UNITED STATES REPORTS VOLUME 320 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1942 AND OCTOBER TERM, 1943 From June 15 to and Including June 21, 1943 (End of 1942 Term); and From October 4, 1943 Through January 10,1944 ERNEST KNAEBEL REPORTER united states GOVERNMENT PRINTING OFFICE WASHINGTON t 1944 For sale by the Superintendent of Documents, U. S. Government Printing Office Washington 25, D. C. - Price $2.75 (Buckram) Errata. 300 U. S. 498, n. 6, citation of Gunning v. Cooley should be 281 U. S. 302 U. S. 704, No. 162, citation should be 67 N. D. 341, 272 N. W. 286. 317 U. S. 627, No. 165, citation should be 122 F. 2d 213. n JUSTICES OF THE 2 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. ROBERT H. JACKSON, Associate Justice. WILEY RUTLEDGE, Associate Justice. retired CHARLES EVANS HUGHES, Chief Justice. JAMES CLARK McREYNOLDS, Associate Justice. FRANCIS BIDDLE, Attorney General. CHARLES FAHY, Solicitor General. CHARLES ELMORE CROPLEY, Clerk. THOMAS ENNALLS WAGGAMAN, Marshal. m 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, Frank Murphy, Associate Justice. For the Eighth Circuit, Wiley Rutledge, Associate Justice. For the Ninth Circuit, William 0. Douglas, Associate Justice. For the Tenth Circuit, Wiley Rutledge, Associate Justice. For the District of Columbia, Harlan F. Stone, Chief Justice. March 1, 1943. (For the next previous allotment, see 314 U. S. p. iv.) IV TABLE OF CASES REPORTED Page Abbott Company, Mach v....................... 773 Abernathy, Ex parte.......................... 219 Abrams v. Cleveland Terminals Co............. 788 Abrams v. Indianapolis Gas Co................ 795 Achtner, Ex parte............................ 209 Adams, U. S. ex rel. McCann v................ 220 Addison v. Holly Hill Fruit Products..........725 A jello v. Pan American Airways.............. 808 Alabama, Lash v.......................... 784, 814 Alabama ex rel. Smith, Wilkey v.............. 787 Alex Wasleff Building Co. v. Labor Board......789 Alfred I. DuPont Trust v. Okeechobee Co.......751 Alleghany Corporation v. Thompson............ 806 Allen v. United States....................214, 811 Alliance Brass & Bronze Co., Ex parte............. 719 Aluminum Company, United States v............ 708 Alworth v. Commissioner.......................784 A. M. Byers Co. v. Pennsylvania............. 757 American Anode v. Dewey & Almy Co............ 761 American Cord & Webbing Co. v. Greenbarg...791,815 American Distilling Co. v. L. A. Warehouse Co..790 American Surety Co., United States v. . 729 American Tube Bending Co., Labor Board v....... 768 Amrine, Frame v.............................. 213 Amrine, Swearengin v.. 765 Andrews v. Commissioner...................... 748 Andrews v. Georgia........................... 780 Angelos, Cafeteria Employees Union v............. 293 Angland, Cosgrove-Meehan Coal Corp, v........... 777 Anglim, Matcovich v.......................... 744 Arble, United States v................... 561, 722 Arenas v. United States.......................733 v VI TABLE OF CASES REPORTED. Pace Arizona, Davis v................................809 Arizona, Jobin v............................... 719 Arkansas Natural Gas Corp., Sartor v........... 727 Arnold v. United States........................ 212 Ashcraft v. Tennessee.......................... 728 Associated Industries, Ickes v................. 707 Associated Wholesale Elec. Co., Leishman v.... 794,816 Atlanta Flooring Co. v. Oberdörfer Agency...... 782 Atlantic Refining Co. v. Moller.................462 Atwood v. Hunter............................... 765 Atwood v. Kleberg.............................. 744 Axelrath v. Spencer Kellogg & Sons............. 761 Bailey v. Missouri............................. 764 Bain Peanut Co. v. Commissioner................ 721 Baker v. Bellows............................... 786 Baker v. United States......................... 799 Balfour, Guthrie & Co. v. The Zarembo.......... 804 Ballard, Spruill v..............................796 Ballard, United States v....................... 733 Baltimore & Ohio R. Co., Illinois Steel Co. v_ 508,721 Bar Association of New York, Knight v.......... 798 Barber v. Powell............................... 752 Barbour v. Commissioner........................ 778 Barge Transport Co., Dean v.................... 754 Barnes, Barnes v.............................. 741,812 Barnes v. Pennsylvania ex rel. Barnes......... 741,812 Barnett, Ex parte.............................. 719 Barnett, Continental Casualty Co. v.............740 Barnett v. Maryland Casualty Co................ 740 Bates, Miller v.................................210 Baumer v. Franklin County Distilling Co........ 750 Bausch & Lomb Co., U. S. ex rel. Brensilber v... 711,814 Bayless, Ex parte.............................. 713 Becker v. Loew’s................................811 Beckham v. Brown................................803 Bee Machine Co., Freeman v......................809 Bell v. Preferred Life Society................. 238 TABLE OF CASES REPORTED. vii Pat« Bellows, Baker v............................... 786 Benguet Consolidated Mining Co. v. Perkins.... 803,815 Bennett v. Dalton.............................. 712 Bennett v. DeGeeter........................ 759,813 Benson v. Walling.............................. 791 Bentz v. Michigan.......................... 706,812 Berke Cake Co., United States v.................807 Bess v. Mayo................................... 796 B. F. Goodrich Co. v. United States........... 722 Billings v. Truesdell.......................... 725 Billingsley v. Horrall..........................796 Binswanger & Co., McLeod v..................... 779 Bistany v. Brophy...............................765 Blair, United States v......................... 720 Blaydes v. Ragen............................... 716 Board of Commissioners, Grace v................ 708 Board of Supervisors, Dant & Russell v........ 735 Bonjiorno, Ex parte............................ 219 Bon wit Teller v. Commissioner................. 794 Boone v. Lightner...............................809 Borah, Ex parte.................................807 Bouchard Trans. Co., Schiavone-Bonomo Co. v....749 Bowen v. United States......................... 811 Bowles; Mars, Inc. v........................... 798 Bowles, Safeway Stores v....................... 797 Bowles, U. S. Gypsum Co. v..................... 799 Brady v. Southern Ry. Co..................... 476 Brazel v. Jackson.............................. 804 Brensilber v. Bausch & Lomb Co............. 711,814 Brooks v. State Farm Auto. Ins. Co..............768 Brophy, Bistany v.............................. 765 Brotherhood. See Locomotive Engineers; Locomotive Firemen; Railway & S. S. Clerks. Brown, Beckham v............................... 803 Brown, Davies Warehouse Co. v............. 713,721 Brown v. Gerdes................................ 722 Brown, Hecht Co. v......................... 713,727 vni TABLE OF CASES REPORTED. Pag» Brown; Mars, Inc. v............................ 713 Brown, Safeway Stores v........................ 713 Brown v. School District of Bethlehem.......... 782 Brown, Taylor v............................ 713, 787 Brown, U. S. Gypsum Co. v...................... 775 Brown v. Washington Gas Light Co............... 713 Brown v. Willingham............................ 713 Buchanan, Elliott v............................ 810 Buckeye Union Casualty Co. v. Ranallo.......... 745 Bundy Incubator Co., Petersime Co. v........... 805 Burall, Ex parte............................... 219 Burall v. Johnston......................... 810,812 Burford v. Sun Oil Co.......................... 214 Burford, Sun Oil Co. v......................... 214 Bums v. United States.......................... 745 Burroughs v. Sanford....................... 765,815 Butler, Thomson v.......................... 761,813 Butler Brothers v. Labor Board................. 789 Butz, Ex parte................................. 709 Byers v. Ward.................................. 803 Byers Company v. Pennsylvania.................. 757 Bynum v. Firestone Tire Co..................... 783 Cafeteria Employees Union v. Angelos........... 293 Cafeteria Employees Union v. Tsakires.......... 293 Caldwell v. Travelers Insurance Co............. 736 California, Kelley v........................... 715 California, Marvich v.......................... 712 California v. United States.................... 577 California Employment Com., Société Française v... 736 Callison v. Texas.............................. 709 Calvin Tomkins Co., MacEvoy Co. v.............. 733 Caminetti, Neblett v........................... 802 Campbell, Ex parte............................. 713 Campbell v. Missouri........................... 775 Cannes v. Oklahoma............................. 764 Carey, U. S. ex rel. Parker v...................... 755 Carr v. Martin................................. 765 TABLE OF CASES REPORTED. ix Page Carroll v. Squier.............................. 793 Carter v. Kubler........................... 243,814 Casebeer, Ex parte............................. 717 Case Company v. Labor Board.................... 210 Caspers, Watson v.............................. 214 Celanese Corporation v. Libbey Glass Co........ 744 Chapman, Home Ice Co. v........................ 761 Chein & Co., Durable Toy Corp, v............... 211 Chelan Mining Co., Twisp Mining Co. v....... 705,716 Chicago, Moody Bible Institute v.......i......... 705 Chicago, Tilney v.............................. 759 Chicago, Trust Company of Chicago v............. 737 Chicago Eye Shield Co., Cover v.............. 749,812 Chicago, M., St. P. & P. R. Co. v. Chicago, R. I. & P. Ry. Co....................................... 804 Chicago & N. W. Ry. Co. v. United States........ 718 Chicago, R. I. & P. Ry. Co., Chicago, M., St. P. & P. R. Co. v..................................... 804 C. Howard Hunt Pen Co., Radiant Point Corp. v... 773 Christoffel v. Wisconsin Employment Board....... 776 Citizens & Southern National Bank v. Comm’r..... 752 City of. See name of city. Cleveland v. Hope Natural Gas Co................591 Cleveland Terminals Building Co., Abrams v......788 Clifford F. MacEvoy Co. v. Calvin Tomkins Co....733 Clifford F. MacEvoy Co. v. United States........733 C. M. Joiner Leasing Corp., Securities Comm’n v... 344 Coe, Geophysical Development Corp, v............ 760 Cohen v. Randall............................... 796 Cohen v. United States......................... 773 Cole v. Violette............................... 810 Coleman v. Duffy............................... 767 Colgate-Palmolive-Peet Co. v. United States.. 422,816 Colley v. Tennessee............................ 766 Collins, Ex parte.............................. 209 Collins v. O’Connell........................... 754 Collins, Estate of, v. Commissioner.............489 x TABLE OF CASES REPORTED. Pace Colorado v. Kansas............................ 383 Colpoys, Rowe v............................... 783 Columbus & Greenville Ry. Co., I. C. C. v...... 809 Commercial Merchants Bank Co., Letourneau v.... 779 Commissioner, Alworth v....................... 784 Commissioner, Andrews v....................... 748 Commissioner, Bain Peanut Co. v............... 721 Commissioner, Barbour v....................... 778 Commissioner, Bonwit Teller v................. 794 Commissioner, Citizens & Southern Bank v......752 Commissioner, Dalrymple v..................... 734 Commissioner, Degnan v........................ 778 Commissioner, Dixie Pine Co. v.............516, 720 Commissioner, Dobson v........................ 489 Commissioner, Douglas v....................... 734 Commissioner, Equitable Life Society v.........733 Commissioner, Estate of Collins v................ 489 Commissioner, Estate of Robinson v.............. 734 Commissioner, Estate of Rogers v.............. 410 Commissioner, Farrell v...... i . . 745 Commissioner, Fides v...................... 797,816 Commissioner, Finck Cigar Co. v................. 736 Commissioner, Gibson v......................... 805 Commissioner, General Management Corp, v....... 757 Commissioner v. Gooch Milling Co...............418 Commissioner, Harden Mortgage Loan Co. v....... 791 Commissioner, Hartford-Empire Co. v............ 787 Commissioner, Harwick v....................... 489 Commissioner v. Heininger..................... 467 Commissioner, Interstate Transit Lines v........... 809 Commissioner, Jergens v............... i, \. 784 Commissioner, Kennedy Laundry Co. v............ 810 Commissioner v. Lane-Wells Co................. 724 Commissioner, Lane-Wells Co. v................. 741 Commissioner, Merchants National Bank v........256 Commissioner, Morris Investment Corp, v....... 743 Commissioner, Muskegon Motor Co. v............ 741 TABLE OF CASES REPORTED. xi Page Commissioner, National Securities Corp, v.. 794 Commissioner, Norris v....................... 756,813 Commissioner, Parshelsky v................. 760 Commissioner, Rainey v..................... 748 Commissioner, Raphael v.................... 735 Commissioner, Raritan Co. v................ 753 Commissioner, Security Flour Mills Co. v... 724 Commissioner, Staley v..................... 786 Commissioner, Stoddard v................... 748 Commissioner, Trico Products Corp, v............. 799 Commissioner, Underwriters’ Laboratories v. 756 Commissioner, Virginian Hotel Corp, v...... 810 Commissioner, Wilson Milling Co. v.............. 800 Compagnie Generale Transatlantique, Reichman v.. 771 Consolidated Electric & Gas Co., Fryberger v... 793,816 Consolidated Freightways v. United States........ 781 Consumers Import Co. v. Kabushiki Kaisha........ 249 Continental Casualty Co. v. Barnett.............. 740 Cooper, Ex parte................................. 718 Coral Gables v. Wright........................... 729 Cosby, Gilcrease Oil Co. v.................... 772,814 Cosgrove-Meehan Coal Corp. v. Angland............ 777 County of. See name of county. Cover v. Chicago Eye Shield Co............. 749,812 Cowan v. Fallbrook District...................... 735 Cox, Vanover v................................ 779 Coy v. Johnston............................ 788, 815 Coyle v. New York.......................... 762, 815 Cramer v. United States.......................... 730 Creekmore v. Public Belt Comm’n.................. 742 Crescent Express Lines v. United States.......... 401 Crites, Inc. v. Prudential Insurance Co.......... 728 Crites, Inc., Prudential Insurance Co. v............ 780 Crowley, Swiss National Ins. Co. v............... 763 Cushman, United States v......................... 786 Dalrymple v. Commissioner........................ 734 Dalton, Bennett v........... 712 XII TABLE OF CASES REPORTED. Page Dant & Russell v. Board of Supervisors....... 735 Davis, Ex parte.............................. 219 Davis v. Arizona............................. 809 Davis v. Dinny & Robbins..................... 811 Davis v. Massachusetts.................... 210,811 Davies Company v. Labor Board................ 770 Davies Warehouse Co. v. Brown............. 713, 721 Dayton, Ex parte............................. 219 Dean v. Barge Transport Co................... 754 Dear v. Mayo................................. 766 Deatherage v. Plummer........................ 764 DeGeeter, Bennett v....................... 759,813 Degnan v. Commissioner....................... 778 DeJordan v. Hunter........................... 779 Delaware River Ferry Co., Wallace v.760 Delendo Corporation v. Smolowe............... 751 DeMarcos v. Overholser................... 785,813 Denney v. Fort Recovery Banking Co........ 747,812 Department of Treasury, Great Lakes Co. v..... 747 Department of Treasury, Holland Furnace Co. v.. 746 Department of Treasury, Interstate Roofing Co. v.. 746 Devanney, Rea v.............................. 774 Dewey & Almy Chemical Co., Amer. Anode v......761 Diehl, Ex parte.............................. 713 Dies, Potts v................................ 808 Dilworth Co., McLeod v. . 728 Dingwell, Skinner v.......................... 742 Dinny & Robbins, Davis v..................... 811 District of Columbia v. Pace.............. 698, 726 Dixie Pine Products Co. v. Commissioner... 516, 720 Dobry v. Olson............................... 803 Dobson v. Commissioner....................... 489 Donnelly, Ex parte...........................,219 Doss v. Illinois.......................... 762, 813 Dotterweich, United States v............. 277,815 Douglas v. Commissioner...................... 734 Dowd, Kelly v................................ 786 TABLE OF CASES REPORTED. xin Page Doyle, Ex parte................................ 710 Doza, Ex parte................................. 219 Driscoll, Grant Lunch Corp, v.................. 801 Druge, Marchus v............................... 772 Dubina v. Michigan............................. 811 Duffy, Coleman v............................... 767 Dunne v. United States................. 790,814, 815 Dupont Testamentary Trust v. Okeechobee Co..... 751 Durable Toy & Novelty Corp. v. Chein & Co......211 Durkee Famous Foods v. Harrison................ 782 Durkee Famous Foods, Harrison v................ 718 Eastern Wine Corp. v. Winslow-Warren, Ltd...... 758 East Side Ice & Fuel Co. v. State Farm Ins. Co. 768 Ed. C. Wright & Co., Coral Gables v.............. 729 Eder, Ickes v.................................. 792 Edwards, Withrow v............................. 761 Egan v. United States.......................... 788 Ellerbrake v. United States.................... 810 Elliott v. Buchanan.............................810 Emmett v. Georgia.............................. 774 Empire Building Corp., Tate v................... 766 Equitable Life Society v. Commissioner......... 733 Equitable Life Society, Rafert v. 801 Erie R. Co., Youngstown v...................... 748 Estate of. See name of party. Estoduras Steamship Co., Tiedemann v............811 Ettelson, Metropolitan Life Ins. Co. v............. 777 Ettman v. Federal Life Ins. Co.............. 785,815 Evangelical Lutheran Synod v. First Church..... 757 Evans v. South Carolina........................ 750 Evenson, Ex parte............... r.710 Everglades Drainage District, Kelley v..........214 Ex parte. See name of party. Falbo v. United States..................... 209, 549 Fallbrook Public Utility Dist., Cowan v............ 735 Farrell v. Commissioner........................ 745 Farrell v. Lanagan............................. 811 XIV TABLE OF CASES REPORTED. Pat* Farris v. Virginia...............................213 Federal Crude Oil Co. v. Texas.................. 758 Federal Life Insurance Co., Ettman v....... 785, 815 Federal Power Comm’n v. Hope Gas Co..............591 Federal Power Comm’n, Niagara Falls Co. v.... 792, 815 Federal Power Comm’n, Northwestern Co. v.........722 Feldman v. United States........................ 724 Fides, A. G. v. Commissioner............... 797, 816 Finck Cigar Co. v. Commissioner................. 736 Findley, First National Bank v.................. 714 Findley, Second National Bank v................. 714 Firestone Tire & Rubber Co., Bynum v............ 783 First English Lutheran Church, Synod v.......... 757 First National Bank v. Findley.................. 714 First National Bank, Stoike v....................762 First National Benefit Society v. Stuart........ 211 First Trust & Deposit Co. v. Shaughnessy........ 744 Flavin v. Franklin Society...................... 786 Florida, Flowers v......................... 767, 811 Florida, James v................................ 710 Florida, Neal v............................ 783, 814 Flowers v. Florida......................... 767, 811 Fly, Watkins v.................................. 769 Fogle & Co. v. United States...............771, 813 Ford Motor Co. v. Gordon Lathe Co......213,714,816 Ford Motor Co., Gordon Lathe Co. v...............810 Fort Recovery Banking Co., Denney v........ 747,812 Fox, Ickes v.................................... 792 Fox v. United States............................ 773 Frame v. Amrine..................................213 Franklin County Distilling Co., Baumer v........ 750 Franklin Society for Home Bldg., Flavin v....... 786 Franks Bros. Co. v. Labor Board................. 734 Freeman v. Bee Machine Co....................... 809 Friters, Ex parte............................... 219 Fryberger v. Consolidated Gas Co........... 793,816 F. W. Woolworth Co., Wallace v.................. 739 TABLE OF CASES REPORTED. xv Page Galloway v. United States.................... 214 Garrison v. United States...................... 751 Gaskin, United States v........................ 527 Gayle, In re................................. 806 General Committee, Grievance Committee v...... 338 General Committee v. M.-K.-T. R. Co.......... 323 General Committee v. Southern Pacific Co......338 General Grievance Committee v. Committee......338 General Management Corp. v. Commissioner...... 757 General Trading Co. v. State Tax Comm’n.......731 Geophysical Development Corp. v. Coe......... 760 Georgia, Andrews v........................... 780 Georgia, Emmett v............................ 774 Gerdes, Brown v.............................. 722 Gibson v. Commissioner....................... 805 Gilcrease Oil Co. v. Cosby............... 772,814 Gillmor v. Indianapolis Gas Co............... 795 Gilmore v. New Mexico........................ 710 Glemby Company v. Monogram Mfg. Co........... 778 Globe Oil & Refining Co., Universal Oil Co. v. 730 Gobin, Ex parte...........................219,709 Golden, Ex parte............................. 709 Goldsmith, Ex parte....................... 219, 719 Goldsmith v. United States............... 781,814 Gooch, Ex parte.............................. 716 Gooch Milling & E. Co., Commissioner v........... 418 Goodrich Company v. United States............ 722 Goodyear Tire & Rubber Co. v. Ray-O-Vac Co....727 Gordon v. United States.................. 798,816 Gordon Form Lathe Co. v. Ford Co..............810 Gordon Form Lathe Co., Ford Co. v.....213, 714, 816 Gormly v. United States................... 753, 813 Grace v. Board of Commissioners.............. 708 Grant Company, Mescall v...................... 214 Grant Lunch Corp. v. Driscoll................ 801 Great Lakes Dredge & Dock Co. v. Dept, of Treasury.................................. 747 XVI TABLE OF CASES REPORTED. Page Great Northern Life Ins. Co. v. Read........... 726 Greco v. United States......................... 211 Green v. Stuart............................ 769,813 Greenbarg, Krauss v........................ 791,815 Greiner, Royer v....................... 742,813,816 Grismer, Merger Mines Corp, v.................. 794 G. T. Fogle & Co. v. United States........ 771, 813 Gust, Hughes v................................ 706 Gutterson v. Thompson....................... 755 Guyton v. United States.................... 212,811 Hamilton, Mathews v......................... 707 Hansen, Ex parte.. 219 Harden Mortgage Loan Co. v. Commissioner.... 791 Hark, United States v....................... 531 Harrison v. Durkee Famous Foods............. 718 Harrison, Durkee Famous Foods v................ 782 Hartford-Empire Co. v. Commissioner............ 787 Hartford-Empire Co., Hazel-Atlas Co. v........... 732 Hartford-Empire Co., Shawkee Mfg. Co. v........ 732 Hartman, Lubar v............................ 808 Hartzel v. United States.................... 734 Harwick v. Commissioner..................... 489 Hastings v. Selby Oil & Gas Co................. 214 Hawes, Hill v................................. 520 Hazel-Atlas Glass Co. v. Hartford-Empire Co.732 Hearst Publications, Labor Board v.... 728 Hecht Company v. Brown.................... 713,727 Hecht Company, Whiteford v................. 795,816 Hegney, Ex parte............................ 712 Heininger, Commissioner v................... 467 Hein-Werner Motor Parts Corp., Werner v........ 753 Helvering, Estate of Rogers v............... 210 Hendrix, Ex parte. w ¡ . 713 Herndon v. North Carolina................... 759 Hile, Ex parte.............................. 716 Hill v. Hawes............................... 520 Hill v. Texas............................... 806 TABLE OF CASES REPORTED. xvn Page Hillman’s, Mead Johnson & Co. v.............. 752 Hinley, Ex parte............................. 713 Hinman, Wilson v.............................. 712 Hirabayashi v. United States.................. 81 Hirsch v. United States........................ 759 Hoboken Manufacturers’ R. Co., I. C. C. v..... 368 Hoey, Jacobs v................................. 790 Holiday, Ex parte.............................. 709 Holland Furnace Co. v. Dept, of Treasury...... 746 Holly Hill Fruit Products, Addison v........... 725 Home Ice Co. v. Chapman...................... 761 Hope Natural Gas Co., Cleveland v............ 591 Hope Natural Gas Co., Power Comm’n v..........591 Horrall, Billingsley v....................... 796 Houde Engineering Corp., Pennington Co. v....... 771 Howard, Ex parte............................. 720 Hudson Co. v. Labor Board.................... 740 Huff, Reed v................................. 716 Hughes, Ex parte............................. 219 Hughes v. Gust............................. 706 Humes v. United States...................... 716 Hunt, Magnolia Petroleum Co. v................. 430 Hunter, Atwood v............................. 765 Hunter, De Jordan vi......... 779 Hunter Company v. McHugh..................... 222 Hunt Pen Co., Radiant Point Corp, v............ 773 Hutto, Ex parte............................. 219 Ickes v. Associated Industries............... 707 Ickes v. Eder................................ 792 Ickes v. Fox................................. 792 Ickes v. Parks............................... 792 Ickes, U. S. ex rel. Jordan v; 801 Illinois, Doss v......................... 762,813 Illinois v. Indiana.......................... 709 Illinois Central R. Co., Moore v............. 771 Illinois ex rel. Vieaux v. Ragen............. 788 Illinois Steel Co. v. B. & O. R. Co....... 508,721 552826—44-2 xvin TABLE OF CASES REPORTED. Page Indiana, Illinois v............................ 709 Indianapolis Gas Co., Abrams v................. 795 Indianapolis Gas Co., Gillmor v.................. 795 Indianapolis Gas Co., Pyramid Corp, v............. 795 Inland Overseas S. S. Corp. v. Polar S. S. Corp.774 Inland Steel Co. v. Lebold..................... 787 Inland Steel Co., Lebold v...................... 787 In re. See name of party. Insular Sugar Rfg. Corp. v. United States...... 750 Interstate Commerce Comm’n v. Columbus & G. Ry. Co......................................... 809 Interstate Commerce Comm’n v. Hoboken R. Co.... 368 Interstate Commerce Comm’n, Keeshin Co. v.......738 Interstate Roofing Co. v. Dept, of Treasury..... 746 Interstate Transit Lines v. Commissioner....... 809 In the matter of. See name of party. Irwin v. Lawrence.............................. 780 Isabela Irrigation Service v. United States..... 753 I. T. S. Company v. Seiberling Rubber Co........ 747 Jack Lincoln Shops v. Dry Cleaners’ Board.......208 Jackson, Ex parte.......................... 717,720 Jackson, Brazel v........s. 804 Jacksonville Paper Co. v. Labor Board.......... 772 Jacksonville Paper Co. v. United States........ 737 Jacobs v. Hoey..................................790 James v. Florida............................... 710 James V. Reuter, Inc., Walling v................. 731 Japha v. Public Service Co.................... 756 J. Chein & Co., Durable Toy Corp, v............ 211 J. E. Dilworth Co., McLeod v..................... 728 Jenkins, Ex parte.............................. 712 Jensen, Union Brokerage Co. v724 Jergens v. Commissioner........................ 784 J. I. Case Co. v. Labor Board...................210 J. L. Hudson Co. v. Labor Board................ 740 Jobin v. Arizona............................... 719 Johnson, United States v........................ 808 TABLE OF CASES REPORTED. xix Page Johnson v. Yellow Cab Transit Co............... 731 Johnston, Burall v......................... 810,812 Johnston, Coy v............................. 788,815 Johnston, Pyle v............................... 793 Johnston, Stamphill v.......................... 766 Johnston, Widmer v..................... 780 Joiner Leasing Corp., Securities Comm’n v....... 344 Jordan v. Ickes................................ 801 Kabushiki Kaisha, Consumers Co. v.............. 249 Kaiser v. United States........................ 801 Kane, Ex parte................................. 717 Kansas, Colorado v..............................383 Kansas v. Missouri............................. 706 Keasbey & Mattison Co. v. Rothensies........... 739 Keating, Ex parte.............................. 714 Keeshin Motor Express Co. v. I. C. C........... 738 Kelley v. California........................... 715 Kelley v. Everglades Drainage District......... 214 Kellogg & Sons, Axelrath v..................... 761 Kelly v. Dowd.................................. 786 Kelly, Snider v................................ 764 Kennedy Laundry Co. v. Commissioner............ 810 Kentucky, Sharpe v............................. 767 Kersh Lake Drainage Dist. v. State Bank Co......802 Kesling, Ex parte............................. 2*19 Kiker v. Philadelphia.......................... 741 King, Richardson v............................. 777 King Kard Overall Co., Krauss v............. 791,815 Kirchwehm, Payne v......................... 706, 813 Kleberg, Atwood v.............................. 744 Klinger v. United States....................... 746 Knight v. Bar Association...................... 798 Kramer v. Ohio................................. 711 Krauss v. Greenbarg......................... 791,815 Kubler, Carter v........................... 243, 814 Kushner v. United States.................... 212,808 Labor Board v. Amer. Tube Bending Co........... 768 XX TABLE OF CASES REPORTED. Page Labor Board, Butler Brothers v................ 789 Labor Board, Franks Bros. Co. v................... 734 Labor Board v. Hearst Publications............ 728 Labor Board, Hudson Co. v..................... 740 Labor Board, Jacksonville Paper Co. v. 772 Labor Board, J. I. Case Co. v................. 210 Labor Board, Marine Engineers’ Assn, v........... 777 Labor Board, Medo Photo Supply Corp, v.........723 Labor Board, National Mineral Co. v........... 753 Labor Board, N. C. Finishing Co. v............ 738 Labor Board, Polish National Alliance v........725 Labor Board v. Stockholders Publishing Co......728 Labor Board v. Times-Mirror Co................ 728 Labor Board, Trojan Powder Co. v........... 768,813 Labor Board, Virginia Electric Co. v.............. 809 Labor Board, Wasleff v........................ 789 Labor Board, Western Cartridge Co. v.......... 746 Labor Board, West Virginia Glass Co. v........ 738 Labor Board, William Davies Co. v................ 770 Ladoga Canning Co. v. United States............778 Lanagan, Farrell v.............................. 811 Land Title Bank & Trust Co., Twining v........ 758 Lane-Wells Company v. Commissioner............ 741 Lane-Wells Company, Commissioner v............ 724 Langfield v. Solventol Chemical Products...... 743 Lash v. Alabama........................... 784,814 La Société Française v. Employment Comm’n...... 736 Laudani, United States v.................... 543, 720 Lawrence, Irwin v............................. 780 Lebold v. Inland Steel Co..................... 787 Lebold, Inland Steel Co. v..,................. 787 Leishman v. Associated Electric Co......... 794,816 Leland Stanford University v. National Supply Co.. 773 Letourneau v. Commercial Bank Co............ 779 Levorsen, Sabin v..................... 209,792,815 Leydecker v. United States.................... 796 Libbey-Owens-Ford Glass Co., Celanese Corp, v.. 744 TABLE OF CASES REPORTED. xxi Page Liberty Beef Co., United States v............. 531 Lightner, Boone v............................. 809 Lincoln Joint Stock Land Bank, Niklaus v... 781, 814 Linfield College, Robinson v.................. 795 Lippard v. North Carolina..................... 749 Liss v. United States......................... 773 Lloyd v. U. S. Fidelity & Guaranty Co...... 780, 814 Locomotive Engineers, Grievance Committee v....338 Locomotive Engineers v. M.-K.-T. R. Co........ 323 Locomotive Engineers v. Southern Pacific Co....338 Locomotive Firemen & Enginemen v. Committee.... 338 Loew’s, Becker v.............................. 811 Loftin, Seneca Coal & Coke Co. v.............. 772 Lonas v. National Linen Service Corp.......... 785 Londoner v. United States................... 773 Los Angeles Warehouse Co., Amer. Distilling Co. v.. 790 Louisiana, United States v.................... 712 Louisiana, Wilson v........................... 714 Louisiana & Arkansas Ry. Co., Smith v............ 212 Louisiana Rural Rehab. Corp., Price v............ 758 Lowenstein v. United States.................. 773 Lubar v. Hartman.............................. 808 Lucas, Ex parte............................... 719 Lumare v. Missouri............................ 766 Lummus, Smith v............................... 717 Lyman v. United States........................ 800 Lyons v. Oklahoma............................. 732 MacEvoy Co. v. Calvin Tompkins Co............. 733 MacEvoy Co. v. United States.................. 733 Mach v. Abbott Co............................. 773 Magill, Travelers Ins. Co. v. ?. 811 Magnolia Petroleum Co. v. Hunt................ 430 Mahnich v. Southern Steamship Co.............. 725 Maier Brewing Co., McColgan v.................... 737 Mainella v. United States..................... 773 Marchus v. Druge.............................. 772 XXII TABLE OF CASES REPORTED. Page Marconi Wireless Co. v. United States........ 1,809 Marconi Wireless Co., United States v............ 1 Marine Engineers’ Beneficial Assn. v. Board.. 777 Mars, Inc., Ex parte........................... 710 Mars, Inc. v. Bowles........................... 798 Mars, Inc. v. Brown............................ 713 Martin, Carr v................................. 765 Martin, New York ex ret. Rogalski v........... 767,814 Martin, United States v................... 561,722 Marvich v. California.......................... 712 Maryland Casualty Co., Barnett v............... 740 Maryland Casualty Co., Seidenbach v............. 739 Massachusetts, Davis v...................... 210,811 Massachusetts, Sheppard v...................... 213 Matcovich v. Anglim............................ 744 Mathews v. West Virginia ex rel. Hamilton.... 707 Maurice, Ex parte......................... 219 Maxwell, Ex parte. . 719 Maynard v. Michigan....................... 789 Mayo, Bess v...... i........................... 796 Mayo, Dear v.............................. 766 Mayo v. United States..................... 810 McCann v. Adams........................... 220 McColgan v. Maier Brewing Co.............. 737 McConnell, Ex parte...................... 710,720 McCoy, Ex parte........................... 719 McDonald v. United States................. 804 McGregor v. United States................. 736 McHugh, Hunter Co. v.......................... 222 McLeod v. Binswanger & Co................. 779 z McLeod v. Dilworth Co..................... 728 Mead Johnson & Co. v. Hillman’s................ 752 Meckley, In the matter of...................... 760 Mediation Board, Switchmen’s Union v............ 297 Medo Photo Supply Corp. v. Labor Board......... 723 Merchants National Bank v. Commissioner...... 256 Mercoid Corp. v. Mid-Continent Co.............. 661 TABLE OF CASES REPORTED. xxm Page Mercoid Corp. v. Minneapolis-Honeywell Co.....680 Meredith v. Winter Haven...................... 228 Merger Mines Corp. v. Grismer................. 794 Mescall v. Grant Co........................... 214 Metropolitan-C o 1 u m b i a Stockholders v. New York................................... 215,809 Metropolitan District, Middle West Co. v.......... 737 Metropolitan Life Ins. Co. v. Ettelson........ 777 Meyer, New England Fish Co. v................. 771 Michaud, Ex parte......................... 719 Michigan, Bentz v......................... 706,812 Michigan, Dubina v........................ 811 Michigan, Maynard v. 789 Michigan, Robinson v.......................... 799 Michigan Unemployment Comm’n, Wayne Apts. v. 791 Mid-Continent Investment Co., Mercoid Corp, v.... 661 Middleton & Co. v. Ocean S. S. Corp........... 802 Middle West Construction v. Metro. District... 737 Midstate Horticultural Co. v. Penna. R. Co....356 Miller, Ex parte.......................... 219,716 Miller v. Bates............................... 210 Miller v. Miller.............................. 744 Miller, Miller v.............................. 744 Miller v. United States................... 732,803 Miller Motor Freight Service v. Bates......... 210 Minneapolis-Honeywell Regulator Co., Mercoid Corp, v.................................... 680 Minneapolis Iron Store v. State Tax Comm’n.... 731 Mississippi, Parker v. . 705 Mississippi Road Supply Co. v. Walling........ 752 Missouri, Bailey v............................ 764 Missouri, Campbell v.......................... 775 Missouri, Kansas v...................i. 706 Missouri, Lumare v............................ 766 Missouri, Murphy v............................ 789 Missouri & Arkansas Ry. Co., Petty v......... 738, 812 Missouri-Kansas-Texas R. Co., Committee v......323 XXIV TABLE OF CASES REPORTED. Page Missouri Pacific R. Co. v. Thompson............. 806 Moedlhammer, Ex parte........................... 209 Moller, Atlantic Refining Co. v................. 462 Monogram Manufacturing Co., Glemby Co. v....... 778 Moody v. Wickard................................ 775 Moody Bible Institute v. Chicago................ 705 Moore v. Illinois Central R. Co................. 771 Moore, United Commercial Travelers v.............211 Morrell v. New York............................. 743 Morrisdale Coal Co. v. United States............ 756 Morris & Essex R. Co. v. United States.......... 754 Morris Investment Corp. v. Commissioner........ 743 Mroz v. United States........................... 805 Murphy v. Missouri.............................. 789 Murphy, O’Hara v................................ 795 Murray v. Ned................................... 781 Muscoda Local No. 123, Tennessee Coal Co. v.... 731 Muskegon Motor Specialties Co. v. Commissioner... 741 Myers, United States v..................... 561, 722 Nash Motor Co., Swan Carburetor Co. v...... 762,812 National City Bank, Nichols & Son Co. v......... 742 National Electric Products Corp., Triangle Co. v.... 784 National Labor Relations Board. See Labor Board. National Linen Service Corp., Lonas v........... 785 National Mediation Board, Switchmen’s Union v.... 297 National Mineral Co. v. Labor Board..............753 National Securities Corp. v. Commissioner...... 794 National Supply Co., Leland Stanford U. v...... 773 Neal v. Florida............................ 783, 814 Neblett v. Caminetti............................ 802 Neblett v. Pacific Mutual Life Ins. Co.......... 802 Ned, Murray v................................... 781 Nelson, Ex parte................................ 719 Newby, Spruill v............................ 766,813 New England Fish Co. v. Meyer................... 771 New Jersey, Pitney v............................ 805 New Mexico, Gilmore v........................... 710 TABLE OF CASES REPORTED. xxv F«g« New York, Coyle v......................... 762, 815 New York, Schappes v........................... 790 New York, Wade v........................... 789,815 New York City, Metropolitan-Columbia Stockholders v....................................... 215, 809 New York City, Morrell v....................... 743 New York City, Salomon v.................. 756,794 New York ex rei. Rogalski v. Martin....... 767,814 New York Great A. & P. Tea Co. v. U. S..........783 Niagara Falls Power Co. v. Power Comm’n... 792, 815 Nichols & Son Co. v. National City Bank........ 742 Niklaus v. Lincoln Land Bank............... 781,814 Nikolas v. Witter.............................. 211 Norment, Stilwell v............................ 763 Norris v. Commissioner.................... 756,813 Norstrand Corporation v. United States......... 770 North American Co. v. Securities Comm’n........ 708 North Carolina, Herndon v.......22.............. 759 North Carolina, Lippard v. 749 North Carolina Finishing Co. v. Labor Board.... 738 Northwestern Electric Co. v. Power Comm’n.....722 Norton v. Warner Company....................... 729 Nye v. United States........................... 755 Oakland v. United States....................... 577 Oberdörfer Insurance Agency, Atlanta Co. v........ 782 Oberdörfer Realty Agency, Yoshinuma v.......... 785 Ocean Dominion S. S. Corp., Middleton & Co. v...802 O’Connell, Collins v........................... 754 O’Hara v. Murphy............................... 795 Ohio, Kramer v................................. 711 Ohio State Dental Board, Unger v................. 804 Oil City Refiners v. Socony-Vacuum Co.......... 798 Oil City Refiners, Socony-Vacuum Co. v......... 798 Okeechobee County, DuPont Trust v.... i......... 751 Oklahoma, Cannes v............................. 764 Oklahoma, Lyons v.............................. 732 Olde-Tyme Distillers Corp. v. Smolowe.......... 751 XXVI TABLE OF CASES REPORTED. Page Olson, Dobry v............................... 803 O’Neil, Ex parte................................. 716 Order of Railroad Telegraphers v. Express Agency... 727 Order of United Commercial Travelers v. Moore.....211 Osborne v. South Carolina........................ 763 Osment v. Pitcairn............................... 792 Oswald v. United States.......................... 741 Overholser, DeMarcos v...................... 785, 813 Pace, District of Columbia v.................. 698, 726 Pacific Mutual Life Ins. Co., Neblett v.......... 802 Pacific States Savings & Loan Co. v. Trede....... 739 Palmore, Ex parte................................ 720 Pan American Airways v. United States............ 751 Pan American Airways Corp., A jello v............. 808 Parker v. Carey.................................. 755 Parker v. Mississippi............................ 705 Parker v. United States.......................... 737 Parkinson, Public Service Co. v................... 776 Parks, Ickes v................................... 792 Parshelsky v. Commissioner....................... 760 Patch v. Stahly.................................. 750 Patterson v. Texas Company....................... 214 Paullin, Stanziale v............................. 797 Payne v. Kirchwehm.......................... 706, 813 Pen-Ken Gas & Oil Corp. v. Warfield Gas Co.......800 Pennington Engineering Co. v. Houde Corp......... 771 Pennroad Corporation, Steckler v................. 757 Pennsylvania, Byers Co. v....................... 757 Pennsylvania ex rel. Barnes, Barnes v........741,812 Pennsylvania R. Co., Midstate Co. v............... 356 Pennsylvania Society for Prevention of Cruelty to Animals, Whitmore v............................ 758 Peoria & Pekin Union Ry. Co., Tennant v...........721 Peplowski, Ex parte.............................. 712 Perkins, Benguet Mining Co. v............... 803, 815 Perkins & Co. v. Walling......................... 791 Perry v. United States............................743 TABLE OF CASES REPORTED. xxvn Fag* Petersime Incubator Co. v. Bundy Co............. 805 Petty v. Missouri & Arkansas Ry. Co......... 738,812 Peyton, Ex parte................................ 709 Philadelphia, Kiker v........................... 741 Phillips, Ex parte.............................. 714 Pine v. United States........................... 740 Pitcairn, Osment v...............................792 Pitney v. New Jersey.............................805 Plitz, United States v...................... 561,722 Plummer, Deatherage v........................... 764 Polar Steamship Corp., Inland Corp, v........... 774 Polish National Alliance v. Labor Board......... 725 Potts, Ex parte................................. 713 Potts v. Dies................................... 808 Powell, Barber v................................ 752 Powell v. Sanford........................... 764,814 Prebyl v. Prudential Ins. Co................ 208,808 Preferred Life Society, Bell v.................. 238 Price v. Louisiana Rural Corp................... 758 Protective Committee v. Thompson.................806 Provident Trust Co., Snyder v............... 750,812 Prudential Insurance Co. v. Crites, Inc......... 780 Prudential Insurance Co., Crites, Inc. v............ 728 Prudential Insurance Co., Prebyl v.......... 208,808 Public Belt Railroad Comm’n, Creekmore v........ 742 Public Service Co., Japha v..................... 756 Public Service Co. v. Parkinson................. 776 Puerto Rico v. United States.................... 753 Pyle v. Johnston................................ 793 Pyramid Commercial Corp. v. Indianapolis Gas Co. 795 Radiant Point Pen Corp. v. Hunt Co.............. 773 Rafert v. Equitable Life Society................ 801 Ragen, Blaydes v................................ 716 Ragen, Illinois ex rel. Vieaux v................ 788 Railroad Telegraphers v. Ry. Express Agency.....727 Railway Express Agency, Telegraphers v.......... 727 Railway & S. S. Clerks v. Transport Employees. 715,816 XXVIII TABLE OF CASES REPORTED. Page Rainey v. Commissioner........................... 748 Ranallo, Buckeye Casualty Co. v............. 745 Randall, Cohen v............................ 796 Raphael v. Commissioner..................... 735 Raritan Company v. Commissioner............. 753 Rathjen Brothers v. United States........... 797 Rayno v. United States...................... 776 Ray-O-Vac Company, Goodyear Co. v............ 727 Rea v. Devanney.................................. 774 Read, Great Northern Ins. Co. v.................. 726 Red River Barge Line v. Transport Co............. 754 Redus v. Williams...........................775 Reed v. Huff................................ 716 Reichman v. Compagnie Generale.............. 771 Reid v. Second National Bank Co............. 745 Reid v. United States..................... 775,813 Reuter, Inc., Walling v. .z....., 731 Rich v. Rich................................ 748 Rich, Rich v. 748 Richardson v. King.......................... 777 Ring, Ex parte.............................. 713 Riss & Co. v. United States................. 709 Roanoke Marble & Granite Co., United States v.720 Roberts v. United States..................... 264,768 Robinson v. Linfield College..................... 795 Robinson v. Michigan............................. 799 Robinson, Wayne v......................... 764,812 Robinson, Estate of, v. Commissioner............. 734 Rogalski v. Martin........................ 767,814 Rogan v. Samson Tire Corp........................ 770 Rogers, Estate of, v. Commissioner................410 Rogers, Estate of, v. Helvering.................. 210 Rosenberg, Semerio v....... 770 Rothensies; Keasbey & Mattison Co. v............ 739 Rottenberg v. United States...................... 730 Rowe v. Colpoys.................................. 783 Royal Blue Cab Co. v, Edwards.................... 761 TABLE OF CASES REPORTED. xxix Page Royer v. Greiner...................... 742,813,816 Rumberger v. Welsh............................ 810 Ruthven, Ex parte............................. 712 Sabin v. Levorsen..................... 209,792,815 Safeway Stores v. Bowles...................... 797 Safeway Stores v. Brown....................... 713 Salomon v. New York........................ 756,794 Samson Tire & Rubber Corp., Rogan v........... 770 Sanford, Burroughs v....................... 765, 815 Sanford, Powell v.......................... 764,814 San Francisco, Transbay Co. v................. 749 Sartor v. Arkansas Gas Corp................... 727 Schappes v. New York........................ 790 Schenley Import Corp. v. United States........ 782 Schiavone-Bonomo Corp. v. Bouchard Trans. Co.... 749 Schneiderman v. United States.............. 118,807 School District of Bethlehem, Brown v......... 782 Schwabacher, Vertex Investment Co. v.......... 754 Seattle-First National Bank, United States v....... 723 Second National Bank v. Findley............... 714 Second National Bank Co., Reid v.............. 745 Securities & Exchange Comm’n v. Joiner Corp.... 344 Securities & Exchange Comm’n, North American Co. v...................................... 708 Security Flour Mills Co. v. Commissioner...... 724 Seiberling Rubber Co., I. T. S. Co. v......... 747 Seidenbach v. Maryland Casualty Co............ 739 Selby Oil & Gas Co., Hastings v............... 214 Selser v. Stuart.............................. 769 Semerio v. Rosenberg.......................... 770 Seneca Coal & Coke Co. v. Loftin.............. 772 Sharpe v. Kentucky............................ 767 Shaughnessy, First Trust & Deposit Co. v.......... 744 Shawkee Mfg. Co. v. Hartford-Empire Co........ 732 Shell Oil Co., Slade v........................ 772 Sheppard, Ex parte............................ 209 Sheppard v. Massachusetts..................... 213 XXX TABLE OF CASES REPORTED. Page Sikich v. Springmann.......................... 783 Skidmore v. Swift & Co..................... 763,812 Skinner v. Dingwell........................... 742 Slade v. Shell Oil Co......................... 772 Smith v. Louisiana & Arkansas Ry. Co...........212 Smith v. Lummus............................... 717 Smith v. Squier............................... 774 Smith, Wilkey v............................... 787 Smolowe, Delendo Corp, v...................... 751 Snider v. Kelly............................... 764 Snyder v. Provident Trust Co.............. 750,812 Société Française v. California Comm’n........ 736 Socony-Vacuum Oil Co. v. Oil City Refiners..... 798 Socony-Vacuum Oil Co., Oil City Refiners v..... 798 Solventol Chemical Products, Langfield v....... 743 Solvite Company v. Solventol Products......... 743 Somervell, Waterman v......................... 214 Sommers, United States v...................... 808 South Carolina, Evans v....................... 750 South Carolina, Osborne v..................... 763 Southern Pacific Co., General Committee v......338 Southern Package Corp., Walton v....... 540, 719, 726 Southern Progress Publishing Co. v. Dies.......808 Southern Ry. Co., Brady v......................476 Southern Steamship Co., Mahnich v............ 725 Sparks, Ex parte.............................. 719 Spencer Kellogg & Sons, Axelrath v............ 761 Spitz, United States v..................... 561,722 Springmann, Sikich v.......................... 783 Spruill v. Ballard............................ 796 Spruill v. Newby........................... 766,813 Squier, Carroll v............................. 793 Squier, Smith v............................... 774 Stahly, Patch ................................ 750 Staley v. Commissioner........................ 786 Stamphill v. Johnston......................... 766 Standard Dredging Corp. v. Walling............ 810 TABLE OF CASES REPORTED. xxxi Page Stanziale v. Paullin............................ 797 Stark v. Wickard................................ 723 State Bank & Trust Co., Kersh Lake Dist. v...... 802 State Bar of Alabama, Grace v.................. 708 State Dry Cleaners’ Board, Lincoln Shops v......208 State Farm Mutual Auto. Ins. Co., Brooks v...... 768 State Tax Commission, General Trading Co. v.....731 Steckler v. Pennroad Corp........................757 Stilwell v. Norment............................. 763 Stockholders Publishing Co., Labor Board v...... 728 Stoddard v. Commissioner........................ 748 Stoike v. First National Bank....................762 Stornelli, U. S. Gypsum Co. v....................214 Story, Ex parte............................... 712 Stuart, First National Benefit Society v........ 211 Stuart, Green v............................. 769,813 Stuart, Selser v................................ 769 Sun Oil Co. v. Burford.......................... 214 Sun Oil Co., Burford v...........................214 Swan Carburetor Co. v. Nash Motor Co........ 762,812 Swearengin v. Amrine............................ 765 Swift & Co., Skidmore v..................... 763, 812 Swiss National Ins. Co. v. Crowley.............. 763 Switchmen’s Union v. Mediation Board.............297 Tasty Baking Co. v. United States................812 Tate v. Empire Building Corp................... 766 Taylor v. Brown............................. 713,787 Tennant v. Peoria & Pekin Ry. Co.................721 Tennessee, Ashcraft v........................... 728 Tennessee, Colley v............................. 766 Tennessee Coal, Iron & R. Co. v. Muscoda Local.... 731 Tennessee Valley Authority, Ex parte............ 717 Texas, Callison v............................... 709 Texas, Federal Crude Oil Co. v.................. 758 Texas, Hill v....................................806 Texas Company, Patterson v.......................214 Thomas P. Nichols & Son So. v. Nat. City Bank...742 t XXXII TABLE OF CASES REPORTED. Pag« Thompson, Alleghany Corp, v.................... 806 Thompson, Missouri Pacific R. Co. v............806 Thompson, Protective Committee v.............. 806 Thompson, U. S. ex rel. Gutterson v........... 755 Thomson v. Butler.......................... 761, 813 Thomson & McKinnon v. Lummus.................. 717 Tiedemann v. Estoduras S. S. Co................811 Tilney v. Chicago............................ 759 Times-Mirror Co., Labor Board v............... 728 Timmer, Westgate v............................ 755 Tomkins Co., MacEvoy Co. v.................. 733 Transbay Construction Co. v. San Francisco.....749 Travelers Insurance Co., Caldwell v736 Travelers Insurance Co. v. Magill..............811 Trede, Pacific States Savings Co. v........... 739 Triangle Conduit & Cable Co. v. Nat. Electric Corp.. 784 Trico Products Corp. v. Commissioner.......... 799 Trojan Powder Co. v. Labor Board........... 768,813 Truesdell, Billings v......................... 725 Trust Company of Chicago v. Chicago........... 737 Tsakires, Cafeteria Employees Union v......... 293 Twining v. Land Title Bank & Trust Co......... 758 Twisp Mining & Smelting Co. v. Chelan Co.... 705, 716 Underwriters’ Laboratories v. Commissioner.... 756 Unger v. Ohio Dental Board.................... 804 Union Brokerage Co. v. Jensen................. 724 Union Electric Co. v. United States........... 788 United Commercial Travelers v. Moore...........211 United States, Allen v.................... 214,811 United States v. Aluminum Co.................. 708 United States v. American Surety Co........... 729 United States v. Arble..................... 561,722 United States, Arenas v....................... 733 United States, Arnold v....................... 212 United States, Baker v........................ 799 United States v. Ballard...................... 733 United States v. Berke Cake Co................ 807 United States v. Blair........................ 720 TABLE OF CASES REPORTED. xxxm Page United States, Bowen v............................ 811 United States, Bums v............................ 745 United States, California v....................... 577 United States, Chicago & N. W. Ry. Co. v........ 718 United States, Cohen v............................ 773 United States, Colgate-Palmolive Co. v........ 422, 816 United States, Consolidated Freightways v..........781 United States, Cramer v........................... 730 United States, Crescent Express Lines v............401 United States v. Cushman.......................... 786 United States v. Dotterweich.................. 277,815 United States, Dunne v.................... 790,814,815 United States, Egan v............................. 788 United States, Ellerbrake v....................... 810 United States, Falbo v........................ 209,549 United States, Feldman v.......................... 724 United States, Fogle & Co. v.................. 771, 813 United States, Fox v.............................. 773 United States, Galloway v......................... 214 United States, Garrison v......................... 751 United States v. Gaskin........................... 527 United States, Goldsmith v.................... 781,814 United States, Goodrich Co. v..................... 722 United States, Gordon v....................... 798,816 United States, Gormly v....................... 753,813 United States, Greco v............................ 211 United States, Guyton v....................... 212,811 United States v. Hark............................. 531 United States, Hartzel v.......................... 734 United States, Hirabayashi v....................... 81 United States, Hirsch v........................... 759 United States, Humes v............................ 716 United States, Insular Sugar Corp, v.............. 750 United States, Jacksonville Paper Co. v........... 737 United States v. Johnson.......................... 808 United States, Kaiser v.......................... 801 United States, Klinger v.......................... 746 552826—44--3 xxxiv TABLE OF CASES REPORTED. Page United States, Kushner v.....................212, 808 United States, Ladoga Canning Co. v.............. 778 United States v. Laudani.................... 543, 720 United States, Leydecker v....................... 796 United States, Liss v............................. 773 United States, Londoner v....................... 773 United States v. Louisiana....................... 712 United States, Lowenstein v...................... 773 United States, Lyman v......................... 800 United States, MacEvoy Co. v.................... 733 United States, Mainella v........................ 773 United States v. Marconi Wireless Co............... 1 United States, Marconi Wireless Co. v............ 1, 809 United States v. Martin..................... 561,722 United States, Mayo v............................ 810 United States, McDonald v...................i.. 804 United States, McGregor v....................... 736 United States, Miller v...................... 732, 803 United States, Morrisdale Coal Co. v.............. 756 United States, Morris & Essex R. Co. v........... 754 United States, Mroz v........................... 805 United States v. Myers...................... 561, 722 United States, New York A. & P. Tea Co. v........ 783 United States, Norstrand Corp, v................. 770 United States, Nye v........................ 755 United States, Oakland v.................... 577 United States, Oswald v..................... 741 United States, Pan American Airways v............ 751 United States, Parker v........ 737 United States, Perry v........................... 743 United States, Pine v.............................. 740 United States v. Plitz...................... 561,722 United States, Puerto Rico v..................... 753 United States, Rathjen Brothers v................ 797 United States, Rayno v........................... 776 United States, Reid v........................ 775, 813 United States, Riss & Co. v....................... 709 TABLE OF CASES REPORTED. xxxv Page United States, Roberts v..................... 264, 768 United States, Rottenberg v..................... 730 United States v. Seattle-First National Bank..... 723 United States, Schenley Import Corp, v.......... 782 United States, Schneiderman v................ 118, 807 United States v. Sommers........................ 808 United States v. Spitz....................... 561, 722 United States, Tasty Baking Co. v............... 812 United States, Union Electric Co. v............. 788 United States, Valenti v........................ 809 United States, Von Clemm v...................... 769 United States, Washington Brewers Institute v.... 776 United States, Washington Water Power Co. v......747 United States v. Waterhouse.................... 723 United States, Wayne v.......................... 800 United States v. White......................... 729 United States, Williams v....................... 750 United States, Yakus v.......................... 730 United States,, Yasui v......................... 115 United States, Yonkers v....................... 685 United States, Zernit v......................... 801 U. S. ex rel. Brensilber v. Bausch & Lomb Co.... 711,814 U. S. ex rel. Gutterson v. Thompson............. 755 U. S. ex rel. Jordan v. Ickes................... 801 U. S. ex rel. McCann v. Adams................... 220 U. S. ex rel. Parker v. Carey................... 755 U. S. ex rel. Tennessee Valley Authority, Ex parte.. 717 U. S. Fidelity & Guaranty Co., Lloyd v....... 780,814 United States Gypsum Co. v. Bowles.............. 799 United States Gypsum Co. v. Brown............... 775 United States Gypsum Co. v. Stornelli........... 214 United Transport Employees, Clerks v......... 715,816 Universal Oil Products Co. v. Globe Co.......... 730 Valenti v. United States........................ 809 Vanover v. Cox.................................. 779 Vertex Investment Co. v. Schwabacher;........... 754 Vieaux v. Ragen................................. 788 xxxvi TABLE OF CASES REPORTED. Page Vinson v. Washington Gas Light Co.........713,730 Violette, Cole v.............................. 810 Virginia, Farris v............................ 213 Virginia Electric & Power Co. v. Labor Board..809 Virginian Hotel Corp. v. Commissioner......... 810 Von Clemm v. United States.................... 769 Wade v. New York.......................... 789,815 Wallace v. Delaware River Ferry Co............ 760 Wallace v. Woolworth Co....................... 739 Wallace Laboratories v. Woolworth Co.......... 739 Walling, Benson v............................. 791 Walling, Mississippi Road Supply Co. v........... 752 Walling v. Reuter, Inc....................... 731 Walling, Standard Dredging Corp, v............ 810 Walton v. Southern Package Corp....... 540,719,726 Ward, Byers v................................. 803 Warfield Natural Gas Co., Pen-Ken Corp, v..... 800 Warner Company, Norton v...................... 729 Washington Brewers Institute v. United States.... 776 Washington Gas Light Co., Vinson v .......... 713, 730 Washington Water Power Co. v. United States... 747 Wasleff v. Labor Board........................ 789 Waterhouse, United States v . 723 Waterman v. Somervell......................... 214 Watkins v. Fly................................ 769 Watson v. Caspers............................. 214 Watts, Ex parte............................... 718 Wayne v. Robinson......................... 764,812 Wayne v. United States..................... 800 Wayne Apartments v. Unemployment Comm’n.... 791 Welsh, Rumberger v......................... 810 Werner v. Motor Parts Corp................. 753 Western Cartridge Co. v. Labor Board.......... 746 Westgate v. Timmer............................ 755 West Virginia ex rel. Hamilton, Mathews v......... 707 West Virginia Glass Specialty Co. v. Labor Board., 738 TABLE OF CASES REPORTED. xxxvn Page White, United States v.......................... 729 Whiteford v. Hecht Co.................. 795, 816 Whitmore v. Pennsylvania Society.......... 758 Wickard, Moody v.............................. 775 Wickard, Stark v............................... 723 Widmer v. Johnston........................ 780 Wilkey v. Alabama ex rel. Smith........... 787 William Davies Co. v. Labor Board......... 770 Williams, Redus v.............................. 775 Williams v. United States................. 750 Willingham, Brown v....................... 713 Wilson, Ex parte................................ 709 Wilson v. Hinman.......................... 712 Wilson v. Louisiana....................... 714 Wilson Milling Co. v. Commissioner........ 800 Winslow-Warren, Ltd., Eastern Wine Corp, v....... 758 Winter Haven, Meredith v....................... 228 Wisconsin Employment Relations Board, Christoffel v776 Withrow v. Edwards........................ 761 Witter, Nikolas v............................... 211 Wockner, Ex parte.............................. 208 Wool worth Company, Wallace v............. 739 Wright, Coral Gables v.................... 729 Wright & Co., Coral Gables v..................... 729 W. T. Grant Co., Mescall v................ 214 Yakus v. United States.................... 730 Yasui v. United States.................... 115 Yellow Cab Transit Co., Johnson v................ 731 Yonkers v. United States.................. 685 Yoshinuma v. Oberdörfer Realty Agency..... 785 Youell, Ex parte................................ 714 Youngstown v. Erie R. Co.................. 748 Zarembo, The, Balfour, Guthrie & Co. v.... 804 Zernit v. United States................... 801 TABLE OF CASES Cited in Opinions Page Aberdeen Bank v. Chehalis County, 166 U. S. 440 715 A. B. Kirschbaum Co. v. WaUing, 316 U. S. 517 541, 542, 543 Ackerson v. United States, 15 F. 2d 268 267 Adam v. Saenger, 303 U. S. 59 443 Adams v. Burke, 17 Wall. 453 665 Adams v. Mills, 286 U. S. 397 585 Adams v. U. S. ex rel. Mc- Cann, 317 U. S. 269 221 Ah Sin v. Wittman, 198 U. S. 500 709 A. J. Phillips Co. v. Grand Trunk Western Ry. Co., 236 U. S.662 360,363,364, 367 Alabama v. Arizona, 291 U. S. 286 393 Alabama Great Southern R. Co. v. SeUers, 93 Ala. 9 242 Alabama Water Service Co. v. Harris, 221 Ala. 516 242, 243 Alaska Packers Assn. v. Industrial Accident Comm’n, 294 U. S. 532 434, 437, 438, 440, 455, 706 Alta-Cliff Co. v. Spurway, 113 Fla. 633 231 Alton R. Co. v. Gillarde, 379 IU. 308 360 Alton R. Co. v. United States, 287 U. S. 229 370 Alton R. Co. v. United States, 315 U. S. 15 409 Page Altoona Theatres v. TriErgon Corp., 294 U. S. 477 35, 57, 60 Aluminum Castings Co. v. Routzahn, 282 U. S. 92 519 Ambard v. Attorney General [1936] A. C. 322 274 American Bank & Trust Co. v. Federal Reserve Bank, 256 U.S. 350 677 American Federation of La- bor v. Labor Board, 308 U. S. 401 316 American Federation of La- bor v. Swing, 312 U. S. 321 295, 296 American National Co. v. United States, 274 U. S. 99 519 American Propeller Co. v. United States, 300 U. S. 475 58 American Railway Express Co. v. Lindenburg, 260 U. S. 584 511 American Security & Trust Co. v. District of Columbia, 224 U. S. 491 702 Anderson v. Commissioner, 78 F. 2d 636 501 Anderson v. Leblang, 125 Misc. 820 247 Anderson v. Smith, 226 U. S. 439 480 Anderson-Berney Realty Co. v. Plasida Soria, 123 Tex. 100 454 Andrews v. Winter Haven, 148 Fla. 144 231,233 Apex Electrical Mfg. Co. v. Maytag Co., 122 F. 2d 182 60 xxxix XL TABLE OF CASES CITED. Page A. P. Skidmore, The, 115 F. 791 464 Arbitman v. Woodside, 258 F. 441 108 Arizona v. California, 292 U. S.341 392 Arkansas Fertilizer Co. v. United States, 193 F. 667 361, 367 Arnson v. Murphy, 109 U. S. 238 301 Ash Sheep Co. v. United States, 252 U. S. 159 444 Association of Clerical Employees v. Railway Clerks, 85 F. 2d 152 318 Atchison, T. & S. F. Ry. Co. v. Harold, 241 U. S. 371 511 Atchison, T. & S. F. Ry. Co. v. Toops, 281 U. S. 351 483, 486 Bailey v. Alabama, 219 U. S. 219 528 Baker v. Schofield, 243 U. S. 114 702 Bakery & Pastry Drivers Local v. Wohl, 313 U. S. 572 767 Bakery & Pastry Drivers Local v. Wohl, 315 U. S. 769 295 Baltimore & Ohio R. Co. v. Groeger, 266 U. S. 521 479, 480 Baltimore & Ohio R. Co. v. Tindall, 47 F. 2d 19 483 Baltimore & Ohio R. Co. v. United States, 298 U. S. 349 371, 379, 381, 382 Baltimore & Ohio R. Co. v. United States, 305 U. S. 507 378, 583, 585, 590 Baltimore Steamship Co. v. Phillips, 274 U. S. 316 444, 445 Bandini Petroleum Co. v. Superior Court, 284 U. 8. 8 227, 228 Bank of America Assn. v. Commissioner, 126 F. 2d 48 261 Barnard v. Gibson, 7 How. 649 47 Page Barringer & Co. v. United States, 319 U. S. 1 382 Barry v. Edmunds, 116 U. S. 550 240,243 Bassick Mfg. Co. v. Hollingshead Co., 298 U. 8. 415 32 Bates & Guild Co. v. Payne, 194 U. S. 106 303 Baxley v. United States, 134 F. 2d 998 560 Bay County v. State, 116 Fla. 656 233 B. B. Chemical Co. v. Ellis, 314 U. S. 495 665, 677, 684 Beal v. Missouri Pacific R. Co., 312 U. S. 45 235 Beasley v. Texas & Pacific Ry. Co., 191 U. S. 492 670 Beaumont, S. L. & W. Ry. Co. v. United States, 282 U. S. 74 379, 380 Belden v. Hugo, 88 Conn. 500 267 Bement v. Grand Rapids & Indiana Ry. Co., 194 Mich. 64 359 Benioff Co., Ex parte, 317 U. S. 594 710 Benoit v. Mississippi, 319 U. S. 583 708 Berger v. United States, 295 U. S. 78 711 Berkman v. Tillinghast, 58 F. 2d 621 148 Bewley v. Power, Hayes & Jones Exch. Rep. 368 362 Bickell v. Smith-Hambury- Scott Welding Co., 53 F. 2d 356 34 Biddinger v. Steininger-Tay-lor Co., 25 Ohio Dec. 603 460 Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 376 U. S. 518 445 Block v. Hirsh, 256 U. S. 135 601, 655 Board of Trade v. United States, 314 U. S. 534 382 Bogardus v. Commissioner, 302 U. S. 34 494, 498, 501 Bonner v. Potterf, 47 F. 2d 852 526 TABLE OF CASES CITED. XLI Page Booth Steamship Co. v. United States, 29 F. Supp. 221 583 Borchard v. California Bank, 310 U. S. 311 247 Botwinski, Ex parte, 314 U. S. 586 220 Bowen v. Johnston, 306 U. S. 19 220 Bowers v. Kerbaugh-Empire Co., 271 U. S. 170 417 Boyd v. Frankfort, 117 Ky. 199 111 Bradford Electric Light Co. v. Clapper, 286 U. S. 145 459 Branch v. Cahill, 88 F. 2d 545 147 Bridges v. California, 314 U. S. 252 158 Brimstone Railroad & Canal Co. v. United States, 276 U. S. 104 376 Broderick v. Rosner, 294 U. S. 629 438, 455 Brooks v. United States, 267 U. S. 432 85 Brotherhood of Clerks v. Nashville, C. & St. L. Ry. Co., 94 F. 2d 97 319 Brotherhood of Clerks v. Virginian Ry. Co., 125 F. 2d 853 318 Brotherhood of Locomotive Firemen & Enginemen v. Kenan, 87 F. 2d 651 318 Brotherhood o f Railroad Trainmen v. National Mediation Board, 88 F. 2d 757 301,318,336 Brotherhood o f Railroad Trainmen v. National Mediation Board, 135 F. 2d 780 301, 336 Brown v. Helvering, 291 U. S. 193 519 Bryant Electric Co. v. Marshall, 169 F. 426; 185 F. 499 676 Buckeye State, The, 39 F. Supp. 344 253 Bull v. United States, 295 U. S. 247 421 Page Burford v. Sun Oil Co., 319 U. S. 315 235 Burnet v. Sanford & Brooks Co., 282 U. S. 359 504 Bums v. United States, 287 U. S. 216 272 Burr, Ex parte, 9 Wheat. 528 708 Burroughs Building Ma- terial Co. v. Commissioner, 47 F. 2d 178 473 Butte, A. & P. Ry. Co. v. United States, 290 U. S. 127 304,320 Butte & Superior Copper Co. v. Clark-Montana Realty Co., 249 U. S. 12 701 Button v. Atchison, T. & S. F. Ry. Co., 1 F. 2d 709 360, 362, 363 Caldy, The, 153 F. 837 466 Campbell v. Grimes, 62 Kan. 503 399 Carbice Corp. v. American Patents Corp., 283 U. S. 27 663, 664, 667, 674, 676, 678 Catanzaro, Ex parte, 138 F. 2d 100 551 Cavanaugh v. Looney, 248 U. S. 453 236 Cayuga, The, 14 Wall. 270 466 Central Kentucky Gas Co. v. Railroad Comm’n, 290 U. S. 264 235 Champlin Refining Co. v. Corporation Comm’n, 286 U. S. 210 227 Chanler v. Kelsey, 205 U. S. 466 414 Chaplinsky v. New Hamp- shire, 315 U. S. 568 712 Chase National Bank v. United States, 278 U. S. 327 417 Cheatham v. United States, 92 U. S. 85 496 Chemical Co. v. Ellis, 314 U. S. 495 665, 677, 684 Chesapeake & Ohio Ry. Co. v. Martin, 283 U. S. 209 511 XLII TABLE OF CASES CITED. Page Chicago v. Fieldcrest Dairies, 316 U. S. 168 236 Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U. S. 339 603 Chicago Great Western Ry. Co. v. Hopkins, 48 F. Supp. 60 515 Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472 479 Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418 619, 621, 625 Chicago, R. I. & P. Ry. Co. v. Elder, 270 U. S. 611 443 Chicago, R. I. & P. Ry. Co. v. Schendel, 270 U. S. 611 434, 441,442,444,446,448,451 Chicago, R. I. & P. Ry. Co. v. Schwyhart, 227 U. S. 184 242 Childers v. Commissioner, 80 F. 2d 27 501 Christie v. Seybold, 55 F. 69 34 Christmas v. Russell, 5 Wall. 290 438,439 Cincinnati Soap Co. v. United States, 301 U. S. 308 425 Cincinnati Soap Co. v. United States, 22 F. Supp. 141 423 Citizens National Bank v. Kentucky, 217 U. S. 443 715 City of. See name of city. City of Norfolk, The, 266 F. 641 464 City of Norwich, The, 118 U. S. 468 252 Clark v. Allaman, 71 Kan. 206 399 Clarke v. Deckebach, 274 U. S. 392 101 Clyatt v. United States, 197 U. S. 207 528,529 Cohen, Ex parte, 254 F. 711 108 Colgate-Palmolive-Peet Co. v. United States, 320 U. S. 422 718 Colorado v. United States, 271 U. S. 153 690 Colorado National Bank v. Bedford, 310 U. S. 41 715 Page Colorado National Bank v. Commissioner, 305 U. S. 23 498 Columbia County Comm’rs v. King, 13 Fla. 451 231, 233 Columbus Gas & Fuel Co. v. Public Utilities Comm’n, 292 U. S.398 616,638,651 Colyer v. Skeflington, 265 F. 17 148 Commissioner v. Bank of America Assn., 133 F. 2d 753 259 Commissioner v. Bonfils Trust, 115 F. 2d 788 259 Commissioner v. Central United National Bank, 99 F. 2d 568 518 Commissioner v. People’s- Pittsburgh Trust Co., 60 F. 2d 187 473 Commissioner v. Sunset Scavenger Co., 84 F. 2d 453 473 Commissioner v. United States & International Securities Corp., 130 F. 2d 894 505 Commissioners v. Clark, 94 U. S. 278 479 Commonwealth Trust Co. v. Bradford, 297 U. S. 613 234 Connecticut v. Massachusetts, 282 U. S. 660 393 Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405 23 Continental Tie & Lumber Co. v. United States, 286 U. S. 290 519 Converse v. Hamilton, 224 U. S. 243 438 Cook v. Metropolitan Life Ins. Co., 186 S. C. 77 241 Corliss v. Bowers, 281 U. S. 376 417 Coughran v. Bigelow, 164 U. S. 301 480 Cox v. New Hampshire, 312 U. S. 569 712 Craig v. Continental Insurance Co., 141 U. S. 638 252 Crane v. Abel, 67 Mich. 242 362 TABLE OF CASES CITED. XLIII Page Crane v. Hahlo, 258 U. S. 142 301 Credit Co. v. Arkansas Central Ry. Co., 128 U. S. 258 525 Creek Nation v. United States, 318 U. S. 629 567 Cromwell v. County of Sac, 94 U. S. 351 671 Crosby v. Metropolitan Life Ins. Co., 167 S. C. 255 241 Crowell v. Benson, 285 U. S. 22 695 Cummings v. Mississippi, 319 U. S. 583 708 Current, Ex parte, 314 U. S. 578 220 Currin v. Wallace, 306 U. S. 1 112 Curry v. McCanless, 307 U. S. 357 717 Dakota Central Tel. Co. v. South Dakota, 250 U. S. 163 109 Dana v. Dana, 185 Mass. 156 262 Dante, Ex parte, 228 U. S. 42Q 599 Danzer & Co. v. Gulf & Ship Island R. Co., 268 U. S. 633 359, 363 Davies’ Estate v. Commia-sioner, 126 F. 2d 294 518 Davis, Ex parte, 317 U. S. 592 220 Davis v. Davis, 305 U. S. 32 438 Davis v. Mills, 194 U. S. 451 359, 360 Davis v. Pringle, 268 U. S. 315 287 Dayton Power & Light Co. v. Public Utilities Comm’n, 292 U. S. 290 605,638,651 Debs v. United States, 249 U. S. 211 109 DeForest Radio Co. v. General Electric Co., 283 U. S. 664 35,52 DeGray v. Miller Bros. Construction Co., 106 Vt. 259 441 De Jonge v. Oregon, 299 U. S. 353 160 Page Del Vecchio v. Bowers, 296 U. S. 280 702 Denver Omnibus & Cab Co. v. Ward Auction Co., 47 Colo. 446 247 Department of Banking v. Pink, 317 U. S. 264 526 Deputy v. du Pont, 308 U. S. 488 471 Des Moines National Bank v. Fairweather, 263 U. S. 103 715 Detroit Bank v. United States, 317 U. S. 329 100 Detrola Radio Corp. v. Hazeltine Corp., 313 U. S. 259 52 Devanny, Ex parte, 48 C. L. R. 487 148 Dickson v. Slater Steel Rig Co., 138 Okla. 238 362 Di Giovanni v. Camden Insurance Assn., 296 U. S. 235 Dill v. The Bertram, Fed. Cas. 3910 253 Direct Sales Co. v. United States, 319 U. S. 703 677 District of Columbia v. Murphy, 314 U. S. 441 699, 700 Dobson v. Commissioner, 320 U. S. 489 475, 701 Dobson v. Helvering, 320 U. S. 489 519 Donnelley v. United States, 276 U. S. 505 355 Dougherty’s Sons v. Com- missioner, 121 F. 2d 700 518 Douglas v. Jeannette, 319 U. S.157 235 Downman v. Texas, 231 U. S. 353 352 Driscoll v. Edison Light & Power Co., 307 U. S. 104 627,629 Drumheller v. Berks County Local Board No. 1, 130 F. 2d 610 108 Dunn v. Ohio, 318 U. S. 739 208 Dunn v. United States, 284 U. S. 390 279 XLIV TABLE OF CASES CITED. Page Duryea, Matter of, 277 N. Y. 310 413 Eaddy v. Greensboro-Fayetteville Bus Lines, 191 S. C. 538 241 Earle & Stoddart v. Eller-man’s Wilson Line, 287 U. S. 420 252,253 East Ohio Gas Co. v. Akron, 81 Ohio St. 33 633 Eaton v. Commissioner, 81 F. 2d 332 501 Ecker v. Western Pacific R. Corp., 318 U. S. 448 718 Eldred v. Bank, 17 Wall. 545 445 Electric Cable Co. v. Edison Co., 292 U. S. 69 32 Elmhurst Cemetery Co. v. Commissioner, 300 U. S. 37 498 Elston v. McGlauflin, 79 Wash. 355 247 England v. Gebhardt, 112 U. S.502 535 Ensten v. Simon Ascher & Co., 282 U. S. 445 57, 58 Equitable Life Assurance Society v. Carmody, 131 F. 2d 318 247, 249 Equitable Life Assurance Society v. Deutschle, 132 F. 2d 525 246 Erie R. Co. v. Tompkins, 304 U. S. 64 231,237,445 Ethyl Gasoline Corp. v. United States, 309 U. S. 436 665 Etna Maru, The, 33 F. 2d 232 251, 253, 256 Europe, The, 190 F. 475 466 Ex parte. See name of party. Fall v. Eastin, 215 U. S. 1 438 Farley v. Heininger, 105 F. 2d 79 469 Fauntleroy v. Lum, 210 U. S. 230 438, 439, 441 Federal Power Comm’n v. Natural Gas Pipeline Co., 315 U. S. 575 597, 601,602,603,606,620,628 Page Federal Surety Co. v. Cook, 119 Tex. 89 435 Federal Trade Comm’n v. Keppel & Bro., 291 U. S. 304 709 Ferguson v. Port Huron & Sarnia Ferry Co., 13 F. 2d 489 574 Fernandas v. Commissioner, 65 F. 2d 593 148 Fidelity-Phenix Fire Ins. Co. v. Murphy, 226 Ala. 226 242 Fidelity Trust Co. v. Field, 311 U. S. 169 234, 237 Fierstein, Ex parte, 41 F. 2d 53 128,148 Finney v. Guy, 189 U. S. 335 445 Fire Department v. Gilmour, 149 N. Y. 453 559 First National Bank v. Snead, 24 F. 2d 186 259 Fleitmann v. Welsbach Street Lighting Co., 240 U. S. 27 671 Fletcher v. United States, 129 F. 2d 262 108 Florida v. United States, 282 U. S. 194 690, 695 Fordham Bus Corp., Re, 41 F. Supp. 712 406 Fortmueller v. Commissioner, 14 F. Supp. 484 148 France Manufacturing Co. v. Jefferson Electric Co., 106 F. 2d 605 60 Fred Benioff Co., Ex parte, 317 U. S. 594 710 Frizell v. Bindley, 144 Kan. 84 400 Galloway v. United States, 319 U. S. 372 480 Galveston, H. & S. A. Ry. Co. v. Webster Co., 27 F. 2d 765 360 Garfield v. Goldsby, 211 U. S. 249 322 Gauthier v. Atchison, T. & S. F. Ry. Co., 176 Wis. 245 359 Gayler v. Wilder, 10 How. 477 35 TABLE OF CASES CITED. XLV Page General American Tank Car Corp. v. Terminal Co., 308 U. S. 422 383 General Committee of Adjustment v. Missouri-Kansas-Texas R. Co., 320 U. S. 323 301, 316, 339, 715 General Committee of Adjustment v. Southern Pacific Co., 320 U. S. 338 715 General Electric Co. v. Wadbash Corp., 304 U. S. 364 665 General Grievance Committee v. General Committee of Adjustment, 320 U. S. 338 715 Georgia v. Evans, 316 U. S. 159 287 Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U. S. 190 511 Gilbert v. Des Lauriers Column Mould Co., 180 App. Div. 59 457 Gilchrist v. Interborough Rapid Transit Co., 279 U. S. 159 236 Girard Trust Co. v. Helver- ing, 301 U. S. 540 420 Glasser v. United States, 315 U. S. 60 112 Goff v. United States, 135 F. 2d 610 551, 560 Gooch v. United States, 297 U. S. 124 351, 530 Gordon v. Ominsky, 294 U. S. 186 235 Gordon v. United States, 2 Wall. 561; 117 U. S. 697 169 Gordon v. Washington, 295 U. S. 30 235 Gorin v. United States, 312 U. S. 19 85 Graves v. Minnesota, 272 U. S. 425 711 Gray v. Powell, 314 U. S. 402 321, 494, 501 Greathouse v. Dern, 289 U. S. 352 236 Page Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293 58,235 Great Northern Ry. Co. v. Commissioner, 40 F. 2d 372 473 Great Northern Ry. Co. v. United States, 277 U. S. 172 303,718 Great Western, The, 118 U. S. 520 254 Greenberg, Application of, 39 F. Supp. 13 108 Greenleaf Textile Corp. v. Commissioner, 65 F. 2d 1017 421 Gregg Cartage Co. v. United States, 316 U. S. 74 404, 409,710 Gregory v. Southern Pacific Co., 157 F. 113 360 Gress v. Village of Ft. Lora- mie, 100 Ohio St. 35 633 Griffiths v. Commissioner, 308 U.S. 355 417,498 Group of Institutional In- vestors v. Chicago, M., St. P. & P. R. Co., 318 U. S. 523 602,718 Guaranty Trust Co. v. United States, 304 U. S. 126 706 Gulf, C. & S. F. Ry. Co. v. Texas Packing Co., 244 U. S.31 511 Gully v. First National Bank, 299 U. S. 109 337 Gunning v. Cooley, 281 U. S. 90 479,480 Haggar Co. v. Helvering, 308 U. S. 389 428 Hall, In re, 100 Vt. 197 267 Hamilton v. Dillin, 21 Wall. 73 91 Hamilton v. Kentucky Distilleries Co., 251 U. S. 146 110 Hamilton v. Regents, 293 U. S. 245 553 Hampton v. McConnell, 3 Wheat. 234 438 Hargis v. McWilliams Co., 9 La. App. 108 434 XLVI TABLE OF CASES CITED. Page Harper v. Zimmermann, 41 F. 2d 261 35 Harrisburg, The, 119 U. S. 199 362 Harrison v. Durkee Famous Foods, 136 F. 2d 303 423 Harrisonville v. Dickey Clay Co., 289 U. S. 334 670 Hartford-Connecticut Trust Co. v. Eaton, 36 F. 2d 710 259 Hassett v. Welch, 303 U. S. 303 424 Hawk, Ex parte, 318 U. S. 746 220 Hawkes v. Moxey, 86 L. J. K. B. 1530 560 Heike v. United States, 217 U. S. 423 525 Heininger v. Farley, 308 U. S. 587 469 Helvering v. Clifford, 309 U. S. 331 501 Helvering v. Griffiths, 318 U. S.371 622 Helvering v. Grinnell, 294 U. S. 153 412,415,417 Helvering v. Hallock, 309 U.S. 106 414,417 Helvering v. Hampton, 79 F. 2d 358 472 Helvering v. Horst, 311 U. S. 112 417 Helvering v. Kehoe, 309 U. S. 277 498 Helvering v. Lazarus & Co., 308 U. S. 252 475, 498 Helvering v. National Grocery Co., 304 U. S. 282 498 Helvering v. National Outdoor Advertising Bureau, 89 F. 2d 878 470, 471 Helvering v. Rankin, 295 U. S. 123 498, 501 Helvering v. State-Planters Bank Co., 130 F. 2d 44 505 Helvering v. Stockholms Enskilda Bank, 293 U. S. 84 351 Helvering v. Stuart, 317 U. S. 154 414 Helvering v. Superior Wines & Liquors, 134 F. 2d 373 470, 471, 473 Page Helvering v. Tex-Penn Oil Co., 300 U.S. 481 494,498,501 Helvering v. Winmill, 305 U. S. 79 260 Henry v. A. B. Dick Co., 224 U. S. 1 664, 667 Higgins v. Commissioner, 312 U. S. 212 498 Highland v. Russell Car Co., 279 U. S. 253 110, 655 Hill v. Texas, 316 U. S. 400 100 Hinderlider v. La Plata River Co., 304 U. S. 92 392 Hipolite Egg Co. v. United States, 220 U. S. 45 280 Hirabayashi v. United States, 320 U. S. 81 116 Hobbs v. Beach, 180 U. S. 383 34 Hoke v. United States, 227 U. S. 308 711 Holloway v. Thompson, 42 N. E. 2d 421 352 Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 110 Home Insurance Co. v. Dick, 281 U. S. 397 440 Honeyman v. Hanan, 300 U. S. 14 767 Hood v. McGehee, 237 U. S. 611 438 Hoopeston Canning Co. v. Cullen, 318 U. S. 313 456 Hormel v. Helvering, 312 U. S. 552 44, 470, 475 Houston v. St. Louis Inde- pendent Packing Co., 249 U. S. 479 303 Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342 690 Hughey v. Ware, 34 N. M. 29 441 Humes v. United States, 276 U. S. 487 261,262 Humiston v. Stainthorp, 2 Wall. 106 47 Humphreys v. State ex rel. Palm Beach Co., 108 Fla. 92 231 Huntington v. Attrill, 146 U. S. 657 438 TABLE OF CASES CITED. XLVII Page Husty v. United States, 282 U. S. 694 117 Ickes v. Fox, 300 U. S. 82 322 Illinois Commerce Comm’n v. Thomson, 318 U. S. 675 691 Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U. S. 498 609 In re. See name of party. International Harvester Co. v. Kentucky, 234 U. S. 216 655 International Ry. Co. v. Davidson, 257 U. S. 506 569,574,575 Interstate Commerce Comm’n v. Railway Labor Executives Assn., 315 U. S. 373 660 Interstate Power Co. v. Industrial Commission, 203 Wis. 466 457,460 Isbrandtsen-Moller Co. v. United States, 300 U. S. 139 91 Ithaca Trust Co. v. United States, 279 U. S. 151 259, 261,263 Jacobson v. Massachusetts, 197 U. S. 11 553 J. A. Dougherty’s Sons v. Commissioner, 121 F. 2d 700 518 Jamestown v. Pennsylvania Gas Co., 263 F. 437 633 Johannessen v. United States, 225 U. S. 227 124, 125, 161, 163, 168, 173, 177 John Hancock Mutual Life Ins. Co. v. Bartels, 308 U. S. 180 247 Johnson v. Employers Liability Corp., 99 S. W. 2d 979 452 Jurgans, Ex parte, 17 F. 2d 507 148 Kadane v. Clark, 135 Tex. 496 354 Kansas v. Colorado, 185 U. S. 125 384 Kansas v. Colorado, 206 U. S. 46 384, 388,391,392,393,395,396 Page Kansas City Southern Ry. Co. v. Wolf, 261 U. S. 133 360,363 Keene v. The Whistler, Fed. Cas. 7645 253 Kelleam v. Maryland Casualty Co., 312 U. S. 377 235 Kendall v. Winsor, 21 How. 322 665 Kenmotsu v. Nagle, 44 F. 2d 953 147 Kenney v. Supreme Lodge, 252 U. S. 411 438, 439, 446 Keokee Coke Co. v. Taylor, 234 U. S. 224 100 Kepner v. United States, 195 U. S. 100 276 Kerst v. Nelson, 171 Minn. 191 353 Kessler v. Strecker, 307 U. S. 22 180 Kibbe v. Benson, 17 Wall. 624 124,168 King, In re Estate of, 94 Mich. 411 362 King v. Commonwealth, 246 Mass. 57 267 King v. Hush, 48 C. L. R. 487 148 Kirschbaum Co. v. Walling, 316 U. S.517 541, 542, 543 Kjar v. Doak, 61 F. 2d 566 147 Klatt v. Guaranteed Bond Co., 213 Wis. 12 354 Klaxon Co. v. Stentor Co., 313 U. S. 487 437,445 Kline v. Burke Construction Co., 260 U. S. 226 234 Korematsu v. United States, 319 U. S. 432 274 Komhauser v. United States, 276 U. S. 145 470,471,472 Kriebel v. United States, 10 F. 2d 762 267 Labor Board v. Waterman S. S. Corp., 309 U. S. 206 494 Lange, Ex parte, 18 Wall. 163 266 Larsen v. Northland Transportation Co., 292 U. S. 20 671 Lee v. Bond-Howell Lumber j Co., 123 Fla. 202 231 XLVIII TABLE OF CASES CITED. Page Leeds & Catlin Co. v. Victor Talking Machine Co. (No. 1) , 213 U.S. 301 667 Leeds & Catlin Co. v. Victor Talking Machine Co. (No. 2) , 213 U. S. 325 663,668,675 Legg’s Estate v. Commissioner, 114 F. 2d 760 413,417 Lehigh Valley R. Co. v. United States, 243 U. S. 444 380 Leishman v. Associated Electric'Co., 318 U. S. 203 526 Leitch Manufacturing Co. v Barber Co., 302 U. S. 458 663, 664, 674 Lewis v. Rothensies, 138 F. 2d 129 413 Landheimer v. Illinois Bell Tel. Co., 292 U. S. 151 597, 602,605,606 Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 227 Liverpool Insurance Co. v. Board of Assessors, 221 U. S. 346 717 Lockerty v. Phillips, 319 U.S. 182 168 Loom Co. v. Higgins, 105 U. S.580 34 Loose-Wiles Biscuit Co. v. Rasquin, 95 F. 2d 438 423 Los Angeles Gas & Electric Corp. v. Railroad Comm’n, 289 U. S. 287 602,622 Los Angeles Switching Case, 234 U. S. 294 378 Louisiana v. McAdoo, 234 U. S.627 303 Louisiana & Pine Bluff Ry. Co. v. United States, 257 U. S. 114 379,383 Louisiana & Western R. Co. v. Gardiner, 273 U. S. 280 362 Louisville Cement Co. v. Interstate Commerce Comm’n, 246 U. S. 638 363, 364 Louisville & Nashville R. Co. v. Central Iron & Coal Co., 265 U. S. 59 360,512,513 Page Louisville & Nashville R. Co. v. Maxwell, 237 U. S. 94 361 Louisville & Nashville R. Co. v. Rice, 247 U. S. 201 300,323 Lucas v. American Code Co., 280 U. S. 445 519 Lucas v. Mercantile Trust Co., 43 F. 2d 39 259 Luria v. United States, 231 U. S. 9 161,173,177 Lyeth v. Hoey, 305 U. S. 188 414 Lynch v. New York ex rel. Pierson, 293 U. S. 52 767 Macintosh v. United States, 42 F. 2d 845 553 Mackay Radio Co. v. Radio Corporation, 306 U. S. 86 34 Mahn v. Harwood, 112 U. S. 354 23 Maibaum v. United States, 232 U. S. 714 173 Main, The, v. Williams, 152 U. S. 122 254 Malcolm Baxter, The, 277 U. S. 323 484 Maney v. United States, 278 U. S. 17 162,173,175 Manufacturers Ry. Co. v. United States, 246 U. S. 457 694 Marbury v. Madison, 1 Cranch 137 318 Marconi v. British Radio Tel. & Tel. Co., 27 T. L. R. 274 36, 64, 71 Marconi v. Helsby Wireless Tel. Co., 30 T. L. R. 688 64 Marconi Wireless Telegraph Co. v. DeForest Co., 225 F. 65 37 Marconi Wireless Telegraph Co. v. Kilbourne & Clark Mfg. Co., 239 F. 328; 265 F. 644 37, 64 Marconi Wireless Telegraph Co. v. National Signalling Co., 213 F. 815 5, 36, 64 Marconi Wireless Telegraph Co. v. United States, 320 U. S. 1 665 TABLE OF CASES CITED. XLIX Page Marcus Brown Holding Co. v. Feldman, 256 U. S. 170 655 Martin v. Mott, 12 Wheat. 19 93, 554 Marvin v. Trout, 199 U. S. 212 709 Mason Co. v. Tax Comm’n, 302 U. S. 186 91 Matter of. See name of party. Matthews v. Rodgers, 284 U. S. 521 235 Matton Steamboat Co. v. Murphy, 319 U. S. 412 525 Maxwell Land-Grant Case, 121 U. S. 325 125 Maytag Co. v. Hurley Co., 307 U. S. 243 57, 60 McClain v. Ortmayer, 141 U. S. 419 23 McClellan v. Carland, 217 U. S. 268 234 McCulloch v. Maryland, 4 Wheat. 316 101 McDermott v. Wisconsin, 228 U. S. 115 280 McDonald, Ex parte, 253 F. 99 108 McDonald v. Thompson, 305 U. S. 263 409 McGoldrick v. Compagnie Generale, 309 U. S. 430 227 McGourkey v. Toledo & Ohio Central Ry. Co., 146 U. S. 536 47 McKane v. New Amsterdam Casualty Co., 199 So. 175 456 McKinley v. United States, 249 U. S. 397 93 McLaughlin’s Case, 274 Mass. 217 457 McLeam v. Hill, 276 Mass. 519 359 McNaughton v. Johnson, 242 U. S. 344 711 Mellon v. Minneapolis, St. P. & S. S. M. Ry. Co., 11 F. 2d 332 576 Mellon v. Minneapolis, St. P. & S. S. M. Ry. Co., 285 F. 980 576 552826—44---4 Page Merchants National Bank v. Commissioner, 320 U. S. 256 498 Merchants Warehouse Co. v. United States, 283 U. S. 501 584 Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661 681, 684 Metropolitan Life Ins. Co. v. New Orleans, 205 U. S. 395 717 Micheli v. Paullin, 45 F. Supp. 687 108 Michigan Insurance Bank v. Eldred, 130 U. S. 693 706 Middlebrook v. Texas Indemnity Ins. Co., 112 S. W. 2d 311 435 Middleton v. Texas Power & Light Co., 108 Tex. 96 454 Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U. S. 356 511 Migues’s Case, 281 Mass. 373 457 Milcor Steel Co. v. Fuller Co., 316 U. S. 143 23, 58 Milk Wagon Drivers Union v. Meadowmoor Co., 312 U. S. 287 296 Miller v. Aderhold, 288 U. S. 206 267 Miller v. Stuart, 69 Utah 250 354 Miller v. United States, 11 Wall. 268 93 Milligan, Ex parte, 4 Wall. 2 92,110 Milwaukee County v. White Co., 296 U. S. 268 438,439 Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469 483 Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211 479 Minnesota v. Wisconsin, 252 U. S. 273 392 Mississippi Valley Barge Line Co. v. United States, 292 U. S. 282 381,501 L TABLE OF CASES CITED. Page Missouri v. Illinois, 180 U. S. 208 392 Missouri v. Illinois, 200 U. S. 496 393 Missouri v. Kansas Gas Co., 265 U. 8. 298 609 Missouri v. Ross, 299 U. S. 72 253 Missouri ex rel. Southwestern Bell Tel. Co. v. Public Service Comm’n, 262 U. S. 276 603 Mobile & Montgomery R. Co. v. Ashcraft, 48 Ala. 15 242 Monongahela Bridge Co. v. United States, 216 U. S. 177 559 Mooney v. Holohan, 294 U. S. 103 220 Morgan v. Commissioner, 309 U. S. 78 413 Morton Salt Co. v. Suppiger Co., 314 U. S. 488 664,665, 668, 669, 670, 676, 681, 684 Moser v. Mortgage Guaran- tee Co., 123 F. 2d 423 246, 247,248 Moss v. United States, 72 F. 2d 30 267 Motion Picture Co. v. Universal Film Co., 243 U. S. 502 664,665,676 Mulford v. Smith, 307 U. S. 38 300, 323, 655 Muncie Gear Co. v. Outboard Motor Co., 315 U. S. 759 44,57 Munn v. Illinois, 94 U. S. 113 601 Murdoch v. Clark, 53 F. 2d 155 148 Nash v. United States, 229 U. S. 373 285 Nashville, C. & St. L. Ry. v. Railway Employee s’ Dept., 93 F. 2d 340 319 National Electric Signalling Co. v. Telefunken Wireless Co., 209 F. 856 79, 80 National Federation of Railway Workers v. National Mediation Board, 110 F. 2d 529 318 Page National Labor Relations Board v. Waterman S. S. Corp., 309 U. S. 206 494 National Prohibition Cases, 253 U. S. 350 137 Nebbia v. New York, 291 U. S. 502 208,601 Ness v. Fisher, 223 U. S. 683 322 Neuberger v. Commissioner, 311 U.S. 83 351 New Amsterdam Casualty Co. v. Hyde, 148 Ore. 229 354 Newark Natural Gas & Fuel Co. v. Newark, 242 U. S. 405 650 Newcomerstown v. Consolidated Gas Co., 100 Ohio St. 494 633 New England Divisions Case, 261 U. S. 184 378,381 New Jersey v. New York, 283 U. S. 336 392 New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344 254 New York v. New Jersey, 256 U. S. 296 392,393 New York Central & H. R. R. Co. v. United States, 212 U. S. 481 281,291 New York Central & H. R. R. Co. v. York & Whitney Co., 256 U. S. 406 511, 513 New York Central R. Co. v. Ambrose, 280 U. S. 486 483 New York Central R. Co. v. White, 243 U. S. 188 456 New York ex rel. Whitman v. Wilson, 318 U. S. 688 708 New York Life Insurance Co. v. Head, 234 U. S. 149 440 Niles Bement Pond Co. v. United States, 281 U. S. 357 519 Noble v. United States, 319 U. S. 88 408 North Dakota v. Minnesota, 263 U. S. 365 393 North Star, The, 106 U. S. 17 463 Northern Pacific Ry. Co. v. North Dakota, 250 U. S. 135 109 TABLE OF CASES CITED. LI Page Northern Ry. Co. v. Page, 274 U. S. 65 484 Norwich Co. v. Wright, 13 Wall. 104 254 Nuveen v. Greer, 88 Fla. 249 231, 233 Ocean Accident & Guarantee Corp. v. Pruitt, 58 S. W. 2d 41 435, 452 Offord v. Hiscock, 86 L. J. K. B. 941 560 Ohio v. Helvering, 292 U. S. 360 287 O’Keefe v. United States, 240 U. S. 294 382 Older, The, 65 F. 2d 359 253 Olmsted v. Olmsted, 216 U. S. 386 438 Olsen v. Nebraska, 313 U. S. 236 208 Opinion of the Justices, 207 Mass. 601 111 Opp Cotton Mills v. Administrator, 312 U. S. 126 104,312 Order of Railway Conductors v. National Mediation Board, 113 F. 2d 531 318 Osborne v. Grand Trunk Ry. Co., 87 Vt. 104 360 Otto Marmet Coal Co. v. Fieger - Austin Dredging Co., 259 F. 435 464 Outman v. Cone, 141 Fla. 196 232,233 Ozawa v. United States, 260 U. S. 178 96 Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493 434, 437, 440, 455, 706 Palmer v. Commissioner, 302 U. S. 63 498 Palmer v. Hoffman, 318 U. S. 109 237 Palmer v. Massachusetts, 308 U. S. 79 690 Pantages Theatre Co. v. Welch, 71 F. 2d 68 470 Park Abbott Realty Co. v. Iroquois Gas Co., 102 Misc. 266 633 Park Bank v. Remsen, 158 U. S. 337 288 Page Parke-Davis & Co. v. Mulford Co., 189 F. 95 61 Parks v. Ross, 11 How. 362 480 Patterson v. Stanolind Oil & Gas Co., 305 U. S. 376 228 Pavilion Gas Co. v. Public Service Comm’n, 188 App. Div. 36 633 Pence v. United States, 316 U. S. 332 480 Pennock v. Dialogue, 2 Pet. 1 665 Pennsylvania v. West Virginia, 262 U. S. 553 633, 650 Pennsylvania v. Willliams, 294 U. S. 176 235 Pennsylvania Gas Co. v. Public Service Comm’n, 252 U. S. 23 651 Pennsylvania Gas Co. v. Public Service Comm’n, 196 App. Div. 514 633 Pennsylvania R. Co. v. Carolina Portland Cement Co., 16 F. 2d 760 364 Pennsylvania R. Co. v. Lord & Spencer, 295 Mass. 179 360 Pennsylvania R. Co. v. Railroad Labor Board, 261 U. S. 72 328 Pennsylvania R. Co. v. Susquehanna Collieries Co., 23 F. 2d 499 363 Pennsylvania System Federation v. Pennsylvania R. Co., 267 U. S. 203 328, 329 People v. McCoy, 125 Ill. 289 559 People v. Montague, 280 Mich. 610 353 People ex rel. Pavilion Gas Co. v. Public Service Comm’n, 188 App. Div. 36 633 People ex rel. Pennsylvania Gas Co. v. Public Service Comm’n, 196 App. Div. 514 633 Perkins v. Fourniquet, 6 How. 206 47 Perkins v. Lukens Steel Co., 310 U. S. 113 547 Pernatto v. United States, 107 F. 2d 372 267 LU TABLE OF CASES CITED. Page Peru, Ex parte, 318 U. S. 578 220, 710 Peters v. Hanson, 129 U. S. 541 32 Peyton v. Railway Express Agency, 316 U. S. 350 300, 323, 337, 511 Pfister v. Northern Illinois Finance Corp., 317 U. S. 144 526 Phelps Dodge Corp. v. Labor Board, 313 U. S. 177 582 Philadelphia & Trenton R. Co. v. Stimpson, 14 Pet. 448 34 Phillips Co. v. Grand Trunk Western Ry. Co., 236 U. S. 662 360,363,364,367 Piedmont & Northern R. Co. v. Interstate Commerce Comm’n, 286 U. S. 299 689 Pink v. A. A. A. Highway Express, 314 U. S. 201 437 Pittsburgh, C., C. & St. L. Ry. Co. v. Fink, 250 U. S. 577 361, 511, 513 Platt v. Wilmot, 193 U. S. 602 706 Pocono Pines Assembly Hotels Co., Ex parte, 285 U. S. 526 169 Pocono Pines Assembly Hotels Co. v. United States. 73 Ct. Cis. 447 ; 76 Ct. Cis'. 334 169 Powers v. Commissioner, 312 U. S. 259 498 Powers-Kennedy Corp. v. Concrete Co., 282 U. S. 175 34 President Wilson, The, 5 F. Supp. 684 253 Prize Cases, 2 Black 635 91,93 Prohaska v. Hemmer-Miller Development Co., 256 Ill. App. 331 353 Prussian v. United States, 282 U. S. 675 351 Public Service Comm’n v. Iroquois Natural Gas Co., 189 App. Div. 545 633 Public Service Comm’n v. Iroquois Natural Gas Co., 108 Misc. 696 633 Page Public Utilities Comm’n v. Attleboro Steam & Electric Co., 273 U. S. 83 610 Public Utilities Comm’n v. Landon, 249 U. S. 236 651 Puchner v. Employers’ Liability Corp., 198 La. 922 456 Puerto Rico v. Russell & Co., 288 U. S. 476 337 Purcell v. United States, 315 U. S. 381 690 Quirin, Ex parte, 317 U. S. 1 92,93,110 Radio Corporation v. Radio Laboratories, 293 U. S. 1 34, 35,52 Railroad Commission v. Cumberland Tel. & T. Co., 212 U. S. 414 597,602 Railroad Commission v. Pacific Gas & Electric Co., 302 U. S. 388 602 Railroad Commission v. Pullman Co., 312 U. S. 496 236 Railroad Commission v. Rowan & Nichols Oil Co., 310 U. S. 573 352 Railroad Commission v. Rowan & Nichols Oil Co., 311 U. S. 570 235 Railroad Commission Cases, 116 U. S. 307 625 Railway Conductors v. Mediation Board, 113 F. 2d 531 318 Rait v. Federal Land Bank, 135 F. 2d 447 247 Ralph v. Southern Ry. Co., 160 S. C. 229 . 247 Rankin v. Commissioner, 84 F. 2d 551 501 Rapid Transit, The, 52 F. 320 253 Rase v. United States, 129 F. 2d 204 551 Remer v. Regan, 104 F. 2d 704 271 Rio Bravo Oil Co. v. Hebert, 130 Tex. 1 452 Risty v. Chicago, R. I. & P. Ry. Co., 270 U. S. 378 234 Robert, Ex parte, 49 F. Supp. 131 108 TABLE OF CASES CITED. LIII Page Robinson, Ex parte, 19 Wall. 505 708 Roche v. McDonald, 275 U. S. 449 439 Rochester Telephone Corp. v. United States, 307 U. S. 125 313,371,494,501,619 Rogers, In re, 47 F. Supp. 265 108 Roschen v. Ward, 279 U. S. 337 711 Rothensies v. Fidelity-Philadelphia Trust Co., 112 F. 2d 758 413,417 Rowell v. Lindsay, 113 U. S. 97 668 Rugel v. Commissioner, 217 F. 2d 393 474 Russell v. Place, 94 U. S. 606 671 Sachs v. Hartford Electric Supply Co., 47 F. 2d 743 35 Saderquist, In re, 11 F. Supp. 525 147 St. Louis, I. M. & S. Ry. Co. v. Starbird, 243 U. S. 592 511 St. Louis-San Francisco Ry. Co. v. Müls, 271 U. S. 344 483,484 St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283 240 Salvore, The, 60 F. 2d 683 253 Saralieff, In re, 59 F. 2d 436 140 Sarlls v. United States, 152 U. S. 570 287 Sauer, Ex parte, 81 F. 355 140 Saxe v. Hammond, Fed. Cas. No. 12,411 677 Scalia v. United States, 62 F. 2d 220 271 Schenck v. United States, 249 U. S. 47 109 Schooner Catharine, The, v. Dickinson, 17 How. 170 463 Schriber-Schroth Co. v. Cleveland Trust Co., 305 U. S. 47 34 Schumacher v. Cornell, 96 U. S. 549 668 Schwinn v. United States, 311 U. S. 616 173, 176 Scott v. Donald, 165 U. S. 58 240 Page Seaboard Air Line v. Padgett, 236 U. S. 668 480 Secombe, Ex parte, 19 How. 9 708 Securities & Exchange Comm’n v. Baüey, 41 F. Supp. 647 352 Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80 691 Securities & Exchange Comm’n v. Crude Oil Corp., 93 F. 2d 844 352 Securities & Exchange Comm’n. v. Payne, 35 F. Supp. 873 353 Securities & Exchange Comm’n v. Tung Corp., 32 F. Supp. 371 352 Securities & Exchange Comm’n v. United States Realty Co., 310 U. S. 434 236 Selective Draft Law Cases, 245 U. S. 366 93, 110 Selling v. Radford, 243 U. S. 46 708 Selser v. Bragmans Bluff Lumber Co., 146 So. 690 434 Sender v. Board of Dental Examiners, 294 U. S. 608 711 Senn v. Tüe Layers Union, 301 U. S. 468 295 Shanin, In re, 278 F. 739 140 Shannahan v. United States, 303 U. S. 596 307,313,316,619 Sheldon v. Metro-Goldwyn Corp., 309 U. S. 390 50 Sherman v. United States, 282 U. S. 25 283 Shields v. Utah Idaho Central R. Co., 305 U. S. 177 306,494 Shwab v. Doyle, 258 U. S. 529 424 Silas Mason Co. v. Tax Comm’n, 302 U. S. 186 91 Simmons Co. v. Grier Bros. Co., 258 U. S. 82 47 Six Companies v. Joint Highway District, 311U. S. 180 237 Skeffington v. Katzeff, 277 F. 129 147, 148 Smith v. Hall, 301 U. S. 216 35 LIV TABLE OF CASES CITED. Page Smith v. Mid-Continent Investment Co., 106 F. 2d 622 664,669 Smith v. Miller, 147 Kan. 40 400 Smith v. Snow, 294 U. S. 1 35 Smith v. Texas, 311 U. S. 128 112 Smyth v. Ames, 169 U. S. 466 627 Smyth Manufacturing Co. v. Sheridan, 149 F. 208 32 Société Marconi v. Société Générale, Civil Tribunal of the Seine, 3d Chamber, Dec. 24, 1912 64 Socony No. 9, The, 74 F. 2d 233 464,466 Sola Electric Co. v. Jefferson Co., 317 U. S. 173 511, 670 Somers v. Commercial Finance Corp., 245 Mass. 286 354 Sormunen v. Nagle, 59 F. 2d 398 147 Souffront v. La Compagnie, 217 U. S. 475 676 Southern Building & Loan Assn. v. Dinsmore, 225 Ala. 550 241 Southern Cross, The, 93 F. 2d 297 464 Southern Railway Co. v. Prescott, 240 U. S. 632 511 Southwestern Bell Tel. Co. v. Public Service Comm’n, 262 U. S. 276 603 Sparhawk v. Goldthwaite, 225 Mass. 414 262 Sparks v. England, 113 F. 2d 579 242 Spaulding, Ex parte, 317 U. S. 593 220 Spielman Motor Co. v. Dodge, 295 U. S. 89 235 Springer v. Philippine Islands, 277 U. S. 189 351 Squib Case, The, 2 W. Bl. 892 484 Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20 674 State v. Citrus County, 116 Fla. 676 233 Page State v. Hofacre, 206 Minn. 167 353 State v. Miami, 103 Fla. 54 233 State v. Pullen, 58 R. 1.294 354 State v. Sarasota County, 118 Fla. 629 233 State v. Special Tax School District, 107 Fla. 93 233 State ex rel. Nuveen v. Greer, 88 Fla. 249 231,233 Steams & White Co., In re, 295 F. 833 526 Stevens v. Liberty Packing Corp., Ill N. J. Eq. 61 353 Stewart, Ex parte, 47 F. Supp. 410 108 Stewart v. Kahn, 11 Wall. 493 93 Stone v. White, 301U. S. 532 421 Stoner v. New York Life Ins. Co., 311 U. S. 464 237 Story Parchment Co. v. Pat- erson Co., 282 U. S. 555 483, 672 Stratton v. St. Louis South- western Ry. Co., 284 U. S. 530 235 Strecker v. Kessler, 95 F. 2d 976; 96 F. 2d 1020 148 Sullivan v. Tampa, 101 Fla. 298 231,233 Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381 301, 320, 494, 655 Swayne & Hoyt, Ltd. v. United States, 300 U. S. 297 91,501 Swift & Co. v. United States, 316 U. S. 216 378 Switchmen’s Union v. Na- tional Mediation Board, 320 U. S. 297 338,339,344,715 Switchmen’s Union v. Na- tional Mediation Board, 135 F. 2d 785 310 Taft v. Commissioner, 305 U. S. 351 260 Tap Line Cases, 234 U. S. 1 379 Tasty Baking Co. v. United States, 38 F. Supp. 844 423 Taylor v. Georgia, 315 U. S. 25 528 TABLE OF CASES CITED. LV Page Taylor v. Mississippi, 319 U. S. 583 158, 708 Taylor v. United States, 244 F. 321 530 Taylor v. Williams, 142 Fla. 402 233 Texas Company v. Daugherty, 107 Tex. 226 352 Texas Employers’ Ins. Assn. v. Price, 291 S. W. 287 456 Texas Employers’ Ins. Assn. v. Price, 300 S. W. 667 435, 457, 459, 460 Texas Gulf Sulphur Co. v. Portland Gas Light Co., 57 F. 2d 801 483 Texas & New Orleans R. Co. v. Brotherhood of Clerks, 281 U. S. 548 300, 311, 315, 317, 328, 329 Texas & Pacific Ry. Co. v. Gulf, C. & S. F. Ry. Co., 270 U. S. 266 689, 693 Textile Mills Securities Corp. v. Commissioner, 314 U. S. 326 470,473 The Fair v. Kohler Die Co., 228 U. S. 22 337 Thieret, Ex parte, 268 F. 472 108 Thompson v. Consolidated Gas Corp., 300 U. S. 55 227, 228 Thompson v. Magnolia Petroleum Co., 309 U. S. 478 236 Thomson-Houston Electric Co. v. Ohio Brass Co., 80 F. 712 677 Thropp’s Sons Co. v. Seiber-ling, 264 U. S. 320 35 Tiaco v. Forbes, 228 U. S. 549 91 Tidwell v. Chattanooga Boiler Co., 163. Tenn. 420 441 Tiffany, Ex parte, 252 U. S. 32 533 Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54 484 Titus v. Wallick, 306 U. S. 282 438, 439, 443, 452 Page Traders & General Insurance Co. v. Baker, 111 S. W. 2d 837 435 Transit Commission v. United States, 284 U. S. 360 690 Travelers Insurance Co. v. Cason, 132 Tex. 393 435,454 Troxell v. Delaware, L. & W. R. Co., 227 U. S. 434 444,448 Turner v. Williams, 194 U. S. 279 132, 165 Turner Lumber Co. v. Chi- cago, M. & St. P. Ry. Co., 271 U. S. 259 323 Tutun v. United States, 270 U. S. 568 123, 124,125,132,164, 165, 168,174,301 Ungar v. Seaman, 4 F. 2d 80 148 Union Bridge Co. v. United States, 204 U. S. 364 559 United Fuel Gas Co. v. Pub- lic Service Comm’n, 278 U. S. 322 638, 651 United Fuel Gas Co. v. Rail- road Comm’n, 278 U. S. 300 633, 638, 651 United Gas Co. v. Texas, 303 U. S. 123 479 United Railwavs Co. v. West, 280 U. S. 234 606, 607 United States, Ex parte, 242 U. S. 27 266 United States v. Abilene & Southern Ry. Co., 265 U. S. 274 “ 378, 380, 381 United States v. Algoma Lumber Co.r 305 U. S. 415 567 United States v. American Sheet & Tin Plate Co., 301 U. S. 402 378 United States v. American Trucking Assns., 310 U. S. 534 426 United States v. Anderson, 269 U. S. 422 519 United States v. Antinori, 59 F. 2d 171 271 United States v. Babcock, 250 U. S. 328 301,303 LVI TABLE OF CASES CITED. Page United States v. Baird, 39 F. Supp. 392 108 United States v. Balint, 258 U. S. 250 281,285 United States v. Baltimore & Ohio R. Co., 293 U. S. 454 695 United States v. Barber, 219 U. S.72 536 United States v. Barnes, 222 U. S.513 351 United States v. Benz, 282 U. S. 304 266 United States v. Bethlehem Steel Corp., 315 U. S. 289 109,554 United States v. California, 297 U.S. 175 586 United States v. California & Oregon Land Co., 192 U. S. 355 444 United States v. Carolina Freight Carriers Corp., 315 U. S. 475 312 United States v. Chambers, 291 U. S. 217 536 United States v. Chemical Foundation, 272 U. S. 1 104 United States v. Chicago, M., St. P. & P. R. Co., 294 U. S.499 690,695 United States v. Chicago North Shore & M. R. Co., 288U.S.1 689 United States v. Cooper Corp., 312 U. S. 600 287 United States v. Corbett, 215 U. S. 233 355 United States v. Curran, 11 F. 2d 683 147 United States v. Curtiss- Wright Export Corp., 299 U. S. 304 536 United States v. Darby, 312 U. S.100 655 United States v. East, 80 F. 2d 134 526 United States v. Eberhart, 127 F. 252 530 United States v. Embrey, 46 F. Supp. 916 108 United States v. Esnault-Pel-terie, 299 U. S. 201 47 Page United States v. Farrar, 281 U. S. 624 535 United States v. Ferreira, 13 How. 40 169 United States v. Foster, 233 U. S. 515 535 United States v. George S. Bush & Co., 310U.S.371 303 United States v. Giles, 300 U. S. 41 355,530 United States v. Gilliland, 312 U. S. 86 351 United States v. Ginsberg, 243 U.S. 472 162, 172,173,175,176,177 United States v. Gradwell, 243 U. S. 476 286 United States v. Great Northern Ry. Co., 287 U. S. 144 305 United States v. Grieme, 128 F. 2d 811 108,551 United States v. Griffin, 303 U.S. 226 301,313,316,718 United States v. Grimaud, 220 U. S. 506 536 United States v. Harris, 177 U. S. 305 287,288,292 United States v. Hartwell, 6 Wall. 385 355 United States v. Heinszen & Co., 206 U. S. 370 91 United States v. Hubbard, 266 U. S. 474 690 United States v. Idaho, 298 U. S. 105 689,691,693 United States v. Johnson, 221 U. S. 488 281,284 United States v. Jones, 119 U. S. 477 169 United States v. Kauten, 133 F. 2d 703 551 United States v. Kinkead, 250 F. 692 108 United States v. Lacher, 134 U. S. 624 286 United States v. Lanza, 260 U. S. 377 461 United States v. Los Angeles & Salt Lake R. Co., 273 U. S. 299 313, 619 United States v. Louisiana, 290 U. S. 70 695 TABLE OF CASES CITED. LVII Page United States v. Louisville & Nashville R. Co., 235 U. S. 314 501 United States v. Lowden, 308 U. S. 225 660 United States v. Macintosh, 283 U. S. 605 93, 109,132,135,139,164 United States v. Maher, 307 U. S. 148 409 United States v. Manzi, 276 U. S. 463 122 United States v. Masonite Corp., 316 U. S. 265 665, 666,674 United States v. Mayer, 235 U. S.55 266 United States v. Mayfield, 177 F. 765 283 United States v. Midstate Horticultural Co., 306 U. S. 161 535 United States v. Mills, 7 Pet. 138 281 United States v. Moore, 101 F. 2d 56 271 United States v. Morgan, 222 U. S. 274 279 United States v. Morgan, 307 U. S. 183 670 United States v. Ness, 245 U. S.319 125,162,173,177 United States v. Olsson, 196 F. 562; 201 F. 1022 140 United States v. Oppen- heimer, 242 U. S. 85 536 United States v. Pan Amer- ican Petroleum Corp., 304 U. S. 156 378 United States v. Perkins, 79 F. 2d 533 148 United States v. Pile, 130 U. S. 280 267 United States v. Powell, 38 F. Supp. 183 108 United States v. Raynor, 302 U. S. 540 530 United States v. Resnick, 299 U. S. 207 535 United States v. Reynolds, 235 U. S. 133 528 Page United States v. Rock Royal Co-operative, 307 U. S. 533 655 United States v. Rovin, 12 F. 2d 942 125,138 United States v. Ryan, 284 U. S. 167 253 United States v. San Jacinto Tin Co., 125 U. S. 273 125 United States v. Scharton, 285 U. S. 518 535 United States v. Schwimmer, 279 U. S. 644 132,135,138,144 United States v. Smith, 2 F. 2d 90 148 United States v. Smith, 48 F. Supp. 842 108 United States v. Stevenson, 215 U. S. 190 535 United States v. Sullivan, 274 U. S. 259 474 United States v. Swift & Co., 318 U. S. 442 535, 538, 539 United States v. Tapolcsan- yi, 40 F. 2d 255 140 United States v. Thompson, 251 U. S. 407 536 United States v. Throckmor- ton, 98 U. S.61 124, 168 United States v. Tynen, 11 WaU. 88 ' 536 United States v. Union Sup- ply Co., 215 U. S. 50 283 United States v. Univis Lens Co., 316 U. S. 241 665, 666 United States v. Wallis, 268 F. 413 148 United States v. Weiss, 28 F. Supp. 598 267 United States v. Wiltberger, 5 Wheat. 76 286,287,292,354 United States v. Winslow, 227 U. S. 202 535 United States v. Yasui, 48 F. Supp.40 105 U. S. ex rel. Fernandas v. Commissioner, 65 F. 2d 593 148 U. S. ex rel. Fortmueller v. Commissioner, 14 F. Supp. 484 148 U. S. ex rel. Girard Trust Co. v. Helvering, 301 U. S. 540 420 LVIII TABLE OF CASES CITED. Page U. S. ex rel. Greathouse v. Dera, 289 U. 8. 352 236 U. S. ex rel. Louisville Ce- ment Co. v. Interstate Commerce Comm’n, 246 U. 8. 638 363,364 U. 8. ex rel. Yokinen v. Commissioner, 57 F. 2d 707 148 U. S. Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147 242 United States Navigation Co. v. Cunard S. 8. Co., 284 U. 8.474 . 584 United Surety Co. v. Ameri- can Fruit Product Co., 238 U. 8. 140 702 Van Laeken, In re, 22 F. Supp. 145 140 Vilarino, Ex parte, 50 F. 2d 582 147 Virginia-Carolina Chemical Co. v. Kirven, 215 U. 8.252 671 Virginian Ry. Co. v. System Federation, 300 U. S. 515 236, 300, 302, 304, 307, 311, 316, 320, 328, 331, 335, 670, 701 Wabash R. Co. v. Hayes, 234 U. S. 86 444,446 Wagner v. Kelso, 195 Iowa 959 353 Wagner v. Meccano Ltd., 246 F. 603 57 Waldstein, Matter of, 160 Misc. 763 352 Walker v. Transportation Co., 3 WaU. 150 252 Washington v. Oregon, 214 U. 8.205 392 Washington v. Oregon, 297 U. 8. 517 393,394 Wayne Gas Co. v. Owens- lUinois Glass Co., 300 U. 8. 131 526 Welch v. Helvering, 290 U. 8. Ill 471,472,475 West v. American Telephone & Telegraph Co., 311 U. 8. 223 234,237 West v. Chesapeake & Potomac Tel. Co., 295 U. 8. 662 602 Page West v. Standard Oil Co., 278 U. 8. 200 322 West Coast Hotel Co. v. Parrish, 300 U. S. 379 208 Westenhaver v. Dunnavant, 225 Ala. 400 354 Western & Atlantic R. Co. v. Hughes, 278 U. 8.496 479 Westinghouse Electric Co. v. Wagner Mfg. Co., 225 U. 8. 604 50 West Ohio Gas Co. v. Public Utilities Comm’n (No. 1), 294 U. 8.63 602 West Penn Power Co. v. Board of Review, 112 W. Va. 442 608 West Virginia State Board of Education v. Barnette, 319 U. 8.624 708 Whitman v. Wilson, 318 U. 8. 688 708 Whitney v. California, 274 U. 8. 357 113,158 Wichita Railroad & Light Co. v. Public Utilities Comm’n, 260 U. 8. 48 694 Wichita Royalty Co. v. City National Bank, 306 U. 8. 103 234,237 Wigington v. Mid-Continent Royalty Co., 130 Kan. 785 353 Wilder Manufacturing Co. v. Corn Products Refining Co., 236 U. S. 165 301 William C. Atwater, The, 110 F. 2d 644 464 William Danzer & Co. v. Gulf & Ship Island R. Co., 268 U.S. 633 359,363 Williams, Ex parte, 317 U. 8. 604 220 Williams v. North Carolina, 317 U. 8. 287 434, 436, 438, 439, 441,446, 447, 450 Williamsport Wire Rope Co. v. United States, 277 U. 8. 551 496 Wilmington Trust Co. v. Helvering, 316 U. 8.164 264, 498,501 TABLE OF CASES CITED. lix Page Wilson v. New, 243 U. S. 332 620 Wisconsin v. Pelican Insurance Co., 127 U. S. 265 438 Wisconsin Bridge & Iron Co. v. Illinois Terminal Co., 88 F. 2d 459 360,363 Wolck v. Weedin, 58 F. 2d 928 148 Worcester County Trust Co. v. Riley, 302 U. S. 292 445 Work v. Louisiana, 269 U. S. 250 322 Work v. Rives, 267 U. S. 175 303 Page Wyoming v. Colorado, 259 U. S. 419 392 Yarborough v. Yarborough, 290 U. S. 202 441, 449,452,455 Yick Wo v. Hopkins, 118 U. S. 356 100, 111 Yokinen v. Commissioner, 57 F. 2d 707 148 Yu Cong Eng v. Trinidad, 271 U. S. 500 100, 111 Zimmem v. United States, 298 U. S.167 526 TABLE OF STATUTES Cited in Opinions (A) Statutes of the United States. Page 1790, Mar. 26, c. 3, 1 Stat. 103................... 118 1790, May 26, c. 11, 1 Stat. 222 .................. 430 1795, Jan. 29, c. 20, 1 Stat. 414................... 118 1798, June 18, c. 54, 1 Stat. 566 .................. 118 1799, Mar. 2, c. 22, 1 Stat. 665, § 50............. 561 1799, Mar. 2, c. 23, 1 Stat. 704................... 561 1802, Apr. 14, c. 28, 2 Stat. 153................... 118 1816, Apr. 26, c. 95, 3 Stat. 306 .................. 561 1851, Mar. 3, c. 43, §§ 1-5, 9 Stat. 635........... 249 1864, Apr. 29, c. 71, 13 Stat. 61.....................561 1867, Mar. 2, c. 187, § 1, 14 Stat. 546 ............ 527 1873, Mar. 3, c. 240,17 Stat. 579 .................. 561 1884, June 26, c. 121, 23 Stat. 53 ............. 561 1885, Mar. 3, c. 335, 23 Stat. 350................... 297 1887, Feb. 4, c. 104, 24 Stat. 379 .................. 685 1888, Oct. 1, c. 1063,25 Stat. 501 .................. 323 1889, Mar. 2, c. 393, 25 Stat. 873 .................. 467 1891, Mar. 3, c. 517, § 11,26 Stat. 826............. 520 1893, Feb. 9, c. 74, § 6, 27 Stat. 434 ............ 520 Page 1893, Feb. 13, c. 105, 27 Stat. 445 ........... 249 1894, July 30, c. 172, 28 Stat. 160 ........... 520 1897, June 7, c. 4, Arts. 15, 27, 30 Stat. 99...... 462 1898, June 1, c. 370, 30 Stat. 424 ................. 323 1898, July l,*c. 541, 30 Stat. 545...................277 1899, Mar.’ £ c. *425,’ §§’ ¡5^ 18, 30 Stat. 1152.... 462 1906, June 29, c. 3591, 34 Stat. 590............ 356 1906, June 29, c. 3592, §§ 4, 6-9, 11, 15, 34 Stat. 598 ................. 118 1906, June 30, c. 3909, 34 Stat. 633............ 561 1906, June 30, c. 3915, §§ 2, 12,34 Stat. 768...... 277 1908, Apr. 22, c. 149, 35 Stat. 65 ............ 476 1909, Mar. 4, c. 314, § 2, 35 Stat. 1065........... 561 1909, Mar. 4, c. 321, 35 Stat. 1130................. 467 1910, Apr. 5, c. 143, 36 Stat. 291 ................. 476 1911, Feb. 13, c. 46, § 5, 36 Stat. 899............ 561 1911, Mar. 3, c. 231,36 Stat. 1087 ............ 238, 520 1913, July 15, c. 6, 38 Stat. 103 ................. 323 1913, Oct. 22, c. 32, 38 Stat. 219.............. 577, 685 LXI LXII TABLE OF STATUTES CITED. Page 1914, Oct. 15, c. 323, § 4, 38 Stat. 731............. 661 1916, Sept. 3, 5, c. 436, 39 Stat. 721............. 323 1916, Sept. 7, c. 451, §§ 1, 15-18, 39 Stat. 728.. 577 1917, Mar. 3, c. 163, 39 Stat. 1106 ................. 561 1918, Apr. 20, c. 59, § 4, 40 Stat. 533 ............. 81 1918, July 15, c. 152,40 Stat. 900 ................... 577 1918, Oct. 16, c. 186, §§ 1,2, 40 Stat. 1012......... 118 1919, Feb. 24, c. 18, 40 Stat. 1098 ................. 277 1919, Feb. 24, c. 18, § 403, 40 Stat. 1098 ........ 256 1920, Feb. 7, c. 61, § 5, 41 Stat. 402............. 561 1920, Feb. 28, c. 91, 41 Stat. 456.............. 356, 685 1920, Feb. 28, c. 91, Title III, 41 Stat. 456.... 323 1920, June 5, c. 251, 41 Stat. 1008.................. 118 1921, Aug. 19, c. 72, 42 Stat. 171 .... 383 1921, Nov. 23, c. 136, § 403, 42 Stat. 279........ 256 1922, Sept. 21, c. 356, §§ 401, 450, 451,42 Stat. 858. 561 1923, Mar. 4, c. 251,42 Stat. 1453 ................. 561 1924, May 26, c. 190, 43 Stat. 161.............. 81 1924, June 2, c. 234, § 303, 43 Stat. 306.............. 256 1924, June 2, c. 234, § 900, 43 Stat. 306 ............ 489 1924, June 7, c. 325, § 16, 43 Stat. 633............. 356 1925, Feb. 13, c. 229, 43 Stat. 936................... 577 1925, Feb. 13, c. 229, § 8, 43 Stat. 936 ....... 520,706, 762,763,767, 792 1925, Mar. 4, c. 521, §§ 1, 2, 43 Stat. 1259....... 264 1926, Feb. 26, c. 27, § 302, 44 Stat. 9................410 1926, Feb. 26, c. 27, § 303, 44 Stat. 9............... 256 Page 1926, Feb. 26, c. 27, §§ 900, 901, 1001, 1003, 44 Stat. 9.......................489 1926, May 20, c. 347, §§ 1-3, 5,7,44 Stat. 577.. 297,323 1926, May 20, c. 347, §§ 8, 9, 44 Stat. 577 ....... 297 1926, May 20, c. 347, § 10, 44 Stat. 577 ........ 297,323 1926, July 3, c. 751, § 4, 44 Stat. 828............. 297 1928, May 29, c. 852, § 272, 45 Stat. 854........ 489 1928, May 29, c. 865, 45 Stat. 955 .................. 561 1929, Mar. 2, c. 536, 45 Stat. 1513.................. 118 1930, May 29, c. 357, 46 Stat. 486 ...............!. 489 1930, June 6, c. 406, 46 Stat. 503 ......................... 264 1930, June 17, c. 497, Title IV, §§401, 450, 451, 46 Stat. 708....... 561 1931, Mar. 2, c. 368, 46 Stat. 1467 ................. 561 1931, Mar. 3, c. 411, 46 Stat. 1494................‘ 543 1932, June 6, c. 209, § 803, 47 Stat. 169..............410 1932, June 30, c. 314, 47 Stat. 382...............J.. 561 1933, May 12, c. 25, §§ 9, 16, 48 Stat. 31............422 1933, May 27, c. 38, §§ 2, 5, 17, 48 Stat. 74....... 344 1933, June 16, c. 90, §§ 1,206, 48 Stat. 195........... 543 1933, June 16, c. 97, 48 Stat. 256..;............/.. 264 1934, May 10, c. 277, §§ 602, 6021/2, 48 Stat. 762... 422 1934, June 13, c. 482, § 1, 48 Stat. 948............. 543 1934, June 14, c. 512, 48 Stat. 955............. 323 1934, June 19, c. 652, 48 Stat. 1064............ 561 1934, June 21, c. 691, § 1, 48 Stat. 1185............ 323 1934, June 21, c. 691, § 2, 48 Stat. 1185 ..... 297, 323 TABLE OF STATUTES CITED. Lxin Page 1934, June 21, c. 691, §§ 3, 5, 48 Stat. 1185 ...... 323 1934, June 21, c. 691, § 7, 48 Stat. 1185........ 297,323 1934, June 21, c. 691, § 10,48 Stat. 1185............ 323 1934, June 27,49 Stat. 2391.. 1 1935, Aug. 9, c. 498, § 208, 49 Stat. 543 ............ 401 1935, Aug. 30, c. 825, 49 Stat. 1011.................. 543 1936, May 27, c. 463, 49 Stat. 1380.................. 561 1936, June 16, c. 581, 49 Stat. 1518.................. 577 1936, June 22, c. 689,49 Stat. 1636 ................ 561 1936, June 22, c. 690, § 23, 49 Stat. 1658 ....... 467,516 1936, June 22, c. 690, §§ 41- 43, 49 Stat. 1658..... 516 1936, June 22, c. 690, § 162, 49 Stat. 1658....... 256 1936, June 22, c. 690, § 602y2, 49 Stat. 1658......... 422 1936, June 29, c. 858, 49 Stat. 1987 ................. 577 1937, Apr. 26, c. 127, § 6, 50 Stat. 85.......... 297,707 1938, May 16, c. 223, § 4, 52 Stat. 371............. 698 1938, May 28, e. 289, § 23, 52 Stat. 460............. 467 1938, June 21, c. 556, 52 Stat. 821 ...,.......,...... 591 1938, June 25, c. 675, §§ 201, 301, 303, 305, 52 Stat. 1040.. ............ 277 1938, June 25, c. 676, §§ 3,16, 52 Stat. 1061......... 540 1938, June 25, c. 679, § 9, 52 Stat. 1082............ 561 1939, Feb. 10, c. 2, 53 Stat. 158 .................418 1939, May 22, c. 140, 53 Stat. 752.. .:,........... 1 1939, Aug. 7, c. 501, 53 Stat. 1223 ................ 264 1939, Aug. 11, c. 685, 53 Stat. 1404 ................. 476 1940, June 15, c. 373, 54 Stat. 399............. 543 Page 1940, Sept. 16, c. 720, §§ 3, 5, 10, 11, 54 Stat. 885 ................. 549 1940, Sept. 18, c. 722, 54 Stat. 912....................356 1940, Oct. 14, c. 876, §§ 305, 338, 54Stat. 1137.... 118 1940, Nov. 30, c. 926, 54 Stat. 1220............ 81 1941, Aug. 21, c. 388, 55 Stat. 655 ............ 81 1941, Dec. 8, c. 561, 55 Stat. 795 .................. 81 1942, Jan. 30, c. 26, 56 Stat. 23 .................. 531 1942, Jan. 30, c. 26, § 204, 56 Stat. 23................. 297 1942, Feb. 7, c. 49, 56 Stat. 83 ................... 591 1942, Mar. 10, c. 178, 56 Stat. 150............ 561 1942, Mar. 21, c. 191, 56 Stat. 173........81, 115 1942, Oct. 21, c. 619, § 116, 56 Stat. 798.......... 489 1942, Oct. 21, c. 619, § 403, 56 Stat. 798.......... 410 1942, Oct. 21, c. 619, § 504, 56 Stat. 798.... 418, 467 1943, June 30, c. 179, 57 Stat. 250............ 561 1943, July 7, c. 194, 57 Stat. 383 ................. 591 Constitution. See Index at end of volume. Criminal Code. § 215...................467 §§ 269, 270 ............ 527 Internal Revenue Code. § 113..................489 § 272 ........... 418, 489 § 322 ................ 418 § 1141.................489 Judicial Code............... 520 § 24 .... 238, 297, 323, 422 § 37 ................. 238 § 237 ....... 208, 222, 508, 705, 715, 716 § 239 ............ 81, 115 Penal Code, § 332......... 277 Revised Statutes. § 905 ................. 430 § 2169.................. 31 Lxiv TABLE OF STATUTES CITED. Page Revised Statutes—Continued. § 2170................ 118 §§ 2733, 2871.......... 561 § 4282 ............... 249 §§ 4386-4389 .......... 277 88 4886, 4917, 4920 4922 1 § 5527 ............... 527 U. S. Code. Title 8, § 137............. 118 § 213.............. 81 §§ 364, 381, 382, 405, 501..... 118 § 703 ............. 81 88 705,707,738.... 118 Title 11, § 203 (s)....243 Title 15, § 15...............661 § 24 ............. 277 § 77 ............. 344 § 717..............591 § 836 ............ 707 Title 18, § 338 ............ 467 § 409 ............ 264 8§ 444, 445 ....... 527 8 550 ............ 277 § 682........... 527,531 §§ 724-728 .........264 Title 19, §§ 6, 267, 1401, 1450, 1451.......... 561 Title 21, §§ 4, 301-392.. 277 Title 26, :§ 811.............410 § 1100 ....... 418, 467 § 1141.............256 § 2857 et seq.467 Title 28, § 41.. 238,297,323,489 § 45 ............. 591 § 47.......... 368, 401, 577,591,685 § 80 ............. 238 §§ 227, 288......... 1 § 321 .......... 708 § 344........ 208,222, 508, 705, 715, 716 § 345..... 368, 577, 685 § 346........... 81,115 § 350......... 706, 762, 763,767,792 § 377 ............ 219 Page U. S. Code—Continued. Title 28—Continued. § 380 ........... 297 § 400 ........... 323 8 451 ........... 219 § 687 ........... 430 §§ 773,875........ 489 Title 29, §§203, 216.... 540 Title 33, §§191, 212, 409 .............. 462 Title 35, §§ 31,44,65,68, 69, 71............... 1 Title 39, §§ 259,732.... 467 Title 40, §§276,406.... 543 Title 45, § 51..............476 § 51 et seq........430 8 63 ........... 277 § 151.............323 Title 46, §§ 182, 186, 190-196 ........... 249 §§ 801, 814 - 817, 830 ........... 577 § 941 ........... 277 Tit,Ip 49 § 1 .... 368, 508, 685 §§ 3,12,15.........508 8 16 ... .........356 § 20 ............ 508 88 301 et seq., SOO- SOO, 315-317,321. 401 Title 50, § 901 ........... 531 Appendix, §§ 301-318...............549 Adamson Act................323 Agricultural Adjustment Act, 1933, §§ 9, 16.........422 Arbitration Act, 1888 .... 323 Bankruptcy Act. § 75 (s)..............243 § 77 (e),(f).......... 718 Bituminous Coal Act, § 6............ 297, 707 Clayton Act, § 4.......... 661 Colorado River Compact, 1922 .............. 383 Criminal Appeals Act.. 527, 531 Customs Administration Act, 1938, § 9...........561 Davis-Bacon Act, 1931.... 543 Economy Act, 1932......... 561 TABLE OF STATUTES CITED. LXV Page Emergency Price Control Act, 1942.......... 531 § 204 ............... 297 Erdman Act, 1898......... 323 Fair Labor Standards Act, 1938, § 16........ 540 Federal Employers’ Liability Act................ 430, 476 First Deficiency Appropriation Act, 1936..... 561 Food and Drugs Act, 1906, §§ 2, 12............277 Food, Drug, and Cosmetic Act, §§ 201, 301, 303, 305 ............... 277 Harter Act, 1893......... 249 Hepburn Act...............356 Immigration Act, 1924..... 81 Immigration and Deportation Act, 1918..... 118 Interstate Commerce Act. § 1 ......... 368, 508, 685 § 3...................508 § 6...................368 § 12..................508 § 15 ........... 368, 508 § 16..................356 §17...................685 Judiciary Act, 1925...... 577 Motor Carrier Act, 1935.... 401 National Industrial Recovery Act, Title II, §§ 1, 206 .......... 543 Nationality Act, 1940, §§305, 338 ............... 118 National Labor Relations Act.................338 Natural Gas Act, 1938, §§ 1, 2,4-11,14,17,19.... 591 Naturalization Act, 1790... 118 Naturalization Act, 1795... 118 Navigation Rules for Harbors, Rivers, and Inland Waters, Arts. 15, 27 ...................... 462 Newlands Act, 1913........323 Norris-La Guardia Act.. 293,297 Probation Act, §§ 1,2.....264 Railway Labor Act. §§ 1-3 ...... 297, 323, 338 §§ 5, 7.......... 297, 323 552826—44--5 Page Railway Labor Act—Cont’d. §§ 8, 9................297 § 10......... 297, 323, 338 Revenue Act, 1913.........489 Revenue Act, 1918.........277 § 403 ............... 256 Revenue Act, 1921, § 403... 256 Revenue Act, 1924. § 303 ............... 256 § 900 ............... 489 Revenue Act, 1926. § 274 ............... 418 § 302................ 410 § 303 ............... 256 §§ 900, 901, 1001, 1003.. 489 Revenue Act, 1928, §§ 272... 489 Revenue Act, 1932, § 601 ............... 422 § 803 ............... 410 Revenue Act, 1934, §§ 602, 602y2................422 Revenue Act, 1936. § 23 ........... 467, 516 §§ 41-43............. 516 § 162 ............... 256 § 6021/2..............422 Revenue Act, 1938, § 23.... 467 Revenue Act, 1942. § 116.................489 § 403 ............... 410 § 504 .......... 418, 467 Securities Act, 1933, §§ 2, 5, 17....................344 Selective Training and Service Act, 1940, §§ 3, 5, 10, 11............... 549 Shipping Act, §§ 1, 15-18, 31....................577 Tariff Act, 1922, §§ 401, 450, 451 ................. 561 Tariff Act, 1930, §§ 401,450, 451 ................. 561 Transportation Act, 1920... 356 § 204 ............... 297 Title III.............323 Transportation Act, 1940... 356 Treasury and Post Office Departments Appropriation Act, 1944........... 561 Urgent Deficiencies Act, 1913 ................ 577, 591 LXVI TABLE OF STATUTES CITED. (B) Statutes of the States and Territories. Page California. Deering (1931), 1 Gen. Laws, Act 261........ 81 Harbors and Navigation Code, §§ 3080,3084.. 577 District of Columbia. Code, 1940, § 47-2404.. 698 Florida. Constitution, Art. IX, § 6....................228 1941 Stats., § 440.09.... 430 Georgia. Code, 1933, § 114-411... 430 Louisiana. 1940 Acts, No. 157, §§8,9.................222 Gen. Stats., Tit. 34, c. 15, §§ 4391 - 4394, 4398, 4407-4409, 4427 ..... 430 Workmen’s Compensation Law..............430 Maryland. Flack’s Code Ann. (1939 ed.), Art. 101, § 80 (3)...................430 Minnesota. Blue Sky Laws..........489 Montana. Rev. Code, 1935, §5702. 81 Nebraska. Constitution, Art. III, § 1.................. 11» Page New York. Civil Practice Act, § 876 . 293 North Carolina. Code, 1939, § 8081 (rr). 430 Ohio. Page’s Gen. Code, §1465-68.........'.. 430 Oregon. Code, (1935, Supp.), §49-1813a............430 5 Comp. Laws Ann., 1940, § 61-102....... 81 Pennsylvania. 1885 Laws, No. 32..... 591 South Carolina. Code, 1942, § 7035-39.. 430 Texas. Rev. Civ. Stats., Tit. 130, Art. 8306, §§ 1, 3-19; Art. 8307, § 5; Art. 8308, § 18......430 Workmen’s Compensa- tion Law.............430 Virginia. Code, 1942, § 1887 (37). 430 Washington. Remington’s Rev. Stats., §§ 10581-10582 ...... 81 West Virginia. Rev. Code, 1943, c. 11, Art. 13, §§ 2, 3.....591 (C) Proclamations. International Telecommunication Convention, 1934, 49 Stat. 2391.. 1 (D) Foreign Statutes. English. 7 Geo. II, c. 15........249 26 Geo. II, c. 86...... 249 Japan. Nationality Law, Art. 1; Art. 20, § 3...... 81 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1942. MARCONI WIRELESS TELEGRAPH COMPANY OF AMERICA v. UNITED STATES.* CERTIORARI TO THE COURT OF CLAIMS. No. 369. Argued April 9,12,1943.—Decided June 21,1943. 1. The broad claims of the Marconi Patent No. 763,772, for improvements in apparatus for wireless telegraphy—briefly, for a structure and arrangement of four high-frequency circuits with means of independently adjusting each so that all four may be brought into electrical resonance with one another—held invalid because anticipated. P. 38. Marconi showed no invention over Stone (Patent No. 714,756) by making the tuning of his antenna circuit adjustable, or by using Lodge’s (Patent No. 609,154) variable inductance for that purpose. Whether Stone’s patent involved invention is not here determined. 2. Merely making a known element of a known combination adjustable by a means of adjustment known to the art, when no new or unexpected result is obtained, is not invention. P. 32. 3. As between two inventors, priority of invention will be awarded to the one who by satisfying proof can show that he first conceived of the invention. P. 34. 4. Commercial success achieved by the later inventor and patentee cannot save his patent from the defense of anticipation by a prior inventor. P. 35. ^Together with No. 373, United States v. Marconi Wireless Telegraph Company of America, also on writ of certiorari, 317 U. S. 620, to the Court of Claims. I 2 OCTOBER TERM, 1942. Syllabus. 320 U.S. 5. In the exercise of its appellate power, this Court may consider any evidence of record which, whether or not called to the attention of the court below, is relevant to and may affect the correctness of its decision sustaining or denying any contention which a party has made before it. P. 44. 6. Although the interlocutory decision of the Court of Claims in this case that Claim 16 of Marconi Patent No. 763,772 was valid and infringed was appealable, the decision was not final until the conclusion of the accounting; hence, the court did not lack power at any time prior to entry of its final judgment at the close of the accounting to reconsider any portion of its decision and reopen any part of the case, and it was free in its discretion to grant a reargument based either on all the evidence then of record or only the evidence before the court when it rendered its interlocutory decision, or to reopen the case for further evidence. P. 47. 7. The judgment of the Court of Claims holding valid and infringed Claim 16 of Marconi Patent No. 763,772 is vacated and remanded in order that that court may determine whether to reconsider its decision in the light of the Government’s present contention that Claim 16, as construed by the Court of Claims, was anticipated by the patents to Pupin, No. 640,516, and Fessenden, No. 706,735. P.48. 8. A defendant in a patent infringement suit who has added noninfringing and valuable improvements which contributed to the making of the profits is not liable for benefits resulting from such improvements. P. 50. 9. Disclosure by publication more than two years before application for a patent bars any claim for a patent for an invention embodying the published disclosure. P. 57. 10. Invalidity in part of a patent defeats the entire patent unless the invalid portion was claimed through inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, and is disclaimed without unreasonable neglect or delay. P. 57. 11. Fleming Patent No. 803,864 held invalid by reason of an improper disclaimer. P. 58. The specifications plainly contemplated the use of the claimed device with low as well as high frequency currents, and the patent was invalid for want of invention so far as applicable to use with low frequency currents; the claim was not inadvertent, and the delay of ten years in making the disclaimer was unreasonable. 12. That the patentee’s claim for more than he had invented was not inadvertant, and that his delay in making disclaimer was unreasonable, were questions of fact; but, since the Court of Claims in MARCONI WIRELESS CO. v. U. S. 3 1 Opinion of the Court. its opinion in this case plainly states its conclusions as to them, and those conclusions are supported by substantial evidence, its omission to make formal findings of fact is immaterial. P. 58. 13. The disclaimer statutes are applicable to one who acquires a patent under an assignment of the application. P. 59. 99 Ct. Cis. 1, affirmed in part. Writs of certiorari, 317 U. S. 620, on cross-petitions to review a judgment in a suit against the United States to recover damages for infringement of patents. See 81 Ct. Cis. 741. Mr. Stephen H. Philbin, with whom Messrs. Abel E. Blackmar, Jr. and Richard A. Ford were on the brief, for the Marconi Company. Assistant Attorney General Shea, with whom Solicitor General Fahy and Messrs. Clifton V. Edwards, J. F. Mothershead, Joseph Y. Houghton and Richard S. Salant were on the brief, for the United States. Mr. Chief Justice Stone delivered the opinion of the Court. The Marconi Company brought this suit in the Court of Claims pursuant to 35 U. S. C. § 68, to recover damages for infringement of four United States patents. Two, No. 763,772, and reissue No. 11,913, were issued to Marconi, a third, No. 609,154, to Lodge, and a fourth, No. 803,684, to Fleming. The court held that the Marconi reissue patent was not infringed. It held also that the claims in suit, other than Claim 16, of the Marconi patent No. 763,772, are invalid; and that Claim 16 of the patent is valid and was infringed. It gave judgment for petitioner on this claim in the sum of $42,984.93 with interest. It held that the Lodge patent was valid and infringed, and that the Fleming patent was not infringed and was rendered void by an improper disclaimer. The case comes here on certiorari, 317 U. S. 620, 28 U. S. C. § 288 4 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. (b), on petition of the Marconi Company in No. 369, to review the judgment of the Court of Claims holding invalid the claims in suit, other than Claim 16, of the Marconi patent, and holding the Fleming patent invalid and not infringed, and on petition of the Government in No. 373, to review the decision allowing recovery for infringement of Claim 16 of the Marconi patent. No review was sought by either party of so much of the court’s judgment as sustained the Lodge patent and held the first Marconi reissue patent not infringed. Marconi Patent No. 763,772. This patent, granted June 28, 1904, on an application filed November 10, 1900, and assigned to the Marconi Company on March 6, 1905,1 is for improvements in apparatus for wireless telegraphy by means of Hertzian oscillations or electrical waves. In wireless telegraphy, signals given by means of controlled electrical pulsations are transmitted through the ether by means of the so-called Hertzian or radio waves. Hertzian waves are electrical oscillations which travel with the speed of light and have varying wave lengths and consequent frequencies intermediate between the frequency ranges of light and sound waves. The transmitting apparatus used for sending the signals is capable, when actuated by a telegraph key or other signalling device, of producing, for short periods of variable lengths, electrical oscillations of radio frequency (over 10,000 cycles per second) in an antenna or open circuit from which the oscillations are radiated to a distant receiving apparatus. The receiver has an open antenna circuit which is electrically responsive 1 On November 20, 1919, the Marconi Company assigned to the Radio Corporation of America all of its assets, including the patents here in suit, but reserved, and agreed to prosecute, the present claims against the United States, on which it had instituted suit on July 29, 1916. MARCONI WIRELESS CO. v. U. S. 5 1 Opinion of the Court. to the transmitted waves and is capable of using those responses to actuate by means of a relay or amplifier any convenient form of signalling apparatus for making audible an electrically transmitted signal, such as a telegraph sounder or a loud speaker. In brief, signals at the transmitter are utilized to control high frequency electrical oscillations which are radiated by an antenna through the ether to the distant receiver and there produce an audible or visible signal. All of these were familiar devices at the time of Marconi’s application for the patent now in suit. By that time radio had passed from the theoretical to the practical and commercially successful. Four years before, Marconi had applied for his original and basic patent, which was granted as No. 586,193, July 13, 1897 and reissued June 4, 1901 as reissue No. 11,913. He applied for his corresponding British patent, No. 12039 of 1896, on June 2, 1896. Marconi’s original patent showed a two-circuit system, in which the high frequency oscillations originated in the transmitter antenna circuit and the detecting device was connected directly in the receiver antenna circuit. Between 1896 and 1900 he demonstrated on numerous occasions the practical success of his apparatus, attaining successful transmission at distances of 70 and 80 miles. During those years he applied for a large number of patents in this and other countries for improvements on his system of radio communication.2 2 See Marconi Wireless Tel. Co. v. National Electric Signalling Co., 213 F. 815, 825, 829-31; Encyclopedia Britannica (14th Ed.) vol. 14, p. 869; Dunlap, Marconi, The Man and His Wireless; Jacot and Collier, Marconi—Master of Space; Vyvyan, Wireless Over Thirty Years; Fleming, Electric Wave Telegraphy, 426-443. Marconi was granted eight other United States patents for wireless apparatus on applications filed between the filing dates of Nos. 586,193 and 763,772. They are Nos. 624,516, 627,650, 647,007, 647,008, 647,-009, 650,109, 650,110, 668,315. 6 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. The particular advance said to have been achieved by the Marconi patent with which we are here concerned was the use of two high frequency circuits in the transmitter and two in the receiver, all four so adjusted as to be resonant to the same frequency or multiples of it. The circuits are so constructed that the electrical impulses in the antenna circuit of the transmitter vibrate longer with the application to the transmitter of a given amount of electrical energy than had been the case in the previous structures known to the art, and the selectivity and sensitivity of the receiver is likewise enhanced. Thus increased efficiency in the transmission and reception of signals is obtained. The specifications of the Marconi patent state that its object is “to increase the efficiency of the system and to provide new and simple means whereby oscillations of electrical waves from a transmitting station may be localized when desired at any one selected receiving station or stations out of a group of several receiving-stations.” The specifications describe an arrangement of four high frequency circuits tuned to one another—two at the sending station associated with a source of low frequency oscillations, and two at the receiving station associated with a relay or amplifier operating a signalling device. At the sending station there is an open antenna circuit which is “a good radiator,” connected with the secondary coil of a transformer, and through it inductively coupled with a closed circuit, which is connected with the primary coil of the transformer, this closed circuit being a “persistent oscillator.” At the receiving station there is an open antenna circuit constituting a “good absorber” inductively coupled with a closed circuit capable of accumulating the received oscillations. The patent, in describing the arrangement of the apparatus so as to secure the desired resonance or tuning, specifies: “The capacity and self-induction of the four MARCONI WIRELESS CO. v. U. S. 7 1 Opinion of the Court. circuits—i. e., the primary and secondary circuits at the transmitting-station and the primary and secondary circuits at any one of the receiving-stations in a communicating system are each and all to be so independently adjusted as to make the product of the self-induction multiplied by the capacity the same in each case or multiples of each other—that is to say, the electrical time periods of the four circuits are to be the same or octaves of each other.”3 And again, “In employing this invention to localize the transmission of intelligence at one of several receiving-stations the time period of the circuits at each of the receiving-stations is so arranged as to be different from those of the other stations. If the time periods of the circuits of the transmitting-station are varied until they are in resonance with those of one of the receivingstations, that one alone of all the receiving-stations will respond, provided that the distance between the transmitting and receiving stations is not too small.” The drawings and specifications show a closed circuit at the transmitting station connected with the primary 8 Capacity is the property of an electrical circuit which enables it to receive and store an electrical charge when a voltage is applied to it, and to release that charge as the applied voltage is withdrawn, thereby causing a current to flow in the circuit. Although any conductor of electricity has capacity to some degree, that property is substantially enhanced in a circuit by the use of a condenser, consisting of two or more metal plates separated by a non-conductor, such that when a voltage is applied to the circuit one plate will become positively and the other negatively charged. Self-inductance is the property of a circuit by which, when the amount or direction of the current passing through it is changed, the magnetic stresses created induce a voltage opposed to the change. Although any conductor has self-inductance to some degree, that property is most marked in a coil. See generally Albert, Electrical Fundamentals of Communication, Chs. V, VI, VII, and IX; Terman, Radio Engineering, Chs. II and III; Morecroft, Principles of Radio Communication, Chs. I, II, III; Lauer and Brown, Radio Engineering Principles, Chs. I and II. 8 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. of an induction coil, and embracing a source of electrical current and a circuit-closing key or other signalling device. The secondary of the induction coil is connected in a circuit which includes a spark gap or other producer of high frequency oscillations and, in a shunt around the spark gap, the primary coil of an oscillation transformer and a condenser, preferably so arranged that its capacity can readily be varied. This shunt circuit constitutes one of the two tuned circuits of the transmitter, and is often referred to as the closed or charging circuit. The secondary coil of the transformer is connected in the open or antenna circuit, one end of which is connected with the earth, the other to a vertical wire antenna or an elevated plate. This antenna circuit also includes an induction coil, preferably one whose inductance is readily variable, located between the antenna or plate and the transformer. The receiver consists of a similar antenna circuit connected with the primary coil of a transformer, and having a variable induction coil located between the antenna or plate and the transformer. A shunt circuit bridging the transformer and containing a condenser which is preferably adjustable may also be added. The secondary coil of the transformer is connected through one or more interposed inductance coils, “preferably of variable inductance,” with the terminals of a coherer4 or other suitable detector of electrical oscillations. The closed receiver circuit also contained one or more condensers. 4 A coherer was a device disclosed by Branly as early as 1891. It was used by Lodge in experiments described in the London Electrician for June 15, 1894, p. 189, and was in common use thereafter as a detector of radio waves until replaced by the crystal and the cathodeanode tube. The most common form consisted of a tube containing metal filings which, in their normal state, were a non-conductor. When placed in a circuit through which high frequency oscillations passed, the filings aligned themselves in a continuous stream through which the low frequency electrical current operating a key or other MARCONI WIRELESS CO. v. U. S. 9 1 Opinion of the Court. The devices and arrangements specified are suitable for effecting the electrical transmission of signals in the manner already indicated. By the maintenance of the same high frequency throughout the four-circuit system the cumulative resonance is attained which gives the desired increased efficiency in transmission and increased selectivity at the receiving station. The patent describes the operation of the four circuits as follows, beginning with the transmitter: “In operation the signalling-key b is pressed, and this closes the primary of the induction-coil. Current then rushes through the transformer-circuit and the condenser e is charged and subsequently discharges through the spark-gap. If the capacity, the inductance, and the resistance of the circuit are of suitable values, the discharge is oscillatory, with the result that alternating currents of high frequency pass through the primary of the transformer and induce similar oscillations in the secondary, these oscillations being rapidly radiated in the form of electric waves by the elevated conductor [antenna]. “For the best results and in order to effect the selection of the station or stations whereat the transmitted oscillations are to be localized I include in the open secondary circuit of the transformer, and preferably between the radiator / and the secondary coil d', an inductance-coil g, Fig. 1, having numerous coils, and the connection is such that a greater or less number of turns of the coil can be put in use, the proper number being ascertained by experiment.” signalling device could pass. By means of a device which tapped the sides of the tube, the stream of filings was broken when the high-frequency oscillations ceased. Thus the coherer was a sensitive device by which weak, high-frequency signals could be made to actuate a low-frequency current of sufficient power to operate a telegraphic key or other device producing a visible or audible signal. 10 OCTOBER TERM, 1942. Opirion of the Court. 320U.S. The invention thus described may summarily be stated to be a structure and arrangement of four high frequency circuits, with means of independently adjusting each so that all four may be brought into electrical resonance with one another. This is the broad invention covered by Claim 20. Combinations covering so much of the invention as is embodied in the transmitter and the receiver respectively are separately claimed.5 Long before Marconi’s application for this patent the scientific principles of which he made use were well understood and the particular appliances constituting elements in the apparatus combination which he claimed were well known. About seventy years ago Clerk Maxwell described the scientific theory of wireless communication through the transmission of electrical energy by ether waves? Between 1878 and 1890 Hertz devised apparatus for achieving that result which was described by de Tun-zelmann in a series of articles published in the London 6 * * * * * * * 14 6 Of the claims in suit in No. 369, Claims 10 and 20 cover the four- circuit system, while Claims 1, 3, 6, 8, 11 and 12 cover the two transmitter circuits and Claims 2, 13, 14, 17, 18 and 19 cover the two re- ceiver circuits. Claim 10 merely provides that the four circuits be in resonance with each other and hence does not prescribe means of adjusting the tuning. Claim 11 likewise prescribes no means of adjustment. The other claims provide means of adjustment, either a “vari- able inductance” (Claims 1, 2, 3, 8, 12, 13, 18, and 19) or more gen- erally “means” for adjusting the period of the circuits (Claims 3, 6,14 and 17). Some of the claims merely provide means of adjusting the tuning of the antenna circuit (Claims 1, 2, 8,12, and 13) and hence do not require that the closed circuits be tuned. Others either specifically prescribe the adjustable timing of both circuits at transmitter (Claims 3, 6) or receiver (Claims 18 and 19) or both (Claim 20) or else prescribe “means for adjusting the two transformer-circuits in electrical resonance with each other, substantially as described” (Claims 14 and 17). 6 A Dynamical Theory of the Electromagnetic Field (1864), 155 Philosophical Transactions of the Royal Society 459; 1 Scientific Papers of James Clerk Maxwell 526. MARCONI WIRELESS CO. v. U. S. 11 1 Opinion of the Court. Electrician in 1888. One, of September 21,1888, showed a transmitter comprising a closed circuit inductively coupled with an open circuit. The closed circuit included a switch or circuit breaker capable of use for sending signals, and an automatic circuit breaker capable, when the switch was closed, of setting up an intermittent current in the closed circuit which in turn induced through a transformer an intermittent current of higher voltage in the open circuit. The open circuit included a spark gap across which a succession of sparks were caused to leap whenever the signal switch was closed, each spark producing a series of high frequency oscillations in the open circuit. By connecting the spark gap to large area plates in the open circuit Hertz increased the capacity and thus not only increased the force of the sparks but also changed one of the two factors determining the frequency of the oscillations in the circuit, and hence the wave length of the oscillations transmitted. Hertz’s receiver was shown as a rectangle of wire connected to the knobs of a spark gap, both the wire and the spark gap being of specified lengths of such relationship as to render the circuit resonant to the wave lengths in the transmitter. At times Hertz attached to the rectangle additional vertical wires which provided additional capacity, and whose length could readily be varied so as to vary the wave lengths to which the receiver was responsive, thus providing a “method of adjusting the capacity” of the receiver.7 Thus Hertz at the outset of radio communication recognized the importance of resonance and provided means for securing it by tuning both his transmitting and re- 7 7 See the London Electrician for September 21, 1888, p. 628. Ebert, in the London Electrician for July 6, 1894, p. 333, likewise pointed out that Hertz’s receivers are “so arranged that they show the maximum resonant effect with a given exciter; they are ‘electrically tuned.’ ” 12 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. ceiving circuits to the same frequency, by adjusting the capacity of each.8 Lodge, writing in the London Electrician in 1894, elaborated further on the discoveries of Hertz and on his own experiments along the same lines. In one article, of June 8, 1894, he discussed phenomena of resonance and made an observation which underlies several of the disclosures in Marconi’s patent. Lodge pointed out that some circuits were by their nature persistent vibrators, i. e., were able to sustain for a long period oscillations set up in them, while others were so constructed that their oscillations were rapidly damped. He said that a receiver so constructed as to be rapidly damped would respond to waves of almost any frequency, while one that was a persistent vibrator would respond only to waves of its own natural periodicity. Lodge pointed out further that Hertz’s transmitter “radiates very powerfully” but that “In consequence of its radiation of energy, its vibrations are rapidly damped, and it only gives some three or four good strong swings. Hence it follows that it has a wide range of excitation, i. e., it can excite sparks in conductors barely at all in tune with it.” On the other hand Hertz’s receiver was “not a good absorber but a persistent vibrator, well adapted for picking up disturbances of precise 8 De Tunzelmann shows that Hertz clearly understood the principles of electrical resonance. Some of his early experiments were designed to determine whether principles of resonance were applicable to high frequency electrical circuits. From them Hertz concluded that “an oscillatory current of definite period would, other conditions being the same, exert a much greater inductive effect upon one of equal period than upon one differing even slightly from it.” Id. p. 626. Hertz knew that the frequency to which a circuit was resonant was a function of the square root of the product of the self-inductance and capacity in the circuit and by a formula similar to that now used he calculated the approximate frequency of the oscillations produced by his transmitter. Id., September 28, 1888, 664-5. MARCONI WIRELESS CO. v. U. S. 13 1 Opinion of the Court. and measurable wave-length.” Lodge concluded that “The two conditions, conspicuous energy of radiation and persistent vibration electrically produced, are at present incompatible.” (pp. 154-5.) In 1892, Crookes published an article in the Fortnightly Review in which he definitely suggested the use of Hertzian waves for wireless telegraphy and pointed out that the method of achieving that result was to be found in the use and improvement of then known means of generating electrical waves of any desired wave length, to be transmitted through the ether to a receiver, both sending and receiving instruments being attuned to a definite wave length.9 A year later Tesla, who was then preoccupied with the wireless transmission of power for use in lighting or for the operation of dynamos, proposed, in a lecture before the Franklin Institute in Philadelphia, the use of adjustable high frequency oscillations for wireless transmission of signals.10 Marconi’s original patent No. 586,193, which was granted July 13,1897, and became reissue No. 11,913, disclosed a two-circuit system for the transmission and reception of Hertzian waves. The transmitter comprised an antenna circuit connected at one end to an aerial plate and at the other to the ground, and containing a spark gap. To the knobs of the spark gap was connected a transformer whose secondary was connected with a source of current and a signalling key. The low frequency current thereby induced in the antenna circuit was caused to discharge through the spark gap, producing the high frequency oscillations which were radiated by the antenna. The receiver similiarly contained an antenna circuit between an elevated plate and the ground, in which 9 Fortnightly Review, No. 101, February, 1892, 173, 174-5. 10 Martin, Inventions, Researches and Writings of Nikola Tesla, pp. 346-8. 14 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. a coherer was directly connected. Marconi claimed the construction of transmitter and receiver so as to be resonant to the same frequency, and described means of doing so by careful determination of the size of the aerial plates. The Tesla patent No. 645,576, applied for September 2, 1897 and allowed March 20, 1900, disclosed a four-circuit system, having two circuits each at transmitter and receiver, and recommended that all four circuits be tuned to the same frequency. Tesla’s apparatus was devised primarily for the transmission of energy to any form of energy-consuming device by using the ratified atmosphere at high elevations as a conductor when subjected to the electrical pressure of a very high voltage. But he also recognized that his apparatus could, without change, be used for wireless communication, which is dependent upon the transmission of electrical energy. His specifications declare: “The apparatus which I have shown will obviously have many other valuable uses— as, for instance, when it is desired to transmit intelligible messages to great distances . . .”u Tesla’s specifications disclosed an arrangement of four circuits, an open antenna circuit coupled, through a transformer, to a closed charging circuit at the transmitter, and an open antenna circuit at the receiver similarly coupled to a closed detector circuit. His patent also in- 11 Tesla’s specifications state that the current should preferably be "of very considerable frequency.” In describing apparatus used experimentally by him, the specifications state that the oscillations are generated in the charging circuit by the periodic discharge of a condenser by means of "a mechanically operated break,” a means whose effects are similar to those of the spark gap generally used at this period in the radio art. He further states that the inductance of the charging circuit is so calculated that the "primary circuit vibrates generally according to adjustment, from two hundred and thirty thousand to two hundred and fifty thousand times per second.” The MARCONI WIRELESS CO. v. U. S. 15 1 Opinion of the Court. structed those skilled in the art that the open and closed circuits in the transmitting system and in the receiving system should be in electrical resonance with each other. His specifications state that the “primary and secondary circuits in the transmitting apparatus” are “carefully synchronized.” They describe the method of achieving this by adjusting the length of wire in the secondary winding of the oscillation transformer in the transmitter, and similarly in the receiver, so that “the points of highest potential are made to coincide with the elevated terminals” of the antenna, i. e., so that the antenna circuit will be resonant to the frequency developed in the charging circuit of the transmitter. The specifications further state that “the results were particularly satisfactory when the primary coil or system A' with its secondary C' [of the receiver] was carefully adjusted, so as to vibrate in synchronism with the transmitting coil or system AC.” Tesla thus anticipated the following features of the Marconi patent: A charging circuit in the transmitter for causing oscillations of the desired frequency, coupled, through a transformer, with the open antenna circuit, and the synchronization of the two circuits by the proper disposition of the inductance in either the closed or the antenna circuit or both. By this and the added disclosure of the two-circuit arrangement in the receiver with similar adjustment, he anticipated the four-circuit tuned range of radio frequencies in use in 1917 was said by a witness for the plaintiff to extend from 30,000 to 1,500,000 cycles per second. The range of frequencies allocated for radio use by the International Telecommunication Convention, proclaimed June 27, 1934, 49 Stat. 2391, 2459, is from 10 to 60,000 kilocycles (10,000 to 60,000,000 cycles) per second, and the spectrum of waves over which the Federal Communi-cations Commission currently exercises jurisdiction extends from 10 to 500,000 kilocycles. Code of Federal Regulations, Title 47, Ch. I, §2.71. Thus Tesla’s apparatus was intended to operate at radio frequencies. 552826—44--6 16 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. combination of Marconi. A feature of the Marconi combination not shown by Tesla was the use of a variable inductance as a means of adjusting the tuning of the antenna circuit of transmitter and receiver. This was developed by Lodge after Tesla’s patent but before the Marconi patent in suit. In patent No. 609,154, applied for February 1,1898 and allowed August 16, 1898, before Marconi’s application, Lodge disclosed an adjustable induction coil in the open or antenna circuit in a wireless transmitter or receiver or both to enable transmitter and receiver to be tuned together. His patent provided for the use, in the open circuits of a transmitter and a receiver of Hertzian waves, of a selfinduction coil between a pair of capacity areas which he stated might be antenna and earth. His specifications state that a coil located as described could be made adjustable at will so as to vary the value of its self-inductance; that the adjustment, to secure the “desired frequency of vibration or syntony with a particular distant station,” may be attained either “by replacing one coil by another” or by the use of a coil constructed with a movable switch so related to the coil as to short circuit, when closed, any desired number of turns of the wire, “so that the whole or any smaller portion of the inductance available may be used in accordance with the correspondingly-attuned receiver at the particular station to which it is desired to signal.” Thus Lodge adjusted his tuning by varying the self-inductance of the antenna circuits, for, as he explained, the adjustment of wave lengths, and hence of frequency in the circuits, could be made by varying either or both the inductance and capacity, which are the factors controlling wave length and hence frequency in the antenna circuits. Lodge thus broadly claimed the tuning, by means of a variable inductance, of the antenna circuits in a system of radio communication. His specifications disclose what is substantially a two-circuit system, with one high fre- MARCONI WIRELESS CO. v. U. S. 17 1 Opinion of the Court. quency circuit at the transmitter and one at the receiver. He also showed a two-circuit receiver with a tuned antenna circuit, his detector circuit at the receiver being connected with the terminals of a secondary coil wound around the variable inductance coil in the antenna circuit and thus inductively coupled through a transformer with the antenna circuit.12 Lodge thus supplied the means of varying inductance and hence tuning which was lacking in the Tesla patent. He also showed a receiver which completely anticipated those of the Marconi receiver claims which prescribe adjustable means of tuning only in the antenna circuit (Claims 2,13 and 18) and partially anticipated the other receiver claims. The Stone patent No. 714,756, applied for February 8, 1900, nine months before Marconi’s application, and allowed December 2, 1902, a year and a half before the grant of Marconi’s patent, showed a four-circuit wireless telegraph apparatus substantially like that later specified and patented by Marconi. It described adjustable tuning, by means of a variable inductance, of the closed circuits of both transmitter and receiver. It also recommended that the two antenna circuits be so constructed as to be resonant to the same frequencies as the closed circuits. This recommendation was added by amendment to the specifications made after Marconi had filed his application, and the principal question is whether the amendments were in point of substance a departure from Stone’s invention as disclosed by his application. Stone’s application shows an intimate understanding of the mathematical and physical principles underlying radio communication and electrical circuits in general. 12 Marconi’s patent No. 627,650, of June 27, 1899, similarly showed a two-circuit receiving system, in which the coherer was placed in a closed circuit which was inductively coupled with a tuned antenna circuit. The Court of Claims found, however, that this patent did not clearly disclose the desirability of tuning both circuits. 18 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. It contains a critical analysis of the state of the art of radio transmission and reception. He said that as yet it had not been found possible so to tune stations using a vertical antenna as to make possible selective reception by a particular station to the exclusion of others. His effort, accordingly, was to transmit a “simple harmonic wave” of well defined periodicity to a receiver which would be selectively responsive to the particular frequency transmitted, and thereby to achieve greater precision of tuning and a higher degree of selectivity. Stone discusses in some detail the difference between “natural” and “forced” oscillations. He says “If the electrical equilibrium of a conductor be abruptly disturbed and the conductor thereafter be left to itself, electric currents will flow in the conductor, which tend to ultimately restore the condition of electrical equilibrium.” He points out that a closed circuit containing a condenser and a coil is “capable of oscillatory restoration of equilibrium upon the sudden discharge of the condenser” and that “the electrical oscillations which it supports when its equilibrium is abruptly disturbed and it is then left to itself are known as the natural vibrations or oscillations of the system.” In addition to its ability to originate “natural vibrations” when its electrical equilibrium is disturbed, Stone says that an electrical circuit is also “capable of supporting what are termed forced vibrations” when electrical oscillations elsewhere created are impressed upon it. In contrast to the “natural” vibrations of a circuit, whose frequency depends upon “the relation between the electromagnetic constants [capacity and self-inductance] of the circuit,” the frequency of the “forced” vibrations is “independent of the constants of the circuit” on which they are impressed and “depends only upon the period [frequency] of the impressed force.” In other words, Stone found that it was possible not only to originate high- MARCONI WIRELESS CO. v. U. S. 19 1 Opinion of the Court. frequency oscillations in a circuit, and to determine their frequency by proper distribution of capacity and selfinductance in the circuit, but also to transfer those oscillations to another circuit and retain their original frequency. Stone points out that in the existing systems of radio transmission the electric oscillations are “naturally” developed in the antenna circuit by the sudden discharge of accumulated electrical force through a spark gap in that circuit. Such oscillations are “necessarily of a complex character and consist of a great variety of superimposed simple harmonic vibrations of different frequencies.” “Similarly the vertical conductor at the receiving station is capable of receiving and responding to vibrations of a great variety of frequencies so that the electro-magnetic waves which emanate from one vertical conductor used as a transmitter are capable of exciting vibrations in any other vertical wire as a receiver . . . and the messages from the transmitting station will not be selectively received by the particular receiving station with which it is desirous to communicate, and will interfere with the operation of other receiving stations within its sphere of influence.” In contrast to the two-circuit system whose inadequacies he had thus described, Stone’s drawings and specifications disclose a four-circuit system for transmitting and receiving radio waves which was very similar to that later disclosed by Marconi. The transmitter included a source of low frequency oscillating current and a telegraph or signalling key connected in a circuit which was inductively coupled with another closed circuit. This included an induction coil, a condenser, and a spark gap capable of generating high frequency oscillations. It in turn was inductively coupled through a transformer with an open antenna circuit connected to an aerial capacity at one end and the earth at the other. The receiver included a sim 20 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. ilar antenna circuit, inductively coupled with a closed oscillating circuit containing an induction coil, a condenser, and a coherer or other detector of radio waves. Stone thus recognized, although he used different terminology, the fact, previously observed by Lodge, that an open antenna circuit, so constructed as to be an efficient radiator, was not an oscillator capable of producing natural waves of a single well-defined periodicity, and consequently had a wide range of excitation. He adopted the same remedy for this defect as Marconi later did, namely to produce the oscillations in a closed circuit capable of generating persistent vibrations of well-defined periodicity, and then induce those oscillations in an open antenna circuit capable of radiating them efficiently to a distant resonant receiver. He states that the vibrations in his closed circuit “begin with a maximum of amplitude and gradually die away,” a good description of the results obtainable by a “persistent oscillator.”13 Similarly in his receiver Stone recognized that an open antenna circuit (Lodge’s “good absorber”) was not a highly sensitive responder to waves of a particular frequency, and accordingly he sought to augment the selectivity of tuning at the receiver by interposing between the antenna circuit and the responding device a closed circuit which would be a more persistent vibrator and hence render the receiv- 18 That the closed circuit was intended to be a “persistent oscillator” is also brought out by Stone’s emphasis on “loose coupling.” Stone’s application explained in detail the fact that when two circuits are inductively coupled together there normally result “two degrees of freedom,” that is to say, the superposition of two frequencies in the same circuit because of the effect on each of the magnetic lines of force set up by the other. He discussed in detail methods of eliminating this superposition, which interfered with accurate selectivity of tuning, by so constructing his circuits as to be “loosely coupled.” This he achieved by including in the closed circuits a large inductance coil, which had the effect of “swamping” the undesirable effect of MARCONI WIRELESS CO. v. U. S. 21 1 Opinion of the Court. ing apparatus more selectively responsive to waves of a particular frequency. In so doing, however, as will presently appear, he did not disregard the favorable effect on selectivity of tuning afforded by making the antenna circuits resonant to the transmitted frequency. Stone’s application recommends that the inductance coils in the closed circuits at transmitter and receiver “be made adjustable and serve as a means whereby the operators may adjust the apparatus to the particular frequency which it is intended to employ.” He thus disclosed a means of adjusting the tuning of the closed circuits by variable inductance. His original application nowhere states in so many words that the antenna circuits should be tuned, nor do its specifications or drawings explicitly disclose any means for adjusting the tuning of those circuits. But there is nothing in them to suggest that Stone did not intend to have the antenna circuits tuned, and we think that the principles which he recognized in his application, the purpose which he sought to achieve, and certain passages in his specifications, show that he recognized, as they plainly suggest to those skilled in the art, the desirability of tuning the antenna circuits as well. The disclosures of his application were thus an adequate basis for the specific recommendation, later added by amendment, as to the desirability of constructing the the lines of force set up in the primary of the transformer by the current induced in the secondary. Since the turns of wire in the primary of the transformer constituted a relatively small part of the total inductance in the closed circuit the effect of those turns on the frequency of the circuit was minimized. But the testimony at the trial was in substantial agreement that the looser the coupling the slower is the transfer of energy from the closed charging circuit to the open antenna circuit. Hence the use of loose coupling presupposes a charging circuit that will store its energy for a considerable period, i. e., that will maintain persistent-oscillations. 22 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. antenna circuits so as to be resonant to the frequency produced in the charging circuit of the transmitter. The major purpose of Stone’s system was the achievement of greater selectivity of tuning. His objective was to transmit waves “of but a single frequency” and to receive them at a station which “shall be operated only by electric waves of a single frequency and no others.” He states: “By my invention the vertical conductor of the transmitting station is made the source of electro-magnetic waves of but a single periodicity, and the translating apparatus at the receiving station is caused to be selectively responsive to waves of but a single periodicity so that the transmitting apparatus corresponds to a tuning fork sending but a single simple musical tone, and the receiving apparatus corresponds to an acoustic resonator capable of absorbing the energy of that single, simple musical tone only.” He says that “when the apparatus at a particular [receiving] station” is properly tuned to a particular transmitting station the receiver will selectively receive messages from it. He adds: “Moreover, by my invention the operator at the transmitting or receiving station may at will adjust the apparatus at his command in such a way as to place himself in communication with any one of a number of stations ... by bringing his apparatus into resonance with the periodicity employed.” And with respect to the transmitter he says, “It is to be understood that any suitable device may be employed to develop the simple harmonic force impressed upon the vertical wire [antenna]. It is sufficient to develop in the vertical wire practically simple harmonic vibrations of a fixed and high frequency.” MARCONI WIRELESS CO. v. U. S. 23 1 Opinion of the Court. These statements sufficiently indicate Stone’s broad purpose of providing a high degree of tuning at sending and receiving stations. In seeking to achieve that end he not unnaturally placed emphasis on the tuning of the closed circuits, the association of which with the antenna circuits was an important improvement which he was the first to make. But he also made it plain that it was the sending and receiving “apparatus” which he wished to tune, so that the sending “apparatus” “would correspond to a tuning fork” and the receiving “apparatus” to “an acoustic resonator” capable of absorbing the energy of the “single, simple musical tone” transmitted. And this he sought to achieve by “any suitable device.” Stone thus emphasized the desirability of making the entire transmitting and receiving “apparatus” resonant to a particular frequency. As none of the circuits are resonant to a desired frequency unless they are tuned to that frequency, this reference to the transmitting and receiving apparatus as being brought into resonance with each other cannot fairly be said to mean that only some of the circuits at the transmitter and receiver were to be tuned. To say that by this reference to the tuning of sending and receiving apparatus he meant to confine his invention to the tuning of some only of the circuits in that apparatus is to read into his specifications a restriction which is plainly not there and which contradicts everything they say about the desirability of resonance of the apparatus. It is to read the specifications, which taken in their entirety are merely descriptive or illustrative of his invention, compare Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 418, 419-20, as though they were claims whose function is to exclude from the patent all that is not specifically claimed. Mahn v. Harwood, 112 U. S. 354, 361; McClain n. Ortmayer, 141 U. S. 419, 423-5; Milcor Steel Co. v. Fuller Co., 316 U. S. 143,146. 24 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. Stone had pointed out that the tuning of the antenna circuits shown in the prior art did not of itself afford sufficient selectivity. It was for that reason that he used the tuned closed circuit in association with the antenna circuit. But in the face of his emphasis on the desirability of tuning the transmitting and receiving apparatus, we cannot impute to him an intention to exclude from his apparatus the well known use of tuning in the antenna circuits as an aid to the selectivity which it was his purpose to achieve. The inference to be drawn is rather that he intended the tuned closed circuits which he proposed to add to the then known systems of radio communication, to be used in association with any existing type of vertical wire antenna circuit, including one so constructed as to be either resonant to a particular frequency, or adjustably resonant to any desired frequency, both of which involved tuning. Stone’s full appreciation of the value of making all of his circuits resonant to the same frequency is shown by his suggestion to insert, between the closed and antenna circuits at the transmitter and receiver, one or more additional closed circuits, so constructed as to be highly resonant to the particular frequency employed. He says that the purpose of such an intermediate circuit is “to weed out and thereby screen” the antenna circuit at the transmitter and the detecting device at the receiver from any harmonics or other impurities in the wave structure. He states: “This screening action of an interposed resonant circuit is due to the well known property of such circuits by which a resonant circuit favors the development in it of simple harmonic currents of the period to which it is attuned and strongly opposes the development in it of simple harmonic currents of other periodicities.” His original application thus disclosed the advantage, where vibrations created in one circuit are to be impressed on another, of making the latter circuit resonant to the same frequency as the former, in view of the “well MARCONI WIRELESS CO. v. U. S. 25 1 Opinion of the Court. known property” of a resonant circuit to favor the “development” in it of forced vibrations of the same frequency as its natural periodicity. Stone’s application shows that these principles of resonant circuits were no less applicable to the antenna circuit, and suggests the use of “any suitable device” to “develop” in the antenna circuit the “simple harmonic force impressed” upon it. It was then well known in the art that every electrical circuit is to some degree resonant to a particular frequency to which it responds more readily and powerfully than to others. Although the degree of resonance attained by a vertical wire is small, its natural resonance is no different in kind from that of a closed circuit such as Stone’s screening circuit. Stone recognized this in his application. In describing the complex natural vibrations set up by a sudden discharge in an antenna circuit, such as that commonly used at the time of his application, Stone said that “the vibrations consist of a simple harmonic vibration of lower period than all the others, known as the fundamental with a great variety of superimposed simple harmonics of higher periodicity superimposed thereon.” And he says that the oscillations developed in the charging circuit of his system “induce corresponding oscillations in the vertical wire,” which are “virtually” forced vibrations, and “practically independent, as regards their frequency, of the constants of the second circuit in which they are induced”—a plain recognition that the antenna circuit has electro-magnetic constants which affect its natural periodicity, and that that natural periodicity does have some effect on the frequency of the vibrations impressed upon the antenna circuit.14 14 Stone’s recognition of the similarity between his antenna circuit and his screening circuit is further shown by his direction that the coupling between the screening circuit and the charging circuit, like that between the antenna and charging circuits where no screening circuit is used, be loose. See note 12, supra. 26 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. Thus Stone did not, as the Marconi Company suggests, say that the antenna circuit had no natural periodicity. He recognized that its natural periodicity was less strongly marked than that of his closed circuit, and hence that the wave structure could be greatly improved by creating the oscillations in a closed circuit such as he described. But he also plainly recognized that the antenna circuit, like his screening circuit, was a circuit having a natural period of vibration which would therefore be more responsive to impressed oscillations of that same periodicity. Since he had previously said that “any suitable device may be employed to develop the simple harmonic force impressed upon the vertical wire,” we think that Stone’s specifications plainly suggested to those skilled in the art that they avail themselves of this means of developing in the antenna this simple harmonic force, and that they tune the antenna circuit in order to improve the strength and quality of the “forced” vibrations impressed upon it. The Marconi Company argues that Stone’s theory of “forced” oscillations presupposes that the open transmitter circuit be untuned. It is true that Stone said that such “forced” oscillations have a period of vibration which is “independent of the electrical constants of the circuit” on which they are impressed. But the fact that the “forced” vibration will retain its natural period whatever the frequency of the antenna circuit may be, does not preclude, as Stone showed, the tuning of that circuit so as to achieve maximum responsiveness to the vibrations impressed upon it. Stone’s specifications indicate that he used the term “forced” merely as meaning that the vibrations are developed in another circuit and then transferred to the antenna circuit by inductive coupling, as distinguished from “natural” vibrations which originate in the antenna or radiating circuit—in short that “forced” is merely used as a synonym for “in- MARCONI WIRELESS CO. v. U. S. 27 1 Opinion of the Court. duced.” Thus he states in describing the operation of his transmitter, “The high frequency current . . . passing through the primary L [of the antenna transformer] induces a corresponding high-frequency electromotive force and current in the secondary I2 and forced electric vibrations result in the vertical conductor v . . 15 Hence there is ample support for the finding of the court below that “By free oscillations is meant that their frequency was determined by the constants of the circuit in which they were generated. The Stone application as filed impressed these oscillations upon the open circuit, and therefore used ‘forced’ oscillations in the open circuit of the transmitter, that is, the frequency of the oscillations in the open circuit was determined by the frequency of the oscillations in the closed circuit. “The effect of forcing vibrations upon a tuned and untuned circuit may be likened unto the effect of a tuning fork upon a stretched cord in a viscous medium. When the cord is vibrated by the tuning fork it has the same period as does the fork regardless of whether such period be that of the natural period of the cord, but when the fork vibrations are in tune with the natural period or 15 Stone’s language here makes it plain that throughout his allusions to a frequency developed in one circuit as being “impressed” or “forced” on another circuit when the two circuits are coupled through a transformer, are used figuratively or metaphorically only as synonymous with “induced.” Scientifically the oscillations in the charging circuit are not impressed or forced on the other. The stress in the magnetic field of the first circuit sets up or induces corresponding stresses in the magnetic field of the other circuit. The resulting frequency in the second circuit is affected both by the frequency of the oscillations in the charging circuit and the inductance and capacity in the second circuit. The result may be the superposition of two frequencies in the second circuit. This may be avoided and a single frequency developed, as Stone showed, by tuning the second circuit so as to be resonant to the frequencies created in the first. 28 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. fundamental of the cord, then the amplitude of vibrations in the cord is a maximum.” Thus Stone’s application, prior to Marconi, showed a four-circuit system, in which the oscillations were produced in a closed charging circuit and impressed on an open antenna circuit in the transmitter, and were similarly received in an open antenna circuit and by it induced in a closed circuit containing a detector. He showed the effect of resonance on the circuits resulting from their tuning to a desired frequency, and emphasized the importance of making the transmitting and receiving apparatus resonant to that frequency. Stone’s patent,16 granted a year and a half before Marconi—although after Marconi’s application was filed— makes explicit, as the patent law permits, what was implicit in Stone’s application. By amendments to his specifications made April 8, 1902, he recommended that the frequency impressed upon the vertical conductor at the transmitter “may or may not be the same as the natural period or fundamental of such conductor” and that the antenna circuit at the transmitter “may with advantage be so constructed as to be highly resonant to a particular frequency and the harmonic vibrations impressed thereon may with advantage be of that frequency.” Since Stone used a variable inductance to alter at will the frequency of the charging circuit, this direction plainly indicated that the frequency of the antenna circuit might also be variable, and suggested the inclusion of the well-known Lodge variable inductance in the construction of the antenna circuit to achieve that result. And since Stone had specified that “by my invention” the operator at the receiving station is able to “adjust” the receiving 18 At the insistence of the Patent Office Stone divided his original application, and was granted two patents, No. 714,756 for a method and No. 714,831 for apparatus. The former is the one particularly relied on here. MARCONI WIRELESS CO. v. U. S. 29 1 Opinion of the Court. apparatus so as to place it in resonance with any particular transmitting station, his patent equally plainly suggested the use of the Lodge variable inductance as a means of adjusting the tuning of the receiving antenna. Stone’s 1902 amendments also suggested that an “elevated conductor that is aperiodic may be employed”— i. e., one having very weak natural periodicity and consequently “adapted to receive or transmit all frequencies.” But this suggestion was accompanied by the alternative recommendation in the 1902 amendments that the antenna circuits at transmitter and receiver “may with advantage be made resonant to a particular frequency,” i. e., be periodic. No inference can be drawn from this that only an aperiodic antenna was contemplated either by the application or the amendments. The application was sufficiently broad to cover both types, since both were suitable means of achieving under different conditions the results which the application described and sought to attain. The amendments thus merely clarified and explained in fuller detail two alternative means which could be employed in the invention described in the original application, one of those means being the construction of the antenna so as to be highly resonant, i. e., tuned, to a particular frequency.17 The only respects in which it is seriously contended that Marconi disclosed invention over Stone are that Marconi explicitly claimed four-circuit tuning before 17 This is borne out by the subsequent letter from Stone to the Commissioner of Patents dated June 7, 1902. Stone there refers to a letter by the Patent Office saying that the statement that a simple harmonic wave developed in the closed circuit “can be transferred to the elevated conductor and from the latter to the ether without change of form” is “an argument the soundness of which the Office has no means of testing.” Stone replied with arguments to show that the vibrations radiated by the antenna circuit would be sufficiently pure for practical purposes either if the antenna circuit were 30 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. Stone had made it explicit by his 1902 amendment, and that Marconi disclosed means of adjusting the tuning of each of his four circuits whereas Stone had explicitly shown adjustable tuning only in the two closed circuits. But we think that neither Marconi’s tuning of the two antenna circuits nor his use of the Lodge variable inductance to that end involved any invention over Stone. Two questions are involved, first, whether there was any invention over Stone in tuning the antenna circuits, and, second, whether there was any invention in the use of the Lodge variable inductance or any other known means of adjustment in order to make the tuning of the antenna circuits adjustable. For reasons already indicated we think it clear that Stone showed tuning of the antenna circuits before Marconi, and if this involved invention Stone was the first inventor. Stone’s application emphasized the desirability of tuning, and disclosed means of adjusting the tuning of the closed circuits. His very explicit recognition of the increased selectivity attained by inductive coupling of several resonant circuits plainly suggested to those skilled in the art that the antenna circuit could with advantage be a resonant circuit, that is to say a tuned circuit, and hence that it was one of the circuits to be tuned. He stressed the importance of tuning “by any suitable device” the “apparatus” at transmitter and receiver, which included at both an antenna circuit. aperiodic, or if it had a fundamental which was of the same frequency as that of the forced vibrations impressed upon it, although they would not be pure if the antenna circuit had a marked natural periodicity and was untuned. This letter, while somewhat later in date than the amendments, reinforces the conclusion that the purpose of those amendments was to explain more fully the details of theory and practice necessary to the success of the idea underlying Stone’s original invention. MARCONI WIRELESS CO. v. U. S. 31 1 Opinion of the Court. Tuning of the antenna circuit was nothing new; Lodge had not only taught that the antenna circuits at transmitter and receiver should be tuned to each other but had shown a means of adjusting the tuning which was the precise means adopted by Marconi, and which Stone had, prior to Marconi, used to tune his closed circuit—the variable inductance. Tesla, too, had shown the tuning of the antenna circuit at the transmitter to the frequency developed by the charging circuit, and the tuning of both circuits at the receiver to the frequency thus transmitted. Thus Marconi’s improvement in tuning the antenna circuits is one the principles of which were well understood and stated by Stone himself before Marconi, and the mechanism for achieving which had previously been disclosed by Lodge and Stone.18 Since no invention over Stone was involved in tuning the antenna circuits, neither Marconi nor Stone made an invention by providing adjustable tuning of any of the circuits or by employing Lodge’s variable inductance as a means of adjusting the tuning of the resonant four-circuit arrangement earlier disclosed by Stone’s application and patented by him. No invention was involved in employing the Lodge variable inductance for tuning 18 It is not without significance that Marconi’s application was at one time rejected by the Patent Office because anticipated by Stone, and was ultimately allowed, on renewal of his application, on the sole ground that Marconi showed the use of a variable inductance as a means of tuning the antenna circuits, whereas Stone, in the opinion of the Examiner, tuned his antenna circuits by adjusting the length of the aerial conductor. All of Marconi’s claims which included that element were allowed, and the Examiner stated that the remaining claims would be allowed if amended to include a variable inductance. Apparently through oversight, Claims 10 and 11, which failed to include that element, were included in the patent as granted. In allowing these claims the Examiner made no reference to Lodge’s prior disclosure of a variable inductance in the antenna circuit. 552826—44--7 32 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. either the closed or the open circuits in lieu of other structural modes of adjustment for that purpose. The variable inductance imparted no new function to the circuit; and merely making a known element of a known combination adjustable by a means of adjustment known to the art, when no new or unexpected result is obtained, is not invention. Peters v. Hanson, 129 U. S. 541, 550-51, 553; Electric Cable Co. v. Edison Co., 292 U. S. 69, 79, 80, and cases cited; Smyth Mfg. Co. v. Sheridan, 149 F. 208, 211; cf. Bassick Mfg. Co. v. Hollingshead Co., 298 U. S. 415, 424r-5 and cases cited. Stone’s conception of his invention as disclosed by his patent antedated his application. It is carried back to June 30,1899, seven months before his application, when, in a letter to Baker, he described in text and drawings his four-circuit system for wireless telegraphy in substantially the same form as that disclosed by the application. His letter is explicit in recommending the tuning of the antenna circuits. In part he wrote as follows: “Instead of utilizing the vertical wire [antenna] itself at the transmitting station as the oscillator, I propose to impress upon this vertical wire, oscillations from an oscillator, which oscillations shall be of a frequency corresponding to the fundamental of the wire. Similarly at the receiving station, I shall draw from the vertical wire, only that component of the complex wave which is of lowest frequency. “If now the fundamental of the wire at the receiving station be the same as that of the wire at the transmitting station, then the receiving station may receive signals from the transmitting station, but if it be different from that of the transmitting station, it may not receive those signals. “The tuning of these circuits one to another and all to the same frequency will probably be best accomplished MARCONI WIRELESS CO. v. U. S. 33 1 Opinion of the Court. empirically, though the best general proportions may be determined mathematically.” On July 18, 1899, Stone again wrote to Baker, mathematically demonstrating how to achieve the single frequency by means of forced vibrations. He expressed as a trigonometric function the form taken by the forced wave “if the period of the impressed force be the same as that of the fundamental of the vertical wire.” He also pointed out that the transmitting circuit which he had disclosed in his earlier letter to Baker, “is practically the same as that employed by Tesla,” except that Stone added an inductance coil in the closed circuit “to give additional means of tuning” and to “swamp” the reactions from the coil of the oscillation transformer and thus loosen the coupling between the open and closed circuit of the transmitter.19 His recognition of the effect upon the current in the antenna if it is of the same period as the charging circuit; his statement that his transmitting system was the same as that employed by Tesla; his recognition that the fundamental of the receiver should be the same as that of the transmitter antenna when used for the transmission of a single frequency, and finally his statement that all four circuits are to be tuned, “one to another and all to the same frequency,” all indicate his understanding of the principles of resonance and of the significance of tuning the antenna circuits. Stone disclosed his invention to others, and in January, 1900, described it to his class at the Massachusetts Institute of Technology. Before 1900 he was diligent in obtaining capital to promote his invention. Early in 1901 a syndicate was organized to finance laboratory experiments. The Stone Telegraph & Telephone Co. was organized in December, 1901. It constructed several experimental stations in 1902 and 1903; beginning in 1904 19 See footnote 13, supra. 34 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. or 1905 it built wireless stations and sold apparatus, equipped a Navy collier and some battleships, and it applied for a large number of patents. The apparatus used in the stations is described by Stone’s testimony in this suit as having resonant open and closed circuits loosely coupled inductively to each other, at both the transmitter and receiver, and all tuned to the same wave length, as described in his letters to Baker and his patent. We think that Stone’s original application sufficiently disclosed the desirability that the antenna circuits in transmitter and receiver be resonant to the same frequency as the closed circuits, as he expressly recommended in his patent. But in any event it is plain that no departure from or improper addition to the specifications was involved in the 1902 amendments, which merely made explicit what was already implicit. Hobbs v. Beach, 180 U. S. 383, 395-7. We would ordinarily be slow to recognize amendments made after the filing of Marconi’s application and disclosing features shown in that application. Cf. Schriber-Schroth Co. v. Cleveland Trust Co., 305 U. S. 47, 57; Powers-Kennedy Corporation n. Concrete Co., 282 U. S. 175,185-6; Mackay Radio Co. N. Radio Corporation, 306 U. S. 86. But here Stone’s letters to Baker, whose authenticity has not been questioned in this case, afford convincing proof that Stone had conceived of the idea of tuning all four circuits prior to the date of Marconi’s invention. Cf. Bickell v. Smith-Hambury-Scott Welding Co., 53 F. 2d 356,358. It is well established that as between two inventors priority of invention will be awarded to the one who by satisfying proof can show that he first conceived of the invention. Philadelphia & Trenton R. Co. v. Stimpson, 14 Pet. 448, 462; Loom Co. n. Higgins, 105 U. S. 580, 593; Radio Corporation v. Radio Laboratories, 293 U. S. 1, 11-13; Christie v. Seybold, 55 F. 69,76; Automatic Weighing Mach. Co. v. Pneumatic Scale Corp., 158 F. 415, 417- MARCONI WIRELESS CO. v. U. S. 35 1 Opinion of the Court. 22; Harper v. Zimmermann, 41 F. 2d 261, 265; Sachs v. Hartford Electric Supply Co., 477 F. 2d 743, 748. Commercial success achieved by the later inventor and patentee cannot save his patent from the defense of anticipation by a prior inventor.20 Compare Smith v. Hall, 301 U. S. 216 with Smith v. Snow, 294 U. S. 1. To obtain the benefit of his prior conception, the inventor must not abandon his invention, Gayler v. Wilder, 10 How. 477,481, but must proceed with diligence to reduce it to practice. We think Stone has shown the necessary diligence. Compare Radio Corporation v. Radio Laboratories, supra, 13, 14. The delay until 1902 in including in his patent specifications the sentences already referred to, which explicitly provide for tuning of the antenna circuits, does not in the circumstances of this case show any abandonment of that 20 Even if the lack of invention in Marconi’s improvement over Stone—making adjustable the tuning of the antenna circuits which Stone had said should be tuned—could be said to be in sufficient doubt so that commercial success could aid in resolving the doubt, Thropp’s Sons Co. v. Seiberling, 264 U. S. 320, 330; DeForest Radio Co. v. General Electric Co., 283 U. S. 664, 685; Altoona Theatres v. TriErgon Corp., 294 U. S. 477,488, it has not been established that the alleged improvement contributed in any material degree to that success. Compare Altoona Theatres n. Tri-Ergon Corp., supra. Marconi’s specifications disclose a large number of details of construction, none of which is claimed as invention in this patent, in which his apparatus differed from, and may have been greatly superior to, Stone’s. Many of these formed the subject of prior patents. After his application for his patent, as well as before, Marconi made or adopted a great number of improvements in his system of wireless telegraphy. Two of his engineers have written that a major factor in his successful transmission across the Atlantic in December, 1901, was the use of much greater power and higher antennae than had previously been attempted, an improvement in no way suggested by the patent here in suit. Fleming, Electric Wave Telegraphy, 449-53; Vyvyan, Wireless Over Thirty Years, 22-33. Indeed both are agreed that in the actual transmission across the Atlantic tuning played no part; the receiver antenna consisted of a wire suspended by a kite which rose 36 OCTOBER TERM, 1942. Opinion of the Court. 320 U.S. feature of Stone’s invention since, as we have seen, the idea of such tuning was at least implicit in his original application, and the 1902 amendments merely clarified that application’s effect and purport. Marconi’s patent No. 763,772 was sustained by a United States District Court in Marconi Wireless Telegraph Co. v. National Signalling Co., 213 F. 815, and his invention as specified in his corresponding British patent No. 7777 of 1900, was upheld in Marconi v. British Radio & Telegraph Co., 27 T. L. R. 274, 28 R. P. C. 18. The French court likewise sustained his French patent, Civil Tribunal of the Seine, Dec. 24, 1912. None of these courts considered the Stone patent or his letters. All rest their findings of invention on Marconi’s disclosure of a four-circuit system and on his tuning of the four circuits, in the and fell with the wind, varying the capacity so much as to make tuning impossible. Ibid. By 1913, when he testified in the National Electric Signalling Co. case, that “due to the utilization of the invention” of this patent he had successfully transmitted messages 6,600 miles, he had, after almost continuous experimentation, further increased the power used, developed new apparatus capable of use with heavy power, enlarged his antennae and adopted the use of horizontal, “directional” antennae, and made use of improved types of spark gaps and detecting apparatus, including the Fleming cathode-anode tube, the crystal detector, and sound recording of the signals—to mention but a few of the improvements made. He had also discovered that much greater distances could be attained at night. See Vyvyan, supra, 34—47, 55-60. The success attained by the apparatus developed by Marconi and his fellow engineers by continuous experimentation over a period of years—however relevant it might be in resolving doubts whether the basic four-circuit, tuned system disclosed by Marconi, and before him by Stone, involved invention—cannot, without further proof, be attributed in significant degree to any particular one of the many improvements made by Marconi over Stone during a period of years. The fact that Marconi’s apparatus as a whole was successful does not entitle him to receive a patent for every feature of its structure. MARCONI WIRELESS CO. v. U. S. 37 1 Opinion of the Court. sense of rendering them resonant to the same frequency, in both of which respects Stone anticipated Marconi, as we have seen. None of these opinions suggests that if the courts had known of Stone’s anticipation, they would have held that Marconi showed invention over Stone by making the tuning of his antenna circuit adjustable, or by using Lodge’s variable inductance for that purpose. In Marconi Wireless Telegraph Co. v. Kilbourne & Clark Mfg. Co., 239 F. 328, affirmed 265 F. 644, the district court held that the accused device did not infringe. While it entered formal findings of validity which the Circuit Court of Appeals approved, neither court’s opinion discussed the question of validity and that question was not argued in the Circuit Court of Appeals.21 Marconi’s reputation as the man who first achieved successful radio transmission rests on his original patent, which became reissue No. 11,913, and which is not here 21A preliminary injunction restraining infringement was entered in Marconi Wireless Tel. Co. v. DeForest Co., 225 F. 65, affirmed, 225 F. 373, both courts, without independent discussion of the validity of the patent, determining that the decision in the National Signalling Co. case justified the grant of preliminary relief. A preliminary injunction was also granted in Marconi Wireless Tel. Co. v. Atlantic Communications Co., an action brought in the Eastern District of New York. Stone’s letters were introduced in evidence in the Atlantic Communications Company case and the Kilbourne & Clark case. His deposition in the latter case, taken February 28 and 29, 1916, was incorporated in the record in this case. He there testified that he had refrained from producing proofs of the priority of his invention when called upon to testify in prior litigation in 1911 and 1914 because he wished the priority of his invention to be established by the owners of the patent—the Stone Telegraph Co. and its bondholders—in order to be sure that a bona fide defense would be made. He said that by May 1915, when he testified in the Atlantic Communications Co. case, he had concluded that the owners of the patent were not in a financial position to litigate, and that the Atlantic Co. "would niake a bona fide Stone defense.” 38 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. in question. That reputation, however well-deserved, does not entitle him to a patent for every later improvement which he claims in the radio field. Patent cases, like others, must be decided not by weighing the reputations of the litigants, but by careful study of the merits of their respective contentions and proofs. As the result of such a study we are forced to conclude, without undertaking to determine whether Stone’s patent involved invention, that the Court of Claims was right in deciding that Stone anticipated Marconi, and that Marconi’s patent did not disclose invention over Stone. Hence the judgment below holding invalid the broad claims of the Marconi patent must be affirmed. In view of our interpretation of the Stone application and patent we need not consider the correctness of the court’s conclusion that even if Stone’s disclosures should be read as failing to direct that the antenna circuits be made resonant to a particular frequency, Marconi’s patent involved no invention over Lodge, Tesla, and Stone. Claim 16 of Marconi patent No. 763,772. The Government asks us to review so much of the decision of the Court of Claims as held valid and infringed Claim 16 of Marconi’s patent No. 763,772. That claim is for an antenna circuit at the receiver connected at one end to “an oscillation-receiving conductor” and at the other to a capacity (which could be the earth), containing the primary winding of a transformer, “means for adjusting the two transformer-circuits in electrical resonance with each other,” and “an adjustable condenser in a shunt connected with the open circuit, and around said transformer-coil.” Marconi thus discloses and claims the addition to the receiver antenna of an adjustable condenser connected in a shunt around the primary of the transformer. The specifications describe the condenser as “preferably one provided with two telescoping metallic tubes separated by a dielectric and arranged to readily MARCONI WIRELESS CO. v. U. S. 39 1 Opinion of the Court. vary the capacity by being slid upon each other.” Marconi, however, makes no claim for the particular construction of the condenser. Although the claim broadly provides for “means of adjusting the two transformer-circuits in electrical resonance,” Marconi’s drawings disclose the use of a variable inductance connected between the aerial conductor and the transformer-coil in such a manner that the variable inductance is not included in that part of the antenna circuit which is bridged by the condenser. The condenser is thus arranged in parallel with the transformer coil and in series with the variable inductance. In his specifications Marconi enumerates a number of preferred adjustments for tuning the transmitting and receiving stations, showing the precise equipment to be used to achieve tuning to the desired wave-length. The two tunings which show the use of the adjustable condenser in the receiver antenna also make use of the variable inductance. And his specifications state: “In a shunt around said primary j1 [the primary of the transformer] I usually place a condenser h . . . An inductance coil g1 of variable inductance is interposed in the primary circuit of the transformer, being preferably located between the cylinder f1 [the aerial capacity] and the coil J1.” In this respect the devices which the court below found to infringe Claim 16 exhibit somewhat different arrangements. Apparatus manufactured by the Kilbourne and Clark Company, and used by the Government, had a receiver antenna circuit containing a variable inductance in addition to the transformer coil, and having an adjustable condenser so constructed that it could be connected either in series with the two inductances, or in a shunt bridging both of them. Apparatus manufactured by the Telefunken Company showed a similar antenna circuit having no variable inductance, but having an adjustable condenser so arranged that it could be connected either in 40 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. series with the transformer coil, or in parallel with it by placing the condenser in a shunt circuit which would thus bridge all the inductance in the antenna circuit. The Marconi patent does not disclose the function which is served by the adjustable condenser disclosed by Claim 16, except in so far as Marconi in his specifications, in describing the means of tuning the receiver circuits to a particular desired frequency, prescribes specific values for both the variable inductance and the adjustable condenser in the receiver antenna circuit. The Court of Claims found that this indicated “that the purpose of the condenser connected in shunt with the primary winding of the transformer of the receiver, is to enable the electrical periodicity or tuning of the open circuit of the receiver to be altered.” The court thus based its holding that Claim 16 disclosed patentable invention on its finding that Marconi, by the use of an adjustable condenser in the antenna circuit, disclosed a new and useful method of tuning that circuit. The Government contends that the arrangement of the antenna circuit disclosed by Marconi’s specifications— with the condenser shunted around the transformer coil but not around the variable inductance—is such that the condenser cannot increase the wave-length over what it would be without such a condenser, and that it can decrease that wave-length only when adjusted to have a very small capacity. The Government contends therefore that its principal function is not that of tuning but of providing “loose coupling.”22 The Government does not deny that this precise arrangement is novel and useful, but it contends that its devices do not infringe that 22 See note 13, supra. Most of the current in the antenna circuit is said to pass through the condenser shunt and not through the transformer coil, thus minimizing the effect upon the frequency of vibrations in the antenna circuit of the magnetic stresses set up in the primary of the transformer by the current induced in the secondary. MARCONI WIRELESS CO. v. U. S. 41 1 Opinion of the Court. precise arrangement, and that Claim 16, if more broadly construed so as to cover its apparatus, is invalid because anticipated by the prior art, particularly the patents of Pupin and Fessenden. As we have seen from our discussion of the other claims of the Marconi patent, the idea of tuning the antenna circuits involved no patentable invention. It was well known that tuning was achieved by the proper adjustment of either the inductance or the capacity in a circuit, or both. Lodge and Stone had achieved tuning by the use of an adjustable induction coil, so arranged that its effective inductance could readily be varied. But capacity was no less important in tuning. De Tunzelmann’s descriptions of Hertz’s experiments show that Hertz, in order to make his receiving apparatus resonant to the particular frequency radiated by the transmitter, carefully determined the capacity of both, and indeed disclosed a means of adjusting the capacity of the receiver by attaching to it wires whose length could readily be varied. Marconi in his prior patent No. 586,193, granted July 13, 1897, which became reissue No. 11,913, had disclosed a two-circuit system for the transmission of radio waves in which both transmitter and receiver had large metal plates serving as capacity areas. His specifications describe the construction of transmitting and receiving stations so as to be resonant to the same frequency by calculation of the length of these metal plates, thereby determining the capacity of the antenna circuits of transmitter and receiver respectively. He states that the plates are “preferably of such a length as to be electrically tuned with the electric oscillations transmitted,” and describes means of achieving this result so as to determine “the length most appropriate to the length of wave emitted by the oscillator.” Claim 24 of his patent claims “the combination of a transmitter capable of producing electrical oscillations or rays of definite character at the 42 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. will of the operator, and a receiver located at a distance and having a conductor tuned to respond to such oscillations . . .” The only means of achieving this tuning disclosed by the specifications is the determination of the capacity of the antenna of transmitter and receiver in the manner described. Moreover the use of an adjustable condenser as a means of tuning was known to the prior art. Pupin in patent No. 640,516, applied for May 28, 1895, and granted January 2, 1900, before Marconi, disclosed the use of an adjustable condenser as a means of tuning a receiving circuit in a system of wired telegraphy. Pupin’s patent was designed to permit the simultaneous transmission over a wire of several messages at different frequencies, and the selective reception at a given receiving station of the particular message desired, by tuning the receiving circuit to the frequency at which that message was transmitted. His specifications and drawings disclose at the receiver a telegraph key or other suitable detecting instrument located in a shunt from the wire along which the messages were passed. The shunt circuit included a condenser “of adjustable capacity,” an adjustable induction coil, and a detecting instrument. His specifications state that “the capacity of the condenser H and the self-induction of the [induction] coil I being such that the natural period or frequency of the shunt or resonance circuit HI is the same as the period of one of the electromotive forces which produce the current coming over the line . . . this circuit HI will be in resonance with the current and therefore will act selectively with respect to it.” He disclosed an alternative system in which a similar shunt circuit containing a condenser, already described as of adjustable capacity, and the primary of a transformer, was inductively coupled with another circuit containing the secondary of the transformer, an induction coil, an adjustable condenser, and a receiving device. He thus in effect dis- MARCONI WIRELESS CO. v. U. S. 43 1 Opinion of the Court. closed an open receiving circuit with earth connection including the primary of an oscillation transformer—the secondary of which is connected in a circuit with a telegraph key or other suitable detecting instrument—and an adjustable condenser in a shunt bridging the primary of the transformer and thus connected in parallel with it. Thus Pupin showed the use of an adjustable condenser as a means of tuning an electrical circuit so as to be selectively receptive to impulses of a particular frequency. It is true that his patent related not to the radio art but to the art of wired telegraphy, an art which employed much lower frequencies. But so far as we are informed the principles of resonance, and the methods of achieving it, applicable to the low frequencies used by Pupin are the same as those applicable to high frequency radio transmission and reception. Fessenden, in patent No. 706,735, applied for Dec. 15, 1899, before Marconi, and granted Aug. 12,1902, disclosed, in thé antenna circuit of a radio receiver, a condenser in a shunt around a coil. The coil was used in effect as a transformer; by the magnetic lines of force set up when a current passed through it an indicator was caused to move, thereby either closing an electrical connection or giving a visible signal. Fessenden’s specifications do not clearly disclose the purpose of his condenser, but they specify that it must be “of the proper size.” He also discloses a condenser in a shunt circuit around the terminals of a spark gap in the antenna circuit of the transmitter, and his specifications prescribe that “This shunt-circuit must be tuned to the receiving-conductor; otherwise the oscillations produced by it will have no action upon the wave-responsive device at the receiving-station.” We have referred to the Pupin and Fessenden patents, not for the purpose of determining whether they anticipate Claim 16 of Marconi, as the Government insists, but to indicate the importance of considering them in that 44 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. aspect, together with the relevant testimony, which the court below did not do. In the present state of the record we do not undertake to determine whether and to what extent these disclosures either anticipate Claim 16 of the Marconi patent or require that claim to be so narrowly construed that defendants’ accused devices or some of them do not infringe Marconi. Although the Pupin and Fessenden patents were in the record before the Court of Claims when it entered its decision finding Claim 16 valid and infringed, they were not referred to in connection with Claim 16 either in the court’s opinion or in its findings, evidently because not urged upon that court by the Government as anticipating Claim 16. But this Court, in the exercise of its appellate power, is not precluded from looking at any evidence of record which, whether or not called to the attention of the court below, is relevant to and may affect the correctness of its decision sustaining or denying any contention which a party has made before it. Muncie Gear Co. v. Outboard Motor Co., 315 U. S. 759, 766-8; Act of May 22, 1939, 28 U. S. C. § 288; cf. Hormel v. Helvering, 312 U. S. 552, 556. In order to determine whether this Court should consider the evidence which the Government now presses upon it, and should on the basis of that evidence either decide for itself whether Claim 16 is valid and infringed or remand that question to the Court of Claims for further consideration, it is necessary to set out in some detail the relevant proceedings below. The case was referred to a special commissioner for the taking of testimony under a stipulation that the issue of reasonable compensation for damages and profits be postponed until the determination of the issues of validity and infringement. On June 26, 1933, the Commissioner filed a report in which he made the following findings with regard to Claim 16, which the Court of Claims later adopted in substance: MARCONI WIRELESS CO. v. U. S. 45 1 Opinion of the Court. “LXII. Claim 16 of Marconi #763772 is directed to subject matter which is new and useful . . . “LXV. The receiving apparatus of the Kilbourne & Clark Company, shown in exhibit 95, and the receiver made by the Telefunken company, illustrated in exhibit 79, each has apparatus coming within the terminology of claim 16.” Both parties filed exceptions to the Commissioner’s report. The Marconi Company excepted to part of finding LXII, and took several exceptions which were formally addressed to finding LXV. The Government, in a memorandum, opposed the suggested amendments to these findings. But the Government filed no exceptions to these two findings, nor did it, in its extensive brief before the Court of Claims, make any contention that Claim 16 either is invalid or was not infringed. After the court had rendered its interlocutory decision holding Claim 16 valid and infringed, the case was sent back to the Commissioner to take evidence on the accounting. Much evidence was taken bearing on the function served by the condenser in the arrangement described in Claim 16 and in the Government’s receivers, and in that connection the Pupin and Fessenden patents were again introduced in evidence by the Government. When the Pupin patent was offered the Commissioner stated: “Obviously, as I understand the offer of this patent of Pupin, it does not in any way attack the validity of Claim 16 of the Marconi patent in suit. As you state Mr. Blackmar, that has been decided by the Court, and I do not recall just now what procedure was followed after the decision and prior to this accounting proceeding; but the defendant had at that time opportunity for a motion for a new trial and presentation of newly-discovered evidence and all those matters.” Accordingly, the Commissioner stated that he received the patent in evidence “for the sole purpose of aiding the witness and the Commissioner and the 46 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. Court in an understanding of how the condenser in the Marconi patent operates.” And in offering the Fessenden patent counsel for the Government similarly stated that it was offered “not to show invalidity but as showing justification for the defendant’s use.” In its exceptions to the Commissioner’s report on the accounting the Government asked the Court of Claims to make certain specific findings as to the mode of operation of the arrangements disclosed in the Pupin and Fessenden patents, and also to find that “The mode of connecting the primary condenser in parallel with the antenna-to-earth capacity used by the defendant followed the disclosure of Pupin 640,516 and the Fessenden patent 706,735 . . . and hence does not infringe the Marconi claim 16 which is based upon a different arrangement, operating in a different manner to obtain a different result.” The Government contended that there was no finding of fact that Claim 16 had been infringed, and that the court, in the course of the accounting proceeding had by an order of October 22, 1937, reopened the entire subject of infringement. We agree with the court that the Commissioner’s finding LXV, which the court adopted as finding LXIII, was a finding of infringement, and we see no reason to question the court’s conclusion that its order had not reopened the subject of infringement. In view, however, of the Government’s apparent misunderstanding of the scope of the issues left open on the accounting we think that its request for a finding of noninfringement specifically addressed to the Pupin and Fessenden patents was a sufficient request to the court to reconsider its previous decision of infringement. And while most of the argument on the Government’s exceptions to the Commissioner’s report was based on evidence taken upon the accounting, the Government’s briefs suf- MARCONI WIRELESS CO. v. U. S. 47 1 Opinion of the Court. ficiently disclosed to the court that the Pupin and Fessenden patents, at least, had been in the record prior to the interlocutory decision. The court, in rejecting the Government’s request for a finding of non-infringement, stated: “The question of infringement of Marconi Claim 16 ... is not before us in the present accounting.” “The sole purpose and function of an accounting in a patent infringement case is to ascertain the amount of compensation due. and no other issue can be brought into the accounting to change or alter the court’s prior decision.” We cannot say with certainty whether in rejecting the Government’s request the court thought that it lacked power to reconsider its prior decision, or whether it held merely that in the exercise of its discretion it should not do so. Nor does it appear that, assuming it considered the question to be one of discretion, it recognized that in part at least the Government’s request was based on evidence, having an important bearing on the validity and construction of Claim 16, which had been before the court but had not been considered by it when it held Claim 16 valid and infringed. Although the interlocutory decision of the Court of Claims on the question of validity and infringement was appealable, United States v. Esnault-Pelterie, 299 U. S. 201,303 U. S. 26; 28 U. S. C. § 288 (b), as are interlocutory orders of district courts in suits to enjoin infringment, 28 U. S. C. § 227 (a); Simmons Co. v. Grier Bros. Co., 258 U. S. 82,89, the decision was not final until the conclusion of the accounting. Barnard v. Gibson, 7 How. 649; Humiston v. Stainthorp, 2 Wall. 106; Simmons Co. n. Grier Bros. Co., supra, 89. Hence the court did not lack power at any time prior to entry of its final judgment at the close of the accounting to reconsider any portion of its decision and reopen any part of the case. Perkins v. Pourniquet, 6 How. 206, 208; McGourkey v. Toledo & Ohio Central Ry. Co., 146 U. S. 536, 544; Simmons Co. 552826—44--8 48 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. v. Grier Bros. Co., supra, 90-91. It was free in its discretion to grant a reargument based either on all the evidence then of record or only the evidence before the court when it rendered its interlocutory decision, or to reopen the case for further evidence. Whether it should have taken any of these courses was a matter primarily for its discretion, to be exercised in the light of various considerations which this Court cannot properly appraise without more intimate knowledge than it has of the proceedings in a long and complex trial. Among those considerations are the questions whether, as appears to be the case from such portions of the record as have been filed in this Court or cited to us by counsel, the Government failed to make any contention as to the validity or construction of Claim 16 in the proceedings leading to the interlocutory decision; whether the showing of non-infringement which it now makes is sufficiently strong, and the public interest that an invalid patent be not sustained is sufficiently great, to justify reconsidering the decision as to Claim 16 despite the failure of Government counsel to press its contention at the proper time; whether adequate consideration of the question of noninfringement can be had on the existing record, or whether additional testimony should be received; and whether, balancing the strength or weakness of the Government’s present showing of non-infringement against the undesirability of further prolonging this already extended litigation, the case is one which justifies reconsideration. These are all matters requiring careful consideration by the trial court. In order that the case may receive that consideration, we vacate the judgment as to Claim 16 and remand the cause to the Court of Claims for further proceedings in conformity to this opinion. If on the remand the court should either decline to reconsider its decision of infringement, or should upon reconsideration adhere to that decision, it should pass upon MARCONI WIRELESS CO. v. U. S. 49 1 Opinion of the Court. the contention of the Government, urged here and below, as to the measure of damages, with respect to which the court made no findings. The Government’s contention is that the variable capacity shunt of the accused devices bridged all the inductance in the receiving antenna circuit, and that even though those devices infringed they nevertheless embody an improvement over Marconi’s Claim 16, in which only the transformer coil was bridged. In computing the damages the court measured them by 65% of the cost to the Government of the induction coils which would be required to replace in the accused devices the adjustable condensers as a means of tuning, taking into account the greater convenience and efficiency of condenser tuning. The allowance of only 65% was on the theory that if the parties had negotiated for the use of the invention the price would have been less than the cost to the Government of the available alternative means of tuning. In computing the damages the court apparently did not take into account or attempt to appraise any contribution which may have been made by the improvement over Marconi which the Government asserts was included in the accused devices. The court found that where the condenser is connected in series with the inductance coils in the antenna it “can be used to shorten the natural resonant wave length of the antenna circuit but cannot lengthen it beyond what would be the resonant wave length if the condenser were not present.” On the other hand, it found that when the condenser is connected in parallel it enables the periodicity of the antenna to be lowered, permitting the reception of longer wave-lengths. The computation of damages was based on the premise that the advantage to the Government resulting from the infringement was derived from the ability which the accused devices had thus acquired to receive longer wavelengths. But there was substantial testimony that the ar 50 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. rangement disclosed by Marconi’s specifications was in effect a connection in series which did not make possible reception of longer wave-lengths, as did the arrangement in the accused devices. And the court nowhere found that the arrangement covered by Marconi’s Claim 16 did make possible such reception. The appropriate effect to be given to this testimony is important in the light of the recognized doctrine that if a defendant has added “noninfringing and valuable improvements which had contributed to the making of the profits,” it is not liable for benefits resulting from such improvements. Westinghouse Electric Co. v. Wagner Mfg. Co., 225 U. S. 604, 614-15, 616-17; Sheldon v. Metro-Goldwyn Corp., 309 U. S. 390, 402-406, and cases cited. Finding LXIII that the Government was using “apparatus coming within the terminology of Claim 16,” and Finding 23 on the accounting that the accused devices “infringe Claim 16 of the Marconi patent,” give no aid in solving this problem for they are not addressed to the question whether, assuming infringement, the Government has made improvements which of themselves are non-infringing. That can only be afforded by findings which appraise the evidence, establish the scope of Marconi’s claim and the nature and extent of the difference in function, if any, between the device claimed by Marconi and those used by the Government, and determine whether any differences shown to exist constitute a “non-infringing improvement” for which Marconi deserves no credit. The judgment as to Claim 16 will be vacated and the cause remanded for further proceedings. The Fleming Patent No. 803,684.. The Fleming patent, entitled: “Instrument for Converting Alternating Electric Currents into Continuous Currents” was applied for April 19, 1905, and granted on November 7, 1905 to the Marconi Company, as assignee MARCONI WIRELESS CO. v. U. S. 51 1 Opinion of the Court. of Fleming. Its specifications state that “this invention relates to certain new and useful devices for converting alternating electric currents, and especially high-frequency alternating electric currents or electric oscillations, into continuous electric currents for the purpose of making them detectable by and measurable with ordinary direct-current instruments, such as a ‘mirror-galvanometer’ of the usual type or any ordinary direct-current ammeter.” Fleming’s drawings and specifications show a combination apparatus by which alternating current impulses received through an antenna circuit containing the primary of a transformer are induced in the secondary of the transformer. To one end of the secondary coil is connected a carbon filament like that of an incandescent electric lamp, which is heated by a battery. Surrounding, but not touching the filament, is a cylinder of aluminum open at the top and bottom, which is connected with the other end of the secondary. The cylinder and filament are enclosed in an evacuated vessel such as an ordinary electric lamp bulb. An indicating instrument or galvanometer is so located in this circuit as to respond to the flow of current in it. The specifications explain the operation of this device: “This arrangement described above operates as an electric valve and permits negative electricity to flow from the hot carbon b to the metal cylinder c, but not in the reverse direction, so that the alternations induced in the coil k by the Hertzian waves received by the aerial wire n are rectified or transformed into a more or less continuous current capable of actuating the galvanometer I by which the signals can be read.” The specifications further state: “. . . the aerial wire n may be replaced by any circuit in which there is an alternating electromotive force, whether of low frequency or of high frequency . . 52 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. “Hence the device may be used for rectifying either high-frequency or low-frequency alternating currents of electrical oscillations . . .” Only Claims 1 and 37 of the patent are in suit. They read as follows: “1. The combination of a vacuous vessel, two conductors adjacent to but not touching each other in the vessel, means for heating one of the conductors, and a circuit outside the vessel connecting the two conductors. “37. At a receiving-station in a system of wireless telegraphy employing electrical oscillations of high frequency a detector comprising a vacuous vessel, two conductors adjacent to but not touching each other in the vessel, means for heating one of the conductors, a circuit outside of the vessel connecting the two conductors, means for detecting a continuous current in the circuit, and means for impressing upon the circuit the received oscillations.” The current applied to the filament or cathode by the battery sets up a flow of electrons (negative electric charges) from the heated cathode, which are attracted to the cold plate or anode when the latter is positively charged. When an alternating current is set up in the circuit containing the cathode, anode, and secondary of the transformer, the electronic discharge from the cathode closes the circuit and permits a continuous flow of electricity through it when the phase of the current is such that the anode is positively charged, while preventing any flow of current through the tube when the anode is negatively charged. The alternating current is thus rectified so as to produce a current flowing only in one direction. See DeForest Radio Co. v. General Electric Co., 283 U. S. 664; Radio Corporation v. Radio Laboratories, 293 U. S. 1; Detrola Radio Corp. v. Hazeltine Corporation, 313 U. S. 259. Claims 1 and 37 of the Fleming patent are identical in their structural elements. Both claim the vacuum tube, MARCONI WIRELESS CO. v. U. S. 53 1 Opinion of the Court. and the two electrodes connected by a circuit outside the tube, one element being heated. The claims differ only in that Claim 37 includes “means for detecting” the continuous or direct current in the anode-cathode circuit, and “means for impressing upon the circuit the received oscillations” from the transformer coil of the antenna circuit. In the patent as originally issued there had been another difference between the two claims. Claim 37 describes the tube as being used “in a system of wireless telegraphy employing electrical oscillations of high frequency.” No such limitation was placed on Claim 1 as originally claimed, and the specifications already quoted plainly contemplated the use of the claimed device with low as well as high frequency currents. This distinction was eliminated by a disclaimer filed by the Marconi Company November 17, 1915, restricting the combination of the elements of Claim 1 to a use “in connection with high frequency alternating electric currents or electric oscillations of the order employed in Hertzian wave transmission,” and deleting certain references to low frequencies in the specifications. The result of the disclaimer was to limit both claims to the use of the patented device for rectifying high frequency alternating waves or currents such as were employed in wireless telegraphy. The earliest date asserted for Fleming’s invention, as limited by the disclaimer, is November 16,1904. Twenty years before, on October 21, 1884, Edison had secured United States Patent No. 307,031. In his specifications he stated : “I have discovered that if a conducting substance is interposed anywhere in the vacuous space within the globe of an incandescent electric lamp, and said conducting substance is connected outside of the lamp with one terminal, preferably the positive one, of the incandescent conductor, a portion of the current will, when the lamp is in opera 54 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. tion, pass through the shunt-circuit thus formed, which shunt includes a portion of the vacuous space within the lamp. This current I have found to be proportional to the degree of incandescence of the conductor or candlepower of the lamp.” Edison proposed to use this discovery as a means of “indicating, variations in the electro-motive force in an electric circuit,” by connecting a lamp thus equipped at a point where the current was to be measured. The drawings of his patent show an electric circuit, including a filament (cathode) and a plate (anode) both “in the vacuous space within the globe”—an electric light bulb. The shunt-circuit extends from the plate through a galvanometer to the filament. His specifications disclose that the vacuous space within the globe is a conductor of current between the plate anode and the filament; that the strength of the current in the filament-to-plate circuit through the vacuum depends upon the degree of incandescence at the filament; and that the plate anode is preferably connected to the positive side of the current supply. The claims of the patent are for the combination of the filament, plate and interconnecting circuit, including the galvanometer. Claim 5, a typical claim, reads as follows: “The combination, with an incandescent electric lamp, of a circuit having one terminal in the vacuous space within the globe of said lamp, and the other connected with one side of the lamp-circuit, and electrically controlled or operated apparatus in said circuit, substantially as set forth.” The structure disclosed in Fleming’s Claims 1 and 37 thus differed in no material respect from that disclosed by Edison. Since Fleming’s original Claim 1 is merely for the structure, it reads directly on Edison’s Claim 5 and could not be taken as invention over it. MARCONI WIRELESS CO. v. U. S. 55 1 Opinion of the Court. Fleming used this structure for a different purpose than Edison. Edison disclosed that his device operated to pass a current across the vacuous space within the tube between filament and plate. He used this current as a means of measuring the current passing through the filament circuit. Fleming, in his specifications, disclosed the use of his tube as a rectifier of alternating currents, and in Claim 37 he claimed the use of that apparatus as a means of rectifying alternating currents of radio frequency. But in this use of the tube to convert alternating into direct currents there was no novelty for it had been disclosed by others and by Fleming himself long before Fleming’s invention date. On January 9, 1890, ten years before Fleming filed his application, he stated in a paper read before the Royal Society of London : “It has been known for some time that if a platinum plate or wire is sealed through the glass bulb of an ordinary carbon filament incandescent lamp, this metallic plate being quite out of contact with the carbon conductor, a sensitive galvanometer connected between this insulated metal plate enclosed in the vacuum and the external positive electrode of the lamp indicates a current of some milliampères passing through it when the lamp is set in action, but the same instrument when connected between the negative electrode of the lamp and the insulated metal plate indicates no sensible current. This phenomenon in carbon incandescence lamps was first observed by Mr. Edison, in 1884, and further examined by Mr. W. H. Preece, in 1885.” Proceedings of the Royal Society of London, vol. 47, pp. 118-9. Fleming’s 1890 paper further pointed out that the vacuous space “possesses a curious unilateral conductivity” ; that is, it permits current to “flow across the vacuous space from the hot carbon [cathode] to the cooler metal plate [anode], but not in the reverse direction.” Id. 122. 56 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. He noted the ability of the tube to act as a rectifier of alternating current, saying: “When the lamp is actuated by an alternating current a continuous current is found flowing through a galvanometer, connected between the insulated plate and either terminal of the lamp. The direction of the current through the galvanometer is such as to show that negative electricity is flowing from the plate through the galvanometer to the lamp terminal.” Id. 120. Fleming’s paper thus noted, contrary to the then popular conception, that it is negative electricity which flows from cathode to anode, but he emphasized that even this had been a part of general scientific knowledge, as follows: “The effect of heating the negative electrode in facilitating discharge through vacuous spaces has previously been described by W. Hittorf (‘Ann ale n der Physik und Chemie,’ vol. 21,1884, p. 90-139), and it is abundantly confirmed by the above experiments. We may say that a vacuous space bounded by two electrodes—one incandescent, and the other cold—possesses a unilateral conductivity for electric discharge when these electrodes are within a distance of the mean free path of projection of the molecules which the impressed electromotive force can detach and send off from the hot negative electrode. “This unilateral conductivity of vacuous spaces having unequally heated electrodes has been examined by MM. Elster and Geitel (see ‘Wiedemann’s Annalen,’ vol. 38, 1889, p. 40), and also by Goldstein (‘Wied. Ann.,’ vol. 24, 1885, p. 83), who in experiments of various kinds have demonstrated that when an electric discharge across a vacuous space takes place from a carbon conductor to another electrode, the discharge takes place at lower electromotive force when the carbon conductor is the negative electrode and is rendered incandescent.” Id. 125-6. MARCONI WIRELESS CO. v. U. S. 57 1 Opinion of the Court. Fleming’s reference in this publication to the unilateral conductivity of the vacuous space between cathode and anode, and the consequent ability of the two to derive a continuous unidirectional current from an alternating current was a recognition that the Edison tube embodying the structure described could be used as a rectifier of alternating current. This knowledge, disclosed by publication more than two years before Fleming’s application, was a bar to any claim for a patent for an invention embodying the published disclosure. R. S. §§ 4886,4920; 35 U. S. C. §§ 31,69. Wagner v. Meccano Ltd., 246 F. 603, 607; cf. Muncie Gear Co. v. Outboard Co., supra, 766. It is unnecessary to decide whether Fleming’s use of the Edison device for the purpose of rectifying high frequency Hertzian waves, as distinguished from low frequency waves, involved invention over the prior art, or whether the court below rightly held that the devices used by the Government did not infringe the claims sued upon, for we are of the opinion that the court was right in holding that Fleming’s patent was rendered invalid by an improper disclaimer. It is plain that Fleming’s original Claim 1, so far as applicable to use with low frequency alternating currents, involved nothing new, as Fleming himself must have known in view of his 1890 paper, and as he recognized by his disclaimer in 1915, made twenty-five years after his paper was published and ten years after his patent had been allowed. Its invalidity would defeat the entire patent unless the invalid portion had been claimed “through inadvertence, accident, or mistake, and without any fraudulent or deceptive intention,” and was also disclaimed without “unreasonable” neglect or delay. R. S. §§ 4917, 4922; 35 U. S. C. §§ 65, 71; Ensten v. Simon Ascher & Co., 282 U. S. 445,452; Altoona Theatres v. Tri-Ergon Corp., 294 U. S. 477, 493; May tag Co. v. Hurley Co., 307 U. S. 243. 58 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. We need not stop to inquire whether, as the Government contends, the subject matter of the disclaimer was improper as in effect adding a new element to the claim. See Milcor Steel Co. v. Fuller Co., 316 U. S. 143, 147-8. For we think that the court below was correct in holding that the Fleming patent was invalid because Fleming’s claim for “more than he had invented” was not inadvertent, and his delay in making the disclaimer was “unreasonable.” Both of these are questions of fact, but since the court in its opinion plainly states its conclusions as to them, and those conclusions are supported by substantial evidence, its omission to make formal findings of fact is immaterial. Act of May 22, 1939, 53 Stat. 752, 28 U. S. C. § 288 (b); cf. American Propeller Co. v. United States, 300 U. S. 475,479-80; Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293. The purpose of the rule that a patent is invalid in its entirety if any part of it be invalid is the protection of the public from the threat of an invalid patent, and the purpose of the disclaimer statute is to enable the patentee to relieve himself from the consequences of making an invalid claim if he is able to show both that the invalid claim was inadvertent and that the disclaimer was made without unreasonable neglect or delay. Ensten v. Simon Ascher & Co., supra. Here the patentee has sustained neither burden. Fleming’s paper of 1890 showed his own recognition that his claim of use of his patent for low frequency currents was anticipated by Edison and others. It taxes credulity to suppose, in the face of this publication, that Fleming’s claim for use of the Edison tube with low frequency currents was made “through inadvertence, accident or mistake,” which is prerequisite to a lawful disclaimer. No explanation or excuse is forthcoming for his claim of invention of a device which he had so often dem- MARCONI WIRELESS CO. v. U. S. 59 1 Opinion of the Court. onstrated to be old in the art, and which he had specifically and consistently attributed to Edison. Nor is any explanation offered for the delay of the patentee—the Marconi Company—in waiting ten years to disclaim the use of the device with low frequency currents and to restrict it to a use with high frequency Hertzian waves which Edison had plainly foreshadowed but not claimed. For ten years the Fleming patent was held out to the public as a monopoly of all its claimed features. That was too long in the absence of any explanation or excuse for the delay, and hence in this case was long enough to invalidate the patent. The conclusion of the Court of Claims not only has support in the evidence, but we can hardly see how on this record any other could have been reached. The Marconi Company’s contention that it nowhere appears that Fleming was not the first inventor of the use of the patented device to rectify high frequency alternating currents is irrelevant to the question of the sufficiency of the disclaimer. The disclaimer itself is an assertion that the claimed use of the invention with low frequencies was not the invention of the patentee, whose rights were derived wholly from Fleming. This improper claim for something not the invention of the patentee rendered the whole patent invalid unless saved by a timely disclaimer which was not made. The Marconi Company also asserts that, as it is suing as assignee of the patentee, it is unaffected by the provisions of the disclaimer statutes, which it construes as restricting to the “patentee” the consequences of unreasonable delay in making the disclaimer and as exempting the assignee from those consequences by the sentence “But no patentee shall be entitled to the benefits of this section if he has unreasonably neglected or delayed to enter a disclaimer.” 35 U. S. C. 71. As the court below found, the Marconi Company was itself the patentee to whom the patent was 60 OCTOBER TERM, 1942. Frankfurter, J., dissenting. 320U.S. issued on the assignment of Fleming’s application in conformity to 35 U. S. C. § 44. The right given by § 71 to the patentee or his assignees to sue for infringement upon a proper disclaimer obviously does not relieve the patentee from the consequences of his failure to comply with the statute because he acquired his patent under an assignment of the application. Altoona Theatres v. Tri-Ergon Corp., supra; Maytag Co. v. Hurley Co., supra; France Mjg. Co. v. Jefferson Electric Co., 106 F. 2d 605,610. Such a contention is not supported by the words of the statute and if allowed would permit the nullification of the disclaimer statute by the expedient of an assignment of the application. We need not consider whether one who has taken an assignment of a patent after its issuance would have any greater rights than his assignor in the event of the latter’s undue delay in filing a disclaimer. Compare Apex Electrical Mjg. Co. v. Maytag Co., 122 F. 2d 182, 189. The judgment in No. 373 is vacated and the cause remanded to the Court of Claims for further proceedings not inconsistent with this opinion. The judgment in No. 369 is affirmed. So ordered. Mr. Justice Murphy took no part in the consideration or decision of this case. Mr. Justice Frankfurter, dissenting in part: I regret to find myself unable to agree to the Court’s conclusion regarding the invalidity of the broad claims of Marconi’s patent. Since broad considerations control the significance and assessment of the details on which judgment in the circumstances of a case like this is based, I shall indicate the general direction of my views. It is an old observation that the training of Anglo-American judges ill fits them to discharge the duties cast MARCONI WIRELESS CO. v. U. S. 61 1 Frankfurter, J., dissenting. upon them by patent legislation.1 The scientific attainments of a Lord Moulton are perhaps unique in the annals of the English-speaking judiciary. However, so long as the Congress, for the purposes of patentability, makes the determination of originality a judicial function, judges must overcome their scientific incompetence as best they can. But consciousness of their limitations should make 1 “Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. As a member of the patent board for several years, while the law authorized a board to grant or refuse patents, I saw with what slow progress a system of general rules could be matured. . . . Instead of refusing a patent in the first instance, as the board was authorized to do, the patent now issues of course, subject to be declared void on such principles as should be established by the courts of law. This business, however, is but little analogous to their course of reading, since we might in vain turn over all the lubberly volumes of the law to find a single ray which would lighten the path of the mechanic or the mathematician. It is more within the information of a board of academical professors, and a previous refusal of patent would better guard our citizens against harassment by law-suits. But England had given it to her judges, and the usual predominancy of her examples carried it to ours.” Thomas Jefferson to Mr. Isaac M’Pher-son, August 13, 1813, Works of Thomas Jefferson, Wash. Ed., vol. VI, pp. 181-82. “I cannot stop without calling attention to the extraordinary condition of the law which makes it possible for a man without any knowledge of even the rudiments of chemistry to pass upon such questions as these. The inordinate expense of time is the least of the resulting evils, for only a trained chemist is really capable of passing upon such facts, e. g., in this case the chemical character of Von Furth’s so-called ‘zinc compound,’ or the presence of inactive organic substances. . . . How long we shall continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such advance.” Judge Learned Hand in Parke-Davis & Co. v. Mvljord Co., 189 F. 95, 115 (1911). 62 OCTOBER TERM, 1942. Frankfurter, J., dissenting. 320U.S. them vigilant against importing their own notions of the nature of the creative process into Congressional legislation, whereby Congress “to promote the Progress of Science and useful Arts” has secured “for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries.” Above all, judges must avoid the subtle temptation of taking scientific phenomena out of their contemporaneous setting and reading them with a retrospective eye. The discoveries of science are the discoveries of the laws of nature, and like nature do not go by leaps. Even Newton and Einstein, Harvey and Darwin, built on the past and on their predecessors. Seldom indeed has a great discoverer or inventor wandered lonely as a cloud. Great inventions have always been parts of an evolution, the culmination at a particular moment of an antecedent process. So true is this that the history of thought records striking coincidental discoveries—showing that the new insight first declared to the world by a particular individual was “in the air” and ripe for discovery and disclosure. The real question is how significant a jump is the new disclosure from the old knowledge. Reconstruction by hindsight, making obvious something that was not at all obvious to superior minds until someone pointed it out,— this is too often a tempting exercise for astute minds. The result is to remove the opportunity of obtaining what Congress has seen fit to make available. The inescapable fact is that Marconi in his basic patent hit upon something that had eluded the best brains of the time working on the problem of wireless communication—Clerk Maxwell and Sir Oliver Lodge and Nikola Tesla. Genius is a word that ought to be reserved for the rarest of gifts. I am not qualified to say whether Marconi was a genius. Certainly the great eminence of Clerk Maxwell and Sir Oliver Lodge and Nikola Tesla MARCONI WIRELESS CO. v. U. S. 63 1 Frankfurter, J., dissenting. in the field in which Marconi was working is not questioned. They were, I suppose, men of genius. The fact is that they did not have the “flash” (a current term in patent opinions happily not used in this decision) that begot the idea in Marconi which he gave to the world through the invention embodying the idea. But it is now held that in the important advance upon his basic patent Marconi did nothing that had not already been seen and disclosed. To find in 1943 that what Marconi did really did not promote the progress of science because it had been anticipated is more than a mirage of hindsight. Wireless is so unconscious a part of us, like the automobile to the modern child, that it is almost impossible to imagine ourselves back into the time when Marconi gave to the world what for us is part of the order of our universe. And yet, because a judge of unusual capacity for understanding scientific matters is able to demonstrate by a process of intricate ratiocination that anyone could have drawn precisely the inferences that Marconi drew and that Stone hinted at on paper, the Court finds that Marconi’s patent was invalid although nobody except Marconi did in fact draw the right inferences that were embodied into a workable boon for mankind. For me it speaks volumes that it should have taken forty years to reveal the fatal bearing of Stone’s relation to Marconi’s achievement by a retrospective reading of his application to mean this rather than that. This is for me, and I say it with much diffidence, too easy a transition from what was not to what became. I have little doubt, in so far as I am entitled to express an opinion, that the vast transforming forces of technology have rendered obsolete much in our patent law. For all I know the basic assumption of our patent law may be false, and inventors and their financial backers do not need the incentive of a limited monopoly to stimulate 55282ft—44-----9 64 OCTOBER TERM, 1942. Rutledge, J., dissenting. 320U.S. invention. But whatever revamping our patent laws may need, it is the business of Congress to do the revamping. We have neither constitutional authority nor scientific competence for the task. Mr. Justice Roberts joins in this opinion. Mr. Justice Rutledge, dissenting in part: Until now law1 has united with almost universal repute 1 2 3 in acknowledging Marconi as the first to establish wireless telegraphy on a commercial basis. Before his invention, now in issue,8 ether-borne communication traveled some eighty miles. He lengthened the arc to 6,000. Whether or not this was “inventive” legally, it was a great and beneficial achievement.4 * * * Today, forty years after the event, the Court’s decision reduces it to an electrical mechanic’s application of mere skill in the art. 1 Marconi v. British Radio Tel. & Tel. Co., 27 T. L. R. 274; Marconi v. Helsby Wireless Tel. Co., 30 T. L. R. 688; Société Marconi v. Société Générale, etc., Civil Tribunal of the Seine, 3d Chamber, Dec. 24, 1912; Marconi Wireless Telegraph Co. n. National Electric Signalling Co., 213 F. 815 (D. C.); Marconi Wireless Telegraph Co. v. Kilbourne & Clark Mjg. Co., 265 F. 644 (C. C. A.), aff’g 239 F. 328 (D. C.). 2 Cf., e. g., 14 Encyc. Britannica (14th ed.) 869. 3 His earliest American patent, U. S. Patent No. 586,193, granted on July 13, 1897, later becoming Reissue Patent No. 11,913, is not in suit here. That patent did not embrace many of the crucial claims here involved and its product cannot compare in commercial usefulness with that of the patent in suit. 4 Courts closer to it chronologically than we are have characterized it as a “conspicuous advance in wireless telegraphy”; “a real accomplishment” and the ideas involved in the patent were said to “have proven of great value to the world,” to have brought about “an en- tirely new and useful result,” “a new and very important industrial result” and “a wonderful conquest.” “The Marconi patent stands out as an unassailable monument until new discoveries are made.” Cf. the authorities cited in note 1, supra. MARCONI WIRELESS CO. v. U. S. 65 1 Rutledge, J., dissenting. By present knowledge, it would be no more. School boys and mechanics now could perform what Marconi did in 1900. But before then wizards had tried and failed. The search was at the pinnacle of electrical knowledge. There, seeking, among others, were Tesla, Lodge and Stone, old hands and great ones. With them was Marconi, still young as the company went5 obsessed with youth’s zeal for the hunt. At such an altitude, to work at all with success is to qualify for genius, if that is important. And a short step forward gives evidence of inventive power. For at that height a merely slight advance comes through insight only a first-rate mind can produce. This is so, whether it comes by years of hard work tracking down the sought secret or by intuition flashed from subconsciousness made fertile by long experience or shorter intensive concentration. At this level and in this company Marconi worked and won. He won by the test of results. No one disputes this. His invention had immediate and vast success, where all that had been done before, including his own work, gave but narrowly limited utility. To make useful improvement at this plane, by such a leap, itself shows high capacity. And that is true, although it was inherent in the situation that Marconi’s success should come by only a small margin of difference in conception. There was not room for any great leap of thought, beyond what he and others had done, to bring to birth the practical and useful result. The most eminent men of the time were conscious of the problem, were interested in it, had sought for years the exactly right arrangement, always approaching more nearly but never quite reaching the stage of prac- 5 He was only twenty-six years old at the time he applied for the patent in suit, but he had already made substantial contributions to the field. 66 OCTOBER TERM, 1942. Rutledge, J., dissenting. 320U.S. tical success. The invention was, so to speak, hovering in the general climate of science, momentarily awaiting birth. But just the right releasing touch had not been found. Marconi added it. When to altitude of the plane of conception and results so immediate and useful is added well-nigh unanimous contemporary judgment, one who long afterward would overturn the invention assumes a double burden. He undertakes to overcome what would offer strong resistance fresh in its original setting. He seeks also to overthrow the verdict of time. Long-range retroactive diagnosis, however competent the physician, becomes hazardous by progression as the passing years add distortions of the past and destroy its perspective. No light task is accepted therefore in undertaking to overthrow a verdict settled so long and so well, and especially one so foreign to the art of judges. In lawyers’ terms this means a burden of proof, not insurmountable, but inhospitable to implications and inferences which in less settled situations would be permissible to swing the balance of judgment against the claimed invention. That Marconi received patents elsewhere which, once established, have stood the test of time as well as of contemporary judgment, and secured his American patent only after years were required to convince our office he had found what so many others sought, but emphasizes the weight and clarity of proof required to overcome his claim. Marconi received patents here, in England, and in France.6 The American patent was not issued perfunctorily. It came forth only after a long struggle had brought about reversal of the Patent Office’s original and later rejections. The application was filed in November, 6 U. S. Patent No. 763,772; British Patent No. 7777 of 1900; French Patent No. 305,060 of Nov. 3,1900. MARCONI WIRELESS CO. v. U. S. 67 1 Rutledge, J., dissenting. 1900. In December it was rejected on Lodge,7 and an earlier patent to Marconi.8 It was amended and again rejected. Further amendments followed and operation of the system was explained. Again rejection took place, this time on Lodge, the earlier Marconi, Braun and other patents. After further proceedings, the claims were rejected on Tesla.9 A year elapsed, but in March, 1904, reconsideration was granted. Some claims then were rejected on Stone,10 11 others were amended, still others were cancelled, and finally on June 28, 1904, the patent issued. French and British patents had been granted in 1900. Litigation followed at once. Among Marconi’s American victories were the decisions cited above.11 Abroad the results were similar.12 Until 1935, when the Court of Claims held it invalid in this case, 81 Ct. Cl. 671, no court had found Marconi’s patent wanting in invention. It stood without adverse judicial decision for over thirty years. In the face of the burden this history creates, we turn to the references, chiefly Tesla, Lodge and Stone. The Court relies principally on Stone, but without deciding whether this was inventive. It is important, in considering the references, to state the parties’ contentions concisely. The Government’s statement is that they differ over whether Marconi was first to conceive four-circuit “tuning” for transmission of sound by Hertzian waves. It says this was taught previously by Tesla, Lodge and Stone. Petitioner however says none of them taught what Marconi did. It contends that Marconi was the first to accomplish the kind of tun 7 British patent to Lodge No. 29,505. 8 Cf. note 3 supra. 9 U. S. Patent to Tesla No. 649,621, May 15, 1900, division of 645,576, March 20,1900 (filed Sept. 2,1897). 10 Cf. text infra. 11 Cf. note 1 supra. 12 Ibid. • 68 OCTOBER TERM, 1942. Rutledge, J., dissenting. 320U.S. ing he achieved, and in effect urges this was patentably different from other forms found earlier. Specifically petitioner urges that Tesla had nothing to do with either Hertzian waves or tuning, but in fact his transmitting and receiving wires could not be tuned.13 Lodge, it claims, disclosed a tuned antenna, for either transmitter or receiver or both, but the closed circuits associated with the antenna ones were not tuned. Finally it is said Stone does not describe tuning the antenna, but does show tuning of the associated closed circuit. And Marconi tuned both. Petitioner does not claim the general principles of tuning. It admits they had long been familiar to physicists and that Lodge and others fully understood them. But it asserts Lodge did not know what circuits should be tuned, to accomplish what Marconi achieved, and that, to secure this, “knowledge that tuning is possible is not enough—there is also required the knowledge of whether or not to tune and how much.” Likewise, petitioner does not deny that Stone knew and utilized the principles of tuning; but urges, with respect to the claim he applied them to all of the four circuits, that the only ones tuned, in his original application, were the closed circuits and therefore that the antenna circuits were not tuned; although it is not denied that the effects of tuning the closed circuits were reflected in the open ones by what Stone describes as “producing forced, simple 13 Tesla in fact did not use Hertzian waves. His idea was to make the ether a conductor for long distances by using extremely high voltage, 20,000,000 to 30,000,000 volts, and extremely high altitudes, 30,000 to 40,000 feet or more, to secure transmission from aerial to aerial. Balloons, with wires attached reaching to the ground, were his suggested aerials. His system was really one for transmitting power for motors, lighting, etc., to “any terrestrial distance,” though he incidentally mentions “intelligible messages.” As he did not use Hertzian waves, he had no such problem of selectivity as Marconi, Lodge, Stone and others were working on later. MARCONI WIRELESS CO. v. U. S. 69 1 Rutledge, J., dissenting. harmonic electric vibrations of the same periodicity in an elevated conductor.” The Stone amendments of 1902, made more than a year after Marconi’s filing date, admittedly disclose tuning of both the closed and the open circuits, and were made for the purpose of stating expressly the latter effect, claimed to be implicit in the original application. Petitioner denies this was implicit and argues, in effect, that what Stone originally meant by “producing forced . . . vibrations” was creating the desired effects in the antenna by force, not by tuning; and therefore that the two methods were patentably different. It seems clear that the parties use the word “tuning” to mean different things and the ambiguity, if there is one, must be resolved before the crucial questions can be stated with meaning. It will aid, in deciding whether there is ambiguity or only confusion, to consider the term and the possible conceptions it may convey in the light of the problems Marconi and Stone, as well as other references, were seeking to solve. Marconi had in mind first a specific difficulty, as did the principal references. It arose from what, to the time of his invention, had been a baffling problem in the art. Shortly and simply, it was that an electrical circuit which is a good conserver of energy is a bad radiator and, conversely, a good radiator is a bad conserver of energy. Effective use of Hertzian waves over long distances required both effects. To state the matter differently, Lodge had explained in 1894 the difficulties of fully utilizing the principle of sympathetic resonance in detecting ether waves. To secure this, it was necessary, on the one hand, to discharge a long series of waves of equal or approximately equal length. Such a series can be produced only by a circuit which conserves its energy well, what Marconi calls a persistent oscillator. On the other hand, for distant detection, the waves must be of substantial 70 OCTOBER TERM, 1942. Rutledge, J., dissenting. 320U.S. amplitude, and only a circuit which loses its energy rapidly can transmit such waves with maximum efficiency. Obviously in a single circuit the two desired effects tend to cancel each other, and therefore to limit the distance of detection. Similar difficulty characterized the receiver, for a good radiator is a good absorber, and that very quality disables it to store up and hold the effect of a train of waves, until enough is accumulated to break down the coherer, as detection requires. Since the difficulty was inherent in a single circuit, whether at one end or the other, Marconi used two in both transmitter and receiver, four in all. In each station he used one circuit to obtain one of the necessary advantages and the other circuit to secure the other advantage. The antenna (or open) circuits he made “good radiators” (or absorbers). The closed circuits he constructed as “good conservers.” By coupling the two at each end loosely he secured from their combination the dual advantages he sought. At the transmitter, the closed circuit, by virtue of its capacity for conserving energy, gave persistent oscillation, which passed substantially undiminished through the coupling transformer to the “good radiator” open circuit and from it was discharged with little loss of energy into the ether. Thence it was picked up by the “good absorber” open circuit and passed, without serious loss of energy, through the coupling transformer, into the closed “good conserving” circuit, where it accumulated to break the coherer and give detection. Moreover, and for present purposes this is the important thing, Marconi brought the closed and open circuits into almost complete harmony by placing variable inductance in each. Through this the periodicity of the open circuit was adjusted automatically to that of the closed one; and, since the circuits of the receiving' station were similarly adjustable, the maximum resonance was secured throughout the system. Marconi thus not only solved MARCONI WIRELESS CO. v. U. S. 71 1 Rutledge, J., dissenting. the dilemma of a single circuit arrangement; he attained the maximum of resonance and selectivity by providing in each circuit independent means of tuning. In 1911 this solution was held inventive, as against Lodge, Marconi’s prior patents, Braun and other references. in Marconi v. British Radio Tel. & Tel. Co., 27 T. L. R. 274. Mr. Justice Parker carefully reviewed the prior art, stated the problem, Marconi’s solution, and in disposing of Braun’s specification concluded it “did not contain even the remotest suggestion of the problem . . ., much less any suggestion bearing on its solution. . . .” As to Lodge, Mr. Justice Parker observed, referring first to Marconi: “. . . It is important to notice that in the receiver the mere introduction of two circuits instead of one was no novelty. A figure in Lodge’s 1897 patent shows the open circuit of his receiving aerial linked through a transformer with a closed circuit containing the coherer, his idea being, as he states, to leave his receiving aerial freer to vibrate electrically without disturbance from attached wires. This secondary circuit, as shown, is not tuned to, nor can it be tuned to, the circuit of the aerial. This, in my opinion, is exceedingly strong evidence that Marconi’s 1900 invention was not so obvious as to deprive it of subject matter. In the literature quoted there is no trace of the idea underlying Mr. Marconi’s invention, nor, so far as I can see, a single suggestion from which a competent engineer could arrive at this idea.” (Emphasis added.) It was therefore clearly Mr. Justice Parker’s view, in his closer perspective to the origin of the invention and the references he considered, that in none of them, and particularly not in Lodge or Braun, was there anticipation of Marconi’s solution. He did not mean that the references did not apply “the principle of resonance as between transmitter and re- 72 OCTOBER TERM, 1942. Rutledge, J., dissenting. 320U.S. ceiver” or utilize “the principle of sympathetic resonance for the purpose of detection of ether waves.” For he expressly attributed to Lodge, in his 1894 lectures, explanation “with great exactness [of] the various difficulties attending the full utilization” of that principle. And in referring to Marconi’s first patent, of 1896, the opinion states that Marconi “for what it was worth . . . tuned the two circuits [i. e., the sending and receiving ones] together as Hertz had done.” (Emphasis added.) From these and other statements in the opinion it is obvious that Mr. Justice Parker found Marconi’s invention in something more than merely the application of the “principle of resonance,” or “sympathetic resonance,” or its use to “tune” together the transmitting and receiving circuits. For Marconi in his own prior inventions, Lodge and the other references, in fact all who had constructed any system using Hertzian waves capable of. transmitting and detecting sound, necessarily had made use, in some manner and to some extent, of “the principle of resonance” or “sympathetic resonance.” That principle is inherent in the idea of wireless communication by Hertzian waves. So that, necessarily, all the prior conceptions included the idea that common periodicity must appear in all of the circuits employed. Nor did Mr. Justice Parker’s opinion find the inventive feature in the use of two circuits instead of one, at any rate in the receiver. For he expressly notes this in Lodge. But he points out that Lodge added the separate circuit “to leave his receiving aerial freer to vibrate electrically without disturbance from attached wires.” And he goes on to note that this secondary (or closed) circuit not only was not, but could not be, “tuned” to the aerial circuit. And this he finds “exceedingly strong evidence” that “Marconi’s 1900 invention was not so obvious as to deprive it of subject matter.” Lodge had “tuned” the antenna circuit, by placing in it a variable inductance. But MARCONI WIRELESS CO. v. U. S. 73 1 Rutledge, J., dissenting. he did not do this or accomplish the same thing by any other device, such as a condenser, in the closed circuit. And the fact that so eminent a scientist, the one who in fact posed the problem and its difficulties, did not see the need for extending this “independent tuning” (to use Marconi’s phrase) to the closed circuit, so as to bring it thus in tune with the open one, was enough to convince Mr. Justice Parker, and I think rightly, that what Marconi did over Lodge was not so obvious as to be without substance. In short, Mr. Justice Parker found the gist of Marconi’s invention, not in mere application of the general principle or principles of resonance to a four-circuit system, or in the use of four circuits or the substitution of two for one in each or either station; but, as petitioner now contends, in recognition of the principle that, whether in the transmitter or the receiver, attainment of the maximum resonance required that means for tuning the closed to the open circuit be inserted in both. That recognized, the method of accomplishing the adjustment was obvious, and different methods, as by using variable inductance or a condenser, were available. As petitioner’s reply brief states the matter, “The Marconi invention was not the use of a variable inductance, nor indeed any other specific way of tuning an antenna—before Marconi it was known that electrical circuits could be tuned or not tuned, by inductance coils or condensers. His broad invention was the combination of a tuned antenna circuit and a tuned closed circuit.” (Emphasis added.) And it is only in this view that the action of the Patent Office in finally awarding the patent to Marconi can be explained or sustained, for it allowed claims both limited to and not specifying variable inductance. That feature was essential for both circuits in principle, but not in the particular method by which Marconi accomplished it. And it was recognition of this which eventually induced allowance of the claims, notwithstanding the previous 74 OCTOBER TERM, 1942. Rutledge, J., dissenting. 320U.S. rejections on Lodge, Stone and other references, including all in issue here. In the perspective of this decade, Marconi’s advance, in requiring “independent tuning,” that is, positive means of tuning located in both closed and open circuits, seems simple and obvious. It was simple. But, as is often true with great inventions, the simplest and therefore generally the best solution is not obvious at the time, though it becomes so immediately it is seen and stated. Looking back now at Edison’s light bulb one might think it absurd that that highly useful and beneficial idea had not been worked out long before, by anyone who knew the elementary laws of resistance in the field of electric conduction. But it would be shocking, notwithstanding the presently obvious character of what Edison did, for any court now to rule he made no invention. The same thing applies to Marconi. Though what he did was simple, it was brilliant, and it brought big results. Admittedly the margin of difference between his conception and those of the references, especially Lodge and Stone, was small. It came down to this, that Lodge saw the need for and used means for performing the function which variable inductance achieves in the antenna or open circuit, Stone did the same thing in the closed circuit, but Marconi first did it in both. Slight as each of these steps may seem now, in departure from the others, it is as true as it was in 1911, when Mr. Justice Parker wrote, that the very fact men of the eminence of Lodge and Stone saw the necessity of taking the step for one circuit but not for the other is strong, if not conclusive, evidence that taking it for both circuits was not obvious. If this was so clearly indicated that anyone skilled in the art should have seen it, the unanswered and I think unanswerable question remains, why did not Lodge and Stone, both assiduously searching for the secret and both prééminent in the field, recognize the MARCONI WIRELESS CO. v. U. S. 75 1 Rutledge, J., dissenting. fact and make the application? The best evidence of the novelty of Marconi’s advance lies not in any judgment, scientific or lay, which could now be formed about it. It is rather in the careful, considered and substantially contemporaneous judgments, formed and rendered by both the patent tribunals and the courts when years had not distorted either the scientific or the legal perspective of the day when the invention was made. All of the references now used to invalidate Marconi were in issue, at one time or another, before these tribunals, though not all of them were presented to each. Their unanimous conclusion, backed by the facts which have been stated, is more persuasive than the most competent contrary opinion formed now about the matter could be. It remains to give further attention concerning Stone. Admittedly his original application did not require tuning, in Marconi’s sense, of the antenna circuit, though it specified this for the closed one. He included variable inductance in the latter, but not in the former. His device therefore was, in this respect, exactly the converse of Lodge. But it is said his omission to specify the function (as distinguished from the apparatus which performed it) for the antenna circuit was not important, because the function was implicit in the specification and therefore supported his later amendment, filed more than a year following Marconi’s date, expressly specifying this feature for the open circuit. Substantially the same answer may be made to this as Mr. Justice Parker made to the claim based on Lodge. Tuning both circuits, that is, including in each independent means for variable adjustment, was the very gist of Marconi’s invention. And it was what made possible the highly successful result. It seems strange that one who saw not only the problem, but the complete solution, should specify only half what was necessary to achieve it, neglecting to mention the other and equally important 76 OCTOBER TERM, 1942. Rutledge, J., dissenting. 320U.S. half as well, particularly when, as is claimed, the two were so nearly identical except for location. The very omission of explicit statement of so important and, it is claimed, so obvious a feature is evidence it was neither obvious nor conceived. And the force of the omission is magnified by the fact that its author, when he fully recognized its effect, found it necessary to make amendment to include it, after the feature was expressly and fully disclosed by another. Amendment under such circumstances, particularly with respect to a matter which goes to the root rather than an incident or a detail of the invention, is always to be regarded critically and, when the foundation claimed for it is implicit existence in the original application, as it must be, the clearest and most convincing evidence should be required when the effect is to give priority, by backward relation, over another application intermediately filed. Apart from the significance of omitting to express a feature so important, I am unable to find convincing evidence the idea was implicit in Stone as he originally filed. His distinction between “natural” and “forced” oscillations seems to me to prove, in the light of his original disclosure, not that “tuning” of the antenna circuit as Marconi required this was implicit, but rather that it was not present in that application at all. It is true he sought, as Marconi did, to make the antenna circuit at the transmitter the source of waves of but a single periodicity and the same circuit at the receiver an absorber only of the waves so transmitted. But the methods they used were not the same. Stone’s method was to provide “what are substantially forced vibrations” in the transmitter’s antenna circuit and, at the receiver, to impose “between the vertical conductor [the antenna] . . . and the translating devices [in the closed circuit] [other] resonant circuits attuned to the particular frequency of the electro-magnetic waves MARCONI WIRELESS CO. v. U. S. 77 1 Rutledge, J., dissenting. which it is desired to have operate the translating devices.” (Emphasis added.) In short, he provided for “tuning,” as Marconi did, the transmitter’s closed circuit, the receiver’s closed circuit and the intermediate circuits which he interposed in the receiver between the open or antenna one and the closed one. But nowhere did he provide for or suggest “tuning,” as Marconi did and in his meaning, the antenna circuit of the transmitter or the antenna circuit of the receiver. For resonance in the former he depended upon the introduction, from the closed circuit, of “substantially forced electric vibrations” and for selectivity in the latter he used the intermediate tuned circuits. Stone and Marconi used the same means for creating persistent oscillation, namely, the use of the separate closed circuit; and in this both also developed single periodicity to the extent the variable inductance included there and there only could do so. But while both created persistent oscillation in the same way, Marconi went farther than Stone with single periodicity and secured enhancement of this by placing means for tuning in the antenna circuit, which admittedly Stone nowhere expressly required in his original application. And, since this is the gist of the invention in issue and of the difference between the two, it will not do to dismiss this omission merely with the statement that there is nothing to suggest that Stone “did not desire to have those circuits tuned.” Nor in my opinion do the passages in the specifications relied upon as “suggesting” the “independent” tuning of the antenna circuits bear out this inference. When Stone states that “the vertical conductor at the transmitter station is made the source of . . . waves of but a single periodicity,” I find nothing to suggest that this is accomplished by specially tuning that circuit, or, in fact, anything more than that this circuit is a good conductor sending out the single period waves forced into it from the 78 OCTOBER TERM, 1942. Rutledge, J., dissenting. 320U.S closed circuit. The same is true of the further statement that “the translating apparatus at the receiving station is caused to be selectively responsive to waves of but a single periodicity” (which tuning the intermediate and/or closed circuits there accomplishes), so that “the transmitting apparatus corresponds to a tuning fork sending but a single musical tone, and the receiving apparatus corresponds to an acoustic resonator capable of absorbing the energy of that single simple musical tone only.” (Emphasis added.) This means nothing more than that the transmitter, which includes the antenna, and the receiver, which also includes the antenna, send out and receive respectively a single period wave. It does not mean that the antenna, in either station, was tuned, in Marconi’s sense, nor does it suggest this. The same is true of the other passages relied upon by the Court for suggestion. No word or hint can be found in them that Stone intended or contemplated independently tuning the antenna. They merely suggested, on the one hand, that when “the apparatus” at the receiving station is properly tuned to a particular transmitter, it will receive selectively messages from the latter and, further, that the operator may at will adjust “the apparatus at his command” so as to communicate with any one of several sending stations; on the other hand, that “any suitable device” may be used at the transmitter “to develop the simple harmonic force impressed upon” the antenna. “The apparatus,” as used in the statements concerning the adjustments at the receiving station, clearly means “the apparatus at his command,” that is, the whole of that station’s equipment, which contained in the intermediate and closed circuits, but not in the open one, the means for making the adjustments described. There is nothing whatever to suggest including a tuning device also in the open circuit. The statement concerning the use of “any MARCONI WIRELESS CO. v. U. S. 79 1 Rutledge, J., dissenting. suitable device” to “develop the simple harmonic force impressed upon the vertical wire” might be taken, in other context, possibly to suggest magnifying the impressed force by inserting a device for that purpose in the open circuit and therefore to come more closely than the other passages to suggesting Marconi’s idea. But such a construction would be wholly strained in the absence of any other reference or suggestion in the long application to such a purpose. Standing wholly alone as it does, it would be going far to base anticipation of Marconi’s idea upon this language only. The more reasonable and, in view of the total absence of suggestion elsewhere, the only tenable view is that the language was intended to say, not that Stone contemplated including any device for tuning in the open circuit, but that he left to the mechanic or builder the choice of the various devices which might be used, according to preference, to create or “develop,” in the closed circuit, the force to be impressed upon the antenna. Finally, Stone was no novice. He too was “a very expert person and one of the best men in the art.” National Electric Signalling Co. v. Telejunken Wireless Tel. Co., 209 F. 856, 864 (D. C.). He knew the difference between tuned and untuned circuits, how to describe them, and how to apply them when he wanted to do so. He used this knowledge when he specified including means for tuning in his closed circuit. He did not use it to specify similarly tuning the open one. The omission, in such circumstances, could hardly have been intentional. In my opinion he deliberately selected an aperiodic aerial, one to which the many receiving circuits his application contemplated could be adjusted and one which would carry to them, from his transmitter’s tuned periodicity and by its force alone, what it sent forward. In short, Stone deliberately selected an untuned antenna, a tuned 552826—44-------10 80 OCTOBER TERM, 1942. Rutledge, J., dissenting. 320U.S. closed circuit, and controlled the periodicity of both, not by independent means in each making them mutually and reciprocally adjustable, but by impressing upon the untuned antenna the forced periodicity of the closed circuit. It may be that by his method he attained results comparable, or nearly so, to those Marconi achieved. The record does not show that he did so prior to his amendment. If he did, that only goes to show he accomplished in consequence what Marconi did, but by a different method. That both had the same “broad purpose” of providing a high degree of tuning at both stations, and that both may have accomplished this object substantially, does not show that they did so in the same way or that Stone, by his different method, anticipated Marconi. In my opinion therefore Stone’s amendment was not supported by anything in his original application and should not have been allowed. As petitioner says, it added the new feature of tuning the antenna and in that respect resembled the amendment of a Fessenden application “to include the tuning of the closed circuit.” National Electric Signalling Co. v. Telefunken Wireless Tel. Co., supra. The amendment here should receive the same fate as befell the one there involved. Stone’s letters to Baker, quoted in the Court’s opinion, show no more than his original application disclosed. There is no hint or suggestion in them of tuning the antenna circuits “independently” as Marconi did. And the correspondence gives further proof he contemplated introducing the inductance coil (or a device equivalent in function) into the closed circuit, but expressed no idea of doing the same thing in the open one. In my opinion therefore the judgment should be reversed, in so far as it holds Marconi’s broad claims invalid. HIRABAYASHI v. UNITED STATES. 81 Syllabus. HIRABAYASHI v. UNITED STATES. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 870. Argued May 10,11,1943.—Decided June 21,1943. 1. Where a defendant is convicted on two counts of an indictment and the sentences are ordered to run concurrently, it is unnecessary on review to consider the validity of the sentence on both of the counts if the sentence on one of them is sustainable. P. 85. 2. Pursuant to Executive Order No. 9066, promulgated by the President on February 19, 1942 while the United States was at war with Japan, the military commander of the Western Defense Command promulgated an order requiring, inter alia, that all persons of Japanese ancestry within a designated military area “be within their place of residence between the hours of 8 p. m. and 6 a. m.” Appellant, a United States citizen of Japanese ancestry, was convicted in the federal District Court for violation of this curfew order. Held: (1) By the Act of March 21,1942, Congress ratified and confirmed Executive Order No. 9066, and thereby authorized and implemented such curfew orders as the military commander should promulgate pursuant to that Executive Order. P. 91. (2) It was within the constitutional authority of Congress and the Executive, acting together, to prescribe this curfew order as an emergency war measure. P. 92. In the light of all the facts and circumstances, there was substantial basis for the conclusion, in which Congress and the military commander united, that the curfew as applied was a protective measure necessary to meet the threat of sabotage and espionage which would substantially affect the war effort and which might reasonably be expected to aid a threatened enemy invasion. P. 95. (3) The curfew order did not unconstitutionally discriminate against citizens of Japanese ancestry. P. 101. (a) The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. P. 100. (b) The curfew order as applied, and at the time it was applied, was within the boundaries of the war power. P. 102. 82 OCTOBER TERM, 1942. Counsel for Parties. 320U.S. (c) The adoption by the Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not to be condemned as unconstitutional merely because in other and in most circumstances racial distinctions are irrelevant. P. 101. (d) An appropriate exercise of the war power is not rendered invalid by the fact that it restricts the liberty of citizens. P. 99. (4) The promulgation of the curfew order by the military commander was based on no unconstitutional delegation of legislative power. P. 102. The essentials of the legislative function are preserved when Congress provides that a statutory command shall become operative upon ascertainment of a basic conclusion of fact by a designated representative of the Government. The Act of March 21, 1942, which authorized that curfew orders be made pursuant to Executive Order No. 9066 for the protection of war resources from espionage and sabotage, satisfies those requirements. P. 104. Affirmed. Response to questions certified by the Circuit Court of Appeals upon an appeal to that court from a conviction in the District Court upon two counts of an indictment charging violations of orders promulgated by the military commander of the Western Defense Command. This Court directed that the entire record be certified so that the case could be determined as if brought here by appeal. See 46 F. Supp. 657. Messrs. Frank L. Walters and Harold Evans, with whom Messrs. Osmond K. Fraenkel, Arthur G. Barnett, Edwin M. Borchard, Brien McMahon, and William Draper Lewis were on the brief (Mr. Alfred J. Schweppe entered an appearance), for Hirabayashi. Solicitor General Fahy, with whom Messrs. Edward J. Ennis, Arnold Raum, John L. Burling, and Leo Gitlin were on the brief, for the United States. Briefs of amici curiae were filed by Messrs. Arthur Garfield Hays, Osmond K. Fraenkel, and A. L. Wirin on behalf HIRABAYASHI v. UNITED STATES. 83 81 Opinion of the Court. of the American Civil Liberties Union; by Mr. A. L. Wirin on behalf of the Japanese American Citizens League; and by Mr. Jackson H. Ralston on behalf of the Northern California Branch of the American Civil Liberties Union,—in support of Hirabayashi; and by Messrs. Robert W. Kenny, Attorney General of California, I. H. Van Winkle, Attorney General of Oregon, Smith Troy, Attorney General of the State of Washington, and Fred E. Lewis, Chief Assistant and Acting Attorney General of the State of Washington, on behalf of those States,— urging affirmance. Mr. Chief Justice Stone delivered the opinion of the Court. Appellant, an American citizen of Japanese ancestry, was convicted in the district court of violating the Act of Congress of March 21, 1942, 56 Stat. 173, which makes it a misdemeanor knowingly to disregard restrictions made applicable by a military commander to persons in a military area prescribed by him as such, all as authorized by an Executive Order of the President. The questions for our decision are whether the particular restriction violated, namely that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p. m. and 6:00 a. m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment. The indictment is in two counts. The second charges that appellant, being a person of Japanese ancestry, had on a specified date, contrary to a restriction promulgated by the military commander of the Western Defense Command, Fourth Army, failed to remain in his place of resi 84 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. dence in the designated military area between the hours of 8:00 o’clock p. m. and 6:00 a. m. The first count charges that appellant, on May 11 and 12,1942, had, contrary to a Civilian Exclusion Order issued by the military commander, failed to report to the Civil Control Station within the designated area, it appearing that appellant’s required presence there was a preliminary step to the exclusion from that area of persons of Japanese ancestry. By demurrer and plea in abatement, which the court overruled (46 F. Supp. 657), appellant asserted that the indictment should be dismissed because he was an American citizen who had never been a subject of and had never borne allegiance to the Empire of Japan, and also because the Act of March 21, 1942, was an unconstitutional delegation of Congressional power. On the trial to a jury it appeared that appellant was born in Seattle in 1918, of Japanese parents who had come from Japan to the United States, and who had never afterward returned to Japan; that he was educated in the Washington public schools and at the time of his arrest was a senior in the University of Washington; that he had never been in Japan or had any association with Japanese residing there. The evidence showed that appellant had failed to report to the Civil Control Station on May 11 or May 12, 1942, as directed, to register for evacuation from the military area. He admitted failure to do so, and stated it had at all times been his belief that he would be waiving his rights as an American citizen by so doing. The evidence also showed that for like reason he was away from his place of residence after 8:00 p. m. on May 9, 1942. The jury returned a verdict of guilty on both counts and appellant was sentenced to imprisonment for a term of three months on each, the sentences to run concurrently. On appeal the Court of Appeals for the Ninth Circuit certified to us questions of law upon which it desired in- HIRABAYASHI v. UNITED STATES. 85 81 Opinion of the Court. structions for the decision of the case. See § 239 of the Judicial Code as amended, 28 U. S. C. § 346. Acting under the authority conferred upon us by that section we ordered that the entire record be certified to this Court so that we might proceed to a decision of the matter in controversy in the same manner as if it had been brought here by appeal. Since the sentences of three months each imposed by the district court on the two counts were ordered to run concurrently, it will be unnecessary to consider questions raised with respect to the first count if we find that the conviction on the second count, for violation of the curfew order, must be sustained. Brooks v. United States, 267 U. S. 432, 441; Gorin v. United States, 312 U. S. 19,33. The curfew order which appellant violated, and to which the sanction prescribed by the Act of Congress has been deemed to attach, purported to be issued pursuant to an Executive Order of the President. In passing upon the authority of the military commander to make and execute the order, it becomes necessary to consider in some detail the official action which preceded or accompanied the order and from which it derives its purported authority. On December 8, 1941, one day after the bombing of Pearl Harbor by a Japanese air force, Congress declared war against Japan. 55 Stat. 795. On February 19, 1942, the President promulgated Executive Order No. 9066. 7 Federal Register 1407. The Order recited that “the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21,1941, 55 Stat. 655.” By virtue of the authority vested 86 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. in him as President and as Commander in Chief of the Army and Navy, the President purported to “authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.” On February 20, 1942, the Secretary of War designated Lt. General J. L. DeWitt as Military Commander of the Western Defense Command, comprising the Pacific Coast states and some others, to carry out there the duties prescribed by Executive Order No. 9066. On March 2, 1942, General DeWitt promulgated Public Proclamation No. 1. 7 Federal Register 2320. The proclamation recited that the entire Pacific Coast “by its geographical location is particularly subject to attack, to attempted invasion by the armed forces of nations with which the United States is now at war, and, in connection therewith, is subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations.” It stated that “the present situation requires as a matter of military necessity the establishment in the territory embraced by the Western Defense Command of Military Areas and Zones thereof”; it specified and designated as military areas certain areas within the Western Defense Command; and it declared that “such persons or classes of persons as the situation may require” would, by subsequent proclamation, be excluded from certain of these HIRABAYASHI v. UNITED STATES. 87 81 Opinion of the Court. areas, but might be permitted to enter or remain in certain others, under regulations and restrictions to be later prescribed. Among the military areas so designated by Public Proclamation No. 1 was Military Area No. 1, which embraced, besides the southern part of Arizona, all the coastal region of the three Pacific Coast states, including the City of Seattle, Washington, where appellant resided. Military Area No. 2, designated by the same proclamation, included those parts of the coastal states and of Arizona not placed within Military Area No. 1. Public Proclamation No. 2 of March 16, 1942, issued by General DeWitt, made like recitals and designated further military areas and zones. It contained like provisions concerning the exclusion, by subsequent proclamation, of certain persons or classes of persons from these areas, and the future promulgation of regulations and restrictions applicable to persons remaining within them. 7 Federal Register 2405. An Executive Order of the President, No. 9102, of March 18, 1942, established the War Relocation Authority, in the Office for Emergency Management of the Executive Office of the President; it authorized the Director of War Relocation Authority to formulate and effectuate a program for the removal, relocation, maintenance and supervision of persons designated under Executive Order No. 9066, already referred to; and it conferred on the Director authority to prescribe regulations necessary or desirable to promote the effective execution of the program. 7 Federal Register 2165. Congress, by the Act of March 21,1942, provided: “That whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary 88 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable” to fine or imprisonment, or both. Three days later, on March 24, 1942, General DeWitt issued Public Proclamation No. 3. 7 Federal Register 2543. After referring to the previous designation of military areas by Public Proclamations Nos. 1 and 2, it recited that “. . . the present situation within these Military Areas and Zones requires as a matter of military necessity the establishment of certain regulations pertaining to all enemy aliens and all persons of Japanese ancestry within said Military Areas and Zones . . .” It accordingly declared and established that from and after March 27,1942, “all alien Japanese, all alien Germans, all alien Italians, and all persons of Japanese ancestry residing or being within the geographical limits of Military Area No. 1 . . . shall be within their place of residence between the hours of 8:00 P. M. and 6:00 A. M., which period is hereinafter referred to as the hours of curfew.” It also imposed certain other restrictions on persons of Japanese ancestry, and provided that any person violating the regulations would be subject to the criminal penalties provided by the Act of Congress of March 21, 1942. Beginning on March 24, 1942, the military commander issued a series of Civilian Exclusion Orders pursuant to the provisions of Public Proclamation No. 1. Each such order related to a specified area within the territory of his command. The order applicable to appellant was Civilian Exclusion Order No. 57 of May 10, 1942. 7 Federal Register 3725. It directed that from and after 12:00 noon, May 16, 1942, all persons of Japanese ancestry, both alien and nonalien, be excluded from a specified portion of Military Area No. 1 in Seattle, including appellant’s place of residence, HIRABAYASHI v. UNITED STATES. 89 81 Opinion of the Court. and it required a member of each family, and each individual living alone, affected by the order to report on May 11 or May 12 to a designated Civil Control Station in Seattle. Meanwhile the military commander had issued Public Proclamation No. 4 of March 27, 1942, which recited the necessity of providing for the orderly evacuation and resettlement of Japanese within the area, and prohibited all alien Japanese and all persons of Japanese ancestry from leaving the military area until future orders should permit. 7 Federal Register 2601. Appellant does not deny that he knowingly failed to obey the curfew order as charged in the second count of the indictment, or that the order was authorized by the terms of Executive Order No. 9066, or that the challenged Act of Congress purports to punish with criminal penalties disobedience of such an order. His contentions are only that Congress unconstitutionally delegated its legislative power to the military commander by authorizing him to impose the challenged regulation, and that, even if the regulation were in other respects lawfully authorized, the Fifth Amendment prohibits the discrimination made between citizens of Japanese descent and those of other ancestry. It will be evident from the legislative history that the Act of March 21, 1942, contemplated and authorized the curfew order which we have before us. The bill which became the Act of March 21, 1942, was introduced in the Senate on March 9th and in the House on March 10th at the request of the Secretary of War who, in letters to the Chairman of the Senate Committee on Military Affairs and to the Speaker of the House, stated explicitly that its purpose was to provide means for the enforcement of orders issued under Executive Order No. 9066. This appears in the committee reports on the bill, which set out in full the Executive Order and the Secretary’s letter. 88 Cong. Rec. 2722,2725; H. R. Rep. No. 1906,77th Cong., 90 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. 2d Sess.; S. Rep. No. 1171,77th Cong., 2d Sess. And each of the committee reports expressly mentions curfew orders as one of the types of restrictions which it was deemed desirable to enforce by criminal sanctions. When the bill was under consideration, General DeWitt had published his Proclamation No. 1 of March 2, 1942, establishing Military Areas Nos. 1 and 2, and that Proclamation was before Congress. S. Rep. No. 1171, 77th Cong., 2d Sess., p. 2; see also 88 Cong. Rec. 2724. A letter of the Secretary to the Chairman of the House Military Affairs Committee, of March 14,1942, informed Congress that “General DeWitt is strongly of the opinion that the bill, when enacted, should be broad enough to enable the Secretary of War or the appropriate military commander to enforce curfews and other restrictions within military areas and zones”; and that General DeWitt had “indicated that he was prepared to enforce certain restrictions at once for the purpose of protecting certain vital national defense interests but did not desire to proceed until enforcement machinery had been set up.” H. R. Rep. No. 1906, 77th Cong., 2d Sess., p. 3. See also letter of the Acting Secretary of War to the Chairman of the Senate Military Affairs Committee, March 13, 1942, 88 Cong. Rec. 2725. The Chairman of the Senate Military Affairs Committee explained on the floor of the Senate that the purpose of the proposed legislation was to provide means of enforcement of curfew orders and other military orders made pursuant to Executive Order No. 9066. He read General DeWitt’s Public Proclamation No. 1, and statements from newspaper reports that “evacuation of the first Japanese aliens and American-born Japanese” was about to begin. He also stated to the Senate that “reasons for suspected widespread fifth-column activity among Japanese” were to be found in the system of dual citizenship which Japan deemed applicable to American- HIRABAYASHI v. UNITED STATES. 91 81 Opinion of the Court. born Japanese, and in the propaganda disseminated by Japanese consuls, Buddhist priests and other leaders, among American-born children of Japanese. Such was stated to be the explanation of the contemplated evacuation from the Pacific Coast area of persons of Japanese ancestry, citizens as well as aliens. 88 Cong. Rec. 2722-26; see also pp. 2729-30. Congress also had before it the Preliminary Report of a House Committee investigating national defense migration, of March 19, 1942, which approved the provisions of Executive Order No. 9066, and which recommended the evacuation, from military areas established under the Order, of all persons of Japanese ancestry, including citizens. H. R. Rep. No. 1911, 77th Cong., 2d Sess. The proposed legislation provided criminal sanctions for violation of orders, in terms broad enough to include the curfew order now before us, and the legislative history demonstrates that Congress was advised that curfew orders were among those intended, and was advised also that regulation of citizen and alien Japanese alike was contemplated. The conclusion is inescapable that Congress, by the Act of March 21, 1942, ratified and confirmed Executive Order No. 9066. Prize Cases, 2 Black 635, 671; Hamilton v. Dillin, 21 Wall. 73, 96-97; United States v. Heinszen de Co., 206 U. S. 370, 382-84; Tiaco v. Forbes, 228 U. S. 549, 556; Isbrandtsen-Moller Co. v. United States, 300 U. S. 139,146-48; Swayne & Hoyt, Ltd. v. United States, 300 U. S. 297, 300-03; Mason Co. v. Tax Comm’n, 302 U. S. 186, 208. And so far as it lawfully could, Congress authorized and implemented such curfew orders as the commanding officer should promulgate pursuant to the Executive Order of the President. The question then is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional authority to impose the cur- 92 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. few restriction here complained of. We must consider also whether, acting together, Congress and the Executive could leave it to the designated military commander to appraise the relevant conditions and on the basis of that appraisal to say whether, under the circumstances, the time and place were appropriate for the promulgation of the curfew Order and whether the order itself was an appropriate means of carrying out the Executive Order for the “protection against espionage and against sabotage” to national defense materials, premises and utilities. For reasons presently to be stated, we conclude that it was within the constitutional power of Congress and the executive arm of the Government to prescribe this curfew order for the period under consideration and that its promulgation by the military commander involved no unlawful delegation of legislative power. Executive Order No. 9066, promulgated in time of war for the declared purpose of prosecuting the war by protecting national defense resources from sabotage and espionage, and the Act of March 21,1942, ratifying and confirming the Executive Order, were each an exercise of the power to wage war conferred on the Congress and on the President, as Commander in Chief of the armed forces, by Articles I and II of the Constitution. See Ex parte Quirin, 317 U. S. 1, 25-26. We have no occasion to consider whether the President, acting alone, could lawfully have made the curfew order in question, or have authorized others to make it. For the President’s action has the support of the Act of Congress, and we are immediately concerned with the question whether it is within the constitutional power of the national government, through the joint action of Congress and the Executive, to impose this restriction as an emergency war measure. The exercise of that power here involves no question of martial law or trial by military tribunal. Cf. Ex parte Milligan, 4 Wall. 2; Ex parte Quirin, supra. Appellant has been HIRABAYASHI v. UNITED STATES. 93 81 Opinion of the Court. tried and convicted in the civil courts and has been subjected to penalties prescribed by Congress for the acts committed. The war power of the national government is “the power to wage war successfully.” See Charles Evans Hughes, War Powers Under the Constitution, 42 A. B. A. Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war. Prize Cases, supra; Miller v. United States, 11 Wall. 268, 303-14; Stewart v. Kahn, 11 Wall. 493,506-07; Selective Draft Law Cases, 245 U. S. 366; McKinley v. United States, 249 U. S. 397; United States v. Macintosh, 283 U. S. 605, 622-23. Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Ex parte Quirin, supra, 28-29; cf. Prize Cases, supra, 670; Martin v. Mott, 12 Wheat. 19, 29. Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of war-making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs. The actions taken must be appraised in the light of the conditions with which the President and Congress were confronted in the early months of 1942, many of which, 94 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. since disclosed, were then peculiarly within the knowledge of the military authorities. On December 7, 1941, the Japanese air forces had attacked the United States Naval Base at Pearl Harbor without warning, at the very hour when Japanese diplomatic representatives were conducting negotiations with our State Department ostensibly for the peaceful settlement of differences between the two countries. Simultaneously or nearly so, the Japanese attacked Malaysia, Hong Kong, the Philippines, and Wake and Midway Islands. On the following day their army invaded Thailand. Shortly afterwards they sank two British battleships. On December 13th, Guam was taken. On December 24th and 25th they captured Wake Island and occupied Hong Kong. On January 2, 1942, Manila fell, and on February 10th Singapore, Britain’s great naval base in the East, was taken. On February 27th the battle of the Java Sea resulted in a disastrous naval defeat to the United Nations. By the 9th of March Japanese forces had established control over the Netherlands East Indies; Rangoon and Burma were occupied; Bataan and Corregidor were under attack. Although the results of the attack on Pearl Harbor were not fully disclosed until much later, it was known that the damage was extensive, and that the Japanese by their successes had gained a naval superiority over our forces in the Pacific which might enable them to seize Pearl Harbor, our largest naval base and the last stronghold of defense lying between Japan and the west coast. That reasonably prudent men charged with the responsibility of our national defense had ample ground for concluding that they must face the danger of invasion, take measures against it, and in making the choice of measures consider our internal situation, cannot be doubted. The challenged orders were defense measures for the avowed purpose of safeguarding the military area in question, at a time of threatened air raids and invasion HIRABAYASHI v. UNITED STATES. 95 81 Opinion of the Court. by the Japanese forces, from the danger of sabotage and espionage. As the curfew was made applicable to citizens residing in the area only if they were of Japanese ancestry, our inquiry must be whether in the light of all the facts and circumstances there was any substantial basis for the conclusion, in which Congress and the military commander united, that the curfew as applied was a protective measure necessary to meet the threat of sabotage and espionage which would substantially affect the war effort and which might reasonably be expected to aid a threatened enemy invasion. The alternative which appellant insists must be accepted is for the military authorities to impose the curfew on all citizens within the military area, or on none. In a case of threatened danger requiring prompt action, it is a choice between inflicting obviously needless hardship on the many, or sitting passive and unresisting in the presence of the threat. We think that constitutional government, in time of war, is not so powerless and does not compel so hard a choice if those charged with the responsibility of our national defense have reasonable ground for believing that the threat is real. When the orders were promulgated there was a vast concentration, within Military Areas Nos. 1 and 2, of installations and facilities for the production of military equipment, especially ships and airplanes. Important Army and Navy bases were located in California and Washington. Approximately one-fourth of the total value of the major aircraft contracts then let by Government procurement officers were to be performed in the State of California. California ranked second, and Washington fifth, of all the states of the Union with respect to the value of shipbuilding contracts to be performed.1 1 State Distribution of War Supply and Facility Contracts—June 1940 through December 1941 (issued by Office of Production Management, Bureau of Research and Statistics, January 18, 1942) ; Ibid.— Cumulative through February 1943 (issued by War Production Board, Statistics Division, April 3,1943). 552826—44-11 96 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. In the critical days of March 1942, the danger to our war production by sabotage and espionage in this area seems obvious. The German invasion of the Western European countries had given ample warning to the world of the menace of the “fifth column.” Espionage by persons in sympathy with the Japanese Government had been found to have been particularly effective in the surprise attack on Pearl Harbor.2 At a time of threatened Japanese attack upon this country, the nature of our inhabitants’ attachments to the Japanese enemy was consequently a matter of grave concern. Of the 126,000 persons of Japanese descent in the United States, citizens and non-citizens, approximately 112,000 resided in California, Oregon and Washington at the time of the adoption of the military regulations. Of these approximately two-thirds are citizens because born in the United States. Not only did the great majority of such persons reside within the Pacific Coast states but they were concentrated in or near three of the large cities, Seattle, Portland and Los Angeles, all in Military Area No. I.3 There is support for the view that social, economic and political conditions which have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population.4 In addition, large numbers of children of Japanese par- 2 See “Attack upon Pearl Harbor by Japanese Armed Forces,” Report of the Commission Appointed by the President, dated January 23, 1942, S. Doc. No. 159, 77th Cong., 2d Sess., pp. 12-13. 3 Sixteenth Census of the United States, for 1940, Population, Second Series, Characteristics of the Population (Dept, of Commerce): California, pp. 10, 61; Oregon, pp. 10, 50; Washington, pp. 10, 52. See also H. R. Rep. No. 2124, 77th Cong., 2d Sess., pp. 91-100. 4 Federal legislation has denied to the Japanese citizenship by naturalization (R. S. § 2169; 8 U. S. C. § 703; see Ozawa v. United States, 260 U. S. 178), and the Immigration Act of 1924 excluded them from HIRABAYASHI v. UNITED STATES. 97 81 Opinion of the Court. entage are sent to Japanese language schools outside the regular hours of public schools in the locality. Some of these schools are generally believed to be sources of Japanese nationalistic propaganda, cultivating allegiance to Japan.* 6 Considerable numbers, estimated to be approximately 10,000, of American-born children of Japanese parentage have been sent to Japan for all or a part of their education.6 Congress and the Executive, including the military commander, could have attributed special significance, in its bearing on the loyalties of persons of Japanese descent, to the maintenance by Japan of its system of dual citizenship. Children born in the United States of Japanese alien parents, and especially those children born before December 1, 1924, are under many circumstances deemed, by Japanese law, to be citizens of Japan.7 No admission into the United States. 43 Stat. 161, 8 U. S. C. § 213. State legislation has denied to alien Japanese the privilege of owning land. 1 California General Laws (Deering, 1931), Act 261; 5 Oregon Comp. Laws Ann. (1940), § 61-102; 11 Washington Rev. Stat. Ann. (Remington, 1933), §§ 10581-10582. It has also sought to prohibit intermarriage of persons of Japanese race with Caucasians. Montana Rev. Codes (1935), § 5702. Persons of Japanese descent have often been unable to secure professional or skilled employment except in association with others of that descent, and sufficient employment opportunities of this character have not been available. Mears, Resident Orientals on the American Pacific Coast (1927), pp. 188, 198-209, 402-03; H. R. Rep. No. 2124, 77th Cong., 2d Sess., pp. 101-38. 8 Hearings before the Select Committee Investigating National Defense Migration, House of Representatives, 77th Cong., 2d Sess., pp. 11702, 11393-94, 11348. 6 H. R. Rep. No. 1911,77th Cong., 2d Sess., p. 16. 7 Nationality Law of Japan, Article 1 and Article 20, § 3, and Regulations (Ordinance No. 26) of November 17, 1924,—all printed in Flournoy and Hudson, Nationality Laws (1929), pp. 382, 384-87. See also Foreign Relations of the United States, 1924, vol. 2, pp. 411-13. 98 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. official census of those whom Japan regards as having thus retained Japanese citizenship is available, but there is ground for the belief that the number is large.8 9 The large number of resident alien Japanese, approximately one-third of all Japanese inhabitants of the country, are of mature years and occupy positions of influence in Japanese communities. The association of influential Japanese residents with Japanese Consulates has been deemed a ready means for the dissemination of propaganda and for the maintenance of the influence of the Japanese Government with the Japanese population in this country.® As a result of all these conditions affecting the life of the Japanese, both aliens and citizens, in the Pacific Coast area, there has been relatively little social intercourse between them and the white population. The restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of Japanese extraction residing in the United States, have been sources of irritation and may well have tended to increase their isolation, and in many instances their attachments to Japan and its institutions. Viewing these data in all their aspects, Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions. 8 Statistics released in 1927 by the Consul General of Japan at San Francisco asserted that over 51,000 of the approximately 63,000 American-born persons of Japanese parentage then in the western part of the United States held Japanese citizenship. Mears, Resident Orientals on the American Pacific Coast, pp. 107-08, 429. A census conducted under the auspices of the Japanese government in 1930 asserted that approximately 47% of American-born persons of Japanese parentage in California held dual citizenship. Strong, The Second-Generation Japanese Problem (1934), p. 142. 9 H. R. Rep. No. 1911,77th Cong., 2d Sess., p. 17. HIRABAYASHI v. UNITED STATES. 99 81 Opinion of the Court. These are only some of the many considerations which those charged with the responsibility for the national defense could take into account in determining the nature and extent of the danger of espionage and sabotage, in the event of invasion or air raid attack. The extent of that danger could be definitely known only after the event and after it was too late to meet it. Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. Appellant does not deny that, given the danger, a curfew was an appropriate measure against sabotage. It is an obvious protection against the perpetration of sabotage most readily committed during the hours of darkness. If it was an appropriate exercise of the war power its validity is not impaired because it has restricted the citizen’s liberty. Like every military control of the population of a dangerous zone in war time, it necessarily involves some infringement of individual liberty, just as does the police establishment of fire lines during a fire, or the confinement of people to their houses during an air raid alarm—neither of which could be thought to be an infringement of constitutional right. Like them, the validity of the restraints of the curfew order depends on all the conditions which obtain at the time the curfew is imposed and which support the order imposing it. 100 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. But appellant insists that the exercise of the power is inappropriate and unconstitutional because it discriminates against citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. Detroit Bank v. United States, 317 U. S. 329, 337-38, and cases cited. Congress may hit at a particular danger where it is seen, without providing for others which are not so evident or so urgent. Keokee Coke Co. v. Taylor, 234 U. S. 224,227. Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection. Yick Wo v. Hopkins, 118 U. S. 356; Yu Cong Eng v. Trinidad, 271 U. S. 500; Hill v. Texas, 316 U. S. 400. We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. Because racial discriminations are in most circumstances irrelevant and therefore prohibited, it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others. “We must never forget, that it is a constitution we are expounding,” “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human HIRABAYASHI v. UNITED STATES. 101 81 Opinion of the Court. affairs.” McCulloch v. Maryland, 4 Wheat. 316, 407,415. The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant. Cf. Clarke v. Deckebach, 274 U. S. 392, and cases cited. Here the aim of Congress and the Executive was the protection against sabotage of war materials and utilities in areas thought to be in danger of Japanase invasion and air attack. We have stated in detail facts and circumstances with respect to the American citizens of Japanese ancestry residing on the Pacific Coast which support the judgment of the war-waging branches of the Government that some restrictivo measure was urgent. We cannot say that these facts and circumstances, considered in the particular war setting, could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States. The fact alone that attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular associations with Japan. Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew. We cannot close our eyes to the fact, demonstrated by experience, that in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry. Nor can we deny that Congress, and the military authorities acting with its 102 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. authorization, have constitutional power to appraise the danger in the light of facts of public notoriety. We need not now attempt to define the ultimate boundaries of the war power. We decide only the issue as we have defined it—we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power. In this case it is enough that circumstances within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decision which they made. Whether we would have made it is irrelevant. What we have said also disposes of the contention that the curfew order involved an unlawful delegation by Congress of its legislative power. The mandate of the Constitution that all legislative power granted “shall be vested in Congress” has never been thought, even in the administration of civil affairs, to preclude Congress from resorting to the aid of executive or administrative officers in determining by findings whether the facts are such as to call for the application of previously adopted legislative standards or definitions of Congressional policy. The purpose of Executive Order No. 9066, and the standard which the President approved for the orders authorized to be promulgated by the military commander— as disclosed by the preamble of the Executive Order—was the protection of our war resources against espionage and sabotage. Public Proclamations Nos. 1 and 2 by General DeWitt, contain findings that the military areas created and the measures to be prescribed for them were required to establish safeguards against espionage and sabotage. Both the Executive Order and the Proclamations were before Congress when the Act of March 21, 1942, was under consideration. To the extent that the Executive Order authorized orders to be promulgated by the military commander to accomplish the declared purpose of the HIRABAYASHI v. UNITED STATES. 103 81 Opinion of the Court. Order, and to the extent that the findings in the Proclamations establish that such was their purpose, both have been approved by Congress. It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order—the necessity of protecting military resources in the designated areas against espionage and sabotage. And by the Act, Congress gave its approval to that standard. We have no need to consider now the validity of action if taken by the military commander without conforming to this standard approved by Congress, or the validity of orders made without the support of findings showing that they do so conform. Here the findings of danger from espionage and sabotage, and of the necessity of the curfew order to protect against them, have been duly made. General DeWitt’s Public Proclamation No. 3, which established the curfew, merely prescribed regulations of the type and in the manner which Public Proclamations Nos. 1 and 2 had announced would be prescribed at a future date, and was thus founded on the findings of Proclamations Nos. 1 and 2. The military commander’s appraisal of facts in the light of the authorized standard, and the inferences which he drew from those facts, involved the exercise of his informed judgment. But as we have seen, those facts, and the inferences which could be rationally drawn from them, support the judgment of the military commander, that 104 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. the danger of espionage and sabotage to our military resources was imminent, and that the curfew order was an appropriate measure to meet it. Where, as in the present case, the standard set up for the guidance of the military commander, and the action taken and the reasons for it, are in fact recorded in the military orders, so that Congress, the courts and the public are assured that the orders, in the judgment of the commander, conform to the standards approved by the President and Congress, there is no failure in the performance of the legislative function. Opp Cotton Mills v. Administrator, 312 U. S. 126, 142-46, and cases cited. The essentials of that function are the determination by Congress of the legislative policy and its approval of a rule of conduct to carry that policy into execution. The very necessities which attend the conduct of military operations in time of war in this instance as in many others preclude Congress from holding committee meetings to determine whether there is danger, before it enacts legislation to combat the danger. The Constitution as a continuously operating charter of government does not demand the impossible or the impractical. The essentials of the legislative function are preserved when Congress authorizes a statutory command to become operative, upon ascertainment of a basic conclusion of fact by a designated representative of the Government. Cf. The Aurora, 7 Cranch 382; United States v. Chemical Foundation, 272 U. S. 1, 12. The present statute, which authorized curfew orders to be made pursuant to Executive Order No. 9066 for the protection of war resources from espionage and sabotage, satisfies those requirements. Under the Executive Order the basic facts, determined by the military commander in the light of knowledge then available, were whether that danger existed and whether a curfew order was an appropriate means of minimizing the danger. Since his findings to HIRABAYASHI v. UNITED STATES. 105 81 Douglas, J., concurring. that effect were, as we have said, not without adequate support, the legislative function was performed and the sanction of the statute attached to violations of the curfew order. It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order. The conviction under the second count is without constitutional infirmity. Hence we have no occasion to review the conviction on the first count since, as already stated, the sentences on the two counts are to run concurrently and conviction on the second is sufficient to sustain the sentence. For this reason also it is unnecessary to consider the Government’s argument that compliance with the order to report at the Civilian Control Station did not necessarily entail confinement in a relocation center. Affirmed. Me. Justice Douglas, concurring: While I concur in the result and agree substantially with the opinion of the Court, I wish to add a few words to indicate what for me is the narrow ground of decision. After the disastrous bombing of Pearl Harbor the military had a grave problem on its hands. The threat of Japanese invasion of the west coast was not fanciful but real. The presence of many thousands of aliens and citizens of Japanese ancestry in or near to the key points along that coast line aroused special concern in those charged with the defense of the country. They believed that not only among aliens but also among citizens of Japanese ancestry there were those who would give aid and comfort to the Japanese invader and act as a fifth column before and during an invasion.1 If the military 1 Judge Fee stated in United States v. Yasui, 48 F. Supp. 40, 44-45, the companion case to the present one, “The areas and zones outlined in the proclamations became a theatre of operations, subjected in 106 OCTOBER TERM, 1942. Douglas, J., concurring. 320U.S. were right in their belief that among citizens of Japanese ancestry there was an actual or incipient fifth column, we were indeed faced with the imminent threat of a dire emergency. We must credit the military with as much good faith in that belief as we would any other public official acting pursuant to his duties. We cannot possibly know all the facts which lay behind that decision. Some of them may have been as intangible and as imponderable as the factors which influence personal or business decisions in daily life. The point is that we cannot sit in judgment on the military requirements of that hour. Where the orders under the present Act have some relation to “protection against espionage and against sabotage,” our task is at an end. Much of the argument assumes that as a matter of policy it might have been wiser for the military to have dealt with these people on an individual basis and through the process of investigation and hearings separated those who were loyal from those who were not. But the wisdom or expediency of the decision which was made is not for us to review. Nor are we warranted where national survival is at stake in insisting that those orders should not have been applied to anyone without some evidence of his disloyalty. The orders as applied to the petitioner are not to be tested by the substantial evidence rule. Peacetime procedures do not necessarily fit wartime needs. It is said that if citizens of Japanese ancestry were generally disloyal, treatment on a group basis might be justified. But there is no difference in power when the num- localities to attack and all threatened during this period with a full scale invasion. The danger at the time this prosecution was instituted was imminent and immediate. The difficulty of controlling members of an alien race, many of whom, although citizens, were disloyal with opportunities of sabotage and espionage, with invasion imminent, presented a problem requiring for solution ability and devotion of the highest order.” HIRABAYASHI v. UNITED STATES. 107 81 Douglas, J., concurring. ber of those who are finally shown to be disloyal or suspect is reduced to a small per cent. The sorting process might indeed be as time-consuming whether those who were disloyal or suspect constituted nine or ninety-nine per cent. And the pinch of the order on the loyal citizens would be as great in any case. But where the peril is great and the time is short, temporary treatment on a group basis may be the only practicable expedient whatever the ultimate percentage of those who are detained for cause. Nor should the military be required to wait until espionage or sabotage becomes effective before it moves. It is true that we might now say that there was ample time to handle the problem on the individual rather than the group basis. But military decisions must be made without the benefit of hindsight. The orders must be judged as of the date when the decision to issue them was made. To say that the military in such cases should take the time to weed out the loyal from the others would be to assume that the nation could afford to have them take the time to do it. But as the opinion of the Court makes clear, speed and dispatch may be of the essence. Certainly we cannot say that those charged with the defense of the nation should have procrastinated until investigations and hearings were completed. At that time further delay might indeed have seemed to be wholly incompatible with military responsibilities. Since we cannot override the military judgment which lay behind these orders, it seems to me necessary to concede that the army had the power to deal temporarily with these people on a group basis. Petitioner therefore was not justified in disobeying the orders. But I think it important to emphasize that we are dealing here with a problem of loyalty not assimilation. Loyalty is a matter of mind and of heart not of race. That indeed is the history of America. Moreover, guilt is per- 108 OCTOBER TERM, 1942. Douglas, J., concurring. 320U.S. sonal under our constitutional system. Detention for reasonable cause is one thing. Detention on account of ancestry is another. In this case the petitioner tendered by a plea in abatement the question of his loyalty to the United States. I think that plea was properly stricken; military measures of defense might be paralyzed if it were necessary to try out that issue preliminarily. But a denial of that opportunity in this case does not necessarily mean that petitioner could not have had a hearing on that issue in some appropriate proceeding. Obedience to the military orders is one thing. Whether an individual member of a group must be afforded at some stage an opportunity to show that, being loyal, he should be reclassified is a wholly different question. There are other instances in the law where one must obey an order before he can attack as erroneous the classification in which he has been placed. Thus it is commonly held that one who is a conscientious objector has no privilege to defy the Selective Service Act and to refuse or fail to be inducted. He must submit to the law. But that line of authority holds that after induction he may obtain through habeas corpus a hearing on the legality of his classification by the draft board.2 * * * * * * * 10 Whether in the present situation that remedy would be available is one 2 See United States v. Powell, 38 F. Supp. 183; Application of Green- berg, 39 F. Supp. 13; United States v. Baird, 39 F. Supp. 392; Micheli v. Paullin, 45 F. Supp. 687; United States v. Embrey, 46 F. Supp. 916; In re Rogers, 47 F. Supp. 265; Ex parte Stewart, 47 F. Supp. 410; United States v. Smith, 48 F. Supp. 842; Ex parte Robert, 49 F. Supp. 131; United States v. Grieme, 128 F. 2d 811; Fletcher v. United States, 129 F. 2d 262; Drumheller v. Berks County Local Board No. 1, 130 F. 2d 610, 612. For cases arising under the Selec- tive Draft Act of 1917, see United States v. Kinkead, 250 F. 692; Ex parte McDonald, 253 F. 99; Ex parte Cohen, 254 F. 711; Arbitman v. Woodside, 258 F. 441; Ex parte Thieret, 268 F. 472, 476. And see 10 Geo. Wash. L. Rev. 827. HIRABAYASHI v. UNITED STATES. 109 81 Murphy, J., concurring. of the large and important issues reserved by the present decision. It has been suggested that an administrative procedure has been established to relieve against unwarranted applications of these orders. Whether in that event the administrative remedy would be the only one available or would have to be first exhausted is also reserved. The scope of any relief which might be afforded—whether the liberties of an applicant could be restored only outside the areas in question—is likewise a distinct issue. But if it were plain that no machinery was available whereby the individual could demonstrate his loyalty as a citizen in order to be reclassified, questions of a more serious character would be presented. The United States, however, takes no such position. We need go no further here than to deny the individual the right to defy the law. It is sufficient to say that he cannot test in that way the validity of the orders as applied to him. Mr. Justice Murphy, concurring: It is not to be doubted that the action taken by the military commander in pursuance of the authority conferred upon him was taken in complete good faith and in the firm conviction that it was required by considerations of public safety and military security. Neither is it doubted that the Congress and the Executive working together may generally employ such measures as are necessary and appropriate to provide for the common defense and to wage war “with all the force necessary to make it effective.” United States v. Macintosh, 283 U. S. 605, 622. This includes authority to exercise measures of control over persons and property which would not in all cases be permissible in normal times.1 1 Schenck v. United States, 249 U. S. 47; Debs v. United States, 249 U. S. 211; United States v. Bethlehem Steel Corp., 315 U. S. 289, 305; Northern Pacific Ry. Co. v. North Dakota, 250 U. S. 135; Da- 110 OCTOBER TERM, 1942. Murphy, J., concurring. 320U.S. It does not follow, however, that the broad guaranties of the Bill of Rights and other provisions of the Constitution protecting essential liberties are suspended by the mere existence of a state of war. It has been frequently stated and recognized by this Court that the war power, like the other great substantive powers of government, is subject to the limitations of the Constitution. See Ex parte Milligan, 4 Wall. 2; Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 156; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 426. We give great deference to the judgment of the Congress and of the military authorities as to what is necessary in the effective prosecution of the war, but we can never forget that there are constitutional boundaries which it is our duty to uphold. It would not be supposed, for instance, that public elections could be suspended or that the prerogatives of the courts could be set aside, or that persons not charged with offenses against the law of war (see Ex parte Quirin, 317 U. S. 1) could be deprived of due process of law and the benefits of trial by jury, in the absence of a valid declaration of martial law. Cf. Ex parte Milligan, supra. Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging war. We cannot close our eyes to the fact that for centuries the Old World has been torn by racial and religious conflicts and has suffered the worst kind of anguish because of inequality of treatment for different groups. There was one law for one and a different law for another. Nothing is written more firmly into our law than the compact of the Plymouth voyagers to have just koto, Central Tel. Co. v. South Dakota, 250 U. S. 163; Highland v. Russell Car Co., 279 U. S. 253; Selective Draft Law Cases, 245 U. S. 366. HIRABAYASHI v. UNITED STATES. Ill 81 Murphy, J., concurring. and equal laws. To say that any group cannot be assimilated is to admit that the great American experiment has failed, that our way of life has failed when confronted with the normal attachment of certain groups to the lands of their forefathers. As a nation we embrace many groups, some of them among the oldest settlements in our midst, which have isolated themselves for religious and cultural reasons. Today is the first time, so far as I am aware, that we have sustained a substantial restriction of the personal liberty of citizens of the United States based upon the accident of race or ancestry. Under the curfew order here challenged no less than 70,000 American citizens have been placed under a special ban and deprived of their liberty because of their particular racial inheritance. In this sense it bears a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe. The result is the creation in this country of two classes of citizens for the purposes of a critical and perilous hour—to sanction discrimination between groups of United States citizens on the basis of ancestry. In my opinion this goes to the very brink of constitutional power. Except under conditions of great emergency a regulation of this kind applicable solely to citizens of a particular racial extraction would not be regarded as in accord with the requirement of due process of law contained in the Fifth Amendment. We have consistently held that attempts to apply regulatory action to particular groups solely on the basis of racial distinction or classification is not in accordance with due process of law as prescribed by the Fifth and Fourteenth Amendments. Of. Yick Wo v. Hopkins, 118 U. S. 356, 369; Yu Cong Eng v. Trinidad, 271 U. S. 500, 524-28. See also Boyd v. Frankfort, 117 Ky. 199, 77 S. W. 669; Opinion of the Justices, 207 Mass. 552826—44--12 112 OCTOBER TERM, 1942. Murphy, J., concurring. 320U.S. 601, 94 N. E. 558. It is true that the Fifth Amendment, unlike the Fourteenth, contains no guarantee of equal protection of the laws. Cf. Currin v. Wallace, 306 U. S. 1, 14. It is also true that even the guaranty of equal protection of the laws allows a measure of reasonable classification. It by no means follows, however, that there may not be discrimination of such an injurious character in the application of laws as to amount to a denial of due process of law as that term is used in the Fifth Amendment.2 I think that point is dangerously approached when we have one law for the majority of our citizens and another for those of a particular racial heritage. In view, however, of the critical military situation which prevailed on the Pacific Coast area in the spring of 1942, and the urgent necessity of taking prompt and effective action to secure defense installations and military operations against the risk of sabotage and espionage, the military authorities should not be required to conform to standards of regulatory action appropriate to normal times. Because of the damage wrought by the Japanese at Pearl Harbor and the availability of new weapons and new techniques with greater capacity for speed and deception in offensive operations, the immediate possibility of an attempt at invasion somewhere along the Pacific Coast had to be reckoned with. However desirable such a procedure might have been, the military authorities could have reasonably concluded at 2 For instance, if persons of an accused’s race were systematically excluded from a jury in a federal court, any conviction undoubtedly would be considered a violation of the requirement of due process of law, even though the ground commonly stated for setting aside convictions so obtained in state courts is denial of equal protection of the laws. Cf. Glasser v. United States, 315 U. S. 60, with Smith v. Texas, 311 U. S. 128. HIRABAYASHI v. UNITED STATES. 113 81 Murphy, J., concurring. the time that determinations as to the loyalty and dependability of individual members of the large and widely scattered group of persons of Japanese extraction on the West Coast could not be made without delay that might have had tragic consequences. Modem war does not always wait for the observance of procedural requirements that are considered essential and appropriate under normal conditions. Accordingly I think that the military arm, confronted with the peril of imminent enemy attack and acting under the authority conferred by the Congress, made an allowable judgment at the time the curfew restriction was imposed. Whether such a restriction is valid today is another matter. In voting for affirmance of the judgment I do not wish to be understood as intimating that the military authorities in time of war are subject to no restraints whatsoever, or that they are free to impose any restrictions they may choose on the rights and liberties of individual citizens or groups of citizens in those places which may be designated as “military areas.” While this Court sits, it has the inescapable duty of seeing that the mandates of the Constitution are obeyed. That duty exists in time of war as well as in time of peace, and in its performance we must not forget that few indeed have been the invasions upon essential liberties which have not been accompanied by pleas of urgent necessity advanced in good faith by responsible men. Cf. Mr. Justice Brandeis concurring in Whitney v. California, 274 U. S. 357, 372. Nor do I mean to intimate that citizens of a particular racial group whose freedom may be curtailed within an area threatened with attack should be generally prevented from leaving the area and going at large in other areas that are not in danger of attack and where special precautions are not needed. Their status as citizens, though subject to requirements of national security and 114 OCTOBER TERM, 1942. Rutledge, J., concurring. 320U.S. military necessity, should at all times be accorded the fullest consideration and respect. When the danger is past, the restrictions imposed on them should be promptly removed and their freedom of action fully restored. Mr. Justice Rutledge, concurring: I concur in the Court’s opinion, except for the suggestion, if that is intended (as to which I make no assertion), that the courts have no power to review any action a military officer may “in his discretion” find it necessary to take with respect to civilian citizens in military areas or zones, once it is found that an emergency has created the conditions requiring or justifying the creation of the area or zone and the institution of some degree of military control short of suspending habeas corpus. Given the generating conditions for exercise of military authority and recognizing the wide latitude for particular applications that ordinarily creates, I do not think it is necessary in this case to decide that there is no action a person in the position of General DeWitt here may take, and which he may regard as necessary to the region’s or the country’s safety, which will call judicial power into play. The officer of course must have wide discretion and room for its operation. But it does not follow there may not be bounds beyond which he cannot go and, if he oversteps them, that the courts may not have power to protect the civilian citizen. But in this case that question need not be faced and I merely add my reservation without indication of opinion concerning it. YASUI v. UNITED STATES. 115 Counsel for Parties. YASUI v. UNITED STATES. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 871. Argued May 11,1943.—Decided June 21,1943. The conviction of a person of Japanese ancestry for violation of a curfew order is sustained upon the authority of Hirabayashi v. United States, ante, p. 81; although, for purposes stated in the opinion, the cause is remanded to the District Court. P. 117. 48 F. Supp. 40, affirmed. Response to questions certified by the Circuit Court of Appeals upon an appeal to that court from a conviction in the District Court for violation of a curfew order. This Court directed that the entire record be certified so that the case could be determined as if brought here by appeal. Messrs. A. L. Wirin and E. F. Bernard (Mr. Ralph E. Moody was with the latter on the brief) for Yasui. Solicitor General Fahy, with whom Messrs. Edward J. Ennis, Arnold Raum, John L. Burling, and Leo Gitlin were on the brief, for the United States. Briefs of amici curiae were filed by Messrs. Arthur Garfield Hays, Osmond K. Fraenkel and A. L. Wirin, on behalf of the American Civil Liberties Union; by Mr. A. L. Wirin on behalf of the Japanese American Citizens League; and by Mr. Jackson H. Ralston on behalf of the Northern California Branch of the American Civil Liberties Union,—in support of Yasui; and by Messrs. Robert W. Kenny, Attorney General of California, I. H. Van Winkle, Attorney General of Oregon, and Smith Troy, Attorney General of the State of Washington, and Fred E. Lewis, Chief Assistant and Acting Attorney General of the State of Washington, on behalf of those States,—urging affirmance. 116 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. Mr. Chief Justice Stone delivered the opinion of the Court. This is a companion case to Hirabayashi v. United States, ante, p. 81. The case comes here on certificate of the Court of Appeals for the Ninth Circuit, certifying to us questions of law upon which it desires instructions for the decision of the case. § 239 of the Judicial Code as amended, 28 U. S. C. § 346. Acting under that section we ordered the entire record to be certified to this Court so that we might proceed to a decision, as if the case had been brought here by appeal. Appellant, an American-born person of Japanese ancestry, was convicted in the district court of an offense defined by the Act of March 21,1942. 56 Stat. 173. The indictment charged him with violation, on March 28, 1942, of a curfew order made applicable to Portland, Oregon, by Public Proclamation No. 3, issued by Lt. General J. L. DeWitt on March 24, 1942. 7 Federal Register 2543. The validity of the curfew was considered in the Hirabayashi case, and this case presents the same issues as the conviction on Count 2 of the indictment in that case. From the evidence it appeared that appellant was born in Oregon in 1916 of alien parents; that when he was eight years old he spent a summer in Japan; that he attended the public schools in Oregon, and also, for about three years, a Japanese language school; that he later attended the University of Oregon, from which he received A. B. and LL. B. degrees; that he was a member of the bar of Oregon, and a second lieutenant in the Army of the United States, Infantry Reserve; that he had been employed by the Japanese Consulate in Chicago, but had resigned on December 8, 1941, and immediately offered his services to the military authorities; that he had discussed with an agent of the Federal Bureau of Investiga- YASUI v. UNITED STATES. 117 115 Opinion of the Court. tion the advisability of testing the constitutionality of the curfew; and that when he violated the curfew order he requested that he be arrested so that he could test its constitutionality. The district court ruled that the Act of March 21,1942, was unconstitutional as applied to American citizens, but held that appellant, by reason of his course of conduct, must be deemed to have renounced his American citizenship. 48 F. Supp. 40. The Government does not undertake to support the conviction on that ground, since no such issue was tendered by the Government, although appellant testified at the trial that he had not renounced his citizenship. Since we hold, as in the Hirabayashi case, that the curfew order was valid as applied to citizens, it follows that appellant’s citizenship was not relevant to the issue tendered by the Government and the conviction must be sustained for the reasons stated in the Hirabayashi case. But as the sentence of one year’s imprisonment—the maximum permitted by the statute—was imposed after the finding that appellant was not a citizen, and as the Government states that it has not and does not now controvert his citizenship, the case is an appropriate one for resentence in the light of these circumstances. See Husty v. United States, 282 U. S. 694, 703. The conviction will be sustained but the judgment will be vacated and the cause remanded to the district court for resentence of appellant, and to afford that court opportunity to strike its findings as to appellant’s loss of United States citizenship. So ordered. 118 OCTOBER TERM, 1942. Syllabus. 320 U.S. SCHNEIDERMAN v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 2. Argued November 9, 1942. Reargued March 12, 1943.— Decided June 21, 1943. 1. Assuming that, in the absence of fraud, a certificate of citizenship can be set aside under § 15 of the Naturalization Act of 1906 as “illegally procured” because the finding by the naturalization court that the applicant was attached to the principles of the Constitution was erroneous, the burden is upon the Government to prove the error by clear, unequivocal and convincing evidence; a mere preponderance of evidence which leaves the issue in doubt will not suffice. P. 124. 2. In construing the Acts of Congress governing naturalization and denaturalization, general expressions should not be so construed as to circumscribe liberty of political thought. P. 132. 3. The Government sued in 1939 to cancel a certificate of citizenship, granted in 1927, charging that it had been “illegally procured,” in that the defendant at the time of the naturalization and for five years preceding was not attached to the principles of the Constitution, but was in fact a member of, and affiliated with, and believed in and supported the principles of, certain communistic, organizations in the United States, which were opposed to the principles of the Constitution and advocated the overthrow of the Government of the United States by force and violence. Held: (1) That the evidence, which is reviewed in the opinion, fails to show with the requisite degree of certainty that during the period in question the defendant was not attached to the principles of the Constitution. P. 135. (2) Attachment to the principles of the Constitution is not necessarily incompatible with a desire to have it amended. P. 137. (3) Utterances of certain leaders of the party organizations in question, advocating force and violence, are not imputable to the defendant. P. 146. (4) Under the conflicting evidence in this case, the Court can not say that the Government proved with the requisite certainty that the attitude of the Communist party in the United States in 1927 towards force and violence was in the category of agitation and exhortation calling for present violent action which creates a clear SCHNEIDERMAN v. UNITED STATES. 119 118 Opinion of the Court. and present danger of public disorder or other substantive evil, rather than a mere doctrinal justification or prediction of the use of force under hypothetical conditions at some indefinite future time, not calculated or intended to be presently acted upon, but leaving opportunity for general discussion and calm reason. P. 157. 4. The Court does not consider findings made by the District Court in this case upon issues outside of the scope of the complaint; in a denaturalization case, as in a criminal case, the Government is limited to the matters charged in the complaint. P. 159. 119 F. 2d 500, reversed. Certiorari, 314 U. S. 597, to review the affirmance of a judgment (33 F. Supp. 510) which canceled a certificate of citizenship. Mr. Wendell L. Willkie, with whom Mrs. Carol King and Mr. Carl M. Owen were on the briefs, for petitioner. Solicitor General Fahy, with whom Assistant Attorney General Berge, and Messrs. Oscar A. Provost, John Ford Baecher and Richard S. Salant were on the briefs, for the United States. Pearl M. Hart filed a brief on behalf of the American Committee for Protection of Foreign Born, as amicus curiae, urging reversal. Mr. Justice Murphy delivered the opinion of the Court. We brought this case here on certiorari, 314 U. S. 597, because of its importance and its possible relation to freedom of thought. The question is whether the naturalization of petitioner, an admitted member of the Communist Party of the United States, was properly set aside by the courts below some twelve years after it was granted. We agree with our brethren of the minority that our relations with Russia, as well as our views regarding its government and the merits of Communism are immaterial to a decision of this case. Our concern is with what Congress 120 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. meant by certain statutes and whether the Government has proved its case under them. While it is our high duty to carry out the will of Congress, in the performance of this duty we should have a jealous regard for the rights of petitioner. We should let our judgment be guided so far as the law permits by the spirit of freedom and tolerance in which our nation was founded, and by a desire to secure the blessings of liberty in thought and action to all those upon whom the right of American citizenship has been conferred by statute, as well as to the native born. And we certainly should presume that Congress was motivated by these lofty principles. We are directly concerned only with the rights of this petitioner and the circumstances surrounding his naturalization, but we should not overlook the fact that we are a heterogeneous people. In some of our larger cities a majority of the school children are the offspring of parents only one generation, if that far, removed from the steerage of the immigrant ship, children of those who sought refuge in the new world from the cruelty and oppression of the old, where men have been burned at the stake, imprisoned, and driven into exile in countless numbers for their political and religious beliefs. Here they have hoped to achieve a political status as citizens in a free world in which men are privileged to think and act and speak according to their convictions, without fear of punishment or further exile so long as they keep the peace and obey the law. This proceeding was begun on June 30, 1939, under the provisions of § 15 of the Act of June 29, 1906, 34 Stat. 596, to cancel petitioner’s certificate of citizenship granted in 1927. This section gives the United States the right and the duty to set aside and cancel certificates of citizenship on the ground of “fraud” or on the ground that SCHNEIDERMAN v. UNITED STATES. 121 118 Opinion of the Court. they were “illegally procured.”1 The complaint charged that the certificate had been illegally procured in that petitioner was not, at the time of his naturalization, and during the five years preceding his naturalization “had not behaved as, a person attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States,1 2 but in truth and in fact during all of said times, respondent [petitioner] was a member of and affiliated with and believed in and supported the principles of certain or 1 At the time this proceeding was started this section read in part as follows: “It shall be the duty of the United States district attorneys for the respective districts, or the Commissioner of Immigration and Naturalization or Deputy Commissioner of Immigration and Naturalization, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured ...” 8 U. S. C. § 405. This provision is continued in substance by § 338 of the Nationality Act of 1940, 54 Stat. 1137, 1158, 8 U. S. C. § 738. 2 Section 4 of the Act of 1906 provided: “Fourth. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the State or Territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, and the name, place of residence, and occupation of each witness shall be set forth in the record.” 34 Stat. 598; 8 U. S. C. § 382. 122 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. ganizations then known as the Workers (Communist) Party of America and the Young Workers (Communist) League of America, whose principles were opposed to the principles of the Constitution of the United States and advised, advocated and taught the overthrow of the Government, Constitution and laws of the United States by force and violence.” The complaint also charged fraudulent procurement in that petitioner concealed his Communist affiliation from the naturalization court. The Government proceeds here not upon the charge of fraud but upon the charge of illegal procurement. This is not a naturalization proceeding in which the Government is being asked to confer the privilege of citizenship upon an applicant. Instead the Government seeks to turn the clock back twelve years after full citizenship was conferred upon petitioner by a judicial decree, and to deprive him of the priceless benefits that derive from that status. In its consequences it is more serious than a taking of one’s property, or the imposition of a fine or other penalty. For it is safe to assert that nowhere in the world today is the right of citizenship of greater worth to an individual than it is in this country. It would be difficult to exaggerate its value and importance. By many it is regarded as the highest hope of civilized men. This does not mean that once granted to an alien, citizenship cannot be revoked or cancelled on legal grounds under appropriate proof. But such a right once conferred should not be taken away without the clearest sort of justification and proof. So, whatever may be the rule in a naturalization proceeding (see United States v. Manzi, 276 U. S. 463, 467), in an action instituted under § 15 for the purpose of depriving one of the precious right of citizenship previously conferred we believe the facts and the law should be construed as far as is reasonably possible in favor of the citizen. Especially is this so when the attack is made long after the time when the certificate of SCHNEIDERMAN v. UNITED STATES. 123 118 Opinion of the Court. citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness. It is not denied that the burden of proof is on the Government in this case. For reasons presently to be stated this burden must be met with evidence of a clear and convincing character that when citizenship was conferred upon petitioner in 1927 it was not done in accordance with strict legal requirements. We are dealing here with a court decree entered after an opportunity to be heard. At the time petitioner secured his certificate of citizenship from the federal district court for the Southern District of California notice of the filing of the naturalization petition was required to be given ninety days before the petition was acted on (§ 6 of the Act of 1906), the hearing on the petition was to take place in open court (§9), and the United States had the right to appear, to cross-examine petitioner and his witnesses, to introduce evidence, and to oppose the petition (§11). In acting upon the petition the district court exercised the judicial power conferred by Article III of the Constitution, and the Government had the right to appeal from the decision granting naturalization. Tutun n. United States, 270 U. S. 568. The record before us does not reveal the circumstances under which petitioner was naturalized except that it took place in open court. We do not know whether or not the Government exercised its right to appear and to appeal. Whether it did or not, the hard fact remains that we are here re-examining a judgment, and the rights solemnly conferred under it. This is the first case to come before us in which the Government has sought to set aside a decree of naturalization years after it was granted on a charge that the finding of attachment was erroneous. Accordingly for the first time we have had to consider the nature and scope of the Government’s right in a denaturalization proceeding to re-examine a finding and judgment of attachment 124 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. upon a charge of illegal procurement. Because of the view we take of this case we do not reach, and therefore do not consider, two questions which have been raised concerning the scope of that right. The first question is whether, aside from grounds such as lack of jurisdiction or the kind of fraud which traditionally vitiates judgments, cf. United States v. Throckmorton, 98 U. S. 61; Kibbe v. Benson, 17 Wall. 624, Congress can constitutionally attach to the exercise of the judicial power under Article III of the Constitution, authority to re-examine a judgment granting a certificate of citizenship after that judgment has become final by exhaustion of the appellate process or by a failure to invoke it.3 The second question is whether under the Act of 1906 as it was in 1927 the Government, in the absence of a claim of fraud and relying wholly upon a charge of illegal procurement, can secure a de novo re-examination of a naturalization court’s finding and judgment that an applicant for citizenship was attached to the principles of the Constitution. We do not consider these questions. For though we assume, without deciding, that in the absence of fraud a certificate of naturalization can be set aside under § 15 as “illegally procured” because the finding as to attachment would later seem to be erroneous, we are of the 8 Since 1790 Congress has conferred the function of admitting aliens to citizenship exclusively upon the courts. In exercising their authority under this mandate the federal courts are exercising the judicial power of the United States, conferred upon them by Article III of the Constitution. Tutun v. United States, 270 U. S. 568. For this reason it has been suggested that a decree of naturalization, even though the United States does not appear, cannot be compared (as was done in Johannessen v. United States, 225 U. S. 227, 238) to an administrative grant of land or of letters patent for invention, and that the permissible area of re-examination is different in the two situations. SCHNEIDERMAN v. UNITED STATES. 125 118 Opinion of the Court. opinion that this judgment should be reversed. If a finding of attachment can be so reconsidered in a denaturalization suit, our decisions make it plain that the Government needs more than a bare preponderance of the evidence to prevail. The remedy afforded the Government by the denaturalization statute has been said to be a narrower one than that of direct appeal from the granting of a petition. Tutun v. United States, 270 U. S. 568,579; cf. United States v. Ness, 245 U. S. 319,325. Jo-hannessen v. United States states that a certificate of citizenship is “an instrument granting political privileges, and open like other public grants to be revoked if and when it shall be found to have been unlawfully or fraudulently procured. It is in this respect closely analogous to a public grant of land, . . 225 U. S. 227, 238. See also Tutun v. United States, supra. To set aside such a grant the evidence must be “clear, unequivocal, and convincing”—“it cannot be done upon a bare preponderance of evidence which leaves the issue in doubt.” Maxwell Land-Grant Case, 121 U. S. 325, 381; United States v. San Jacinto Tin Co., 125 U. S. 273, 300; cf. United States v. Rovin, 12 F. 2d 942, 944. See Wigmore, Evidence, (3d Ed.) § 2498. This is so because rights once conferred should not be lightly revoked. And more especially is this true when the rights are precious and when they are conferred by solemn adjudication, as is the situation when citizenship is granted. The Government’s evidence in this case does not measure up to this exacting standard. Certain facts are undisputed. Petitioner came to this country from Russia in 1907 or 1908 when he was approximately three. In 1922, at the age of sixteen, he became a charter member of the Young Workers (now Communist) League in Los Angeles and remained a member until 1929 or 1930. In 1924, at the age of eighteen, he filed his declaration of intention to become a citizen. Later in the same year or early in 1925 he became a member of the 126 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. Workers Party, the predecessor of the Communist Party of the United States. That membership has continued to the present. His petition for naturalization was filed on January 18, 1927, and his certificate of citizenship was issued on June 10, 1927, by the United States District Court for the Southern District of California. He had not been arrested or subjected to censure prior to 1927,4 and there is nothing in the record indicating that he was ever connected with any overt illegal or violent action or with any disturbance of any sort. For its case the United States called petitioner, one Humphreys, a former member of the Communist Party, and one Hynes, a Los Angeles police officer formerly in charge of the radical squad, as witnesses, and introduced in evidence a number of documents. Petitioner testified on his own behalf, introduced some documentary evidence, and read into the record transcripts of the testimony of two university professors given in another proceeding. Petitioner testified to the following: As a boy he lived in Los Angeles in poverty-stricken circumstances and joined the Young Workers League to study what the principles of Communism had to say about the conditions of society. He considered his membership and activities in the League and the Party during the five-year period between the ages of sixteen and twenty-one before he was naturalized, as an attempt to investigate and study the causes and reasons behind social and economic conditions. Meanwhile he was working his way through night high school and college. From 1922 to about 1925 he was “educational director” of the League. The duties of this nonsalaried position were to organize classes, open to the public, for the study of Marxist theory, to register students and to send out notices for meetings; petitioner did no 4 The record contains nothing to indicate that the same is not true for the period after 1927. SCHNEIDERMAN v. UNITED STATES. 127 118 Opinion of the Court. teaching. During 1925 and 1926 he was corresponding secretary of the Party in Los Angeles; this was a clerical, not an executive position. In 1928 he became an organizer or official spokesman for the League. His first executive position with the Party came in 1930 when he was made an organizational secretary first in California, then in Connecticut and later in Minnesota where he was the Communist Party candidate for governor in 1932. Since 1934 he has been a member of the Party’s National Committee. At present he is secretary of the Party in California. Petitioner testified further that during all the time he has belonged to the League and the Party he has subscribed to the principles of those organizations. He stated that he “believed in the essential correctness of the Marx theory as applied by the Communist Party of the United States,” that he subscribed “to the philosophy and principles of Socialism as manifested in the writings of Lenin,” and that his understanding and interpretation of the program, principles and practice of the Party since he joined “were and are essentially the same as those enunciated” in the Party’s 1938 Constitution. He denied the charges of the complaint and specifically denied that he or the Party advocated the overthrow of the Government of the United States by force and violence, and that he was not attached to the principles of the Constitution. He considered membership in the Party compatible with the obligations of American citizenship. He stated that he believed in retention of personal property for personal use but advocated social ownership of the means of production and exchange, with compensation to the owners. He believed and hoped that socialization could be achieved here by democratic processes but history showed that the ruling minority has always used force against the majority before surrendering power. By dictatorship of the proletariat petitioner meant that the “majority of the people 552826—44-----13 128 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. shall really direct their own destinies and use the instrument of the state for these truly democratic ends.” He stated that he would bear arms against his native Russia if necessary. Humphreys testified that he had been a member of the Communist Party and understood he was expelled because he refused to take orders from petitioner. He had been taught that present forms of government would have to be abolished “through the dictatorship of the proletariat” which would be established by a “revolutionary process.” He asserted that the program of the Party was the socialization of all property without compensation. With regard to advocacy of force and violence he said: “the Communist Party took the defensive, and put the first users of force upon the capitalistic government; they claimed that the capitalistic government would resist the establishment of the Soviet system, through force and violence, and that the working class would be justified in using force and violence to establish the Soviet system of society.” Hynes testified that he had been a member of the Party for eight months in 1922. He stated that the Communist method of bringing about a change in the form of government is one of force and violence; he based this statement upon: “knowledge I have gained as a member in 1922 and from what further knowledge I have gained from reading various official publications, published and circulated by the Communist Party and from observation and actual contact with the activities of the Communist Party ...” 8 On cross-examination Hynes admitted that he never attempted a philosophic analysis of the literature he read, but only read it to secure evidence, reading and underscoring those portions which, in his opinion, 5 * 5 For a discussion of the adequacy of somewhat similar testimony by Hynes see Ex parte Fierstein, 41 F. 2d 53. SCHNEIDERMAN v. UNITED STATES. 129 118 Opinion of the Court. “had to do with force or violence or overthrowing of this system of government other than by lawful means provided in the Constitution.” He testified that he never saw any behavior on petitioner’s part that brought him into conflict with any law. The testimony of the two professors discussed Marxian theory as evidenced by the writings of Marx, Engels and Lenin, and concluded that it did not advocate the use of force and violence as a method of attaining its objective. In its written opinion the district court held that petitioner’s certificate of naturalization was illegally procured because the organizations to which petitioner belonged were opposed to the principles of the Constitution and advised, taught and advocated the overthrow of the Government by force and violence, and therefore petitioner, “by reason of his membership in such organizations and participation in their activities, was not ‘attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.’ ” 33 F. Supp. 510, 513. The district court also made purported findings of facts to the effect that petitioner was not attached to the principles of the Constitution and well disposed to the good order and happiness of the same, and was a disbeliever in organized government, that he fraudulently concealed his membership in the League and the Party from the naturalization court, and that his oath of allegiance was false. The conclusion of law was that the certificate was illegally and fraudulently procured. The pertinent findings of fact on these points, set forth in the margin,6 * 8 are but the most 6IV. “The Court finds that it is true that said decree and certificate of naturalization were illegally procured and obtained in this: That respondent [petitioner] was not, at the time of his naturalization by said Court, and during the period of five years immediately preceding 130 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. general conclusions of ultimate fact. It is impossible to tell from them upon what underlying facts the court relied, and whether proper statutory standards were observed. If it were not rendered unnecessary by the broad view we take of this case, we would be inclined to reverse the filing of his petition for naturalization had not behaved as, a person attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same. "The Court finds that it is not true that at the time of the filing of his petition for naturalization respondent was not a disbeliever in or opposed to organized government or a member of or affiliated with any organization or body of persons teaching disbelief in or opposed to organized government. "The Court finds that in truth and in fact during all of said times respondent had not behaved as a man attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same, but was a member of and affiliated with and believed in and supported the principles of certain organizations known as the Workers Party of America, the Workers (Communist) Party of America, the Communist Party of the United States of America, the Young Workers League of America, the Young Workers (Communist) League of America and the Young Communist League of America, which organizations were, and each of them was, at all times herein mentioned, a section of the Third International, the principles of all of which said organizations were opposed to the principles of the Constitution of the United States, and advised, advocated, and taught the overthrow of the Government, Constitution and laws of the United States by force and violence and taught disbelief in and opposition to organized government. V. "The Court further finds that during all of said times the respondent has been and now is a member of said organizations and has continued to believe in, advocate and support the said principles of said organizations.” VI. (The substance of this finding is that petitioner fraudulently concealed his Communist affiliation from the naturalization court. It is not set forth because it is not an issue here. See Note 7, infra.) VII. "The court further finds that it is true that said decree and certificate of naturalization were illegally and fraudulently procured and obtained in this: That before respondent [petitioner] was admitted to citizenship as aforesaid, he declared on oath in open court SCHNEIDERMAN v. UNITED STATES. 131 118 Opinion of the Court. and remand to the district court for the purpose of making adequate findings. The Circuit Court of Appeals affirmed on the ground that the certificate was illegally procured, holding that the finding that petitioner’s oath was false was not “clearly erroneous.” 119 F. 2d 500.7 We granted certiorari, and after having heard argument and reargument, now reverse the judgments below. I The Constitution authorizes Congress “to establish an uniform rule of naturalization” (Art. I, § 8, cl. 4), and we may assume that naturalization is a privilege, to be given or withheld on such conditions as Congress sees fit. Cf. that he would support the Constitution of the United States, and that he absolutely and entirely renounced and abjured all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and that he would support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same, whereas in truth and in fact, at the time of making such declarations on oath in open court, respondent [petitioner] did not intend to support the Constitution of the United States, and did not intend absolutely and entirely to renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and did not intend to support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and/or to bear true faith and allegiance to the same, but respondent at said time intended to and did maintain allegiance and fidelity to the Union of Soviet Socialist Republics and to the said Third International, and intended to adhere to and support and defend and advocate the principles and teachings of said Third International, which principles and teachings were opposed to the principles of the Constitution of the United States and advised, advocated and taught the overthrow of the Government, Constitution and laws of the United States by force and violence.” 7 That court said it was unnecessary to consider the charge of fraudulent procurement by concealment of petitioner’s Communist affiliation. The Government has not pressed this charge here, and we do not consider it. 132 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. United States v. Macintosh, 283 U. S. 605, 615, and the dissenting opinion of Chief Justice Hughes, ibid, at p. 627. See also Tutun v. United States, 270 U. S. 568,578; Turner v. Williams, 194 U. S. 279. But because of our firmly rooted tradition of freedom of belief, we certainly will not presume in construing the naturalization and denaturalization acts that Congress meant to circumscribe liberty of political thought by general phrases in those statutes. As Chief Justice Hughes said in dissent in the Macintosh case, such general phrases “should be construed, not in opposition to, but in accord with, the theory and practice of our Government in relation to freedom of conscience.” 283 U. S. at 635. See also Holmes, J., dissenting in United States v. Schwimmer, 279 U. S. 644, 653-55. When petitioner was naturalized in 1927, the applicable statutes did not proscribe communist beliefs or affiliation as such.8 They did forbid the naturalization of disbelievers in organized government or members of organizations teaching such disbelief. Polygamists and advocates of political assassination were also barred.9 Applicants for citizenship were required to take an oath to support the Constitution, to bear true faith and allegiance to the same and the laws of the United States, and to renounce all allegiance to any foreign prince, potentate, state or sovereignty.10 And, it was to “be made to appear to the 8 The Nationality Act of 1940, while enlarging the category of beliefs disqualifying persons thereafter applying for citizenship, does not in terms make communist beliefs or affiliation grounds for refusal of naturalization. § 305, 54 Stat. 1137, 1141; 8 U. S. C. § 705. Bills to write a definition of “communist” into the Immigration and Deportation Act of 1918 as amended (40 Stat. 1012,41 Stat. 1008) and to provide for the deportation of “communists” failed to pass Congress in 1932 and again in 1935. See H. R. 12044, H. Rep. No. 1353, S. Rep. No. 808, 75 Cong. Rec. 12097-108, 72d Cong., 1st Sess. See also H. R. 7120, H. Rep. No. 1023, pts. 1 and 2, 74th Cong., 1st Sess. 9 § 7 of Act of June 29, 1906, 8 U. S. C. § 364. 10 § 4 of Act of June 29, 1906, 8 U. S. C. § 381. SCHNEIDERMAN v. UNITED STATES. 133 118 Opinion of the Court. satisfaction of the court” of naturalization that immediately preceding the application, the applicant “has resided continuously within the United States five years at least, . . . and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.”11 Whether petitioner satisfied this last requirement is the crucial issue in this case. To apply the statutory requirement of attachment correctly to the proof adduced, it is necessary to ascertain its meaning. On its face the statutory criterion is not attachment to the Constitution, but behavior for a period of five years as a man attached to its principles and well disposed to the good order and happiness of the United States. Since the normal connotation of behavior is conduct, there is something to be said for the proposition that the 1906 Act created a purely objective qualification, limiting inquiry to an applicant’s previous conduct.11 12 If this 11 § 4 of Act of June 29, 1906, 8 U. S. C. § 382. 12 The legislative history of the phrase gives some support to this view. The behavior requirement first appeared in the Naturalization Act of 1795, 1 Stat. 414, which was designed to tighten the Act of 1790, 1 Stat. 103. The discursive debates on the 1795 Act cast little light upon the meaning of “behaved,” but indicate that the purpose of the requirement was to provide a probationary period during which aliens could learn of our Constitutional plan. Some members were disturbed by the political ferment of the age and spoke accordingly, while others regarded the United States as an asylum for the oppressed and mistrusted efforts to probe minds for beliefs. It is perhaps significant that the oath, which was adopted over the protest of Madison, the sponsor of the bill, did not require the applicant to swear that he was attached to the Constitution, but only that he would support it. See 4 Annals of Congress, pp. 1004-09, 1021-23, 1026-27, 1030-58, 1062, 1064-66. See also Franklin, Legislative His-tory of Naturalization in the United States (1906), Chapter IV. The behavior requirement was reenacted in 1802 (2 Stat. 153) at the recommendation of Jefferson for the repeal of the stringent Act 134 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. objective standard is the requirement, petitioner satisfied the statute. His conduct has been law abiding in all respects. According to the record he has never been arrested, or connected with any disorder, and not a single written or spoken statement of his, during the relevant period from 1922 to 1927 or thereafter, advocating violent overthrow of the Government, or indeed even a statement, apart from his testimony in this proceeding, that he desired any change in the Constitution has been produced. The sole possible criticism is petitioner’s membership and activity in the League and the Party, but those memberships qua memberships were immaterial under the 1906 Act. of 1798,1 Stat. 566. See Franklin, op. tit., Chapter VI. It continued unchanged until the Act of 1906 which for the first time imported the test of present belief into the naturalization laws when it provided in § 7 that disbelievers in organized government and polygamists could not become citizens. The continuation of the behavior test for attachment is some indication that a less searching examination was intended in this field—that conduct and not belief (other than anarchist or polygamist) was the criterion. The Nationality Act of 1940 changed the behavior requirement to a provision that no person could be naturalized unless he “has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States,” 54 Stat. 1142, 8 U. S. C. § 707. The Report of the President’s Committee to Revise the Nationality Laws (1939) indicates this change in language was not regarded as a change in substance, p. 23. The Congressional committee reports are silent on the question. The sponsors of the Act in the House, however, declared generally an intent to tighten and restrict the naturalization laws. See 86 Cong. Rec. 11939, 11942, 11947, 11949. The chairman of the sub-committee who had charge of the bill stated that “substantive changes are necessary in connection with certain rights, with a view to preventing persons who have no real attachment to the United States from enjoying the high privilege of American nationality.” 86 Cong. Rec. 11948. This remark suggests that the change from “behaved as a man attached” to “has been and still is a person attached” was a change in meaning. SCHNEIDERMAN v. UNITED STATES. 135 118 Opinion of the Court. In United States v. Schwimmer, 279 U. S. 644, and United States v. Macintosh, 283 U. S. 605, however, it was held that the statute created a test of belief—that an applicant under the 1906 Act must not only behave as a man attached to the principles of the Constitution, but must be so attached in fact at the time of naturalization. We do not stop to reexamine this construction for even if it is accepted the result is not changed. As mentioned before, we agree with the statement of Chief Justice Hughes in dissent in Macintosh’s case that the behavior requirement is “a general phrase which should be construed, not in opposition to, but in accord with, the theory and practice of our Government in relation to freedom of conscience.” 283 U. S. at 635. See also the dissenting opinion of Justice Holmes in the Schwimmer case, supra, 653-55. As pointed out before, this is a denaturalization proceeding, and it is a judgment, not merely a claim or a grant, which is being attacked. Assuming as we have that the United States is entitled to attack a finding of attachment upon a charge of illegality, it must sustain the heavy burden which then rests upon it to prove lack of attachment by “clear, unequivocal, and convincing” evidence which does not leave the issue in doubt. When the attachment requirement is construed as indicated above, we do not think the Government has carried its burden of proof. The claim that petitioner was not in fact attached to the Constitution and well disposed to the good order and happiness of the United States at the time of his naturalization and for the previous five year period is twofold: First, that he believed in such sweeping changes in the Constitution that he simply could not be attached to it; Second, that he believed in and advocated the overthrow by force and violence of the Government, Constitution and laws of the United States. In support of its position that petitioner was not in fact attached to the principles of the Constitution because of 136 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. his membership in the League and the Party, the Government has directed our attention first to petitioner’s testimony that he subscribed to the principles of those organizations, and then to certain alleged Party principles and statements by Party Leaders which are said to be fundamentally at variance with the principles of the Constitution. At this point it is appropriate to mention what will be more fully developed later—that under our traditions beliefs are personal and not a matter of mere association, and that men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles. Said to be among those Communist principles in 1927 are: the abolition of private property without compensation; the erection of a new proletarian state upon the ruins of the old bourgeois state; the creation of a dictatorship of the proletariat; denial of political rights to others than members of the Party or of the proletariat; and the creation of a world union of soviet republics. Statements that American democracy “is a fraud”13 and that the purposes of the Party are “utterly antagonistic to the purposes for which the American democracy, so called, was formed,”14 are stressed. Those principles and views are not generally accepted— in fact they are distasteful to most of us—and they call for considerable change in our present form of government and society. But we do not think the Government has carried its burden of proving by evidence which does not leave the issue in doubt that petitioner was not in fact attached to the principles of the Constitution and well disposed to the good order and happiness of the United States when he was naturalized in 1927. 13 Program and Constitution of the Workers Party (1921-24). 14 Acceptance speech of William Z. Foster, the Party’s nominee for the Presidency in 1928. SCHNEIDERMAN v. UNITED STATES. 137 118 Opinion of the Court. The constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come.15 Instead they wrote Article V and the First Amendment, guaranteeing freedom of thought, soon followed. Article V contains procedural provisions for constitutional change by amendment without any present limitation whatsoever except that no State may be deprived of equal representation in the Senate without its consent. Cf. National Prohibition Cases, 253 U. S. 350. This provision and the many important and far-reaching changes made in the Constitution since 1787 refute the idea that attachment to any particular provision or provisions is essential, or that one who advocates radical changes is necessarily not attached to the Constitution. 15 Writing in 1816 Jefferson said: “Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of bookreading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” Ford, Jefferson’s Writings, vol. X, p. 42. Compare his First Inaugural Address: “And let us reflect that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we 138 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. United States v. Rovin, 12 F. 2d 942, 944-45.16 As Justice Holmes said, “Surely it cannot show lack of attachment to the principles of the Constitution that . . . [one] thinks it can be improved.” United States v. Schwimmer, supra (dissent). Criticism of, and the sincerity of desires to improve, the Constitution should not be judged by conformity to prevailing thought because, “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us, but freedom for the thought that we hate.” Id. See also countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions. During the throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long-lost liberty, it was not wonderful that the agitation of the billows should reach even this distant and peaceful shore; that this should be more felt and feared by some and less by others, and should divide opinions as to measures of safety. But every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it. I know, indeed, that some honest men fear that a republican government cannot be strong, that this Government is not strong enough; but would the honest, patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm on the theoretic and visionary fear that this Government, the world’s best hope, may by possibility want energy to preserve itself? I trust not.” Richardson, Messages and Papers of the Presidents, vol. I, p. 310 (emphasis added). 16 See also 18 Cornell Law Quarterly 251; Freund, United States v. Macintosh, A Symposium, 26 Illinois Law Review 375, 385; 46 Harvard Law Review 325. As a matter of fact one very material change in the Constitution as it stood in 1927 when petitioner was naturalized has since been effected by the repeal of the Eighteenth Amendment. SCHNEIDERMAN v. UNITED STATES. 139 118 Opinion of the Court. Chief Justice Hughes dissenting in United States v. Macintosh, supra, p. 635. Whatever attitude we may individually hold toward persons and organizations that believe in or advocate extensive changes in our existing order, it should be our desire and concern at all times to uphold the right of free discussion and free thinking to which we as a people claim primary attachment. To neglect this duty in a proceeding in which we are called upon to judge whether a particular individual has failed to manifest attachment to the Constitution would be ironical indeed. Our concern is with what Congress meant to be the extent of the area of allowable thought under the statute. By the very generality of the terms employed it is evident that Congress intended an elastic test, one which should not be circumscribed by attempts at precise definition. In view of our tradition of freedom of thought, it is not to be presumed that Congress in the Act of 1906, or its predecessors of 1795 and 1802,17 intended to offer naturalization only to those whose political views coincide with those considered best by the founders in 1787 or by the majority in this country today. Especially is this so since the language used, posing the general test of “attachment” is not necessarily susceptible of so repressive a construction.18 The Government agrees that an alien “may think that the laws and the Constitution should be amended in some or many respects” and still be attached to the principles of the Constitution within the meaning of the statute. 17 See Note 12, ante. 18 In 1938 Congress failed to pass a bill denying naturalization to any person “who believes in any form of government for the United States contrary to that now existing in the United States, or who is a member of or affiliated with any organization which advocates any form of government for the United States contrary to that now existing in the United States.” H. R. 9690, 75th Cong., 3d Sess. 140 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. Without discussing the nature and extent of those permissible changes, the Government insists that an alien must believe in and sincerely adhere to the “general political philosophy” of the Constitution.19 Petitioner is said to be opposed to that “political philosophy,” the minimum requirements of which are set forth in the margin.20 It was argued at the bar that since Article V contains no limitations, a person can be attached to the Constitution no matter how extensive the changes are that he desires, so long as he seeks to achieve his ends within the framework of Article V. But we need not consider the validity of this extreme position for if the Government’s construction is accepted, it has not carried its burden of proof even under its own test. The district court did not state in its findings what principles held by petitioner or by the Communist Party were opposed to the Constitution and indicated lack of attachment. See Note 6, ante. In its opinion that court merely relied upon In re Saralieff, 59 F. 2d 436, and United States v. Tapolcsanyi, 40 F. 2d 255, without fresh examination of the question in the light of the present record. 19 Brief, pp. 103-04. Supporting this view are In re Saralieff, 59 F. 2d 436; In re Van Laeken, 22 F. Supp. 145; In re Shanin, 278 F. 739. See also United States v. Tapolcsanyi, 40 F. 2d 255; Ex parte Sauer, 81 F. 355; United States v. Olsson, 196 F. 562, reversed on stipulation, 201 F. 1022. 20 “The test is . . . whether he substitutes revolution for evolution, destruction for construction, whether he believes in an ordered society, a government of laws, under which the powers of government are granted by the people but under a grant which itself preserves to the individual and to minorities certain rights or freedoms which even the majority may not take away; whether, in sum, the events which began at least no further back than the Declaration of Independence, followed by the Revolutionary War and the adoption of the Constitution, establish principles with respect to government, the individual, the minority and the majority, by which ordered liberty is replaced by disorganized liberty.” Brief, p. 105. SCHNEIDERMAN v. UNITED STATES. 141 118 Opinion of the Court. 33 F. Supp. 510. The Circuit Court of Appeals deduced as Party principles roughly the same ones which the Government here presses and stated “these views are not those of our Constitution.” 119 F. 2d at 503-04. With regard to the Constitutional changes he desired petitioner testified that he believed in the nationalization of the means of production and exchange with compensation, and the preservation and utilization of our “democratic structure ... as far as possible for the advantage of the working classes.” He stated that the “dictatorship of the proletariat” to him meant “not a government, but a state of things” in which “the majority of the people shall really direct their own destinies and use the instrument of the state for these truly democratic ends.” None of this is necessarily incompatible with the “general political philosophy” of the Constitution as outlined above by the Government. It is true that the Fifth Amendment protects private property, even against taking for public use without compensation. But throughout our history many sincere people whose attachment to the general constitutional scheme cannot be doubted have, for various and even divergent reasons, urged differing degrees of governmental ownership and control of natural resources, basic means of production, and banks and the media of exchange, either with or without compensation. And something once regarded as a species of private property was abolished without compensating the owners when the institution of slavery was forbidden.21 Can it be said that the author of the Emancipation Proclamation and the supporters of the Thirteenth Amendment were not attached to the Constitution? We conclude that lack of attachment to the Constitution is not shown on the basis of 21 See generally Thorpe, Constitutional History of the United States (1901), vol. Ill, book V. Compare the effect of the Eighteenth Amendment. 142 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. the changes which petitioner testified he desired in the Constitution. Turning now to a seriatim consideration of what the Government asserts are principles of the Communist Party, which petitioner believed and which are opposed to our Constitution, our conclusion remains the same— the Government has not proved by “clear, unequivocal and convincing” evidence that the naturalization court could not have been satisfied that petitioner was attached to the principles of the Constitution when he was naturalized. We have already disposed of the principle of nationalization of the agents of production and exchange with or without compensation. The erection of a new proletariat state upon the ruins of the old bourgeois state, and the creation of a dictatorship of the proletariat may be considered together. The concept of the dictatorship of the proletariat is one loosely used, upon which more words than light have been shed. Much argument has been directed as to how it is to be achieved, but we have been offered no precise definition here. In the general sense the term may be taken to describe a state in which the workers or the masses, rather than the bourgeoisie or capitalists are the dominant class. Theoretically it is control by a class, not a dictatorship in the sense of absolute and total rule by one individual. So far as the record before us indicates, the concept is a fluid one, capable of adjustment to different conditions in different countries. There are only meager indications of the form the “dictatorship” would take in this country. It does not appear that it would necessarily mean the end of representative government or the federal system. The Program and Constitution of the Workers Party (1921-24) criticized the constitutional system of checks and balances, the Senate’s power to pass on legislation, and the involved procedure SCHNEIDERMAN v. UNITED STATES. 143 118 Opinion of the Court. for amending the Constitution, characterizing them as devices designed to frustrate the will of the majority.22 The 1928 platform of the Communist Party of the United States, adopted after petitioner’s naturalization and hence not strictly relevant, advocated the abolition of the Senate, of the Supreme Court, and of the veto power of the President, and replacement of congressional districts with “councils of workers” in which legislative and executive power would be united. These would indeed be significant changes in our present governmental structure— changes which it is safe to say are not desired by the majority of the people in this country—but whatever our personal views, as judges we cannot say that a person who advocates their adoption through peaceful and constitutional means is not in fact attached to the Constitution— those institutions are not enumerated as necessary in the Government’s test of “general political philosophy,” and it is conceivable that “ordered liberty” could be main-tained without them. The Senate has not gone free of criticism and one object of the Seventeenth Amendment was to make it more responsive to the public will.23 The unicameral legislature is not unknown in the country.24 It is true that this Court has played a large part in the unfolding of the constitutional plan (sometimes too much so in the opinion of some observers), but we would be arrogant indeed if we presumed that a government of laws, with protection for minority groups, would be impossible without it. Like other agencies of government, this Court at various times in its existence has not escaped Petitioner testified that this was never adopted, but was merely a draft for study. 23 See Haynes, The Senate of the United States (1938), pp. 11,96-98. 106-115,1068-74. ^Compare Nebraska’s experiment with such a body. Nebraska Constitution, Article III, § 1. See 13 Nebraska Law Bulletin 341. 552826—44-14 144 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. the shafts of critics whose sincerity and attachment to the Constitution is beyond question—critics who have accused it of assuming functions of judicial review not intended to be conferred upon it, or of abusing those functions to thwart the popular will, and who have advocated various remedies taking a wide range.24* And it is hardly conceivable that the consequence of freeing the legislative branch from the restraint of the executive veto would be the end of constitutional government.24b By this discussion we certainly do not mean to indicate that we would favor such changes. Our preference and aversions have no bearing here. Our concern is with the extent of the allowable area of thought under the statute. We decide only that it is possible to advocate such changes and still be attached to the Constitution within the meaning of the Government’s minimum test. If any provisions of the Constitution can be singled out as requiring unqualified attachment, they are the guaranties of the Bill of Rights and especially that of freedom of thought contained in the First Amendment. Cf. Justice Holmes’ dissent in United States v. Schwim-mer, supra. We do not reach, however, the question whether petitioner was attached to the principles of the Constitution if he believed in denying political and civil rights to persons not members of the Party or of the so-called proletariat, for on the basis of the record before us it has not been clearly shown that such denial was a principle of the organizations to which petitioner belonged. 24aE. g., the recall of judicial decisions. See Theodore Roosevelt, A Charter of Democracy, S. Doc. No. 348, 62d Cong., 2d Sess. For proposed constitutional amendments relating to the judiciary and this Court see H. Doc. No. 353, pt. 2, 54th Cong., 2d Sess., pp. 144r-64; S. Doc. No. 93, 69th Cong., 1st Sess., pp. 83, 86, 93,101, 111, 123, 133. 24b For an account of the attacks on the veto power see H. Doc. No. 353, pt. 2, 54th Cong., 2d Sess., pp. 129-34. SCHNEIDERMAN v. UNITED STATES. 145 118 Opinion of the Court. Since it is doubtful that this was a principle of those organizations, it is certainly much more speculative whether this was part of petitioner’s philosophy. Some of the documents in the record indicate that “class enemies” of the proletariat should be deprived of their political rights.25 Lenin, however, wrote that this was not necessary to realize the dictatorship of the proletariat.26 The Party’s 1928 platform demanded the unrestricted right to organize, to strike and to picket and the unrestricted right of free speech, free press and free assemblage for the working class. The 1928 Program of the Communist International states that the proletarian State will grant religious freedom, while at the same time it will carry on anti-religious propaganda. We should not hold that petitioner is not attached to the Constitution by reason of his possible belief in the creation of some form of world union of soviet republics unless we are willing so to hold with regard to those who believe in Pan-Americanism, the League of Nations, Union Now, or some other form of international collaboration 25 ABC of Communism; Lenin, State and Revolution; Statutes, Theses and Conditions of Admission to the Communist International; Stalin, Theory and Practice of Leninism; 1928 Program of the Communist International. 26 “It should be observed that the question of depriving the exploiters of the franchise is purely a Russian question, and not a question of the dictatorship of the proletariat in general. ... It would be a mistake, however, to guarantee in advance that the impending proletarian revolutions in Europe will all, or for the most part, be necessarily accompanied by the restriction of the franchise for the bourgeoisie. Perhaps they will. After our experience of the war and of the Russian revolution we can say that it will probably be so; but it is not absolutely necessary for the purpose of realizing the dictatorship, it is not an essential symptom of the logical concept ‘dictatorship,’ it does not enter as an essential condition in the historical and class concept ‘dictatorship.’ ” Selected Works, vol. VII, pp. 142-3. (Placed in evidence by petitioner.) 146 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. or collective security which may grow out of the present holocaust. A distinction here would be an invidious one based on the fact that we might agree with or tolerate the latter but dislike or disagree with the former. If room is allowed, as we think Congress intended, for the free play of ideas, none of the foregoing principles, which might be held to stand forth with sufficient clarity to be imputed to petitioner on the basis of his membership and activity in the League and the Party and his testimony that he subscribed to the principles of those organizations, is enough, whatever our opinion as to their merits, to prove that he was necessarily not attached to the Constitution when he was naturalized. The cumulative effect is no greater. Apart from the question whether the alleged principles of the Party which petitioner assertedly believed were so fundamentally opposed to the Constitution that he was not attached to its principles in 1927, the Government contends that petitioner was not attached because he believed in the use of force and violence instead of peaceful democratic methods to achieve his desires. In support of this phase of its argument the Government asserts that the organizations with which petitioner was actively affiliated advised, advocated and taught the overthrow of the Government, Constitution and laws of the United States by force and violence, and that petitioner therefore believed in that method of governmental change. Apart from his membership in the League and the Party, the record is barren of any conduct or statement on petitioner’s part which indicates in the slightest that he believed in and advocated the employment of force and violence, instead of peaceful persuasion, as a means of attaining political ends. To find that he so believed and advocated it is necessary, therefore, to find that such was a principle of the organizations to which he belonged and then impute that principle to him on the basis of his SCHNEIDERMAN v. UNITED STATES. 147 118 Opinion of the Court. activity in those organizations and his statement that he subscribed to their principles. The Government frankly concedes that “it is normally true . . . that it is unsound to impute to an organization the views expressed in the writings of all its members, or to impute such writings to each member . . 27 But the Government contends, however, that it is proper to impute to petitioner certain excerpts from the documents in evidence upon which it particularly relies to show that advocacy of force and violence was a principle of the Communist Party of the United States in 1927, because those documents were official publications carefully supervised by the Party, because of the Party’s notorious discipline over its members, and because petitioner was not a mere “rank and file or accidental member of the Party,” but “an intelligent and educated individual” who “became a leader of these organizations as an intellectual revolutionary.” 28 Since the immediate problem is the determination with certainty of petitioner’s beliefs from 1922 to 1927, events and writings since that time have little relevance, and both parties have attempted to confine themselves within the limits of that critical period. For some time the question whether advocacy of governmental overthrow by force and violence is a principle of the Communist Party of the United States has perplexed courts, administrators, legislators, and students. On varying records in deportation proceedings some courts have held that administrative findings that the Party did so advocate were not so wanting in evidential support as to amount to a denial of due process,29 others have held 27 Brief, pp. 23-24. 28 Brief, pp. 25-26. 29 In re Saderquist, 11 F. Supp. 525; Skeffington v. Katzeff, 277 F. 129; United States v. Curran, 11 F. 2d 683; Kenmotsu v. Nagle, 44 F. 2d 953; Sormunen v. Nagle, 59 F. 2d 398; Branch v. Cahill, 88 F. 2d 545; Ex parte Vilarino, 50 F. 2d 582; Kjar v. Doak, 61F. 2d 566; 148 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. to the contrary on different records,80 and some seem to have taken the position that they will judicially notice that force and violence is a Party principle.81 This Court has never passed upon the question whether the Party does so advocate, and it is unnecessary for us to do so now. With commendable candor the Government admits the presence of sharply conflicting views on the issue of force and violence as a Party principle,30 * 32 33 34 and it also concedes that “some communist literature in respect of force and violence is susceptible of an interpretation more rhetorical than literal.” 83 It insists, however, that excerpts from the documents on which it particularly relies, are enough to show that the trial court’s finding that the Communist Party advocated violent overthrow of the Government was not “clearly erroneous,” and hence can not be set aside.84 As previously pointed out, the trial court’s findings do not indicate the bases for its conclusions, but the documents published prior to 1927 stressed by the Government, with the pertinent excerpts noted in the margin, Berkman v. Tillinghast, 58 F. 2d 621; United States v. Smith, 2 F. 2d 90; United States v. Wallis, 268 F. 413. 30 Strecker v. Kessler, 95 F. 2d 976, 96 F. 2d 1020, affirmed on other grounds, 307 U. S. 22; Ex parte Fierstein, 41 F. 2d 53; Colyer v. Ske fling ton, 265 F. 17, reversed sub nom. Skefflngton v. Katzeff, 277 F. 129. 81 United States ex rel. Yokinen v. Commissioner, 57 F. 2d 707; United States v. Perkins, 79 F. 2d 533; United States ex rel. Fernandas v. Commissioner, 65 F. 2d 593; Ungar v. Seaman, 4 F. 2d 80; Ex parte Jurgans, 17 F. 2d 507; United States ex rel. Fortmueller v. Commissioner, 14 F. Supp. 484; Murdoch n. Clark, 53 F. 2d 155; Wolck v. Weedin, 58 F. 2d 928. 82 Brief, p. 60. 33 Brief, p. 77. See also Colyer v. Skefflngton, 265 F. 17, 59, reversed sub nom. Skefflngton v. Katzeff, 277 F. 129. And see Evatt, J., in King v. Hush (Ex parte Devanny), 48 C. L. R. 487, 516-18. 34 Rule 52 (a) of the Rules of Civil Procedure, 28 U. S. C. A., following §723 (c). SCHNEIDERMAN v. UNITED STATES. 149 118 Opinion of the Court. are: The Communist Manifesto of Marx and Engels;85 The State and Revolution by Lenin;36 The Statutes, 36 The Manifesto was proclaimed in 1848. The edition in evidence was published by the International Publishers in 1932. Petitioner testified that he believed it to be an authorized publication, that he was familiar with the work, that it was used in classes, and that he thought its principles were correct “particularly as they applied to the period in which they were written and the country about which they were written.” The excerpts stressed are: “The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions.” “Though not in substance, yet in form, the struggle of the proletariat with the bourgeoisie is at first a national struggle. The proletariat of each country must, of course, first of all settle matters with its own bourgeoisie. “In depicting the most general phases of the development of the proletariat, we traced the more or less veiled civil war, raging within existing society, up to the point where that war breaks out into open revolution, and where the violent overthrow of the bourgeoisie lays the foundation for the sway of the proletariat.” 36 This work was written in 1917 between the February and October Revolutions in Russia. The copy in evidence was published in 1924 by the Daily Worker Publishing Company. Petitioner testified that it was circulated by the Party and that it was probably used in the classes of which he was “educational director.” The excerpts are: “Fifth, in the same work of Engels, . . . there is also a disquisition on the nature of a violent revolution; and the historical appreciation of its role becomes, with Engels, a veritable panegyric of a revolution by force. This, of course, no one remembers. To talk or even to think of the importance of this idea, is not considered respectable by our modern Socialist parties, and in the daily propaganda and agitation among the masses it plays no part whatever. Yet it is indissolubly bound up with the ‘withering away’ of the state in one harmonious whole. Here is Engels’ argument: “‘That force also plays another part in history (other than that of a perpetuation of evil), namely a revolutionary part; that as Marx 150 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. Theses and Conditions of Admission to the Communist International;37 and The Theory and Practice of Lenin- says, it is the midwife of every old society when it is pregnant with a new one; that force is the instrument and the means by which social movements hack their way through and break up the dead and fossilized political forms—of all this not a word by Herr Duehring. Duly, with sighs and groans, does he admit the possibility that for the overthrow of the system of exploitation force may, perhaps, be necessary, but most unfortunate if you please, because all use of force, forsooth, demoralizes its user! And this is said in face of the great moral and intellectual advance which has been the result of every victorious revolution! . . . And this turbid, flabby, impotent, parson’s mode of thinking dares offer itself for acceptance to the most revolutionary party history has ever known.’ ” “The necessity of systematically fostering among the masses this and only this point of view about violent revolution lies at the root of the whole of Marx’s and Engels’ teaching, and it is just the neglect of such propaganda and agitation both by the present predominant Social-Chauvinists and the Kautskian schools that brings their betrayal of it into prominent relief.” (Quoting Engels) “ ‘Revolution is an act in which part of the population forces its will on the other parts by means of rifles, bayonets, cannon, i. e., by most authoritative means. And the conquering party is inevitably forced to maintain its supremacy by means of that fear which its arms inspire in the reactionaries.’ ” 87 Petitioner contends that this document was never introduced in evidence, and the record shows only that it was marked for identification. The view we take of the case makes it immaterial whether this document is in evidence or not. The copy furnished us was printed in 1923 under the auspices of the Workers Party. Hynes testified that it was an official publication, but not widely circulated. Petitioner had no recollection of the particular pamphlet and testified that the American party was not bound by it. The excerpts are: “That which before the victory of the proletariat seems but a theoretical difference of opinion on the question of ‘democracy,’ be- SCHNEIDERMAN v. UNITED STATES. 151 118 Opinion of the Court. ism, written by Stalin.38 The Government also sets forth excerpts from other documents which are entitled to little comes inevitably on the morrow of the victory, a question which can only be decided by force of arms.” “The working class cannot achieve the victory over the bourgeoisie by means of the general strike alone, and by the policy of folded arms The proletariat must resort to an armed uprising.” “The elementary means of the struggle of the proletariat against the rule of the bourgeoisie is, first of all, the method of mass demonstrations. Such mass demonstrations are prepared and carried out by the organized masses of the proletariat, under the direction of a united, disciplined, centralized Communist Party. Civil war is war. In this war the proletariat must have its efficient political officers, its good political general staff, to conduct operations during all the stages of that fight. “The mass struggle means a whole system of developing demonstrations growing ever more acute in form, and logically leading to an uprising against the capitalist order of the government. In this warfare of the masses developing into a civil war, the guiding party of the proletariat must, as a general rule, secure every and all lawful positions, making them its auxiliaries in the revolutionary work, and subordinating such positions to the plans of the general campaign, that of the mass struggle.” 38 The copy in evidence was printed by the Daily Worker Publishing Company either in 1924 or 1925. Petitioner was familiar with the work, but not the particular edition, and testified that it was probably circulated by the Party. He had read it, but probably after his naturalization. Hynes and Humphreys testified that it was used in communist classes. The excerpts are: Marx s limitation with regard to the ‘continent’ has furnished the opportunists and mensheviks of every country with a pretext for asserting that Marx admitted the possibility of a peaceful transformation of bourgeois democracy into proletarian democracy, at least [in] some countries (England and America). Marx did in fact recognize the possibility of this in the England and America of 1860, where 152 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. weight because they were published after the critical period.30 * * * * * * * * 39 monopolist capitalism and Imperialism did not exist and where mili- tarism and bureaucracy were as yet little developed. But now the situation in these countries is radically different; Imperialism has reached its apogee there, and there militarism and bureaucracy are sovereign. In consequence, Marx’s restriction no longer applies.” “With the Reformist, reform is everything, whilst in revolutionary work it only appears as a form. This is why with the reformist tactic under a bourgeois government, all reform tends inevitably to consolidate the powers that be, and to weaken the revolution. “With the revolutionary, on the contrary, the main thing is the revolutionary work and not the reform. For him, reform is only an accessory of revolution.” 39(a) Program of the Communist International, adopted in 1928 and published by the Workers Library Publishers, Inc., in 1929: “Hence, revolution is not only necessary because there is no other way of overthrowing the ruling class, but also because, only in the process of revolution is the overthrowing class able to purge itself of the dross of the old society and become capable of creating a new society.” Petitioner “agreed with the general theoretical conclusions stated in” this Program, but he regarded “the application of that theory” as “something else.” (b) Programme of the Young Communist International, published in 1929: “An oppressed class which does not endeavor to possess and learn to handle arms would deserve to be treated as slaves. We would become bourgeois pacifists or opportunists if we forget that we are living in a class society, and that the only way out is through class struggle and the overthrow of the power of the ruling class. Our slogan must be: ‘Arming of the proletariat, to conquer, expropriate and disarm the bourgeoisie.’ Only after the proletariat has disarmed the bourgeoisie will it be able, without betraying its historic task, to throw all arms on the scrap heap. This the proletariat will undoubtedly do. But only then, and on no account sooner.” (c) Why Communism, written by Olgin, and published first in 1933, by the Workers Library Publishers: “We Communists say that there is one way to abolish the capitalist State, and that is to smash it by force. To make Communism possible SCHNEIDERMAN v. UNITED STATES. 153 118 Opinion of the Court. The bombastic excerpts set forth in Notes 35 to 38 inclusive, upon which the Government particularly relies, lend considerable support to the charge. We do not say that a reasonable man could not possibly have found, as the district court did, that the Communist Party in 1927 actively urged the overthrow of the Government by force and violence.40 But that is not the issue here. We are not concerned with the question whether a reasonable man might so conclude, nor with the narrow issue whether ad the workers must take hold of the State machinery of capitalism and destroy it.” Petitioner testified that he had not read this book, but that it had been widely circulated by the Party. 40 Since the district court did not specify upon what evidence its conclusory findings rested, it is well to mention the remaining documents published before 1927 which were introduced into evidence and excerpts from which were read into the record, but upon which the Government does not specifically rely with respect to the issue of force and violence. Those documents are: Lenin, Left Wing Communism, first published in English about 1920; Bucharin and Pre-obraschensky, ABC of Communism, written in 1919 and published around 1921 in this country (petitioner testified that this was never an accepted work and that its authors were later expelled from the International); International of Youth, a periodical published in 1925; The 4th National Convention of the Workers Party of America, published in 1925; The Second Year of the Workers Party in America (1924); and, The Program and Constitution of the Workers Party of America, circulated around 1924. With the exception of these last two documents, the excerpts read into the record from these publications contain nothing exceptional on the issue of force and violence. The excerpts from the last two documents stress the necessity for Party participation in elections, but declare that the Party fosters no illusions that the workers can vote their way to power, the expulsion of the Socialist members of the New York Assembly (see Chafee, Free Speech in the United States (1941), pp. 269-82) being cited as an example in point. These statements are open to an interpretation of prediction, not advocacy of force and violence. Of. Note 48, infra. 154 OCTOBER TERM, 1942. Opinion of the Court. 320 U. S. ministrative findings to that effect are so lacking in evidentiary support as to amount to a denial of due process. As pointed out before, this is a denaturalization proceeding in which, if the Government is entitled to attack a finding of attachment as we have assumed, the burden rests upon it to prove the alleged lack of attachment by “clear, unequivocal and convincing” evidence. That burden has not been carried. The Government has not proved that petitioner’s beliefs on the subject of force and violence were such that he was not attached to the Constitution in 1927. In the first place this phase of the Government’s case is subject to the admitted infirmities of proof by imputation.41 The difficulties of this method of proof are here increased by the fact that there is, unfortunately, no absolutely accurate test of what a political party’s principles are.42 Political writings are often over-exaggerated polemics bearing the imprint of the period and the place in which written.43 Philosophies cannot generally be studied in vacuo. Meaning may be wholly distorted by lifting sentences out of context, instead of construing them as part of an organic whole. Every utterance of party leaders is not taken as party gospel. And we would deny our experience as men if we did not recognize that official party programs are unfortunately often opportunistic de- 41 As Chief Justice (then Mr.) Hughes said in opposing the expulsion of the Socialist members of the New York Assembly: . . it is of the essence of the institutions of liberty that it be recognized that guilt is personal and cannot be attributed to the holding of opinion or to mere intent in the absence of overt acts; . . .” Memorial of the Special Committee Appointed by the Association of the Bar of the City of New York, New York Legislative Documents, vol. 5,143d Session (1920), No. 30, p. 4. 42 See Chafee, Free Speech in the United States (1941), pp. 219-24. 43 See Note 33, ante. SCHNEIDERMAN v. UNITED STATES. 155 118 Opinion of the Court. vices as much honored in the breach as in the observance.44 On the basis of the present record we cannot say that the Communist Party is so different in this respect that its principles stand forth with perfect clarity, and especially is this so with relation to the crucial issue of advocacy of force and violence, upon which the Government admits the evidence is sharply conflicting. The presence of this conflict is the second weakness in the Government’s chain of proof. It is not eliminated by assiduously adding further excerpts from the documents in evidence to those culled out by the Government. The reality of the conflict in the record before us can be pointed out quickly. Of the relevant prior to 1927 documents relied upon by the Government three are writings of outstanding Marxist philosophers, and leaders, the fourth is a world program.45 * The Manifesto of 1848 was proclaimed in an autocratic Europe engaged in suppressing the abortive liberal revolutions of that year. With this background, its tone is not surprising.48 Its authors later stated, however, that there were certain countries, “such as the United States and England in which the workers may hope to secure their ends by peaceful means.” 47 Lenin doubted this in his militant work, The State and Revolution, but this was written on the eve of the Bolshevist revolution in Russia and may be interpreted as intended in part to justify the Bolshevist 44 See Bryce, the American Commonwealth (1915) vol. II, p. 334; III Encyclopedia of the Social Sciences, p. 164. 45 See Notes 35 to 38 inclusive, ante. 48 Petitioner testified that he believed its principles, particularly as they applied to the period and country in which written. See Note 35, ante. 47 Marx, Amsterdam Speech of 1872; see also Engels’ preface to the First English Translation of Capital (1886). 156 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. course and refute the anarchists and social democrats.48 Stalin declared that Marx’s exemption for the United States and England was no longer valid.49 He wrote, however, that “the proposition that the prestige of the Party can be built upon violence ... is absurd and absolutely incompatible with Leninism.”60 And Lenin wrote “In order to obtain the power of the state the class conscious workers must win the majority to their side. As long as no violence is used against the masses, there is no other road to power. We are not Blanquists, we are not in favor of the seizure of power by a minority.”81 The 1938 Constitution of the Communist Party of the United States, which petitioner claimed to be the first and only written constitution ever officially adopted by the Party and which he asserted enunciated the principles of the Party as he understood them from the beginning * * * * 60 61 48 Lenin’s remarks on England have been interpreted as simply predicting, not advocating, the use of violence there. See the intro- duction to Strachey, The Coming Struggle for Power (1935). 40 See Note 38, ante. 60 Stalin, Leninism, vol. I, pp. 282-83. Put in evidence by petitioner. 61 Lenin, Selected Works, vol. VI. Put in evidence by petitioner. In the same work is the following: “Marxism is an extremely profound and many sided doctrine. It is, therefore, not surprising that scraps of quotations from Marx— especially when the quotations are not to the point—can always be found among the ‘arguments’ of those who are breaking with Marxism. A military conspiracy is Blanquism if it is not organized by the party of a definite class; if its organizers have not reckoned with the political situation in general and the international situation in particular; if the party in question does not enjoy the sympathy of the majority of the people, as proved by definite facts; if the development of events in the revolution has not led to the virtual dissipation of the illusions of compromise entertained by the petty bourgeoisie; if the majority of the organs of the revolutionary struggle which are recognized to be ‘authoritative’ or have otherwise established themselves, such as the Soviets, have not been won over; if in the army (in time of war) sentiments hostile to a government which drags out an unjust war SCHNEIDERMAN v. UNITED STATES. 157 118 Opinion of the Court. of his membership, ostensibly eschews resort to force and violence as an element of Party tactics.62 A tenable conclusion from the foregoing is that the Party in 1927 desired to achieve its purpose by peaceful and democratic means, and as a theoretical matter justified the use of force and violence only as a method of preventing an attempted forcible counter-overthrow once the Party had obtained control in a peaceful manner, or as a method of last resort to enforce the majority will if at some indefinite future time because of peculiar circumstances constitutional or peaceful channels were no longer open. There is a material difference between agitation and exhortation calling for present violent action which creates a clear and present danger of public disorder or other substantive evil, and mere doctrinal justification or prediction of the use of force under hypothetical conditions at some indefinite future time—prediction that is not calculated or intended to be presently acted upon, thus against the will of the people have not become fully matured; if the slogans of the insurrection (such as ‘All power to the Soviets/ ‘Land to the peasants/ ‘Immediate proposal of a democratic peace to all the belligerent peoples, coupled with the immediate abrogation of all secret treaties and secret diplomacy/ etc.) have not acquired the widest renown and popularity; if the advanced workers are not convinced of the desperate situation of the masses and of the support of the countryside, as demonstrated by an energetic peasant movement, or by a revolt against the landlords and against the government that defends the landlords; if the economic situation in the country offers any real hope of a favorable solution of the crisis by peaceful and parliamentary means.” 62 Article X, § 5. Party members found to be strike-breakers, degenerates, habitual drunkards, betrayers of Party confidence, provocateurs, advocates of terrorism and violence as a method of Party procedure, or members whose actions are detrimental to the Party and the working class, shall be summarily dismissed from positions of responsibility, expelled from the Party and exposed before the general public. 158 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. leaving opportunity for general discussion and the calm processes of thought and reason. Cf. Bridges v. California, 314 U. S. 252, and Justice Brandéis’ concurring opinion in Whitney v. California, 274 U. S. 357, 372-80. See also Taylor v. Mississippi, 319 U. S. 583. Because of this difference we may assume that Congress intended, by the general test of “attachment” in the 1906 Act, to deny naturalization to persons falling into the first category but not to those in the second. Such a construction of the statute is to be favored because it preserves for novitiates as well as citizens the full benefit of that freedom of thought which is a fundamental feature of our political institutions. Under the conflicting evidence in this case we cannot say that the Government has proved by such a preponderance of the evidence that the issue is not in doubt, that the attitude of the Communist Party of the United States in 1927 towards force and violence was not susceptible of classification in the second category. Petitioner testified that he subscribed to this interpretation of Party principles when he was naturalized, and nothing in his conduct is inconsistent with that testimony. We conclude that the Government has not carried its burden of proving by “clear, unequivocal, and convincing” evidence which does not leave “the issue in doubt,” that petitioner obtained his citizenship illegally. In so holding we do not decide what interpretation of the Party’s attitude toward force and violence is the most probable on the basis of the present record, or that petitioner’s testimony is acceptable at face value. We hold only that where two interpretations of an organization’s program are possible, the one reprehensible and a bar to naturalization and the other permissible, a court in a denaturalization proceeding, assuming that it can re-examine a finding of attachment upon a charge of illegal procurement, is not justified in canceling a certificate of citizenship by imputing the reprehensible interpretation to a SCHNEIDERMAN v. UNITED STATES. 159 118 Opinion of the Court. member of the organization in the absence of overt acts indicating that such was his interpretation. So uncertain a chain of proof does not add up to the requisite “clear, unequivocal, and convincing” evidence for setting aside a naturalization decree. Were the law otherwise, valuable rights would rest upon a slender reed, and the security of the status of our naturalized citizens might depend in considerable degree upon the political temper of majority thought and the stresses of the times. Those are consequences foreign to the best traditions of this nation and the characteristics of our institutions. II This disposes of the issues framed by the Government’s complaint which are here pressed. As additional reasons for its conclusion that petitioner’s naturalization was fraudulently and illegally procured, the district court found, however, that petitioner was a disbeliever in, and a member of an organization teaching disbelief in, organized government,53 and that his oath of allegiance, required by 8 U. S. C. § 381, was false. These issues are outside the scope of the complaint,54 as is another ground urged 83 In 1927 naturalization was forbidden to such persons by § 7 of the Act of 1906, 34 Stat. 598, 8 U. S. C. § 364. Compare § 305 of the Nationality Act of 1940, 54 Stat. 1141, 8 U. S. C. § 705. 84 The complaint did incorporate by reference an affidavit of cause, required by 8 U. S. C. § 405, in which the affiant averred that petitioner’s naturalization was illegally and fraudulently obtained, in that he did not behave as a man and was not a man attached to the Constitution but was a member of the Communist Party which was opposed to the Government and advocated its overthrow by force and violence, and in that: “At the time he took said oath of allegiance, he did not in fact intend to support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.” While this affidavit is part of the complaint, we think it was not intended to be an additional charge, but was included only to show 552826—44--------15 160 OCTOBER TERM, 1942. Opinion of the Court. 320U.S. in support of the judgment below as to which the district court made no findings.* 65 Because they are outside the scope of the complaint, we do not consider them. As we said in De Jonge v. Oregon, “Conviction upon a charge not made would be sheer denial of due process.” 299 U. S. 353, 362. A denaturalization suit is not a criminal proceeding. But neither is it an ordinary civil action since it involves an important adjudication of status. Consequently we think the Government should be limited, as in a criminal proceeding, to the matters charged in its complaint. One other ground advanced in support of the judgment below was not considered by the lower courts and does not merit detailed treatment. It is that petitioner was not entitled to naturalization because he was deportable in 1927 under the Immigration Act of 1918 (40 Stat. 1012, as amended by 41 Stat. 1008; 8 U. S. C. § 137) as an alien member of an organization advocating overthrow of the Government of the United States by force and violence. This issue is answered by our prior discussion of the evidence in this record relating to force and violence. Assuming that deportability at the time of naturalization satisfies the requirement of illegality under § 15 which governs this proceeding, the same failure to establish adequately the attitude toward force and violence of the compliance with the statute. The attachment averment of the affidavit is elaborated and set forth as a specific charge in the complaint. The failure to do likewise with the averment of a false oath is persuasive that the issue was not intended to be raised. When petitioner moved for a non-suit at the close of the Government’s case, the United States attorney did not contend, in stating what he conceived the issues were, that the question of a false oath was an issue. 65 This contention is that petitioner was not well disposed to the good order and happiness of the United States because he believed in and advocated general resort to illegal action, other than force and violence, as a means of achieving political ends. SCHNEIDERMAN v. UNITED STATES. 161 118 Douglas, J., concurring. organizations to which petitioner belonged forbids his denaturalization on the ground of membership. The judgment is reversed and the cause remanded to the Circuit Court of Appeals for further proceedings in conformity with this opinion. Reversed. Mr. Justice Douglas, concurring: I join in the Court’s opinion and agree that petitioner’s want of attachment in 1927 to the principles of the Constitution has not been shown by “clear, unequivocal and convincing” evidence. The United States, when it seeks to deprive a person of his American citizenship, carries a heavy burden of showing that he procured it unlawfully. That burden has not been sustained on the present record, as the opinion of the Court makes plain, unless the most extreme views within petitioner’s party are to be imputed or attributed to him and unless all doubts which may exist concerning his beliefs in 1927 are to be resolved against him rather than in his favor. But there is another view of the problem raised by this type of case which is so basic as to merit separate statement. Sec. 15 of the Naturalization Act gives the United States the power and duty to institute actions to set aside and cancel certificates of citizenship on the ground of “fraud” or on the ground that they were “illegally procured.” Sec. 15 “makes nothing fraudulent or unlawful that was honest and lawful when it was done. It imposes no new penalty upon the wrongdoer. But if, after fair hearing, it is judicially determined that by wrongful conduct he has obtained a title to citizenship, the act provides that he shall be deprived of a privilege that was never rightfully his.” Johannessen v. United States, 225 U. S. 227, 242-243. And see Luria v. United States, 231 U. S. 9, 24. ‘Wrongful conduct”—like the statutory words “fraud” or “illegally procured”—are strong words. Fraud con- 162 OCTOBER TERM, 1942. Douglas, J., concurring. 320U.S. notes perjury, concealment, falsification, misrepresentation or the like. But a certificate is illegally, as distinguished from fraudulently, procured when it is obtained without compliance with a “condition precedent to the authority of the Court to grant a petition for naturalization.” Maney v. United States, 278 U. S. 17,22. Under the Act in question, as under earlier and later Acts,1 Congress prescribed numerous conditions precedent to the issuance of a certificate. They included the requirement that the applicant not be an anarchist or polygamist (§ 7), the presentation of a certificate of arrival (United States v. Ness, 245 U. S. 319), the requirement that the final hearing be had in open court (United States v. Ginsberg, 243 U. S. 472), the residence requirement (R. S. § 2170), the general requirement that the applicant be able to speak the English language (§8), etc. The foregoing are illustrative of one type of condition which Congress specified. Another type is illustrated by the required finding of attachment. Sec. 4, as it then read, stated that it “shall be made to appear to the satisfaction of the court” that the applicant “has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.”1 2 It is my view that Congress by that provision made the finding the condition preced- 1 For the Act in its present form see 8 U. S. C. § 501 et seq. 2 This provision was recast by the Act of March 2, 1929, 45 Stat. 1513-1514, 8 U. S. C. § 707 (a) (3), into substantially its present form. For the legislative history see 69 Cong. Rec. 841; S. Rep. No. 1504, 70th Cong., 2d Sess. The provision now reads: “No person, except as hereinafter provided in this chapter, shall be naturalized unless such petitioner . . . (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.” SCHNEIDERMAN v. UNITED STATES. 163 118 Douglas, J., concurring. ent, not the weight of the evidence underlying the finding. Such a finding can of course be set aside under § 15 on grounds of fraud. But so far as certificates “illegally procured” are concerned, this Court has heretofore permitted § 15 to be used merely to enforce the express conditions specified in the Act. It is of course true that an applicant for citizenship was required to come forward and make the showing necessary for the required findings. § 4. But under this earlier Act, it was not that showing but the finding of the court which Congress expressed in the form of a condition. If § 15 should be broadened by judicial construction to permit the findings of attachment to be set aside for reasons other than fraud, then the issue of illegality would be made to turn not on the judge being satisfied as to applicant’s attachment but on the evidence underlying that finding. Such a condition should not be readily implied. If an anarchist is naturalized, the United States may bring an action under § 15 to set aside the certificate on the grounds of illegality. Since Congress by § 7 of the Act forbids the naturalization of anarchists, the alien anarchist who obtains the certificate has procured it illegally whatever the naturalization court might find. The same would be true of communists if Congress declared they should be ineligible for citizenship. Then proof that one was not a communist and did not adhere to that party or its belief would become like the other express conditions in the Act a so-called “jurisdictional” fact “upon which the grant is predicated.” Johannessen v. United States, supra, p. 240. But under this Act Congress did not treat communists like anarchists. Neither the statute nor the official forms used by applicants called for an expression by petitioner of his attitude on, or his relationship to, communism, or any other foreign political creed except anarchy and the like. 164 OCTOBER TERM, 1942. Douglas, J., concurring. 320U.S. The findings of attachment are entrusted to the naturalization court with only the most general standard to guide it. That court has before it, however, not only the applicant but at least two witnesses. It makes its appraisal of the applicant and it weighs the evidence. Its conclusion must often rest on imponderable factors. In the present case we do not know how far the naturalization court probed into petitioner’s political beliefs and affiliations. We do not know what inquiry it made. All we do know is that it was satisfied that petitioner was “attached to the principles of the Constitution of the United States.” But we must assume that that finding which underlies the judgment granting citizenship (cf. Tutun v. United States, 270 U. S. 568) was supported by evidence. We must assume that the evidence embraced all relevant facts since no charge of concealment or misrepresentation is now made by respondent. And we must assume that the applicant and the judge both acted in utmost good faith. If the applicant answers all questions required of him, if there is no concealment or misrepresentation, the findings of attachment cannot be set aside on the grounds of illegality in proceedings under § 15. It does not comport with any accepted notion of illegality to say that in spite of the utmost good faith on the part of applicant and judge and in spite of full compliance with the express statutory conditions a certificate was illegally procured because another judge would appraise the evidence differently. That would mean that the United States at any time could obtain a trial de novo on the political faith of the applicant. It is hardly conceivable that Congress intended that result under this earlier Act except for the narrow group of political creeds such as anarchy for which it specially provided. Chief Justice Hughes stated in his dissent in United States v. Macintosh, 283 U. S. 605, 635, that the SCHNEIDERMAN v. UNITED STATES. 165 118 Rutledge, J., concurring. phrase “attachment to the principles of the Constitution” is a general one “which should be construed, not in opposition to, but in accord with, the theory and practice of our Government in relation to freedom of conscience.” We should be mindful of that criterion in our construction of § 15. If findings of attachment which underly certificates may be set aside years later on the evidence, then the citizenship of those whose political faiths become unpopular with the passage of time becomes vulnerable. It is one thing to agree that Congress could take that step if it chose. See Turner v. Williams, 194 U. S. 279. But where it has not done so in plain words, we should be loath to imply that Congress sanctioned a procedure which in absence of fraud permitted a man’s citizenship to be attacked years after the grant because of his political beliefs, social philosophy, or economic theories. We should not tread so close to the domain of freedom of conscience without an explicit mandate from those who specify the conditions on which citizenship is granted to or withheld from aliens. At least when two interpretations of the Naturalization Act are possible we should choose the one which is the more hospitable to that ideal for which American citizenship itself stands. Citizenship can be granted only on the basis of the statutory right which Congress has created. Tutun v. United States, supra. But where it is granted and where all the express statutory conditions precedent are satisfied we should adhere to the view that the judgment of naturalization is final and conclusive except for fraud. Since the United States does not now contend that fraud vitiates this certificate the judgment below must be reversed. Mr. Justice Rutledge, concurring: I join in the Court’s opinion. I add what follows only to emphasize what I think is at the bottom of this case. Immediately we are concerned with only one man, William Schneiderman. Actually, though indirectly, the 166 OCTOBER TERM, 1942. Rutledge, J., concurring. 320U.S. decision affects millions. If, seventeen years after a federal court adjudged him entitled to be a citizen, that judgment can be nullified and he can be stripped of this most precious right, by nothing more than reexamination upon the merits of the very facts the judgment established, no naturalized person’s citizenship is or can be secure. If this can be done after that length of time, it can be done after thirty or fifty years. If it can be done for Schneiderman, it can be done for thousands or tens of thousands of others. For all that would be needed would be to produce some evidence from which any one of the federal district judges could draw a conclusion, concerning one of the ultimate facts in issue, opposite from that drawn by the judge decreeing admission. The statute does not in terms prescribe “jurisdictional” facts.1 But all of the important ones are “jurisdictional,” or have that effect, if by merely drawing contrary conclusion from the same, though conflicting, evidence at any later time a court can overturn the judgment. An applicant might be admitted today upon evidence satisfying the court he had complied with all requirements. That judgment might be affirmed on appeal and again on certiorari here. Yet the day after, or ten years later, any district judge could overthrow it, on the same evidence, if it was conflicting or gave room for contrary inferences, or on different evidence all of which might have been presented to the first court.1 2 If this is the law and the right the naturalized citizen acquires, his admission creates nothing more than citizenship in attenuated, if not suspended, animation. He acquires but prima facie status, if that. Until the Gov- 1 Cf., however, the concurring opinion of Mr. Justice Douglas, ante, p. 161. 2 There is no requirement that the evidence be different from what was presented on admission or “newly discovered.” SCHNEIDERMAN v. UNITED STATES. 167 118 Rutledge, J., concurring. ernment moves to cancel his certificate and he knows the outcome, he cannot know whether he is in or out. And when that is done, nothing forbids repeating the harrowing process again and again, unless the weariness of the courts should lead them finally to speak res judicata. No citizen with such a threat hanging over his head could be free. If he belonged to “off-color” organizations or held too radical or, perhaps, too reactionary views, for some segment of the judicial palate, when his admission took place, he could not open his mouth without fear his words would be held against him. For whatever he might, say or whatever any such organization might advocate could be hauled forth at any time to show “continuity” of belief from the day of his admission, or “concealment” at that time. Such a citizen would not be admitted to liberty. His best course would be silence or hypocrisy. This is not citizenship. Nor is it adjudication. It may be doubted that the framers of the Constitution intended to create two classes of citizens, one free and independent, one haltered with a lifetime string tied to its status. However that may be, and conceding that the power to revoke exists and rightly should exist to some extent, the question remains whether the power to admit, can be delegated to the courts in such a way that their determination, once made, determines and concludes nothing with finality. If every fact in issue, going to the right to be a citizen, can be reexamined, upon the same or different proof, years or decades later; and if this can be done de novo, as if no judgment had been entered, whether with respect to the burden of proof required to reach a different decision or otherwise, what does the judgment determine? What does it settle with finality? If review is had and the admission is affirmed, what fact is adjudicated, if next day any or all involved can be redecided to the contrary? Can 168 OCTOBER TERM, 1942 Rutledge, J., concurring. 320U.S. Congress, when it has empowered a court to determine and others to review and confirm, at the same time or later authorize any trial court to overturn their decrees, for causes other than such as have been held sufficient to overturn other decrees?3 I do not undertake now to decide these questions. Nor does the Court. But they have a bearing on the one which is decided. It is a judgment which is being attacked. Tutun v. United States, 270 U. S. 568. Accordingly, it will not do to say the issue is identical with what is presented in a naturalization proceeding, is merely one of fact, upon which therefore the finding of the trial court concludes, and consequently we have no business to speak or our speaking is appellate intermeddling. That ignores the vital fact that it is a judgment, rendered in the exercise of the judical power created by Article III, which it is sought to overthrow,4 not merely a grant like a patent to land or for invention.5 6 Congress has plenary power over naturalization. That no one disputes. Nor that this power, for its application, can be delegated to the courts. But this is not to say, when Congress has so placed it, that body can decree in the same breath that the judgment rendered shall have no conclusive effect. Limits it may place. But that is another matter from making an adjudication under Article III merely an advisory opinion or prima facie evidence of the fact or all the facts determined. Congress has, with limited exceptions, plenary power over the jurisdiction of the federal courts.® But to confer the jurisdiction and at the same time nullify entirely the effects of its exercise are not matters heretofore thought, 8 Cf. United States v. Throckmorton, 98 U. S. 61; Kibbe v. Benson, 17 Wall. 624. No such cause for cancellation is involved here. 4 Tutun v. United States, 270 U. S. 568. 6 Cf. Johannessen v. United States, 225 U. S. 227. 6 Cf. Lockerty v. Phillips, 319 U. S. 182. SCHNEIDERMAN v. UNITED STATES. 169 118 Rutledge, J., concurring. when squarely faced, within its authority.7 To say therefore that the trial court’s function in this case is the same as was that of the admitting court is to ignore the vast difference between overturning a judgment, with its adjudicated facts, and deciding initially upon facts which have not been adjudged. The argument made from the deportation statutes likewise ignores this difference. It is no answer to say that Congress provided for the redetermination as a part of the statute conferring the right to admission and therefore as a condition of it. For that too ignores the question whether Congress can so condition the judgment and is but another way of saying that a determination, made by an exercise of judicial power under Article III, can be conditioned by legislative mandate so as not to determine finally any ultimate fact in issue. The effect of cancellation is to nullify the judgment of admission. If it is a judgment, and no one disputes that it is, that quality in itself requires the burden of proof the court has held that Congress intended in order to overturn it. That it is a judgment, and one of at least a coordinate court, which the cancellation proceeding attacks and seeks to overthrow, requires this much at least, that solemn decrees may not be lightly overturned and that citizens may not be deprived of their status merely because one judge views their political and other beliefs with a more critical eye or a different slant, however honestly and sincerely, than another. Beyond this we need not go now in decision. But we do not go beyond our function or usurp another tribunal’s when we go this far. 7 Cf. United States v. Ferreira, 13 How. 40; Gordon v. United States, 2 Wall. 561; Id., 117 U. S. 697; United States v. Jones, 119 U. S. 477; Pocono Pines Assembly Hotels Co. v. United States, 73 Ct. Cis. 447; 76 Ct. Cis. 334; Ex parte Pocono Pines Assembly Hotels Co., 285 U. S. 526. 170 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. The danger, implicit in finding too easily the purpose of Congress to denaturalize Communists, is that by doing so the status of all or many other naturalized citizens may be put in j eopardy. The other and underlying questions need not be determined unless or until necessity compels it. Mr. Chief Justice Stone, dissenting: The two courts below have found that petitioner, at the time he was naturalized, belonged to Communist Party organizations which were opposed to the principles of the Constitution, and which advised, advocated and taught the overthrow of the Government by force and violence. They have found that petitioner believed in and supported the principles of those organizations. They have found also that petitioner “was not, at the time of his naturalization . . ., and during the period of five years immediately preceding the filing of his petition for naturalization had not behaved as, a person attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the same.” I think these findings are abundantly supported by the evidence, and hence that it is not within our judicial competence to set them aside—even though, sitting as trial judges, we might have made some other finding. The judgment below, cancelling petitioner’s citizenship on the ground that it was illegally obtained, should therefore be affirmed. The finality which attaches to the trial court’s determinations of fact from evidence heard in open court, and which ordinarily saves them from an appellate court’s intermeddling, should not be remembered in every case save this one alone. It is important to emphasize that the question for decision is much simpler than it has been made to appear. It is whether petitioner, in securing his citizenship by naturalization, has fulfilled a condition which Congress SCHNEIDERMAN v. UNITED STATES. 171 118 Stone, C. J., dissenting. has imposed on every applicant for naturalization—that during the five years preceding his application “he has behaved as a man . . . attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.”1 Decision whether he was lawfully entitled to the citizenship which he procured, and consequently whether he is now entitled to retain it, must turn on the existence of his attachment to the principles of the Constitution when he applied for citizenship, and that must be inferred by the trier of fact from his conduct during the five-year period. We must decide not whether the district court was compelled to find want of attachment, but whether the record warrants such a finding. The question then is not of petitioner’s opinions or beliefs—save as they may have influenced or may explain his conduct showing attachment, or want of it, to the principles of the Constitution. It is not a question of freedom of thought, of speech or of opinion, or of present imminent danger to the United States from our acceptance as citizens of those who are not attached to the principles of our form of government. The case obviously has nothing to do with our relations with Russia, where petitioner 1 By § 4 of the Act of June 29,1906, 34 Stat. 598, it is provided: “Fourth. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the State or Territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, and the name, place of residence, and occupation of each witness shall be set forth in the record.” 172 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. was born, or with our past or present views of the Russian political or social system. The United States has the same interest as other nations in demanding of those who seek its citizenship some measure of attachment to its institutions. Our concern is only that the declared will of Congress shall prevail—that no man shall become a citizen or retain his citizenship whose behavior for five years before his application does not show attachment to the principles of the Constitution. The Constitution has conferred on Congress the exclusive authority to prescribe uniform rules governing naturalization. Article I, § 8, cl. 4. Congress has exercised that power by prescribing the conditions, in conformity to which aliens may obtain the privilege of citizenship. Under the laws and Constitution of the United States, no person is given any right to demand citizenship, save upon compliance with those conditions. “An alien who seeks political rights as a member of this Nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare.” United States v. Ginsberg, 243 U. S. 472, 474. And whenever a person’s right to citizenship is drawn in question, it is the judge’s duty loyally to see to it that those conditions have not been disregarded. The present suit by the United States, to cancel petitioner’s previously granted certificate of citizenship, was brought pursuant to an Act of Congress (§ 15 of the Act of June 29, 1906, 34 Stat. 601), enacted long prior to petitioner’s naturalization. Section 15 authorizes any court by a suit instituted by the United States Attorney to set aside a certificate of naturalization “on the ground of fraud or on the ground that such certificate of citizenship was illegally procured.” Until now this Court, with- SCHNEIDERMAN v. UNITED STATES. 173 118 Stone, C. J., dissenting. out a dissenting voice, has many times held that in a suit under this statute it is the duty of the court to render a judgment cancelling the certificate of naturalization if the court finds upon evidence that the applicant did not satisfy the conditions which Congress had made prerequisite to the award of citizenship. Johannessen v. United States, 225 U. S. 227; Luria v. United States, 231 U. S. 9; Maibaum v. United States, 232 U. S. 714; United States v. Ginsberg, 243 U. S. 472; United States v. Ness, 245 U. S. 319; Maney v. United States, 278 U. S. 17, 23; Schwinn v. United States, 311 U. S. 616. Provision for such a review of the judgment awarding citizenship is within the legislative power of Congress and plainly is subject to no constitutional infirmity, Johannessen v. United States, supra, 236-40, especially where, as here, the statute antedated petitioner’s citizenship and the review was thus a condition of its award. Luria v. United States, supra, 24. Our decisions have uniformly recognized that Congress, which has power to deny citizenship to aliens altogether, may safeguard the grant of this privilege, precious to the individual and vital to the country’s welfare, by such procedure for determining the existence of indispensable requisites to citizenship as has been established in § 15. “No alien has the slightest right to naturalization unless all statutory requirements are complied with; and every certificate of citizenship must be treated as granted upon condition that the Government may challenge it as provided in § 15 and demand its cancellation unless issued in accordance with such requirements. If procured when prescribed qualifications have no existence in fact it is illegally procured; a manifest mistake by the judge cannot supply these nor render their existence non-essential.” United States v. Ginsberg, supra, 475. Speaking for a unanimous Court, Mr. Justice Brandeis thus stated what was, until today, the settled law: “If a certificate is procured when the pre- 174 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. scribed qualifications have no existence in fact, it may be cancelled by suit.” Tutun v. United States, 270 U. S. 568, 578. Congress has not seen fit to interpose any statute of limitations. And there is no suggestion that the Government was derelict in not bringing the suit earlier or that petitioner has been prejudiced by delay. Hence the issue before us is whether petitioner, when naturalized, satisfied the statutory requirements. It is the same issue as would be presented by an appeal from a judgment granting or denying naturalization upon the evidence here presented, although it may be assumed that in this proceeding the burden of proof rests on the Government, which has brought the suit, to establish petitioner’s want of qualifications. We need not stop to consider whether petitioner’s failure, in his naturalization proceeding, to disclose facts which could have resulted in a denial of his application, constituted fraud within the meaning of the statute. For present purposes it is enough that the evidence supports the conclusion of the courts below as to petitioner’s want of attachment to the principles of the Constitution, and, that § 15 has, ever since its enactment in 1906, been construed by this Court as requiring certificates of citizenship to be cancelled as illegally procured whenever the court finds on evidence that at the time of naturalization the applicant did not in fact satisfy the statutory prerequisites. To meet the exigencies of this case, it is now for the first time proposed by the concurring opinion of Mr. Justice Douglas that a new construction be given to the statute which would preclude any inquiry concerning the fact of petitioner’s attachment to the Constitution. It is said that in a § 15 proceeding the only inquiry permitted, apart from fraud, is as to the regularity of the naturalization proceedings on their face; that—however SCHNEIDERMAN v. UNITED STATES. 175 118 Stone, C. J., dissenting. much petitioner fell short of meeting the statutory requirements for citizenship—-if he filed, as he did, pro forma affidavits of two persons, barely stating that he met the statutory requirements of residence, moral character and attachment to the Constitution, and if the court on the basis of the affidavits made the requisite findings and order, then all further inquiry is foreclosed. To this easy proposal for the emasculation of the statute there are several plain and obvious answers. Section 15 authorizes and directs the Government to institute the suit to cancel the certificate of naturalization on the ground of fraud or on the ground that the certificate was illegally procured. Until now it has never been thought that a certificate of citizenship procured by one who has not satisfied the statutory conditions for citizenship, is nevertheless lawfully procured. But the concurring opinion of Mr. Justice Douglas suggests that, for purposes of § 15, “attachment to the principles of the Constitution” is not a condition of becoming a citizen. It suggests that the statute is satisfied, even though the applicant was never in fact attached to the principles of the Constitution, so long as such attachment was made to appear, from pro forma affidavits, to the satisfaction of the naturalization court. This is said to be the case regardless of whether in fact the affidavits, and the certificate of citizenship based on them, are wholly mistaken, and despite the fact that the naturalization proceeding, as apparently it was here, is an ex parte proceeding in which the Government is not represented. It would seem passing strange that Congress—which authorized cancellation of citizenship under § 15 for failure to hold the naturalization hearing in open court instead of in the judge’s chambers (United States v. Ginsberg, supra), or for failure to present the requisite certificate of arrival in this country (Maney v. United States, 552826—44-------16 176 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. supra)—should be thought less concerned with the applicant’s attachment to the principles of the Constitution and that he be well disposed to the good order and happiness of the United States. For what could be more important in the selection of citizens of the United States than that the prospective citizen be attached to the principles of the Constitution? Moreover, if in the absence of fraud the finding of the naturalization court in this case is final and hence beyond the reach of a § 15 proceeding, it would be equally final in the case of a finding, contrary to the actual fact, that the applicant had been for five years a continuous resident in the United States, since that requirement too is set forth in the sentence of § 4 which provides that “it shall be made to appear to the satisfaction of the court.” Yet it is settled that a certificate of citizenship based on a mistaken finding of five years residence is subject to revocation. United States v. Ginsberg, supra. And in Schwinn v. United States, supra, it appeared, from extrinsic evidence first offered in a § 15 proceeding, that the witnesses at the naturalization hearing had been mistaken as to the length of time they had known the applicant, and that for a part of the five-year period no witness had been produced with actual knowledge of the applicant’s residence or qualifications. We held, without dissent, 311 U. S. 616, “that the certificate of citizenship was illegally procured,” and for that reason we affirmed a judgment cancelling it.2 If we are to give effect to the language and purpose of Congress, it would seem that we must reach the same result in the case of the naturalization court’s mistaken or unwarranted finding of attachment to the principles of the Constitution, even though 2 The district court’s decision was based on both fraud and illegality. The circuit court of appeals relied upon fraud alone, 112 F. 2d 74, but our affirmance was rested “on the sole ground” of illegality. SCHNEIDERMAN v. UNITED STATES. 177 118 Stone, C. J., dissenting. the conduct of the applicant and his witnesses at the naturalization hearing fell short of perjury. The purpose of § 15—like that of § 11, which authorizes the Government to appear in a naturalization proceeding to contest the application—is not merely to insure the formal regularity of the proceeding, but to protect the United States from the injury which would result from the acceptance as citizens of any who are not lawfully entitled to become citizens. Congress left the naturalization proceeding simple and inexpensive, by permitting it ordinarily to be conducted ex parte. Thus approximately 200,000 certificates of naturalization were issued during the year in which petitioner became a citizen. Annual Report of the Secretary of Labor, 1940, p. 115. But by § 15 Congress afforded the Government an independent opportunity to inquire into any naturalization if upon later scrutiny it appeared that the certificate of citizenship had not been lawfully procured. As the Court declared in United States v. Ness, supra, 327, “§ 11 and § 15 were designed to afford cumulative protection against fraudulent or illegal naturalization.” All this was made abundantly clear by decisions of this Court more than twenty-five years ago. See Johannessen v. United States, supra; Luria v. United States, supra; United States v. Ginsberg, supra; United States v. Ness, supra, 325-27. In the intervening years Congress has often revised the naturalization laws, but it has not thought it appropriate to modify this Court’s interpretation of the function of § 15 in the naturalization procedure. This is persuasive that the interpretation of § 15 now proposed defies the purpose and will of Congress. It is inconceivable that Congress should have intended that a naturalized citizen’s attachment to the principles of the Constitution—the most fundamental requirement for citizenship—should be the one issue which, in the absence 178 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. of fraud, the Government is foreclosed from examining. To limit the Government to proof of fraud in such cases is to read “illegality” out of the statute in every instance where an alien demonstrably not attached to the principles of the Constitution has procured a certificate of citizenship. Even if we were to recast an Act of Congress in accordance with our own notions of policy, it would be difficult to discover any considerations warranting the adoption of a device whose only effect would be to make certain that persons never entitled to the benefits of citizenship could secure and retain them. That could not have been the object of Congress in enacting § 15. As we are not here considering whether petitioner’s certificate of naturalization was procured by fraud, there is no occasion, and indeed no justification, for importing into this case the rule, derived from land fraud cases, that fraud, which involves personal moral obliquity, must be proved by clear and convincing evidence. The issue is not whether petitioner committed a crime but whether he should be permitted to enjoy citizenship when he has never satisfied the basic conditions which Congress required for the grant of that privilege. We are concerned only with the question whether petitioner’s qualifications were so lacking that he was not lawfully entitled to the privilege of citizenship which he has procured. There is nothing in § 15, nor in any of our numerous decisions under it, to suggest that such an issue is to be tried as fraud is tried, or that it is not to be resolved, as are other cases, by the weight of evidence. No plausible reason has been advanced why it should not be. But the point need not be labored, for no matter how it is determined it can give no aid or comfort to petitioner. The evidence in this case to which I shall refer and on which the courts below were entitled to rely is clear, not speculative; and since petitioner himself has not challenged it, the trial court was SCHNEIDERMAN v. UNITED STATES. 179 118 Stone, C. J., dissenting. entitled to accept it as convincing, which it evidently did. The statute does not, as seems to be suggested, require as a condition of citizenship that a man merely be capable of attachment to the principles of the Constitution—a requirement which presumably all mankind could satisfy. It requires instead that the applicant be in fact attached to those principles when he seeks naturalization, and § 15 makes provision for the Government to institute an independent suit, subsequent to naturalization, to inquire whether that condition was then in fact fulfilled. Congress has exhibited no interest in petitioner’s capabilities. Nor did Congress require only that it be not impossible for petitioner to have an attachment to the principles of the Constitution. The Act specifies the fact of attachment as the test, requiring this to be affirmatively shown by the applicant; and by § 15 Congress provided a means for the United States to ascertain that fact by a judicial determination. The prescribed conditions for the award of citizenship by naturalization are few and readily understood, and we must accept them as the expression of the Congressional judgment that aliens not satisfying those requirements are not worthy to be admitted to the privilege of citizenship. Congress has declared that before one is entitled to that privilege he must take the oath of allegiance “that he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.” Act of June 29,1906, § 4 (Third), 34 Stat. 597. And as I have said, the applicant must make it appear to the court admitting him to citizenship that for the five years preceding the date of his application he has resided continuously within the United States and “that during that time he has behaved as a man of good 180 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.” Moreover, at the time of petitioner’s naturalization, the statutes of the United States excluded from admission into this country “aliens who believe in, advise, advocate, or teach, or who are members of or affiliated with any organization, association, society, or group, that believes in, advises, advocates, or teaches: (1) the overthrow by force or violence of the Government of the United States . . .” Act of October 16, 1918, § 1, 40 Stat. 1012, as amended by subsection (c) of the Act of June 5, 1920, 41 Stat. 1008, 1009. The statutes also barred admission to the United States of “aliens who ... knowingly circulate, distribute, print, or display, or knowingly cause to be circulated, distributed, printed, published, or displayed . . . any written or printed matter . . . advising, advocating, or teaching: (1) the overthrow by force or violence of the Government of the United States . . .” Ibid., subsection (d). And by § 2 of the Act of October 16, 1918, it was provided that any alien who, after entering the United States, “is found ... to have become thereafter, a member of any one of the classes of aliens” just enumerated, shall be taken into custody and deported. See Kessler n. Strecker, 307 U. S. 22. Quite apart from the want of attachment to the Constitution and the consequent disqualification of such aliens for citizenship, their belonging to any of these classes would disqualify them for citizenship since their presence in the United States, without which they cannot apply for citizenship, would be unlawful. And in the light of the evidence—presently to be discussed— even the Court’s opinion concedes (p. 153) “We do not say that a reasonable man could not possibly have found, as the district court did, that the Communist Party in 1927 actively urged the overthrow of the Government by SCHNEIDERMAN v. UNITED STATES. 181 118 Stone, C. J., dissenting. force and violence.” In addition, the evidence makes it clear beyond all reasonable doubt that petitioner, up to the time of his naturalization, was an alien who knowingly circulated or distributed, or caused to be circulated or distributed, printed matter advocating the overthrow of the Government by force or violence. Wholly apart from the deportation statute, the judgment should be affirmed because the trial court was justified in finding that petitioner, in 1927, was not and had not been attached to the principles of the Constitution. My brethren of the majority do not deny that there are principles of the Constitution. The Congress of 1795, which passed the statute requiring an applicant for naturalization to establish that he has “behaved as a man . . . attached to the principles of the Constitution” (1 Stat. 414), evidently did not doubt that there were. For some of its members had sat in the Constitutional Convention. In the absence of any disclaimer I shall assume that there are such principles and that among them are at least the principle of constitutional protection of civil rights and of life, liberty and property, the principle of representative government, and the principle that constitutional laws are not to be broken down by planned disobedience. I assume also that all the principles of the Constitution are hostile to dictatorship and minority rule; and that it is a principle of our Constitution that change in the organization of our government is to be effected by the orderly procedures ordained by the Constitution and not by force or fraud. With these in mind, we may examine petitioner’s behavior as disclosed by the record, during the five years which preceded his naturalization, in order to ascertain whether there was basis in the evidence for the trial judge’s findings. In determining whether there was evidence supporting the finding of petitioner’s want of attachment to constitutional principles, courts must look, as the statute admonishes, to see whether in the five- 182 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. year period petitioner behaved as a man attached to the principles of the Constitution. And we must recognize that such attachment or want of it is a personal attribute to be inferred from all the relevant facts and circumstances which tend to reveal petitioner’s attitude toward those principles. Petitioner, who is an educated and intelligent man, took out his first papers in 1924, when he was eighteen years of age, and was admitted to citizenship on June 10, 1927, when nearly twenty-two. Since his sixteenth year he has been continuously and actively engaged in promoting in one way or another the interests of various Communist Party organizations affiliated with and controlled as to their policy and action by the Third International, the parent Communist organization, which had its headquarters and its Executive Committee in Moscow.8 3 3 During the whole period relevant to this litigation, the Communist Party was a world organization, known as the Third Communist International (or Comintern), created in 1919, of which the Communist Parties in each country were sections. The supreme governing body of the Third Communist International—which exercised control of the Party program, tactics and organization—was the World Congress of the Communist International. Between meetings of the Congress its authority was vested in the Executive Committee of the Communist International. The resolutions of the Congress, and between meetings those of the Executive Committee, were binding on all sections. In the United States the Workers Party of America, a Communist organization, was established in 1921. It was affiliated with the Communist International, and had sent delegates to the Third World Congress of the International earlier in that year. The Workers Party of America has been since continued, and successively known as the Workers (Communist) Party and as the Communist Party of the United States of America. The Party sent accredited representatives to the Communist International and recognized the leadership of the International. It was affiliated with the Third International, of which it constituted a section. All the events with which this litigation is concerned occurred long prior to the dissolution of the Comintern in May 1943. SCHNEIDERMAN v. UNITED STATES. 183 118 Stone, C. J., dissenting. The evidence shows petitioner’s loyalty to the Communist Party organizations; that as a member of the Party he was subject to and accepted its political control, and that as a Party member his adherence to its political principles and tactics was required by its constitution. Petitioner was born in Russia on August 1, 1905, and came to the United States in 1907 or 1908. In 1922, when a 16-year old student at a night high school in Los Angeles, he became one of the organizers and charter members of the Young Workers League of California. For two or three years—and during the five-year period which we are examining—he was educational director of the League; it was his duty “to organize forums and studies for classes.” “My job was to register students in the classes and send out notices for meetings; in other words, to organize the educational activities of the League for which instructors were supplied.” The outlines of the curriculum of this educational program were established by the League’s national committee. The League (whose name was later changed to the Young Communist League) was affiliated with the Communist International.4 In 1928, just after he was naturalized, petitioner became “organizer” or “director” of the League—“I was the official spokesman for the League and directed its administrative and political affairs and educational affairs.” Petitioner was a delegate to the League’s National Con- 4 The Young Workers League was affiliated with the Young Communist International and the Communist International. It sent delegates to the Congress of the Young Communist International. It was also closely related to the Workers Party, and sent delegates to the Party Conventions. At its Third National Convention, the Party adopted the following resolution: ‘Tlie task of reaching the youth with the message of Communism, of interesting them in our cause and organizing them for the militant struggle against the existing social order and its oppression and exploitation is of major importance for the whole Communist movement. In carrying on this viork the Young Workers League is pre- 184 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. vention in 1922, and again in 1925. Meanwhile, on February 8, 1924, he had filed a declaration of intention to become a citizen of the United States. At the end of 1924, petitioner joined the Workers Party (which later changed its name to the Workers Communist Party and still later to the Communist Party of the United States of America). The Party was a section of the Third International. The Party constitution, at the time petitioner became a member, provided (Article III, § 1) that “every person who accepts the principles and tactics of the Workers Party of America and agrees to submit to its discipline and engage actively in its work shall be eligible to membership.” Applicants for membership were required (Article III, § 2) to sign an application card reading as follows: “The undersigned declares his adherence to the principles and tactics of the Workers Party of America as expressed in its program and constitution and agrees to submit to the discipline of the party and to engage actively in its work.” It was likewise provided (Article X, §§ 1, 2) that “all decisions of the governing bodies of the Party shall be binding upon the membership and subordinate units of the organization,” and that “any member or organization violating the decisions of the Party shall be subject to suspension or expulsion.”8 During 1925 and 1926 petitioner was “cor- paring the fighters for Communism who will soon stand in the ranks of the Party as part of its best fighters.” The Second Year of the Workers Party of America. Report of The Central Executive Committee to the Third National Convention. Held in Chicago, Illinois, Dec. 30, 31, 1923 and Jan. 1, 2, 1924. Theses, Program, Resolutions. Published by the Literature Department, Workers Party of America, 1009 N. State St., Chicago, Ill. (p. 122.) 5 Program and Constitution, Workers Party of America. Adopted at National Convention, New York City, December 24-25-26-27, 1921. Amended at National Convention, Chicago, Ill., December 30- SCHNEIDERMAN v. UNITED STATES. 185 118 Stone, C. J., dissenting. responding secretary” of the Workers Party in Los Angeles. As such, he wrote down the minutes and sent out communications for meetings; and a letter which he signed in his capacity as “city central secretary” indicates that he was in charge of outgoing correspondence with affiliates of the Party. In 1925 he attended the Party convention. After his naturalization, petitioner attended the Sixth World Congress of the Communist International, at Moscow, in 1928; and from 1929 to 1930 he was district organizational secretary of the Party for a district which included Arizona, Nevada and California. At various subsequent times he was district organizer in Connecticut, in Minnesota, and in California. He ran twice as the Party’s candidate for governor of Minnesota. He held other official positions in the Party, and at the time of the hearing in the district court was California State Secretary of the Party and a member of the State Central Committee. These facts, while not directly probative of his behavior during the five-year period 1922-1927, at least establish that his early devotion to the Party organizations was not transitory, nor inconsistent with his genuine and settled convictions. The evidence shows and it is not denied that the Communist Party organization at the time in question was a revolutionary party having as its ultimate aim generally, and particularly in England and the United States, the overthrow of capitalistic government, and the substitution for it of the dictatorship of the proletariat. It sought to accomplish this through persistent indoctrination of the people in capitalistic countries with Party principles, by the organization in those countries of sections of the 31, 1923, and January 1, 1924. Published by Literature Department, Workers Party of America, 1113 W. Washington Boulevard, Chicago, Ill. 186 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. Third International, by systematic teaching of Party principles at meetings and classes held under Party auspices, and by the publication and distribution of Communist literature which constituted one of the basic principles of Party action. In accordance with the policy established at its Second World Congress in 1920, the Party press was brought under Party control through ownership of the various publication agencies. Strict adherence to Party principles was demanded of all publications, which were required to be edited by Party members of proved loyalty to the proletarian revolution. Propaganda was required to conform to the program and decisions of the Third International. Editors were removed and Party members expelled for noncompliance. Publications not conforming to Party principles were barred from Party classes. Many such Communist Party publications were introduced at the trial and constitute a large part of the evidence in this case. Perusal of the record can leave no doubt of petitioner’s unqualified loyalty to the Communist Party. His continuous services to the Party for twenty years in a great variety of capacities, and his familiarity with Party programs and literature, are convincing proof of his complete devotion to Communist Party principles, and his desire to advance them. Throughout he has been a diligent student of Party publications. Many of them were used in the Communist classes of which he was educational director in the years immediately preceding his naturalization. All were particularly brought to his attention as they were introduced in evidence and excerpts relative to the issues were discussed in open court. Except as may be later noted, he did not deny familiarity with them or disavow their teachings. They were the official exposition of the doctrines of the Party to which he had formally pledged his alle- SCHNEIDERMAN v. UNITED STATES. 187 118 Stone, C. J., dissenting. giance, diligently disseminated by him for the indoctrination of his fellow countrymen, especially the members of the Youth organizations of the Party. In the circumstances, and especially in the absence of any disavowal by petitioner or the assertion by him of ignorance of the principles which they proclaimed, they are persuasive evidence of the nature and extent of his want of attachment to the principles of the Constitution. In appraising them in this aspect it will be most useful to state in somewhat summary form some of the teachings of these publications, classified with reference to principles of the Constitution to which they relate, and to give a few typical examples, of which many more could be given from the evidence. Unless otherwise noted, I shall refer only to those with which petitioner was familiar and which were published under the auspices of the Party and by its official publication agencies. As I have said, it is not questioned that the ultimate aim of the Communist Party in 1927 and the years preceding was the triumph of the dictatorship of the proletariat and the consequent overthrow of capitalistic or bourgeois government and society. Attachment to such dictatorship can hardly be thought to indicate attachment to the principles of an instrument of government which forbids dictatorship and precludes the rule of the minority or the suppression of minority rights by dictatorial government. But the Government points especially to the methods by which that end was to be achieved to show that those who pursue or advocate such methods exhibit their want of attachment to the principles of the Constitution. Methods repeatedly and systematically advocated, in the Communist Party literature to which I have referred, include first a softening up process by which the breakdown and disintegration of capitalistic governments was to be achieved by systematic 188 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. and general resort to violation of the laws, and second, the overthrow of capitalistic governments by force and violence. It was proclaimed that “For all countries, even for most free ‘legal’ and ‘peaceful’ ones in the sense of a lesser acuteness in the class struggle, the period has arrived, when it has become absolutely necessary for every Communist party to join systematically lawful and unlawful work, lawful and unlawful organization. . . . The class struggle in almost every country of Europe and America is entering the phase of civil war. Under such conditions the Communists can have no confidence in bourgeois laws. They should create everywhere a parallel illegal apparatus, which at the decisive moment should do its duty by the party, and in every way possible assist the revolution. In every country where, in consequence of martial law or of other exceptional laws, the Communists are unable to carry on their work lawfully, a combination of lawful and unlawful work is absolutely necessary.”6 * 8 “Opposition 6 See pp. 18, 28, of Statutes, Theses and Conditions of Admission to the Communist International. Adopted by the Second Congress of the Communist International, July 17 to August 7, 1920. The edition of this document in evidence in the present case was published in March, 1923, under the auspices of the Workers Party of America, and contained the following statement on the inside front cover: “The Workers Party declares its sympathy with the principles of the Communist International and enters the struggle against American capitalism, the most powerful of the capitalist groups, under the inspiration and leadership of the Communist International. “It rallies to the call Workers of the World Unite/ " Petitioner testified that he had no recollection of “this particular edition” but that “I have no doubt that possibly a pamphlet” like it was sold in Party bookstores. This document was marked for identification and the court later denied a motion to exclude it and other exhibits from the evidence. During the trial petitioner’s counsel twice referred to the document as having been put in evidence. Petitioner’s counsel included it, with all other exhibits in evidence or offered for identification, in his designation of the record to be made SCHNEIDERMAN v. UNITED STATES. 189 118 Stone, C. J., dissenting. in principle to underground (illegal) work and an unwillingness to understand the absolute necessity for a Communist Party of combining legal with illegal work” was in fact one ground for expulsion from the Party of a minority faction.* 7 Advocacy of illegal conduct generally was accompanied by advocacy of particular types of illegality. The Party was instructed to arouse workers to “mass violation” of an injunction “whenever and wherever an injunction is issued by courts against strikers.”8 In the literature of the period now in question unlawful tactics were particularly to be directed toward government armed forces. In addition to “systematic unlawful work,” “it is especially necessary to carry on unlawful work in the army, navy, and police.”9 Refusal to participate in “persistent and systematic propaganda and agitation” in the army was “equal to treason to the revo- up in the circuit court of appeals. It was so included by order of the court. Despite the Government’s oversight in failing formally to say that the exhibit was being introduced in evidence, it obviously was deemed to be in evidence by both the parties and the trial court. The exhibit is unquestionably relevant and competent evidence, and it became a part of the record before the courts below. 7 See p. 94 of The 4th National Convention of the Workers (Communist) Party of America. Held in Chicago, Ill., August 21-30, 1925. Published by the Daily Worker Publishing Co., 1113 W. Washington Blvd., Chicago, Ill. The publisher’s notice inside the back cover stated that this pamphlet was “absolutely indispensable to any member of the party.” The pamphlet, which was the official report of the convention, was sold and circulated by the Party in Los Angeles in 1925. Petitioner disclaimed familiarity with the literature of this convention, but testified that he had attended the convention. He also testified he was in agreement with the general program and principles of the Workers (Communist) Party. 8 Ibid. p. 107. This was part of a resolution, adopted unanimously by the Party Convention, relating to “Party Policies for Trade Union Work.” Statutes, Theses and Conditions of Admission to the Communist International (see note 6, supra), p. 19. 190 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. lutionary cause, and incompatible with affiliation with the Third International,”10 11 and this because “it is necessary, above all things, to undermine and destroy the army in order to overcome the bourgeoisie.”11 There is abundant documentary evidence of the character already described to support the court’s finding that the Communist Party organizations, of which petitioner was a member, diligently circulated printed matter which advocated the overthrow of the Government of the United States by force and violence, and that petitioner aided in that circulation and advocacy. From the beginning, and during all times relevant to this inquiry, there is evidence that the Communist Party organizations advocated the overthrow of capitalistic governments by revolution to be accomplished, if need be, by force of arms. We need not stop to consider the much discussed question whether this meant more than that force was to be used if established governments should be so misguided as to refuse to make themselves over into proletarian dictatorships by amendment of their governmental structures, or should have the effrontery to defend themselves from lawless or subversive attacks. For in any case the end contemplated was the overthrow of government, and the measures advocated were force and violence. 10 Ibid. p. 28. 11A B C of Communism, p. 69. This was written by N. Bucharin & E. Preobraschensky, in 1919, translated into English in June, 1921, and published between 1920 and 1924 by the Lyceum-Literature Department, Workers Party of America, 799 Broadway, New York City. There was evidence that this pamphlet was a basic work of Party study classes in 1924 and 1925; that it was expressly designed for such purposes, was officially circulated by the Party, and was still advertised by the Workers Library Publishers in 1928. Petitioner testified that he had read the work and was familiar with it, although he said that the authors had later been expelled from the Russian Communist Party. SCHNEIDERMAN v. UNITED STATES. 191 118 Stone, C. J., dissenting. The fountainhead of Communist principles, the Communist Manifesto, published by Marx and Engels in 1848, had openly proclaimed that Communist ends could be attained “only by the forcible overthrow of all existing social conditions.” After 1920 these teachings were revived and restated in Party publications which, in the period we are now considering, were used in the Commu-nist educational program that petitioner was directing. They recognized that “the proletarian revolution is impossible without the violent destruction of the bourgeois governmental machine and the putting of a new one in its place”; that “the dictatorship of the proletariat cannot be the result of the peaceful development of bourgeois society and democracy; it can be the result only of the destruction of the bourgeois army and State machine, the bourgeois administrative apparatus and the whole bourgeois political system”; that “the dictatorship of the proletariat is born not of the bourgeois state of things, but of its destruction after the overthrow of the bourgeoisie, of the expropriation of landed proprietors and capitalists, of the socialization of the essential instruments and means of production, of the development of the proletarian revolution through violence. The dictatorship of the proletariat is the revolutionary power resting on violence against the bourgeoisie.”12 Petitioner testified that at the time of his naturalization he subscribed to the philosophy and principles of socialism as manifested in the writings of Lenin. The State 12 The Theory and Practice of Leninism, by Stalin, pp. 33, 32, 30-31. Published for the Workers Party of America by the Daily Worker Publishing Co., Chicago, Ill. This pamphlet was used in Communist Party classes in 1924 and 1925, and was circulated by the Literature Department of the Communist Party and sold in Party bookshops Five thousand copies were published between January 15 and August 1, 1925. 552826—44---17 192 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. and Revolution, by Lenin, with which petitioner was familiar, and which was circulated by the Literature Department of the Communist Party in 1924 and 1925 and used by Communist Party classes, declared: “The necessity of systematically fostering among the masses this and only this point of view about violent revolution lies at the root of the whole of Marx’s and Engels’ teaching, and it is just the neglect of such propaganda and agitation both by the present predominant Social-Chauvinists and the Kautskian schools that brings their betrayal of it into prominent relief.”13 And in order that there might be no misunderstanding of the term “revolution,” Engels’ definition of revolution was revived and restated as follows: “Revolution is an act in which part of the population forces its will on the other parts by means of rifles, bayonets, cannon, i. e., by most authoritative means. And the conquering party is inevitably forced to maintain its supremacy by means of that fear which its arms inspire in the reactionaries.”14 “That which before the victory of the proletariat seems but a theoretical difference of opinion on the question of ‘democracy,’ becomes inevitably on the morrow of the victory, a question which can only be decided by force of arms.”15 “The working class cannot achieve victory over the bourgeois by means of the general strike alone, and by the policy of folded arms. The proletariat must resort to an armed uprising.”16 “To say that the revolution can be achieved without civil war is to say that a ‘peaceful’ revolution is possible. . . . Marx was a believer in civil war—that is, the armed struggle of 13 P. 16, new edition, April, 1924. Published for the Workers Party of America by The Daily Worker Publishing Co., Chicago, Ill. 14 Ibid., p. 44. 15 Statutes, Theses and Conditions of Admission to the Communist International (see note 6, supra), p. 15. 18 Ibid., p. 36. SCHNEIDERMAN v. UNITED STATES. 193 118 Stone, C. J., dissenting. the proletariat against the bourgeoisie. . . . The teachers of Socialism took the revolution very seriously. It was clear to them that the proletariat could not convert the bourgeoisie, and that the workers would have to impose their will upon their enemies through a war carried on by guns and bayonets.”17 The Party teachings in this and other publications were that revolution by force of arms was a universal principle and consequently one which embraced the United States, and obviously was intended to do so when taught in Communist classes in the United States. Communist publications in evidence were at pains to point out that “Marx’s limitation with regard to the ‘continent’ has furnished the opportunists and mensheviks of every country with a pretext for asserting that Marx admitted the possibility of a peaceful transformation of bourgeois democracy into proletariat democracy, at least [in] some countries (England and America). . . . But now the situation in these countries is radically different. Imperialism has reached its apogee there, and there militarism and bureaucracy are sovereign. In consequence Marx’s restriction no longer applies.”18 In order to determine whether petitioner’s behavior established his attachment to the principles of the Constitution, we are entitled to consider the political system which his Party proposed to establish and toward which his own efforts in promoting the Communist cause were directed. About this there is and can be no serious dispute. Under the new system existing constitutional principles were to be abandoned. In the new government to be established by the Communists, the freedoms guaran- 17 A B C of Communism (see note 12, supra), pp. 109-10. 18 The Theory and Practice of Leninism, by Stalin (see note 12, supra), p. 32. To the same effect see The State and Revolution, by Lenin (note 13, supra), p. 26. 194 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. teed by the Bill of Rights were to be ended. “. . . There can be no talk of ‘freedom’ for everybody. The dictatorship of the proletariat is incompatible with the freedom of the bourgeoisie. The dictatorship is, in fact, necessary to deprive the bourgeoisie of their freedom, to chain them hand and foot in order to make it absolutely impossible for them to fight the revolutionary proletariat.”19 There was to be “immediate and unconditional confiscation of the estates of the landowners and big landlords” and “no propaganda can be admitted in the ranks of the Communist parties in favor of an indemnity to be paid to the owners of large estates for their expropriation.”20 The new state was not to include “representatives of the former ruling classes.”21 “The dictatorship of the proletariat cannot be a ‘complete democracy, a democracy for all, for rich and poor alike; it has to be a State that is democratic, but only jor the proletariat and the propertyless, a State that is dictatorial, but only against the bourgeoisie.’ . . . Under the dictatorship of the proletariat, democracy is proletarian: it is democracy for the exploited majority, based on the limitation of the rights of the exploiting minority and directed against this minority.”22 23 * The aims of the Communists could be achieved only by “the annihilation of the entire bourgeois governmental apparatus, parliamentary, judicial, military, bureaucratic, administrative, municipal,” and it was necessary for the Communists “to break and destroy” the “apparatus.”28 The annihilation of the existing political structure was 19 A B C of Communism (see note 11, supra), pp. 65-66. 20 Statutes, Theses and Conditions of Admission to the Communist International (see note 6, supra), p. 82. 21 Ibid., p. 46. 22 The Theory and Practice of Leninism, by Stalin (see note 12, supra), pp. 31-32. 23 Statutes, Theses and Conditions of Admission to the Communist International (see note 6, supra), pp. 11,44. SCHNEIDERMAN v. UNITED STATES. 195 118 Stone, C. J., dissenting. deemed as necessary in the United States as elsewhere.24 If elected to public office the Communist was directed to “facilitate this task of destruction” of the existing “apparatus,” since the “bourgeois State organizations” were to be utilized only “with the object of destroying them.”25 It is unnecessary to give further examples of the teachings of Communist Party organizations with which the documentary evidence is shot through and through. Appended to this opinion are excerpts from two exhibits. These have been chosen, not because they prove more than others but only because they express in short form ideas which permeate all. The evidence, as a whole, and the exhibits which we have especially mentioned, show a basis for finding in the Party teachings, during the period in question, an unqualified hostility to the most fundamental and universally recognized principles of the Constitution. On the argument we were admonished that petitioner favored change in our form of government, which is itself a principle of the Constitution, since the Constitution provides for its own amendment, and that in any case the Communist Party had greatly modified its aims in more recent years. It is true that the Constitution provides for its own amendment by an orderly procedure but not through the breakdown of our governmental system by lawless conduct and by force. It can hardly satisfy the requirement of “attachment to the principles of the Constitution” that one is attached to the means for its destruction. And whether at some time after 1927 the Party may have abandoned these doctrines is immaterial. It would be little short of preposterous to assert that vigorous aid knowingly given by a pledged Party member 24 See note 18, supra. 25 Statutes, Theses and Conditions of Admission to the Communist. International (see note 6, supra), pp. 44,45,46. 196 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. in disseminating the Party teachings, to which reference has been made, is compatible with attachment to the principles of the Constitution. On the record before us it would be difficult for a trial judge to conclude that petitioner was not well aware that he was a member of and aiding a party which taught and advocated the overthrow of the Government of the United States by force and violence. It would be difficult also to find as a fact that petitioner behaved as a man attached to the principles of the Constitution. The trial judge found that he did not. And the same evidence would seem to furnish plain enough support for the trial judge’s further finding that petitioner did not behave as a man attached “to the good order and happiness” of the United States. Petitioner’s pledge of adherence to Communist Party principles and tactics, and his membership in the Communist organizations, were neither passive nor indolent. His testimony shows clearly that during the crucial years he was a young man of vigorous intellect and strong convictions. He spent his time actively arranging for the dissemination of a gospel of which he never has asserted either ignorance or disbelief. His wide acquaintance with Party literature, and his zealous promotion of Party interests for many years, preclude the supposition that he did not know the character of its teachings and did not aid in their advocacy. They are persuasive that he was without attachment to the constitutional principles which those teachings aimed to destroy. Yet the Court’s opinion seems to tell us that the trier of fact must not examine petitioner’s gospel to find out what kind of man he was, or even what his gospel was; that the trier of fact could not “impute” to petitioner any genuine attachment to the doctrines of these organizations whose teachings he so assiduously spread. It might as well be said that it is impossible to infer that a man is attached to the principles of a religious movement from the fact that he conducts SCHNEIDERMAN v. UNITED STATES. 197 118 Stone, C. J., dissenting. its prayer meetings, or, to take a more sinister example, that it could not be inferred that a man is a Nazi and consequently not attached to constitutional principles who, for more than five years, had diligently circulated the doctrines of Mein Kampf. In neither case of course is the inference inevitable. It is possible, though not probable or normal, for one to be attached to principles diametrically opposed to those, to the dissemination of which he has given his life’s best effort. But it is a normal and sensible inference which the trier of fact is free to make that his attachment is to those principles rather than to constitutional principles with which they are at war. A man can be known by the ideas he spreads as well as by the company he keeps. And when one does not challenge the proof that he has given his life to spreading a particular class of well-defined ideas, it is convincing evidence that his attachment is to them rather than their opposites. In this case it is convincing evidence that petitioner, at the time of his naturalization, was not entitled to the citizenship he procured because he was not attached to the principles of the Constitution of the United States and because he was not well disposed to the good order and happiness of the same. Mr. Justice Roberts and Mr. Justice Frankfurter join in this dissent. APPENDIX. Excerpts from Exhibit 26—Statutes, Theses and Conditions of Admission to the Communist International (see note 6, supra) : “The Communist International makes its aim to put up an armed struggle for the overthrow of the International bourgeoisie and to create an International Soviet Republic as a transition stage to the complete abolition of the State. The Communist International considers the dictatorship of the proletariat as the only means for the liberation of humanity from the horrors of capitalism. 198 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. The Communist International considers the Soviet form of government as the historically evolved form of this dictatorship of the proletariat.” p. 4. “Under the circumstances which have been created in the whole world, and especially in the most advanced, most powerful, most enlightened and freest capitalist countries by militarist imperialism—oppression of colonies and weaker nations, the universal imperialist slaughter, the ‘peace’ of Versailles—to admit the idea of a voluntary submission of the capitalists to the will of the majority of the exploited, of a peaceful, reformist passage to Socialism, is not only to give proof of an extreme petty bourgeois stupidity, but it is a direct deception of the workmen, a disguisal of capitalist wage-slavery, a concealment of the truth. This truth is that the bourgeoisie, the most enlightened and democratic portion of the bourgeoisie, is even now not stopping at deceit and crime, at the slaughter of millions of workmen and peasants, in order to retain the right of private ownership over the means of production. Only a violent defeat of the bourgeoisie, the confiscation of its property, the annihilation of the entire bourgeois governmental apparatus, parliamentary, judicial, military, bureaucratic, administrative, municipal, etc., even the individual exile or internment of the most stubborn and dangerous exploiters, the establishment of a strict control over them for the repression of all inevitable attempts at resistance and restoration of capitalist slavery—only such measures will be able to guarantee the complete submission of the whole class of exploiters.” p. 11. “That which before the victory of the proletariat seems but a theoretical difference of opinion on the question of ‘democracy,’ becomes inevitably on the morrow of the victory, a question which can only be decided by force of arms.” p. 15. “For all countries, even for most free ‘legal’ and ‘peaceful’ ones in the sense of a lesser acuteness in the class struggle, the period has arrived, when it has become absolutely necessary for every Communist party to join systematically lawful and unlawful work, lawful and unlawful organization.” p. 18. SCHNEIDERMAN v. UNITED STATES. 199 118 Stone, C. J., dissenting. “It is especially necessary to carry on unlawful work in the army, navy, and police, as, after the imperialist slaughter, all the governments in the world are becoming afraid of the national armies, open to all peasants and workingmen, and they are setting up in secret all kinds of select military organizations recruited from the bourgeoisie and especially provided with improved technical equipment.” p. 19. “The class struggle in almost every country of Europe and America is entering the phase of civil war. Under such conditions the Communists can have no confidence in bourgeois laws. They should create everywhere a parallel illegal apparatus, which at the decisive moment should do its duty by the party, and in every way possible assist the revolution. In every country where, in consequence of martial law or of other exceptional laws, the Communists are unable to carry on their work lawfully, a combination of lawful and unlawful work is absolutely necessary.” “A persistent and systematic propaganda and agitation is necessary in the army, where Communist groups should be formed in every military organization. Wherever, owing to repressive legislation, agitation becomes impossible, it is necessary to carry on such agitation illegally. But refusal to carry on or participate in such work should be considered equal to treason to the revolutionary cause, and incompatible with affiliation with the Third International.” p. 28. “Each party desirous of affiliating with the Communist International should be obliged to render every possible assistance to the Soviet Republics in their struggle against all counter-revolutionary forces. The Communist parties should carry on a precise and definite propaganda to induce the workers to refuse to transport any kind of military equipment intended for fighting against the Soviet Republics, and should also by legal or illegal means carry on a propaganda amongst the troops sent against the workers’ republics, etc.” p. 30. “The world proletariat is confronted with decisive battles. We are living in an epoch of civil war. The critical hour has struck. In almost all countries where there 200 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. is a labor movement of any importance the working class, arms in hand, stands in the midst of fierce and decisive battles. Now more than ever is the working class in need of a strong organization. Without losing an hour of invaluable time, the working class must keep on inde-fatigably preparing for the impending decisive struggle.” p. 33. “Until the time when the power of government will have been finally conquered by the proletariat, until the time when the proletarian rule will have been firmly established beyond the possibility of a bourgeois restoration, the Communist Party will have in its organized ranks only a minority of the workers. Up to the time when the power will have been seized by it, and during the transition period, the Communist Party may, under favorable conditions, exercise undisputed moral and political influence on all the proletarian and semi-proletarian classes of the population; but it will not be able to unite them within its ranks. Only when the dictatorship of the workers has deprived the bourgeoisie of such powerful weapons as the press, the school, parliament, the church, the government apparatus, etc.; only when the final overthrow of the capitalist order will have become an evident fact—only then will all or almost all the workers enter the ranks of the Communist Party.” pp. 33-34. “The working class cannot achieve the victory over the bourgeoisie by means of the general strike alone, and by the policy of folded arms. The proletariat must resort to an armed uprising.” p. 36. “As soon as Communism comes to light, it must begin to elucidate the character of the present epoch (the culminations of capitalism, imperialistic self-negation and self-destruction, uninterrupted growth of civil war, etc.). Political relationships and political groupings may be different in different countries, but the essence of the matter is everywhere the same: we must start with the direct preparation for a proletarian uprising, politically and technically, for the destruction of the bourgeoisie and for the creation of the new poletarian state. “Parliament at present can in no way serve as the arena of a struggle for reform, for improving the lot of the work- SCHNEIDERMAN v. UNITED STATES. 201 118 Stone, C. J., dissenting. ing people, as it has at certain periods of the preceding epoch. The centre of gravity of political life at present has been completely and finally transferred beyond the limits of parliament. On the other hand, owing not only to its relationship to the working masses, but also to the complicated mutual relations within the various groups of the bourgeois itself, the bourgeoisie is forced to have some of its policies in one way or another passed through parliament, where the various cliques haggle for power, exhibit their strong sides and betray their weak ones, get themselves unmasked, etc., etc. Therefore it is the immediate historical task of the working class to tear this apparatus out of the hands of the ruling classes, to break and destroy it, and to create in its place a new proletarian apparatus. At the same time, however, the revolutionary general staff of the working class is vitally concerned in having its scouting parties in the parliamentary institutions of the bourgeoisie, in order to facilitate this task of destruction.” pp. 44-45. “Parliamentarism cannot be a form of proletarian government during the transition period between the dictatorship of the bourgeoisie and that of the proletariat. At the moment when the accentuated class struggle turns into civil war, the proletariat must inevitably form its State organization as a fighting organization, which cannot contain any of the representatives of the former ruling classes; all fictions of a ‘national will’ are harmful to the proletariat at that time, and a parliamentary division of authority is needless and injurious to it; the only form of proletarian dictatorship is a Republic of Soviets. “The bourgeois parliaments, which constitute one of the most important apparatus of the State machinery of the bourgeoisie, cannot be won over by the proletariat any more than can the bourgeois order in general. The task of the proletariat consists in blowing up the whole machinery of the bourgeoisie, in destroying it, and all the parliamentary institutions with it, whether they be republican or constitutional-monarchical.” pp. 45-46. “Consequently, Communism repudiates parliamentarism as the form of the future; it renounces the same as a form of the class dictatorship of the proletariat; it repudiates the possibility of winning over the parliaments; 202 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. its aim is to destroy parliamentarism. Therefore it is only possible to speak of utilizing the bourgeois State organizations with the object of destroying them. The question can only and exclusively be discussed on such a plane. “All class struggle is a political struggle, because it is finally a struggle for power. Any strike, when it spreads through the whole country, is a menace to the bourgeois State, and thus acquires a political character. To strive to overthrow the bourgeoisie, and to destroy its State, means to carry on political warfare. To create one’s own class apparatus—for the bridling and suppression of the resisting bourgeoisie, whatever such an apparatus may be—means to gain political power.” p. 46. “The mass struggle means a whole system of developing demonstrations growing ever more acute in form, and logically leading to an uprising against the capitalist order of government. In this warfare of the masses developing into a civil war, the guiding party of the proletariat must, as a general rule, secure every and all lawful positions, making them its auxiliaries in the revolutionary work, and subordinating such positions to the plans of the general campaign, that of the mass struggle.” p. 47. “On the other hand, an acknowledgement of the value of parliamentary work in no wise leads to an absolute, in-all-and-any-case acknowledgement of the necessity of concrete elections and a concrete participation in parliamentary sessions.. The matter depends upon a series of specific conditions. Under certain circumstances it may become necessary to leave the parliament. The Bolsheviks did so when they left the pre-parliament in order to break it up, to weaken it, and to set up against it the Petrograd Soviet, which was then prepared to head the uprising; they acted in the same way in the Constituent Assembly on the day of its dissolution, converting the Third Congress of Soviets into the centre of political events. In other circumstances a boycotting of the elections may be necessary, and a direct, violent storming of both the great bourgeois State apparatus and the parliamentary bourgeois clique, or a participation in the elections with a boycott of the parliament itself, etc. SCHNEIDERMAN v. UNITED STATES. 203 118 Stone, C. J., dissenting. “In this way, while recognizing as a general rule the necessity of participating in the election to the central parliament, and the institutions of local self-government, as well as in the work in such institutions, the Communist Party must decide the question concretely, according to the specific conditions of the given moment. Boycotting the elections or the parliament, or leaving the parliament, is permissible, chiefly when there is a possibility of an immediate transition to an armed fight for power.” p. 49. “A Communist delegate, by decision of the Central Committee, is bound to combine lawful work with unlawful work. In countries where the Communist delegate enjoys a certain inviolability, this must be utilized by way of rendering assistance to illegal organizations and for the propaganda of the party.” p. 51. “Each Communist member [of the legislature] must remember that he is not a ‘legislator’ who is bound to seek agreements with the other legislators, but an agitator of the Party, detailed into the enemy’s camp in order to carry out the orders of the Party there. The Communist member is answerable not to the wide mass of his constituents, but to his own Communist Party—whether lawful or unlawful.” p. 52. “The propaganda of the right leaders of the Independents (Hilf erding, Kautsky, and others), proving the compatibility of the Soviet ‘system’ with the bourgeois Constituent Assembly, is either a complete misunderstanding of the laws of development of a proletarian revolution, or a conscious deceiving of the working class. The Soviets are the dictatorship of the proletariat. The Constituent Assembly is the dictatorship of the bourgeoisie. To unite and reconcile the dictatorship of the working class with that of the bourgeoisie is impossible.” “After the victory of the proletariat in the towns, this class [the landed peasants or farmers] will inevitably oppose it by all means, from sabotage to open armed counter-revolutionary resistance. The revolutionary proletariat must, therefore, immediately begin to prepare the necessary force for the disarmament of every single man of this class, and together with the overthrow of the capi- 204 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. talists in industry, the proletariat must deal a relentless, crushing blow to this class. To that end it must arm the rural proletariat and organize Soviets in the country, with no room for exploiters, and a preponderant place must be reserved to the proletarians and the semi-proletarians.” p. 80. “The revolutionary proletariat must proceed to an immediate and unconditional confiscation of the estates of the landowners and big landlords ... No propaganda can be admitted in the ranks of the Communist parties in favor of an indemnity to be paid to the owners of large estates for their expropriation.” p. 82. Excerpts from Exhibit 8—The State and Revolution, by Lenin (see note 13, supra): “We have already said above and shall show more fully at a later stage that the teaching of Marx and Engels regarding the inevitability of a violent revolution refers to the capitalist State. It cannot be replaced by the proletarian State (the dictatorship of the proletariat) through mere ‘withering away,’ but, in accordance with the general rule, can only be brought about by a violent revolution. The hymn sung in its honor by Engels and fully corresponding to the repeated declarations of Marx (see the concluding passages of the Poverty of Philosophy and the Communist Manifesto, with its proud and open declaration of the inevitability of a violent revolution; also Marx’s Criticism of the Gotha Program of 1875, in which, thirty years after, he mercilessly castigates its opportunist character)—this praise is by no means a mere ‘impulse,’ a mere declamation, or a mere polemical sally. The necessity of systematically fostering among the masses this and only this point of view about violent revolution lies at the root of the whole of Marx’s and Engels’ teaching, and it is just the neglect of such propaganda and agitation both by the present predominant Social-Chauvinists and the Kautskian schools that brings their betrayal of it into prominent relief. “The substitution of a proletarian for the capitalist State is impossible without violent revolution, while the abolition of the proletarian State, that is, of all States, is only possible through ‘withering away.’ ” pp. 15-16. SCHNEIDERMAN v. UNITED STATES. 205 118 Stone, C. J., dissenting. “The State is a particular form of organization of force; it is the organization of violence for the purpose of holding down some class. What is the class which the proletariat must hold down? It can only be, naturally, the exploiting class, i. e., the bourgeoisie. The toilers need the State only to overcome the resistance of the exploiters, and only the proletariat can guide this suppression and bring it to fulfilment—the proletariat, the only class revolutionary to the finish, the only class which can unite all the toilers and the exploited in the struggle against the capitalist class for its complete displacement from power.” pp. 17-18. “The doctrine of the class-war, as applied by Marx to the question of the State and of the Socialist revolution, leads inevitably to the recognition of the political supremacy of the proletariat, of its dictatorship, i. e., of an authority shared with none else and relying directly upon the armed force of the masses. The overthrow of the capitalist class is feasible only by the transformation of the proletariat into the ruling class, able to crush the inevitable and desperate resistance of the bourgeoisie, and to organize, for the new settlement of economic order, all the toiling and exploited masses. “The proletariat needs the State, the centralized organization of force and violence, both for the purpose of guiding the great mass of the population—the peasantry, the lower middle-class, the semi-proletariat—in the work of economic Socialist reconstruction.” pp. 18-19. “But, if the proletariat needs the State, as a particular form of organization of force against the capitalist class, the question almost spontaneously forces itself upon us: Is it thinkable that such an organization can be created without a preliminary breaking up and destruction of the machinery of government created for its own use by the capitalist class? The Communist Manifesto leads us straight to this conclusion, and it is of this conclusion that Marx wrote summing up the practical results of the revolutionary experience gained between 1849 and 1851.” p. 19. “Hence Marx excluded England, where a revolution, even a people’s revolution, could be imagined and was then possible, without the preliminary condition of the 206 OCTOBER TERM, 1942. Stone, C. J., dissenting. 320U.S. destruction ‘of the available ready machinery of the State? “Today, in 1917, in the epoch of the first great imperialist war, this distinction of Marx’s becomes unreal, and England and America, the greatest and last representatives of Anglo-Saxon ‘liberty,’ in the sense of the absence of militarism and bureaucracy, have today completely rolled down into the dirty, bloody morass of military-bureaucratic institutions common to all Europe, subordinating all else to themselves. Today, both in England and in America, the ‘preliminary condition of any real people’s revolution’ is the break-up, the shattering of the ‘available ready machinery of the State’ (perfected in those countries between 1914 and 1917, up to the ‘European’ general imperialist standard).” p. 26. “But from this capitalist democracy—inevitably narrow, stealthily thrusting aside the poor, and therefore to its core, hypocritical and treacherous—progress does not march along a simple, smooth and direct path to ‘greater and greater democracy,’ as the Liberal professors and the lower middle class Opportunists would have us believe. No, progressive development—that is, towards Communism—marches through the dictatorship of the proletariat; and cannot do otherwise, for there is no one else who can break the resistance of the exploiting capitalists, and no other way of doing it. “And the dictatorship of the proletariat—that is, the organization of the advance-guard of the oppressed as the ruling class, for the purpose of crushing the oppressors—cannot produce merely an expansion of democracy. Together with an immense expansion of democracy—for the first time becoming democracy for the poor, democracy for the people, and not democracy for the rich folk—the dictatorship of the proletariat will produce a series of restrictions of liberty in the case of the oppressors, exploiters, and capitalists. We must crush them in order to free humanity from wage-slavery; their resistance must be broken by force. It is clear that where there is suppression there must also be violence, and there cannot be liberty or democracy. “Engels expressed this splendidly in his letter to Bebel when he said, as the reader will remember, that ‘the pro- SCHNEIDERMAN v. UNITED STATES. 207 118 Jackson, J. letariat needs the State, not in the interests of liberty, but for the purpose of crushing its opponents; and, when one will be able to speak of freedom, the State will have ceased to exist? “Democracy for the vast majority of the nation, and the suppression by force—that is, the exclusion from democracy—of the exploiters and oppressors of the nation: this is the modification of democracy which we shall see during the transition from Capitalism to Communism.” pp. 63-64. “Again, during the transition from Capitalism to Communism, suppression is still necessary; but in this case it is the suppression of the minority of exploiters by the majority of exploited. A special instrument, a special machine for suppression—that is, the ‘State’—is necessary, but this is now a transitional State, no longer a State in the ordinary sense of the term. For the suppression of the minority of exploiters by the majority of those who were but yesterday wage slaves, is a matter comparatively so easy, simple and natural that it will cost far less bloodshed than the suppression of the risings of the slaves, serfs or wage laborers, and will cost the human race far less.” pp. 64-65. Mr. Justice Jackson: I do not participate in this decision. This case was instituted in June of 1939 and tried in December of that year. In January 1940, I became Attorney General of the United States and succeeded to official responsibility for it. 309 U. S. iii. This I have considered a cause for disqualification, and I desire the reason to be a matter of record. 552826—44--18 DECISIONS PER CURIAM, ETC., FROM JUNE 15, 1943, THROUGH JUNE 21, 1943.* No. 1056. Jack Lincoln Shops, Inc. v. State Dry Cleaners’ Board et al. Appeal from the Supreme Court of Oklahoma. June 21, 1943. Per Curiam: The appeal is dismissed for want of a substantial federal question. Nebbia v. New York, 291 U. S. 502; West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. Nebraska, 313 U. S. 236; and Dunn v. Ohio, 318 U. S. 739. Mr. Justice Roberts took no part in the consideration or decision of this case. Messrs. John B. Dudley and Duke Duvall for appellant. Reported below: 192 Okla. 251,135 P. 2d 332. No. 1064. Prebyl v. Prudential Insurance Co. et al. Appeal from the Supreme Court of Nebraska. June 21,1943. Per Curiam: The motion for leave to proceed in jorma pauperis is granted. The appeal is dismissed for the want of jurisdiction. § 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. Justice Roberts and Mr. Justice Douglas took no part in the consideration or decision of this case. Milton Prebyl, pro se. Reported below: 142 Neb. 532, 6 N. W. 2d 881. No. —. Ex parte Warren Wockner. June 21,1943. Application denied. Mr. Justice Roberts and Mr. Justice Douglas took no part in the consideration or decision of this application. *For decisions on applications for certiorari, see post, pp. 209, 210; rehearing, post, p. 213. 208 OCTOBER TERM, 1942. 209 320 U. S. Decisions Granting Certiorari. No< —, Ex parte Wolfgang Achtner; and No. —. Ex parte Franz Moedlhammer. June 21, 1943. Applications denied without prejudice to applications to the District Court. Mr. Justice Roberts and Mr. Justice Douglas took no part in the consideration or decision of these applications. No.—. Sabin et al. v. Levorsen et al. June 21, 1943. Motion for stay denied. Mr. Justice Roberts and Mr. Justice Douglas took no part in the consideration or decision of this application. No. —, original. Ex parte Earl Collins; and No. —, original. Ex parte Joseph E. Sheppard. June 21,1943. The motions for leave to file petitions for writs of habeas corpus are denied. Mr. Justice Roberts and Mr. Justice Douglas took no part in the consideration or decision of these applications. DECISIONS GRANTING CERTIORARI, FROM JUNE 15,1943, THROUGH JUNE 21,1943. Nos. 945 and 946. Ford Motor Co. v. Gordon Form Lathe Co. See post, p. 213. No. 1055. Falbo v. United States. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Messrs. Hayden C. Covington and Victor F. Schmidt for petitioner. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Robert S. Erdahl for the United States. Reported below: 135 F. 2d 464. 210 OCTOBER TERM, 1942. Decisions Denying Certiorari. 320U.S. No. 1036. Estate of Rogers et al. v. Helvering, Commissioner of Internal Revenue. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Justice Murphy took no part in the consideration or decision of this application. Mr. John W. Drye, Jr. for petitioners. Solicitor General Fahy for respondent. Reported below: 135 F. 2d 35. No. 1039. J. I. Case Co. v. National Labor Relations Board. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Mr. Justice Roberts took no part in the consideration or decision of this application. Messrs. Clark M. Robertson, John C. Gall, and Ben T. Reidy for petitioner. Solicitor General Fahy, Messrs. Robert L. Stern, Robert B. Watts, Ernest A. Gross, and Miss Ruth Weyand for respondent. Reported below: 134 F. 2d 70. DECISIONS DENYING CERTIORARI, FROM JUNE 15, 1943, THROUGH JUNE 21, 1943. No. 1064. Prebyl v. Prudential Insurance Co. et al. See ante, p. 208. No. 1035. Miller, doing business as Miller Motor Freight Service, et al. v. Bates. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. I. Nathaniel Treblow for petitioners. Mr.DavidVorhaus for respondent. Reported below: 133 F. 2d 645. No. 1040. Davis v. Massachusetts. June 21, 1943. Petition for writ of certiorari to the Supreme Court of Texas denied. Messrs. Dan Moody and W. L. Matthews OCTOBER TERM, 1942. 211 320U.S. Decisions Denying Certiorari. for petitioner. Mr. Benjamin Albert Greathouse for respondent. Reported below: 140 Tex. 398, 168 S. W. 2d 216. No. 1045. First National Benefit Society v. Stuart, Collector of Internal Revenue. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Allan K. Perry for petitioner. Solicitor General Fahy, Assistant Attorney General Samuel 0. Clark, Jr., and Messrs. Sewall Key, Samuel H. Levy, and Paul R. Russell for respondent. Reported below: 134 F. 2d 438. No. 1046. Durable Toy & Novelty Corp. v. J. Chein & Co., Inc., et al. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John P. Chandler for petitioner. Reported below: 133 F. 2d 853. No. 1049. Nikolas et al. v. Witter. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Messrs. Walter E. Wiles and Harry G. Hershenson for petitioners. Mr. Hymen S. Gratch for respondent. Reported below: 134 F. 2d 839. No. 1050. Order of United Commercial Travelers v. Moore. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Messrs. Harry L. Greene and E. W. Dillon for petitioner. Mr. Welborn B. Cody for respondent. Reported below: 134 F. 2d 558. No. 1054. Greco v. United States. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Frederic M- P. 212 OCTOBER TERM, 1942. Decisions Denying Certiorari. 320U.S. Pearse for petitioner. Solicitor General Fahy, Assistant Attorney General Berge, Mr. Robert S. Erdahl and Miss Beatrice Rosenberg for the United States. Reported below: 134 F. 2d 1023. No. 1070. Guyton v. United States. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Mack Taylor for petitioner. Solicitor General Fahy, Assistant Attorney General Berge, and Mr. Robert S. Erdahl for the United States. Reported below: 134 F. 2d 618. No. 1015. Smith v. Louisiana & Arkansas Railway Co. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Justice Black is of opinion that certiorari should be granted. Messrs. Wils Davis and W. 8. Atkins for petitioner. Mr. A. L. Burford for respondent. Reported below: 133 F. 2d 436. No. 1069. Kushner v. United States. June 21,1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Justice Douglas took no part in the consideration or decision of this application. Messrs. Samuel M. Ostroff and Herman Mendes for petitioner. Solicitor General Fahy, Assistant Attorney General Berge, Mr. Robert S. Erdahl and Miss Beatrice Rosenberg for the United States. Reported below: 135 F. 2d 668. No. 1081. Arnold v. Unites» States. June 21, 1943. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Justice Douglas took no part in the consideration or decision of this application. Mr. Maury Hughes for petitioner. Reported below: 134 F. 2d 1023. OCTOBER TERM, 1942. 213 320 U. S. Rehearing Granted. No. 1082. Farris v. Virginia. June 21, 1943. Petition for writ of certiorari to the Hustings Court of the City of Richmond denied. Mr. Justice Douglas took no part in the consideration or decision of this application. Mr. L. Gleason Gianniny for petitioner. Mr. Abram P. Staples, Attorney General of Virginia, for respondent. No. 1085. Frame v. Amrine, Warden, Kansas State Penitentiary. June 21, 1943. Petition for writ of certiorari to the Supreme Court of Kansas denied. Mr. Justice Roberts and Mr. Justice Douglas took no part in the consideration or decision of these applications. Perry Frame, pro se. No. 1099. Sheppard v. Massachusetts. June 21, 1943. Motion for stay denied. Petition for writ of certiorari to the Supreme Judicial Court of Massachusetts denied. Mr. Justice Douglas and Mr. Justice Roberts took no part in the consideration or decision of these applications. Mr. Edward A. Ryan for petitioner. Reported below: 313 Mass. 590, 48 N. E. 2d 630. DECISIONS GRANTING REHEARING, FROM JUNE 15, 1943, THROUGH JUNE 21, 1943. Nos. 945 and 946. Ford Motor Co. v. Gordon Form Lathe Co. June 21, 1943. The petition for rehearing is granted and the order entered June 7,1943,319 U. S. 738, is vacated. The petition for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit is granted. Mr. Justice Roberts and Mr. Justice Douglas took no part in the consideration or decision of this application. Messrs. Drury W. Cooper and I. Joseph Farley for petitioner. Reported below: 133 F. 2d 487. 214 OCTOBER TERM, 1942. Rehearing Denied. 320U.S. DECISIONS DENYING REHEARING, FROM JUNE 15, 1943, THROUGH JUNE 21, 1943.* No. 226. Waterman v. Somervell et al. June 21, 1943. Third petition for rehearing denied. Mr. Justice Roberts, Mr. Justice Douglas and Mr. Justice Rutledge took no part in the consideration or decision of this application. 318 U. S. 798. No. 495. Burford et al. v. Sun Oil Co. et al. ; No. 496. Sun Oil Co. et al. v. Burford et al.; No. 553. Galloway v. United States; No. 939. Watson et al. v. Caspers; No. 960. Patterson et al. v. The Texas Company; No. 962. Mescall v. W. T. Grant Co. ; and No. 1034. Allen v. United States. June 21, 1943. Petitions for rehearing denied. Mr. Justice Roberts and Mr. Justice Douglas took no part in the consideration or decision of these applications. 319 U. S. 315 (Nos. 495-496), 372 (No. 553), 757 (No. 939), 759 (No. 962), 761 (No. 960), 769 (No. 1034). No. 528. Hastings et al. v. Selby Oil & Gas Co. et al. ; No. 935. Kelley et al. v. Everglades Drainage District; and No. 948. United States Gypsum Co. v. Stornelli. June 21, 1943. Petitions for rehearing denied. Mb. Justice Douglas took no part in the consideration or decision of these applications. 319 U. S. 348, 415, 760. *See Table of Cases Reported in this volume for earlier decisions in these cases, unless otherwise indicated. OCTOBER TERM, 1942. 215 320U.S. Rehearing Denied. No. 824. Metropolitan-Columbia Stockholders, Inc., et al. v. City of New York. June 21,1943. Second petition for rehearing denied. Mr. Justice Roberts and Mr. Justice Douglas took no part in the consideration or decision of this application. 319 U. S. 740. STATEMENT SHOWING THE NUMBER OF CASES FILED, DISPOSED OF, AND REMAINING ON DOCKETS, AT CONCLUSION OF OCTOBER TERMS—1940,1941 AND 1942 Terms ORIGINAL APPELLATE TOTALS 1940 1941 1942 1940 1941 1942 1940 1941 1942 Number of cases on dockets Cases disposed of during terms Number of cases remaining on dockets 15 6 12 2 15 5 1,094 979 1,290 1,166 1,103 992 1,109 985 1,302 1,168 1,118 997 9 10 10 115 124 111 124 134 121 TERMS 1940 1941 1942 Distribution of cas Original cases Appellate cast Petitions for c Distribution of cas Original cases Appellate case Petitions for c ses disposed of during terms: 6 286 693 9 67 48 2 381 785 10 65 59 5 261 731 10 75 36 js on merits ertiorari >es remaining on dockets: js on merits ertiorari June 21,1943. 217 CASES ADJUDGED IN THE SUPBEME COUET OF THE UNITED STATES AT OCTOBER TERM, 1943. EX PARTE ABERNATHY. NO. —. ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF HABEAS CORPUS.* Decided October 18, 1943. 1. The exercise by this Court of the power conferred upon it to issue writs of habeas corpus (28 U,. S. C. §§ 377,451) in aid of its appellate jurisdiction is discretionary; and, save in exceptional circumstances, the Court does not exercise the power where an adequate remedy may be had in a lower federal court or where, if the relief sought is from a judgment of a state court, the petitioner has not exhausted his remedies in the state courts. P. 219. 2. Refusal of the writ, without more, is not an adjudication on the merits and is to be taken as without prejudice to an application to any other court for the relief sought. P. 220. Applications denied. Per Curiam. The applications are severally denied. In these cases petitioners invoke the exercise of the jurisdiction conferred on this Court by 28 U. S. C. §§ 377, * Together with No. —, Ex parte Dexter C. Dayton; No. -—, Ex parte Frederick T. Hansen and Sam Bonjiomo; No.-, Ex parte Floyd J. Kesling; No. —, Ex parte Louis Burall; No. —, Ex parte Oliver Gobin; No. —, Ex parte Peter J. C. Donnelly; No. —, Ex parte Alfred Maurice; No. —, Ex parte Sol Goldsmith; No. —, Ex parte Paul Davis; No. —, Ex parte Robert Hutto; No. —, Ex parte Alfred Friters; No. —, Ex parte Wilfred Doza; No. —, Ex parte R. J. Hughes; and No. —, Ex parte John Russell Miller, also on motions for leave to file petitions for writs of habeas corpus. 219 220 OCTOBER TERM, 1943. Counsel for Parties. 320U.S. 451, to issue writs of habeas corpus in aid of its appellate jurisdiction. Cf. Ex parte Peru, 318 U. S. 578, 582-3. That jurisdiction is discretionary, id. 584; Bowen v. Johnston, 306 U. S. 19, 27, and this Court does not, save in exceptional circumstances, exercise it in cases where an adequate remedy may be had in a lower federal court, Ex parte Current, 314 U. S. 578; Ex parte Spaulding, 317 U. S. 593; Ex parte Hawk, 318 U. S. 746, or, if the relief sought is from the judgment of a state court, where the petitioner has not exhausted his remedies in the state courts, Mooney v. Holohan, 294 U. S. 103, 115; Ex parte Botwinski, 314 U. S. 586; Ex parte Davis, 317 U. S. 592, 318 U. S. 412; Ex parte Williams, 317 U. S. 604. Refusal of the writ, without more, is not an adjudication on the merits and is to be taken as without prejudice to an application to any other court for the relief sought. UNITED STATES ex rel. McCANN v. ADAMS, WARDEN, et al. ON PETITION FOR WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 371. Decided November 8, 1943. The petition to the District Court for a writ of habeas corpus adequately raised the issue, not previously adjudicated, whether, in a prosecution in the District Court which resulted in a judgment of conviction, the petitioner had intelligently—with full knowledge of his rights and capacity to understand them—waived his right to the assistance of counsel and to trial by jury; and, in the circumstances, the petitioner was entitled to an opportunity to establish his claim. P. 221. 136 F. 2d 680, reversed. Petition for a writ of certiorari to review the affirmance of an order denying an application for a writ of habeas corpus. Gene McCann, pro se. U. S. ex rel. McCANN v. ADAMS. 221 220 Opinion of the Court. Solicitor General Fahy, Assistant Attorney General Tom C. Clark, and Mr. Oscar A. Provost were on the brief for respondents. Per Curiam. This proceeding is a sequel to Adams v. U. S. ex rel. McCann, 317 U. S. 269. We there reversed an order of the Circuit Court of Appeals of the Second Circuit discharging the present relator from custody. We did so because we held that, if his waiver was the exercise of an intelligent choice made with the considered approval of the trial court, he could as a matter of law waive his right to a jury trial without being represented by counsel. After the case went back to the Circuit Court of Appeals on mandate and further steps not necessary here to recount were taken, the relator filed a petition for a writ of habeas corpus in the District Court which, with supporting affidavits, adequately raised the issue whether in fact he intelligently—with full knowledge of his rights and capacity to understand them—waived his right to the assistance of counsel and to trial by jury. That issue, as appears from our former opinion, was explicitly withdrawn from consideration on the habeas corpus proceedings previously before the Circuit Court of Appeals. 126 F. 2d 774. That issue, now fairly tendered by the petition for habeas corpus below, has never been adjudicated on its merits by the lower courts. But it is no longer within the bosom of the trial court. Nor can it be disposed of on the appeal of his conviction, for the claim rests on materials dehors the trial proceedings. It is a claim which the relator should be allowed to establish, if he can. We cannot say that, in the light of the supporting affidavits, the petition for a writ of habeas corpus was palpably unmeritorious, and should have been dismissed without more. We are compelled therefore to accede to the Government’s consent to a reversal of the order of the 222 OCTOBER TERM, 1943. Statement of the Case. 320U.S. Circuit Court of Appeals affirming the order denying the application for the writ of habeas corpus. The motion for leave to proceed in jorma pauperis and the petition for certiorari are therefore granted and the judgment is reversed for further proceedings not inconsistent with this opinion. Petitioner’s applications for other relief are denied. So ordered. HUNTER COMPANY, INC. v. McHUGH, COMMISSIONER OF CONSERVATION, et al. APPEAL FROM THE SUPREME COURT OF LOUISIANA. No. 25. Argued October 18, 19, 1943.—Decided November 8, 1943. 1. The only order of the State Commissioner of Conservation which was before the state courts in this case having been superseded by later orders, the cause has become moot so far as it is concerned with the original order; and this Court, in reviewing on appeal the judgment of the highest court of the State, is not free to, and will not, adjudicate the constitutionality of the later orders, where the state court has had no opportunity to pass upon their validity under state law or the Federal Constitution. P. 226. 2. A State has constitutional power to regulate production of oil and gas so as to prevent waste and to secure equitable apportionment among landholders of the migratory gas and oil underlying their land, fairly distributing among them the costs of production and of the apportionment. P. 227. 3. Upon the record in this case, Act No. 157 of the Louisiana Acts of 1940 can not be held invalid on its face. P. 228. Dismissed. Appeal from a judgment, 202 La. 97, 11 So. 2d 495, which, reversing a decision of a lower state court, sustained the constitutional validity, as applied to the appellant, of an order promulgated by the State Commissioner of Conservation under authority of a state statute providing for regulation of the production of oil and gas. HUNTER CO. v. McHUGH. 223 222 Opinion of the Court. Messrs. Joe T. Cawthorn and John M. Madison, with whom Mr. C. Huffman Lewis was on the brief, for appellant. Messrs. George A. Wilson and T. Hale Boggs, with whom Messrs. Arthur O’Quin and M. C. Thompson were on the brief, for the Commissioner of Conservation; and Mr. Arthur O’Quin, with whom Messrs. M. C. Thompson and Leon O’Quin were on the brief, for the Southern Production Co.,—appellees. Messrs. J. Howard Marshall and Robert E. Hardwicke filed a brief on behalf of Harold L. Ickes, Petroleum Administrator for War, as amicus curiae, supporting the constitutionality of the state Act. Per Curiam. Appellant is the lessee under an oil and gas lease of 190 acres in the Logansport Field in Louisiana. Under permit from the state it has drilled a well on the leased area, which was completed about June 1, 1938, and came into production in December, 1940. To enable it to reach a market for the natural gas produced by this well, appellant has constructed and owns a pipe line which extends from its well to the line of the United Gas Pipe Line Company. “For the prevention of waste and to avoid the drilling of unnecessary wells,” § 8 (b) of Act No. 157 of the Louisiana Acts of 1940, authorizes the State Commissioner of Conservation to establish drilling units for any oil or gas pool, except “where conditions are such that it would be impracticable or unreasonable to use a drilling unit at the present stage of development.” The statute defines a drilling unit as “the maximum area which may be efficiently and economically drained by one well.” Section 9 (a) provides that where a drilling unit embraces separately owned tracts the owners may agree to 552826—44------19 224 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. pool their interests, but provides that in default of such agreement “the Commissioner shall, if found by him to be necessary for the prevention of waste or to avoid the drilling of unnecessary wells, require such owners to do so and to develop their lands as a drilling unit”; such orders “shall be made after notice and hearing, and shall be upon terms and conditions which are just and reasonable, and will afford to the owner of each tract the opportunity to recover or receive his just and equitable share of the oil and gas in the pool without unnecessary expense.” The section also provides: “The portion of the production allocated to the owner of each tract included in a drilling unit formed by a pooling order shall, when produced, be considered as if it had been produced from such tract by a well drilled thereon. In the event such pooling is required, the cost of development and operation of the pooled unit chargeable by the operator to the other interested owner or owners shall be limited to the actual expenditures required for such purpose, not in excess of what are reasonable, including a reasonable charge for supervision. In the event of any dispute relative to such costs, the Commissioner shall determine the proper costs, after due notice to all interested parties and hearing thereon.” Proceeding under Act No. 157, the Commissioner, after notice and hearing, on October 16, 1941, promulgated Order No. 28-B, which designated drilling units of 320 acres for the production of gas from the Logansport Field, allowed the drilling of only one well on each such unit, required the operator of a well drilled before the effective date of the order to designate his drilling area, required him to account to each owner or lessee of land within the unit for the oil and gas produced, and provided for a bi-monthly determination by the Commissioner of the amount of the allowable gas production for each unit. HUNTER CO. v. McHUGH. 225 222 Opinion of the Court. The order also authorized the Commissioner, upon a showing by any operator that any part of the order as applied to his well “will result in waste, or as to such operator is unreasonable” to make an exception to the directions of the order, provided that such exception “will not result in waste in the field as a whole” or give the operator an “inequitable and unfair advantage over another operator or other operators in the field.” Less than thirty days after the promulgation of this order, no application having been made by an adjacent landowner to require pooling, appellant, without having designated a drilling unit or made application to the Commissioner to make an exception to the order, brought the present suit in the Louisiana civil district court to enjoin the enforcement of Act No. 157 and of order No. 28-B or any similar order. By its bill of complaint appellant asserted that the order was invalid under the state constitution and laws, and violated the Fourteenth Amendment in that it made no provision for the payment to appellant of the reasonable value of its lease and for reimbursing it for the cost of development of the gas, including the cost of drilling its well and laying its pipe line. The Civil District Court held Act No. 157 and order No. 28-B as applied to appellant to be null and void and enjoined enforcement of the Act and order or any similar order against appellant. The Supreme Court of Louisiana, 202 La. 97,11 So. 2d 495, set this judgment aside and ordered the complaint dismissed. It held that the order was a valid exercise of state power to prevent future waste of a natural resource of the state and that under the provisions of § 9 (a) of the Act and of the order appellant was entitled to retain its proportionate share of the gas, and to reimburse itself from the proceeds of all the gas for the proportionate share of the cost of drilling and operation changeable to the other landowners in the drilling unit. 226 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. The case comes here on appeal under § 237 (a) of the Judicial Code, 28 U. S. C. § 344 (a), appellant assigning as error that the Act and order deprive it of property without due process of law by compelling it to combine its leasehold with the land of others within the drilling unit for the purpose of gas production and to share with them its pipe line and other facilities for the production and marketing of gas, for which no compensation is provided by the Act or order. After the appeal was docketed in this Court appellee Southern Products Co., which had been allowed to intervene in the state courts, moved to dismiss the appeal as moot by reason of the promulgation by the Commissioner of new orders No. 28-C and No. 28-C-10, which operated to supersede order No. 28-B so far as applicable to appellant’s leasehold. Order No. 28-C prescribed enlarged drilling units comprising 640 acres for the Logansport Field. It made other provisions not now material for the regulation of production applicable to the prescribed units. A later order, No. 28-C-10, designated appellant as the operator of a unit and directed that it should be entitled to receive and retain all proceeds derived from the sale of the product of the well after deduction of royalties and costs of production until it should have recovered the costs of drilling and equipping the well and laying and operating the pipe line, and that the balance of the proceeds should be distributed among the landholders within the unit, including appellant, in proportion to their acreage within the unit. Order No. 28-C was promulgated on February 10,1942, before the judgments of both the Civil District Court on February 26, 1942 and the Louisiana Supreme Court on November 30,1942. Although no reason appears why its invalidity could not have been urged before those courts, the order is not in the record and does not appear to have been considered by either state court. Order No. 28-C-10 HUNTER CO. v. McHUGH. 227 222 Opinion of the Court. was promulgated on February 25,1943, after the decision and judgment of the Louisiana Supreme Court. The only order before the state courts was No. 28-B, to which alone their decisions relate and to which alone appellant’s assignments of error in this Court are directed. Its operation has been superseded by orders No. 28-C and No. 28-C-10, under which it appears that both the Commissioner and appellant are now proceeding as controlling the operation of appellant’s well, and those orders were not before the state courts or considered by them. The cause has thus become moot so far as it is concerned with order No. 28-B and this Court, in reviewing on appeal the judgment of the State Supreme Court is not free to, and will not adjudicate the constitutionality of orders No. 28-C and No. 28-C-10 where the state court whose judgment is under review has had no opportunity to pass upon their validity under state law or the Constitution of the United States. See McGoldrick n. Compagnie Generale, 309 U. S. 430,433 et seq. A minority of the Court are of opinion that in these circumstances there is no outstanding order which this Court can review and that the appeal should for that reason alone be dismissed. In the present posture of the record, so far as the appeal seeks to bring before us for review the judgment of the state court sustaining the constitutionality of the statute, the record presents no substantial federal question. We have held that a state has constitutional power to regulate production of oil and gas so as to prevent waste and to secure equitable apportionment among landholders of the migratory gas and oil underlying their land, fairly distributing among them the costs of production and of the apportionment. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 77; Bandini Petroleum Co. v. Superior Court, 284 U. S. 8, 22; Champlin Refining Co. v. Corporation Commission, 286 U. S. 210, 232-4; Thompson N. 228 OCTOBER TERM, 1943. Syllabus. 320 U.S. Consolidated Gas Corp., 300 U. S. 55, 76-7; Patterson v. Stanolind Oil & Gas Co., 305 U. S. 376, 379, and cases cited. On this appeal, absent from the record any operative order implementing Act No. 157, we cannot say that the application of the Act can be enjoined as invalid on its face, for we cannot say that no order could be made by the Commissioner which would apportion the production and distribute the costs of production and of the apportionment in a manner which would be consonant both with the requirements of the statute and the Federal Constitution, compare Patterson v. Stanolind Oil & Gas Co., supra, with Thompson v. Consolidated Gas Corp., supra. It will be time enough to consider the constitutionality of any particular apportionment and distribution of costs when we have before us the specific provisions of an order directing them which has been subjected to the scrutiny of the state court. See Bandini Petroleum Co. n. Superior Court, supra. The appeal will be dismissed for want of a properly presented substantial federal question. So ordered. MEREDITH et al. v. WINTER HAVEN et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 42. Argued October 22, 1943.—Decided November 8, 1943. 1. Where a federal court has jurisdiction of a case, though solely by diversity of citizenship, the difficulties of ascertaining what the state courts may thereafter determine the state law to be do not in themselves afford a sufficient ground for declining to exercise the jurisdiction. P. 234. So held in respect of a suit instituted in a federal district court in Florida, the decision of which was concerned solely with the extent of the liability of a Florida municipality upon its refunding bonds. 2. In the absence of some recognized public policy or defined principle guiding the exercise of the jurisdiction conferred, which would in MEREDITH v. WINTER HAVEN. 229 228 Opinion of the Court. exceptional cases warrant its non-exercise, it has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law whenever necessary to the rendition of judgment. When such exceptional circumstances are not present, denial of that opportunity by the federal courts, merely because the answers to the questions of state law are difficult or uncertain or have not yet been given by the highest court of the State, would thwart the purpose of the jurisdictional act. P. 234. 134 F. 2d 202, reversed. Certiorari, 319 U. S. 736, to review a judgment which, in a suit based on diversity of citizenship, directed dismissal without prejudice to the plaintiff’s right to proceed in the state court. Messrs. D. C. Hull and John L. Graham, with whom Messrs. Erskine W. Landis and J. Compton French were on the brief, for petitioners. Mr. Giles J. Patterson for respondents. Mr. Chief Justice Stone delivered the opinion of the Court. Petitioners sought a judgment granting equitable relief in the District Court below, whose jurisdiction rested solely on diversity of citizenship. The question is whether the Circuit Court of Appeals, on appeal from the judgment of the District Court, rightly declined to exercise its jurisdiction on the ground that decision of the case on the merits turned on questions of Florida constitutional and statutory law which the decisions of the Florida courts had left in a state of uncertainty. Petitioners brought this suit in the District Court for Southern Florida, alleging by their bill of complaint that they are owners and holders of General Refunding Bonds issued in 1933 by respondent, the City of Winter Haven, Florida; that by their terms the bonds are callable by the city on any interest date on tender of their principal 230 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. amount and accrued interest, including a specified amount (depending on the date of call) of the interest payable upon the deferred-interest coupons attached to the bonds; that the city is about to call and retire the bonds without providing for payment of the deferred-interest coupons. The bill of complaint prayed a declaration that this could not lawfully be done and an injunction restraining the city from doing it. In the event that the court should determine that the obligation of the deferred-interest coupons is unenforceable, then it was prayed that the court declare that petitioners are entitled to enforce the obligation for payment, principal and interest, of the amount of the original bonded indebtedness of the city which was refunded by the General Refunding Bonds now held by petitioners, and that the court enjoin the city and its officials, respondents here, from failing or refusing to pay the interest due on such refunded bonds, as provided by the resolution of the city commissioners authorizing the issue and sale of the General Refunding Bonds in 1933. The District Court granted respondents’ motion to dismiss the complaint on the grounds that it failed to state a cause of action and that the questions of law involved had been determined adversely to petitioners by the Supreme Court of Florida. The Court of Appeals, without passing on the merits, reversed and directed that the cause be dismissed without prejudice to petitioners’ right to proceed in the state courts to secure a determination of the questions of state law involved. 134 F. 2d 202. The Court of Appeals agreed with petitioners that the bill of complaint presented a justiciable controversy requiring determination, that they were entitled to a judgment declaring the law of Florida with respect to the validity of the deferred-interest coupons, and that if petitioners’ contentions were sustained they were entitled MEREDITH v. WINTER HAVEN. 231 228 Opinion of the Court. to a declaration in their favor and an injunction implementing the declaration. But upon an examination of the Florida decisions the court concluded that the applicable law of Florida was not clearly settled and stable, but was quite the contrary, citing Sullivan v. Tampa, 101 Fla. 298, 134 So. 211; Columbia County Commissioners v. King, 13 Fla. 451; State ex rel. Nuveen v. Greer, 88 Fla. 249,102 So. 739; Humphreys v. State ex rel. Palm Beach Co., 108 Fla. 92,145 So. 858; Alta-Cliff Co. v. Spurway, 113 Fla. 633,152 So. 731; Lee v. Bond-Howell Lumber Co., 123 Fla. 202,166 So. 733; and Andrews v. Winter Haven, 148 Fla. 144, 3 So. 2d 805. It expressed doubt as to what the Florida law, applicable to the facts presented, now is or will be declared to be, and in view of this uncertainty, since no federal question was presented and the jurisdiction was invoked solely on grounds of diversity of citizenship, it thought that petitioners should be required to proceed in the state courts. Although the opinion below refers to the suit as one for a declaratory judgment, the declaration of rights prayed, as is usually the case in suits for an injunction, is an indispensable prerequisite to the award of one or the other of the forms of equitable relief which petitioners seek in the alternative. Hence, so far as we are concerned with the necessity and propriety of a determination by a federal court of questions of state law, the case does not differ from an ordinary equity suit in which, both before and since Erie R. Co. v. Tompkins, 304 U. S. 64, federal courts have been called upon to decide state questions in order to render a judgment. The facts as presented by the amended bill of complaint and the motion to dismiss raise two issues of state law, one and possibly both of which must be decided if petitioners are to have the benefit which they seek of the jurisdiction conferred on district courts in diversity cases. The first question arises from the fact that the Refunding Bonds of 232 OCTOBER TERM, 1943. Opinion of the Coùrt. 320U.S. 1933 were issued without a referendum to the freehold voters of the city. Article IX, § 6 of the Florida constitution provides that municipalities “shall have power to issue bonds only after the same shall have been approved by a majority of the votes cast in an election,” in which a majority of the freeholders of the municipality shall participate, but dispenses with this requirement in the case of “refunding” bonds. The question is whether, under the applicable decisions of the Florida courts, the provision for deferred-interest coupons could rightly be included in the obligation of the Refunding Bonds of 1933 without a referendum. If it be decided that the provision could not be included and that the coupons are invalid, the second question is whether petitioners, as holders of refunding bonds, are entitled, under § 20 of the resolution of the city commissioners authorizing the Refunding Bond issue,1 to recover the principal and interest of an equivalent amount of the bonds refunded. This question, unlike the first, so far as appears, has not been passed upon by the Florida courts. Several decisions of the Supreme Court of Florida have declared that where bonds to be refunded contain no provision for deferred-interest coupons, refunding bonds containing such coupons would impose “new and additional or more burdensome terms” {Outman v. Cone, 141 Fla. 196,199,192 So. 611, 613) which may not be included in refunding bonds unless they are approved by referendum in accordance with Article IX, § 6. Outman v. 1 “Section 20. That if any clause, section, paragraph or provision of this resolution or of the General Refunding Bonds hereby authorized be declared unenforcible by any Court of final jurisdiction, it shall not affect or invalidate any remainder thereof, and if any of the bonds hereby authorized be adjudged illegal or unenforcible in whole or in part, the holders thereof shall be entitled to assume the position of holders of a like amount of the indebtedness hereby provided to be refunded and as such enforce their claim for payment.” MEREDITH v. WINTER HAVEN. 233 228 Opinion of the Court. Cone, supra; Taylor v. Williams, 142 Fla. 402,195 So. 175; Andrews v. Winter Haven, supra. As appears from the amended bill of complaint, after the present suit was begun the Supreme Court of Florida decided the case of Andrews v. Winter Haven, supra. This case involved the same issue of Refunding Bonds as is here in question. The Florida court held that the deferred-interest coupons are invalid; that the purported obligation of the invalid coupons is severable from the obligations to pay the principal of the bonds and current interest on the other coupons, which obligations are valid and enforceable; and that the bonds are subject to call upon tender of the stipulated principal and interest without including any amount purporting to be payable on the deferred-interest coupons. It is the contention of petitioners that the Andrews case is not controlling because it, as well as Outman v. Cone, supra, and Taylor v. Williams, supra, which it cited and followed, is inconsistent with earlier decisions of the Supreme Court of Florida antedating the Refunding Bonds of 1933, particularly Sullivan v. Tampa, supra; State v. Miami, 103 Fla. 54, 137 So. 261; State v. Special Tax School District, 107 Fla. 93,144 So. 356; Bay County v. State, 116 Fla. 656, 157 So. 1; State v. Citrus County, 116 Fla. 676, 157 So. 4; State v. Sarasota County, 118 Fla. 629, 159 So. 797. Petitioners also insist that, in deciding the Andrews case, the attention of the Supreme Court of Florida was not directed to the doctrine which it had earlier announced in Columbia County Commissioners v. King, supra, and in State ex rel. Nuveen v. Greer, supra, that by the law of Florida a contract is governed by the laws declared at the time the contract was made, and that consequently the court did not apply the doctrine. And finally it is said that the weight of the Outman and Andrews cases as precedents is impaired by the fact that although they appear on the record to be 234 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. adversary litigations they were not in fact vigorously contested. While the rulings of the Supreme Court of Florida in the Andrews case must be taken as controlling here unless it can be said with some assurance that the Florida Supreme Court will not follow them in the future, see Wichita Royalty Co. v. City National Bank, 306 U. S. 103, 107; Fidelity Trust Co. v. Field, 311 U. S. 169,177-178; West v. American Telephone & Telegraph Co., 311 U. S. 223, 236, we assume, as the Court of Appeals has indicated, that the Supreme Court of the State may modify or even set them aside in future decisions. But we are of opinion that the difficulties of ascertaining what the state courts may hereafter determine the state law to be do not in themselves afford a sufficient ground for a federal court to decline to exercise its jurisdiction to decide a case which is properly brought to it for decision. The diversity jurisdiction was not conferred for the benefit of the federal courts or to serve their convenience. Its purpose was generally to afford to suitors an opportunity in such cases, at their option, to assert their rights in the federal rather than in the state courts. In the absence of some recognized public policy or defined principle guiding the exercise of the jurisdiction conferred, which would in exceptional cases warrant its non-exercise, it has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law whenever necessary to the rendition of a judgment. Commonwealth Trust Co. v. Bradford, 297 U. S. 613, 618; Risty v. Chicago, R. I. & P. Ry. Co., 270 U. S. 378, 387; Kline n. Burke Construction Co., 260 U. S. 226, 234-235; McClellan n. Carland, 217 U. S. 268, 281-282. When such exceptional circumstances are not present, denial of that opportunity by the federal courts merely because the answers to the questions of state law are difficult or uncertain or have not yet been given by MEREDITH v. WINTER HAVEN. 235 228 Opinion of the Court. the highest court of the state, would thwart the purpose of the jurisdictional act. The exceptions relate to the discretionary powers of courts of equity. An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity. Beal v. Missouri Pacific R. Co., 312 U. S. 45, 50. Exercise of that discretion by those, as well as by other courts having equity powers, may require them to withhold their relief in furtherance of a recognized, defined public policy. Di Giovanni v. Camden Insurance Assn., 296 U. S. 64, 73, and cases cited. It is for this reason that a federal court having jurisdiction of the cause may decline to interfere with state criminal prosecutions except when moved by most urgent considerations, Spielman Motor Co. v. Dodge, 295 U. S. 89, 95; Beal v. Missouri Pacific R. Co., supra, 49-51; Douglas N. Jeannette, 319 U. S. 157; or with the collection of state taxes or with the fiscal affairs of the state, Matthews n. Rodgers, 284 U. S. 521; Stratton v. St. Louis Southwestern Ry. Co., 284 U. S. 530; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 ; or with the state administrative function of prescribing the local rates of public utilities, Central Kentucky Gas Co. v. Railroad Commission, 290 U. S. 264, 271 et seq. and cases cited; or to interfere, by appointing a receiver, with the liquidation of an insolvent state bank by a state administrative officer, where there is no contention that the interests of creditors and stockholders will not be adequately protected, Pennsylvania v. Williams, 294 U. S. 176; Gordon v. Ominsky, 294 U. S. 186; Gordon v. Washington, 295 U. S. 30; cf. Kelleam v. Maryland Casualty Co., 312 U. S. 377, 381. Similarly it may refuse to appraise or shape domestic policy of the state governing its administrative agencies. Railroad Commission v. Rowan & Nichols Oil Co., 311U. S. 570; Burford v. Sun Oil Co., 319 U. S. 315. And it may of course decline to ex- 236 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. ercise the equity jurisdiction conferred on it as a federal court when the plaintiff fails to establish a cause of action. Cavanaugh v. Looney, 248 U. S. 453; Gilchrist v. Interborough Rapid Transit Co., 279 U. S. 159. So too a federal court, adhering to the salutary policy of refraining from the unnecessary decision of constitutional questions, may stay proceedings before it, to enable the parties to litigate first in the state courts questions of state law, decision of which is preliminary to, and may render unnecessary, decision of the constitutional questions presented. Railroad Commission v. Pullman Co., 312 U. S. 496; cf. Thompson v. Magnolia Petroleum Co., 309 U. S. 478. It is the court’s duty to do so when a suit is pending in the state courts, where the state questions can be conveniently and authoritatively answered, at least where the parties to the federal court action are not strangers to the state action. Chicago v. Pieldcrest Dairies, 316 U. S. 168. In thus declining to exercise their jurisdiction to enforce rights arising under state laws, federal courts are following the same principles which traditionally have moved them, because of like considerations of policy, to refuse to give an extraordinary remedy for the protection of federal rights. United States ex rel. Greathouse N. Dem, 289 U. S. 352,359—361; see Virginian Ry. Co. v. System Federation, 300 U. S. 515, 551-552 and cases cited; cf. Securities & Exchange Comm’n v. United States Realty Co., 310 U. S. 434,455 et seq. But none of these considerations, nor any similar one, is present here. Congress having adopted the policy of opening the federal courts to suitors in all diversity cases involving the jurisdictional amount, we can discern in its action no recognition of a policy which would exclude cases from the jurisdiction merely because they involve state law or because the law is uncertain or difficult to determine. The decision of this case is concerned solely with the extent of the liability of the city on its Refund- MEREDITH v. WINTER HAVEN. 237 228 Opinion of the Court. ing Bonds. Decision here does not require the federal court to determine or shape state policy governing administrative agencies. It entails no interference with such agencies or with the state courts. No litigation is pending in the state courts in which the questions here presented could be decided. We are pointed to no public policy or interest which would be served by withholding from petitioners the benefit of the jurisdiction which Congress has created with the purpose that it should be availed of and exercised subject only to such limitations as traditionally justify courts in declining to exercise the jurisdiction which they possess. To remit the parties to the state courts is to delay further the disposition of the litigation which has been pending for more than two years and which is now ready for decision. It is to penalize petitioners for resorting to a jurisdiction which they were entitled to invoke, in the absence of any special circumstances which would warrant a refusal to exercise it. Erie R. Co. v. Tompkins, supra, did not free the federal courts from the duty of deciding questions of state law in diversity cases. Instead it placed on them a greater responsibility for determining and applying state laws in all cases within their jurisdiction in which federal law does not govern. Accepting this responsibility, as was its duty, this Court has not hesitated to decide questions of state law when necessary for the disposition of a case brought to it for decision, although the highest court of the state had not answered them, the answers were diffi-cult, and the character of the answers which the highest state courts might ultimately give remained uncertain. Wichita Royalty Co. v. City National Bank, supra; West V- American Telephone & Telegraph Co., supra, 236-237; Fidelity Trust Co. v. Field, supra, 177-180; Six Companies v. Joint Highway District, 311 U. S. 180, 188; Stoner v. New York Life Ins. Co., 311 U. S. 464; Palmer v. Hoffman, 318 U. S. 109, 116-118. Even though our de- 238 OCTOBER TERM, 1943. Syllabus. 320 U. S. cisions could not finally settle the questions of state law involved, they did adjudicate the rights of the parties with the aid of such light as was afforded by the materials for decision at hand, and in accordance with the applicable principles for determining state law. In this case, as in those, it being within the jurisdiction conferred on the federal courts by Congress, we think the plaintiffs, petitioners here, were entitled to have such an adjudication. The judgment will be reversed and the cause remanded to the Circuit Court of Appeals for further proceedings in conformity to this opinion. Reversed. Mr. Justice Black and Mr. Justice Jackson are of the opinion that the judgment should be affirmed for the reasons stated in the opinion of the Circuit Court of Appeals, 134 F. 2d 202. BELL v. PREFERRED LIFE ASSURANCE SOCIETY ET AL. CERTIORARI to THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 17. Argued October 12, 13, 1943—Decided November 8, 1943. 1. Where both actual and punitive damages are recoverable under a complaint invoking the jurisdiction of the federal district court on the ground of diversity of citizenship, each must be considered to the extent claimed in determining whether the jurisdictional amount is involved. P. 240. 2. A complaint in a federal district court, invoking jurisdiction on the ground of diversity of citizenship, alleged that the plaintiff had been induced to purchase a certificate of insurance through fraudulent misrepresentations by the defendants’ agent as to the value, and claimed $200,000 as actual and punitive damages. The record showed that the plaintiff had paid $202.35 on the certificate, which had a maximum potential value of $1,000. Held: (1) Whether the decision be controlled by the law of Alabama, where the certificate was issued and mailed, or by the law of South BELL v. PREFERRED LIFE SOCIETY. 239 238 Opinion of the Court. Carolina, where the alleged fraudulent misrepresentations were made, and even though recovery of actual damages be limited to $1,000, the plaintiff’s allegations of fraud, if properly proved, might justify an award exceeding $3,000; and therefore the requisite jurisdictional amount was involved. Pp. 240-241. (2) The complaint sufficiently alleged the equivalent of “gross fraud,” within the meaning of the law of Alabama, even though the fraud was not formally alleged to be “gross.” P. 241. (3) This Court is unable to say that the Alabama law as to punitive damages precludes in this case a verdict for actual and punitive damages exceeding $3,000. P. 242. (4) The question of jurisdictional amount can not be determined on the assumption that a verdict for that amount would be excessive and could be set aside. P. 243. 3. A complaint filed in a federal court should not be dismissed for want of jurisdiction merely because of a technical defect such as may be the subject of a special motion to clarify. P. 242. 131 F. 2d 516, reversed. Certiorari, 318 U. S. 755, to review the affirmance of a judgment dismissing a suit brought in the District Court on the ground of diversity of citizenship. Messrs. R. K. Wise and Warren E. Miller for petitioner. Mr. Richard T. Rives, with whom Mr. A. F. Whiting was on the brief, for respondents. Mr. Justice Black delivered the opinion of the Court. The question here is whether petitioner’s complaint was properly dismissed on the ground that the matter in controversy did not really and substantially exceed $3,000 as required by §§ 24 and 37 of the Judicial Code.1 Filed in the federal court for the Middle District of Alabama, petitioner’s complaint alleged that he had been induced to purchase an insurance certificate through fraudulent misrepresentations of respondents’ agent bear- * Stat. 1091, 1098; U. S. C. Tit. 28, §§41, 80. The complaint alleged diversity of citizenship as the basis for federal jurisdiction. 552826—44---20 240 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. ing upon its actual value, and claimed $200,000 as actual and punitive damages.2 * The record shows that at the time of the dismissal petitioner had paid only $202.35 on his certificate, and that its maximum potential value was only $1,000. From this the District Court declared that it was “apparent to a legal certainty,” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 289, that petitioner could in no event be entitled to more than $1,000, and therefore concluded that the requisite $3,000 was not really and substantially involved. The Circuit Court of Appeals affirmed,8 holding that the claim of $200,000 damages was “entirely colorable for the purpose of conferring jurisdiction” since it was “legally inconceivable” that petitioner’s allegations could justify an award in excess of the value of his $1,000 certificate. Where both actual and punitive damages are recoverable under a complaint each must be considered to the extent claimed in determining jurisdictional amount.4 * Therefore even though the petitioner is limited to actual damages of $1,000, as both courts held, the question remains whether it is apparent to a legal certainty from the complaint that he could not recover, in addition, sufficient punitive damages to make up the requisite $3,000. If the controlling law is that of South Carolina, where the 2 The complaint further alleged official misconduct on the part of certain officers of respondent society, and joined them as separate defendants. Petitioner contends that these allegations with the accompanying prayers for relief are sufficient in themselves to establish that the matter in dispute exceeds $3,000, on any of three theories: A class action under Rule 23 of the Federal Rules of Civil Procedure; a derivative action against the officers for the benefit of the society; or an original action to reorganize a mutual insurance society properly brought by a member. As our decision indicates, we find it unnecessary to pass upon these contentions. 8131F. 2d 516. 4 Barry v. Edmunds, 116 U. S. 550, 560; Scott v. Donald, 165 U. S. 58,89, 90. BELL v. PREFERRED LIFE SOCIETY. 241 238 Opinion of the Court. alleged fraudulent misrepresentations are said to have occurred, petitioner clearly might recover an award exceeding $3,000? Respondents urge however that the law of Alabama, where the insurance certificate was issued and mailed, must control. We need not pass upon this question for we are satisfied that under the law of Alabama as well as that of South Carolina petitioner’s allegations of fraud if properly proved might justify an award exceeding $3,000. Respondents assert that petitioner’s complaint does not allege that type of “gross fraud” essential for an award of punitive damages under Alabama law. The Supreme Court of Alabama has declared that in an action for deceit “gross fraud” which will support punitive damages may be defined as “representations made with a knowledge of their falseness (or so recklessly made as to amount to the same thing), and with the purpose of injuring the plaintiff.” Southern Building & Loan Assn. v. Dinsmore, 225 Ala. 550,552,144 So. 21, 23. In the instant case the complaint alleges that the fraudulent representations “were false, and were known to be false when made and uttered with a reckless disregard for the truth”; that petitioner “relied upon them, and had a right to rely upon them”; and that he “would not have applied for such certificate except for such false representations.” Plainly, then, this complaint alleges the equivalent of “gross fraud” as those words are defined by the Alabama courts? And, even if 8 Respondents did not seriously contend otherwise, and the South Carolina cases cited to us apparently foreclosed such a contention: Eaddy v. Greensboro-Fayetteville Bus Lines, 191 S. C. 538, 5 S. E. 2d 281; Cook v. Metropolitan Life Ins. Co., 186 S. C. 77,194 S. E. 636; Crosby v. Metropolitan Life Ins. Co., 167 S. C. 255, 166 S. E. 266. In this latter case it appears that punitive damages of $1,211.70 were allowed although the actual damages were only $11.70. , 8 Had petitioner’s complaint been filed in a state court in Alabama, it would have supported a verdict and judgment for punitive damages. The Alabama Supreme Court holds that, “It is not necessary 242 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. the fraud were not formally alleged to be “gross,” a complaint filed in a federal court should not be dismissed for want of jurisdiction because of a mere technical defect such as would make it subject to a special motion to clarify. See Sparks y. England, 113 F. 2d 579; cf. Chicago, R. I. & P. Ry. Co. v. Schwyhart, 227 U. S. 184, 194. Respondents also maintain that, even if it would warrant some punitive damages, the complaint could not under Alabama law warrant enough to support a judgment of $3,000. It is true as respondents point out that the Alabama Supreme Court has said that the amount of punitive damages “ought ... to bear proportion to the actual damages sustained,” Mobile & Montgomery R. Co. n. Ashcraft, 48 Ala. 15, 33; and that, while such damages “must rest in large measure within the discretion of the jury,” this is not an “unbridled discretion.” Alabama Water Service Co. n. Harris, 221 Ala. 516,519,129 So. 5, 7. But neither in these cases, nor in any others cited to us, has that court held that punitive and actual damages must bear a definite mathematical relationship.* 7 That there is no such legal formula seems apparent from the rule relied upon by respondents as the correct Alabama rule regarding the measure of punitive damages, namely, that “The nature of the case should be considered, the character and extent of injury likely to result from disregard to claim punitive damages specially, for they are not special damages. It is not necessary to allege the matter of aggravation which justifies their recovery.” Fidelity-Phenix Fire Ins. Co. v. Murphy, 226 Ala. 226, 232,146 So. 387. 7 In U. S. Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147, 154, 89 So. 732, the court permitted an award of $6,000 after finding that the actual damage suffered could in no event exceed $1,000. And in Alabama Great Southern R. Co. v. Sellers, 93 Ala. 9, 9 So. 375, where the jury returned a verdict of $500, it was held that the trial court did not err in refusing to charge that punitive damages could not be imposed if the plaintiff suffered only nominal actual damage. CARTER v. KUBLER. 243 238 Syllabus. of duty, and all the attendant circumstances.” Alabama Water Service Co. v. Harris, supra, 519. In the Harris case the court further emphasized the wide scope of allowable punitive damages by saying that a jury’s award is not to be disturbed if, “allowing all presumptions in favor of” it, the court is not “clearly convinced it is so excessive as to demand the interposition of this court.” Ibid. Considering these general principles of Alabama law, we are unable to say that under petitioner’s complaint evidence could not be introduced at a trial justifying a jury verdict for actual and punitive damages exceeding $3,000. Nor can this controversy as to jurisdictional amount be decided on the assumption “that a verdict, if rendered for that amount, would be excessive and set aside for that reason— a statement which could not, at any rate, be judicially made before such a verdict was in fact rendered.” Barry v. Edmunds, supra, 565. The judgment of dismissal is reversed and the cause remanded to the District Court for further proceedings. Reversed. CARTER v. KUBLER. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 18. Argued October 13, 1943.—Decided November 8, 1943. The conciliation commissioner, making a reappraisal of the debtor’s property pursuant to §75 (s) (3) of the Bankruptcy Act, erred in basing the valuation partly on evidence obtained by his personal investigation without the knowledge or consent of the parties; but, in the circumstances of this case, the error was cured upon review in the District Court, which reexamined all the competent evidence introduced at the hearing before the commissioner and thereupon modified the latter’s valuation. P. 246. 131 F. 2d 222, affirmed. 244 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. Certiorari, 318 U. S. 753, to review the affirmance, upon appeal by the debtor, of a judgment modifying an order of a conciliation commissioner. Mr. Elmer McClain for petitioner. Mr. T. W. Kimber for respondent. Mr. Justice Murphy delivered the opinion of the Court. The narrow issues presented by this case are whether it was error under § 75 (s) (3) of the Bankruptcy Act1 for a conciliation commissioner to fix a valuation partly on the basis of his personal investigation and, if so, whether that error was cured on review by the District Court. Petitioner, the farmer debtor, was adjudicated a bankrupt under § 75 (s). After a $5,800 appraisal of his farm had been approved by a conciliation commissioner, petitioner was permitted to retain possession of the property for the statutory three-year period. At the end of that time, he petitioned the District Court for a reappraisal of the property for redemption purposes, pursuant to § 75 (s) (3).1 2 The judge then referred the matter to the same conciliation commissioner who had approved the original appraisal and directed that he “have a reappraisement of the farm made and that the secured creditor be afforded an opportunity to present evidence as to the present fair value of such farm and that the conciliation commissioner 111 U. 8. C. § 203 (s) (3). 2 The pertinent portion of § 75 (s) (3) provides that “upon request of any secured or unsecured creditor, or upon request of the debtor, the court shall cause a reappraisal of the debtor’s property, or in its discretion set a date for hearing, and after such hearing, fix the value of the property, in accordance with the evidence submitted, and the debtor shall then pay the value so arrived at into court . . . and thereupon the court shall, by an order, turn over full possession and title of said property, free and clear of encumbrances to the debtor.” CARTER v. KUBLER. 245 243 Opinion of the Court. determine the correct appraised value and fix a reasonable time within which the debtor shall redeem the farm from the mortgage lien, failing in which a public sale is ordered.” Pursuant to this order, the conciliation commissioner held hearings to determine the fair and reasonable value of the farm in question. Respondent, the secured mortgage holder, called five witnesses whose estimates of the value of the farm ranged from approximately $29,000 to $33,000. The values given by petitioner’s five witnesses were from $6,500 to $12,000. All but one of these witnesses were subjected to cross-examination. Subsequently, the conciliation commissioner made the following finding: “After hearing the testimony given by the several witnesses, and studying the briefs furnished by the defendant and the plaintiff, and upon a personal investigation by the conciliation commissioner of the value of said farm, I hereby fix the value of said farm at $150 per acre [approximately $25,000 for the entire farm].” The commissioner did not indicate when or under what circumstances his personal investigation had been made. Petitioner then requested the District Court to review and reverse the commissioner’s order allowing him to redeem the farm on payment of $25,000. Included in the specification of errors was the claim that the valuation was erroneous and void “because made and fixed by the conciliation commissioner upon a personal investigation . . . made outside of and independent of the hearings ... at which personal investigation neither the petitioner herein nor his counsel was afforded opportunity to offer counter evidence or to cross-examine concerning the evidence adduced by said personal investigation.” The District Court, after reviewing the entire testimony introduced at the hearing before the commissioner and after reading the briefs submitted by the parties, concluded that the commissioner’s estimate was too 246 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. high and reduced the valuation to $20,000. It does not appear that the District Court made any use or mention of the commissioner’s personal investigation in arriving at this valuation or that any evidence was utilized other than that properly introduced at the hearing before the commissioner. Petitioner renewed his objection to the personal investigation in his appeal to the Circuit Court of Appeals. The latter, however, merely stated that there was no abuse of judicial discretion by the District Court in fixing the valuation at $20,000 and that there was no reversible error. 131 F. 2d 222. We granted certiorari, limited to the question of the propriety of the commissioner’s personal investigation, because of an asserted conflict with Moser v. Mortgage Guarantee Co., 123 F. 2d 423. We are of the opinion that the conciliation commissioner erred in fixing the value of the property partly upon his personal investigation, but that, under the circumstances of this case, such error was cured inasmuch as the District Court reexamined all the evidence properly introduced at the hearing before the commissioner and thereupon modified the latter’s valuation. Section 75 (s) (3) makes clear the impropriety of the conciliation commissioner’s action. If the District Court conducts a hearing to determine the value of the property or if the conciliation commissioner is authorized to hold such a hearing, the statute provides that the valuation shall be fixed “in accordance with the evidence submitted” at the hearing. The statute confers no authority on either the judge or the commissioner to act personally as an appraiser or to conduct his own factual inquiry absent the knowledge and consent of the parties to the hearing. The valuation must thus be determined solely from the evidence adduced at the hearing and the use of evidence obtained in any other manner is improper. Moser v. Mortgage Guarantee Co., supra; Equitable Life As- CARTER v. KUBLER. 247 243 Opinion of the Court. surance Society v. Deutschle, 132 F. 2d 525. And the parties are entitled to a valuation based on a strict adherence to this orderly procedure. John Hancock Mutual Life Ins. Co. v. Bartels, 308 U. S. 180; Borchard v. California Bank, 310 U. S. 311. Moreover, once a hearing has been ordered, § 75 (s) (3) necessarily guarantees that it shall be a fair and full hearing. The basic elements of such a hearing include the right of each party to be apprized of all the evidence upon which a factual adjudication rests, plus the right to examine, explain or rebut all such evidence. Tested by that standard, the personal investigation by the conciliation commissioner cannot be justified. It was apparently made without petitioner’s knowledge or consent and no opportunity was accorded petitioner to examine or rebut the evidence obtained in the course of such investigation. The use of this evidence was therefore inconsistent with the right to a fair and full hearing. Moser v. Mortgage Guarantee Co., supra, Wigmore on Evidence, § 1169 (3rd edition).8 The irregularity of the commissioner’s personal investigation, however, appears to have been cured by the District Court’s review and modification of the commissioner’s valuation. Order 47 of the General Orders in Bankruptcy,* 4 which is applicable to the review of the commissioner’s valuation,5 provides in effect that the commissioner’s findings of fact shall be accepted by the 8 See also Atlantic & Birmingham Ry. Co. v. Cordele, 125 Ga. 373, 54 S. E. 155; Ralph v. Southern Ry. Co., 160 S. C. 229, 158 S. E. 409; Denver Omnibus & Cab Co. v. J. R. Ward Auction Co., 47 Colo. 446, 107 P. 1073; Elston v. McGlauflin, 79 Wash. 355, 140 P. 396; Anderson v. Leblang, 125 Misc. 820, 211 N. Y. S. 613. 411 U. 8. C. following § 53. 5 Sec. 75 (s) (4) of the Bankruptcy Act, 11 TJ. S. C. § 203 (s) (4); Order 50 (11) of the General Orders in Bankruptcy, 11 U. S. C. following § 53; Equitable Life Assurance Society v. Carmody, 131 F. 2d 318, 322; Rait v. Federal Land Bank, 135 F. 2d 447,450. 248 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. judge “unless clearly erroneous.” Order 47 further provides that “the judge after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.” Had the District Court done no more than summarily affirm and adopt without change the commissioner’s finding of a $25,000 value, the defect upon which that finding rested would not have been cured and petitioner would have been deprived of the fair hearing to which he was entitled. Moser v. Mortgage Guarantee Co., supra. But here the commissioner’s error was brought to the judge’s attention by petitioner and we cannot assume that the judge was unmindful of this objection. The District Court disregarded the commissioner’s $25,000 valuation, heard argument by counsel, made an independent and complete review of the conflicting evidence introduced at the hearing before the commissioner, and fixed the valuation at $20,000 “under the evidence before me.” All of this was authorized by Order 47 inasmuch as the commissioner’s personal investigation made his finding as to value “clearly erroneous.” It is thus apparent that the error of which petitioner complains was cured by the District Court. Since none of the evidence procured by the commissioner through his personal investigation was included in the record certified to the judge, it cannot be said that the judge’s $20,000 valuation was in any way grounded on such improper evidence. Petitioner had full opportunity to examine and rebut all the evidence utilized by the judge in fixing this valuation. This procedure, furthermore, gave petitioner the full and fair hearing guaranteed to him by Congress. If the conciliation commissioner is properly authorized to conduct a reappraisal hearing and commits an error which can be and is corrected by the District Court on appeal, CONSUMERS CO. v. KABUSHIKI KAISHA. 249 243 Statement of the Case. the hearing contemplated by § 75 (s) (3) has been had. A party is not entitled to a trial de novo as of right on the review in the District Court, Equitable Life Assurance Society v. Carmody, 131F. 2d 318, and none was requested by petitioner. Nor is there any requirement that the judge must reverse and remand the case to the commissioner for further hearings or for his considered judgment based solely on the competent evidence. To so hold would render nugatory the discretionary power given the judge by Order 47 to receive further evidence himself or to modify or reject, in whole or in part, the commissioner’s findings on appeal. In addition, it would make mandatory what is at most a discretionary power of the judge under § 75 (s) (3) to authorize a hearing before the commissioner. The judgment below is accordingly Affirmed. CONSUMERS IMPORT CO. et al. v. KABUSHIKI KAISHA KAWASAKI ZOSENJO et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 32. Argued October 21, 1943.—Decided November 8, 1943. 1. For damage to cargo by fire not caused by the “design or neglect” of the shipowner, the Fire Statute extinguishes claims against the vessel as well as claims against the owner. P. 253. 2. That the contracts of affreightment were signed “for master” does not require a different result. P. 252. 3. There was in this case no waiver of immunity under the Fire Statute. P. 254. 4. The Etna Maru, 33 F. 2d 232, to the extent that it conflicts herewith, is disapproved. P. 256. 133 F. 2d 781, affirmed. Certiorari, 319 U. S. 734, to review the affirmance of a decree (39 F. Supp. 349) which, in a suit by cargo claim- 250 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. ants, exonerated the owner and bareboat charterer of the vessel from liability for damage by fire. Mr. T. Catesby Jones, with whom Messrs. D. Roger Englar, Ezra G. Benedict Fox, and Thomas H. Middleton were on the brief, for petitioners. Mr. George C. Sprague for respondents. Mr. Justice Jackson delivered the opinion of the Court. Petitioners, Consumers Import Company and others, hold bills of lading covering several hundred shipments of merchandise. The shipments were damaged or destroyed by fire or by the means used to extinguish fire on board the Japanese ship Venice Maru on August 6, 1934, on voyage from Japan to Atlantic ports of the United States. Respondent Kabushiki Kaisha Kawasaki Zo-senjo owned the Venice Maru and let her to the other respondent, Kawasaki Kisen Kabushiki Kaisha, under a bareboat form of charter. The latter was operating her as a common carrier. Damage to the cargo is conceded from causes which are settled by the findings below, which we decline to review.1 Upwards of 660 tons of sardine meal in bags was stowed in a substantially solid mass in the hold. In view of its susceptibility to heating and combustion it had inadequate ventilation. As the ship neared the Panama Canal, fire broke out, resulting in damage to cargo and ship. The cause of the fire is found to be negligent stowage of the fish meal, which made the vessel unseaworthy. The negligence was that of a person employed to supervise loading to whom responsibility was properly delegated and who was qualified by experience to perform the work. No negligence or design of the owner or charterer is found. 1 The facts are considered at length in the opinion of the Court of Appeals, 133 F. 2d 781. CONSUMERS CO. v. KABUSHIKI KAISHA. 251 249 Opinion of the Court. The cargo claimants filed libels in rem against the ship and in personam against the charterer for breach of contracts of carriage. The owner joined the charterer in a proceeding in admiralty to decree exemption from or limitation of liability. Stipulation and security were substituted for the ship in the custody of the court.2 The District Court applied the so-called “Fire Statute” to exonerate the owner entirely and the charterer and the ship in all except matters not material to the issue here. The Circuit Court of Appeals affirmed, taking a view of the statute in conflict with that of the Fifth Circuit in The Etna Maru, 33 F. 2d 232. To resolve the conflict we granted certiorari expressly limited to the question, “Does the Fire Statute extinguish maritime liens for cargo damage, or is its operation confined to in personam liability only?”3 The Fire Statute reads: “No owner of any vessel shall be liable to answer for or make good to any person any loss or damage, which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner.”4 * The statute also provides that a charterer such as we have here stands in the position of the owner for purposes of limitation or exemption of liability.6 2 Admiralty Rule 51. The Alien Property Custodian on July 30, 1942, vested in himself all property in the United States of respondent Kawasaki Kisen Ka-bushiki Kaisha. Vesting Orders 77 and 80, 7 Federal Register 7048, 7049. On March 15, 1943, he vested in himself all property of Tokyo Marine & Fire Insurance Co. Ltd., a Japanese corporation which advanced cash collateral to the surety who became such in the ad interim stipulation. Vesting Order 1084, 8 Federal Register 3647. 8 319 U. S. 734. 4 Act of March 3, 1851, § 1, now 46 U. S. C. § 182, formerly R. S. § 4282. 6 Act of March 3, 1851, § 5, now 46 U. S. C. § 186. 252 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. Since “neglect of the owner” means his personal negligence, or in case of a corporate owner, negligence of its managing officers and agents as distinguished from that of the master or subordinates,6 the findings below take the case out of the only exception provided by statute. Apart from this inapplicable exception the immunity granted appears on its face complete. But claimants contend that because their contracts of affreightment were signed “for master” they became under maritime law ship’s contracts, independently of any owners’ contracts, and that the ship itself stands bound to the cargo though the owner may be freed. It seems unnecessary to examine the validity of the claim that apart from the statute claimants under the circumstances would have a lien on the vessel, or to review the historical development of the fiction that the ship for some purposes is treated as a jural personality apart from that of its owner. If we assume that the circumstances are appropriate otherwise for such a lien as claimants assert, it only brings us to the question whether the Fire Statute cuts across it as well as other doctrines of liability and extinguishes claims against the vessel as well as against the owner. The provision here in controversy is § 1 of the Act of March 3,1851. Despite its all but a century of existence, the contention here made has never been before this Court. Sections 3 and 4 of the same Act in other circumstances provided limitations of liability, and as to them a question was considered by this Court in The City of Norwich, 118 IT. S. 468, 502 (1886), stated thus: “It is next contended that the act of Congress does not extend to the exoneration of the ship, but only exonerates the owners by a surrender of the ship and freight, and, therefore, that the plea of limited liability cannot be received in a pro- 6 Walker v. Transportation Co., 3 Wall. 150; Craig v. Continental Ins. Co., 141 U. S. 638, 647; Earle & Stoddart v. Eller man’s Wilson Line, 287 U. S. 420,424. CONSUMERS CO. v. KABUSHIKI KAISHA. 253 219 Opinion of the Court. ceeding in rem” The Court rejected the contention and held that when the owner satisfied the limited obligation fixed on him by statute, owner and vessel were both discharged. The Court said that “To say that an owner is not liable, but that his vessel is liable, seems to us like talking in riddles.” The riddle after more than half a century repeated to us in different context does not appear to us to have improved with age. In the meantime, with the exception of The Etna Maru, the lower federal courts have uniformly construed the statutes as exonerating the ship as well as the owner.7 We would be reluctant to overturn an interpretation supported by such consensus of opinion among courts of admiralty, even if its justification were more doubtful than this appears.8 9 Petitioners say, however, that such of these decisions as are not distinguishable were “ill-considered.” We think that the better reason as well as the weight of authority refutes petitioners. To sustain their contention would deny effect to the Fire Statute as an immunity and convert it into a limitation of liability to the value of the ship. This is what Congress did in other sections of the same Act8 and elsewhere,10 which suggests that it used different language here because it had a different purpose to accomplish. Congress has said that the owner shall not “answer for” this loss in question. Claimant says this means in effect that he shall answer only with his ship. But the owner would never answer for a loss except with 7 Dill v. The Bertram, Fed. Cas. 3910; Keene n. The Whistler, Fed. Cas. 7645; The Rapid Transit, 52 F. 320; The Salvore, 60 F. 2d 683; The Older, 65 F. 2d 359; The President Wilson, 5 F. Supp. 684; see Earle & Stoddart v. Ellerman’s Wilson Line, 287 U. S. 420, 427, n. 3; The Buckeye State, 39 F. Supp. 344, 346-17. 8 See United States v. Ryan, 284 U. S. 167,174; Missouri v. Ross, 299 U. 8.72,75. 9 §§ 2,3, Act of March 3,1851. 10 Harter Act of February 13, 1893, 46 U. S. C. §§ 190-96. 254 OCTOBER TERM, 1943. Opinion of the Court. 320 U. S. his property, since execution against the body was not at any time in legislative contemplation. There could be no practical exoneration of the owner that did not at the same time exempt his property. If the owner by statute is told that he need not “make good” to the shipper, how may we say that he shall give up his ship for that very purpose? It seems to us that Congress has, with the exception stated in the Act, extinguished fire claims as an incident of contracts of carriage, and that no fiction as to separate personality of the ship may revive them. There may, of course, be a waiver of the benefits of the Fire Statute, but none is present in this case. Claimants urge that the statute as construed goes beyond any other exemption from liability for negligence allowed to a common carrier, and that it should therefore be curtailed by strict construction. We think, however, that claimants’ contention would result in a frustration of the purpose of the Act. At common law the shipowner was liable as an insurer for fire damage to cargo.11 We may be sure that this legal policy of annexing an insurer’s liability to the contract of carriage loaded the transportation rates of prudent carriers to compensate the risk. Long before Congress did so, England had separated the insurance liability from the carrier’s duty.* 12 To enable our merchant marine to compete, Congress enacted this statute.13 It was a sharp de- New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344,381. The Act of March 3,1851, followed soon after and probably was enacted in consequence of this decision. See The Great Western, 118 U. S. 520, 533. 12 This Court has heretofore pointed out that the Act of March 3, 1851 was patterned on English statutes, including Act of 7 George II, c. 15, passed in 1734, and 26 George III, c. 86 (1786). See Norwich Co. v. Wright, 13 Wall. 104, 117 et seq.; The Main v. Williams, 152 U. S. 122,124. 13 Senator Hamlin reported the bill from the Committee on Commerce on January 25, 1851 and said, “This bill is predicated on what CONSUMERS CO. v. KABUSHIKI KAISHA. 255 249 Opinion of the Court. parture from the concepts that had usually governed the common carrier relation, but it is not to be judged as if applied to land carriage, where shipments are relatively multitudinous and small and where it might well work injustice and hardship. The change on sea transport seems less drastic in economic effects than in terms of doctrine. It enabled the carrier to compete by offering a carriage rate that paid for carriage only, without loading it for fire liability. The shipper was free to carry his own fire risk, but if he did not care to do so it was well known that those who made a business of risk-taking would issue him a separate contract of fire insurance. Congress had simply severed the insurance features from the carriage features of sea transport and left the shipper to buy each separately. While it does not often come to the surface of the record in admiralty proceedings, we are not unaware that in commercial practice the shipper who buys carriage from the shipowner usually buys fire protection from an insurance company, thus obtaining in two contracts what once might have been embodied in one. The purpose of the statute to relieve carriage rates of the insurance burden would be largely defeated if we were to adopt an interpretation which would enable cargo claimants and is now the English law, and it is deemed advisable by the Committee on Commerce that the American marine should stand at home and abroad as well as the English marine.” 23 Cong. Globe 332. On February 26, 1851, speaking to the bill, Senator Hamlin said: These are the provisions of the bill. It is true that the changes are most radical from the common law upon the subject; but they are rendered necessary, first, from the fact that the English common law system really never had an application to this country, and, second, that the English Government has changed the law, which is a very strong and established reason why we should place our commercial marine upon an equal footing with hers. Why not give to those who navigate the ocean as many inducements to do so as England has done? why not place them upon that great theatre where we are to have the great contest for the supremacy of the commerce of the world? That is what this bill seeks to do, and it asks no more.” 23 Cong. Globe 715. 552826—44-21 256 OCTOBER TERM, 1943. Syllabus. 320 U. S. their subrogees to shift to the ship the risk of which Congress relieved the owner. This would restore the insurance burden at least in large part to the cost of carriage and hamper the competitive opportunity it was purposed to foster by putting our law on an equal basis with that of England. Our conclusion is that any maritime liens for claimants’ cargo damage are extinguished by the Fire Statute. In so far as the decision in The Etna Maru conflicts, it is disapproved, and the judgment of the court below is Affirmed. MERCHANTS NATIONAL BANK OF BOSTON, EXECUTOR, v. COMMISSIONER OF INTERNAL REVENUE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 30. Argued October 19, 1943.—Decided November 15, 1943. 1. Section 303 (a) (3) of the Revenue Act of 1926, which allows deduction for estate tax purposes of amounts bequeathed to or for the use of charities, was validly implemented by Treasury Regulations 80 (1934 ed.), Arts. 44 and 47, which provide that, where a trust is created for both charitable and private purposes, the charitable bequest, to be deductible, must have at the testator’s death a value “presently ascertainable, and hence severable from the interest in favor of the private use,” and further, to the extent that there is a power in a private donee or trustee to divert the property from the charity, “deduction will be limited to that portion, if any, of the property or fund which is exempt from an exercise of such power.” P. 260. 2. Under a trust created by will, the income was to be paid to the testator’s widow for life, and on her death all but a specified amount of the principal was to go to designated charities. The trustee was authorized, in his discretion, to invade the corpus for the “comfort, support, maintenance, and/or happiness” of the widow, and was directed to exercise that discretion with liberality towards the widow and to consider her “welfare, comfort «nd happiness prior to claims MERCHANTS BANK v. COMMISSIONER. 257 256 Opinion of the Court. of residuary beneficiaries,” i. e., the charities. In 1937 the trust realized gains from the sale of securities. Held: (1) A deduction under § 303 (a) (3) of the Revenue Act of 1926, for purposes of the federal estate tax, was properly disallowed. P. 261. (2) A deduction for federal income tax purposes, under § 162 (a) of the Revenue Act of 1936, which permits a deduction of that part of gross income “which pursuant to the terms of the will ... is during the taxable year . . . permanently set aside” for charitable purposes, was properly disallowed. P. 263. 132 F. 2d 483, affirmed. Certiorari, 319 IT. S. 734, to review the reversal of a decision of the Board of Tax Appeals, 45 B. T. A. 270, which set aside a determination of deficiencies in income and estate taxes. Mr. Edward C. Thayer for petitioner. Mr. Arnold Raum, with whom Solicitor General Fahy, Assistant Attorney General Samuel 0. Clark, Jr., Messrs. Sewall Key and Morton K. Rothschild and Miss Helen R. Carloss were on the brief, for respondent. Mr. Justice Rutledge delivered the opinion of the Court. Ozro M. Field died in Massachusetts in 1936, leaving a gross estate of some $366,000. In his will he provided, after certain minor bequests, that the residue of his estate be held in trust, the income to go to his wife for life, and on her death all but $100,000 of the principal1 to go “free and discharged of this trust” to certain named charities. Under the trust set up by the will, the trustee, petitioner here, was authorized to invade the corpus “at such time or times as my said Trustee shall in its sole discretion deem The $100,000 was to remain in trust, the income to go in equal s ares to his three adopted children and a niece of his wife, and on the death of the last of these beneficiaries the corpus was also to go to the named charities. 258 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. wise and proper for the comfort, support, maintenance, and/or happiness of my said wife, and it is my wish and will that in the exercise of its discretion with reference to such payments from the principal of the trust fund to my said wife, May L. Field, my said Trustee shall exercise its discretion with liberality to my said wife, and consider her welfare, comfort and happiness prior to claims of residuary beneficiaries under this trust.” In 1937 the trust realized gains of $100,900.31 from the sale of securities in its portfolio. In filing estate and income tax returns petitioner, which was also Mr. Field’s executor, sought to deduct $128,276.94 from the gross estate and the $100,900.31 from the 1937 income of the trust, on the theory that those sums constituted portions of a donation to charity and were therefore deductible respectively under § 303 (a) (3) of the Revenue Act of 1926 (44 Stat. 72)2 3 and § 162 (a) of the Revenue Act of 1936 (49 Stat. 1706).8 2 Section 303 provides: “For the purpose of the tax the value of the net estate shall be determined— “(a) In the case of a resident, by deducting from the value of the gross estate— “(3) The amount of all bequests, legacies, devises, or transfers, to or for the use of the United States, any State, Territory, any political subdivision thereof, or the District of Columbia, for exclusively public purposes, or to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, . . .” 3 Section 162 provides: “The net income of the estate or trust shall be computed in the same manner and on the same basis as in the case of an individual, except that— “(a) There shall be allowed as a deduction (in lieu of the deduction for charitable, etc., contributions authorized by section 23 (o)) any part of the gross income, without limitation, which pursuant to the terms of the will or deed creating the trust, is during the taxable year MERCHANTS BANK v. COMMISSIONER. 259 256 Opinion of the Court. The commissioner disallowed the deductions and determined deficiencies of $26,290.93 in estate tax and $42,825.69 in income tax for 1937, but on the taxpayer’s petition for review the Board of Tax Appeals (now the Tax Court) upheld the latter’s contentions. The Court of Appeals reversed the Board of Tax Appeals, 132 F. 2d 483, and we granted certiorari because of an asserted conflict with decisions of other circuit courts* 4 and this Court.5 6 319 U. S. 734. There is no question that the remaindermen here were charities. The case, at least under § 303 (a) (3), turns on whether the bequests to the charities have, as of the testator’s death, a “presently ascertainable” value or, put another way, on whether, as of that time, the extent to which the widow would divert the corpus from the charities could be measured accurately. Although Congress, in permitting estate tax deductions for charitable bequests, used the language of outright transfer, it apparently envisaged deductions in some circumstances where contingencies, not resolved at the testator’s death, create the possibility that only a calculable portion of the bequest may reach ultimately its charitable destination? The Treasury has long accommodated the paid or permanently set aside for the purposes and in the manner specified in section 23 (o), or is to be used exclusively for religious, charitable, scientific, literary, or educational purposes. . . .” 4 Compare the decision below with Hartford-Connecticut Trust Co. v. Eaton, 36 F. 2d 710 (C. C. A. 2d); First National Bank v. Snead, 24 F. 2d 186 (C. C. A. 5th); Lucas n. Mercantile Trust Co., 43 F. 2d 39 (C. C. A. 8th); Commissioner v. Bank of America Assn., 133 F. 2d 753 (C. C. A. 9th); Commissioner v. F. G. Bonfils Trust, 115 F. 2d 788 (C. C. A. 10th). 5 See Ithaca Trust Co. v. United States, 279 U. S. 151. 6 R g., the not unusual case of a bequest of income for life intervenes between the testator and the charity, requiring computation, with the aid of reliable actuarial techniques and data, of present value from uture worth. Compare the provisions for charitable deductions in 260 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. administration of the section to the narrow leeway thus allowed to charitable donors who wish to combine some private benefaction with their charitable gifts. The limit of permissible contingencies has been blocked out in a more convenient administrative form in Treasury Regulations which provide that, where a trust is created for both charitable and private purposes the charitable bequest, to be deductible, must have, at the testator’s death, a value “presently ascertainable, and hence severable from the interest in favor of the private use,”* 7 and further, to the extent that there is a power in a private donee or trustee to divert the property from the charity, “deduction will be limited to that portion, if any, of the property or fund which is exempt from an exercise of such power.”8 These Regulations are appropriate implementations of § 303 (a) (3), and, having been in effect under successive reën-actments of that provision, define the framework of the inquiry in cases of this sort. Cf. Helvering v. Winmill, 305 U. S. 79; Taft v. Commissioner, 304 U. S. 351. Whatever may be said with respect to computing the present value of the bequest of the testator who dilutes his charity only to the extent of first affording specific private legatees the usufruct of his property for a fixed period, a different problem is presented by the testator who, preferring to insure the comfort and happiness of his private legatees, hedges his philanthropy, and permits invasion of the corpus for their benefit. At the very least a possibility that part of the principal will be used is then created, and the present value of the remainder which the charity will receive becomes less readily ascertainable. Not infrequently the standards by which the extent of permis- the Revenue Acts of 1918—§403 (a) (3) (40 Stat. 1098); 1921— § 403 (a) (3) (42 Stat. 279) ; 1924—§ 303 (a) (3) (43 Stat. 306) ; 1926—§ 303 (a) (3) (44 Stat. 72). 7 Treasury Regulations 80 (1934 ed.) Art. 44. 8 Treasury Regulations 80 (1934 ed.) Art. 47. MERCHANTS BANK v. COMMISSIONER. 261 256 Opinion of the Court. sible diversion of corpus is to be measured embrace factors which cannot be accounted for accurately by reliable statistical data and techniques. Since, therefore, neither the amount which the private beneficiary will use nor the present value of the gift can be computed, deduction is not permitted. Cf. Humes v. United States, 276 U. S. 487. For a deduction under § 303 (a) (3) to be allowed, Congress and the Treasury require that a highly reliable appraisal of the amount the charity will receive be available, and made, at the death of the testator. Rough guesses, approximations, or even the relatively accurate valuations on which the market place might be willing to act are not sufficient. Cf. Humes n. United States, 276 U. S. 487, 494. Only where the conditions on which the extent of invasion of the corpus depends are fixed by reference to some readily ascertainable and reliably predictable facts do the amount which will be diverted from the charity and the present value of the bequest become adequately measurable. And, in these cases, the taxpayer has the burden of establishing that the amounts which will either be spent by the private beneficiary or reach the charity are thus accurately calculable. Cf. Bank of America Assn. v. Commissioner, 126 F. 2d 48 (C. C. A.). In this case the taxpayer could not sustain that burden. Decedent’s will permitted invasion of the corpus of the trust for “the comfort, support, maintenance and/or happiness of my wife.” It enjoined the trustee to be liberal in the matter, and to consider her “welfare, comfort and happiness prior to the claims of residuary beneficiaries,” i. e., the charities. Under this will the extent to which the principal might be used was not restricted by a fixed standard based on the widow’s prior way of life. Compare Ithaca Trust Co. v. United States, 279 U. S. 151. Here, for example, her “happiness” was among the factors to be considered by the trustee. The sums which her happiness might require to 262 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. be expended are of course affected by the fact that the trust income was not insubstantial and that she was sixtyseven years old with substantial independent means and no dependent children.9 And the laws of Massachusetts may restrict the exercise of the trustee’s discretion somewhat more narrowly than a liberal reading of the will would suggest, although that is doubtful. Cf. Dana v. Dana, 185 Mass. 156, 70 N. E. 49, and compare Sparhawk v. Goldthwaite, 225 Mass. 414,114 N. E. 718. Indeed one might well “guess, or gamble . . ., or even insure against” the principal being expended here. Cf. Humes v. United States, supra. But Congress has required a more reliable measure of possible expenditures and present value than is now available for computing what the charity will receive. The salient fact is that the purposes for which the widow could, and might wish to have the funds spent do not lend themselves to reliable prediction.10 This is not 9 The Board of Tax Appeals found that decedent had adopted three children—two girls and a boy—before his marriage to the present Mrs. Field. She never adopted the children. The two girls were married to husbands fully able to support them, and the boy was nearly twenfy-one at the testator’s death. Immediately after decedent’s death the widow owned income-producing property worth about $104,000. Her total income from her own property and the trust, and the amounts she has actually expended have been as follows: Period 1936 (7 months) Income $10,735.35 Expenditures $1,853.99 1937 24,738.57 10,357.91 1938 17,480.85 11,055.91 1939 17,448.23 12,024.92 1940 16,959.66 13,389.31 «R7 3R9 RR JUS. 682.04 10 E. g., the Board found that since her husband’s death, Mrs. Field purchased two automobiles and a fur coat, took two pleasure trips, gave financial assistance to a niece, helped send a grand nephew through medical school, and purchased a fur coat for one of her husband’s daughters. MERCHANTS BANK v. COMMISSIONER. 263 256 Douglas, J., dissenting. a “standard fixed in fact and capable of being stated in definite terms of money.” Cf. Ithaca Trust Co. N. United States, supra. Introducing the element of the widow’s happiness and instructing the trustee to exercise its discretion with liberality to make her wishes prior to the claims of residuary beneficiaries brought into the calculation elements of speculation too large to be overcome, notwithstanding the widow’s previous mode of life was modest and her own resources substantial. We conclude that the commissioner properly disallowed the deduction for estate tax purposes. The deduction for income tax purposes stands on no better footing. Congress permitted a deduction of that part of gross income “which pursuant to the terms of the will ... is during the taxable year . . . permanently set aside” for charitable purposes. In view of the explicit requirement that the income be permanently set aside, there is certainly no more occasion here than in the case of the estate tax to permit deduction of sums whose ultimate charitable destination is so uncertain. Accordingly, the decision of the Court of Appeals is Affirmed. Mr. Justice Douglas, with whom Mr. Justice Jackson concurs, dissenting: The Tax Court applied the correct rule of law in determining whether the gifts to charity were so uncertain as to disallow their deduction. That rule is that the deduction may be made if on the facts presented the amount of the charitable gifts are affected by “no uncertainty appreciably greater than the general uncertainty that attends human affairs.” Ithaca Trust Co. v. United States, 279 U. S. 151, 154. In that event the standard fixed by the will is “capable of being stated in definite terms of money.” Id., p. 154. The mere possibility of invasion of the corpus is not enough to defeat the deduction. The 264 OCTOBER TERM, 1943. Statement of the Case. 320 U. S. Tax Court applied that test to these facts. 45 B. T. A. 270, 273-274. Where its findings are supported by substantial evidence they are conclusive. We may modify or reverse such a decision only if it is “not in accordance with law.” 44 Stat. 110, 26 U. S. C. § 1141 (c) (i). See Wilmington Trust Co. v. Helvering, 316 U. S. 164, 168. The discretion to pay to the wife such principal amounts as the trustee deems proper for her “happiness” introduces of course an element of uncertainty beyond that which existed in the Ithaca Trust Co. case. There the trustee only had authority to withdraw from the principal and pay to the wife a sum “necessary to suitably maintain her in as much comfort as she now enjoys.” But the frugality and conservatism of this New England corporate trustee, the habits and temperament of this sixty-seven year old lady, her scale of living, the nature of the invest' ments—these facts might well make certain what on the face of the will might appear quite uncertain. We should let that factual determination of the Tax Court stand, even though we would decide differently were we the triers of fact. ROBERTS v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 19. Argued October 15, 18, 1943.—Decided November 22, 1943. A federal District Court, having by a valid judgment sentenced a defendant to a term of imprisonment (less than the maximum) and ordered suspension of execution of the sentence and release of the defendant on probation, is without authority thereafter on revocation of probation to set aside that sentence and increase the term of imprisonment. Construing Probation Act, §§ 1, 2. Pp. 266, 272. 131 F. 2d 392, reversed. Certiorari, 318 U. S. 753, to review the affirmance of a judgment revoking probation and resentencing a defendant in a criminal case. ROBERTS v. UNITED STATES. 265 264 Opinion of the Court. Mr. Newton B. Powell, with whom Mr. Benton Littleton Britnell was on the brief, for petitioner. Mr. Paul A. Freund, with whom Solicitor General Fahy, Assistant Attorney General Tom C. Clark, Messrs. Oscar A. Provost and W. Marvin Smith and Miss Melva M. Graney were on the brief, for the United States. Mr. Justice Black delivered the opinion of the Court. In April, 1938, petitioner pleaded guilty to a violation of 18 U. S. C. 409 and the District Court entered a judgment sentencing him to pay a fine of $250 and to serve two years in a federal penitentiary. Acting under authority of the Probation Act1 the court then suspended execution of the sentence conditioned upon payment of the fine, and ordered petitioner’s release on probation for a five-year period. The fine was paid and he was released. In June, 1942, the court after a hearing revoked the probation, set aside the original sentence of two years, and imposed a new sentence of three years. The Circuit Court of Appeals affirmed, 131 F. 2d 392. Certiorari was granted because of the importance of questions raised concerning administration of the Probation Act. The power of the District Court to increase the sentence from two to three years is challenged on two grounds: (1) Properly interpreted the Probation Act does not authorize a sentence imposed before probation, the execution of which has been suspended, to be set aside and increased upon revocation of probation; (2) If construed to grant such power, the Act to that extent violates the prohibition against double jeopardy contained in the Fifth Amendment. We do not reach this second question. If the authority exists in federal courts to suspend or to increase a sentence fixed by a valid judgment, it must be derived from the Probation Act. The government * x43 Stat. 1259; 46 Stat. 503 ; 48 Stat. 256; 53 Stat. 1223,1225; u. S. C. Title 18, §§ 724-728. 266 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. concedes that federal courts had no such power prior to passage of that Act. See Ex parte United States, 242 U. S. 27; United States v. Mayer, 235 U. S. 55; Ex parte Lange, 18 Wall. 163; United States v. Benz, 282 U. S. 304. In the instant case that part of the original judgment which suspended execution of the two-year sentence and released the petitioner on probation was authorized by the literal language of § 1 of the Probation Act (U. S. C. Title 18, § 724) granting the District Court power “to suspend the . . . execution of sentence and to place the defendant upon probation. . . .” But before we can conclude that the Act authorized the District Court thereafter to increase the sentence imposed by the original judgment we must find in it a legislative grant of authority to do four things: revoke probation; revoke suspension of execution of the original sentence; set aside the original sentence; and enter a new judgment for a longer imprisonment. We are asked by the government to find this legislative grant in § 2 of the Act as amended (U. S. C. Title 18, § 725) a part of which is set out below.2 It is clear that power to do the first two things, revoke the probation and the suspension of sentence, is expressly granted by § 2. It is equally clear that power to do the third, set aside the original sentence, is not expressly granted. If we find this power we must resort to inference. Except by strained construction we could not infer from the express grant of power to revoke probation or suspension of sentence the further power to set aside the original 2 “At any time within the probation period the probation officer may arrest the probationer ... or the court which has granted the probation may issue a warrant for his arrest, . . . [and] such probationer shall forthwith be taken before the court. . . . Thereupon the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed ” 43 Stat. 1260; 48 Stat. 256. ROBERTS v. UNITED STATES. 267 264 Opinion of the Court. sentence. Neither probation nor suspension of execution rescinded the judgment sentencing petitioner to imprisonment; 8 the one merely ordered that petitioner be released under the supervision of probation officials, the other that enforcement of his sentence be postponed. Upon their revocation, without further court action, the original sentence remained for execution as though it had never been suspended. Cf. Miller v. Aderhold, 288 U. S. 206, 211. If then the power to set aside and increase the prison term of the original sentence is to be inferred at all from § 2, it must be drawn from the clause which empowers the court after revocation of the probation and the suspension of sentence to “impose any sentence which might originally have been imposed.” It is undisputed in the instant case that the court could originally have imposed a three-year sentence. Therefore the existence of power to set aside the first judgment in order to increase the sentence would be a perfectly logical inference from the clause if it stood alone, because two valid sentences for the same conviction cannot coexist. But the clause cannot be read in isolation; it must be read in the context of the entire Act. And in the absence of compelling language we should not read into it an inferred grant of power which necessarily would bring it into irreconcilable conflict with other provisions of the Act. To accept the government’s interpretation of this clause would produce such a conflict. Section 1 of the the Probation Act provides the procedural plan for release on probation. After judgment of guilt, the trial court is 8 Cf. United States v. Pile, 130 U. S. 280; United States v. Weiss, 28 F. Supp. 598, 599; Pernatto v. United States, 107 F. 2d 372; Kriebel v. United States, 10 F. 2d 762; Ackerson v. United States, 15 F. 2d 268, 269; Moss v. United States, 72 F. 2d 30, 32; King v. Commonwealth, 246 Mass. 57, 60, 140 N. E. 253; Belden v. Hugo, 88 Conn. 500, 504, 91 A. 369; In re Hall, 100 Vt. 197,202,136 A. 24. 268 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. authorized “to suspend the imposition or execution of sentence and to place the defendant upon probation. . . .” (Italics supplied.) By this language Congress conferred upon the court a choice between imposing sentence before probation is awarded or after probation is revoked. In the first instance the defendant would be sentenced in open court to imprisonment for a definite period; in the second, he would be informed in open court that the imposition of sentence was being postponed. In both instances he then would be informed of his release on probation upon conditions fixed by the court. The difference in the alternative methods is plain. Under the first, where execution of sentence is suspended, the defendant leaves the court with knowledge that a fixed sentence for a definite term of imprisonment hangs over him; under the second, he is made aware that no definite sentence has been imposed and that if his probation is revoked the court will at that time fix the term of his imprisonment. It is at once apparent that if we accept the government’s interpretation this express distinction which § 1 draws between the alternative methods of imposing sentence would be completely obliterated. In the words of the government, any sentence pronounced upon the defendant before his release on probation would be a “dead letter.” Thus the express power to suspend execution of sentence granted by § 1 would, by an inference drawn from § 2, be reduced to a meaningless formality. No persuasive reasons relating to congressional or administrative policy have been suggested to us which justify construing § 2 in this manner. The ten-year legislative history of the Probation Act strongly suggests that Congress intended to draw a sharp distinction between the power to suspend execution of a sentence and the alternative power to defer its imposition. The first probation legislation was passed by Congress in 1917 but failed to receive the President’s signa- ROBERTS v. UNITED STATES. 269 264 Opinion of the Court. ture. As originally introduced this bill provided only for the suspension of imposition of sentence.4 After extended hearings the Senate Judiciary Committee reported it with amendments including two which were intended to grant courts power to choose between suspending imposition and suspending execution.5 But when the bill finally passed both Houses the power to suspend imposition had been eliminated and only the power to suspend execution remained.6 Between 1917 and 1925, when the present Act was passed and approved by the President, the several congressional committees interested in probation legislation considered numerous bills. Some provided only for suspension of imposition, some only for suspension of execution, and some for either method as the court saw fit.7 During this period there were advocates of those bills which provided for the suspension of imposition of sentence, but others opposed such bills. Attorney General Palmer, belonging to the latter group, expressed his opposition to a bill which provided for the suspension of imposition, pointing out that, “The judge may also, in his discretion, terminate the probation at any time within the period specified and require the defendant to serve not a sentence which had been originally pronounced upon him, but a sentence to be pronounced at the time of the termination of the probation for the act contemplates that in 4 Hearings before subcommittee of the Committee on the Judi- ciary, U. S. Senate, on S. 1092, 64th Cong., 1st Sess., March 25, 1916, pp. 5, 6. 6 Report No. 887, Senate Committee on the Judiciary, 64th Cong., 2d Sess. 6 54 Cong. Rec. 3637, 4373; Hearings before the House Committee on the Judiciary, 66th Cong., 2d Sess., on H. R. 340, 1111 and 12036, March 9,1920, pp. 106-107,112-113. 7 Summaries of state legislation were inserted into the records of the committee hearings and many witnesses discussed such legislation. See, e. g., Ibid., 123-130, 38-44. Like the bills before Congress, the state probation acts were not uniform in their treatment of suspension of sentence. 270 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. granting probation a court suspends even the imposition of a sentence. . . . The conferring of such powers upon judges would not, it seems to me, contribute to the proper and uniform administration of criminal justice.”8 (Italics supplied.) In the end Congress declined to adopt one method of suspension to the exclusion of the other and instead granted the courts power to apply either method according to the circumstances of each individual case. From this compromise of the conflicting views on the proper method of suspension we may conclude that Congress indicated approval of the natural consequences of the application of each method. As understood by Attorney General Palmer one of these consequences was that when the method of suspension of execution was used the defendant could be required to serve only the sentence which had been originally pronounced upon him. A construction of the Act to preserve the distinctive characteristics of the two methods of suspension is not inconsistent with the manner in which it has been enforced and administered. From the passage of the Act until 19409 the Attorney General exercised supervision over administration of the Act.10 In 1930 the Attorney Gen- 8 Ibid., 105. 8 In 1940 administration of the probation system was transferred to the Administrative Office of the United States Courts under the provisions of an Act passed August 7, 1939. 53 Stat. 1223, 1225. 10 The original Act required probation officers to “make such reports to the Attorney General as he may at any time require.” 43 Stat. 1261. In June, 1925, three months after enactment of the law, the Attorney General sent to all United States District Judges a memorandum of suggestions in which he comprehensively discussed the duties of judges and probation officers and requested that monthly reports be made to him concerning the probation activities in each court. See 1925 Annual Reports and Proceedings of the National Probation Association, 227-230. In 1930 an amendment to the Probation Act stated that the Attorney General should “endeavor by all suitable means to promote the efficient administration of the probation system and the enforcement of the probation laws in all United States courts.” 46 Stat. 503, 504. See also 53 Stat. 1225. ROBERTS v. UNITED STATES. 271 264 Opinion of the Court. eral in a carefully considered opinion reached the conclusion that if Congress had intended by § 2 of the Probation Act “to create such an important power, [as that for which the government here contends] it would seem that more explicit language would have been used.” 36 0. A. G. 186, 192. A comprehensive two-volume report by the Attorney General entitled “Survey of Release Procedures” published in 1939 adopted this interpretation of § 2: “Where imposition of sentence was originally suspended and probation granted, and the probation and suspension are later revoked, it is plain that before the offender can be imprisoned imposition of sentence is necessary. And since the case reverts to its status at the time probation was granted, the court clearly is free to impose ‘any sentence which might originally have been imposed.’ 18 U. S. C. § 725 (1934). But where the court imposed sentence but suspended the execution of it, it would seem that when the suspension of execution is revoked the original sentence becomes operative.” Significantly, the report further pointed out that “No case has been found wherein the court, upon revocation of suspension of execution, increased the original sentence.”11 So far as pointed out to us the present and two other cases are the only ones in which federal courts have, upon revocation of probation, increased a definite sentence which had been imposed upon an offender prior to his release on probation. Cf. United States v. Moore, 101 F. 2d 56; Remer v. Regan, 104 F. 2d 704. The Moore case 11 Attorney General’s Survey of Release Procedures, Vol. I, p. 13. Asserting that there is a distinction between a decrease and an increase of sentence, the report further stated: “However, it has been held that when suspension of execution is revoked the court may modify the original sentence so as to decrease the term of imprisonment,” Ibid. Two Circuit Courts of Appeals had construed the Act as authorizing in that circumstance a judgment which reduced the term of the original sentence. United States v. Antinori (C. C. A. 5), 59 F. 2d 171; Scalia v. United States (C. C. A. 1), 62 F. 2d 220. 552826—44--22 272 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. was decided January 16, 1939, without discussion of the power of the court to increase the sentence. The Regan case was decided May 26, 1939, and the court pointed out that defendant apparently conceded that imposition of an increased sentence was authorized by the Probation Act. We have, therefore, an administration of the probation law from its passage in 1925 until 1939, in which the Attorney General not only assumed but expressly stated by official opinion that a definite sentence, execution of which had been suspended, could not be increased after the suspension had been revoked for breach of probation conditions; and in which the federal courts had apparently not undertaken to act contrary to the Attorney General’s interpretation. To construe the Probation Act as not permitting the increase of a definite term of imprisonment fixed by a prior valid sentence gives full meaning and effect both to the first and second sections of the Act. In no way does it impair the Act’s usefulness as an instrument to accomplish the basic purpose of probation, namely to provide an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement under the tutelage of a probation official and under the continuing power of the court to impose institutional punishment for his original offense in the event that he abuse this opportunity. To accomplish this basic purpose Congress vested wide discretion in the courts. See Burns v. United States, 287 U. S. 216. Thus Congress conferred upon the courts the power to decide in each case whether to impose a definite term of imprisonment in advance of probation or to defer the imposition of sentence, the alternative to be adopted to depend upon the character and circumstances of the individual offender. All we now hold is that having exercised its discretion by sentencing an offender to a ROBERTS v. UNITED STATES. 273 264 Frankfurter, J., dissenting. definite term of imprisonment in advance of probation, a court may not later upon revocation of probation set aside that sentence and increase the term of imprisonment. Reversed. Dissenting opinion of Mr. Justice Frankfurter, in which the Chief Justice and Mr. Justice Reed concur. The device of probation grew out of a realization that to make the punishment fit the criminal requires wisdom seldom available immediately after conviction. Imposition of sentence at that time is much too often an obligation to exercise caprice, and to make convicted persons serve such a sentence is apt to make law a collaborator in new anti-social consequences. Probation is an experimental device serving both society and the offender. It adds the means for exercising wisely that discretion which, within appropriate limits, is given to courts. The probation system was devised to allow persons guilty of antisocial conduct to continue at large but under appropriate safeguards. The hope of the system is that the probationer will derive encouragement and collaboration in his endeavors to remain in society and never serve a day in prison. The fulfillment of that hope largely rests on the efficacy of the probation system, and that depends on a sufficient number of trained and skilful probation officers. Thus the probation system is in effect a reliance on the future to reveal treatment appropriate to the probationer. In the nature of things, knowledge which may thus be gained is not generally available when the moment for conventional sentencing arrives. Since assessment of an appropriate punishment immediately upon conviction becomes very largely a judgment based on speculation, the function of probation is to supplant such speculative judgment by judgment based on experience. For this 274 OCTOBER TERM, 1943. Frankfurter, J., dissenting. 320U.S. reason probation laws fix a tolerably long period of probation, as, for instance, the five-year period of the Federal Probation Act. In view of all that led to the adoption of probation and the light its workings have cast, the imposition of a suspended term sentence is meaningless if indeed it does not contradict the central idea underlying probation. A convicted person who is given a term sentence and then placed on probation hopes never to spend a day in prison. The court returning the probationer to the community likewise assumes that the influence of probation will save the probationer from future imprisonment. To treat the pronouncement of a term sentence as a kind of bargain whereby the probationer knows that, no matter what, he cannot be put in prison beyond the term so named is to give a wholly unreal interpretation to the procedure. We certainly should not countenance the notion that a probationer has a vested interest in the original sentence nor encourage him to weigh the length of such a sentence against any advantages he may find in violating his probation. To bind the court to such a sentence is undesirable in its consequences and violative of the philosophy of probation. As we pointed out very recently, the difference to a probationer between imposition of sentence followed by probation and suspension of the imposition of sentence “is one of trifling degree.” Korematsu v. United States, 319 U. S. 432,435. The fact is that term sentences of which the execution is suspended are likely to be as full of vagaries and as unrelated to insight relevant to treatment for particular individuals, as are term sentences the execution of which is not suspended. The capricious nature of such defined sentences dominates all statistical and other evidence regarding conventional judicial sentencing, e. g., Criminal Justice in Cleveland (1922) 303 et seq. and particularly Tables 20 and 21, and Ambard v. Attorney General for Trinidad and Tobago [1936] A. C. 322, and ROBERTS v. UNITED STATES. 275 264 Frankfurter, J., dissenting. has led to suggestions for more scientific methods of sentencing, see Smith, Alfred E., Progressive Democracy (1928) 209 et seq.; Warner and Cabot, Judges and Law Reform (1936) 156 et seq.; Cantor, Crime and Society (1939) 254 et seq.; Glueck, Criminal Careers in Retrospect (1943) c. XVII. If the experience of the District Court for the Southern District of New York—the district having the heaviest volume of federal criminal prosecutions—is a fair guide, the imposition of sentence is more frequently suspended than is its execution. The only practical result of the strained reading of the powers of the district courts by the decision today may well lead trial judges generally to place probationers on probation without any tentative sentence. A construction which leads to such a merely formal result, one so easily defeated in practice, should be avoided unless the purpose, the text and the legislative history of the Act converge toward it. The policy of probation clearly counsels against it, and neither the words of the Act nor their legislative history contradict that policy. So far as it is significant on this phase, the legislative history looks against rather than for such an undesirable construction. In contrast to the present Act, the first measure passed by Congress conferred only the power to suspend execution of sentence and upon its revocation required the defendant “to serve the sentence . . . originally imposed.” H. R. 20414, 64th Cong., 2d Sess. (1917). This enactment suffered a pocket veto. In reporting the present legislation to the House of Representatives, its Committee on the Judiciary explained that “In case of failure to observe these conditions [of probation], those on probation may be returned to the court for sentence.” H. Report No. 1377,68th Cong., 2d Sess., 2. And the text of the legislation does not defeat this policy. Indubitably petitioner was arrested and brought before the court during his period of probation. In that event 276 OCTOBER TERM, 1943. Frankfurter, J., dissenting. 320 U. 8. the statute is explicit in its direction that “the court may revoke the probation . . . and may impose any sentence which might originally have been imposed.” The court having followed the mandate of the statute, it seems irrelevant and unimportant whether petitioner became a probationer either by a postponement of sentence or by a suspension of a sentence already imposed. We cannot say that the statute does not contemplate that the new sentence which it authorizes shall be effective. The obvious purpose is that it should become so either by superseding any sentence earlier imposed or by revoking the suspension of imposition of sentence if none was imposed. Such is the plain meaning and effect of the direction that upon the arrest of the probationer “the court may revoke the probation or the suspension of sentence, and may impose any sentence which might originally have been imposed.” In other words, suspension whether of the sentence or of its execution leaves a trial court free to commit the criminal to prison if he fails to meet the test of freedom during the probationary period. It would be strange if the Constitution stood in the way of a system so designed for the humane treatment of offenders. To vest in courts the power of adjusting the consequences of criminal conduct to the character and capacity of an offender, as revealed by a testing period of probation, of course does not offend the safeguard of the Fifth Amendment against double punishment. By forbidding that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb,” that Amendment guarded against the repetition of history by trying a man twice in a new and independent case when he already had been tried once, see Holmes, J., in Kepner v. United States, 195 U. S. 100, 134, or punishing him for an offense when be had already suffered the punishment for it. But to set a man at large after conviction on condition of his good be- UNITED STATES v. DOTTERWEICH. 277 264 Counsel for Parties. havior and on default of such condition to incarcerate him, is neither to try him twice nor to punish him twice. If Congress sees fit, as it has seen fit, to employ such a system of criminal justice there is nothing in the Constitution to hinder. UNITED STATES v. DOTTERWEICH. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE, SECOND CIRCUIT. No. 5. Argued October 12, 1943.—Decided November 22, 1943. Upon review of the conviction of a corporate officer on informations charging the corporation and him with shipping in interstate commerce adulterated and misbranded drugs, in violation of §301 of the Federal Food, Drug, and Cosmetic Act, held: 1. The provision of § 305 of the Act, that before reporting a violation to the United States attorney the Administrator shall give to the person against whom such proceeding is contemplated a notice and an opportunity to present his views, does not create a condition precedent to a prosecution under the Act. P. 278. 2. It was open to the jury to find the officer guilty though failing to find the corporation guilty. P. 279. 3. Where there is no guaranty such as under §303 (c) of the Act affords immunity from prosecution, that section can not be read as relieving corporate officers and agents from liability for violation of § 301. P. 283. 4. The District Court properly left to the jury the question of the officer’s responsibility for the shipment; and the evidence was sufficient to support the verdict. P. 285. 131 F. 2d 500, reversed. Certiorari, 318 U. S. 753, to review the reversal of a conviction for violation of the Federal Food, Drug, and Cosmetic Act. Solicitor General Fahy, with whom Assistant Attorneys General Wendell Berge and Tom C. Clark, and Messrs. Oscar A. Provost, Edward G. Jennings, and Valentine Brookes were on the brief, for the United States. 278 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. Mr. Samuel M. Fleischman, with whom Mr. Robert J. Whissel was on the brief, for respondent. Mr. Justice Frankfurter delivered the opinion of the Court. This was a prosecution begun by two informations, consolidated for trial, charging Buffalo Pharmacal Company, Inc., and Dotterweich, its president and general manager, with violations of the Act of Congress of June 25, 1938, c. 675, 52 Stat. 1040, 21 U. S. C. §§ 301-392, known as the Federal Food, Drug, and Cosmetic Act. The Company, a jobber in drugs, purchased them from their manufacturers and shipped them, repacked under its own label, in interstate commerce. (No question is raised in this case regarding the implications that may properly arise when, although the manufacturer gives the jobber a guaranty, the latter through his own label makes representations.) The informations were based on § 301 of that Act (21 U. S. C. §331), paragraph (a) of which prohibits “The introduction or delivery for introduction into interstate commerce of any . . . drug . . . that is adulterated or misbranded.” “Any person” violating this provision is, by paragraph (a) of § 303 (21 U. S. C. § 333), made “guilty of a misdemeanor.” Three counts went to the jury—two, for shipping misbranded drugs in interstate commerce, and a third, for so shipping an adulterated drug. The jury disagreed as to the corporation and found Dotterweich guilty on all three counts. We start with the finding of the Circuit Court of Appeals that the evidence was adequate to support the verdict of adulteration and misbranding. 131 F. 2d 500, 502. Two other questions which the Circuit Court of Appeals decided against Dotterweich call only for summary disposition to clear the path for the main question before us. He invoked § 305 of the Act requiring the Administrator, before reporting a violation for prosecution by a UNITED STATES v. DOTTERWEICH. 279 277 Opinion of the Court. United States attorney, to give the suspect an “opportunity to present his views.” We agree with the Circuit Court of Appeals that the giving of such an opportunity, which was not accorded to Dotterweich, is not a prerequisite to prosecution. This Court so held in United States v. Morgan, 222 U. S. 274, in construing the Food and Drugs Act of 1906, 34 Stat. 768, and the legislative history to which the court below called attention abundantly proves that Congress, in the changed phraseology of 1938, did not intend to introduce a change of substance. 83 Cong. Rec. 7792-94. Equally baseless is the claim of Dotterweich that, having failed to find the corporation guilty, the jury could not find him guilty. Whether the jury’s verdict was the result of carelessness or compromise or a belief that the responsible individual should suffer the penalty instead of merely increasing, as it were, the cost of running the business of the corporation, is immaterial. Juries may indulge in precisely such motives or vagaries. Dunn v. United States, 284 U. S. 390. And so we are brought to our real problem. The Circuit Court of Appeals, one judge dissenting, reversed the conviction on the ground that only the corporation was the “person” subject to prosecution unless, perchance, Buffalo Pharmacal was a counterfeit corporation serving as a screen for Dotterweich. On that issue, after rehearing, it remanded the cause for a new trial. We then brought the case here, on the Government’s petition for certiorari, 318 U. S. 753, because this construction raised questions of importance in the enforcement of the Federal Food, Drug, and Cosmetic Act. The court below drew its conclusion not from the provisions defining the offenses on which this prosecution was based (§§ 301 (a) and 303 (a)), but from the terms of § 303 (c). That section affords immunity from prosecution if certain conditions are satisfied. The condition relevant to this case is a guaranty from the seller of the innocence of 280 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. his product. So far as here relevant, the provision for an immunizing guaranty is as follows: “No person shall be subject to the penalties of subsection (a) of this section ... (2) for having violated section 301 (a) or (d), if he establishes a guaranty or undertaking signed by, and containing the name and address of, the person residing in the United States from whom he received in good faith the article, to the effect, in case of an alleged violation of section 301 (a), that such article is not adulterated or misbranded, within the meaning of this Act, designating this Act . . .” The Circuit Court of Appeals found it “difficult to believe that Congress expected anyone except the principal to get such a guaranty, or to make the guilt of an agent depend upon whether his employer had gotten one.” 131 F. 2d 500, 503. And so it cut down the scope of the penalizing provisions of the Act to the restrictive view, as a matter of language and policy, it took of the relieving effect of a guaranty. The guaranty clause cannot be read in isolation. The Food and Drugs Act of 1906 was an exertion by Congress of its power to keep impure and adulterated food and drugs out of the channels of commerce. By the Act of 1938, Congress extended the range of its control over illicit and noxious articles and stiffened the penalties for disobedience. The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words. See Hipolite Egg Co. v. United States, 220 U. S. 45, 57, and McDermott v. Wisconsin, 228 U. S. 115, 128. The prosecution to which Dot-terweich was subjected is based on a now familiar type of legislation whereby penalties serve as effective means UNITED STATES v. DOTTERWEICH. 281 277 Opinion of the Court. of regulation. Such legislation dispenses with the conventional requirement for criminal conduct—awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. United States v. Bdlint, 258 U. S. 250. And so it is clear that shipments like those now in issue are “punished by the statute if the article is misbranded [or adulterated], and that the article may be misbranded [or adulterated] without any conscious fraud at all. It was natural enough to throw this risk on shippers with regard to the identity of their wares . . .” United States v. Johnson, 221 U. S. 488, 497-98. The statute makes “any person” who violates § 301 (a) guilty of a “misdemeanor.” It specifically defines “person” to include “corporation.” § 201 (e). But the only way in which a corporation can act is through the individuals who act on its behalf. New York Central & H. R. R. Co. v. United States, 212 U. S. 481. And the historic conception of a “misdemeanor” makes all those responsible for it equally guilty, United States v. Mills, 7 Pet. 138, 141, a doctrine given general application in § 332 of the Penal Code (18 U. S. C. § 550). If, then, Dotter-weich is not subject to the Act, it must be solely on the ground that individuals are immune when the “person” who violates § 301 (a) is a corporation, although from the point of view of action the individuals are the corporation. As a matter of legal development, it has taken time to establish criminal liability also for a corporation and not merely for its agents. See New York Central & H. R. R. Co. v. United States, supra. The history of federal food and drug legislation is a good illustration of the elaborate phrasing that was in earlier days deemed necessary to fasten criminal liability on corporations. Section 12 of the Food and Drugs Act of 1906 provided that, “the act, omission, or failure of any officer, agent, or other person 282 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. acting for or employed by any corporation, company, society, or association, within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation, company, society, or association as well as that of the person.” By 1938, legal understanding and practice had rendered such statement of the obvious superfluous. Deletion of words—in the interest of brevity and good draftsmanship1—superfluous for holding a corporation criminally liable can hardly be found ground for relieving from such liability the individual agents of the corporation. To hold that the Act of 1938 freed all individuals, except when proprietors, from the culpability under which the earlier legislation had placed them is to defeat the very object of the new Act. Nothing is clearer than that the later legislation was designed to enlarge and stiffen the penal net and not to narrow and loosen it. This purpose was unequivocally avowed by the two committees which reported the bills to the Congress. The House Committee reported that the Act “seeks to set up effective provisions against abuses of consumer welfare growing out of inadequacies in the Food and Drugs Act of June 30,1906.” (H. Rep. No. 2139,75th Cong., 3d Sess., p. 1.) And the Senate Committee explicitly pointed out that the new legislation “must not weaken the existing laws,” but on the contrary “it must strengthen and extend that law’s protection of the consumer.” (S. Rep. No. 152,75th Cong., 1st Sess., p. 1.) If the 1938 Act were construed as it was below, the penalties of the law could be imposed only in the rare case where the corporation is merely an individual’s alter ego. Corporations carrying on an illicit trade would be subject only to what the House Committee described as a “license fee 1 “The bill has been made shorter and less verbose than previous bills. That has been done without deleting any effective provisions.” S. Rep. No. 152,75th Cong., 1st Sess., p. 2. UNITED STATES v. DOTTERWEICH. *283 277 Opinion of the Court. for the conduct of an illegitimate business.”2 A corporate officer, who even with “intent to defraud or mislead” (§ 303b), introduced adulterated or misbranded drugs into interstate commerce could not be held culpable for conduct which was indubitably outlawed by the 1906 Act. See, e. g., United States v. Mayfield, 177 F. 765. This argument proves too much. It is not credible that Congress should by implication have exonerated what is probably a preponderant number of persons involved in acts of disobedience—for the number of non-corporate proprietors is relatively small. Congress, of course, could reverse the process and hold only the corporation and allow its agents to escape. In very exceptional circumstances it may have required this result. See Sherman v. United States, 282 U. S. 25. But the history of the present Act, its purposes, its terms, and extended practical construction lead away from such a result once “we free our minds from the notion that criminal statutes must be construed by some artificial and conventional rule.” United States v. Union Supply Co., 215 U. S. 50,55. The Act is concerned not with the proprietory relation to a misbranded or an adulterated drug but with its distribution. In the case of a corporation such distribution must be accomplished, and may be furthered, by persons standing in various relations to the incorporeal proprietor. If a guaranty immunizes shipments of course it immunizes all involved in the shipment. But simply because if there had been a guaranty it would have been received by the proprietor, whether corporate or individual, as a safeguard for the enterprise, the want of a guaranty 2 In describing the penalty provisions of §303, the House Committee reported that the Bill “increases substantially the criminal penalties . . . which some manufacturers have regarded as substantially a license fee for the conduct of an illegitimate business.” H. Rep. No. 2139, 75th Cong., 3d Sess., p. 4. 284 OCTOBER TERM, 1943. Opinion of the Court. 320U.S. does not cut down the scope of responsibility of all who are concerned with transactions forbidden by § 301. To be sure, that casts the risk that there is no guaranty upon all who according to settled doctrines of criminal law are responsible for the commission of a misdemeanor. To read the guaranty section, as did the court below, so as to restrict liability for penalties to the only person who normally would receive a guaranty—the proprietor—disregards the admonition that “the meaning of a sentence is to be felt rather than to be proved.” United States v. Johnson, 221 U. S. 488, 496. It also reads an exception to an important provision safeguarding the public welfare with a liberality which more appropriately belongs to enforcement of the central purpose of the Act. The Circuit Court of Appeals was evidently tempted to make such a devitalizing use of the guaranty provision through fear that an enforcement of § 301 (a) as written might operate too harshly by sweeping within its condemnation any person however remotely entangled in the proscribed shipment. But that is not the way to read legislation. Literalism and evisceration are equally to be avoided. To speak with technical accuracy, under § 301 a corporation may commit an offense and all persons who aid and abet its commission are equally guilty. Whether an accused shares responsibility in the business process resulting in unlawful distribution depends on the evidence produced at the trial and its submission—assuming the evidence warrants it—to the jury under appropriate guidance. The offense is committed, unless the enterprise which they are serving enjoys the immunity of a guaranty, by all who do have such a responsible share in the furtherance of the transaction which the statute outlaws, namely, to put into the stream of interstate commerce adulterated or misbranded drugs. Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting. UNITED STATES v. DOTTERWEICH. 285 277 Murphy, J., dissenting. Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless. It would be too treacherous to define or even to indicate by way of illustration the class of employees which stands in such a responsible relation. To attempt a formula embracing the variety of conduct whereby persons may responsibly contribute in furthering a transaction forbidden by an Act of Congress, to wit, to send illicit goods across state lines, would be mischievous futility. In such mat-ters the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted. Our system of criminal justice necessarily depends on “conscience and circumspection in prosecuting officers,” Nash v. United States, 229 U. S. 373, 378, even when the consequences are far more drastic than they are under the provision of law before us. See United States v. Balint, supra (involving a maximum sentence of five years). For present purpose it suffices to say that in what the defense characterized as “a very fair charge” the District Court properly left the question of the responsibility of Dotterweich for the shipment to the jury, and there was sufficient evidence to support its verdict. Reversed. Mr. Justice Murphy, dissenting: Our prime concern in this case is whether the criminal sanctions of the Federal Food, Drug, and Cosmetic Act of 1938 plainly and unmistakably apply to the respondent in his capacity as a corporate officer. He is charged with violating § 301 (a) of the Act, which prohibits the introduction or delivery for introduction into interstate commerce of any adulterated or misbranded drug. There is 286 OCTOBER TERM, 1943. Murphy, J., dissenting. 320U.S. no evidence in this case of any personal guilt on the part of the respondent. There is no proof or claim that he ever knew of the introduction into commerce of the adulterated drugs in question, much less that he actively participated in their introduction. Guilt is imputed to the respondent solely on the basis of his authority and responsibility as president and general manager of the corporation. It is a fundamental principle of Anglo-Saxon jurisprudence that guilt is personal and that it ought not lightly to be imputed to a citizen who, like the respondent, has no evil intention or consciousness of wrongdoing. It may be proper to charge him with responsibility to the corporation and the stockholders for negligence and mismanagement. But in the absence of clear statutory authorization it is inconsistent with established canons of criminal law to rest liability on an act in which the accused did not participate and of which he had no personal knowledge. Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called “the tenderness of the law for the rights of individuals” 1 entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not “plainly and unmistakably” within the confines of the statute. United States v. Lacher, 134 U. S. 624, 628; United States v. Gradwell, 243 U. S. 476, 485. Moreover, the fact that individual liability of corporate officers may be consistent with the policy and purpose of a public health and welfare measure does not authorize this Court to impose such liability where Congress has not 1 United States v. Wiltberger, 5 Wheat. 76, 95. UNITED STATES v. DOTTERWEICH. 287 277 Murphy, J., dissenting. clearly intended or actually done so. Congress alone has the power to define a crime and to specify the offenders. United States v. Wiltberger, 5 Wheat. 76, 95. It is not our function to supply any deficiencies in these respects, no matter how grave the consequences. Statutory policy and purpose are not constitutional substitutes for the requirement that the legislature specify with reasonable certainty those individuals it desires to place under the interdict of the Act. United States v. Harris, 177 U. S. 305; Sarlls v. United States, 152 U. S. 570. Looking at the language actually used in this statute, we find a complete absence of any reference to corporate officers. There is merely a provision in § 303 (a) to the effect that “any person” inadvertently violating § 301 (a) shall be guilty of a misdemeanor. Section 201 (e) further defines “person” as including an “individual, partnership, corporation, and association.”2 The fact that a corporate officer is both a “person” and an “individual” is not indicative of an intent to place vicarious liability on the officer. Such words must be read in light of their statutory environment.3 Only if Congress has otherwise specified an 2 The normal and necessary meaning of such a definition of “person” is to distinguish between individual enterprises and those enterprises that are incorporated or operated as a partnership or association, in order to subject them all to the Act. This phrase cannot be considered as an attempt to distinguish between individual officers of a corporation and the corporate entity. Lee, “Corporate Criminal Liability,” 28 Col. L. Rev. 1,181,190. 3 Compare United States n. Cooper Corp., 312 U. S. 600, 606, and Davis v. Pringle, 268 U. S. 315, 318, holding that the context and legislative history of the particular statutes there involved indicated that the words “any person” did not include the United States. But in Georgia v. Evans, 316 U. S. 159, and Ohio v. Helvering, 292 U. S. 360, these considerations led to the conclusion that “any person” did include a state. See also 40 Stat. 1143, which specifically includes officers within the meaning of “any person” as used in the Revenue Act of 1918. 552826—44--23 288 OCTOBER TERM, 1943. Murphy, J., dissenting. 320 U. S. intent to place corporate officers within the ambit of the Act can they be said to be embraced within the meaning of the words “person” or “individual” as here used. Nor does the clear imposition of liability on corporations reveal the necessary intent to place criminal sanctions on their officers. A corporation is not the necessary and inevitable equivalent of its officers for all purposes.4 In many respects it is desirable to distinguish the latter from the corporate entity and to impose liability only on the corporation. In this respect it is significant that this Court has never held the imposition of liability on a corporation sufficient, without more, to extend liability to its officers who have no consciousness of wrongdoing.5 Indeed, in a closely analogous situation, we have held that the vicarious personal liability of receivers in actual charge and control of a corporation could not be predicated on the statutory liability of a “company,” even when the policy and purpose of the enactment were consistent with personal liability. United States v. Harris, supra.6 * 8 It fol- 4 In Park Bank n. Remsen, 158 U. S. 337, 344, this Court said, “It is the corporation which is given the powers and privileges and made subject to the liabilities. Does this carry with it an imposition of liability upon the trustee or other officer of the corporation? The officer is not the corporation; his liability is personal, and not that of the corporation, nor can it be counted among the powers and privileges of the corporation.” 6 For an analysis of the confusion on this matter in the state and lower federal courts, see Lee, “Corporate Criminal Liability,” 28 Col. L. Rev. 1,181. 8 In that case we had before us Rev. Stat. §§ 4386-4389, which penalized “any company, owner or custodian of such animals” who failed to comply with the statutory requirements as to livestock transportation. A railroad company violated the statute and the government sought to impose liability on the receivers who were in actual charge of the company. It was argued that the word “company” embraced the natural persons acting on behalf of the company and that to hold such officers and receivers liable was within the policy and purpose of UNITED STATES v. DOTTERWEICH. 289 277 Murphy, J., dissenting. lows that express statutory provisions are necessary to satisfy the requirement that officers as individuals be given clear and unmistakable warning as to their vicarious personal liability. This Act gives no such warning. This fatal hiatus in the Act is further emphasized by the ability of Congress, demonstrated on many occasions, to apply statutes in no uncertain terms to corporate officers as distinct from corporations.7 The failure to mention officers specifically is thus some indication of a desire to exempt them from liability. In fact the history * 7 so humane a statute. We rejected this contention in language peculiarly appropriate to this case (177 U. S. at 309): “It must be admitted that, in order to hold the receivers, they must be regarded as included in the word ‘company.’ Only by a strained and artificial construction, based chiefly upon a consideration of the mischief which the legislature sought to remedy, can receivers be brought within the terms of the law. But can such a kind of construction be resorted to in enforcing a penal statute? Giving all proper force to the contention of the counsel of the Government, that there has been some relaxation on the part of the courts in applying the rule of strict construction to such statutes, it still remains that the intention of a penal statute must be found in the language actually used, interpreted according to its fair and obvious meaning. It is not permitted to courts, in this class of cases, to attribute inadvertence or oversight to the legislature when enumerating the classes of persons who are subjected to a penal enactment, nor to depart from the settled meaning of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute.” 7 “Whenever a corporation shall violate any of the penal provisions of the antitrust laws, such violation shall be deemed to be also that of the individual directors, officers, or agents of such corporation who shall have authorized, ordered, or done any of the acts constituting in whole or in part such violation.” 15 U. S. C. § 24. The courts of bankruptcy . . . are hereby invested . . . with such jurisdiction at law and in equity as will enable them to . . . (4) arraign, try, and punish bankrupts, officers, and other persons, and the agents, officers, members of the board of directors or trustees, or other 290 OCTOBER TERM, 1943. Murphy, J., dissenting. 320 U. S. of federal food and drug legislation is itself illustrative of this capacity for specification and lends strong support to the conclusion that Congress did not intend to impose liability on corporate officers in this particular Act. Section 2 of the Federal Food and Drugs Act of 1906, as introduced and passed in the Senate, contained a provision to the effect that any violation of the Act by a corporation should be deemed to be the act of the officer responsible therefor and that such officer might be punished as though it were his personal act.* 8 This clear imposition of criminal responsibility on corporate officers, however, was not carried over into the statute as finally enacted. In its place appeared merely the provision that “when construing and enforcing the provisions of this Act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any corporation . . . within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation ... as well as that of the person.”9 This provision had the effect only of making corporations similar controlling bodies, of corporations for violations of this Act.” 30 Stat. 545. “Any such common carrier, or any officer or agent thereof, requiring or permitting any employee to go, be, or remain on duty in violation of the next preceding section of this chapter shall be liable to a penalty . . .” 45 U. S. C. § 63. “A mortgagor who, with intent to defraud, violates any provision of subsection F, section 924, and if the mortgagor is a corporation or association, the president or other principal executive officer of the corporation or association, shall upon conviction thereof be held guilty of a misdemeanor . . .” 46 U. S. C. § 941 (b). 8 S. 88, 59th Cong., 1st Sess. Senator Heyburn, one of the sponsors of S. 88, stated that this was “a new feature in bills of this kind. It was intended to obviate the possibility of escape by the officers of a corporation under a plea, which has been more than once made, that they did not know that this was being done on the credit of or on the responsibility of the corporation.” 40 Cong. Rec. 894. 8 34 Stat. 772, 21 U. S. C. § 4. UNITED STATES v. DOTTERWEICH. 291 277 Murphy, J., dissenting. responsible for the illegal acts of their officers and proved unnecessary in view of the clarity of the law to that effect. New York Central & H. R. R. Co. v. United States, 212 U. S. 481. The framers of the 1938 Act were aware that the 1906 Act was deficient in that it failed “to place responsibility properly upon corporate officers.”10 * In order “to provide the additional scope necessary to prevent the use of the corporate form as a shield to individual wrongdoers,”11 these framers inserted a clear provision that “whenever a corporation or association violates any of the provisions of this Act, such violation shall also be deemed to be a violation of the individual directors, officers, or agents of such corporation or association who authorized, ordered, or did any of the acts constituting, in whole or in part, such violation.”12 This paragraph, however, was deleted from the final version of the Act. w Senate Report No. 493, 73d Cong., 2d Sess., p. 21. u Ibid., p. 22. This report also stated that “it is not, however, the purpose of this paragraph to subject to liability those directors, officers, and employees, who merely authorize their subordinates to perform lawful duties and such subordinates, on their own initiative, perform those duties in a manner which violates the provisions of the law. However, if a director or officer personally orders his subordinate to do an act in violation of the law, there is no reason why he should be shielded from personal responsibility merely because the act was done by another and on behalf of a corporation.” 12 This provision appears in several of the early versions of the Act introduced in Congress. S. 1944, 73d Cong., 1st Sess., § 18 (b); S. 2000, 73d Cong., 2d Sess., § 18 (b); S. 2800, 73d Cong., 2d Sess., § 18