We have “unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares.” Valentine v. Chrestensen, ante, 52, 54. And as the distribution of pamphlets to spread information and opinion on the streets and from house to house for non-commercial purposes is protected from the prior restraint of censorship, Lovell v. Griffin, 303 U. S. 444; Schneider v. Irvington, 308 U. S. 147, so should it be protected from the burden of taxation.
The opinion of the Court holds that the amount of the tax is not before us and that a “nondiscriminatory license fee, presumably appropriate in amount, may be imposed upon these activities.” Both of these holdings must be rejected.
Where regulation or infringement of the liberty of discussion and the dissemination of information and opinion are involved, there are special reasons for testing the challenged statute on its face. Thornhill v. Alabama, 310 U. S. 88,96-98, and see Lovell v. Griffin, 303 U. S. 444,452; Drivers Union v. Meadowmoor Co., 312 U. S. 287, 297. That should be done here.5
Consideration of the taxes leads to but one conclusion— that they prohibit or seriously hinder the distribution of petitioners’ religious literature. The opinion of the Court admits that all the taxes are “substantial.” The $25 quar-
5 When the Opelika ordinance is considered on its face, there is an additional reason for its invalidity. The uncontrolled power of revocation lodged with the local authorities is but the converse of the system of prior licensing struck down in Lovell v. Griffin, 303 U. S. 444. Here, as there, the pervasive threat of censorship inherent in such a power vitiates the ordinance.
616	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316 U. S.
terly tax of Casa Grande approaches prohibition. The 1940 population of that town was 1,545. With so few potential purchasers it would take a gifted evangelist, indeed, in view of the antagonism generally encountered by Jehovah’s Witnesses, to sell enough tracts at prices ranging from five to twenty-five cents to gross enough to pay the tax. Cf. McConkey v. Fredericksburg, 179 Va. 556, 19 S. E. 2d 682. While the amount is actually lower in Opelika,6 and may be lower in Fort Smith in that it is possible to get a license for a short period,7 and while the circle of purchasers is wider in those towns,8 these exactions also place a heavy hand on petitioners’ activities. The petitioners should not be subjected to such tribute.
But whatever the amount, the taxes are in reality taxes upon the dissemination of religious ideas, a dissemination carried on by the distribution of religious literature for religious reasons alone and not for personal profit. As such they place a burden on freedom of speech, freedom of the press, and the exercise of religion even if the question of amount is laid aside. Liberty of circulation is the very life blood of a free press, cf. Lovell v. Griffin, 303 U. S. 444,452, and taxes on the circulation of ideas have a long history of misuse against freedom of thought.9 See Grosjean v. American Press Co., 297 U. S. 233, 245-249. And taxes on circulation solely for the purpose of revenue were success
* $5 or $10, depending upon which section of the ordinance is held to apply.
7	$2.50 per day, $10 per week, and $25 per month.
8	The 1940 population of Fort Smith was 36,584 and that of Opelika, 8,487.
8 The English Stamp Act of 1712, 10 Anne, c. 19, put a tax on newspapers and pamphlets to check what seemed to the Government to be “false and scandalous libels” and “the most horrid blasphemies against God and religion.” This and subsequent enactments led to a long struggle in England for the repeal of these “taxes on knowledge” and the recognition of the freedom of the press. See Collett, History of the Taxes on Knowledge (1899); Place, Taxes on Knowledge (1831).
JONES v. OPELIKA.	617
584	Murphy, J., dissenting.
fully resisted, prior to the adoption of the First Amendment, as interferences with freedom of the press.10 * Surely all this was familiar knowledge to the framers of the Bill of Rights. We need not shut our eyes to the possibility that use may again be made of such taxes, either by discrimination in enforcement or otherwise, to suppress the unpalatable views of militant minorities such as Jehovah’s Witnesses. See McConkey v. Fredericksburg, 179 Va. 556, 19 S. E. 2d 682. As the evidence excluded in No. 280 tended to show, no attempt was there made to apply the ordinance to ministers functioning in a more orthodox manner than petitioner.
Other objectionable features in addition to the factor of historical misuse exist. There is the unfairness present in any system of flat fee taxation, bearing no relation to the ability to pay. And there is the cumulative burden of many such taxes throughout the municipalities of the land, as the number of recent cases involving such ordinances abundantly demonstrates.11 The activities of Jehovah’s
10 Stamp taxes for purely revenue purposes were successfully resisted in Massachusetts in 1757 and again in 1785 on the ground that they interfered with freedom of the press. See Duniway, Freedom of the Press in Massachusetts (1906), pp. 119-120, 136-137; Thomas, History of Printing in America (1810), vol. 2, pp. 267-268. The press also vigorously opposed the Stamp Act of 1765, 5 Geo. Ill, c. 12, which was also a revenue measure. See Duniway, op. tit., p. 124; Thomas, op. tit., pp. 189, 297, 322,329, 350; Van Tyne, Causes of the War of Independence (1922), p. 160; 15 Scottish Historical Review 322, 326.
“ In addition to the instant cases, see Cincinnati v. Mosier, 61 Ohio App. 81,22 N. E. 2d 418; State v. Meredith, 197 S. C. 351,15 S. E. 2d 678; Thomas v. Atlanta, 59 Ga. App. 520, 1 S. E. 2d 598; Commonwealth v. Reid, 144 Pa. Super. 569, 20 A. 2d 841; People v. Banks, 168 N. Y. Misc. 515, 6 N. Y. S. 2d 41; Cook v. Harrison, 180 Ark. 546, 21 S. W. 2d 966; State v. Greaves, 112 Vt. 222, 22 A. 2d 497; Busey v. District of Columbia, 129 F. 2d 24; McConkey v. Fredericksburg, 179 Va. 556,19 S. E. 2d 682; Blue Island v. Kozvl, 379 Ill. 511, 41 N. E. 2d 515; State ex rel. Semansky n. Stark, 196 La. 307, 199 So. 129; People v. Finkelstein, 170 N. Y. Misc. 188, 9 N. Y. S. 2d 941; State ex rel.
618	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316 U. S.
Witnesses are widespread, and the aggregate effect of numerous exactions, no matter how small, can conceivably force them to choose between refraining from attempting to recoup part of the cost of their literature, or else paying out large sums in taxes. Either choice hinders and may even possibly put an end to their activities. There is no basis, other than a refusal to consider the characteristics of taxes such as these, for any assumption that such taxes are “commensurate with the activities licensed.” Nor is there any assurance that “a correla-tively enlarged field of distribution” will insure sufficient proceeds even to meet such exactions, let alone leaving any residue for the continuation of petitioners’ evangelization.
Freedom of speech, freedom of the press, and freedom of religion all have a double aspect—freedom of thought and freedom of action. Freedom to think is absolute of its own nature; the most tyrannical government is powerless to control the inward workings of the mind. But even an aggressive mind is of no missionary value unless there is freedom of action, freedom to communicate its message to others by speech and writing. Since in any form of action there is a possibility of collision with the rights of others, there can be no doubt that this freedom to act is not absolute but qualified, being subject to regulation in the public interest which does not unduly infringe the right. However, there is no assertion here that the ordinances were regulatory, but if there were such a claim, they still should not be sustained. No abuses justifying regulation are advanced and the ordinances are not narrowly and precisely drawn to deal with actual, or even hypothetical, evils, while at the same time preserving the substance of the right. Cf. Thornhill v. Alabama, 310 U. S.
Hough v. Woodruff, 147 Fla. 299, 2 So. 2d 577; Borchert v. Ranger, 42 F. Supp. 577.
JONES v. OPELIKA.	619
584	Murphy, J., dissenting.
88,105; Cantwell v. Connecticut, 310 U. S. 296,311. They impose a tax on the dissemination of information and opinion anywhere within the city limits, whether on the streets or from house to house. “As we have said, the streets are natural and proper places for the dissemination of information and opinion; and one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere.” Schneider v. Irvington, 308 U. S. 147, 163. These taxes abridge that liberty.
It matters not that petitioners asked contributions for their literature. Freedom of speech and freedom of the press cannot and must not mean freedom only for those who can distribute their broadsides without charge. There may be others with messages more vital but purses less full, who must seek some reimbursement for their outlay or else forego passing on their ideas. The pamphlet, an historic weapon against oppression,12 Lovell v. Griffin, 303 U. S. 444, 452, is today the convenient vehicle of those with limited resources because newspaper space and radio time are expensive and the cost of establishing such enterprises great. If freedom of speech and freedom of the press are to have any concrete meaning, people seeking to distribute information and opinion, to the end only that others shall have the benefit thereof, should not be taxed for circulating such matter. It is unnecessary to consider now the validity of such taxes on commercial enterprises engaged in the dissemination of ideas. Cf. Valentine v. Chrestensen, ante, p. 52; Giragi v. Moore, 301 U. S. 670. Petitioners were not engaged in a traffic for profit. While the courts below held their activities were covered by the 13
13	The pamphlets of Paine were not distributed gratuitously. See Introduction to Paine’s Political Writings (London, 1909) pp. 3, 5.
Pamphlets were extensively used in the struggle for religious freedom. See Greene, The Development of Religious Liberty in Connecticut (1905), pp. 282-283, 299-301.
620	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316 U. S.
ordinances, it is clear that they were seeking only to further their religious convictions by preaching the gospel to others.
The exercise, without commercial motives, of freedom of speech, freedom of the press, or freedom of worship are not proper sources of taxation for general revenue purposes. In dealing with a permissible regulation of these freedoms and the fee charged in connection therewith, we emphasized the fact that the fee “was not a revenue tax, but one to meet the expense incident to the administration of the Act and to the maintenance of public order,” and stated only that, “There is nothing contrary to the Constitution in the charge of a fee limited to the purpose stated.” Cox v. New Hampshire, 312 U. S. 569, 577. The taxes here involved are ostensibly for revenue purposes; they are not regulatory fees. Respondents do not show that the instant activities of Jehovah’s Witnesses create special problems causing a drain on the municipal coffers, or that these taxes are commensurate with any expenses entailed by the presence of the Witnesses. In the absence of such a showing, I think no tax whatever can be levied on petitioners’ activities in distributing their literature or disseminating their ideas. If the guaranties of freedom of speech and freedom of the press are to be preserved, municipalities should not be free to raise general revenue by taxes on the circulation of information and opinion in non-commercial causes; other sources can be found, the taxation of which will not choke off ideas. Taxes such as the instant ones violate petitioners’ right to freedom of speech and freedom of the press, protected against state invasion by the Fourteenth Amendment.
Freedom of Religion.
Under the foregoing discussion of freedom of speech and freedom of the press, any person would be exempt from taxation upon the act of distributing information or
JONES v. OPELIKA.	621
584	Murphy, J., dissenting.
opinion of any kind, whether political, scientific, or religious in character, when done solely in an effort to spread knowledge and ideas, with no thought of commercial gain. But there is another, and perhaps more precious, reason why these ordinances cannot constitutionally apply to petitioners. Important as free speech and a free press are to a free government and a free citizenry, there is a right even more dear to many individuals—the right to worship their Maker according to their needs and the dictates of their souls and to carry their message or their gospel to every living creature. These ordinances infringe that right, which is also protected by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U. S. 296.
Petitioners were itinerant ministers going through the streets and from house to house in different communities, preaching the gospel by distributing booklets and pamphlets setting forth their views of the Bible and the tenets of their faith. While perhaps not so orthodox as the oral sermon, the use of religious books is an old, recognized and effective mode of worship and means of proselytizing.18 For this, petitioners were taxed. The mind rebels at the thought that a minister of any of the old established churches could be made to pay fees to the community before entering the pulpit. These taxes on petitioners’ efforts to preach the “news of the Kingdom” should be struck down because they burden petitioners’ right to worship the Deity in their own fashion and to spread the gospel as they understand it. There is here no contention that their manner of worship gives rise to conduct which calls for regulation, and these ordinances are not aimed at any such practices.
One need only read the decisions of this and other courts in the past few years to see the unpopularity of Jehovah’s
18 See, The Volumes of the American Tract Society (1848), pp. 15-16, 24; Home Evangelization (1850), pp. 70-74; Lee, History of the Methodists (1810), p. 48.
622	OCTOBER TERM, 1941.
Murphy, J., dissenting.	316 U. S.
Witnesses and the difficulties put in their path because of their religious beliefs. An arresting parallel exists between the troubles of Jehovah’s Witnesses and the struggles of various dissentient groups in the American colonies for religious liberty which culminated in the Virginia Statute for Religious Freedom,14 the Northwest Ordinance of 1787,15 and the First Amendment. In most of the colonies there was an established church, and the way of the dissenter was hard. All sects, including Quaker, Methodist, Baptist, Episcopalian, Separatist, Rogerine, and Catholic, suffered.16 Many of the non-conforming ministers were itinerants, and measures were adopted to curb their unwanted activities. The books of certain denominations were banned.17 Virginia and Connecticut had burdensome licensing requirements.18 Cf. Lovell v. Griffin, 303 U. S. 444; Schneider v. Irvington, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296. Other states required oaths before one could preach which many ministers could not conscientiously take.18 Cf. Reid v. Brookville, 39 F. Supp. 30;
14	Adopted in 1785 through the efforts of Jefferson and Madison. Virginia Code of 1930, § 34.
15	Article I. No person demeaning himself in a peaceable and orderly manner shall ever be molested on account of his mode of worship or religious sentiments in the said territory.
“See Works of Thomas Jefferson (1861), vol. VIII, pp. 398-402 (Notes on Virginia, Query XVII); Cobb, Rise of Religious Liberty in America (1902); Little, Imprisoned Preachers and Religious Liberty in Virginia (1938); Lee, History of the Methodists (1810), pp. 62-74; Greene, The Development of Religious Liberty in Connecticut (1905), pp. 158-180; Guilday, Life and Times of John Carroll (1922), vol. 1, Chapters V and VIII.
17	Jefferson, op. cit.; Greene, op. cit., p. 165.
“Little, op. cit., pp. 11-13, 67-69; Greene, op. cit., pp. 243, 262-263, 358; Cobb, op. cit., pp. 98, 104, 358; Wright, Hawkers and Walkers in Early America (1927), Chapter X; Baldwin, The New England Clergy and the Revolution (1928), p. 59.
18	The Journal of the Rev. Francis Asbury (1821), vol. 1, pp. 208, 253; Lee, op. cit., pp. 62-74.
JONES v. OPELIKA.	623
584 Black, Douglas and Murphy, JJ., dissenting.
Kennedy v. Moscow, 39 F. Supp. 26. Research reveals no attempt to control or persecute by the more subtle means of taxing the function of preaching, or even any attempt to tap it as a source of revenue.20
By applying these occupational taxes to petitioners’ non-commercial activities, respondents now tax sincere efforts to spread religious beliefs, and a heavy burden falls upon a new set of itinerant zealots, the Witnesses. That burden should not be allowed to stand, especially if, as the excluded testimony in No. 280 indicates, the accepted clergymen of the town can take to their pulpits and distribute their literature without the impact of taxation. Liberty of conscience is too full of meaning for the individuals in this Nation to permit taxation to prohibit or substantially impair the spread of religious ideas, even though they are controversial and run counter to the established notions of a community. If this Court is to err in evaluating claims that freedom of speech, freedom of the press, and freedom of religion have been invaded, far better that it err in being overprotective of these precious rights.
Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Murphy:
The opinion of the Court sanctions a device which in our opinion suppresses or tends to suppress the free exercise of a religion practiced by a minority group. This is but another step in the direction which Minersville School District v. Gobitis, 310 U. S. 586, took against the same religious minority, and is a logical extension of the principles upon which that decision rested. Since we joined in the opinion in the Gobitis case, we think this is an ap-
20 The Stamp Act of 1765 exempted “any books containing only matters of devotion or piety.” MacDonald, Documentary Source Book of American History (3d ed., 1934), p. 128.
624	OCTOBER TERM, 1941.
Syllabus.	316 U. S.
propriate occasion to state that we now believe that it also was wrongly decided. Certainly our democratic form of government, functioning under the historic Bill of Rights, has a high responsibility to accommodate itself to-the religious views of minorities, however unpopular and unorthodox those views may be. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and in the Gobitis case do exactly that.
WALLING, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, U. S. DEPARTMENT OF LABOR, v. A. H. BELO CORPORATION.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
No. 622. Argued April 6, 1942.—Decided June 8, 1942.
1.	Nothing in the Fair Labor Standards Act bars an employer from contracting with his employees to pay them the same wages that they received previously, so long as the new rate equals or exceeds the minimum required by the Act. P. 630.
2.	An employer whose employees worked irregular hours and were paid fixed weekly salaries, entered into contracts with them, individually, which in each case specified a basic rate of pay per hour, for the maximum hours fixed by the Act, and not less than one and one-half times that rate per hour for overtime, with a guaranty that the employee should receive each week for regular time and overtime not less than an amount specified. Under this plan, the employee worked more than the statutory maximum regular hours before he became entitled to any pay in addition to the weekly guaranty, but when he worked enough hours to earn more than the guaranty, the surplus time was paid for at 150% of the “basic,” or contract, rate. His compensation equalled or approximated that which he was receiving when the Act went into effect, and exceeded the minima which the Act prescribes. Held:
WALLING v. BELO CORP.	625
624	Opinion of the Court.
(1)	That the rate per hour so agreed on was the “regular rate” within the meaning of § 7 (a) (3) of the Act where it provides that for overtime the employee shall receive compensation “at a rate not less than one and one-half times the regular rate for which he is employed.” P. 630.
(2)	The intention of the parties to fix the amount per hour specified in the contract was consistent with their intention to guaranty the specified weekly income. P. 631.
(3)	The Act does not prohibit paying more for overtime than 150% of the basic rate. P. 632.
(4)	The contract conforms to the intention of the Act. Overnight Motor Transportation Co. v. Missel, ante, p. 572, distinguished. P. 634.
121 F. 2d 207, affirmed.
Certiorari, 314 U. S. 601, to revew the affirmance of a decree of the Circuit Court of Appeals which dismissed a bill brought by the Administrator of the Wage and Hour Division, Labor Department, to enjoin the respondent from adhering to a wage system, based upon contracts with its employees, which plaintiff attacked as contrary to wage and hour provisions of the Fair Labor Standards Act. In the District Court this case was tried with another in which the present respondent obtained a declaratory judgment against certain of its employees. See 35 F. Supp. 430, 36 F. Supp. 907.
Solicitor General Fahy, with whom Messrs. Arnold Raum, Warner W. Gardner, Irving J. Levy, Mortimer B. Wolf, Jacob D. Hyman, George B. Searls, Walter T. Nolte, and Norman S. Altman were on the brief, for petitioner.
Mr. Maurice E. Purnell, with whom Mr. Eugene P. Locke was on the brief, for respondent.
Mr. Justice Byrnes delivered the opinion of the Court.
This is a proceeding by the Administrator of the Wage and Hour Division of the Department of Labor to restrain the respondent corporation from alleged violation of the
461263°—43--40
626	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
Fair Labor Standards Act.1 The Administrator sought to prevent the use by respondent, under certain contracts with its employees, of wage agreements deemed by the Administrator violative of the time and a half for overtime provisions of § 7 (a)* 1 2 as implemented by §§ 15 (a) (1) and (2).3
1 Enforcement of the requirements of the Act by injunction is authorized by § 17. “The district courts of the United States and the United States courts of the Territories and possessions shall have jurisdiction, for cause shown, and subject to the provisions of section 20 (relating to notice to opposite party) of the Act entitled ‘An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes,’ approved October 15, 1914, as amended (U. S. C., 1934 edition, title 28, sec. 381), to restrain violations of section 15.” 52 Stat. 1069; 29 U. S. C. § 217.
a “Sec. 7. (a) No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce—
(1)	for a workweek longer than forty-four hours during the first year from the effective date of this section,
(2)	for a workweek longer than forty-two hours during the second year from such date, or
(3)	for a workweek longer than forty hours after the expiration of the second year from such date,
unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 52 Stat. 1063; 29 U. S. C. § 207.
8 “Sec. 15. (a) After the expiration of one hundred and twenty days from the date of enactment of this Act, it shall be unlawful for any person—
(1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver, or sell with knowledge that shipment or delivery or sale thereof in commerce is intended, any goods in the production of which any employee was employed in violation of section 6 or section 7, or in violation of any regulation or order of the Administrator issued under section 14; except that no provision of this Act shall impose any liability upon any common carrier for the transportation in commerce in the regular course of its business of any goods not produced by such common carrier, and no provision of this Act shall
WALLING v. BELO CORP.	627
624	Opinion of the Court.
The respondent, a Texas corporation, is the publisher of the Dallas Morning News and other periodicals, and the owner and operator of radio station WFAA. It has some 600 employees. Those in the mechanical departments work under a collective bargaining agreement and are not involved in the present dispute. The others, and particularly those in the newspaper business, work irregular hours. Prior to the effective date of the Act, October 24, 1938, respondent had been paying all but two or three of these employees more than the minimum wage required by the Act. They received vacations of approximately two weeks each year at full pay; special bonuses at the end of the year amounting to approximately one week’s earnings ; and full pay during periods of illness, sometimes continuing for weeks and sometimes for months. At the time of the trial, 28 superannuated employees were carried on the payroll at full rates of pay. Employees were permitted absences to attend to personal affairs without deductions from pay. When they were required to work long hours in any week, they were given compensating time off in succeeding weeks. Life insurance was carried for them at respondent’s expense.
After the enactment of the Fair Labor Standards Act but before its effective date, respondent endeavored to adjust its compensation system to meet the requirements of the Act by negotiating a contract with each of its employees except those in the mechanical departments. These contracts were in the form of letters stating terms which were agreed to by the employees. The following is a typical letter:
excuse any common carrier from its obligation to accept any goods for transportation;
(2) to violate any of the provisions of section 6 or section 7, or any of the provisions of any regulation or order of the Administrator issued under section 14; . .	52 Stat. 1068; 29 U. S. C. § 215.
628	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
“The Fair Labor Standards Act which goes into effect on October 24, 1938, provides for the following minimum wages and maximum hours of employment:
“First year—25^ per hour minimum 44 hours maximum per week
“Second year—30^ per hour minimum 42 hours maximum per week
“Third year—40^ per hour minimum4
40 hours maximum per week except that employees may work more than the number of hours specified above, provided that overtime rates shall be a minimum of one and one-half times the basic rate.
“In order to conform our employment arrangements to the scheme of the Act without reducing the amount of money which you receive each week, we advise that from and after October 24, 1938, your basic rate of pay will be . . . 67 . . . cents per hour for the first forty-four hours each week, and that for time over forty-four hours each week you will receive for each hour of work not less than one and one-half time such basic rate above mentioned, with a guaranty on our part that you shall receive weekly, for regular time and for such overtime as the necessities of the business may demand, a sum not less than $40. . . .”
In most cases, as in this example, the specified hourly rate was fixed at l/60th of the guaranteed weekly wage. The result was that during the first year under the Act, when the statutory maximum of regular hours was 44, the employee was required to work 54^ hours before he became entitled to any pay in addition to the weekly guaranty.5
4	In later letters this misstatement, immaterial here, was corrected. The minimum wage for the first 40 hours remains 30 cents until October 24,1945. See § 6 of the Act.
5	44 hours at 67 cents equals $29.48; 10^2 hours at the statutory minimum overtime rate of $1.00 (150%X$,67) equals $10.50; $29.48 plus $10.50 equals $39.98.
WALLING v. BELO CORP.	629
624	Opinion of the Court.
When the employee worked enough hours at the contract rate to earn more than the guaranty, the surplus time was paid for at the rate of 150% of the hourly contract wage. If the employee received an increase in pay, the hourly rate and weekly rate were readjusted.
For eighteen months the system embodied in these contracts was followed to the apparent satisfaction of employer and employees. Respondent was then advised that the arrangement was in violation of the Act and that it was liable to its employees in an amount of from 30 to 60 thousand dollars. It was informed by the regional director in Dallas and by an official in the Administrator’s office in Washington that an employee’s complaint had precipitated the investigation. These officials declined to give the name of the employee.
Respondent thereupon brought suit for a declaratory judgment in the District Court for the Northern District of Texas, joining the regional director and three of its employees as defendants. The defendant employees answered that they and all the other employees affected by the system approved of it. The regional director moved to dismiss on two grounds, one of which was that he represented none of the employees. The motion to dismiss was denied. 35 F. Supp. 430. In the meantime, petitioner instituted this suit to enjoin respondent from continuing to operate the wage system based upon its contracts with its employees. The two suits were consolidated and tried together. The District Court entered a declaratory judgment for the respondent and dismissed the bill for an injunction. 36 F. Supp. 907.
Petitioner appealed to the Circuit Court of Appeals from the dismissal of its complaint. That Court affirmed the judgment of the District Court. 121 F. 2d 207. It found that the contracts were “actual bona fide contracts of employment” and that “they were intended to, and did, really fix the regular rates at which each employee was
630	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
employed.” We granted certiorari because of the importance of the question in the administration of the Act.
It is no doubt true, as petitioner contends, that the purpose of respondent’s arrangement with its employees was to permit, as far as possible, the payment of the same total weekly wage after the Act as before. But nothing in the Act bars an employer from contracting with his employees to pay them the same wages that they received previously, so long as the new rate equals or exceeds the minimum required by the Act.6
The Act requires that for each hour of work beyond the statutory maximum, the employees must be paid “not less than one and one-half times the regular rate at which he is employed.” This case turns upon the meaning of the words “the regular rate at which he is employed.” Re-
8Section 18 provides: “No provision of this Act shall justify any employer in reducing a wage paid by him which is in excess of the applicable minimum wage under this Act, or justify any employer in increasing hours of employment maintained by him which are shorter than the maximum hours applicable under this Act.” Whatever the legal effect of this language, it is certainly not a prohibition and the Administrator does not rely upon it. The finding of the Circuit Court of Appeals that respondent’s effort to maintain the weekly incomes of its employees at their pre-Act level was in good faith gains support from the circumstance that at the very time when respondent was formulating its new wage policy the Wage and Hour Administrator declared:
“Clerical forces, we all feel, are included in the Act. But I cannot see where there is going to be any practical difficulty there because your clerical force in any plant of any consequence certainly is earning on a basis of more than 25 cents an hour weekly wages divided by the hours they work. If they are well above 25 cents an hour, it seems to me that there would not be much question about time and a half for overtime, because you could figure in that weekly wage that time and a half over the 44 hours had been given consideration as remuneration for their full week’s pay.”
Speech before the Southern States Industrial Council at Birmingham, Alabama, on September 29, 1938. 3 Wage and Hour Reporter 228.
WALLING v. BELO CORP.	631
624	Opinion of the Court.
spondent contends that the regular rate under the illustrative contract, which is set out above and to which we shall refer throughout, is 67 cents an hour. Petitioner argues, however, that the 67 cents hourly rate mentioned in the contract is meaningless and that the agreement is, in effect, for a weekly salary of $40 without regard to fluctuations in the number of hours worked each week. Treating the contract as one for a fixed weekly salary, he urges that the regular hourly rate for any single week is the quotient of the $40 guaranty divided by the number of hours actually worked in that week.7 Under this formula the employee is entitled to the regular hourly rate thus determined for the first 44 hours8 each week and to not less than one and one-half times that rate for each hour thereafter.
In its initial stage the question to which this dispute gives rise is a question of law, a question of interpretation of the statutory term “regular rate.” But it is agreed that as a matter of law employer and employee may establish the “regular rate” by contract. In the case before us, such an effort has been made, and in the example given the regular rate has been specified as 67 cents an hour. The difficulty arises from the inclusion of the $40 guaranty. The problem is whether the intention of the parties to set 67 cents an hour as the regular rate squares with their intention to guarantee a weekly income of $40. The Administrator’s position is that these two objectives are inherently inconsistent and that the intention to fix the regular hourly rate at 67 cents is overridden by the intention to guarantee the $40 per week.
We cannot agree. In the first place, when an employee works more than 54^ hours in a single week, he is admittedly entitled to more than the $40 guarantee. The record
7	This has been the Administrator’s interpretation of the Act, as set forth in Interpretative Bulletin No. 4, issued October 21, 1938 and revised in November, 1940.
8	For the first year after passage of the Act; now 40 hours.
632	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
shows that in such a case, the employee is paid at the rate of $1.00 an hour (150% x $.67) for each hour of overtime. In this situation, then, it is clearly the guaranty that becomes inoperative and the 67 cent hourly rate fixed by the contract that is controlling.
In the second place, although it is perfectly true that when the employee works less than 54^/2 hours during the week his pay is determined by the $40 guaranty, it does not dispose of the problem simply to say this. The question remains whether the $40 contemplates compensation for overtime as well as basic pay. The contract says that the employee is to receive 67 cents an hour for the first 44 hours and “Not less than one and one-half time such basic rate” for each hour over 44. Consequently, if an employee works 50 hours in a given week, it might reasonably be said that his $40 wage consists of $29.48 for the first 44 hours (44 x $.67) plus $10.52 for the remaining six hours (6 x $1,753). To be sure, $1,753 is more than 150% of $.67. But the Act does not prohibit paying more; it requires only that the overtime rate be “not less than” 150% of the basic rate. It is also true that under this formula the overtime rate per hour may vary from week to week. But nothing in the act forbids such fluctuation.
The gist of the Administrator’s objection to this interpretation is that both the basic rate and the overtime rate are so “artificial” that the parties to the contract cannot fairly be supposed to have intended that it be so construed. It cannot be denied that the flexibility of the overtime rate is considerable, but this flexibility may well have been intended if it was the only means of securing uniformity in weekly income. Moreover, under the Administrator’s interpretation, the regular rate in the example given is $40 divided by the number of hours worked each week. Since the number of hours worked fluctuates so drastically from week to week, this “regular” rate is certainly “irregular” in a mathematical sense. And inasmuch as it cannot be
WALLING v. BELO CORP. 633
624	Opinion of the Court.
calculated until after the workweek has been completed, it is difficult to say that it is “regular” in the sense that either employer or employee knows what it is or can plan on the basis of it.
The artificiality of the method urged by the Administrator is accentuated by the nature of his counter-proposal of two plans by which the weekly wage of an employee whose hours vary from week to week may be stabilized. One of these officially approved plans is known as the “time-off plan” and is explained in Interpretative Bulletin No. 4. Under this plan the employment must be placed upon an hourly rate basis with no mention of a guaranty. The pay days must be spaced at intervals of two weeks or longer. If the pay period is set at two weeks and the employee is required to work overtime during the first week, he is given sufficient time off during the second week to keep his paycheck at a constant level. In our view, this counter-proposal far exceeds in technicality the plan adopted by respondent. Moreover, its operation is to provide a ceiling but not a floor for the wage. Since the pay is by the hour and there is no guaranty, in a pay period in which an employee works few hours, his wage may fall far below the level aimed at.
The other officially approved arrangement is known as the “pre-payment plan,” and is also explained in Bulletin No. 4. Under this plan, virtually the same arrangement as that which we have been using as an example can stand. That is to say, an employee may be promised 67 cents an hour for the first 44 hours, $1.00 for each hour over 44,8 with a guaranty of $40 a week. However, in any week in which the employee’s earnings at the stated hourly rates do not equal the $40 guaranty, the balance necessary to fulfill the guaranty must be treated as a loan to him. If
* It should be noted that respondent’s contract, set out above, does not fix $1.00 as the hourly rate for overtime. Instead it provides that the overtime rate shall be “not less than one and one-half” times 67 cents.
I
634	OCTOBER TERM, 1941.
Opinion of the Court.	316 U. S.
in any succeeding week his earnings at the stated hourly rates exceed the guaranty, the excess is withheld by the employer as a repayment of the loan. But if his earnings do not exceed the guaranty in any succeeding week, and after receiving his pay check he does not return to work, the employer is presumed to make an effort to collect the excess amount paid to the employee in a previous week. If the employer does not recover this excess amount, then for all practical purposes the plan operates just as does the plan followed by the respondent in this case. About the only difference is that one is called a “guaranty plan,” while the other is called a “pre-payment plan.” In the opinion of the Administrator, the “pre-payment plan” is lawful; the “guaranty plan” is unlawful.
But the guaranty contract in this case carries out the intention of the Congress. It specifies a basic hourly rate of pay and not less than time and a half that rate for every hour of overtime work beyond the maximum hours fixed by the Act. It is entirely unlike the Missel case, ante, p. 572. In the contract in that case, there is no stated hourly wage and no provision for overtime. Under the decision in that case, an employer who engages a worker for a fixed weekly wage of $40 for irregular hours and works him 65 hours (in a year when the maximum workweek is 44 hours), owes the employee $46.38. See Missel case. For the same hours under the Belo contract, at the hourly contract rate of 67 cents, the worker would receive $50.48. There is a difference in compensation, but that is the agreement of the parties and it is within the letter and the intention of the law.
The problem presented by this case is difficult—difficult because we are asked to provide a rigid definition of “regular rate” when Congress has failed to provide one. Presumably, Congress refrained from attempting such a definition because the employment relationships to which the Act would apply were so various and unpredictable.
WALLING v. BELO CORP.	635
624	Reed, J., dissenting.
And that which it was unwise for Congress to do, this Court should not do. When employer and employees have agreed upon an arrangement which has proven mutually satisfactory, we should not upset it and approve an inflexible and artificial interpretation of the Act which finds no support in its text and which as a practical matter eliminates the possibility of steady income to employees with irregular hours. Where the question is as close as this one, it is well to follow the Congressional lead and to afford the fullest possible scope to agreements among the individuals who are actually affected. This policy is based upon a common sense recognition of the special problems confronting employer and employee in businesses where the work hours fluctuate from week to week and from day to day. Many such employees value the security of a regular weekly income. They want to operate on a family budget, to make commitments for payments on homes and automobiles and insurance. Congress has said nothing to prevent this desirable objective. This Court should not.
Affirmed.
Mr. Justice Reed, dissenting:
The Court holds, “When employer and employees have agreed upon an arrangement which has proven mutually satisfactory, we should not upset it and approve an inflexible and artificial interpretation of the Act which finds no support in its text and which as a practical matter eliminates the possibility of steady income to employees with irregular hours.” Yet it is recognized by the Court that the validity of the contract “turns upon the meaning of the words ‘the regular rate at which he is employed/ ” the phrase left undefined by Congress, which it is said the courts also should leave undefined and flexible. Not only does the Court’s conclusion assume that the typical Belo contract conforms to the Fair Labor Standards Act by the provision for hourly wages and time and a half for over-
636	OCTOBER TERM, 1941.
Reed, J., dissenting.	316 U. S.
time, but, in the opinion just announced, the Court approves this type contract for hiring, “so long as the new rate equals or exceeds the minimum required by the Act.” In so deciding, the Court gives the phrase “regular rate” an interpretation as inflexible and artificial as that which it condemns.
The Court’s interpretation that, in the absence of bad faith, any form of contract which assures the payment of the minimum wage and the required overtime complies with the Act may be assumed to be correct. But since the overtime hours must be compensated “at a rate not less than one and one-half times the regular rate at which he is employed,” § 7 (a) (3), the regular rate cannot be left without “definition,” “flexible” or unfound for this case. And once so found, it must be applied to the circumstances of this litigation. No all-inclusive definition will be attempted. The possibilities of variation in contracts are too great. Certainly, however, the Court does not mean to say that the employer and employee may capriciously select a certain figure, unrelated to the wages paid, and say “That is the regular rate of employment.” Every contract of employment is assumed, by the statute, to contain a “regular rate,” and for each contract it is a legal, not a factual, conclusion. What that rate is here is the object of our inquiry. Once determined for this case, that conclusion becomes a precedent for other similar contracts and so, in one sense, whether we wish it or not, a definition to be applied in the administration of the Act.
This Court accepts the view that the Fair Labor Standards Act was intended not only to put a floor under wages but also a ceiling over hours. The limitation of hours in turn had two purposes—the spreading of work and extra compensation for overtime, no matter how high the regular wage may be. Overnight Motor Transportation Co. V. Missel, ante, pp. 572, 577. Since overtime pay must at least equal time and a half the regular rate, as § 7 (a)
WALLING v. BELO CORP.	637
624	Reed, J., dissenting.
specifies, employers and employees may not be permitted to contract in avoidance of the statutory requirement. Contracts for a regular rate per hour conform easily to the requirements, but contracts for compensation in other forms compel an analysis of their terms to find the regular rate. Fixed salaries, as this Court agrees today in Missel’s case, are to be reduced to hourly rates on the basis of a week as the unit of time. Belo’s contract contains elements both of hourly wage and fixed weekly wage contracts. We come then to this point. Are the contracts here involved for weekly wages with variable hours, or for hourly rates with time and a half of such rates for overtime? If the latter, respondent contends the Act has left him free to contract with his employees at such hourly regular rates as may be agreed upon, limited only by the minimum wage requirements. As a court, we must appraise the nature of these contracts and, in my judgment, they are agreements for weekly wages for variable hours, with a provision for additional compensation per hour contingent upon work in excess of an ascertainable number of hours—the number of hours of work required for the wages earned under the hourly wage terms of the contract to equal the guaranty.1 Until these hours are exceeded, the stipulated wage per hour has no demonstrable effect.
The contracts stated they were drawn to comply with the “scheme of the Act without reducing” weekly wages. The hourly rate was customarily written as one-sixtieth of the weekly wages. The overtime above the maximum hours was set at 150% of the hourly wage or one-fortieth of the weekly. This was then followed by a guaranty that the employee should “receive weekly,” for regular and overtime, the former weekly wage. This guaranty was the dominating feature of the contract. Without the guaranty, the adoption of a low hourly rate would encounter
1 Cf. Carleton Screw Products Co. v. Fleming, 126 F. 2d 537.
638	OCTOBER TERM, 1941.
Reed, J., dissenting.	316 U. S.
the full weight of employee bargaining power. The guaranty avoids this conflict by fixing the minimum weekly wage. This guaranty controls the weekly wage up to 54% hours of work, the number of hours contracted for by Belo without paying more than the fixed weekly wage. In a 54% hour week or less, the regular rate should be the guaranty divided by the hours actually worked.
It seems obvious that the guaranty was the heart of the arrangement. The effect of the contract in the illustrative case is to pay 73 cents an hour for work up to 54% hours and $1.00 (expressed in the circumlocution of time and a half 67 cents) for overtime beyond those hours, with a guaranty that there will be $40 worth of work each week. The “basic” hourly rate, the hours contracted for at the basic rate and the stated percentage paid for overtime may be varied without effect on earnings provided the guaranty and real overtime rate are kept fixed.2
The employee willing, the number of hours which must be worked to earn the guaranty can be increased by suitable adjustment of the contract figures of hourly rate, hours contracted and overtime percentages. By such a
3 An example will illustrate the lack of significance of the other numbers in the contract. Varying rates, hours and overtime percentages are substituted for those in the Belo contract quoted in the Court’s opinion. “In order to conform our employment arrangements to the scheme of the Act without reducing the amount of money which you receive each week, we advise that from and after October 24, 1938, your basic rate of pay will be [50] cents per hour for the first [29] hours each week, and that for time over [29] hours each week you will receive for each hour of work not less than [double] time such basic rate above mentioned, with a guaranty on our part that you shall receive weekly, for regular time and for such overtime as the necessities of the business may demand, a sum not less than $40.00.”
29 hours X$.50=$14.50. 54.5 hours—29 hours=25.5 hours at $1.00 per hour—$25.50. Time plus overtime=$40.00. Thereafter the employee receives $1.00 per hour.
The same is true of a basic rate of $.60 for 36% hours and time and two-thirds thereafter, with a guaranty of $40.
WALLING v. BELO CORP.	639
624	Reed, J., dissenting.
verbal device, astute management may avoid many of the disadvantages of ordinary overtime, chief of which is a definite increase in the cost of labor as soon as the hours worked exceed the statutory workweek. If the intention of Congress is to require at least time and a half for overtime work beyond a fixed maximum number of hours (40, 42 or 44 hours), that intention is frustrated by today’s holding. Under Missel’s case, an employer who engages a worker for a fixed weekly wage of $40 for irregular hours and works him 54% hours a week in a year with a 44 hour maximum, owes $43.86. Under the Belo contract, the worker would receive $40. Because there is no increase of labor cost between the statutory maximum and the hours contracted for (54%), the employer has a financial inducement to require hours beyond the statutory maximum.
As pointed out above, this contract is not only an agreement to pay a fixed wage, $40.00, for variable hours up to 54%, but there is a provision for additional compensation for the hours over the contract maximum. Where the hours worked exceed the number necessary to entitle the employee to hourly pay under the contract, equal in the aggregate to the guaranty, the employee is entitled to receive his regular rate for the statutory maximum hours and 150% of that rate for all overtime. The contracts in most instances fixed the basic rate at one-sixtieth of the guaranty, but the effect of the guaranty, in our view, is to make the regular rate of employment for the precise number of hours necessary under the contract to earn the guaranty, the quotient of the guaranty divided by the hours.3 For
’Weekly guaranty—$40. Hours worked—54%. Straight hourly contract wage—$40-H)0=$.66%. Straight contract hours—44. 44X $.66% =$29.33%. Overtime hourly contract wage—$1.00. Overtime contract hours—10%. 10%X$l=$10.66%. Total contract wage paid—$40. Statutory regular rate—40-^54%=$.732 per hour. Statutory maximum hours—44. 44X$.732=$32.20. Statutory overtime
640	OCTOBER TERM, 1941.
Reed, J., dissenting.	316 U. S.
the surplus hours over 54% the same regular rate continues to be applicable.4
It is the guaranty which gives character to these contracts, which determines the amount to be received by the employee under its terms, except in the instances of work beyond 54% hours. It is only work beyond the 54% hours which calls for extra pay from the employer. Consequently it seems proper to find the regular rate of employment by using the guarantee as the dividend and the maximum hours possible without increased contract pay as the divisor. The objection that this permits statutory overtime pay to be computed on contract overtime pay springs from the wording of the contract making the guarantee cover overtime up to the 54% hours. This objection loses its force with the determination that the guaranty fixes the quality of the contract, rather than the so-called basic or hourly rate of pay.
The judgment of the Circuit Court of Appeals should be reversed and this action remanded to the District Court for further proceedings.
Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Murphy join in this dissent.
rate—$1,098. Statutory overtime hours== 10%. 10%X$1.098=$11.71. Total required compensation—$43.91.
* Hours worked—60. Statutory maximum hours—44. Regular rate—$.732. 44X$.732=$32.20. Statutory overtime hours—16. Overtime rate—$1,098. 16X$1.098=$17.57. Total required compensation—$49.77.
DECISIONS PER CURIAM, ETC., FROM MARCH 31, 1942, THROUGH JUNE 8, 1942.*
No. 1060. Duck v. Arkansas Corporation Commission. Appeal from the Supreme Court of Arkansas. April 6, 1942. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. California v. Thompson, 313 U. S. 109>; Olsen v. Nebraska, 313 U. S. 236. Mr. Edward H. Coulter for appellant. Mr. Jack Holt, Attorney General of Arkansas, for appellee. Reported below: 203 Ark. 488, 158 S. W. 2d 24.
No. 1067. Avent v. Mississippi Unemployment Compensation Commission et al. Appeal from the Supreme Court of Mississippi. April 6,1942. Per Curiam: The appeal is dismissed for want of a substantial federal question. Carmichael v. Southern Coal Co., 301U. S. 495, 510-13; Great A. & P. Co. v. Grosjean, 301U. S. 412; H. E. Butt Grocery Co. v. Sheppard, 311 U. S. 608; Helvering V. Clifford, 309 U. S. 331. Mr. Rufus Creekmore for appellant. Reported below: 4 So. 2d 296, 684.
No. —, original. Ex parte William Doster Noland. April 6, 1942. The motion for leave to file petition for writ of mandamus is denied.
No. 19. Phoenix Finance Corp. v. Iowa-Wisconsin Bridge Co. April 6, 1942. The motion of petitioner to
*For decisions on applications for certiorari, see post, pp. 651, 660; for rehearing, post, p. 706. For cases disposed of without consideration by the Court, post, p. 706.
641 461263°—43-41	,
642	OCTOBER TERM, 1941.
Decisions Per Curiam, Etc.	316U.S.
recall the mandate and retax costs is granted and it is ordered that the mandate be recalled and amended so as to give petitioner recovery for additional costs in the sum of $94.00.
No. 64. Hysler v. Florida. April 6,1942. The opinion of the Court is amended as follows: On page 8 of the slip opinion, strike out the first five sentences of the first paragraph.
The petition for rehearing is denied.
Opinion reported as amended, 315 U. S. 411.
No. 745. Schenectady Union Publishing Co. v. Sweeney. Certiorari, 314 U. S. 605, to the Circuit Court of Appeals for the Second Circuit. Argued March 31, April 1,1942. Decided April 13,1942. Per Curiam: The judgment is affirmed by an equally divided Court. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Morris L. Ernst, with whom Messrs. William A. Roberts, Benjamin Kaplan, and Edgar Turlington were on the brief, for petitioner. Mr. John O’Connor, with whom Mr. William F. Cusick was on the brief, for respondent. Briefs of amid curiae were filed by Mr. Edmund D. Campbell on behalf of the American Civil Liberties Union; by Messrs. Milton Handler, Henry H. Nordlinger, and David Sher on behalf of the American Jewish Committee et al.; and by Mr. Charles J. Tobin on behalf of the New York State Publishers Assn.,—urging reversal. Reported below: 122 F. 2d 288.
No. 1074. Moore, doing business as Moore Motor Freight Lines, v. United States et al. Appeal from the District Court of the United States for the District of Minnesota. April 13, 1942. Per Curiam: The mo-
OCTOBER TERM, 1941.	643
316U.S.	Decisions Per Curiam, Etc.
tion to affirm is granted and the judgment is affirmed. United States v. Maher, 307 U. S. 148, 153-154; United States v. Rosenblum Truck Lines, 315 U. S. 50; Lubetich n. United States, 315 U. S. 57. Messrs. Ernest A. Michel and Thomas Walsh for appellant. Solicitor General Fahy and Mr. Daniel W. Knowlton for respondents. Reported below : 41 F. Supp. 786.
No. —, original. Ex parte Martin Wohl et al. April 13,1942. The motion for leave to file petition for writ of prohibition is denied. The rule to show cause is discharged.
No. 238. United States v. State of New York; and
No. 251. State of New York United States. April 13, 1942. Ordered that the opinion in these cases be amended as follows: Strike from line 12 of page 7, the phrase “the sum of the assets available” and insert “the total of such claims.”
Opinion reported as amended, 315 U. S. 510.
No. 821. Aiken et al. v. Insull et al.; and
No. 822. DeMet’s, Incorporated, et al. v. Insull et al. April 13, 1942. The motion to grant relief requested in alternative motion filed March 13,1942, is denied. See 315 U. S. 806, 829.
No. 1083. C. J. Hendry Co. et al. v. Moore et al., as the Fish and Game Commission. Appeal from the Supreme Court of California. April 13, 1942. The appeal is dismissed for want of jurisdiction. Section 237 (a), Judicial Code, as amended, 28 U. S. C. § 344 (a). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by § 237 (c) of the Judicial Code as amended, 28 U. S. C. § 344 (c), certiorari is
644	OCTOBER TERM, 1941.
Decisions Per Curiam, Etc.	316 U. S.
granted. Mr. Arch E. Ekddle for appellants. Messrs. Earl Warren, Attorney General of California, and Everett W. Mattoon, Assistant Attorney General, for appellees. Reported below: 18 Cal. 2d 835, 118 P. 2d 1.
No. 1113. Viatoe v. State Tax Commission et al. Appeal from the Supreme Court of Mississippi. April 27, 1942. Per Curiam: The motion for leave to file amended statement as to jurisdiction is granted. The appeal is dismissed for the want of jurisdiction. Section 237 (a), Judicial Code, as amended, 28 U. S. C., § 344 (a). Treating the papers whereon the appeal was allowed as a petition for writ of certiorari as required by § 237 (c) of the Judicial Code, as amended, 28 U. S. C., § 344 (c), certiorari is denied. Mr. Albert Sidney Johnston, Jr. for appellant. Reported below: 5 So. 2d 487.
No. —, original. Ex parte Harold Glass ;
No. —, original. Ex parte Emmet H. Bozel; and
No. —, original. Ex parte James R. Blood. April 27, 1942. The motions for leave to file petitions for writs of habeas corpus are denied.
No. 910. A. B. Kirschbaum Co. v. Fleming, Administrator. April 28, 1942. L. Metcalfe Walling, present Administrator of the Wage and Hour Division, U. S. Dept, of Labor, substituted as the party respondent herein in the place and stead of Philip B. Fleming resigned.
No. 1042. Nailling v. United States. April 29, 1942. Order denying certiorari, post, p. 675, withheld until May 11th next on motion of Mr. L. E. Gwinn for the petitioner.
OCTOBER TERM, 1941.	645
316 U. S.	Decisions Per Curiam, Etc.
No. 815. State Tax Commission of Utah et al. v. Untermyer et al., Executors. On petition for writ of certiorari to the Supreme Court of Utah. May 4, 1942. Per Curiam: The petition for writ of certiorari is granted and the judgment is reversed on authority of State Tax Commission of Utah v. Aldrich, ante, p. 174. Messrs. Grover A. Giles, Attorney General of Utah, and J. Lambert Gibson for petitioners. Mr. Eugene Untermyer for respondents. Reported below: 116 P. 2d 926.
No. 1160. Board of Trustees of the Town of Ce-bolleta Land Grant v. L Bar Cattle Co., Inc. Appeal from the Supreme Court of New Mexico. May 4, 1942. Per Curiam: The appeal is dismissed for the want of jurisdiction. Section 237 (a), Judicial Code, as amended, 28 U. S. C., § 344 (a). Treating the papers whereon the appeal was allowed as an application for writ of certiorari as required by § 237 (c) of the Judicial Code, as amended, 28 U. S. C., § 344 (c), certiorari is denied. Mr. George S. Klock for appellant. Reported below: 46 N. M. 26, 120 P. 2d 432.
No. —, original. Ex parte John Weber. May 4, 1942. Application denied.
No. —, original. Ex parte Leo T. Schugsda; and
No. —, original. Ex parte Andrew Vialva. May 4, 1942. The motions for leave to file petitions for writs of habeas corpus are denied.
No. 5, original. Colorado v. Kansas et al. May 4, 1942. Honorable Charles C. Cavanah, a retired District Judge of the United States, of Boise, Idaho, is appointed Special Master in this cause.
646	OCTOBER TERM, 1941.
Decisions Per Curiam, Etc.	316 U. S.
No. 1154. Banque de France v. Supreme Court of the State of New York et al. Appeal from the Supreme Court of New York. May 25,1942. Per Curiam: The appeal is dismissed for the want of jurisdiction. Section 237 (a), Judicial Code, as amended, 28 U. S. C., § 344 (a). Treating the papers whereon the appeal was allowed as an application for writ of certiorari as required by § 237 (c) of the Judicial Code, as amended, 28 U. S. C., § 344 (c), certiorari is denied. The Chief Justice took no part in the consideration or decision of this case. Messrs. Frederic R. Coudert and Mahlon B. Doing for appellant. Messrs. John C. Bruton and John Foster Dulles for appellees. Reported below: 263 App. Div. 703, 287 N. Y. 483, 31 N. Y. S. 2d 660, 41 N. E. 2d 65.
No. 1202. Kramer v. Sheehy, Warden. Appeal from the Supreme Court of Nevada. May 25, 1942. Per Curiam: The Court has examined all the federal questions raised by appellant. It finds that the attack upon the validity of the state statute raises no substantial federal question (Wolfgang v. California, 270 U. S. 627, and cases cited), and that none of the other questions presented warrant further review. The motion to dismiss is therefore granted, and the appeal is dismissed for want of a substantial federal question. The motion for leave to proceed further in forma pauperis is denied. John A. Kramer, pro se. Messrs. Gray Mashburn, Attorney General of Nevada, and John W. Bonner for appellee. Reported below: 61 Nev. 174, 122 P. 2d 862.
No. 1212. Bohn v. Bohn. Appeal from the Supreme Court of Mississippi. May 25, 1942. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a federal question. Under Rule 30 (2), dam
OCTOBER TERM, 1941.	647
316 U. S.	Decisions Per Curiam, Etc.
ages of 10 percent of the amount of the judgment are awarded, it appearing that the appeal was frivolous and taken merely for delay. Mr. Hanun Gardner for appellant. Mr. Webb M. Mize for appellee. Reported below: 5 So. 2d 429.
No. —. Ex parte Bernard Bahlhorn;
No. —. Ex parte Nicholas Parsin; and
No. —. Errington v. Hudspeth, Warden. May 25, 1942. Applications denied.
No. —. Wetzel v. Schaefer. May 25, 1942. The petition for appeal is denied.
No. —, original. Ex parte George R. Busser;
No. —, original. Ex parte Alfred Bauer; and
No. —, original. Ex parte Cassius McDonald. May 25, 1942. The motions for leave to file petitions for writs of habeas corpus are denied.
No. 830. Seminole Nation v. United States. May 25,1942. Ordered that the opinion in this case be amended by adding at the end of the first full paragraph on page 4 the following: “The Government in this Court agrees to this proposition and suggests that the cause be remanded to the Court of Claims.”
Opinion reported as amended, ante, p. 310.
No. 1187. Sanford v. Hill, Sheriff. Appeal from the Court of Criminal Appeals of Texas. June 1, 1942. Per Curiam: The appeal is dismissed for want of a substantial federal question. Gorin v. United States, 312 U. S. 19, 27-28; Hotel & Restaurant Employees’ Interna-
648	OCTQBER TERM, 1941.
Decisions Per Curiam, Etc.	316 U. S.
tional Alliance v. Wisconsin Employment Relations Board, 315 U. S. 437. Mr. Sewall Myer for appellant. Reported below: 157 S. W. 2d 899.
No. 1239. Fifth Street Building v. McColgan, Franchise Tax Commissioner. Appeal from the Supreme Court of California. June 1, 1942. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for the want of jurisdiction. Section 237 (a), Judicial Code, as amended, 28 U. S. C., § 344 (a). Treating the papers whereon the appeal was allowed as an application for writ of certiorari as required by § 237 (c) of the Judicial Code, as amended, 28 U. S. C., § 344 (c), certiorari is denied. Mr. Clark J. Milliron for appellant. Messrs. Earl Warren, Attorney General of California, H. H. Linney and Valentine Brooks for appellee. Reported below: 19 Cal. 2d 143,119 P. 2d 729.
No. 1245. Toole et al. v. Michigan State Board of Dentistry et al. Appeal from the Supreme Court of Michigan. June 1, 1942. Per Curiam: The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question. Semler v. Dental Examiners, 294 U. S. 608, and cases cited. Mr. Edward N. Barnard for appellants. Messrs. Herbert J. Rushton, Attorney General of Michigan, and Wilbur M. Brucker, for appellees. Reported below: 300 Mich. 180, 1 N. W. 2d 502.
No. —. Baker v. Florida. June 1,1942. The application for a further stay is denied.
No. —, original. Ex parte Odell Waller. June 1, 1942. The motion for leave to file petition for writ of habeas corpus is denied.
OCTOBER TERM, 1941.	649
316 U. S.	Decisions Per Curiam, Etc.
No. 595. Swift & Company et al. v. United States et al. June 1, 1942. Ordered that the opinion of this Court in this case be amended by striking from the eighth line of the second full paragraph on page 10 of the pamphlet print the word “use” and inserting in lieu thereof the words “establish or become interested in”. The petition for rehearing is denied.
Opinion reported as amended, ante, p. 216.
No. 1046. Mueller v. Mueller et al. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit dismissed for failure to comply with the rules. Mr. Edward H. Coulter for petitioner. Reported below: 124 F. 2d 544.
No. 280. Jones v. City of Opelika. Certiorari, 314 U. S. 593, to the Supreme Court of Alabama. June 8, 1942. The petition for rehearing is granted, and the judgment entered February 9, 1942, 315 U. S. 782, is vacated. See ante, p. 584.
No. 315. United States ex rel. Robinson v. Johnston, Warden. On petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit. June 8, 1942. Per Curiam: The motion for leave to file a second petition for rehearing is granted. The second petition for rehearing is granted. The order denying certiorari, 314 U. S. 675, is vacated, and the petition for writ of certiorari is granted. The motion for leave to proceed in forma pauperis is also granted. In view of the conflict of views which has arisen among the judges of the Ninth Circuit with respect to the decision in this case (see Robinson v. Johnston, 118 F. 2d 998, 1001, and Crockett v. United States, 125 F. 2d 547, 548,549), and in view of this Court’s decision in Waley v. Johnston, ante, p. 101, re
650	OCTOBER TERM, 1941.
Decisions Per Curiam, Etc.	316 U. S.
versing 124 F. 2d 587, the judgment is vacated, and the case is remanded to the Circuit Court of Appeals for further proceedings, including leave to petitioner to apply for a hearing before the court en banc. See Textile Mills Corp. v. Commissioner, 314 U. S. 326. Thomas Henry Robinson, Jr., pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. W. Marvin Smith for respondent. Reported below: 118 F. 2d 998.
No. —. Wold v. Industrial Accident Commission of California et al. June 8, 1942. Application denied.
No. —. Ryan et al. v. Pennsylvania Public Utility Commission. June 8, 1942. The application for a stay is denied.
No. —, original. Ex parte Louis Buball. June 8, 1942. The motion for leave to file petition for writ of certiorari is denied.
No. —, original. Ex parte John St. Francis Slaughter. June 8, 1942. The motion for leave to file petition for writ of habeas corpus is denied.
No. 12, original. Ex parte Kumezo Kawato. June 8, 1942. The motion for leave to proceed on typewritten papers is granted. The motion for leave to file a petition for writ of mandamus is granted. The application is assigned for argument on Monday, October 12, next. The Solicitor General is requested to file a brief and, if he so desires, to participate in the oral argument. Kumezo Kawato, pro se.
OCTOBER TERM, 1941.	651
316 U. S.	Decisions Granting Certiorari.
No. 348. Seminole Nation v. United States. June 8, 1942. Ordered that the opinion of this Court in this case be amended by adding after the first full paragraph on page 16 of the opinion the following paragraph:
“Upon the remand the Court of Claims will be free to consider any legal or equitable defenses which the Government may interpose to the claims asserted there by petitioner.”
The petition for rehearing is denied. Mr. Justice Reed took no part in the consideration or decision of this application.
Opinion reported as amended, ante, p. 286.
DECISIONS GRANTING CERTIORARI, FROM MARCH 31, 1942, THROUGH JUNE 8, 1942.
No. 852. Anderson et al. v. United States. April 6, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Messrs. W. H. Norvell and Lee Pressman for petitioners. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Oscar A. Provost and Archibald Cox for the United States. Briefs of amici curiae were filed by Mr. Abraham J. Isserman on behalf of the National Federation for Constitutional Liberties, and by Mr. Arthur Garfield Hays on behalf of the American Civil Liberties Union, in support of petitioners. Reported below: 124 F. 2d 58.
No. 1016. Helvering, Commissioner of Internal Revenue, v. Ohio Leather Co. ;
No. 1017. Helvering, Commissioner of Internal Revenue, v. Strong Manufacturing Co. ; and
No. 1018. Helvering, Commissioner of Internal Revenue, v. Warren Tool Co. April 6, 1942. Petition
652	OCTOBER TERM, 1941.
Decisions Granting Certiorari.	316 U. S.
for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Solicitor General Fahy for petitioner. Messrs. Donald J. Lynn and Raymond T. Jackson for respondents in Nos. 1016 and 1018. Messrs. Arthur Morgan and Raymond S. Powers for respondent in No. 1017. Reported below: 124 F. 2d 360, 397.
No. 1029. Sola Electric Co. v. Jefferson Electric Co. April 6, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Counsel are requested to discuss in their briefs and on the argument of this case (1) whether federal or state law applies, and (2) in the event that state law is held to govern, what the applicable state law is. Messrs. Leslie W. Fricke, J. Bernhard Thiess, and Sidney Neuman for petitioner. Mr. Thomas H. Sheridan for respondent. Reported below: 125 F. 2d 322.
No. 973. United States ex rel. Coy v. United States et al. April 13, 1942. The motion for leave to proceed in forma pauperis is granted. The petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit is also granted. Counsel are requested to discuss whether the time for appeal to the Circuit Court of Appeals and for petition for certiorari to this Court are governed by the Rules in Criminal Cases, and, if not, what statute applies. Messrs. A. Shelby Winstead and James E. Fahey for petitioner. Solicitor General Fahy and Assistant Attorney General Berge for respondents. Reported below: 124 F. 2d 1019.
No. 1083. C. J. Hendry Co. et al. v. Moore et al. See ante, p. 643.
OCTOBER TERM, 1941.	653
316 U. S.	Decisions Granting Certiorari.
No. 982. United States v. Rice et al., Receivers. April 13,1942. Petition for writ of certiorari to the Court of Claims granted. Solicitor General Fahy for the United States. Messrs. Frederic D. McKenney, John S. Flannery, G. Bowdoin Craighill, and R. Aubrey Bogley for respondents. Reported below: 95 Ct. Cis. 84.
No. 619. Query et al., constituting the South Carolina Tax Commission, v. United States et al. April 14, 1942. The order denying certiorari, 314 U. S. 685, is vacated. The petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit is granted. Messrs. John M. Daniel and Claude K. Wingate for petitioners. Solicitor General Fahy for respondents. Reported below: 121 F. 2d 631.
No. 1027. Braverman v. United States; and
No. 1028. Wainer v. United States. April 14,1942. Petition for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Mr. James J. Magner for petitioner in No. 1027. Mr. John E. Dougherty for petitioner in No. 1028. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. W. Marvin Smith for the United States. Reported below: 125 F. 2d 283.
No. 1006. Waley v. Johnston, Warden. See ante, p. 101.
No. 974. Ward v. Texas. April 27, 1942. The motion for leave to proceed in forma pauperis is granted. The petition for writ of certiorari to the Court of Criminal Appeals of Texas is granted. Messrs. J. M. Burford and Leon A. Ransom for petitioner. Reported below: 158 S. W. 2d 516.
654	OCTOBER TERM, 1941.
Decisions Granting Certiorari.	316 U. S.
No. 1059. Pyle v. Kansas et al. April 27,1942. The motion for leave to proceed in jorma pauperis is granted. The petition for writ of certiorari to the Supreme Court of Kansas is also granted. Harry Pyle, pro se.
No. 1054. Helvering, Commissioner of Internal Revenue, v. Stuart. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Solicitor General Fahy for petitioner. Messrs. George I. Haight, William D. McKenzie, and Herbert Pope for respondent. Reported below: 124 F. 2d 772.
No. 1055. Helvering, Commissioner of Internal Revenue, v. Stuart. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Solicitor General Fahy for petitioner. Messrs. George I. Haight, William D. McKenzie, and Herbert Pope for respondent. Reported below: 124 F. 2d 772.
No. 819. Ecker et al. v. Western Pacific Railroad Corp, et al. ;
No. 820. Crocker First National Bank et al. v. Western Pacific Railroad Corp, et al.;
No. 885. Western Pacific Railroad Co. v. Ecker et al.;
No. 989. Reconstruction Finance Corporation v. Western Pacific Railroad Corp, et al. ; and
No. 1086. Irving Trust Co., Trustee, v. Crocker First National Bank et al. April 27, 1942. Petitions for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Messrs. Robert T. Swaine and Herbert W. Clark for petitioners in No. 819. Messrs.
OCTOBER TERM, 1941.	655
316 U. S.	Decisions Granting Certiorari.
Orville W. Wood and Arthur A. Gammell for petitioners in No. 820. Mr. Frank C. Nicodemus, Jr. for petitioner in No. 885. Solicitor General Fahy for petitioner in No. 989. Messrs. Harold C. McCollom and Orrin G. Judd for petitioner in No. 1086. Messrs. Edward G. Buckland and William J. Kane for the Railroad Credit Corporation; Mr. Robert E. Coulson for A. C. Janies Co.; and Mr. M. C. Sloss for the Western Pacific Railroad Corporation, respondents in Nos. 819, 820, 885, and 989. Solicitor General Fahy and Mr. Daniel W. Knowlton filed a memorandum on behalf of the Interstate Commerce Commission, as amicus curiae, in Nos. 819,820, and 989, urging grant of the writs. Reported below: 124 F. 2d 136.
No. 1076. Guy v. Missouri Pacific Railroad Co. et al. April 27, 1942. Petition for writ of certiorari to the Supreme Court of Arkansas granted. Messrs. Jonathan H. Lookadoo and Wm. J. Kirby for petitioner. Mr. Pat Mahaffy for respondents. Reported below: 203 Ark. 166, 157 S. W. 2d 11.
No. 1169. Adams, Warden, et al. v. United States ex rel. McCann. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Solicitor General Fahy for petitioners. Gene McCann, pro se. Reported below: 126 F. 2d 774.
No. 1119. Hill v. Texas. On petition for writ of certiorari to the Court of Criminal Appeals of Texas. April 30, 1942. The motion for leave to proceed in forma pauperis is granted. The petition for writ of certiorari is also granted. Execution of the judgment of Criminal District Court No. 2, Dallas County, Texas, is stayed pending the final disposition of the case by this Court.
656	OCTOBER TERM, 1941.
Decisions Granting Certiorari.	316 U. S.
Mr. J. Forrest McCutcheon for petitioner. Reported below: 157 S. W. 2d 369.
No. 815. State Tax Commission of Utah et al. v. Untermyer et al., Executors. See ante, p. 645.
No. 1107. Garrett v. Moore-McCormack Co., Inc., et al. May 11,1942. The motion for leave to proceed in forma pauperis is granted. The petition for writ of certiorari to the Supreme Court of Pennsylvania is granted. Mr. Abraham E. Freedman for petitioner. Mr. Rowland
C.	Evans, Jr. for respondents. Reported below: 344 Pa. 69, 23 A. 2d 503.
No. 894. Helvering, Commissioner of Internal Revenue, v. Sprouse. May 11, 1942. The order denying certiorari, 315 U. S. 810, is vacated. The petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit is granted. Solicitor General Fahy for petitioner. Reported below: 122 F. 2d 973.
No. 1094. United States v. Callahan Walker Construction Co. May 11, 1942. Petition for writ of certiorari to the Court of Claims granted. Solicitor General Fahy for the United States. Mr. Robert A. Littleton for respondent. Reported below: 95 Ct. Cis. 314.
No. 1100. Strassburger v. Commissioner of Internal Revenue. May 11, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Leo Brady for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewdll Key and Morton K. Rothschild for respondent. Reported below: 124 F. 2d 315.
OCTOBER TERM, 1941.	657
316 U. S.	Decisions Granting Certiorari.
No. 1130. United Carbon Co. et al. v. Binney & Smith Co. May 11,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit granted. Messrs. Hugh M. Morris, George P. Dike, and Osman E. Swartz for petitioners. Messrs. Dean S. Edmonds and William H. Davis for respondent. Reported below: 126 F. 2d 3.
No. 1137. National Labor Relations Board v. Indiana & Michigan Electric Co. et al. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Solicitor General Fahy and Mr. Robert B. Watts for petitioner. Messrs. Murray Seasongood and Lester A. Jaffe for respondents. Reported below: 124 F. 2d 50.
No. 1138. Mangus et al. v. Miller. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals foif the Tenth Circuit granted. Mr. J. D. Skeen for petitioners. Mr. Hadlond P. Thomas for respondent. Reported below: 125 F. 2d 507.
No. 1211. Davis v. Department of Labor and Industries. May 25, 1942. Petition for writ of certiorari to the Supreme Court of the State of Washington granted. Messrs. Maurice R. McMicken, Otto B. Rupp and Alfred J. Schweppe for petitioner. Messrs. Smith Troy, Attorney General of the State of Washington, and T. H. Little, Assistant Attorney General, for respondent. Reported below: 121 P. 2d 365.
No. 1166. United States v. Miller et al. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Solicitor Gen-461263°—43-------42
658	OCTOBER TERM, 1941.
Decisions Granting Certiorari.	316 U. S.
eral Fahy for petitioner. Mr. Francis Carr for respondents. Reported below: 125 F. 2d 75.
No. 315. United States ex rel. Robinson v. Johnston, Warden. See ante, p. 649.
No. 1194. Fisher, Receiver, v.	Executrix,
et al. See post, 707.
No. 949. McNabb et al. v. United States. June 8, 1942. The motion for leave to proceed in forma pauperis is granted. The petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit is granted. The Court directs that the expense of printing the record be paid by the United States, pursuant to 28 U. S. C., § 832. Benjamin McNabb, Freeman McNabb and Raymond McNabb, pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Oscar A. Provost and W. Marvin Smith for the United States. Reported below: 123 F. 2d 848.
No. 1163. Miller v. United States. June 8, 1942. The motion for leave to proceed in forma pauperis is granted. The petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit is granted. The Court directs that the expense of printing the record be paid by the United States, pursuant to 28 U. S. C., § 832. Jessie William Miller, pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for the United States. Reported below: 126 F. 2d 462.
No. 1252. Higgins v. Carr Brothers Co. June 8, 1942. The motion for leave to proceed in forma pauperis is granted. The petition for writ of certiorari to the Su-
OCTOBER TERM, 1941.	659
316 U. S.	Decisions Granting Certiorari.
preme Judicial Court of Maine is granted. In view of the Act of August 24, 1937 (28 U. S. C., §401), the Court hereby certifies to the Attorney General of the United States that the constitutionality of the Fair Labor Standards Act is drawn in question in this case. Mr. Franz U. Burkett for petitioner. Reported below: 25 A. 2d 214.
No. 875. Group of Institutional Investors et al. v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co.;
No. 876. Group of Institutional Investors et al. v. Union Trust Co. et al. ;
No. 877. Group of Institutional Investors et al. v. Abrams et al.;
No. 878. Group of Institutional Investors et al. v. Orton et al.;
No. 879. Group of Institutional Investors et al. v. Guaranty Trust Co. of New York et al.;
No. 880. Group of Institutional Investors et al. v. Chicago, Terre Haute & Southeastern Ry. Co. et al. ;
No. 881. Group of Institutional Investors et al. v. United States Trust Co. of New York, Trustee;
No. 882. Group of Institutional Investors et al. v. Trustees of Princeton University et al. ;
No. 883. Group of Institutional Investors et al. v. Glines et al. ; and
No. 988. Reconstruction Finance Corporation v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. et al. June 8, 1942. Petitions for writs of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Messrs. Kenneth F. Burgess, Douglas F. Smith, and Fred N. Oliver for Group of Institutional Investors et al., petitioners in Nos. 875-883, and respondents in No. 988. Messrs. Edwin S. S. Sunderland, Thomas O’G. Fitz Gibbon, Meyer Abrams, Henry F. Tenney, Frank C. Nicodemus, Jr., W. F. Peter, Reese D. Alsop, Ernest S. Ballard,
660	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
William A. McSwain, Frederic Burnham, Frederick Secord, Charles Myers, Edwin H. Cassels, George L. Shearer, M’Cready Sykes, A. N. Whitlock, John B. Marsh, William
V.	Hodges, and Frederick J. Moses for respondents. Reported below: 124 F. 2d 754.
No. 887. Warren-Bradshaw Drilling Co. v. Hall, Agent, et al. June 8,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. Sam Clammer for petitioner. Reported below: 124 F. 2d 42.
No. 1249. Mother Lode Coalition Mines Co. v. Commissioner of Internal Revenue. June 8,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted, limited to the first question stated in the Government’s memorandum. Messrs. Paul E. Shorb and Charles A. H or sky for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key, Carlton Fox, and Archibald Cox for respondent. Reported below: 125 F. 2d 657.
DECISIONS DENYING CERTIORARI, FROM MARCH 31, 1942, THROUGH JUNE 8, 1942.
No. 11, original. Ex parte Forrest Holiday. April 6, 1942. The motion for leave to file petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit is granted. The motion for leave to proceed further in forma pauperis is denied for the reason that the Court, upon examination of the papers herein submitted, finds no ground upon which a writ of certiorari should be issued. The petition for writ of certiorari is therefore also denied. Forrest Holiday, pro se. Solicitor General Fahy and
OCTOBER TERM, 1941.	661
316 U. S.	Decisions Denying Certiorari.
Messrs. Oscar A. Provost and W. Marvin Smith for Johnston, Warden.
No. 1035. Pennsylvania ex rel. Busser v. Smith, Warden. On petition for writ of certiorari to the Supreme Court of Pennsylvania. April 6, 1942. The motion for leave to proceed further in forma pauperis is denied for the reason that the Court, upon examination of the papers herein submitted, finds that the application for writ of certiorari was not filed within the time provided by law. Section 8 (a), Act of February 13,1925 (43 Stat. 936,940). The petition for writ of certiorari is therefore also denied. George R. Busser, pro se.
No. 918. Gilmore v. United States. April 6, 1942. 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. Dewey Gilmore, pro se. Solicitor General Fahy and Assistant Attorney General Berge for the United States. Reported below: 124 F. 2d 537.
No. 925. Wells v. United States. April 6,1942. 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. Selvie Windfield Wells, pro se. Solicitor General Fahy and Assistant Attorney General Berge for the United States. Reported below: 124 F. 2d 334.
No. 984. Graham v. Amrine, Warden. April 6,1942. Petition for writ of certiorari to the Supreme Court of Kansas, and motion for leave to proceed further in forma pauperis, denied. Hayward Graham, pro se. Reported below: 154 Kan. 164, 117 P. 2d 583.
662	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. 8.
No. 986. Campeau v. Amrine, Warden. April 6,1942. Petition for writ of certiorari to the Supreme Court of Kansas, and motion for leave to proceed further in forma pauperis, denied Al Campeau, pro se.
No. 995. West v. Mahoney, Superintendent, Washington State Penitentiary. April 6,1942. Petition for writ of certiorari to the Superior Court, King County, State of Washington, and motion for leave to proceed further in forma pauperis, denied. Fred Hartzell West, pro se.
No. 955. Grant et al. v. South Carolina. April 6, 1942. Petition for writ of certiorari to the Supreme Court of South Carolina, and motion for leave to proceed further in forma pauperis, denied. Mr. Leon A. Ransom for petitioners. Mr. John M. Daniel, Attorney General of South Carolina, for respondent. Reported below: 199 S. C. 412, 19 S. E. 2d 638.
No. 985. Owens-Illinois Glass Co. v. National Labor Relations Board. April 6, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. The Chief Justice and Mr. Justice Roberts took no part in the consideration or decision of this application. Mr. Henry A. Middleton for petitioner. Solicitor General Fahy and Messrs. Robert B. Watts and Ernest A. Gross for respondent. Reported below: 123 F. 2d 670.
No. 940. Caribbean Embroidery Cooperative, Inc., et al. v. Fleming, Administrator of the Wage and Hour Division, U. S. Department of Labor. April 6,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. James R. Beverley for
OCTOBER TERM, 1941.	663
316 U. S.	Decisions Denying Certiorari.
petitioners. Solicitor General Fahy and Messrs. Warner W. Gardner and Irving J. Levy for respondent. Reported below: 123 F. 2d 749.
No. 945. Hartford Fire Insurance Co. v. Leit-hauser, Administrator. April 6, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Clarence G. Myers, Harold W. Fraser, and Ross W. Shumaker for petitioner. Mr. John F. Hunter for respondent. Reported below: 124 F. 2d 117.
No. 970. Great Southern Life Insurance Co. et al. v. Williams. April 6, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Clinton C. Small for petitioners. Mr. E. Byron Singleton for respondent. Reported below: 124 F. 2d 38.
No. 981. Randall v. Labaddie Bottoms River Protection District of Franklin County, Mo. April 6, 1942. Petition for writ of certiorari to the Supreme Court of Missouri denied. Messrs. J. Wesley McAfee and Louis H. Breuer for petitioner. Mr. Gustavus A. Buder, Jr. for respondent. Reported below: 348 Mo. 867, 156 S. W. 2d 713.
No. 987. Federal Power Commission v. Safe Harbor Water Power Corp. April 6,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Solicitor General Fahy and Mr. Richard J. Connor for petitioner. Messrs. Charles Markell and E. M. Sturtevant for respondent. Mr. Joseph Sherbow filed a brief on behalf of the Public Service Commission of Maryland, as amicus curiae, in support of petitioner. Reported below: 124 F. 2d 800.
664	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
No. 990. Hall v. United States. April 6, 1942. Petition for writ of certiorari to the Court of Claims denied. Mr. Robert Ash for petitioner. Solicitor General Fahy for the United States. Reported below: 95 Ct. Cis. 539, 43 F. Supp. 130.
No. 994. Fowler v. Pilson et al. April 6,1942. Petition for writ of certiorari to the Court of Appeals for the District of Columbia denied. Messrs. S. Wallace Dempsey and Bruce Fuller for petitioner. Mr. Arthur Hellen for respondents. Reported below: 123 F. 2d 918.
No. 996. Northern Mining Corp. v. Trunz. April 6,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Leon R. Jacobs for petitioner. Messrs. William A. Kirk, R. F. Gaines, and Nat Schmulowitz for respondent. Reported below: 124 F. 2d 14.
No. 998. Niles Fire Brick Co. v. National Labor Relations Board. April 6, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Paul Z. Hodge and George W. Secrest for petitioner. Solicitor General Fahy and Messrs. Robert B. Watts, Ernest A. Gross, and Morris P. Glushien for respondent. Reported below: 124 F. 2d 366.
No. 1007. Langroise, Executor, v. Cummings, Trustee. April 6,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. D. Worth Clark and William H. Langroise for petitioner. Messrs. Oliver 0. Haga and T. Pope Shepherd for respondent. Reported below: 123 F. 2d 969.
OCTOBER TERM, 1941.	665
316 U. S.	Decisions Denying Certiorari.
No. 1013. Parker et al. v. Illinois. April 6, 1942. Petition for writ of certiorari to the Supreme Court of Illinois denied. Mr. William Scott Stewart for petitioners. Reported below: 378 Ill. 461, 38 N. E. 2d 760.
No. 1014. Rayner v. United North & South Development Co. April 6, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. James D. Williamson for petitioner. Mr. H. Grady Chandler for respondent. Reported below: 124 F. 2d 512.
No. 1015. Eisenlord, Administrator, v. Ellis et al. April 6,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Bentley M. McMullin for petitioner. Mr. Harry A. Allen for respondents. Reported below: 125 F. 2d 127.
No. 1024. Tampax Incorporated et al. v. Personal Products Corp, et al. April 6, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. W. Brown Morton for petitioners. Mr. Stephen H. Philbin for respondents. Reported below: 123 F. 2d 722.
No. 1062. Morris v. Texas. April 13,1942. Petition for writ of certiorari to the Court of Criminal Appeals of Texas, and motion for leave to proceed further in forma pauperis, denied. McKinley Morris, pro se. Reported below: 158 S. W. 2d 812.
No. 1009. Bersia et al. v. United States. April 13, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Justice
666	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
Jackson took no part in the consideration and decision of this application. Messrs. Homer L. Loomis and Charles Ruzicka for petitioners. Solicitor General Fahy and As-sistant Attorney General Berge for the United States. Reported below: 124 F. 2d 310.
No. 1010. PlERACCINI ET AL. V. UNITED STATES. April 13, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Justice Jackson took no part in the consideration and decision of this application. Messrs. Homer L. Loomis and Charles Ruzicka for petitioners. Solicitor General Fahy and Assistant Attorney General Berge for the United States. Reported below: 124 F. 2d 310.
No. 1011. Schiaffino et al. v. United States. April 13, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Justice Jackson took no part in the consideration and decision of this application. Messrs. Homer L. Loomis and Charles Ruzicka for petitioners. Solicitor General Fahy and Assistant Attorney General Berge for the United States. Reported below: 124 F. 2d 310.
No. 1019. Bach et al., Executors, v. Rothensies, Collector of Internal Revenue. April 13, 1942. The motion to defer consideration of the petition for writ of certiorari is denied. The petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit is denied. Messrs. Henry S. Drinker and Frederick E. S. Morrison for petitioners. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and Samuel H. Levy for respondent. Reported below: 124 F. 2d 306.
OCTOBER TERM, 1941.	667
316U.S.	Decisions Denying Certiorari.
No. 961. Gerke et al. v. United States. April 13, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Samuel I. Kessler for petitioners. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for the United States. Reported below: 125 F. 2d 243.
No. 991. Edwin L. Wiegand Co. et al. v. Harold E. Trent Co. et al. April 13, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Hadley F. Freeman for petitioners. Messrs. Harvey Lechner and Edward H. Davis for respondents. Reported below: 122 F. 2d 920.
No. 993. Norristown Box Co. v. National Labor Relations Board. April 13, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. J. B. Hillegass and Wm. J. Moran, Jr. for petitioner. Solicitor General Fahy and Messrs. Robert L. Stern, Robert B. Watts, Ernest A. Gross, and Morris P. Glushien for respondent. Reported below: 124 F. 2d 429. 
No. 997. Coviello v. New York Central Railroad Co. April 13, 1942. Petition for writ of certiorari to the Court of Errors and Appeals of New Jersey denied. Mr. Edward A. Markley for petitioner. Mr. John A. Hartpence for respondent. Reported below: 127 N. J. L. 596, 23 A. 2d 385.
No. 1005. Bohnke et al. v. State of New York. April 13,1942. Petition for writ of certiorari to the Coi mty Court of Suffolk County, New York, denied. Mr. Hayden C. Covington for petitioners. Mr. John J. Bennett, Jr.,
668	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
Attorney General of New York, for respondent. Miss Dorothy Kenyon filed a brief on behalf of the American Civil Liberties Union, as amicus curiae, in support of the petitioners. Reported below: 175 Misc. 989, 27 N. Y. S. 2d 241,287 N. Y. 154, 38 N. E. 2d 478.
No. 1008. McDonald et al. v. Banta Carbona Irrigation District. April 13, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. W. Coburn Cook for petitioners. Mr. A. L. Cowell for respondent. Reported below: 123 F. 2d 968.	_________
No. 1022. Green v. McLaren, Major, United States Army. April 13, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Warren Eldreth Green, pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for respondent. Reported below: 123 F. 2d 862.
No. 1023. Milk & Ice Cream Drivers and Dairy Employees Union, Local No. 225, et al. v. Wisconsin Employment Relations Board et al. April 13, 1942. Petition for writ of certiorari to the Supreme Court of Wisconsin denied. Messrs. Joseph A. Padway and I. E. Goldberg for petitioners. Messrs. James Ward Rector, Deputy Attorney General of Wisconsin, and N. S. Boardman, Assistant Attorney General, for respondents. Reported below: 238 Wis. 379, 299 N. W. 31.
No. 1056. Chestnut Securities Co. v. Oklahoma Tax Commission. April 13, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Mr. Richard B. McDermott for petitioner.
OCTOBER TERM, 1941.	669
316 U. S.	Decisions Denying Certiorari.
Mr. F. M. Dudley for respondent. Reported below: 125 F. 2d 571.
No. 1113. Viator v. State Tax Commission et al. See ante, p. 644.
No. 926. Pickens v. United States. April 27, 1942. 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. Elmer Bently Pickens, pro se. Solicitor General Fahy and Assistant Attorney General Berge for the United States. Reported below: 123 F. 2d 333.
No. 1030. Tinkoff et al. v. Gold, Trustee, et al. April 27,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit, and motion for leave to proceed further in forma pauperis, denied. Ella H. Tinkoff and Paysofj Tinkoff, pro se. Mr. Robert Mack David for respondents. Reported below: 123 F. 2d 528.
No. 1032. McGrew v. Johnston, Warden. April 27, 1942. 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. Sam McGrew, pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for respondent. Reported below: 124 F. 2d 432.
No. 1053. Jones v. Brophy, Warden. April 27,1942. Petition for writ of certiorari to the County Court of Cayuga County, New York, and motion for leave to proceed further in forma pauperis, denied. Lemphis Jones, pro se. Reported below: 262 App. Div. 1063, 287 N. Y. 687, 30 N. Y. S. 2d 838, 39 N. E. 2d 299.
670	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
No. 1099. Meredith v. Amrine et al. April 27,1942. Petition for writ of certiorari to the Supreme Court of Kansas, and motion for leave to proceed further in forma pauperis, denied. Bert Meredith, pro se. Reported below: 155 Kan. 7, 122 P. 2d 759.
No. 960. Mosher v. Hudspeth, Warden. April 27, 1942. 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. John Mosher, pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Oscar A. Provost and Henry J. Fox for respondent. Reported below: 123 F. 2d 401.
No. 1043. McCleary v. Hudspeth, Warden. April 27, 1942. 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. Arthur R. McCleary, pro se. Solicitor General Fahy and Assistant Attorney General Berge for respondent. Reported below: 124 F. 2d 445.
No. 1061. Rodgers v. Martin, Warden. April 27, 1942. Petition for writ of certiorari to the Supreme Court of New York, and motion for leave to proceed further in forma pauperis, denied. Charles D. Rodgers, pro se. Reported below: 262 App. Div. 1057, 263 App. Div. 774, 30 N. Y. S. 2d 255,32 N. Y. S. 2d 374.
No. 1068. Illinois Northern Utilities Co. v. City of Geneseo et al. ; and
No. 1069. Central Illinois Electric & Gas Co. v. Village of Heyworth et al. April 27, 1942. Peti-
OCTOBER TERM, 1941.	671
316 U. S.	Decisions Denying Certiorari.
tion for writs of certiorari to the Supreme Court of Illinois denied. Mr. Justice Douglas took no part in the consideration and decision of this application. Messrs. David F. Taber and Claude A. Roth for petitioners. Messrs. Conrad H. Poppenhusen and Anan Raymond for respondents. Reported below: 378 Ill. 506, 39 N. E. 2d 26.
No. 1106. Refior v. Lansing Drop Forge Co. et al. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Justice Murphy took no part in the consideration and decision of this application. Mr. Arthur E. Fixel for petitioner. Messrs. Alva M. Cummins and Raymond K. Dykema for respondents. Reported below: 124 F. 2d 440.
No. 1021. Powell et al., Receivers, v. Maryland Trust Co., Successor Trustee; and
No. 1075. New York Trust Co., Surviving Trustee, v. Maryland Trust Co., Successor Trustee. April 27, 1942. Petitions for writs of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. W. R. C. Cocke and Harold J. Gallagher for petitioners in No. 1021. Messrs. George M. Lanning and Irwin L. Tappen for petitioner in No. 1075. Messrs. Edward Duffy and Carlyle Barton for respondent. Reported below: 125 F. 2d 260.
No. 1033. Dakota Tractor & Equipment Co. v. United States. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. W. H. Shure for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and Benjamin M. Brodsky for the United States. Reported below: 125 F. 2d 20.
672	OCTOBER TERM; 1941.
Decisions Denying Certiorari.	316 U. 8.
No. 1034. Marine v. Coe, Commissioner of Patents. April 27,1942. Petition for writ of certiorari to the Court of Appeals for the District of Columbia denied. Mr. Richard E. Marine, pro se. Solicitor General Fahy, Assistant Attorney General Shea, and Mr. Melvin H. Siegel for respondent. Reported below: 123 F. 2d 340.
No. 1037. Bridgeport City Trust Co. et al., Executors, v. Commissioner of Internal Revenue. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Charles B. McInnis for petitioners. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and Lee A. Jackson for respondent. Reported below: 124 F. 2d 48.
No. 1044. Farm Bureau Mutual Automobile Insurance Co. v. Violano, Administratrix, et al. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Guy M. Page for petitioner. Mr. Martin J. Roess, Jr. for respondents. Reported below: 123 F. 2d 692.
No. 1047. Associated Hospital Service Corp. v. Hassett, Former Acting Collector. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. John P. Carr for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Mr. Sewall Key for respondent. Reported below: 125 F. 2d 611.
No. 1049. Federal Deposit Insurance Corporation, Receiver, v. White et al. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the
OCTOBER TERM, 1941.	673
316 U. S.	Decisions Denying Certiorari.
Fourth Circuit denied. Messrs. Francis C. Brown, James M. Kane, and Tazewell Taylor for petitioner. Mr. Stewart K. Powell for respondents. Reported below: 124 F. 2d 429.
No. 1050. Coyle et al. v. S kirvin et al. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. W. H. Brown and James E. Anderson for petitioners. Messrs. Fred P. Branson and D. I. Johnston for respondents. Reported below: 124 F. 2d 934.
No. 1051. Johnson et al. v. Kersh Lake Drainage District et al. April 27, 1942. Petition for writ of certiorari to the Supreme Court of Arkansas denied. Messrs. Edward W. Brockman and Charles T. Coleman for petitioners. Messrs. A. H. Rowell, A. H. Rowell, Jr., J. W. Dickey, and A. F. House for respondents. Reported below: 157 S. W. 2d 39.
No. 1058. Midland Cooperative Wholesale, Inc. v. Ickes, Secretary of the Interior, et al. April 27,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Daniel C. Rogers for petitioner. Solicitor General Fahy and Messrs. Robert L. Stern, Nathan R. Margold, Arnold Levy, and Walter Freedman for respondents. Reported below: 125 F. 2d 618.
No. 1066. Massachusetts Bonding & Insurance Co. v. Massey et al. April 27,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Wm. N. Bonner for petitioner. Mr. J. C. Darroch for respondents. Reported below: 123 F. 2d 447.
461263°—43--43
674	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
No. 983. Hankins, Receiver, v. United States. April 27, 1942. Petition for writ of certiorari to the Supreme Court of Louisiana denied. Mr. Frank J. Looney for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and Michael H. Cardozo, TV, for the United States. Reported below: 198 La. 999, 5 So. 2d 314.
No. 1038. United States v. American National Bank & Trust Co., Administrator. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Solicitor General Fahy and Messrs. Julius C. Martin, Wilbur C. Pickett, Fendall Marbury, and W. Marvin Smith for the United States. Messrs. Stephen A. Cross and Edward H. S. Martin for respondent. Reported below: 124 F. 2d 743.
No. 1039. United States v. Shepanek, Administratrix. April 27,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Solicitor General Fahy and Messrs. Julius C. Martin, Wilbur C. Pickett, Fendall Marbury, and W. Marvin Smith for the United States. Mr. Edward H. S. Martin for respondent. Reported below: 124 F. 2d 747.
No. 1090. United States v. Lawson, Administratrix, et al. April 27,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Solicitor General Fahy and Messrs. Julius C. Martin, Wilbur C. Pickett, Fendall Marbury, and W. Marvin Smith for the United States. Messrs. Blakey Helm, John C. Doo-lan, and Nelson Helm for respondent. Reported below: 124 F. 2d 1020.
OCTOBER TERM, 1941.	675
316 U. S.	Decisions Denying Certiorari.
No. 1041. Baskin v. United States. April 27, 1942. Petition for writ of certiorari to the Court of Claims denied. Mr. Marion W. Seabrook for petitioner. Solicitor General Fahy, Assistant Attorney General Shea, and Mr. Melvin H. Siegel for the United States. Reported below: 95 Ct. Cis. 455.
No. 1042. Nailling v. United States. April 27,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. L. E. Gwinn for petitioner. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. John Ford Baecher for the United States. Reported below: 124 F. 2d 431.
No. 1052. Hogue v. Duffy, Warden. April 27,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. J. Frank Hogue, pro se. Mr. Earl Warren, Attorney General of California, for respondent. Reported below: 124 F. 2d 864.
No. 1057. Inland Steel Co. v. Lebold et al. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Carl Meyer, Frederic Burnham, and Herbert A. Friedlich for petitioner. Messrs. Silas H. Strawn, Frank H. Towner, and Arthur D. Welton, Jr. for respondents. Reported below: 125 F. 2d 369.
No. 1077. Cassell v. Howard University. April 27, 1942. Petition for writ of certiorari to the Court of Appeals for the District of Columbia denied. Messrs. Charles S. Baker, Carroll L. Beedy, and Benjamin L. Tepper for petitioner. Mr. George E. C. Hayes for respondent. Reported below: 126 F. 2d 6.
676	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
No. 1078. National Electric Products Corp. v. Triangle Conduit & Cable Co., Inc. April 27, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Dean S. Edmonds for petitioner. Messrs. Samuel E. Darby, Jr., Louis D. Fletcher, and Floyd H. Crews for respondent. Reported below: 125 F. 2d 1008.
No. 1095. Pennsylvania Railroad Co. v. Miller. April 27,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Frederic D. McKenney, John S. Flannery, G. Bowdoin Craighill, R. Aubrey Bogley, and William F. Zearfaus for petitioner. Mr. J. P. Cox, Jr. for respondent. Reported below: 124 F. 2d 160.
No. 1160. Board of Trustees of the Town of Cebol-leta Land Grant v. L Bar Cattle Co., Inc. See ante, p. 645.	_________
No. 976. Continental Illinois National Bank & Trust Co., Conservator, v. United States. May 4, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. Warren E. Miller for petitioner. Solicitor General Fahy and Messrs. Julius C. Martin and Wilbur C. Pickett for the United States. Reported below: 123 F. 2d 1013.
No. 1031. Jones v. Kansas et al. May 4,1942. Petition for writ of certiorari to the Supreme Court of Kansas, and motion for leave to proceed further in forma pauperis, denied. Virdo Jones, pro se. Reported below: 154 Kan. 629, 121 P. 2d 263.
OCTOBER TERM, 1941.	677
316 U. S.	Decisions Denying Certiorari.
No. 1081. Price v. Johnston, Warden. May 4,1942. 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. Homer C. Price, pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Oscar A. Provost and Henry J. Fox for respondent. Reported below: 125 F. 2d 806.
No. 1108. Quinn, Administratrix, v. American Range Lines, Inc., et al. May 4,1942. Petition for writ of certiorari to the Supreme Court of Pennsylvania, and motion for leave to proceed further in forma pauperis, denied. Mr. Abraham E. Freedman for petitioner. Messrs. J. Harry LaBrum and James S. Benn, Jr. for respondents. Reported below: 344 Pa. 85, 23 A. 2d 487.
No. 1153. Bauer v. Martin, Warden. May 4, 1942. Petition for writ of certiorari to the Supreme Court of New York, and motion for leave to proceed further in forma pauperis, denied. Alfred Bauer, pro se. Reported below: 263 App. Div. 923,32N. Y. S. 2d 382.
No. 1102. Miller v. Duffy, Warden. May 4, 1942. 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. John Russell Miller, pro se. Reported below: 126 F. 2d 826.
No. 1103. Miller v. Duffy, Warden. May 4, 1942. Petition for writ of certiorari to the Supreme Court of California, and motion for leave to proceed further in forma pauperis, denied. John Russell Miller, pro se.
678	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
No. 1117. Harrington v. Martin, Warden. May 4, 1942. Petition for writ of certiorari to the Supreme Court of New York, and motion for leave to proceed further in forma pauperis, denied. James Harrington, pro se. Reported below: 263 App. Div. 922, 263 App. Div. 1025, 32 N. Y. S. 2d 406,34 N. Y. S. 2d 270.
No. 1129. Wetzel v. Schaefer, Trustee. May 4, 1942. 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. Ed Wetzel, pro se. Reported below: 124 F. 2d 308.
No. 1134. Copley v. Industrial Accident Commission et al. May 4, 1942. Petition for writ of certiorari to the Supreme Court of California, and motion for leave to proceed further in forma pauperis, denied. Mr. Wallace Shepard for petitioner. Messrs. Everett A. Corten and Franke J. Creede for respondents. Reported below: 19 Cal. 2d 287, 120 P. 2d 879.
No. 1149. Contardi v. Smith, Warden. May 4, 1942. Petition for writ of certiorari to the Supreme Court of Pennsylvania, and motion for leave to proceed further in forma pauperis, denied. Frank Contardi, pro se. Reported below: 344 Pa. 61,24 A. 2d 10.
No. 1079. Perlstein et al. v. United States. May 4,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Justice Murphy took no part in the consideration or decision of this application. Mr. Paul M. Salsburg for petitioners. Solicitor General Fahy, Assistant Attorney General Clark,
OCTOBER TERM, 1941.	679
316 U. S.	Decisions Denying Certiorari.
and Messrs. Sewall Key, Arnold Raum, and Ellis N. Slack for the United States. Reported below: 126 F. 2d 789.
No. 1097. Waller v. Youell, Superintendent. May 4, 1942. The motion for leave to proceed on the typewritten record is granted. The petition for writ of certiorari to the Supreme Court of Appeals of Virginia is denied. Messrs. John F. Finerty, Thomas H. Stone, and Morris Shapiro for petitioner. Mr. Abram P. Staples, Attorney General of Virginia, for respondent. Mr. Thur-good Marshall filed a brief on behalf of the American Civil Liberties Union, as amicus curiae, in support of petitioner. Reported below: 178 Va. 294,16 S. E. 2d 808.
No. 923. Phillips Pipe Line Co. v. United States. May 4, 1942. Petition for writ of certiorari to the Court of Claims denied. Messrs. Howard C. Westwood, H. D. Emery, Rayburn L. Foster, and Dwight Taylor for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Mr. Sewall Key for the United States. Reported below: 94 Ct. Cis. 462, 40 F. Supp. 981.
No. 1091. National Manufacture & Stores Corp. v. Allen, Collector of Internal Revenue. May 4, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. M. E. Kilpatric and Welborn B. Cody for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and Arthur A. Armstrong for respondent. Reported below: 125 F. 2d 239.
No. 1092. City of Oakland v. United States. May 4,1942. Petition for writ of certiorari to the Circuit Court
680	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
of Appeals for the Ninth Circuit denied. Messrs. Charles A. Beardsley and W. Reginald Jones for petitioner. Solicitor General Fahy and Assistant Attorney General Littell for the United States. Reported below: 124 F. 2d 959.
No. 1101. Neal v. Maryland. May 4,1942. Petition for writ of certiorari to the Court of Appeals of Maryland denied. Mr. Eldridge Hood Young for petitioner. Reported below: 180 Md. 279.
No. 709. Helvering, Commissioner of Internal Revenue v. Kay Manufacturing Corp. May 4,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Solicitor General Fahy for petitioner. Reported below: 122 F. 2d 443.
No. 1142. Goodale v. Campbell et al. May 11, 1942. Petition for writ of certiorari to the Supreme Court of Michigan, and motion for leave to proceed further in forma pauperis, denied. Hazel Frances Goodale, pro se. Mr. Harry C. Howard for respondents.
No. 1111. PlGNATELLI V. UNITED STATES. May 11, 1942. The motion to proceed on typewritten papers is granted. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Emmet L. Holbrook for petitioner. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for the United States. Reported below: 125 F. 2d 643.
No. 1116. United States ex rel. McDermott v. Jaeger, U. S. Marshal. May 11,1942. Petition for writ
OCTOBER TERM, 1941.	681
316 U. S.	Decisions Denying Certiorari.
of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Justice Jackson took no part in the consideration or decision of this application. Mr. Homer L. Loomis for petitioner. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Oscar A. Provost and W. Marvin Smith for respondent. Reported below: 126 F. 2d 1002.
No. 1082. Weathers v. United States. May 11,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Philip Donald DeHoff for petitioner. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. John Ford Baecher for the United States. Reported below: 126 F. 2d 118.
No. 1104. Milburn v. Martha Heald; and
No. 1105. Milburn v. Orland Heald. May 11,1942. Petition for writs of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Barnabas F. Sears for petitioner. Mr. Joseph D. Ryan for respondents. Reported below: 125 F. 2d 8.
No. 1109. Montgomery v. United States. May 11, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Jacob Weinstein for petitioner. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Oscar A. Provost and Henry J. Fox for the United States. Reported below: 126 F. 2d 151.
No. 1110. Huffman v. Home Owners’ Loan Corporation. May 11,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Price Wickersham, William S. Hogsett, and Hale
682	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
Houts for petitioner. Solicitor General Fahy, Assistant Attorney General Shea, and Messrs. Melvin H. Siegel and Oscar H. Davis for respondent. Reported below: 124 F. 2d 684.
No. 1114. Gulf Refining Co. v. Mark C. Walker & Son Co. et al. ; and
No. 1115. Gulf Refining Co. v. Charles Weaver & Co., Inc. May 11,1942. Petition for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. J. W. Canada for petitioner. Mr. Wm. M. Hall for Mark C. Walker & Son Co. et al., respondents in No. 1114, and for respondent in No. 1115; and Mr. J. A. Osoinach for Shelby County, respondent in No. 1114. Reported below: 124 F. 2d 420.
No. 1131. Ryan v. Cross et al. May 11,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Herman L. Ekern, Herbert H. Naujoks, and David S. Lansden for petitioner. Reported below: 124 F. 2d 883.
No. 1135. Andrews et al. v. Equitable Life Assurance Society et al. May 11, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. David H. Caplow and Sol Andrews for petitioners. Messrs. Frederic Burnham, Miles G. Seeley, Edward R. Johnston, Walter H. Eckert, Owen Rail, and Arthur M. Cox for respondents. Reported below: 124 F. 2d 788.
No. 1136. Addressograph-Multigraph Corp. v. American Expansion Bolt & Manufacturing Co. May 11,
OCTOBER TERM, 1941.	683
316 U. 8.	Decisions Denying Certiorari.
1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Philip M. Aitken for petitioner. Mr. Samuel W. Banning for respondent. Reported below: 124 F. 2d 706.
No. 1144. McCoach, Trustee, v. Griffin, Administrator. May 11, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Carl B. Callaway for petitioner. Mr. Jos. W. Bailey, Jr., for respondent. Reported below: 123 F. 2d 550.
No. 1154. Banque de France v. Supreme Court of the State of New York et al. See ante, p. 646.
No. 914. Casebeer v. Hudspeth, Warden. May 25, 1942. 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. Edward Casebeer, pro se. Solicitor General Fahy and Assistant Attorney General Berge for respondent. Reported below: 121 F. 2d 914.
No. 1215. Price v. National Surety Corp. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit, and motion for leave to proceed further in forma pauperis, denied. Homer C. Price, pro se. Reported below: 127 F. 2d 726.
No. 1224. Ward v. State of New York. May 25, 1942. Petition for writ of certiorari to the Supreme Court of New York, and motion for leave to proceed further in forma pauperis, denied. Theophilus Ward, pro se.
684	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
No. 1227. Campeau v. Amrine, Warden. May 25, 1942. Petition for writ of certiorari to the Supreme Court of Kansas, and motion for leave to proceed further in forma pauperis, denied. Al Campeau, pro se.
No. 1098. Cottrell v. Sanford, Warden. May 25, 1942. 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. Augustus H. Cottrell, pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Oscar A. Provost and W. Marvin Smith for respondent. Reported below: 123 F. 2d 75.
No. 1177. Moyer v. Hines, Administrator of Veterans’ Affairs. May 25, 1942. 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. Mr. Thomas H. Sutherland for petitioner. Solicitor General Fahy, Assistant Attorney General Shea, and Mr. Paul A. Sweeney for respondent.
No. 1230. Weidhaas v. Loew’s, Inc., et al. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit, and motion for leave to proceed further in forma pauperis, denied. Francis E. Weidhaas, pro se. Messrs. Samuel E. Darby, Jr., Samuel
D.	Cohen, and Walter A. Darby for respondents. Reported below: 125 F. 2d 544.
No. 1253. Rozea v. State of New York. May 25, 1942. Petition for writ of certiorari to the Supreme Court of New York, and motion for leave to proceed further in forma pauperis, denied. Charles Edward Rozea, pro se. Reported below: 262 App. Div. 778,28 N. Y. S. 2d 740.
OCTOBER TERM, 1941.	685
316 U. S.	Decisions Denying Certiorari.
No. 1132. Holley v. United States. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Justice Murphy took no part in the consideration or decision of this application. Mr. Paul B. Moody for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and Benjamin M. Brodsky for the United States. Reported below: 124 F. 2d 909.
No. 1145. Lemar et al. v. Kentenia Cumberland Corp, et al. May 25, 1942. The motion for leave to proceed on typewritten papers is granted. The petition for writ of certiorari to the Court of Appeals of Kentucky is denied. W. J. Lemar, pro se. Reported below: 288 Ky. 326,156 S. W. 2d 183.
No. 1156. Ross v. Commissioner of Internal Revenue. May 25, 1942. The motion to defer consideration of the application for writ of certiorari is denied. The petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit is denied. Mr. L. A. Luce for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key, Bernard Chertcoff, and Robert L. Stern for respondent. Reported below: 125 F. 2d 767.
No. 1229. Klaxon Company v. Stentor Electric Manufacturing Co. May 25, 1942. The motion to use the certified transcript in No. 741, October Term, 1940, and to dispense with the printing thereof is granted. The petition for writ of certiorari, to the Circuit Court of Appeals for the Third Circuit is denied. Mr. John Thomas Smith for petitioner. Messrs. E. Ennalls Berl, Murray C. Bernays, Henry Gale, and Abraham Friedman for respondent. Reported below: 125 F. 2d 820.
686	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
No. 1084. George R. Cooke Co. v. Maki. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Thomas H. Adams for petitioner. Reported below: 124 F. 2d 663.
No. 1093. Massengill v. Wilson, Administrator. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Fred H. Parr in for petitioner. Mr. Joseph K. Brown for respondent. Reported below: 124 F. 2d 666.
No. 1096. Nez Perce Tribe of Indians v. United States. May 25, 1942. Petition for writ of certiorari to the Court of Claims denied. Messrs. F. M. Goodwin, Lawrence Cake, C. C. Dill, and Ernest L. Wilkinson for petitioner. Solicitor General Fahy and Assistant Attorney General Littell for the United States. Reported below: 95 Ct. Cis. 1.
No. 1118. Steele v. North Carolina. May 25,1942. Petition for writ of certiorari to the Supreme Court of North Carolina denied. Mr. Julius C. Smith for petitioner. Messrs. Harry McMullan, Attorney General of North Carolina, and T. W. Bruton, Assistant Attorney General, for respondent. Reported below: 220 N. C. 685, 18S.E. 2d 132.
No. 1120. Maggio et al. v. United States. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Harold Simandl for petitioners. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Oscar A. Provost and Henry J. Fox for the United States. Reported below: 126 F. 2d 155.
OCTOBER TERM, 1941.	687
316 U. S.	Decisions Denying Certiorari.
No. 1123. Evergreen Farms Co. v. Willacy County Water Control & Improvement District No. 1. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. D. F. Strickland for petitioner. Messrs. John D. McCaJl and Sawnie B. Smith for respondent. Reported below: 124 F. 2dl.
No. 1124. Miller et al. v. United States. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. Haveth
E.	Mau and Robert Houston French for petitioners. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Oscar A. Provost and W. Marvin Smith for the United States. Reported below: 125 F. 2d 517.
No. 1126. Heflin et al. v. United States. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. P. H. Odom for petitioners. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for the United States. Reported below: 125 F. 2d 700.
No. 1139. First National Bank, Executor, et al. v. Minnesota Mines, Inc. May 25, 1942. Petition for writ of certiorari to the Supreme Court of Colorado denied. Mr. Irving B. Melville for petitioners. Reported below: 109 Colo. 6, 121 P. 2d 488.
No. 1143. Franham Distributors, Inc. v. New York World’s Fair 1939 Inc. et al. May 25,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Alexander Pfeiffer for petitioner. Mr. George DeForest Lord for the New York
688	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
World’s Fair 1939 Inc., and Messrs. Lowell Wadmond and Edward D. Robbins for Swift & Co., respondents. Reported below: 124 F. 2d 82.
No. 1146. Davenport Hosiery Mills et al. v. Fisher, Receiver. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Vaughn Miller for petitioners. Mr. Phil B. Whitaker for respondent. Reported below: 124 F. 2d 1018.
No. 1147. Rath et al. v. Crosby. May 25,1942. Petition for writ of certiorari to the Supreme Court of Ohio denied. Messrs. Joseph A. Padway and James A. Glenn for petitioners. Messrs. Welles K. Stanley and Harry E. Smoyer for respondent. Reported below: 139 Ohio St. 151, 38 N. E. 2d 392.
No. 1148. Occidental Life Insurance Co. v. Eiler. May 25,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. James C. Jones and James C. Jones, Jr. for petitioner. Mr. John V. Lee for respondent. Reported below: 126 F. 2d 429.
No. 1151. Warren, Administratrix, v. Haines, Trading as Annadale Creamery Co. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Richard J. Mackey for petitioner. Mr. Isidor Kalisch for respondent. Reported below: 126 F. 2d 160.
No. 1157. Helton, Administrator, v. Thompson, Trustee. May 25, 1942. Petition for writ of certiorari to the Appellate Court, First Division, of Illinois denied.
OCTOBER TERM, 1941.	689
316 U. S.	Decisions Denying Certiorari.
Mr. Charles C. Spencer for petitioner. Mr. William T. Fancy for respondent. Reported below: 311 Ill. App. 354, 36 N. E. 2d 267.
No. 1159. Wyoming v. Yellowstone Park Co. May 25, 1942. Petition for writ of Certiorari to the Supreme Court of Wyoming denied. Mr. Ewing T. Kerr, Attorney General of Wyoming, for petitioner. Mr. Taylor B. Weir for respondent. Reported below: 57 Wyo. 502, 121 P. 2d 170.
No. 1161. Helvering, Commissioner of Internal Revenue, v. Maytag, Alternate Executor; and
No. 1162. Helvering, Commissioner of Internal Revenue, v. Maytag et al., Executors. May 25, 1942. Petition for writs of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Solicitor General Fahy for petitioner. Messrs. R. L. Read and J. G. Gamble for respondents. Reported below: 125 F. 2d 55.
No. 1182. Rosenbaum v. Brown. May 25,1942. Petition for writ of certiorari to the Supreme Court of New York denied. Mr. Charles H. Tuttle for petitioner. Messrs. Alfred A. Cook, Kenneth E. Wdlser, and Henry Cohen for respondent. Reported below: 175 Misc. 295, 262 App. Div. 136, 287 N. Y. 510, 23 N. Y. S. 2d 161, 28 N. Y. S. 2d 345,41 N. E. 2d 77.
No. 1141. Berry et al. v. Bohn Aluminum & Brass Corp, et al. May 25,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. John H. Sutherland and John H. Bruninga for petitioners. Messrs. Arthur C. Denison and Frank J. Kent for respondents. Reported below: 124 F. 2d 865.
461263°—43-44
690	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
No. 1150. Manley Oil Corp, et al. v. Shell Oil Co., Inc. May 25,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Frank E. Trobaugh, Thomas J. Layman, and William B. Johnson for petitioners. Messrs. Craig Van Meter and Fred H. Kelly for respondent. Reported below: 124 F. 2d 714.
No. 1155. Estate of Hull et al. v. Commissioner of Internal Revenue. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Aaron Frank for petitioners. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and Arthur A. Armstrong for respondent. Reported below: 124 F. 2d 503.
No. 1158. Glover v. United States. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Roy V. Harris and W. Paul Carpenter for petitioner. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for the United States. Reported below: 125 F. 2d 291.
No. 1164. Garner v. Alexander. May 25,1942. Petition for writ of certiorari to the Supreme Court of Oregon denied. Mr. Joseph A. Roney for petitioner. Messrs. I. H. Van Winkle, Attorney General of Oregon, and Willis S. Moore, Assistant Attorney General, for respondent. Reported below: 167 Ore. 670,120 P. 2d 238.
No. 1167. Moody et al. v. Toole County Irrigation District. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit de
OCTOBER TERM, 1941.	691
316 U. S.	Decisions Denying Certiorari.
nied. Mr. W. Cobum Cook for petitioners. Mr. Louis P. Donovan for respondent. Reported below: 125 F. 2d 498.
No. 1174. Scott, State Engineer, et al. v. United States et al. May 25,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Messrs. Walter R. Johnson, Attorney General of Nebraska, and Paul F. Good for petitioners. Solicitor General Fahy and Assistant Attorney General Littell for respondents. Reported below: 124 F. 2d 850.
No. 1175. Gamboa, Rodríguez, Rivera & Co., Inc. v. Imperial Sugar Co. May 25, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Alfred C. B. McNevin and Arnold W. Knauth for petitioner. Mr. John P. Bullington for respondent. Reported below: 125 F. 2d 970.
No. 1179. Community Natural Gas Co. v. Ravell. May 25,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. J. Hart Willis for petitioner. Reported below: 125 F. 2d 913.
No. 1194. Fisher, Receiver, v. Whiton, Executrix. May 25,1942. Petition for writ of certiorari to the Court of Appeals of Tennessee denied. Messrs. S. Bartow Strang, George P. Barse, Lee Roy Stover, and Miss Harriet Buckingham for petitioner. Mr. C. A. Noone for respondents. Reported below: 155 S. W. 2d 882.
No. 1213. Ammond v. Pennsylvania Railroad Co. et al. May 25, 1942. Petition for writ of certiorari to
692	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
the Circuit Court of Appeals for the Sixth Circuit denied. Mr. E. L. Mills for petitioner. Messrs. Clan Crawford and Russell J. Burt for respondents. Reported below: 125 F. 2d 747.
No. 1239. Fifth Street Building v. McColgan, Franchise Tax Commissioner. See ante, p. 648.
No. 1208. Hastings v. Hudspeth, Warden. June 1, 1942. 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. Andrew R. Hastings, pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for respondent. Reported below: 126 F. 2d 194.
No. 1214. McAninch v. Squier, Warden. June 1, 1942. 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. Weldon 0. McAninch, pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Oscar A. Provost and W. Marvin Smith for respondent. Reported below: 126
F.	2d 470.
No. 1219. Walker v. Spencer, Administrator, et al. June 1,1942. 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. A. L. Harbison for petitioner. Solicitor General Fahy, Assistant Attorney General Littell, and Mr. Vernon L. Wilkinson for respondents. Reported below: 123 F. 2d 347.
OCTOBER TERM, 1941.	693
316 U. S.	Decisions Denying Certiorari.
No. 1238. Tinkoff v. Griffith et al. June 1, 1942. Petition for writ of certiorari to the Supreme Court of Illinois, and motion for leave to proceed further in forma pauperis, denied. Paysoff Tinkoff, pro se.
No. 1241. Johnson v. Alabama. June 1, 1942. Petition for writ of certiorari to the Supreme Court of Alabama, and motion for leave to proceed further in forma pauperis, denied. Mr. Walter S. Smith for petitioner. Reported below: 242 Ala. 278, 5 So. 2d 632.
No. 1248. Hodges v. Ocean Accident & Guarantee Corp. June 1,1942. Petition for writ of certiorari to the Court of Appeals of Georgia, and motion for leave to proceed further in forma pauperis, denied. Mr. G. Seals Aiken for petitioner. Reported below: 66 Ga. App. 431, 18 S. E. 2d 28.
No. 1265. Powers v. United States. June 1, 1942. 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. JFtllwwn Nathan Powers, pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for the United States. Reported below: 75 U. S. App. D. C. 371, 128 F. 2d 300.
No. 1204. Bird v. United States. June 1,1942. The petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit, and the motion for leave to proceed further in forma pauperis, are 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. Rule XI of the Criminal Appeals Rules, 292 U. S. 665-666; United
694	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
States ex rel. Coyv.United States, ante, p. 342. The petition for writ of certiorari is therefore also denied. Frank Bird, pro se. Solicitor General Fahy for the United States. Reported below: 127 F. 2d 291.
No. 1217. Keys v. United States. June 1,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied for the reason that the application therefor was not made within the time provided by law. Rule XI of the Criminal Appeals Rules, 292 U. S. 665-666. Mr. C. W. Prince for petitioner. Solicitor General Fahy for the United States. Reported below: 126 F. 2d 181.
No. 1195. City of Salamanca et al. v. United States. June 1,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Justice Jackson took no part in the consideration or decision of this application. Mr. Henry S. Manley for petitioners. Solicitor General Fahy, Assistant Attorney General Littell, and Mr. Roger P. Marquis for the United States. Reported below: 125 F. 2d 928.
No. 1218. Art Metal Construction Co., for its own USE AND FOR THE USE OF McClOSKEY & Co., INC. V. LEHIGH Structural Steel Co. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Justice Jackson took no part in the consideration or decision of this application. Mr. Edward J. Mingey for petitioner. Mr. Charles H. Weidner for respondent. Reported below: 126 F. 2d 134.
No. 1046. Mueller v. Mueller. See ante, p. 649.
OCTOBER TERM, 1941.	695
316 U. S.	Decisions Denying Certiorari.
No. 1152. Miller et al. v. United States; and
No. 1168. Dees et al. v. United States. June 1, 1942. Petitions for writs of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Dan R. Schwartz for petitioners in No. 1152. Mr. Frank F. L’Engle for petitioners in No. 1168. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Oscar A. Provost and Henry J. Fox for the United States. Reported below: 126 F. 2d 771.
No. 1173. Goudeau v. Daigle et al. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. L. A. Goudeau and Joseph A. Loret for petitioner. Reported below: 124 F. 2d 656.
No. 1176. Mesta v. Commissioner of Internal Revenue. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Messrs. William A. Seifert and William Wallace Booth for petitioner. Solicitor General Fahy, Assistant Attorney General dark, and Mr. SeWall Key for respondent. Reported below: 123 F. 2d 986.
No. 1178. Ozark Chemical Co. v. Jones, Collector of Internal Revenue. June 1,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. Messrs. Fenelon Boesche and Roscoe E. Harper for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key, Carlton Fox, and Richard S. Salant for respondent. Reported below: 125 F. 2d 1.
No. 1181. Royal Insurance Co., Ltd. v. Smith. June 1,1942. Petition for writ of certiorari to the Circuit Court
696	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
of Appeals for the Ninth Circuit denied. Mr. Percy V. Long for petitioner. Messrs. A. B. Bianchi and James M. Hanley for respondent. Reported below: 125 F. 2d 222.
No. 1183. Bush v. Order of United Commercial Travelers of America. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Paul E. Lesh and Dale D. Drain for petitioners. Mr. Richard T. Rector for respondent. Reported below: 124 F. 2d 528.
No. 1185. Canadian Pacific Railway Co. v. Sullivan et al. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Richard W. Hall for petitioner. Mr. Charles B. Rugg for respondents. Reported below: 126 F. 2d 433.
No. 1186. Modern Factors Co. v. Tastyeast, Inc. June 1,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Max L. Rosenstein for petitioner. Messrs. William H. Carey and Edward J. CP Mara for respondent. Reported below: 126 F. 2d 879.
No. 1188. Union Trust Co., Executor, v. Helvering, Commissioner of Internal Revenue. June 1,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Messrs. George E. Hamilton, George E. Hamilton, Jr., and Charles D. Hayes for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and Joseph M. J ones for respondent. Reported below: 125 F. 2d 401.
OCTOBER TERM, 1941.	697
316 U. S.	Decisions Denying Certiorari.
No. 1192. Gump, Executrix, et al., v. Commissioner of Internal Revenue. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Chellis M. Carpenter for petitioners. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and Joseph M. Jones for respondent. Reported below: 124 F. 2d 540.
No. 1193. St. Francis Hospital v. Helvering, Commissioner of Internal Revenue. June 1, 1942. Petition for writ of certiorari to the Court of Appeals for the District of Columbia denied. Mr. Samuel G. Wagner for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Mr. Sewall Key for respondent. Reported below: 125 F. 2d 553.
No. 1196. Manufacturers Trust Co. v. Kelby et al. June 1,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Charles E. Hughes, Jr. and David Barnett for petitioner. Messrs. George C. Wildermuth, John Kennedy White, Samuel Silbiger and Percival E. Jackson for respondents. Reported below: 125 F. 2d 650.
No. 1198. Mason v. Anderson-Cottonwood Irrigation District. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Messrs. Peter turn Suden and George Thomas Davis for petitioner. Mr. A. L. Cowell for respondent. Reported below: 126 F. 2d 921.
No. 1203. Levy, Executrix, v. National Battery Co. June 1,1942. Petition for writ of certiorari to the Circuit
698	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
Court of Appeals for the Eighth Circuit denied. Mr. Josiah E. Brill for petitioner. Mr. E. Glenn Fossett, Jr. for respondent. Reported below: 126 F. 2d 33.
No. 1206. Thiel v. Southern Pacific Co. et al. June 1,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. John L. Murphy for petitioner. Mr. Arthur B. Dunne for respondents. Reported below: 126 F. 2d 710.
No. 1207. Jamaica Water Supply Co. v. Commissioner of Internal Revenue. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. Hugh Satterlee and Wm. R. Green for petitioner. Solicitor General Fahy, As-sistant Attorney General Clark, and Messrs. Sewall Key, J. Louis Monarch, and Newton K. Fox for respondent. Reported below: 125 F. 2d 512.
No. 1220. Nardone et al. v. United States. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. David V. Cahill and Louis Halle for petitioners. Solicitor General Fahy and Assistant Attorney General Berge for the United States. Reported below: 127 F. 2d 521.
No. 1226. Chesapeake & Curtis Bay Railroad Co. et al. v. Richfield Oil Corp. June 1, 1942. Petition for writ of certiorari to the Court of Appeals of Maryland denied. Messrs. Eugene S. Williams and William R. Semans for petitioners. Mr. J. Cookman Boyd, Jr. for respondent. Reported below: 180 Md. 192, 23 A. 2d 677.
OCTOBER TERM, 1941.	699
316 U. S.	Decisions Denying Certiorari.
No. 1228. Williams et al. v. Keyes et al. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. E. Albert Pallot for petitioners. Mr. M. Lewis Hall for respondents. Reported below: 125 F. 2d 208.
No. 1232. Howard v. United States ex rel. Alexander et al. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. G. F. Howard, pro se. Solicitor General Fahy and Mr. Robert L. Stern for respondents. Reported below: 126 F. 2d 667.
No. 1236. Equitable Life Assurance Society v. Tucker. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. William C. Michaels for petitioner. Reported below: 126 F. 2d 396.
No. 1127. Manila Gas Corp, et al. v. Collector of Internal Revenue. June 1, 1942. Petition for writ of certiorari to the Supreme Court of the Philippines denied. Mr. Bertram F. Shipman for petitioners. Mr. Nathan R. Mar gold for respondent.
No. 1222. Baker v. Delay, State Police Detective. June 1,1942. Petition for writ of certiorari to the Superior Court, County of Suffolk, Massachusetts, denied. Mr. William H. Lewis for petitioner. Reported below: 310 Mass. 724, 39 N. E. 2d 762.
No. 1189. Wilson & Co., Inc. v. National Labor Relations Board. June 1, 1942. Petition for writ of certi-
700	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
orari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Paul Ware for petitioner. Solicitor General Fahy and Messrs. Robert B. Watts, Ernest A. Gross, and Morris P. Glushien for respondent. Reported below: 126 F. 2d 114.
No. 1201. Engineers Club of Philadelphia v. United States. June 1, 1942. Petition for writ of certiorari to the Court of Claims denied. Mr. John E. Hughes for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and J. Louis Monarch for the United States. Reported below: 95 Ct. Cis. 42, 42 F. Supp. 182.
No. 1223. Houlihan v. United States. June 1,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Arthur Garfield Hays for petitioner. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for the United States. Reported below: 126 F. 2d 807.
No. 1234. Peoples Natural Gas Co. et al. v. Federal Power Commission. June 1, 1942. Petition for writ of certiorari to the Court of Appeals for the District of Columbia denied. Messrs. William Watson Smith, William Stanley, Max O’Rell Truitt, Carl McFarland, and William H. Eckert for petitioners. Solicitor General Fahy, Assistant Attorney General Shea, and Messrs. Melvin H. Siegel, Oscar H. Davis, and Richard J. Connor for respondent. Reported below: 127 F. 2d 153.
No. 1235. Golden Gate Bridge & Highway District v. United States. June 1, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Cir-
OCTOBER TERM, 1941.	701
316 U. S.	Decisions Denying Certiorari.
cuit denied. Mr. John L. McNab for petitioner. Solicitor General Fahy and Assistant Attorney General Littell for the United States. Reported below: 125 F. 2d 872.
Nos. 1254 and 1255. Zimmer, Substitute Trustee, v. New York State Tax Commission. June 1, 1942. Petition for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Lydon F. Maid er for petitioner. Messrs. John J. Bennett, Jr., Attorney General of the State of New York, Henry Epstein, Solicitor General, and Timothy F. Cohan, Assistant Attorney General, for respondent. Reported below: 126 F. 2d 604, 606.
Nos. 1199 and 1200. Heilig Brothers Co. v. National Labor Relations Board. June 1, 1942. Petition for writs of certiorari to the District Court of the United States for the Middle District of Pennsylvania and to the Circuit Court of Appeals for the Third Circuit denied. Mr. Edmund M. Toland for petitioner. Solicitor General Fahy and Messrs. Robert L. Stem, Robert B. Watts, Ernest A. Gross, Morris P. Glushien, and Miss Ruth Weyand for respondent. Reported below: 123 F. 2d 734.
No. 1045. Crockett v. United States. On petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit. June 8, 1942. In view of the Government’s concession that the remedy of habeas corpus is available to petitioner to try his allegations, the petition for writ of certiorari is denied, but without prejudice to an application for habeas corpus to the proper district court. 28 U. S. C., § 452. The motion for leave to proceed further in forma pauperis is denied. William C. Crockett, pro se. Solicitor General Fahy, Assistant Attorney Gen-
702	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
eral Berge, and Mr. W. Marvin Smith for the United States. Reported below: 125 F. 2d 547.
No. 1197. Carlota Benitez Sampayo v. Bank of Nova Scotia. June 8,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit, and motion for leave to proceed further in forma pauperis, denied. The Chief Justice took no part in the consideration or decision of these applications. Carlota Benitez Sampayo, pro se. Mr. Henri Brown for respondent. Reported below: 125 F. 2d 519.
No. 1266. Sawa v. Indiana. June 8, 1942. Petition for writ of certiorari to the Criminal Court of Lake County, Indiana, and motion for leave to proceed further in forma pauperis, denied. John Sawa, pro se.
No. 937. Gall v. Brady, Warden; and
No. 938. Carey v. Brady, Warden. June 8,1942. The petitions for writs of certiorari to the Circuit Court of Appeals for the Fourth Circuit, and the motions for leave to proceed further in forma pauperis, are denied. Mr. G. Van Velsor Wolf for petitioners. Reported below: 125 F. 2d 253.
No. 1085. McKee et al. v. Johnston, Warden. June 8,1942. 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. Frank McKee and James Ryan, pro se. Solicitor General Fahy and As-sistant Attorney General Berge for respondent. Reported below: 125 F. 2d 282.
No. 1112. Mitchell v. United States. June 8, 1942. Petition for writ of certiorari to the Circuit Court of Ap-
OCTOBER TERM, 1941.	703
316 U. S.	Decisions Denying Certiorari.
peals for the Tenth Circuit, and motion for leave to proceed further in forma pauperis, denied. Mr. J. Forrest McCutcheon for petitioner. Solicitor General Fahy and Assistant Attorney General Berge for the United States. Reported below: 126 F. 2d 550.
No. 1244. Record v. Hudspeth, Warden. June 8, 1942. 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. Oren Lester Record, pro se. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Oscar A. Provost for respondent. Reported below: 126 F. 2d 215.
No. 1267. Roberts v. Bennett, Attorney General. June 8,1942. Petition for writ of certiorari to the Supreme Court of New York, and motion for leave to proceed further in forma pauperis, denied. Sam Roberts, pro se. Reported below: 287 N. Y. 839,32 N. Y. S. 2d 122,33 N. Y. S. 2d 105, 41 N. E. 2d 167.
Nos. 1259 and 1260. Holton v. Texas. June 8,1942. Petition for writs of certiorari to the Court of Criminal Appeals of Texas, and motion for leave to proceed further in forma pauperis, denied. Mr. Alexander McF. Mood for petitioner. Reported below: 158 S. W. 2d 772.
No. 1284. Barrett v. Williamson. June 8,1942. Petition for writ of certiorari to the Superior Court of Pennsylvania, and motion for leave to proceed further in forma pauperis, denied. Roydon M. Barrett, pro se. Reported below: 147 Pa. Super. 460, 24 A. 2d 546.
704	OCTOBER TERM, 1941.
Decisions Denying Certiorari.	316 U. S.
No. 1221. Ringling Brothers-Barnum & Bailey Combined Shows, Inc. v. Sheppard, Comptroller, et al. June 8,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Justice Murphy took no part in the consideration or decision of this application. Mr. Hanse Harrison Hamilton for petitioner. Messrs. Gerald C. Mann, Attorney General of Texas, Pat M. Neff, Jr., and George W. Barcus, Assistant Attorneys General, for respondents. Reported below: 123 F. 2d 773.
No. 1275. Enterprise Box Co. v. Holland, Administrator. June 8, 1942. The motion to substitute L. Metcalfe Walling, present Administrator of the Wage and Hour Division, U. S. Department of Labor, in the place and stead of Thomas W. Holland is granted. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Martin Caraballo for petitioner. Solicitor General Fahy and Mr. Warner W. Gardner for respondent. Reported below: 125 F. 2d 897.
No. 943. Continental Baking Co. v. Bumpus. June 8,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Messrs. A. L. Heiskell and J. H. Shepherd for petitioner. Mr. William
G.	Cavett for respondent. Solicitor General Fahy and Mr. Warner W. Gardner filed a memorandum on behalf of the Administrator of the Wage and Hour Division, U. S. Dept, of Labor, as amicus curiae. Reported below: 124 F. 2d 549.
No. 1184. Owens v. Commissioner of Internal Revenue. June 8,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Tenth Circuit denied. 0. 0. Owens, pro se. Solicitor General Fahy, Assistant
OCTOBER TERM, 1941.	705
316 U. S.	Decisions Denying Certiorari.
Attorney General Clark, and Messrs. Sewall Key, Arnold Raum, and Carlton Fox for respondent. Reported below: 125 F. 2d 210.
No. 1209. Westphal et al. v. Kansas City Life Insurance Co.; and
No. 1210. Westphal v. Kansas City Life Insurance Co. June 8, 1942. Petition for writs of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Arnold C. Otto for petitioners. Mr. Bernard V. Brady for respondent. Reported below: 126 F. 2d 76.
No. 1225. Moskowitz v. United States. June 8,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Messrs. John W. Davis, Bertram S. Nay jack, Russell S. Coutant, and A. H. Frisch for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key and Ellis N. Slack for the United States. Reported below: 126 F. 2d 702.
No. 1205. Guantanamo Sugar Co. v. United States. June 8,1942. Petition for writ of certiorari to the Court of Claims denied. Messrs. David A. Buckley, Jr. and Harvey L. Rabbitt for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Sewall Key, Samuel E. Blackham, and Robert L. Stern for the United States. Reported below: 94 Ct. Cis. 569, 41 F. Supp. 536.
No. 1237. Concord Company v. Willcuts et al., Executors. June 8, 1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Harry C. Carson for petitioner. Solicitor General Fahy, Assistant Attorney General Clark, and Messrs. Se-461263°—43------45
706	OCTOBER TERM, 1941.
Rehearing Granted.	316 U. S.
wall Key and J. Louis Monarch for respondents. Reported below: 125 F. 2d 584.
No. 1247. Aladdin Industries, Inc. v. National Labor Relations Board. June 8,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. W. H. F. Millar and Egbert Robertson for petitioner. Solicitor General Fahy and Messrs. Archibald Cox, Robert B. Watts, and Ernest A. Gross for respondent. Reported below: 125 F. 2d 377.
No. 1256. Algoma Net Co. v. National Labor Relations Board. June 8,1942. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Robert C. Bassett for petitioner. Solicitor General Fahy and Messrs. Archibald Cox, Robert B. Watts, Ernest A. Gross, and Morris P. Glushien for respondent. Reported below: 124 F. 2d 730.
CASES DISPOSED OF WITHOUT CONSIDERATION
BY THE COURT, FROM MARCH 31, 1942, THROUGH JUNE 8, 1942.
No. 1180. Graver Tank & Manufacturing Corp. v. New England Terminal Co. May 4, 1942. On petition for writ of certiorari to the Circuit Court of Appeals for the First Circuit. Dismissed per stipulation of counsel. Messrs. Henry C. Hart and Hoyt W. Lark for petitioner. Messrs. Charles P. Sisson and Wm. A. Gunning for respondent. Reported below: 125 F. 2d 71.
PETITIONS FOR REHEARING GRANTED, FROM MARCH 31, 1942, THROUGH JUNE 8, 1942.
No. 280. Jones v. City of Opelika. See ante, p. 649.
OCTOBER TERM, 1941.	707
316 U. 8.	Rehearing Denied.
No. 315. United States ex rel. Robinson v. Johnston, Warden. See ante, p. 649.
No. 1194. Fisher, Receiver, v. Whiton, Executrix, et al. June 8, 1942. The petition for rehearing is granted. The order denying certiorari, ante, p. 691, is vacated and the petition for writ of certiorari to the Court of Appeals of Tennessee is granted.
PETITIONS FOR REHEARING DENIED, FROM MARCH 31, 1942, THROUGH JUNE 8, 1942.*
No. 64. Hysler v. Florida. See ante, p. 642.
No. 325. Rodiek, Ancillary Executor, v. United States et al. April 6, 1942. The motion to substitute is granted and Leo T. Crowley, Alien Property Custodian, is substituted as a party respondent herein in the place and stead of Francis Biddle, as Attorney General. The petition for rehearing is denied. The Chief Justice, Mr. Justice Murphy, and Mr. Justice Jackson took no part in the consideration or decision of these applications. See 315 U. S. 783.
No. 870. Bernstein v. United States. April 6,1942. 315 U. S. 811.
No. 884. Rogoway v. Warden, U. S. Penitentiary, McNeil Island, Washington. April 6, 1942. 315 U. S. 808.
No. 935. Wright v. First Joint Stock Land Bank et al. April 6, 1942. 315 U. S. 817.
*See Table of Cases Reported in this volume for earlier decisions in these cases, unless otherwise indicated.
708	OCTOBER TERM, 1941.
Rehearing Denied.	316 U. S.
No. 95. Puerto Rico v. Russell & Co., S. en C. April 13,1942. 315 U. S. 610.
No. 505. Crancer et al., doing business as Valley Steel Products Co. et al., v. Lowden et al., Trustees. April 13,1942. 315 U. S. 631.
No. 932. Viles et al. v. Prudential Insurance Co. April 13,1942. 315 U. S. 816.
No. 527. Carpenters & Joiners Union of America, Local No. 213, et al. v. Ritter’s Cafe et al. April 27, 1942. The motion for leave to file brief of National Lawyers Guild, as amicus curiae, is granted. The petition for rehearing is denied. 315 U. S. 722.
No. —, original. DeWindt et al. v. South Carolina. April 27,1942. 315 U. S. 788.
No. 272. Miles et al. v. Illinois Central Railroad Co. April27,1942. 315U.S. 698.
No. 588. National Labor Relations Board v. Electric Vacuum Cleaner Co., Inc., et al. April 27, 1942. 315 U. S. 685.
No. 680. U. S. Industrial Chemicals, Inc. v. Carbide & Carbon Chemicals Corp. April 27, 1942. 315 U. S. 668.
No. 925. Wells v. United States. April 27,1942.
OCTOBER TERM, 1941.	709
316 U. S.	Rehearing Denied.
No. 965. Shimadzu et al. v. Electric Storage Battery Co. April27,1942. 315U.S. 822.
No. 970. Great Southern Life Insurance Co. et al. v. Williams. April 27,1942.
No. 978. Pennsylvania ex rel. Maurice v. Smith, Warden, et al. April 27,1942. 315 U. S. 820.
No. 986. Campeau v. Amrine, Warden. April 27, 1942.
No. 1013. Parker et al. v. Illinois. April 27, 1942.
No. 157, October Term, 1939. Weber v. United States. May 4,1942. 308 U. S. 590, 637.
No. —} original. Ex parte William Doster Noland. May 4,1942.
No. 11, original. Ex parte Forrest Holiday. May 4, 1942.	_________
No. 658. United States to the use of Noland Company, Inc. v. Irwin et al. May 4,1942. Ante, p. 23.
No. 981. Randall v. Labaddie Bottoms River Protection District. May 4, 1942.
No. 990. Hall v. United States. May 4, 1942.
710	OCTOBER TERM, 1941.
Rehearing Denied.	316 U. S.
No. 1014. Rayner v. United North & South Development Co. May 4,1942.
No. 1024. Tampax Incorporated et al. v. Personal Products Corp, et al. May 4,1942.
No. 523. Weber v. United States. May 4, 1942. Petition for rehearing denied. Mr. Justice Jackson took no part in the consideration or decision of this application. 315 U. S. 787.
No. 712. Nick et al. v. United States. May 4,1942. The motion for leave to file a second petition for rehearing is granted. The second petition for rehearing is denied.
No. 286. Helvering, Commissioner of Internal Revenue, v. Southwest Consolidated Corp. May 11, 1942. The motion for leave to file a second petition for rehearing is granted. The second petition for rehearing is denied. 315 U. S. 194, 829.
No. 745. Schenectady Union Publishing Co. v. Sweeney. May 11,1942. Petition for rehearing denied. Mr. Justice Jackson took no part in the consideration or decision of this application. 314 U. S. 605.
No. 1042. Nailling v. United States. May 11,1942.
No. 1014. Rayner v. United North & South Development Co.; and
OCTOBER TERM, 1941.	711
316 U. S.	Rehearing Denied.
No. 1042. Nailling v. United States. May 25,1942. Motions for leave to file second petitions for rehearing granted. The second petitions for rehearing are denied.
No. —, original. Ex parte Pedro E. Sanchez Tapia. May 25, 1942. 315 U. S. 788.
No. 157, October Term, 1939. Weber v. United States. May 25, 1942. 315 U. S. 787.
No. 711. Gorman, City Treasurer, et al. v. Washington University. May 25, 1942. Ante, p. 98.
No. 960. Mosher v. Hudspeth, Warden. May 25, 1942.
No. 1021. Powell et al., Receivers, v. Maryland Trust Co., Successor Trustee; and
No. 1075. New York Trust Co., Surviving Trustee, v. Maryland Trust Co., Successor Trustee. May 25, 1942.
No. 1077. Cassell v. Howard University. May 25, 1942.
No. 1099. Meredith v. Amrine et al. May 25, 1942.
No. 1113. Viator v. State Tax Commission et al. May 25, 1942.
No. 1149. Contardi v. Smith, Warden. May 25,1942.
712	OCTOBER TERM, 1941.
Rehearing Denied.	316 U. S.
No. 595. Swift & Co. et al. v. United States et al. See ante, p. 216.
No. 1097. Waller v. Youell, Superintendent. June 1, 1942.
No. 809. Summers v. Rice et al. June 1, 1942. 315 U. S. 808.
No. 1034. Marine v. Coe, Commissioner of Patents. June 1, 1942.
No. 738. United States v. Citizens Loan & Trust Co., Administrator. June 1,1942.
No. 923. Phillips Pipe Line Co. v. United States. June 1, 1942.
No. 1058. Midland Cooperative Wholesale, Inc. v. Ickes, Secretary of the Interior, et al. June 1,1942.
No. 649. Mishawaka Rubber & Woolen Manufacturing Co. v. S. S. Kresge Co. June 1,1942.
No. 665. Pence v. United States. June 1, 1942.
No. 1081. Price v. Johnston, Warden. June 1,1942.
No. 348. Seminole Nation v. United States. See ante, p. 286.
OCTOBER TERM, 1941.	713
316 U. S.	Rehearing Denied.
No. 618. Fretwell v. Peoples Service Drug Stores, Inc.; and
No. 786. Sabin et al. v. Home Owners’ Loan Corporation. June 8, 1942. The motions for leave to file second petitions for rehearing are granted. The second petitions for rehearing are denied. No. 618, 315 U. S. 826; No. 786, 315 U. S. 800, 829.
No. 723. United States v. Masonite Corporation et al. June 8,1942. The petition for rehearing is denied. Mr. Justice Roberts and Mr. Justice Jackson took no part in the consideration or decision of this application.
No. 1005. Bohnke et al. v. State of New York. June 8,1942.
No. 1030. Tinkoff et al. v. Gold, Trustee, et al. June 8,1942.
Nos. 1102 and 1103. Miller v. Duffy, Warden. June 8, 1942.
No. 1144. McCoach, Trustee, v. Griffin, Administrator. June 8, 1942.
No. 1241. Johnson v. Alabama. June 8,1942.
AMENDMENTS OF RULES.
ORDER.
It is ordered that paragraph 1 of Rule 12 of the rules of this Court be amended to read as follows:
“1. Upon the presentation of a petition for the allowance of an appeal to this court, from any court, to any judge or justice empowered by law to allow it, there shall be presented by the applicant a separate typewritten statement particularly disclosing the basis upon which it is contended that this court has jurisdiction upon appeal to review the judgment or decree in question. The statement shall refer distinctly (a) to the statutory provision believed to sustain the jurisdiction, (b) to the statute of the state, or statute or treaty of the United States, the validity of which is involved (giving the volume and page where the statute or treaty may be found in the official edition), setting it out verbatim or appropriately summarizing its pertinent provisions; and (c) to the date of judgment or decree sought to be reviewed and the date upon which the application for appeal is presented.
“The statement shall show that the nature of the case and the rulings of the court were such as to bring the case within the jurisdictional provisions relied on and shall cite the cases believed to sustain jurisdiction. It shall also include a statement of the grounds upon which it is contended that the questions involved are substantial (McArthur v. United States, 315 U. S. 787; Zucht v. King, 260 U. S. 174,176-77).
“If the appeal is from a state court, the statements shall in addition specify the stage in the proceedings in the court of first instance and in the appellate court, at which, and the manner in which, the federal questions sought to be reviewed were raised; the method of raising them (e. g., by a pleading, by request to charge and exceptions, by assignment of error); and the way in which they were
715
716 AMENDMENTS OF RULES.
passed upon by the court; with such pertinent quotations of specific portions of the record, or summary thereof, with specific reference to the places in the record where the matter appears (e. g., ruling on exception, portion of the court’s charge and exception thereto, assignment of error) as will support the assertion that the rulings of the court were of a nature to bring the case within the statutory provision believed to confer jurisdiction on this court. The provisions of this paragraph, with appropriate record page references, must be complied with when review of a state court judgment is sought by petition for writ of certiorari. (See Rule 38, par. 2.)
“The applicant shall append to the statement a copy of any opinions delivered upon the rendering of the judgment or decree sought to be reviewed, including earlier opinions in the same case, or opinions in companion cases, reference to which may be necessary to ascertain the grounds of the judgment or decree.
“If the appeal is from an interlocutory decree of a specially constituted district court of the United States, the statement must also include a showing of the matters in which it is claimed that the court has abused its discretion in granting or denying the interlocutory injunction (Alabama v. United States, 279 U. S. 229).”
April 6,1942.
ORDER.
It is ordered that the Rules of Practice for the Courts of the United States in Admiralty and Maritime Jurisdiction be, and they are hereby, amended by adding the following new rule:
Rule 44^ Pre-Trial Procedure; Formulating Issues.
Rule 16 of the Rules of Civil Procedure shall be applicable in cases in Admiralty.
May 4, 1942.
AMENDMENTS OF RULES. 717
ORDER.
It is ordered that Rule 46 of the Rules of Practice for the Courts of the United States in Admiralty and Maritime Jurisdiction be, and it is hereby, amended by adding thereto the following paragraph:
“During time of war the court may in its discretion, upon its own motion or that of any person, direct that any admiralty proceeding be conducted in private and that the records, pleadings, evidence and documents filed therein be impounded, if it has reason to believe that disclosure of them may be contrary to the national interest. In any admiralty proceeding, during time of war, to which the United States or an officer or agency thereof is not a party, the court shall give to the Attorney General prompt notice of the pendency of the proceeding and its nature.”
June 8, 1942.
STATEMENT SHOWING THE NUMBER OF CASES FILED, DISPOSED OF, AND REMAINING ON DOCKETS AT] CONCLUSION OF OCTOBER TERMS 1939, 1940 AND 1941
Terms		ORIGINAL			APPELLATE				TOTALS			
	1939	1940	1941	1939	1940	1941		1939		1940	1941
Number of cases on dockets	 Cases disposed of during terms. _ Number of cases remaining on dockets		15 4	15 6	12 2	1,063 942	1,094 979	1,290 1,166		1,078 946		l,10S 98S	1,302 1,168
	11	9	10	121	115	124		132		124	134
							TERMS				
							1939		1940		1941
Distribution of ca Original cases Appellate cas Petitions for Distribution of ca Original cases Appellate cas Petitions for	ses disposed of during terms:						4 252 690 11 76 45		6 286 693 9 67 48		2 381 785 10 65 59
	es on merits	 certiorari	 ses remaining on dockets:										
		 ______ 	 es on merits	 certiorari											
June 8, 1942.
719
INDEX
ADMINISTRATIVE PROCEEDINGS. See Communications Act, 3-5.
ADMIRALTY. See Labor Relations Act, 2-3.
Admiralty Rules. Amendments, pp. 716-717.
ADVERTISING. See Constitutional Law, VI, (A), 1-2.
ALLOTMENT. See Indians, 12.
AMENDMENT. See Judgments, 3; Rules, 2-3.
AMOUNT IN CONTROVERSY. See Jurisdiction, IV, 1.
ANTITRUST ACTS.
1.	Price-Fixing Agreements. Combination of competitors to fix prices in interstate trade, violates Sherman Act. U. S. v. Masonite Corp., 265.
2.	Id. Agreements for maintaining prices of goods in interstate commerce, including restrictions on resale prices, violate Sherman Act. U. S. v. Univis Lens Co., 241.
3.	Id. Competitors accepting invitation to participate in plan whose necessary consequence is restraint of interstate commerce, liable as conspirators under Sherman Act. U. S. v. Masonite Corp., 265.
4.	Id. Fixing of prices by one member of group pursuant to understanding, unlawful. Id.
5.	Id. Price-fixing combination not justified by tendency to increase distribution or to promote competition between dealers. Id.
6.	Id. Combination of dealers in building materials for sale of “hardboard” as del credere agents at prices, fixed by patent owner, violated Sherman Act. Id.
7.	Id. Features in themselves lawful may be suppressed with scheme as whole. U. S. v. Univis Lens Co., 241.
8.	Id. Miller-Tydings Act does not authorize first of several successive processors of article to control successors’ resale prices. Id.
9.	Id. Patented Articles. Patent affords no immunity for monopoly not plainly within the grant; grant can not be extended by contract. U. S. v. Masonite Corp., 265.
461263°—43--46	721
722	INDEX.
ANTITRUST ACTS—Continued.
10.	Id. Stipulations for maintenance of resale prices not excluded by patent monopoly from operation of Sherman Act. U. S. v. Univis Lens Co., 241.
11.	Damages. State as “person” entitled under § 7 of Sherman Act to sue for treble damages. Georgia v. Evans, 159.
12.	Decree. Power of District Court to postpone time for compliance with condition of decree. Chrysler Corp. v. U. 8., 556.
APPEAL. See Jurisdiction.
APPOINTMENT OP COUNSEL. See Constitutional Law, VI, (A), 7-8.
ARMY.
1.	Post Exchanges. Post exchanges are established and operated under authorized regulations of Secretary of War. Standard Oil Co. v. Johnson, 481.
2.	Id. Post exchanges are integral parts of War Department, and partake of its constitutional and statutory immunity. Id.
BANKRUPTCY. See Motor Carrier Act, 2-4.
1.	Municipal Corporations. Validity of plan for adjustment of debts of insolvent municipality under New Jersey Municipal Finance Act. Fait out e Iron Co. v. Asbury Park, 502.
2.	Reorganization. Distribution. Insolvent defaulting guarantor of mortgage certificates, who also owned part of mortgage indebtedness, entitled in § 77B reorganization to share pro rata in proceeds of mortgage. Prudence Realization Corp. v. Geist, 89.
3.	Id. Rule of state law governing relative rights of claimants in a state liquidation, inapplicable. Id.
BOARD OF TAX APPEALS. See Taxation, I, 7.
BONDS. See Constitutional Law, III, 1.
1.	Contractors? Bonds. Miller Act. Application of Miller Act to “public works” authorized by Administrator under National Industrial Recovery Act. U. 8. v. Irwin, 23.
2.	Id. Construction of library at Howard University as “public work” for which Miller Act required bond to secure materialmen. Id.
BOOKS. See Constitutional Law, VI, (A), 3.
BOUNDARIES. See Public Lands, 4-5.
Lands Bordering on Water. Under Mexican law, ownership of lands bordering on navigable water extends to line of highest tide. Stewart v. U. 8., 354.
BROADCASTING. See Communications Act, 5.
INDEX.	723
BROKERS. See Sales.
BURDEN OF PROOF. See Trademarks.
CANVASSING. See Constitutional Law, VI, (A), 3-4.
CAPITAL STOCK TAX. See Taxation, 1,8-9.
CARRIERS. See Interstate Commerce Acts, 1-6; Jurisdiction, IV, 1; Motor Carrier Act, 1-6.
CERTIORARI. See Jurisdiction, II, 2.
CIVIL PROCEDURE. See Procedure, 1, 3-7.
CIVIL RIGHTS.
1.	Discrimination in Selection of Grand Jury. Jury commissi on-ers who consciously omitted placing name of any Negro on jury list, failed in duty recognized by Civil Rights Act. Hill v. Texas, 400.
2.	Id. Where large number of literate Negroes reside in county, inference inadmissible that there are none of good moral character, qualified and available for grand jury service. Id.
CLAIMS. See Indians, 1-10; Patents for Inventions, 1-4.
COLLECTOR OF INTERNAL REVENUE. See Judgments, 2.
COMMUNICATIONS ACT. See Evidence, 1-2; Jurisdiction, IV, 5.
1.	Intercepted Communications. Section 605 no bar in criminal trial in federal court to testimony of witnesses induced to testify by pre-trial use of intercepted communications to which defendants were not parties. Goldstein v. U. S., 114.
2.	Id. Divulgence of overheard telephone conversation, not violation of § 605. Goldman v. U. S., 129.
3.	Review of Orders. Stay. Power of Court of Appeals upon appeal under § 402 (b) to stay execution of order of Commission, Scripps-Howard Radio v. Communications Commission, 4.
4.	Review of Orders. Suit to Set Aside. Action sought to be set aside must be “order”; bill must state cause of action in equity. Columbia Broadcasting System v. U. 8., 407.
5.	Id. Network entitled to review of order and regulations altering contractual relations on which its business depends. Columbia System v. U. S., 407; National Broadcasting Co. v. U. S., 447.
COMMUNICATIONS COMMISSION. See Communications Act, 3-5; Jurisdiction, I, 6 ; II, 3; IV, 5.
COMPETITION. See Antitrust Acts, 1-6 ; Federal Trade Commission, 1-2.
CONCURRENT FINDINGS. See Jurisdiction, I, 2.
CONCURRENT JURISDICTION. See Jurisdiction, 1,1.
724	INDEX.
CONFESSION. See Constitutional Law, VI, (A), 9.
CONSENT DECREE. See Judgments, 3.
CONSPIRACY. See Antitrust Acts, 3.
CONSTITUTIONAL LAW. See Civil Rights.
I.	Miscellaneous, p. 724.
II.	Commerce Clause, p. 724.
III.	Contract Clause, p. 724.
IV.	Fourth Amendment, p. 724.
V.	Fifth Amendment, p. 725.
VI.	Fourteenth Amendment.
A.	Due Process Clause, p. 725.
B.	Equal Protection Clause, p. 726.
I.	Miscellaneous.
1.	Powers of Congress. Bankruptcy. New Jersey Municipal Finance Act not inoperative as inconsistent with bankruptcy power exercised by Congress. Faitoute Iron Co. v. Asbury Park, 502.
2.	Federal Instrumentality. Post exchanges are integral part of War Department, and partake of its constitutional and statutory immunity. Standard OU Co. v. Johnson, 481.
II.	Commerce Clause.
1.	Federal Regulation. Power of Interstate Commerce Commission to end discriminatory practices of carriers in respect to absorption of switching charges. Northern Pacific Ry. Co. v. U. S., 346.
2.	Id. Wages and Hours. Validity of overtime provisions of Fair Labor Standards Act. Overnight Motor Co. v. Missel, 572.
III.	Contract Clause.
1.	Existence of Contract. Provisions of municipal charter and improvement district bonds did not establish right in bondholders to require reassessment of lots which had been sold for nonpayment of original assessment. Municipal Investors Assn. v. Birmingham, 153.
2.	Impairment. Plan under New Jersey Municipal Finance Act for adjustment of unsecured claims of creditors of insolvent municipality did not impair obligation of contracts. Faitoute Iron Co. v. Asbury Park, 502.
3.	Id. Validity of Act as applied to secured claims, not involved and not decided. Id.
TV. Fourth Amendment.
1.	Search and Seizure. Federal agents’ use of detectaphone, whereby conversations of defendant were overheard, valid. Goldman v. U.S., 129.
INDEX.	725
CONSTITUTIONAL LAW—Continued.
2.	Id. Evidence obtained by use of detectaphone not unlawfully obtained as consequence of prior trespass. Id.
V.	Fifth Amendment.
1.	Hearing. Provision of Fair Labor Standards Act making violator liable for wages and liquidated damages, valid though employer was unable to determine whether employee was covered by Act. Overnight Motor Co. v. Missel, 572.
2.	Criminal Procedure. Conviction on coerced plea of guilty, invalid. Waley v. Johnston, 101.
3.	Id. Coerced plea of guilty invalid as waiver of right to assail conviction. Id.
VI.	Fourteenth Amendment.
(A) Due Process Clause.
1.	Freedom of Speech and Press. Ordinance forbidding distribution in streets of printed commercial advertising, valid. Valentine v. Chrestensen, 52.
2.	Id. Right to distribute in streets commercial handbills cannot be acquired by adding privileged matter. Id.
3.	Freedom of Speech, Press, and Religion. Ordinance requiring license for, and imposing reasonable tax on, sale of books and pamphlets on streets or from house to house, not invalid as applied to member of sect. Jones v. Opelika, 584.
4.	Id. One who without license sold religious literature on streets could not defend on ground that licenses were revocable. Id.
5.	Criminal Proceedings. Application of due process clause to state criminal proceedings. Betts v. Brady, 455.
6.	Id. Denial by State of rights or privileges embodied in Sixth Amendment may operate as denial of due process. Id.
7.	Id. Assistance of Counsel. State not bound in every case to furnish counsel to person charged with crime. Id.
8.	Id. Refusal of state court to appoint counsel for indigent defendant accused of robbery, did not deny due process. Id.
9.	Id. Confessions. Use of coerced confession in prosecution for murder, denied due process. Ward v. Texas, 547.
10.	Taxation. Intangibles. Transfer by Death. Validity of tax by State on transfer of shares of stock of corporation incorporated under its laws upon death of decedent domiciled elsewhere. State Tax Commission v. Aldrich, 174.
726	INDEX.
CONSTITUTIONAL LAW—Continued.
(B) Equal Protection Clause.
1.	Sterilization of Criminals. Oklahoma Habitual Criminal Sterilization Act violated equal protection clause. Skinner v. Oklahoma, 535.
2.	Racial Discrimination. Evidence showed systematic exclusion of Negroes from grand jury, denying equal protection of laws. Hill v. Texas, 400.
3.	Access to Courts. State court’s denial of habeas corpus without determining truth of allegation that petitioner’s appeal from conviction was frustrated by prison officials, reversed. Cochran v. Kansas, 255.
CONTRACTORS’ BONDS. See Bonds, 1-2.
CONTRACTS. See Communications Act, 5; Constitutional Law, III, 1-3; Fair Labor Standards Act, 8-11; Jurisdiction, II, 16.
CONTROL. See Motor Carrier Act, 3-4.
CORAM NOBIS. See Habeas Corpus, 1.
CORPORATIONS. See Constitutional Law, VI, (A), 10; Taxation, 1,1-2,4,8-13; II, 1.
COURT OF CLAIMS. See Indians, 7-8.
COUNSEL. See Constitutional Law, VI, (A), 7-8.
COURTS. See Jurisdiction.
CRIMINAL APPEALS ACT. See Jurisdiction, II, 1.
CRIMINAL APPEALS RULES. See Jurisdiction, II, 2.
CRIMINAL LAW. See Constitutional Law, IV, 1-2; VI, (A), 5-9; Evidence, 1-4,10; Jurisdiction, II, 1-2,11,13; III, 2.
1.	Offenses. Mutiny. Conspiracy. Strike by seamen on vessel at dock in domestic port. Southern S. S. Co. v. Labor Board, 31.
2.	Procedure. Conviction on coerced plea of guilty, invalid. Waley v Johnston, 101.
3.	Id. Coerced plea of guilty invalid as waiver of right to assail conviction. Id.
DAMAGES. See Antitrust Acts, 11; Jurisdiction, II, 5; Trademarks.
DEATH. See Constitutional Law, VI, (A), 10.
DECEIT. See Federal Trade Commission, 2.
DEL CREDERE AGENT. See Antitrust Acts, 6.
INDEX.	727
DETECTAPHONE. See Constitutional Law, IV, 1-2; Evidence, a-4.
DISCLAIMER. See Patents for Inventions, 4.
DISCRIMINATION. See Constitutional Law, II, 1; VI, (B), 1-3; Interstate Commerce Acts, 1.
DIVIDENDS. See Taxation, I, 10.
DOMICILE. See Constitutional Law, VI, (A), 10.
DUE PROCESS. See Constitutional Law, V, 1-3; VI, (A), 1-10.
EGRESS. See Interstate Commerce Acts, 4.
ELECTION. See Labor Relations Act, 1.
EMPLOYER AND EMPLOYEE. See Evidence, 6; Fair Labor Standards Act, 1-12; Labor Relations Act, 1-3.
EN BANC. See Jurisdiction, II, 10; VI.
ESTATE TAX. See Taxation, I, 5-7.
EVIDENCE. See Jurisdiction, III, 3, 5; Labor Relations Act, 4.
1.	Admissibility. Testimony of witnesses induced to testify by pre-trial use of communications intercepted in violation of Communications Act, but to which defendants were not parties, admissible. Goldstein v. U. S., 114.
2.	Id. Divulgence of telephone conversation overheard as it was spoken into receiver, not violative of Communications Act. Goldman v. U. 8., 129.
3.	Id. Evidence obtained by use of detectaphone admissible. Id.
4.	Id. Prior trespass in this case did not render inadmissible evidence obtained by use of detectaphone. Id.
5.	Sufficiency of Evidence. Sales of stock as “short” sales. Wilmington Trust Co. v. Helvering, 164.
6.	Employment Relation. Seamen. Employer’s customs and practices as evidence of termination of employment relation of seamen. Southern S. S. Co. n. Labor Board, 31.
7.	Fraudulent Representations. Application for insurance; intent to defraud. Pence v. U. S., 332.
8.	Boundary of land grant. Stewart v. U. S., 354.
9.	Racial Discrimination in selection of grand jury. Hill v. Texas, 400.
10.	Confession. Use of coerced confession voided conviction of murder; evidence of coercion. Ward v. Texas, 547.
EXEMPTION. See Fair Labor Standards Act, 4.
728	INDEX.
FAIR LABOR STANDARDS ACT.
1.	Application of Act. Employees. Rate clerk for interstate motor transport company was within Act and entitled to benefit of provisions for overtime compensation. Overnight Motor Co. v. Missel, 572.
2.	Id. Production of Goods. Act applicable to employees engaged in maintenance of building whose tenants produce goods for interstate commerce. Kirschbaum Co. v. Walling, 517.
3.	Id. Such employees are in “occupation necessary to the production” of goods in interstate commerce within § 3 (j). Id.
4.	Exemptions. Employees here involved not engaged in “service establishments” within exemption of § 13 (a) (2). Id.
5.	Overtime Compensation. Purpose of Act to discourage overtime work. Overnight Motor Co. v. Missel, 572.
6.	Id. Requirement as to overtime compensation where employee works irregular hours for fixed weekly wage. Id.
7.	Id. Ascertainment of “regular rate” where employee works irregular hours for fixed weekly wage. Id.
8.	Particular Contracts. Contract to pay same wage as prior to Act, valid if not below statutory minimum. Walling v. Belo Corp., 624.
9.	Id. Wage contract specifying basic rate of pay per hour, not less than time and one-half for overtime, and guaranty to employee of specified amount weekly, conformed to Act. Id.
10.	Id. Rate per hour specified in such contract was “regular rate” within meaning of § 7 (a) (3) of Act. Id.
11.	Id. Intention of parties to fix amount per hour specified in contract was consistent with guaranteed weekly income. Id.
12.	Id. Act does not forbid paying more than 150% of basic rate for overtime. Id.
FEDERAL AGENTS. See Constitutional Law, IV, 1-2.
FEDERAL INSTRUMENTALITY. See Constitutional Law, I, 2.
FEDERAL QUESTION. See Jurisdiction, 1,4; II, 14-15.
FEDERAL TRADE COMMISSION. See Judgments, 1.
1.	Purpose of Act. That unfair methods of competition be stopped in their incipiency. Federal Trade Commission v. Raladam Co., 149.
2.	Unfair Methods. Findings. Evidence. From deceptive statements extolling product, Commission may find that trade will be diverted from competitors. Id.
FINAL JUDGMENT. See Jurisdiction, I, 3; II, 11.
FINDINGS. See Federal Trade Commission, 2; Indians, 5, 7-8; Jurisdiction, I, 2; III, 3,5 ; Labor Relations Act, 4.
INDEX.	729
FRAUD. See Evidence, 7; War Risk Insurance, 4-6.
FREEDOM OF RELIGION. See Constitutional Law, VI, (A), 3-4.
FREEDOM OF SPEECH. See Constitutional Law, VI, (A), 1-4.
FREEDOM OF THE PRESS. See Constitutional Law, VI, (A), 1-4.
FRIVOLOUS APPEAL. See Jurisdiction, II, 5.
GENERAL ALLOTMENT ACT. See Indians, 12.
GRANDFATHER CLAUSE. See Motor Carrier Act, 1-6.
GRAND JURY. See Civil Rights, 1-2; Constitutional Law, VI, (B), 2.
GRANTS.
Boundary of Mexican grant of Mare Island. Stewart v. U. S., 354.
HABEAS CORPUS. See Constitutional Law, VI, (B), 3.
1.	When Proper Remedy. Whether conviction was void because based on coerced plea of guilty, determinable in habeas corpus when dependent on facts dehors the record; earlier decision in coram nobis proceeding held not res judicata. Waley v. Johnston, 101.
2.	Procedure. When material issue of fact is raised, prisoner must be produced and matter heard by court or judge. Id.
3.	Id. Remand of case to state court where petition for habeas corpus was dismissed without inquiry into truth of charge that appeal from conviction was frustrated by prison officials. Cochran v. Kansas, 255.
4.	Id. Conclusion of state court that petitioner’s unsupported charge as to denial of rights in criminal proceeding was refuted by record, sustained. Id.
HABITUAL CRIMINAL. See Constitutional Law, VI, (B), 1.
HANDBILLS. See Constitutional Law, VI, (A), 1-2.
HARDBOARD. See Antitrust Acts, 6.
HIGHEST COURT. See Jurisdiction, II, 9-11.
HOURS. See Fair Labor Standards Act, 5-12.
HOWARD UNIVERSITY. See Bonds, 2.
IMMUNITY. See Army, 2.
IMPROVEMENT DISTRICTS. See Constitutional Law, III, 1.
INCORPORATION. See Constitutional Law, VI, (A), 10.
730	INDEX.
INDIANS.
1.	Seminóle Nation. Treaties. Claims. Claim based on annuity provided by Art. VIII of Treaty of 1856, which in amount claimed was diverted to clothing and feeding refugee Indians, released by Treaty of 1866. Seminole Nation v. U. S., 286.
2.	Id. Payments to tribal treasurer discharged obligation of Government under Art. Ill of Treaty of 1866, where schools actually received benefit. Id.
3.	Id. Sum due under Art. Ill of Treaty of 1866 properly paid in 1907 to U. S. Indian Agent for Seminoles. Id.
4.	Id. Undertaking of Government under Art. VI of Treaty of 1866, to construct “suitable agency buildings,” not breached. Id.
5.	Id. Claim under provision of Art. VIII of Treaty of 1856 for establishment of trust fund and payment of interest therefrom; overpayments in certain years properly deducted; payments in 1907,1908, and 1909 properly made to U. S. Indian Agent for Seminoles; case remanded for further findings with respect to payments from 1870 to 1874. Id.
6.	Id. Payments to tribal treasurer subsequently to Act of June 28,1898, did not contravene § 19. Id.
7.	Id. Court of Claims required to specially find and designate expenditures which by Act of August 12, 1935 may be offset against Government’s liability. Id.
8.	Id. Under Act of August 12, 1935, Court of Claims required to find amount of Government’s liability and to find and designate expenditures which are to be offset. Seminole Nation v. U. S., 310.
9.	Id. Transfer of 175,000 acre tract to Seminole Nation in 1882, unrelated to alleged deficiency in tract transferred pursuant to Art. Ill of Treaty of 1866. Seminole Nation v. U. S., 310.
10.	Sioux Indians. Executive Order Reservation. Tribe not entitled to compensation for lands which by executive orders in 1875 and 1876 were set apart for its use but which later were restored to public domain. Sioux Tribe v. U. S., 317.
11.	Id. Power of Executive to convey interest in public lands derives from delegation by Congress of its authority. Id.
12.	Id. Inclusion of executive order reservations in provisions of General Allotment Act, not recognition of tribal ownership of land prior to allotment. Id.
INDIGENTS. See Constitutional Law, VI, (A), 7-8.
INDUSTRIAL RECOVERY ACT. See Bonds, 1.
INFRINGEMENT. See Trademarks.
INHERITANCE. See Constitutional Law, VI, (A), 10.
INSOLVENCY. See Bankruptcy, 1-3.
INDEX.	731
INSTALLMENTS. See War Risk Insurance, 1-3.
INSURANCE. See War Risk Insurance, 1-6.
INTANGIBLES. See Constitutional Law, VI, (A), 10.
INTERCEPTION. See Communications Act, 1-2.
INTEREST. See War Risk Insurance, 1-2.
INTERSTATE COMMERCE. See Constitutional Law, II, 1-2; Fair Labor Standards Act, 1-3; Interstate Commerce Acts, 1-4.
INTERSTATE COMMERCE ACTS.
1.	Powers of Commission. Authority of Commission to end discriminatory practices of carriers in respect to absorption of switching charges. Northern Pacific Railway Co. v. U. S., 346.
2.	Transportation of Livestock. Stockyards. Transportation of livestock to public stockyards includes unloading into suitable pens. Swift & Co. v. U. S., 216.
3.	Id. Whether use of stockyards facilities for egress was part of transportation service for which charges could be made, was question for Commission. Id.
4.	Id. Reasonableness of practice of collection by stockyards of “yardage” charges for services after unloading, including use of facilities for egress. Id.
5.	Id. Finding by Commission that practice was reasonable, supported by evidence, conclusive. Id.
6.	Id. Conclusion of Commission that it had no jurisdiction to inquire into reasonableness of practices or charges of stockyards companies beyond unloading, sustained. Id.
7.	Id. Extent to which stockyards company is subject to Interstate Commerce Act and to Packers and Stockyards Act. Id.
INTERSTATE COMMERCE COMMISSION. See Interstate Commerce Acts, 1,3,5-6; Motor Carrier Act, 6.
JUDGE. See Jurisdiction, II, 11.
JUDGMENTS. See Habeas Corpus, 1.
1.	Res Judicata. Subject Matter. Judgment refusing enforcement of order of Federal Trade Commission not controlling in later proceeding presenting different facts and different record. Federal Trade Commission v. Raladam Co., 149.
2.	Res Judicata. Parties. Judgment against Collector of Internal Revenue for refund no bar to later suit against United States for additional refund. U. S. v. Nunnally Investment Co., 258.
3.	Amendment. Power of District Court to postpone time for compliance with condition of consent decree. Chrysler Corp. v. U. S., 556.
732	INDEX.
JURISDICTION.
I.	In General, p. 732.
II.	Jurisdiction of this Court, p. 732.
III.	Jurisdiction of Circuit Courts of Appeals, p. 734.
IV.	Jurisdiction of District Courts, p. 734.
V.	Jurisdiction of U. S. Court of Appeals, D. C., p. 735.
VI.	Jurisdiction of State Courts, p. 735.
References to particular subjects under title Jurisdiction: Board of Tax Appeals, III, 4-5; Certiorari, II, 2; Communications Act, I, 6; IV, 5; V; Concurrent Findings, I, 1; Concurrent Jurisdiction, I, 1; Criminal Appeals Act, II, 1; Criminal Appeals Rules, II, 2; Declaratory Judgments Act, IV, 4; Equally Divided Court, II, 6; Federal Question, 1,4; II, 14—15; VI; Final Judgment, 1,3; III, 1; Frivolous Appeal, II, 5; Highest Court, II, 9-11; Injunction, IV, 6-7; Labor Board, III, 3; Local Questions, II, 16; Remand, II, 1; Rules, II, 7; Rules in Criminal Cases, II, 2; III, 2; Sentence, III, 2; State Courts, II, 8-16; VI; Stay, I, 6; V; Term, III, 2; Three-Judge Court, IV, 6-8; Urgent Deficiencies Act, II, 3; Venue, I, 7.
I.	In General.
1.	Concurrent Jurisdiction. When federal court having jurisdiction should await outcome of suit in state court in which same issues are raised. Chicago v. Fieldcrest Dairies, 168.
2.	Concurrent Findings. Effect of. Williams Mfg. Co. v. United Shoe Mach. Corp., 364.
3.	Finality of Judgment. Judgment terminating action on one of several claims joined in complaint, as final for purposes of appeal under Jud. Code § 128. Reeves v. Beardall, 283.
4.	Federal Question. Whether Army post exchanges are instrumentalities of United States is federal question, decision of which by state court is not binding here. Standard Oil Co. v. Johnson, 481.
5.	Administrative Action. Review of orders and regulations of Communications Commission. Columbia Broadcasting System v. U. S., 407; National Broadcasting Co. v. U. S., 447.
6.	Stay of order of Communications Commission pending determination of appeal under § 402 (b) of Communications Act of 1934. Scripps-Howard Radio v. Communications Commission, 4.
7.	Venue of suit in federal district court. U. S. v. Univis Lens Co., 241.
II.	Jurisdiction of this Court.
1.	Criminal Appeals Act. Though this Court had jurisdiction to determine correctness of order, case remanded to District Court for consideration of applicability of statutes other than that relied on in sustaining demurrer to indictment. U. S. v. Malphurs, 1.
INDEX.	733
JURISDICTION—Continued.
2.	Criminal Appeals Rules. Timeliness of petition for certiorari to review judgment of Circuit Court of Appeals affirming order of District Court denying motion to correct sentence after expiration of term, governed by Ride XI. U. S. ex rel. Coy v. U. S., 342.
3.	Urgent Deficiencies Act. Review of orders of Federal Communications Commission. Columbia Broadcasting System v. U. S., 407; National Broadcasting Co. v. U. S., 447.
4.	Want of Jurisdiction. Dismissal for. Hendry Co. v. Moore, 643; Viator v. State Tax Commission, 644; Board of Trustees v. L Bar Cattle Co., 645; Banque de France v. Supreme Court of New York, 646; Fifth Street Building v. McColgan, 648.
5.	Frivolous Appeal. Award of damages of 10% of amount of judgment. Bohn v. Bohn, 646.
6.	Equally Divided Court. Affirmance by. Schenectady Union Pub. Co. v. Sweeney, 642.
7.	Rules. Dismissal for failure to comply with rules. Mueller v. Mueller, 649.
8.	Review of State Courts. Burden is petitioner’s to show affirmatively that this Court has jurisdiction. Gorman v. Washington University, 98.
9.	Id. Judgment of state court not highest in which decision could be had, not reviewable here. Id.
10.	Id. Judgment by division of highest court of State, reviewable en banc, not that of “highest court.” Id.
11.	Id. Order of Chief Judge of Court of Appeals of Maryland, who was also the judge of that court from the City of Baltimore, denying habeas corpus, was “final judgment” of “highest court.” Betts v. Brady, 455.
12.	Id. Decision sustaining statute challenged as repugnant to Constitution, appealable under Judicial Code §237 (a). Standard Oil Co. v. Johnson, 481.
13.	Id. Scope of Review. Conclusion of state court in habeas corpus proceeding that petitioner’s unsupported charge as to denial of rights in criminal proceeding was refuted by record, sustained. Cochran v. Kansas, 255.
14.	Id. Federal Question. Dismissal for want of. Bohn v. Bohn, 646.
15.	Id. Federal Question. Dismissal for want of substantial federal question. Duck v. Arkansas Corporation Commission, 641; Avent v. Mississippi Unemployment Commission, 641; Kramer v. Sheehy, 646; Sanford v. Hill, 647; Toole v. Michigan State Board, 648.
734	INDEX.
JURISDICTION—Continued.
16.	Local Questions. Determination by this Court in ascertaining whether contract, claimed to have been unconstitutionally impaired, exists. Municipal Investors Assn. v. Birmingham, 153.
III.	Jurisdiction of Circuit Courts of Appeals.
1.	Review of District Court. Judgment terminating action on one of several claims joined in complaint, as final for purposes of appeal under Jud. Code § 128. Reeves v. Beardall, 283.
2.	Id. Failure of Rules in Criminal Cases to fix time allowed for appeal of order of District Court denying motion to correct sentence, made after expiration of term, left in force § 8 (c) of Act of Feb. 13, 1925. U. S. ex rel. Coy v. U. S., 342.
3.	Id. Review of Labor Board. Board’s findings of fact, supported by evidence, conclusive. Labor Board v. Nevada Copper Corp., 105.
4.	Review of Board of Tax Appeals. Authority to modify or reverse decision of Board of Tax Appeals. Wilmington Trust Co. n. Helvering, 164.
5.	Id. Finding of Board of Tax Appeals that certain sales of stock by taxpayer were not “short” sales, was supported by substantial evidence and conclusive. Wilmington Trust Co. v. Helvering, 164.
IV.	Jurisdiction of District Courts.
1.	Suits Under Law Regulating Commerce. Suit against interstate carrier for negligent non-delivery was within jurisdiction of District Court irrespective of amount involved. Peyton v. Railway Express Agency, 350.
2.	Id. Whether suit was under law of United States must appear from plaintiff’s pleading. Id.
3.	Id. Requirement that from plaintiff’s pleading it must appear suit arose under law of United States, satisfied. Id.
4.	Suit Under Declaratory Judgments Act. Suit involving local questions only; proceeding pending in state court; factors governing exercise of jurisdiction. Brillhart v. Excess Ins. Co., 491.
5.	Suit Under Communications Act. Action sought to be set aside must be “order,” and bill must state cause of action; right to review. Columbia Broadcasting System v. U. S., 407; National Broadcasting Co.v. U.S., 447.
6.	Three-Judge Court. Suit to restrain enforcement of state tax on purchase and sale of goods at Army post exchanges, cognizable under Jud. Code § 266. Query v. U. S., 486.
7.	Id. Decree of injunction under Jud. Code § 266 appealable directly to this Court, not to Circuit Court of Appeals. Id.
INDEX.	735
JURISDICTION—Continued.
8.	Id. Procedure where appeal taken erroneously to Circuit Court of Appeals and time for direct appeal has elapsed. Id.
9.	Venue. Facts established venue in District Court. U. 8. n. Univis Lens Co., 241.
10.	Amendment of Decree. Power of District Court to amend decree. Chrysler Corporation v. U. 8., 556.
V.	Jurisdiction of U. S. Court of Appeals, D. C.
Communications Act. Jurisdiction of Court of Appeals upon appeal under § 402 (b) to stay execution of order of Commission pending determination of appeal. Scripps-Howard Radio v. Communications Comm’n., 4.
VI.	Jurisdiction of State Courts.
Division of Court. Judgment of a division of the Missouri Supreme Court involving federal question reviewable by court sitting en banc. Gorman v. Washington University, 98.
JURY.
Selection. Effect of racial discrimination in selection of grand jury. HUI v. Texas, 400.
JURY COMMISSIONERS. See Civil Rights, 1.
LABOR RELATIONS ACT.
1.	Election. Board not obliged to permit presence of employer representative. Southern 8.8. Co. v. Labor Board, 31.
2.	Employment Relation. Termination of employment of seamen. Id.
3.	Reinstatement. Board not authorized to compel reinstatement of seamen discharged for mutiny. Id.
4.	Review. Board’s findings of facts, supported by evidence, conclusive. Labor Board v. Nevada Consolidated Copper Corp., 105,.
LAND COMMISSIONERS. See Public Lands, 5.
LENSES. See Patents for Inventions, 10.
LICENSE. See Constitutional Law, VI, (A) 3-4.
LIENS. See Taxation, I, 3.
LIQUIDATED DAMAGES. See Constitutional Law, V, 1.
LIQUIDATION. See Bankruptcy, 3; Taxation, 1,8-9.
LIVESTOCK. See Interstate Commerce Acts, 2-7.
MANDATE. See Procedure, 6.
736	INDEX.
MARE ISLAND. See Public Lands, 4.
MATERIALMEN. See Bonds, 2.
MILLER ACT. See Bonds, 1-2.
MILLE R-T YD INGS ACT. See Antitrust Acts, 8.
MONOPOLY. See Antitrust Acts, 9-10.
MORTGAGES. See Bankruptcy, 2.
MOTOR CARRIER ACT.
1.	Grandfather Clause. To be construed as extending only to carriers plainly within its terms. Gregg Cartage Co. v. U. S., 74.
2.	Id. Position of purchaser of grandfather rights of bankrupt carrier no better than that of bankrupt. Id.
3.	Id. Excepting interruptions whereof carrier “had no control,” service must have been continuous from critical date to time of hearing on application. Id.
4.	Id. Interruption of service caused by bankruptcy not one over which carrier “had no control.” Id.
5.	Id. Sufficiency of duration of interruption of service. Id.
6.	Id. Effect of delay by Commission in acting on application. Id.
MXmiGIPKL CORPORATIONS. See Bankruptcy, 1.
MURDER. See Constitutional Law, VI, (A), 9.
MUTINY. See Labor Relations Act, 3.
Vessel at Dock. Strike by seamen on vessel at dock in domestic port as mutiny. Southern S. S. Co. v. Labor Board, 31.
NATIONAL INDUSTRIAL RECOVERY ACT. See Bonds, 1.
NAVIGABLE WATERS. See Boundaries.
NEGLIGENCE. See Jurisdiction, IV, 1.
NEGROES. See Civil Rights, 1-2; Constitutional Law, VI, (B), 2.
NONRESIDENT. See Constitutional Law, VI, (A), IQ.
OFFSET. See Indians, 7-8.
OVERTIME. See Constitutional Law, II, 2; Fair Labor Standards Act, 5-12.
PACKERS & STOCKYARDS ACT. See Interstate Commerce Acts, 7.
PAMPHLETS. See Constitutional Law, VI, (A), 3-4.
PARTIES. See Antitrust Acts, 11; Judgments, 2.
INDEX.	737
PATENTS FOR INVENTIONS. See Antitrust Acts, 9-10.
1.	Validity. Certain claims of McFeely patent for improvements in automatic heel-lasting machines, sustained. Williams Mfg. Co. y. United Shoe Mach. Corp., 364.
2.	Combinations. Claim in patent for new combination of specified means, referring to older mechanism to show application and operation of improvement, not to be construed as embracing old as well as new. Id.
3.	Claims. Claims, not specifications, measure grant of patent. Milcor Steel Co. v. Fuller Co., 143.
4.	Disclaimer attempting to add new elements to claim, invalid. Id.
5.	Scope of Monopoly. Patent affords no immunity for monopoly not plainly within grant; grant can not be extended by contract. U. S. v. Masonite Corp., 265.
6.	Id. Criteria for determining whether particular disposition of patented article exhausts patent monopoly. Id.
7.	Id. Combination of dealers in building materials for sale of “hardboard” at prices fixed by patent owner, violated Sherman Act. U. S. v. Masonite Corp., 265.
8.	Sale of Patented Article. Sale of patented article relinquishes patent monopoly with respect thereto. U. S. v. Univis Lens Co., 241; U. S. V. Masonite Corp., 265.
9.	Id. Patent does not confer right to control resale prices of patented article after sale by patentee. U. S. v. Univis Lens Co., 241.
10.	Id. Sale of lens blanks exhausted patent monopoly; patentee could not control resale price in unfinished or finished form; stipulations for maintenance of price not excluded by patent monopoly from operation of Sherman Act.
PAY. See Fair Labor Standards Act, 5-12.
PAYMENT. See War Risk Insurance, 1-2.
PERSON. See Antitrust Acts, 11.
PLEADING. See Jurisdiction, IV, 2-3.
POST EXCHANGE. See Army, 1-2.
POWER OF APPOINTMENT. See Taxation, I, 6-8.
PRESIDENT. See Indians, 10-12; Public Lands, 1-3.
PRESS. See Constitutional Law, VI, (A), 1-4.
PRICE-FIXING. See Antitrust Acts, 1-10; Patents for Inventions, 7, 9-10.
PRICES. See Antitrust Acts, 1-10; Patents for Inventions, 7,9-10.
461203°—43----47
738	INDEX.
PRISONS. See Constitutional Law, VI, (B), 3; Habeas Corpus, 3.
PRIVILEGE TAX. See Taxation, II, 2.
PROCEDURE. See Criminal Law, 2-3; Habeas Corpus, 2-3; Jurisdiction.
1.	Federal Courts. When federal court should await outcome of suit in state court. Chicago v. Fieldcrest Dairies, 168.
2.	Remand. Though this Court had jurisdiction under Criminal Appeals Act to determine correctness of order, case remanded to District Court for consideration of applicability of statutes other than that relied on in sustaining demurrer to indictment. U. S. v. Mal-phurs, 1.
3.	Id. Remand of case to state court to determine, in light of opinion here, whether state Act applicable to post exchanges. Standard Oil Co. v. Johnson, 481.
4.	Id. Remand to District Court for entry of fresh decree, where appeal erroneously taken to Circuit Court of Appeals and time for direct appeal to this Court has expired. Query V. U. S., 486.
5.	Pleading. Whether suit arises under a law of the United States must appear from plaintiff’s pleading. Peyton v. Railway Express Agency, 350.
6.	Mandate. Mandate recalled and amended to give petitioner recovery for additional costs. Phoenix Finance Co. v. Iowa-Wisconsin Bridge Co., 641.
7.	Rules of Civil Procedure. Rule 54 (6). Judgment which terminates action with respect to one of several claims joined in complaint, as final for purposes of appeal under Jud. Code § 128. Reeves v. Beardall, 283.
PROFITS. See Taxation, I, 10-11; Trademarks.
PUBLIC LANDS.
1.	Grants. Authority. Power of Executive to convey interest in public lands derives from delegation by Congress of its authority. Sioux Tribe v. U. S., 317.
2.	Id. Delegation of authority by Congress to Executive to withdraw public lands from sale may be evidenced by long-continued Congressional acquiescence in executive practice. Id.
3.	Id. Determination of whether Congress delegated power to convey compensable interest in executive order reservations. Id.
4.	Mexican Grants. Mare Island. Grant to Castro, conveying Mare Island, did not include tule marsh area claimed here. Stewart v. U. S., 354.
5.	Id. Interpretation of decree of Board of Land Commissioners confirming grant to Castro; admissibility of evidence as to what was commonly known as Mare Island. Id.
INDEX.	739
PUBLIC WORKS. See Bonds, 1-2.
PURCHASER. See Motor Carrier Act, 2.
RADIO BROADCASTING. See Communications Act, 5.
REGULAR RATE. See Fair Labor Standards Act, 7,10. REGULATIONS. See Communications Act, 5; Taxation, I, 9, 11. REINSTATEMENT. See Labor Relations Act, 3.
RELIGION. See Constitutional Law, VI, (A), 3-4.
RELIGIOUS LITERATURE. See Constitutional Law, VI, (A), 3-4.
REMAND. See Jurisdiction, II, 1; Procedure, 2-4.
REORGANIZATION. See Bankruptcy, 2-3; Taxation, 1,1-2. RESERVATIONS. See Indians, 10-12.
RES JUDICATA. See Judgments, 1-2.
RESTRAINT OF TRADE. See Antitrust Acts.
RIPARIAN RIGHTS. See Waters.
ROBBERY. See Constitutional Law, VI, (A), 8.
RULES.
1.	Necessity for Compliance. Dismissal of case for failure to comply with rules. Mueller v. Mueller, 649.
2.	Rules of this Court. Amendments, pp. 715-716.
3.	Admiralty Rules. Amendments, pp. 716-717.
RULES OF CIVIL PROCEDURE. See Procedure, 7.
SALES. See Constitutional Law, VI, (A), 3-4; Motor Carrier Act, 2; Taxation, I, 3; II, 2; Trademarks.
Short Sale. Sale of stock as “short” sale; criteria for determining. Wilmington Trust Co. v. Helvering, 164.
SCHOOLS. See Indians, 2.
SEAMEN. See Evidence, 6; Labor Relations Act, 2-3; Mutiny.
SEARCH AND SEIZURE. See Constitutional Law, IV, 1-2; Evidence, 1-4.
SECRETARY OF WAR. See Army, 1.
SECT. See Constitutional Law, VI, (A), 3-4.
SEMINOLE NATION. See Indians, 1-9.
SENTENCE. See Jurisdiction, II, 2.
SEVERABILITY. See Statutes, 2.
740	INDEX.
SHERMAN ACT. See Antitrust Acts.
SHIPPING. See Mutiny.
SHORT SALE. See Sales.
SIXTH AMENDMENT. See Constitutional Law, VI, (A), 6.
SPECIAL ASSESSMENTS. See Constitutional Law, III, 1.
SPECIFICATIONS. See Patents for Inventions, 3.
STATE. See Antitrust Acts, 11.
STATUTES.
1.	Administrative Construction. Change operating prospectively not precluded by antecedent interpretation. American Chicle Co. v. U. 8., 450.
2.	Severability Clause. Construction of severability clause of state statute left for adjudication by state court. Skinner v. Oklahoma, 535.
STAY. See Communications Act, 3; Jurisdiction, I, 6.
STERILIZATION. See Constitutional Law, VI, (B), 1.
STOCK. See Constitutional Law, VI, (A), 10.
STOCKYARDS. See Interstate Commerce Acts, 2-7.
STREETS. See Constitutional Law, VI, (A), 1-4.
STRIKE. See Mutiny.
SUBSIDIARY. See Taxation, I, 4.
TAXATION. See Judgments, 2; Jurisdiction, III, 4-5; IV, 6.
I. Federal Taxation, p. 740.
II.	State Taxation, p. 741.
I. Federal Taxation.
1.	Income Tax. Non-Recognition of Gains. Reorganizations. Transaction as “reorganization” and as satisfying requirements of § 112 (b) (5) of 1936 Act. Helvering v. Cement Investors, 527.
2.	Id. “Reorganization” provisions not exclusive as to deferment of gains or losses from corporate readjustments or reorganizations. Id.
3.	Income Tax. Deductions. Payment by vendee of taxes which were lien on property and for which vendor was personally liable, not deductible under 1936 Act as “taxes paid.” Magruder v. Suppléé, 394.
4.	Id. Deduction by domestic corporation of proportion of “taxes paid” by foreign subsidiary. American Chicle Co. v. U. S., 450.
INDEX.	741
TAXATION—Continued.
5.	Estate Tax. Property subject to general testamentary power of appointment unexercised by decedent, not includible under § 302 (a) of 1926 Act. Helvering v. Safe Deposit & Trust Co., 56.
6.	Id. Where property claimed by relatives of decedent as appointees and as heirs allotted by compromise, share attributable to claim as appointees includible under § 302 (f) of 1926 Act. Id.
7.	Id. Determination of how much of share imputable to claim based on exercise of power of appointment was for Board of Tax Appeals. Id.
8.	Capital Stock Tax. Application. Liquidating corporation as one “carrying on or doing business” under 1935 Act. Magruder v. Washington, B. & A. Realty Corp., 69.
9.	Id. Provision of Treasury Regulations 43 (a) (5) that “doing business” includes activities of corporation liquidating properties of another, valid and applicable. Id.
10.	Tax on Undistributed Net Income. Computation of dividends-paid credit under 1936 Act; distribution in liquidation as taxable dividend paid. Helvering v. Credit Alliance Corp., 107.
11.	Id. Construction of § 27 (f) of 1936 Act; “properly chargeable to earnings or profits” refers to distributor, not distributee; Treasury Regulations 94, Art. 27 (f), ineffective. Id.
12.	Id. Subsection (h) of § 27 of 1936 Act, dealing with “non-taxable distributions,” inapplicable. Id.
13.	Id. Section 115 (h) of 1936 Act inapplicable before amendment to distribution of property and money; effect of subsequent amendment. Id.
13.	Suit for Refund. Judgment for refund in suit against Collector no bar to later suit against United States for additional refund. U. S. v. Nunnally Investment Co., 258.
14.	Administrative Practice. Change operating prospectively not precluded by antecedent interpretation. American Chicle Co. v. £7. &, 45Q.
II. State Taxation.
1.	Transfer Tax. Validity of tax by State on transfer of shares of corporation incorporated under its laws, upon death of decedent domiciled elsewhere. State Tax Comm’n v. Aldrich, 174.
2.	Privilege Tax. Validity of ordinance requiring license for, and imposing reasonable tax on, sale of books and pamphlets on streets or from house to house, as applied to member of sect. Jones v. Opelika, 584.
TELEPHONE. See Communications Act, 2.
742	INDEX.
TERM. See Jurisdiction, II, 2.
TESTAMENTARY POWER. See Taxation, I, 5-7.
THREE-JUDGE COURT. See Jurisdiction, IV, 6-8.
TRADEMARKS.
Infringement. Recovery of Profits. Trademark owner not required to prove that but for infringing mark purchasers would have bought of him. Mishawaka Rubber Co. v. Kresge Co., 203.
TRANSFER. See Constitutional Law, NT, (A), 10; Taxation, II, 1.
TREASURY REGULATIONS. See Taxation, I, 9,11.
TREATIES. See Indians, 1-5.
TREBLE DAMAGES. See Antitrust Acts, 11.
TRESPASS. See Constitutional Law, IV, 2; Evidence, 4.
TRIAL.
Conduct of Trial. Refusal of judge to allow defense to inspect memoranda of Government witnesses, not abuse of discretion. Goldman v. U. S., 129.
TRIBES. See Indians.
UNDISTRIBUTED PROFITS. See Taxation, 1,10—13.
UNFAIR COMPETITION. See Federal Trade Commission, 1-2.
UNITED STATES. See Judgments, 2.
VALUE. See War Risk Insurance, 1, 3.
VENDOR AND VENDEE. See Taxation, I, 3.
VENUE. See Jurisdiction, I, 7.
WAGES. See Fair Labor Standards Act, 1, 5-12.
WAIVER. See Constitutional Law, V, 3; Criminal Law, 3.
WAR DEPARTMENT. See Army, 1-2.
WAR RISK INSURANCE.
1.	Proceeds. Payment. Amount due estate of insured on account of impaid installments was present value, as of date of beneficiary’s death, excluding interest. U. S. v. Citizens Loan Co., 209.
2.	Id. Delay in payment resulting from nonrecognition of claim did not entitle estate to have interest included in computing present value of installments. Id.
3.	Id. Provision of amendatory Act of 1925 relating to computation of present value, construed. Id.
INDEX.	743
WAR RISK INSURANCE—Continued.
4.	Defenses. Fraudulent Representations. Government entitled to directed verdict on facts with respect to fraudulent representations by insured in application. Pence v. U. 8., 332.
5.	Id. Representations in sworn application not evidence of own veracity when challenged as false and fraudulent. Id.
6.	Id. Upon facts of this case, intent to defraud is presumed. Id.
WATERS.
Riparian Rights. Under Mexican law, ownership of land bordering on navigable water extends to line of highest tide. Stewart v. U. 8., 354.
WIRE-TAPPING. See Evidence, 1.
WITNESSES. See Evidence, 1; Trial.
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