UNITED STATES REPORTS VOLUME 322 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1943 From April 10, 1944 (Concluded) to and Including June 12,1944 (End of Term) united states government printing office WASHINGTON : 1945 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402-Price $5.00 (Buckram) Errata. 1. 321 U. S. xxv. The proper title of the eighth case in the righthand column is Anderson National Bank v. Luckett, 321 U. 8. 233. 2. 321 U. 8. 6, line 3, “and” should be “any”. 3. 321 U. S. 158. The opinion of Mr. Justice Jackson (p. 176), in which Mr. Justice Roberts and Mr. Justice Frankfurter joined, should precede the dissenting opinion of Mr. Justice Murphy (p. 171). 4. 321 U. 8. 369, last line of footnote, “individual” should be “individually”. 5. 321 U. 8. 552, the last line on the page should be footnote No. 7 and should read “7 See Exec. Order No. 9410, December 23, 1943, 8 Fed. Reg. 17319.”* 6. 321 U. S. 714, the last line should read “salers were told that the certificates were intended for”.* 7. 320 U. 8. 225, last line, “changeable” should be “chargeable”. 8. 319 U. S. 395, note 32, line 8 should read “most strongly against him, and such conclusions as a jury might justi-”.* 9. 319 U. 8. 434, line 30 should read “orders of the court. He must obey the terms and con-”.* 10. 319 U. S. 748, No. 883, line 3 should read “Court of Appeals for the Ninth Circuit denied. Mr. A.”* 11. 317 U. S. 558, line 19 should read “fendants named in the indictment entered pleas of nolo”.* *Correction has been made in some copies of the volume. ii JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS HARLAN FISKE STONE, Chief Justice. OWEN J. ROBERTS, Associate Justice. HUGO L. BLACK, Associate Justice. STANLEY REED, Associate Justice. FELIX FRANKFURTER, Associate Justice. WILLIAM 0. DOUGLAS, Associate Justice. FRANK MURPHY, Associate Justice. 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. HI SUPREME COURT OF THE UNITED STATES Allotment of Justices It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the Circuits, agreeably to the Acts of Congress in such case made and provided, and that such allotment be entered of record, viz: For the First Circuit, Felix Frankfurter, Associate Justice. For the Second Circuit, Robert H. Jackson, Associate Justice. For the Third Circuit, Owen J. Roberts, Associate Justice. For the Fourth Circuit, Harlan F. Stone, Chief Justice. For the Fifth Circuit, Hugo L. Black, Associate Justice. For the Sixth Circuit, Stanley Reed, Associate Justice. For the Seventh Circuit, 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 v. Swinford.......................... 714 Abell Co., Schroepfer v..................... 770 Adams v. Ragen-............................. 731 Addison v. Holly Hill Fruit Products........ 607 Alabama, Gable v............................ 726 Allegheny County, United States v........... 174 Allen Calculators v. Cash Register Co...... 137,771 Allwright, Smith v...................... 718,769 Aluminum Co., United States v............... 716 Amacker, Skelly Oil Co. v................... 760 American Fuel & Power Co., Columbia Gas v..... 379 American Seating Co. v. Zell................ 709 American Stores v. Bowles................... 730 American Sugar Rfg. Co., Anaconda v.......... 42 American Surety Co., First National Bank v... 754 American Surety Co., United States v......... 96 American Tobacco Co., Goulandris v.......... 755 American West African Line v. “Huilever”...... 735 Ames, Ex parte............................. 712 Anaconda, The, v. American Sugar Co.......... 42 Anderson v. Ragen........................... 737 Anglim, Emporium Cap well Co. v............. 752 Anthony v. United States Trust Co........... 743 Arenas v. United States..................... 419 Arkansas Natural Gas Corp., Sartor v........ 767 Armour & Co. v. Wan took.................. 723 A. S. Abell Co., Schroepfer v............... 770 Asbury Park, Murphy v....................... 735 Ashcraft v. Tennessee....................... 143 Bachrach v. Central Hanover Bank Co......... 766 Ballard, United States v...................... 78 V VI TABLE OF CASES REPORTED. Page. Banks, Ex parte............................... 717 Barber v. Barber.............................. 719 Barber^ Barber v.............................. 719 Barber v. United States....................... 741 Bare, U. S. ex rel. Jacobs v....................... 751 Barg v. Illinois.............................. 768 Barland v. Ragen.............................. 762 Barnes, Minneapolis-Honeywell Co. v......... 716 Barron, Fletcher v............................ 750 Bartley, Ruzon v.............................. 743 Bass v. New Hampshire......................... 763 Batterman v. Commissioner................... 756 Baumgartner v. United States.................. 665 Bayless v. United States.................... 748 Beegle v. Thompson............................ 743 Beldock, Empire State Chair Co. v............. 760 Bellavance v. Frank Morrow Co.............. 742,772 Benson, Long v........................ 715,732,770 Berkshire Knitting Mills v. Labor Board....... 747 Bernards v. Johnson......................... 771 Bernovich v. Illinois......................... 732 Berry, Ex parte............................... 716 Bertrand v. Illinois.......................... 741 Betts, Ex parte............................... 714 Betz, Ex parte................................ 768 Blair, United States v........................ 768 Blanc v. Cayo................................ 761 Blankenship v. Ragen.......................... 762 Blue v. United States...................... 736,771 Blumenfeld, Ex parte.......................... 712 Board of Commissioners, DeCastro v.............. 451 Board of Education, Grand River Dam Authority v.. 733 Bonham v. Ragen............................. 737 Bowers, Lumpkin v............................. 755 Bowles, American Stores v..................... 730 Bowles, Bowman v............................ 742 Bowles, Country Garden Market v................ 752 TABLE OF CASES REPORTED. vii Page. Bowles, Gallagher’s Steak House v.............. 764 Bowles, Haines v............................... 732 Bowles, Jones ex rel. Louisiana v.............. 707 Bowles, Steuart & Bro. v....................... 398 Bowles, Wilemon v.........................•.....748 Bowman v. Bowles............................. 742 Boyd v. Curran............................... 714 Boyd v. MacDonald.............................. 714 Bozel v. United States......................... 768 Bracey v. United States........................ 762 Brandt, Orange Theatre Corp, v................. 740 Breeze Corporations, Coffman v................. 715 Bridges v. Ragen............................... 762 Briggs v. Illinois............................. 758 British Assets Trust, Commissioner v........... 722 Brooklyn Eastern District Terminal, New York v.... 747 Brotherhood of Locomotive Firemen, Tunstall v.... 721 Browder v. United States...................... 711 Brown, Lederer v............................ 734 Bruner, McCarthy v............................. 718 Bulldog Electric Products Co. v. Galston....... 714 Butsch v. O’Harrow............................. 738 California, Knight v........................... 765 California, Ratner v........................... 768 California, Rico v............................. 759 California Retail Grocers Assn. v. United States.729 Calvin Tomkins Co., MacEvoy Co. v.............. 102 Cape Ann Granite Co. v. United States.......... 767 Capitol Greyhound Lines v. Labor Board......... 763 Cayo, Blanc v................................. 761 Central Hanover Bank Co., Bachrach v............766 Central States Electric Co. v. Muscatine....... 724 Chalfonte v. Smith........................ 741,766 Chicago & Eastern Illinois R. Co. v. Grand Trunk R. Co.................................. 747,772 Chicago, St. P., M. & 0. Ry. Co. v. United States.... 1 Circuit Court of Appeals, Nichols v............ 770 VIII TABLE OF CASES REPORTED. Page. City of. See name of city. Clark, Keefe v................................ 393 Clark v. United States.................... 736, 771 Clarke v. Storchak............................ 713 Clayton v. United States...................... 745 Clifford F. MacEvoy Co. v. United States...... 102 Coffman v. Breeze Corporations................ 715 Cohen, New England Ins. Co. v................. 744 Collins v. Wayland............................ 744 Colorado v. Kansas............................ 708 Columbia Gas & Electric Corp. v. Fuel Co........379 Commins, Mercado E Hijos v.................... 465 Commissioner, Batterman v..................... 756 Commissioner v. British Assets Trust.......... 722 Commissioner, Dalrymple v..................... 275 Commissioner, Douglas v.....................t.. 275 Commissioner, Equitable Life Society v........ 767 Commissioner, Hartford Fire Ins. Co. v............ 751 Commissioner, Herbert v....................... 752 Commissioner, Howell v........................ 735 Commissioner, Louisville Property Co. v....... 755 Commissioner, Northwest Bancorporation v........ 726 Commissioner, Pekras v........................ 739 Commissioner, Robinette v................. 745, 772 Commissioner, Robinson v...................... 275 Commissioner, Rowan Cotton Mills Co. v........ 740 Commissioner, Schwartz v. . .i.. 724 Commissioner v. Scottish American Co.......... 722 Commissioner v. Second British Trust.......... 722 Commissioner, Standard Knitting Mills v....... 753 Commissioner, Valentine-Clark Corp, v......... 726 Commissioner, Welsbach Engineering Corp, v...... 751 Commissioner, Western Union Co. v. . 751 Commonwealth ex rel. Esenwein, Esenwein v...... 725 Conklin v. Ragen.............................. 763 Cook & Co., Fletcher v........................ 749 TABLE OF CASES REPORTED. ix Page. Coral Gables v. Wright........................ 768 Country Garden Market v. Bowles............... 752 County of. See name of county. Courtney, Winston v........................ 731,771 Cox, Voorhees v............................... 733 Crites, Inc. v. Prudential Ins. Co.............408 Cromer v. United States...................... 760 Crown Central Petroleum Corp., Pennzoil Co. v.... 750 Crume v. Pacific Mutual Life Ins. Co.......... 755 Cullotta v. Ragen............................. 768 Curran, Boyd v................................ 714 Dalrymple v. Commissioner..................... 275 Davis v. Shell Union Oil Corp................. 753 DeCastro v. Board of Commissioners.............451 Decker, Ex parte.............................. 712 Dennis v. Mabee............................... 750 Dental Products Co. v. Smith.................. 743 Department of Taxation, Harvester Co. v........435 Department of Taxation, Minnesota Mining Co. v.. 435 Department of Treasury, Ford Motor Co. v....... 721 Department of Treasury, Harvester Co. v.... 340, 772 D. H. Goodman, Inc., Fletcher v............... 750 Diehl v. Nierstheimer......................... 762 Dilatush, Highfill v.......................... 742 Dilworth Co., McLeod v........................ 327 District Court, Roberts v................. 716, 772 Dixon, Ex parte............................... 717 Donovan v. Kansas City........................ 707 Douglas v. Commissioner...................... 275 Dovei v. Sloss-Sheffield Steel Co............. 740 Dow Chemical Co. v. Halliburton Well Co........ 719 Dow Chemical Co., Halliburton Well Co. v.......719 Dowd, Kelley v................................ 712 Dowd, Miller v............................... 759 Dowd, Taylor v................................ 737 Dowd, Watson v................................ 737 Downer, U. S. ex rei. Lynn v.................. 756 x TABLE OF CASES REPORTED. Page. Dugan v. Ragen.............................. 737 Dwyer, Huddleston v......................... 232 Dzan v. Ragen................................ 762 E. C. Schirmer Music Co., Egner v............. 730 Eells v. Hall................................. 728 Egner v. Schirmer Music Co.................... 730 Empire State Chair Co. v. Beldock............. 760 Employers’ Liability Assurance Corp., Pelham v.... 727 Emporium Capwell Co. v. Anglim................ 752 Engineers Public Service Co. v. Securities Comm’n.. 723 Engineers Public Service Co., Securities Comm’n v.. 723 Equitable Life Assurance Society v. Commissioner.. 767 Ericksen v. Morrell & Co...................... 712 Esenwein v. Commonwealth ex rel. Esen wein..... 725 Esenwein, Esenwein v.......................... 725 Estate of. See name of party. Ex parte. See name of party. Falbo v. Kennedy.............................. 745 Falbo v. United States........................ 770 Farmers Bank, Thompson v...................... 728 Federal Farm Mortgage Corp., Haskins v........ 732 Federal Land Bank, Meshberger v........ 714, 736, 771 Federal Land Bank, Reichert v................. 729 Federal Land Bank, Rhodes v...... ............ 741 Federal Land Bank, Roney v.................. 753 Federal Trade Comm’n, Miles Laboratories v..... 752 Federal Trade Comm’n, Warner’s Remedies Co. v.. 754 Feinberg v. United States..................... 726 Feldman v. United States...................... 487 Fenton v. Walling............................. 769 First National Bank v. American Surety Co...... 754 Fitzpatrick v. Nierstheimer................... 759 Fletcher v. Barron............................ 750 Fletcher v. Cook & Co......................... 749 Fletcher v. Goodman, Inc...................... 750 Fletcher v. Krise............................ 750 Fletcher v. Maupin............................ 750 TABLE OF CASES REPORTED. xi Page. Fletcher v. National Bank of Commerce......... 750 Fletcher v. Wool.............................. 749 Flynn v. United States........................ 748 Ford Motor Co. v. Dept, of Treasury........... 721 Frank Morrow Co., Bellavance v............ 742, 772 Freeman, Jones v.............................. 717 Gable v. Alabama............................. 726 Gaines, Ex parte.............................. 707 Gall v. Ragen................................. 765 Gallagher, Ex parte........................... 714 Gallagher’s Steak House, v. Bowles............ 764 Galston, Bulldog Electric Co. v............... 714 Gardner, Ex parte............................. 717 Gardner v. Kaiser............................. 732 Garlington v. Wasson................... 714, 734, 770 Garnett, Laughlin v........................... 738 Gaston v. United States...................... 764 Geldzahler v. United States.................. 756 General Motors Corp., United States v......... 722 General Trading Co. v. State Tax Comm’n........ 335 George Lawley & Son Corp. v. South. .......... 746 Globe Oil & Refining Co., Universal Co. v......471 Gobin, Ex parte............................... 707 Gold, Hofheimer v............................. 761 Good Luck Oil Co. v. Bowles................... 748 Goodman, Inc., Fletcher v.................... 750 Goulandris v. American Tobacco Co.............. 755 Goumas v. Karras & Son....................... 734 Grand v. Mayo................................ 766 Grand River Dam Authority v. Board of Education.. 733 Grand Trunk Western R. Co., Chicago & E. I. R. Co. ................................... 747, 772 Great Northern Life Ins. Co. v. Read........... 47 Great Southern Trucking Co. v. Labor Board..... 729 Green v. Missouri............................. 762 Greenleaf, Safeway Trails v................... 736 Gresham v. Indiana Bar Assn................... 757 XII TABLE OF CASES REPORTED. Page. Grieme v. United States...................... 744 Gunther v. Ragen............................. 737 Haines v. Bowles............................. 732 Haines v. Missouri........................... 749 Hall, Ex parte.............................. 717 Hall, Eells v................................... 728 Hall v. Nierstheimer......................... 732 Halliburton Oil Well Co. v. Dow Chemical Co... 719 Halliburton Oil Well Co., Dow Chemical Co. v.. 719 Hanley, Ex parte............................. 708 Hartford-Empire Co., Hazel-Atlas Co. v.... 238,772 Hartford-Empire Co., ShawkeeMfg. Co. v.... 271,772 Hartford Fire Insurance Co. v. Commissioner... 751 Hartzel v. United States..................... 680 Harvester Co. v. Dept, of Taxation........... 435 Harvester Co. v. Dept, of Treasury........ 340, 772 Haskins v. Federal Farm Mortgage Corp........ 732 Hazel-Atlas Glass Co. v. Hartford-Empire Co... 238,772 Hearst Publications, Labor Board v....... 111,769 Heinze, Pearson v............................ 762 Hellard, United States v363 Helton, Karloftis v.......................... 713 Henderson, Weber v........................... 713 Herbert, Estate of, v. Commissioner.......... 752 Hicks, Long v................................ 715 Highfill v. Dilatush......................... 742 Hile, Ex parte............................... 717 Hodge v. Huff.............................. 733 Hofheimer v. Gold............................ 761 Hofheimer v. Mclntee........................ 761 Hogmire v. Ragen............................. 738 Holly Hill Fruit Products, Addison v......... 607 House v. Mayo................................ 710 Houston, Texas ex rel. University Place v.... 711 Howell v. Commissioner....................... 735 Howell, Estate of, v. Commissioner........... 735 Howerton, Ex parte........................... 714 Huber v. Moran............................... 766 TABLE OF CASES REPORTED. xin Page. Huddleston v. Dwyer..............................232 Hudson & Manhattan R. Co. v. Jersey City......... 773 Huff, Hodge v................................... 733 Huff, Sheehan v................................. 764 Huffman v. Ragen................................ 765 Huilever S. A. Division, West African Line 1)... 735 Humphrey, Kesling v.......................... 759, 772 Hunter, McGuire v............................... 710 Hyman v. McLendon............................... 739 Igoe, Mid-Continent Investment Co. v............ 716 Illinois, Barg v................................ 768 Illinois, Bernovich v........................... 732 Illinois, Bertrand v............................ 741 Illinois, Briggs v.............................. 758 Illinois v. Indiana............................. 714 Illinois, Kelly v.............................. 758 Illinois, Vinci v............................... 749 Illinois Central R. Co. v. Kelley............... 738 Imperial Irrigation Dist., Wells Fargo Co. v.....767 Independent Assn, of Mill Workers v. Labor Board.. 731 Indiana, Illinois v............................. 714 Indiana Bar Assn., Gresham v.................... 757 Innis v. United Mercantile Agencies............. 736 International Harvester Co. v. Dept, of Taxation... 435 International Harvester Co. v. Dept, of Treasury. 340, 772 Interstate Commerce Comm’n v. Jersey City........503 Jackson, Ex parte............................... 708 Jacobs v. Bare.................................. 751 J. E. Dilworth Co., McLeod v.................... 327 Jensen, Union Brokerage Co. v................... 202 Jersey City, Hudson & Manhattan R. Co. v......... 773 Jersey City, Interstate Commerce Comm’n v........503 Jewell Ridge Coal Corp., Local No. 6167 v........ 756 Jogger Manufacturing Corp. v. Roquemore.......... 736 John, Ex parte.................................. 717 John Morrell & Co., Ericksen v.................. 712 Johnson, Bernards v............................. 771 XIV TABLE OF CASES REPORTED. Page. Jones, Ex parte................................ 711 Jones v. Freeman............................... 717 Jones ex ret. Louisiana v. Bowles.............. 707 Kaiser, Gardner v.............................. 732 Kaiser, Williams v............................. 725 Kammerer Corp., McCullough v............... 739,766 Kansas, Colorado v............................ 708 Kansas v. Missouri......................... 213,654 Kansas, Thomas v............................... 739 Kansas City, Donovan v......................... 707 Karloftis v. Helton............................ 713 Karp Metal Products Co. v. Labor Board......... 728 Karras & Son, Goumas v......................... 734 Keefe v. Clark..................................393 Keegan v. United States....................... 719 Kelley v. Dowd................................. 712 Kelley, Illinois Central R. Co. v.............. 738 Kelley v. United States........................ 707 Kelly v. Illinois............................ 758 Kennedy, U. S. ex ret. Falbo v................. 745 Kentucky, Sharpe v............................. 758 Kesling v. Humphrey........................ 759, 772 Kinder, Ex parte............................... 714 King, Ex parte................................. 716 Kitzmiller v. Pescor......................... 757 K. Karras & Son, Goumas v...................... 734 Klepinger v. Rhodes............................ 734 Knight v. California........................... 765 Koehler, Presque-Isle Trans. Co. v..............764 Krise, Fletcher v.............................. 750 Kunze v. United States......................... 719 Labor Board, Berkshire Mills v................. 747 Labor Board, Capitol Greyhound Lines v......... 763 Labor Board, Great Southern Trucking Co. v...... 729 Labor Board v. Hearst Publications......... Ill, 769 Labor Board, Independent Mill Workers v......... 731 Labor Board, Karp Metal Co. v.................. 728 TABLE OF CASES REPORTED. xv Page. Labor Board, Polish Alliance v.................. 643 Labor Board, Richter’s Bakery v................. 754 Labor Board, Richwood Union v................... 721 Labor Board v. Stockholders Publishing Co.... Ill, 770 Labor Board v. Times-Mirror Co............. Ill, 770 Labor Board, Wallace Corp, v.................... 721 Labor Board, Western Cartridge Co. v............ 767 Lashbrook v. Sullivan.,......................... 738 Laughlin v. Garnett............................. 738 Lawley & Son Corp. v. South..................... 746 Lazar v. Ragen.................................. 762 Lederer v. U. S. ex rel. Brown.................. 734 Lenroot, Western Union Co. v.................... 719 Lloyd v. U. S. Fidelity & Guaranty Co........... 770 Local No. 6167 v. Jewell Corp................... 756 Locomotive Firemen & Enginemen, Tunstall v..... 721 Lohrberg v. Nicholson........................... 744 Long v. Benson.......................... 715,732,770 Long v. Hicks................................... 715 Los Angeles v. Natural Soda Products Co......... 768 Los Angeles & Salt Lake R. Co., United States v.... 757 Louisiana v. Bowles............................. 707 Louisville & Nashville R. Co., Steele v......... 722 Louisville Property Co. v. Commissioner......... 755 L. P. Steuart & Bro. v. Bowles.................. 398 Luksich v. Misetich............................. 761 Lullo v. Ragen.................................. 737 Lumpkin v. Bowers............................... 755 Lundgren v. United States....................... 746 Lynbrook Gardens v. Ullman...................... 742 Lynn v. Downer.................................. 756 Lyons v. Oklahoma............................. 596 Lyons v. Ragen.................................. 749 Mabee, Dennis v................................. 750 MacDonald, Boyd v........................... 714 MacEvoy Co. v. United States.................... 102 Madden Furniture, Metro. Life Ins. Co. v........ 730 XVI TABLE OF CASES REPORTED. Page. Mario Mercado E Hijos v. Commins.............465 Marshall Transport Co., United States v...... 31 Massachusetts Mutual Life Ins. Co., Watson v. 746 Maupin, Fletcher v.......................... 750 Mayo, Grand v............................... 766 Mayo, House v............................... 710 McCann v. Thompson.......................... 750 McCarthy v. Bruner.......................... 718 McCauley v. Ragen........................... 762 McCullough v. Kammerer Corporation....... 739,766 McDonald v. United States............... 730,769 McGuire v. Hunter........................... 710 Mclntee, Hofheimer v........................ 761 McLaughlin, Spector Motor Service v......... 720 McLendon, Hyman v........................... 739 McLeod v. Dilworth Co........................327 McMillan, Waterman v........................ 749 Mercado E Hijos v. Commins...................465 Meshberger v. Federal Land Bank...... 714, 736, 771 Metropolitan Life Ins. Co. v. Madden Furniture.... 730 Meyer, Sullivan v........................... 743 Michigan, Tekson v.......................... 749 Mid-Continent Investment Co. v. Igoe........ 716 Miles Laboratories v. Federal Trade Comm’n... 752 Miller v. Dowd...............».............. 759 Millwood v. Ragen........................... 765 Mill Workers v. Labor Board................. 731 Milwaukee v. United States.................. 735 Mingione, Ex parte.......................... 714 Minneapolis-Honeywell Regulator Co. v. Barnes.... 716 Minneapolis Iron Store v. State Tax Comm’n.. 335 Minnesota, Northwest Airlines v..............292 Minnesota Mining & Mfg. Co. v. Dept, of Taxation.. 435 Misetich, Luksich v......................... 761 Missouri, Green v............................762 Missouri, Haines v.......................... 749 Missouri, Kansas v..................... 213,654 TABLE OF CASES REPORTED. xvn Page. Missouri, Tomkins v........................ 725,758 Mitchell v. United States...................... 768 Mitchell, United States v................... 65,770 Mitchell Irrigation District v. Whiting........ 727 Moore v. Ragen................................. 765 Moran, Huber v............................... 766 Morrell & Co., Ericksen v...................... 712 Morrow Co., Bellavance v................... 742,772 Mortensen v. United States..................... 369 Moss v. Ragen.................................. 758 Multigraph Sales Agency, Jogger Mfg. Co. v..... 736 Murphy v. Asbury Park.......................... 735 Muscatine, Central States Electric Co. v....... 724 Muscoda Local No. 123, Tennessee Coal Co. v....771 Mutual Benefit Health & Accident Assn., Shotkin v.. 731 Nagayama v. Shimabukuro........................ 755 National Bank of Commerce, Fletcher v.......... 750 National Bank of Middleboro v. United States...754 National Carloading Corp., Phoenix Express v...747 National Cash Register Co., Allen Calculators v.. 137,771 National City Bank, New York v................. 730 National Labor Relations Board. See Labor Board. Natural Soda Products Co., Los Angeles v....... 768 Neely, Ex parte.................................711 Nelson v. United States........................ 764 New England Mutual Life Ins. Co. v. Cohen......744 New Hampshire, Bass v.......................... 763 New Jersey, Segal v............................ 741 New York, Phillips v........................... 748 New York City v. Brooklyn Terminal............. 747 New York City v. National City Bank............ 730 New York & Saratoga Springs Comm’n v. United States....................................... 724 Nichols v. Circuit Court of Appeals............ 770 Nicholson, U. S. ex rel. Lohrberg v............ 744 Nierstheimer, Diehl ........................... 762 Nierstheimer, Fitzpatrick v.................... 759 XVIII TABLE OF CASES REPORTED. Page. Nierstheimer, Hall v........................... 732 Nierstheimer, Sheppard v..................... 732 Nierstheimer, Thompson v...................... 758 Nierstheimer, Willis v......................... 765 Nivens v. United States....................... 769 Nordyke, Van Camp Sea Food Co. v............... 760 North Carolina, Williams v..................... 725 Northwest Airlines v. Minnesota................ 292 Northwest Bancorporation v. Commissioner........ 726 Northwestern Bands of Indians v. United States.. 721 Norval v. Ragen................................ 765 O’Brien v. O’Brien............................. 769 O’Brien, O’Brien v..............................769 O’Harrow, Butsch v............................. 738 Oklahoma, Lyons v...............................596 Oklahoma Tax Comm’n, Rock Island Rfg. Co. v.. 711,772 O’Neal v. United States........................ 729 Orange Theatre Corp. v. Brandt................. 740 Otis & Co. v. Securities Comm’n................ 724 Pacific Gas & Electric Co. v. Securities Comm’n. 720 Pacific Mutual Life Ins. Co., Crume v...........755 Page v. Ragen.................................. 749 Pappas v. Ragen................................ 744 Pardee v. United States.................... 737,771 Patterson v. Sanford........................... 708 Patton v. Ragen................................ 763 Pearson v. Heinze............................. 762 Pekras v. Commissioner......................... 739 Pelham v. Employers’ Liability Corp............ 727 Pennzoil Co. v. Crown Central Corp............. 750 Peplowski, Ex parte........................ 711,769 Pescor, Kitzmiller v........................... 757 Pescor, Schita v............................... 761 Pescor, Smith v................................ 710 Pescor, Spencer v............................. 731 Pescor, Terrell v.......................... 767,769 Phillips v. New York........................... 748 TABLE OF CASES REPORTED. xrx Page. Phoenix-El Paso Express v. Carloading Corp... 747 Plymouth Manufacturing Corp., Walling v....... 741 Poer, United States v.................... 385,718 Polish National Alliance v. Labor Board...... 643 Pollock v. Williams............................ 4 Poteracki v. Ragen........................... 765 Potts v. Rabb................................ 727 Prebyl v. Prudential Insurance Co........... 769 Presque-Isle Transportation Co. v. Koehler.... 764 Prudential Insurance Co., Crites v............408 Prudential Insurance Co., Prebyl v............769 Pullitt, Ex parte............................ 716 Pyramid Moving Co. v. United States.......... 715 Rabb, U. S. ex ret. Potts v.................. 727 Ragen, Adams v............................... 731 Ragen, Anderson v............................ 737 Ragen, Barland v............................ 762 Ragen, Blankenship v......................... 762 Ragen, Bonham v............................. 737 Ragen, Bridges v............................. 762 Ragen, Conklin v............................. 763 Ragen, Cullotta v............................ 768 Ragen, Dugan v.............................. 737 Ragen, Dzan v................................ 762 Ragen, Gall v................................ 765 Ragen, Gunther v............................. 737 Ragen, Hogmire v............................. 738 Ragen, Huffman v............................. 765 Ragen, Lazar v............................... 762 Ragen, Lullo v............................... 737 Ragen, Lyons v.............................. 749 Ragen, McCauley v............................ 762 Ragen, Millwood v............................ 765 Ragen, Moore v............................... 765 Ragen, Moss v.............................. 758 Ragen, Norval v............................. 765 Ragen, Page v................................ 749 XX TABLE OF CASES REPORTED. Page. Ragen, Pappas v............................... 744 Ragen, Patton v............................... 763 Ragen, Poteracki v.......................... 765 Ragen, Raggio v............................... 758 Ragen, Rasmussen v............................ 762 Ragen, Sampson v.............................. 758 Ragen, Shelling v............................. 737 Ragen, Smith v............................ 732,737 Ragen, Sogan v................................ 765 Ragen, Stockey v.............................. 737 Ragen, U. S. ex rel. Townsend v............... 712 Ragen, Witt v................................. 762 Raggio v. Ragen............................... 758 Rasmussen v. Ragen............................ 762 Ratner v. California.......................... 768 Rayonier, Inc., Valliant Co. v................ 748 Read, Great Northern Ins. Co. v................ 47 Reed, Ex parte................................ 711 Reichert v. Federal Land Bank................. 729 Rhodes v. Federal Land Bank................... 741 - Rhodes, Klepinger v........................A... 734 Richter’s Bakery v. Labor Board................. 754 Richwood Clothespin Worker’s Union v. Board...721 Rico v. California............................ 759 Roanoke Marble & Granite Co., United States v.... 768 Roberts v. District Court................. 716,772 Robinette v. Commissioner................. 745,772 Robinson, Estate of, v. Commissioner.......... 275 Rock Island Refining Co. v. Tax Comm’n.... 711, 772 Rogan, Starr Piano Co. v..........•........... 728 Rolls-Royce, Inc. v. Stimson.................. 712 Roney v. Federal Land Bank.................... 753 Rooney, Ex parte.............................. 712 Roquemore, Jogger Mfg. Co. v.................. 736 Rowan Cotton Mills Co. v. Commissioner........ 740 Ruzon v. Bartley.............................. 743 Safeway Trails v. Greenleaf................... 736 TABLE OF CASES REPORTED. xxi Page. St. Louis, Warden v............................ 746 Sampson v. Ragen............................... 758 Sanders v. Sanford......................... 744,773 Sanford, Patterson v........................... 708 Sanford, Sanders v......................... 744,773 Santly Brothers v. Wilkie.................... 740 Saratoga Springs Comm’n v. United States........724 Sartor v. Arkansas Gas Corp.................. 767 Saylor, United States v.................... 385, 718 Scheinman, Zalkind v........................... 738 Schirmer Music Co., Egner v.................... 730 Schita v. Pescor.............................. 761 Schroepfer v. Abell Co......................... 770 Schwartz v. Commissioner....................... 724 Schwarz v. Witwer Grocer Co.................... 753 Scottish American Investment Co., Commissioner v.. 722 Screws v. United States........................ 718 Second British Assets Trust, Commissioner v..... 722 Securities & Exchange Comm’n v. Engineers Co.... 723 Securities & Exchange Comm’n, Engineers Co. v.... 723 Securities & Exchange Comm’n, Otis & Co. v..... 724 Securities & Exchange Comm’n, Pacific Gas Co. v.... 720 Segal v. New Jersey............................ 741 Severin v. United States....................... 733 Sharpe v. Kentucky............................. 758 Shawkee Mfg. Co. v. Hartford-Empire Co..... 271, 772 Sheehan v. Huff................................ 764 Shelling v. Ragen.............................. 737 Shell Oil Co., Sterling Products v............. 761 Shell Union Oil Corp., Davis v................. 753 Sheppard v. Nierstheimer....................... 732 Shimabukuro, Nagayama v........................ 755 Shoshone Indians v. United States.............. 721 Shotkin v. Mutual Benefit Health Assn.......... 731 Sinclair Prairie Oil Co., White v.............. 760 Singer v. United States........................ 720 Skelly Oil Co. v. Amacker...................... 760 XXII TABLE OF CASES REPORTED. Face. Skidmore v. Swift & Co......................... 723 Sloss-Sheffield Steel & Iron Co., Dovel v...... 740 Smith v. Allwright......................... 718, 769 Smith, Chalfonte v......................... 741,766 Smith, Dental Products Co. v................... 743 Smith v. Pescor............................... 710 Smith v. Ragen............................. 732,737 Smith v. Walling.............................. 769 Sogan v. Ragen................................ 765 South, Lawley & Son Corp, v.................... 746 South-Eastern Underwriters Assn., United States v. 533 Southern Railway Co. v. United States........... 72 Spector Motor Service v. McLaughlin............ 720 Spencer v. Pescor.............................. 731 Squier, Walker v............................... 768 Standard Knitting Mills v. Commissioner........ 753 Standard Rice Co., United States v.............. 725 Starr Piano Co. v. Rogan.......................* 728 State Tax Commission, General Trading Co. v.....335 Steele v. Louisville & Nashville R. Co......... 722 Sterling Aluminum Products v. Shell Oil Co...... 761 Steuart & Bro. v. Bowles....................... 398 Stimson, Rolls-Royce v......................... 712 Stockey v. Ragen............................... 737 Stockholders Publishing Co., Labor Board v.... Ill, 770 Storchak, Clarke v............................. 713 Stull v. United States......................... 745 Sullivan, Lashbrook v.......................... 738 Sullivan v. Meyer.............................. 743 Sun Publishing Co. v. Walling................. 728 Swift & Co., Skidmore v........................ 723 Swinford, Abbott v............................. 714 Taylor v. Dowd............................... 737 Tegtmeyer v. Tegtmeyer......................... 771 Tegtmeyer, Tegtmeyer v......................... 771 Tekson v. Michigan............................. 749 Telfian v. United States.................... 737,770 TABLE OF CASES REPORTED. xxm Page. Tennessee, Ashcraft v.......................... 143 Tennessee Coal, I. & R. Co. v. Muscoda Local... 771 Terrell v. Pescor......................... 767,769 Texas ex rel. West University Place v. Houston. 711 Thomas v. Kansas............................. 739 Thompson, Ex parte............................ 765 Thompson, Beegle v........................... 743 Thompson v. Farmers Bank...................... 728 Thompson v. Nierstheimer...................... 758 Thompson, U. S. ex rel. McCann v.............. 750 Times-Mirror Co., Labor Board v......... Ill, 770 Tinkoff v. West Publishing Co.............. 740,773 Tomkins v. Missouri........................ 725,758 Town of. See name of town. Townsend v. Ragen............................. 712 Trice v. Wright............................... 707 Tunstall v. Locomotive Firemen & Enginemen.....721 Ullman, Lynbrook Gardens v.................... 742 Underwriters Assn., United States v........... 533 Union Brokerage Co. v. Jensen..................202 United Mercantile Agencies, Innis v........... 736 United Mine Workers v. Jewell Ridge Corp....... 756 United States v. Allegheny County............. 174 United States v. Aluminum Co.................. 716 United States v. American Surety Co............ 96 United States, Arenas v......................... 419 United States v. Ballard....................... 78 United States, Barber v................... 741 United States, Baumgartner v.................. 665 United States, Bayless v...............•...... 748 United States v. Blair...........'............ 768 United States, Blue v.................... 736,771 United States, Bozel v........................ 768 United States, Bracey v....................... 762 United States, Browder v...................... 711 United States, California Grocers Assn, v..... 729 United States, Cape Ann Granite Co. v......... 7&7 XXIV TABLE OF CASES REPORTED. Page. United States, Chicago, St. P., M. & 0. Ry. Co. v.... 1 United States, Clark v........................ 736,771 United States, Clayton v.......................... 745 United States, Cromer v........................... 760 United States, Falbo v............................ 770 United States, Feinberg v......................... 726 United States, Feldman v.......................... 487 United States, Flynn v............................ 748 United States, Gaston v........................... 764 United States, Geldzahler v....................... 756 United States v. General Motors Corp.............. 722 United States, Grieme v........................... 744 United States, Hartzel v.......................... 680 United States v. Hellard.......................... 363 United States, Keegan v........................... 719 United States, Kelley v........................... 7W7 United States, Kunze v............................ 719 United States v. Los Angeles & S. L. R. Co........ 757 United States, Lundgren v......................... 746 United States, MacEvoy Co. v...................... 102 United States v. Marshall Transport Co............. 31 United States, McDonald v..................... 730,769 United States, Milwaukee v........................ 735 United States v. Mitchell..................... 65,770 United States, Mitchell v......................... 768 United States, Mortensen v........................ 369 United States, National Bank of Middleboro v....... 754 United States, Nelson v......................... 764 United States, New York Springs Comm’n v........... 724 United States, Nivens v......................... 769 United States, O’Neal v......................... 729 United States, Pardee v..................... 737,771 United States v. Poer......................... 385, 718 United States, Pyramid Moving Co. v............... 715 United States v. Saylor....................... 385, 718 United States, Screws v........................... 718 United States, Severin v.......................... 733 TABLE OF CASES REPORTED. xxv Page. United States, Shoshone Indians v.............. 721 United States, Singer v........................ 720 United States v. South-Eastern Underwriters.... 533 United States, Southern Ry. Co. v............... 72 United States v. Standard Rice Co.............. 725 United States, Stull v......................... 745 United States, Telfian v................... 737, 770 United States v. Wabash R. Co.................. 198 United States v. Waddill, Holland & Flinn...... 722 United States v. White........................ 694 United States, Williams v.................. 727,770 United States, Wisconsin Gas Co. v............. 526 United States, Ylagan v........................ 763 U. S. Circuit Court of Appeals, Nichols v...... 770 U. S. District Court, Roberts v............ 716, 772 U. S. ex rel. Brown, Lederer v................. 734 U. S. ex rel. Falbo v. Kennedy................. 745 U. S. ex rel. Jacobs v. Bare................... 751 U. S. ex rel. Lohrberg v. Nicholson............ 744 U. S. ex rel. Lynn v. Downer................... 756 U. S. ex rel. McCann v. Thompson............... 750 U. S. ex rel. Potts v. Rabb.................... 727 U. S. ex rel. Townsend v. Ragen................ 712 U. S. Fidelity & Guaranty Co., Lloyd v......... 770 U. S. Trust Co., Anthony v..................... 743 Universal Oil Products Co. v. Globe Oil Co.....471 Valentine-Clark Corp. v. Commissioner.......... 726 Valliant Co. v. Rayonier....................... 748 Van Camp Sea Food Co. v. Nordyke............... 760 Vernado v. Womack.............................. 717 Vinci v. Illinois.............................. 749 Voorhees v. Cox................................ 733 Wabash R. Co., United States v................. 198 Waddill, Holland & Flinn, United States v...... 722 Walker v. Squier............................... 768 Wallace Corp. v. Labor Board................... 721 Walling, Fenton v.............................. 769 XXVI TABLE OF CASES REPORTED. Page. Walling v. Plymouth Mfg. Corp................. 741 Walling, Smith v.............................. 769 Walling, Sun Publishing Co. v................. 728 Wan took, Armour & Co. v.................... 723 Warden v. St. Louis........................... 746 Warner’s Renowned Remedies Co. v. Trade Comm’n. 754 Wasson, Garlington v.................. 714,734,770 Waterman v. McMillan.......................... 749 Watson v. Dowd............................... 737 Watson v. Massachusetts Ins. Co......... 746 Wayland, Collins v.............................744 Weber v. Henderson.............................713 Welch, Ex parte............................... 708 Wells Fargo Bank Co. v. Irrigation Dist....... 767 Welsbach Engineering Corp. v. Commissioner..... 751 Western Cartridge Co. v. Labor Board.......... 767 Western Union Telegraph Co. v. Commissioner 751 Western Union Telegraph Co. v. Lenroot........ 719 West Publishing Co., Tinkoff v............ 740, 773 West University Place v. Houston.............. 711 W. E. Valliant Co. v. Rayonier............... 748 Whistler, Ex parte............................ 708 White v. Sinclair Prairie Oil Co.............. 760 White, United States v........................ 694 Whiting, Mitchell Irrigation District v....... 727 Wilemon v. Bowles............................. 748 Wilkie, Santly Brothers v..................... 740 Willard R. Cook & Co., Fletcher v............. 749 Williams, Ex parte............................ 711 Williams v. Commissioner...................... 755 Williams v. Kaiser.......................... 725 Williams v. North Carolina.................... 725 Williams, Pollock v............................. 4 Williams v. United States.................. 727,770 Willis v. Nierstheimer........................ 765 Wilson, Ex parte.............................. 714 Winston v. Courtney....................... 731,771 TABLE OF CASES REPORTED. xxvn Page. Wisconsin Dept, of Taxation, Harvester Co. v..435 Wisconsin Dept, of Taxation, Minn. Mining Co. v.. 435 Wisconsin Gas & Electric Co. v. United States. 526 Witt v. Ragen............................... 762 Witwer Grocer Co., Schwarz v................ 753 Womack, Vernado v........................... 717 Wool, Fletcher v............................ 749 Wright, Coral Gables v..................... 768 Wright, Trice v............................. 707 Ylagan v. United States..................... 763 Zalkind v. Scheinman........................ 738 Zell, American Seating Co. v................ 709 TABLE OF CASES Cited, in Opinions Page. Aakre, The, 21 F. Supp. 540 45 Ableman v. Booth, 21 How. 506 491 Abrams v. United States, 250 U. S. 616 374,686,693 Acker v. United States, 298 U. S. 426 516 Adams Express Co. v. Kentucky, 166 U. S. 171 315 Adams Express Co. v. Ohio, 165 U.S. 194 315,318 Adams Express Co. v. Ohio, 166 U. S. 185 318 Adams Manufacturing Co. v. Stören, 304 U. S. 307 302, 316,326,344,348,358,361 Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 558 Aggeler v. Dominguez, 217 Cal. 429 464 Agnello v. United States, 269 U. S. 20 492 Alabama v. King & Boozer, 314 U. S. 1 177, 186,193,196,198 Albright v. Sandoval, 216 U.S. 331 455,456 Allen v. Pullman’s Car Co., 191 U. S. 171 316 Allied Mills v. Dept, of Treasury, 318 U. S. 740 346 Alpha Portland Cement Co. v. Massachusetts, 268 U. S. 203 587 Alton ‘ R. Co. v. United States, 315 U. S. 15 715 American Bridge Co. v. Rail-r o a d Commission, 307 U. S. 486 517 American Commission Co. v. United States, 11 F. Supp. 965 518 Page. American Employer’s Ins. Co. v. United States, 91 Ct. Cis. 231 100 American Express Co. v. Indiana, 165 U. S. 255 315 American Medical Assn. v. United States, 317 U. S. 519 546 American Refrigerator Transit Co. v. Hall, 174 U. S. 70 309,315,324 American Steel Foundries Co. v. Tri-City Council, 257 U. S. 184 127 American Surety Co. v. United States, 136 F. 2d 437 97 Anderson v. Helvering, 310 U. S. 404 280 Anderson v. United States, 318 U. S. 350 496 Anderson National Bank v. Luckett, 321 U. S. 233 440 Anniston Mfg. Co. v. Davis, 301 U. S. 337 52,58 Antrim Lumber Co. v. Sneed, 175 Okla. 47 52,54 Apex Hosiery Co. v. Leader, 310 U. S. 469 554,572 Arizona Grocery Co. v. Atchison, T. & S. F. Ry. Co., 284 U. S. 370 641 Armijo v. Armijo, 181 U.S. 558 455,456 Arrowsmith v. Gleason, 129 U. S. 86 260 Art Metal Works v. Abraham & Strauss, 107 F. 2d 940 245,250 Ashcraft v. Tennessee, 322 U. S. 143 498,602,606,607 Associated Press v. Labor Board, 301 U. S. 103 652 XXIX XXX TABLE OF CASES CITED. Page. Association of Machinists v. Labor Board, 311 U. S. 72 129 Atchison, T. & S. F. Ry. Co. v. O’Connor, 223 U. S. 280 50,53,55,59,316 Atchison, T. & S. F. Ry. Co. v. United States, 284 U. S. 248 515 Atlantic Cleaners & Dyers v. United States, 286 U. S. 427 574 Atlantic Coast Line v. Flor- ida, 295 U. S. 301 620 Atlantic Refining Co. v. Vir- ginia, 302 U. S. 22 548 Atlantic Trust Co. v. Chap- man, 208 U. S. 360 414 Auditor General v. Clifford, 143 Mich. 626 398 Auer v. Sinclair Refining Co., 103 N. J. L. 372 122 Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409 300,304,312,314,318 Bacon v. Illinois, 227 U. S. 504 317,545 Baerga v. Registrar of Humacao, 29 P. R. 440 457 Bailey v. Alabama, 211 U. S. 452 9,28 Bailey v. Alabama, 219 U. S. 219 7,9,12,13,23,25 Bailey v. Central Vermont Ry. Co., 319 U. S. 350 419 Bain, Ex parte, 121 U. S. 1 90 Baker v. State Land Office Board, 294 Mich. 587 397 Bakery & Pastry Drivers v. Wohl, 315 U. S. 769 127 Baldwin v. Missouri, 281 U. S. 586 174 Ballmann v. Fagin, 200 U. S. 186 497 Baltimore & Ohio R. Co. v. Interstate Commerce Comm’n, 221 U. S. 612 699 Baltimore & Ohio R. Co. v. United States, 298 U. S. 349 515 Banker Brothers Co. v. Pennsylvania, 222 U. S. 210 352 Bank of the United States v. Moss, 6 How. 31 255 Page. Barney v. Friedman, 107 U. S. 629 256 Barron v. Baltimore, 7 Pet. 243 490 Batesville Institute v. Kauffman, 18 Wall. 151 470 Beers v. Arkansas, 20 How. 527 54,61 Bene v. Jeantet, 129 U. S. 683 484 Berger v. United States, 295 U.S. 78 91 Berryessa Cattle Co. v. Sunset Pacific Oil Co., 87 F. 2d 972 50 Best & Co. v. Maxwell, 311 U. S. 454 338 Betts v. Brady, 316 U. S. 455 495,602 Beyer v. LeFevre, 186 U. S. .114 671 Biddle v. Commissioner, 302 U. S. 573 529 Bilokumsky v. Tod, 263 U. S. 149 496 Binderup v. Pathe Exchange, 263 U. S. 291 545 Blied v. Wisconsin Foundry Co., 243 Wis. 221 439,529 Blodgett v. Silberman, 277 U. S. 1 311 Blumenstock Bros. v. Curtis Publishing Co., 252 U. S. 436 569,570,573,578 Board of Commissioners v. Ward, 68 Okla. 287 52 Board of Education v. Barnette, 319 U. S. 624 86 Board of Education v. Johnston, 189 Okla. 172 234 Board of Liquidation v. McComb, 92 U. S. 531 51 Bolden v. Sloss-Sheffield Steel Co., 215 Ala. 334 245 Bollman, Ex parte, 4 Cr. 75 257 Bonet v. Texas Company, 308 U. S. 463 454,458 Bonet v. Yabucoa Sugar Co., 306 U. S. 505 458 Boone County v. Burlington & Missouri River R. Co., 139 U. S. 684 259,270 Booth v. Clark, 17 How. 322 414 TABLE OF CASES CITED. XXXI Page. Bothwell v. Buckbee, Mears Co., 275 U. S. 274 544 567,585,595 Bowles v. Willingham, 321 U. S. 503 ; 403 Bowling & Miami Invest- ment Co. v. United States, 233 U. S. 528 366 Bowman v. Chicago & North Western Ry. Co., 125 U. S. 465 548,549 Bowman v. Continental Oil Co., 256 U. S. 642 343 Boyd v. United States, 116 U. S. 616 490, 494,496,503,699 Bram v. United States, 168 U. S. 532 152, 154,155,158,496,597,605 Broad River Power Co. v. South Carolina, 281 U. S. 537 14 Broadwell v. Board of Commissioners, 71 Okla. 162 52 Broadwell v. Carter County, 253 U.S. 25 52 Brogan v. National Surety Co., 246 U. S. 257 104 Bronson v. Schulten, 104 U. S. 410 244,260,269 Brooks v. Railroad Co., 102 U. S.107 256 Brooks v. United States, 267 U. S. 432 549 Browder v. United States, 312 U. S. 335 686 Brown v. County of Buena Vista, 95 U. S. 157 260 Brown v. Fletcher, 237 U. S. 583 88 Brown v. Houston, 114 U. S. 622 311 Brown v. Maryland, 12 Wheat. 419 551 Brown v. Walker, 161 U. S. 591 152 490,491,494,500,503 Bruce v. Fox, 1 Dana (Ky.) 447 462 Buchalter v. New York, 319 U. S. 427 157,602 Buffington v. Harvey, 95 U. S. 99 259 Page. Bullen v. Wisconsin, 240 U. S. 625 443 Burdeau v. McDowell, 256 U. S. 465 154,492 Burford v. Sun Oil Co., 319 U. S. 315 60 Burnet v. Coronado Oil & Gas Co., 285 U. S. 393 579 Burnet v. Harmel, 287 U. S. 103 280 Burnet v. Sanford & Brooks Co., 282 U. S. 359 284,289 Burnet v. Thompson Oil & Gas Co., 283 U. S. 301 289 Burrill v. Locomobile Co., 258 U. S. 34 52 Bushnell v. Crooke Mining Co., 150 U. S. 82 256 Butler v. Perry, 240 U. S. 328 18 Byars v. United States, 273 U. S. 28 492 California v. Thompson, 313 U. S. 109 548 Callaghan v. Irvin, 40 Tex. Civ. App. 453 461 Callaghan v. McGown, 90 S. W. 319 461 Callaghan v. Tobin, 40 Tex. Civ. App. 441 461 Cameron v. McRoberts, 3 Wheat. 591 255 Campbell v. Galeno Chemical Co., 281 U. S. 599 404 Cantwell v. Connecticut, 310 U. S. 296 86 Canty v. Alabama, 309 U. S. 629 155, 603, 606, 607 Carpenter v. Shaw, 280 U. S. 363 52,58,183,184 Cary v. Curtis, 3 How. 236 58, 258 Central & South West Utilities Co. v. Exchange Comm’n, 136 F. 2d 273 518 Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207 255, 259 Chambers v. Florida, 309 U.S. 227 14,150,152,154, 155, 502, 603, 605, 607 Champion v. Ames, 188 U. S. 321 585 XXXII TABLE OF CASES CITED. Page. Chamski v. Board of Auditors, 288 Mich. 238 464 Chandler v. Dix, 194 IT. S. 590 51,55,57,63 Chandler & Price Co. v. Brandtjen, Inc., 296 U. S. 53 383 Chaplinsky v. New Hampshire, 315 U. S. 568 89 Charles River Bridge v. Warren Bridge, 11 Pet. 420 397 Chesley v. Council of Lunenburg, 28 Dominion Law Rep. 571 461,462 Chicago v. Coleman, 254 Ill. 338 17 Chicago v. Williams, 254 Ill. 360 17 Chicago Board of Trade v. Olsen, 262 U. S. 1 547, 554, 569, 570 Chicago, R. I. & P. Ry. Co. v. Callicotte, 267 F. 799 245 Choctaw, 0. & G. R. Co. v. Harrison, 235 U. S. 292 177 City of. See name of city. Clallam County v. United States, 263 U. S. 341 177 Clark v. Barnard, 108 U. S. 436 54 Qason v. Matko, 223 U. S. 646 455,456 Clearfield Trust Co. v. United States, 318 U. S. 363 183 Clyatt v. United States, 197 U. S. 207 8,11 Clyde Mallory Lines v. Alabama, 296 U. S. 261 211 Coe v. Errol, 116 U. S. 517 311 Cohn v. Graves, 300 U. S. 308 442,711 Colgate v. Harvey, 296 U. S. 404 544 Collector v. Day, 11 Wall. 113 176 Colorado Radio Corp. v. Communications Comm’n, 118 F. 2d 24 518 Commercial Casualty Ins. Co. v. United States, 83 Ct. Cis. 367 100 Page. Commissioners v. United States, 270 F. 110 229 Commonwealth v. Anderson, 151 Ky. 537 390 Commonwealth v. Grunseit, 67 C. L. R. 58 617 Compania de Tabacos v. Collector, 275 U. S. 87 443 Connecticut General Ins. Co. v. Johnson, 303 U. S. 77 439,444 Consolidated Edison Co. v. Labor Board, 305 U. S. 197 652 Continental Casualty Co. v. North American Cement Corp., 91 F. 2d 307 105 Cook v. Tait, 265 U. S. 47 443 Cooley v. Board of Wardens, 12 How. 299 548,549 Cooper v. State, 86 Ala. 610 152 Copper Queen Mining Co. v. Board of Equalization, 206 U.S. 474 455,456 Cordova v. Folgueras, 227 U. S. 375 456 Counselman v. Hitchcock, 142 U. S. 547 152, 154,496,500,503 Craig v. Smith, 100 U. S. 226 259 Cream of Wheat Co. v. Grand Forks, 253 U. S. 325 294 Creath’s Adm’r v. Sims, 5 How. 192 259,270 Crew Levick Co. v. Pennsylvania, 245 U. S. 292 316 Crim v. Handley, 94 U. S. 652 260,269 Cross v. State, 142 Tenn. 510 152,171 Crutcher v. Kentucky, 141 U. S. 47 548 Cudahy Packing Co. v. Hinkle, 278 U. S. 460 587 Cudahy Packing Co. v. Minnesota, 246 U. S. 450 315,316 Curry v. McCanless, 307 U. S. 357 311, 313,441,443,445 TABLE OF CASES CITED. XXXIII Page. Dahnke-Walker Co. v. Bondurant, 257 U. S. 282 211,569 Davies Warehouse Co. v. Bowles, 321 U. S. 144 520,525 Davis v. Anderson-Tully Co., 252 F. 681 229 Davis v. Beason, 133 U. S. 333 87,89 Davis v. Dept, of Labor, 317 U. S. 249 589 Davis v. Gray, 16 Wall. 203 51,414 Davis v. Wallace, 257 U. 8. 478 445 Dealy v. United States, 152 U. 8. 539 91 Deathridge v. State, 33 Tenn. 75 171 DeCastro v. Board of Commissioners, 322 U. S. 451 466 Deitrick v. Greaney, 309 U. S. 190 183 Delaware, L. & W. R. Co. v. Pennsylvania, 198 U. S. 341 312 Delaware, L & W. R. Co. v. Rellstab, 276 U. S. 1 255 Delaware Railroad Tax, 18 WaU. 206 295 Demorest v. City Bank Farmers Trust Co., 321 U. S. 36 14 Department of Treasury v. Allied Müls, 220 Ind. 340 346 Department of Treasury v. Wood Preserving Corp., 313 U.S. 62 343,344 Detroit Bank v. United States, 317 U. S. 329 183 Dexter v. Arnold, 5 Mason 303 245 Diaz v. Gonzalez, 261 U. S. 102 455,456,458,459 District of Columbia v. Murphy, 314 U. S. 441 296 Dobbins v. Commissioners, 16 Pet. 435 176 Dobkins v. Reece, 17 S. W. 2d 81 464 Dobson v. Commissioner, 320 U. S. 489 277 Page. D’Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447 183 Dorchy v. Kansas, 264 U. S. 286 237 Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377 207 Doyle v. Continental Ins. Co., 94 U. S. 535 567 Drayton, Ex parte, 153 F. 986 11 Drier v. United States, 221 U. S. 394 699 Drivers’ Union v. Lake Val- ley Co., 311 U. S. 91 124, 127,129 Drivers Union v. Meadow- moor Dairies, 312 U. S. 287 157 Ducat v. Chicago, 10 Wall. 410 544, 567, 585 Duckworth v. Arkansas, 314 U. S. 390 549, 586 Dunbar v. Atlanta, 7 Ga. App. 434 17 Dunn v. Clarke, 8 Pet. 1 259 Durland v. United States, 161 U. S. 306 90 Dwyer v. Le Flore County, 97 F. 2d 823 233 Eagle Glass & Mfg. Co. v. Rowe, 245 U. S. 275 703 Easley v. Kellom, 14 Wall. 279 259 Ecker v. Western Pacific R. Co., 318 U. S. 448 517 Eden v. Earl Bute, 1 Bro. Par. Cas. 465 ; 3 id. 546 258 Elder v. Wood, 208 U. S. 226 198 Electric Bond & Share Co. v. Exchange Comm’n, 303 U. S. 419 546,585 Eliot National Bank v. Gill, 218 F. 600 529, 531 Embry v. Palmer, 107 U. S. 3 260 Engel v. O’Malley, 219 U. S. 128 569 English v. Arizona, 214 U. S. 359 455,456 Enoch v. Commonwealth, 141 Va. 411 152 Ensign v. Pennsylvania, 227 U. S. 592 494,498 XXXIV TABLE OF CASES CITED. Page. Equitable Life Society v. Pennsylvania, 238 U. S. 143 443 Erie R. Co. v. Tompkins, 304 U. S. 64 236, 459 Erie Ry. Co. v. Pennsylvania, 21 Wall. 492 315 Essgee Co. v. United States, 262 U. S. 151 699 Estate of. See name of party. Eureka Pipe Line Co. v. Hal- lanan, 257 U. S. 265 316 Exhibit Supply Co. v. Ace Corp., 315 U. S. 126 483 Ex parte. See name of party. Fargo v. Hart, 193 U. S. 490 316,318 Parish v. State Banking Board, 235 U. S. 498 57 Fashion Guild v. Federal Trade Comm’n, 312 U. S. 457 536 Federal Club v. National League, 259 U. S. 200 573,578 Federal Communications Comm’n v. Pottsville Broadcasting Co., 309 U. S. 134 517 Federal Compress Co. v. McLean, 291 U. S. 17 208 Federal Land Bank v. Bismarck Lumber Co., 314 U. S. 95 183 Federal Land Bank v. Crosland, 261 U. S. 374 177,183 Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 691 513 Federal Power Comm’n v. Natural Gas Pipeline Co., 315 U. S. 575 517 Federal Trade Comm’n v. Bunte Bros., 312 U. S. 349 578,647 Felt & Tarrant Mfg. Co. v. Gallagher, 306 U. S. 62 332, 334,337,339,347,352 Fernandez & Bros. v. Ojeda, 266 U. S. 144 456,458 Fidelity & Casualty Co. v. United States, 81 Ct. Cis. 495 100 Page. First National Bank v. Board of Education, 174 Okla. 164 234,236 First National Bank v. Mc- Neel, 238 F. 559 531 Fisher v. New Orleans, 218 U. S. 438 397 Fisher v. State, 145 Miss. 116 606 Fisher’s Blend Station v. Tax Commission, 297 U. S. 650 316 Fitts v. McGhee, 172 U. S. 516 51 Fleischmann Construction Co. v. United States, 270 U. S. 349 104 Fleisher Engineering Co. v. United States, 311 U. S. 15 107 Florida v. Mellon, 273 U. S. 12 708 Florida v. United States, 282 U. S. 194 653 Flournoy v. Wiener, 321U. S. 253 201 Forbes Pioneer Boat Line v. Board of Commissioners, 258 U. S. 338 641 Ford v. United States, 273 U. S. 593 91 Forte v. United States, 302 U. S. 220 371 Foster Bros. Mfg. Co. v. Labor Board, 90 F. 2d 948 257 Fox v. Haarstick, 156 U. S. 674 455,456 Fox v. Ohio, 5 How. 410 493 Freeman v. Howe, 24 How. 450 260 Frene v. Louisville Cement Co., 134 F. 2d 511 354 Frick v. Pennsylvania, 268 U. S. 473 311,312 Fuller Brush Co. v. Industrial Comm’n, 99 Utah 97 122 Funk v. United States, 290 U. S. 371 66,136 Furst v. Brewster, 282 U. S. 493 547,586 Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217 315,316,317,329 TABLE OF CASES CITED. XXXV Page. Gamewell Fire-Alarm Tel. Co., In re, 73 F. 908 271 Garcia v. Vela, 216 U. S. 598 454 Gelfert v. National Qty Bank, 313 U. S. 221 713 General American Tank Car Corp. v. Terminal Co., 308 U. 8. 422 621 General American Tank Car Corp. v. Terminal Co., 309 U. 8. 694 622 General Electric Co. v. Wabash Corp., 304 U. S. 364 484 General Trading Co. v. State Tax Comm’n, 322 U. 8. 335 334,350 Georgia Public Service Comm’n v. United States, 283 U. S. 765 516 German Alliance Ins. Co. v. Hale, 219 U. 8. 307 556 German Alliance Ins. Co. v. Kansas, 233 U. 8.389 540,547 German-American Coffee Co. v. Diehl, 216 N. Y. 57 442,449 Germania Refining Co. v. Fuller, 245 U. 8. 632 309 Gibbons v. Ogden, 9 Wheat. 1 302,303,539,546,548,550 Gillespie v. Oklahoma, 257 U. S. 501 177 Gilman v. Sheboygan, 2 Black 510 397 Ginsberg & Sons v. Popkin, 285 U. S. 204 107 Globe Grain & Milling Co. v. Industrial Comm’n, 98 Utah 36 122 Go-Bart Co. v. United States, 282 U. S. 344 492 Goode v. Nelson, 73 Fla. 29 13,24 Goodyear Co. v. Ray-O-Vac Co., 321 U. 8. 275 473 Goto v. Lane, 265 U. 8. 393 91 Gouled v. United States, 255 U. 8. 298 492 Graf v. Hope Building Corp., 254 N. Y. 1 620 Graham & Foster v. Goodcell, 282 U. 8.409 622,641,713 Page. Grant v. United States, 227 U. S. 74 699 Graves v. Elliott, 307 U. S. 383 311,443 Graves v. New York ex rel. O’Keefe, 306 U. 8. 466 177, 186,499 Graves v. Schmidlapp, 315 U. S. 657 311 Graves v. Texas Co., 298 U. S. 393 177,193 Gray v. Powell, 314 U. 8. 402 130 Gray v. Taylor, 227 U. S. 51 455,456 Great Northern Life Ins. Co. v. Read, 136 F. 2d 44 49 Great Northern Ry. Co. v. Weeks, 297 U. S. 135 315,325 Gregg Cartage & Storage Co. v. United States, 316 U. 8. 74 3 Gros v. United States, 136 F. 2d 878 68 Group of Institutional Investors v. Chicago, M., St. P. & P. R. Co., 318 U. S. 523 517 Gue v. Tide Water Canal Co., 24 How. 257 260 Gully v. Interstate Natural Gas Co., 292 U. 8. 16 384 Gunter v. Atlantic Coast Line, 200 U. 8. 273 56 Guthrie v. Harkness, 199 U. 8.148 700 Guy v. Baltimore, 100 U. S. 434 358 Gwin, White & Prince v. Henneford, 305 U. 8. 434 302,316,326,358,361,549 Hague v. C. I. O., 307 U. S. 496 388 Hale v. Henkel, 201 U. 8. 43 497,699,700,704 Hall v. Geiger-Jones Co., 242 U. S. 539 547,548 Hall v. United States, 168 U. 8. 632 84 Hammer v. Dagenhart, 247 U. 8. 251 580 XXXVI TABLE OF CASES CITED. Page. Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 49 Hans v. Louisiana, 134 U. S. 1 51 Hansen v. Haff, 291 U. S. 559 374,376,378 Harris v. Bell, 254 U. S. 103 363, 365 Hart v. Wiltsee, 25 F. 2d 863 257 Hawk, Ex parte, 321 U. S. 114 708 Hawkin v. Cleveland, C., C. & St. L. Ry. Co., 99 F. 322 257 Hays v. Pacific Mail S. S. Co., 17 How. 596 304, 306, 312,314 Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238 273, 274 Hazelton v. Sheckells, 202 U. S. 71 709 Hebert v. Louisiana, 272 U. S. 312 602 Hecht Co. v. Bowles, 321 U. S. 321 520 Heckman v. United States, 224 U. S. 413 366 Hedges v. Dixon County, 150 U. S. 182 707 Heinz Co. v. Labor Board, 311 U. S. 514 129 Heisler v. Thomas Colliery Co., 260 U. S. 245 649 Helvering v. Bankline Oil Co., 303 U. S. 362 280 Helvering v. Bruun, 309 U. S. 461 287 Helvering v. Gerhardt, 304 U. S.405 177 Helvering v. Griffiths, 318 U. S. 371 557, 580 Helvering v. Mountain Pro- ducers Corp., 303 U. S. 376 177 Helvering v. Reynolds To- bacco Co., 306 U. S. 110 641 Hendrickson v. Hinckley, 17 How. 443 259, 269 Henneford v. Silas Mason Co., 300 U. S. 577 331, 333, 334, 337,352 Hennen, Matter of, 13 Pet. 230 461 Herring v. Commissioner, 293 U. S. 322 277,280,282 Page. Hickman v. Fort Scott, 141 U. S. 415 255,256 Higgins v. Smith, 308 U. S. 473 286 Hill v. Wallace, 259 U. 8. 44 569,570 Hill Hotel Co. v. Kinney, 138 Neb. 760 121 Hirabayashi v. United States, 320 U.S. 81 622,690 H. J. Heinz Co. v. Labor Board, 311 U. S. 514 129 Hoke v. United States, 227 U. S. 308 549 Hooper v. California, 155 U. S. 648 543, 567,569,571,573,585 Hoopeston Canning Co. v. Cullen, 318 U. S. 313 547 Hopkins v. Hebard, 235 U.S. 287 246,259 Hopkins v. United States, 171 U. S. 578 209,569,578 Hopt v. Utah, 110 U. S. 574 602 Houston v. Moore, 5 Wheat. 1 548 Houston, E. & W. T. Ry. Co. v. United States, 234 U. S. 342 652 Howard v. De Cordova, 177 U. S. 609 260 Huddleston v. Dwyer, 322 U. S. 232 459 Hudson v. Guestier, 7 Cr. 1 256 Hudson & Manhattan R. Co. v. United States, 313 U. S. 98 506,512,523 Hughes Bros. Co. v. Minnesota, 272 U. S. 469 316 Humphreys v. Leggett, 9 How. 297 259 Hurtado v. California, 110 U. S. 516 673 Hysler v. Florida, 315 U. S. 411 602 Hy - Yu - Tse - Mil - Kin v. Smith, 194 U. S. 401 366,430 Illinois Central R. Co. v. Adams, 180 U. S. 28 50,64 Illinois Commerce Comm’n v. United States, 292 U. S. 474 516 TABLE OF CASES CITED. XXXVII Page. Illinois Surety Co. v. John Davis Co., 244 U. S. 376 105 Independent School District No. 39 v. Exchange National Co., 164 Okla. 176 234, 236 Indiana Fanner’s Guide Co. v. Prairie Farmer Co., 293 U. S. 268 547,570 Indian Motocycle Co. v. United States, 283 U. S. 570 177 Industrial Commission v. Northwestern Ins. Co., 103 Colo. 550 121 Inland Steel Co. v. United States, 306 U. S. 153 620 Innes v. Crystal, 319 U. S. 755 757 In re. See name of party. Institutional Investors v. Chicago, M. St. P. & P. R. Co., 318 U. S. 523 517 Intermountain Rate Cases, 234 U. S. 476 616 International Association of Machinists v. Labor Board, 311 U. S. 72 129 International Business Machines Corp. v. United States, 298 U. S. 131 382 International Harvester Co. v. Dept, of Treasury, 322 U. S. 340 350 International Harvester Co. v. Wisconsin Dept, of Taxation, 322 U. S. 435 530,532 International Harvester Co. v. Wisconsin Dept, of Taxation, 243 Wis. 198 438 International Textbook Co. v. Pigg, 217 U. S. 91 211,551 Interstate Commerce Comm’n v. Humboldt Steamship Co., 224 U. S. 474 622 Interstate Commerce Comm’n v. Union Pacific R. Co., 222 U. S. 541 513 Irwin v. Wright, 258 U. S. 219 188 I. T. S. Rubber Co. v. Essex Rubber Co., 272 U. S. 429 201 Page. Jack v. Kansas, 199 U. S. 372 490,491,493,494,498 Jackson v. Ashton, 10 Pet. 480 256 Jackson v. Irving Trust Co., 311 U. S. 494 259,270 Jackson v. Smith, 254 U. S. 586 414,416 Jackson County v. United States, 308 U. S. 343 183 James v. Dravo Contracting Co., 302 U. S. 134 177, 186,192,193,196,198 James - Dickinson Farm Mortgage Co. v. Harry, 273 U. S. 119 22 Jameson & Co. v. Morgen-thau, 307 U. S. 171 384 Jaybird Mining Co. v. Weir, 271 U. S. 609 177 J. C. Penney Co. v. Tax Commission, 238 Wis. 69 529 Jefferis v. East Omaha Land Co., 134 U. S. 178 214 Jennings v. Ward, 2 Vem. 520 470 Jerome v. United States, 318 U. S.101 123, 393 Johnson v. Cook, 304 U. S. 387 708 Johnson v. United States, 318 U. S. 189 85 Johnson v. Waters, 111 U. S. 640 260 Johnson Oil Co. v. Oklahoma, 290 U. S. 158 296, 309,311,316,324,326 Jordan v. Tashiro, 278 U. S. 123 546,551 Kansas Qty Southern Ry. Co. v. Interstate Commerce Comm’n, 252 U. S. 178 622 Kawananakoa v. Polyblank, 205 U. S. 349 54, 59 Kay v. United States, 303 U. S. 1 371 Keddington v. State, 19 Ariz. 457 155 Keefe v. Oakland County Drain Comm’r, 306 Mich. 503 396 XXXVIII TABLE OF CASES CITED. Page. Keifer & Keifer v. R. F. C., 306 U. S. 381 54 Keith v. Johnson, 271 U. S. 1 528 Kelly v. Washington, 302 U.S.l 209,548 Kelsey v. Crowther, 162 U. S. 404 470 Kentucky v. Powers, 201 U. S. 1 258 Keppel v. Tiffin Savings Bank, 197 U. S. 356 404 Ker & Co. v. Couden, 223 U. S. 268 454 Keystone Driller Co. v. Excavator Co., 290 U. S. 240 250,273 Kibbe v. Benson, 17 Wall. 624 260 Kidd v. Pearson, 128 U. S. 1 558 King Manufacturing Co. v. Augusta, 277 U. S. 100 712 Kirschbaum Co. v. Walling, 316 U. S. 517 550,618,647 Klaxon Co. v. Stentor Co., 313 U. S. 487 237 Klink v. State, 207 Ind. 628 462 Knick v. Bowes “Seal Fast” Corp., 25 F. 2d 442 485 Knox County v. Harshman, 133 U. S. 152 260 Koppers United Co. v. Securities & Exchange Comm’n, 138 F. 2d 577 518 Krippendorf v. Hyde, 110 U. S. 276 260 Labor Board v. Bank of America, 130 F. 2d 624 646 Labor Board v. Blount, 131 F. 2d 585 124,129 Labor Board v. Condenser Corp., 128 F. 2d 67 129 Labor Board v. Fainblatt, 306 U. S. 601 647,648 Labor Board v. Jones & Laughlin Corp., 301 U. S. 1 647 Labor Board v. Nevada Copper Corp., 316 U. S. 105 130 Labor Board v. Standard OU Co., 138 F. 2d 885 130 Labor Board v. Waterman S. S. Corp., 309 U. S. 206 129 Page. Lamont v. Commissioner, 120 F. 2d 996 286 Lange, Ex parte, 18 Wall. 163 500 Langnes v. Green, 282 U. S. 531 88 Lankford v. Platte Iron Works Co., 235 U. S. 461 51 Lapina v. Williams, 232 U. S. 78 378 Lawlor v. Loewe, 235 U. S. 522 702 Lawrence v. State Tax Commission, 286 U. S. 276 441, 442,711 Lee v. Osceola Improvement District, 268 U. S. 643 188 Legal Tender Cases, 12 Wall. 457 579 Leggett v. Humphreys, 21 How. 66 260 Lehigh Valley Coal Co. v. Yensavage, 218 F. 547 129 Lehman v. Graham, 135 F. 39 245 Leloup v. Port of Mobile, 127 U. S. 640 177 LeTulle v. Scofield, 308 U. S. 415 50 Lewers & Cooke v. Atcherly, 222 U. S. 285 454,456 Lewis v. Herrera, 208 U. S. 309 455,456 Lewisohn v. O’Brien, 176 N. Y. 253 489 Libtz v. Coleman, 149 Fla. 28 6 License Cases, 5 How. 504 548 Lincoln County v. Luning, 133 U.S. 529 63 Lisenba v. California, 314 U. S. 219 14, 148, 154, 155, 157, 159, 601, 602, 605, 606, 607. Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566 544, 567, 585 Loeb v. Jennings, 133 Ga. 796; 219 U. S. 582 17 Logan v. Patrick, 5 Cr. 288 259 Lomax v. Texas, 313 U. S. 544 155 Looney v. Crane Co., 245 U. S. 178 211 TABLE OE CASES CITED. XXXIX Page. Lord Ranelagh v. Melton, 2 Drewry & Smale 278 470 Lottery Case, 188 U. S. 321 546, 549, 550 Louisiana v. Jumel, 107 U. S. 711 50,51 Louisville Cement Co. v. In- terstate Commerce Comm’n, 246 U. S. 638 622 Louisville Gas Co. v. Coleman, 277 U. S. 32 611 Lown v. Underwriters’ Assn., 6 Fed. Antitrust Dec. 1048 578 Lowrie v. Brennan, 283 Mich. 63 464 Lumley v. Gye [1853] El. & Bl. 216 121 Luria v. United States, 231 U. S. 9 673 Lutcher & Moore Lumber Co. v. Knight, 217 U. S. 257 88 Lynch v. Alworth-Stephens Co., 267 U. S. 364 280 Lyons v. State, 138 P. 2d 142 600,601 Madisonville Traction Co. v. Mining Co., 196 U. S. 239 54,61,62 Magruder v. Drury, 235 U. S. 106 414,416 Magruder v. Supplee, 316 U. S. 394 528 Mahler v. Eby, 264 U. S. 32 622 Maine v. Grand Trunk Ry. Co., 142 U. S. 217 315 Maine Potato Growers Assn. v. Interstate Commerce Comm’n, 88 F. 2d 780 517 Maloney v. Douglas, 195 N. Y. 145 462 Malta v. Jackoway-Katz Cap Co., 336 Mo. 1000 122 Mankin v. United States, 215 U. S. 533 104,105,110 Mann v. McCarroll, 198 Ark. 628 328 Marine Insurance Co. v. Hodgson, 7 C r a n c h 332 244,259 Mario Mercado E Hijos v. Commins, 322 U. S. 465 452 Page. Marshall v. Holmes, 141U. S. 589 244,246,260 Marye v. Baltimore & Ohio R. Co., 127 U. S. 117 309,315 Maryland Casualty Co. v. United States, 251 U. S. 342 287 Maryland Casualty Co. v. United States, 93 Ct. Cis. 247 100 Massachusetts v. Mellon, 262 U. S. 447 708 Matos v. Alonso Hermanos, 300 U.S. 429 449,456 Matson Navigation Co. v. State Board, 297 U.S. 441 711 Matter of. See name of party. Matthews v. Rodgers, 284 U. S. 521 50,54 McAlister v. Henkel, 201 U. S. 90 704 McCain v. Crossett Lumber Co., 174 S. W. 2d 114 121 McCarroll v. Dixie Grey- hound Lines, 309 U. S. 176 302,549,586 McCarthy v. Amdstein, 266 U. S.34 496 McCulloch v. Maryland, 4 Wheat. 316 176,444,445 McDonald v. Thompson, 305 U. S. 263 638 McFaddin v. Evans-Snider- Buel Co., 185 U. S. 505 713 McGoldrick v. Berwind- White Co., 309 U. S. 33 328, 332, 333, 345, 347, 349, 350, 352, 355, 358, 548, 549. McGoldrick v. Felt & Tarrant Co., 309 U. S. 70 330, 332,334,347 McKinley v. Payne Lumber Co., 200 Ark. 1114 121 McLeod v. Dilworth Co., 322 U. S. 327 339,349 McNabb v. United States, 318 U. S. 332 65, 71,158,494,495,598,600 Memphis v. United States, 97 U. S. 293 713 XL TABLE OF CASES CITED. Page. Mercado v. Commins, 322 U. S. 465 452 Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661 246 Meredith v. Winter Haven, 320 U.S. 228 236,237 Metropolitan Trust Co., In re, 218 U. S. 312 255 Meyer v. Wells, Fargo & Co., 223 U. S. 298 445 Michoud v. Girod, 4 How. 503 414 Milk Wagon Drivers’ Union v. Lake Valley Co., 311 U. S. 91 124,127,129 Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287 157 Miller v. United States, 317 U. S. 192 371 Minerals Separation v. Butte Mining Co., 250 U.S. 336 485 Minnesota v. United States, 305 U. S.382 54,366,368 Minnesota Company v. St. Paul Co., 2 Wall. 609 259 Minnesota Mining & Mfg. Co. v. Dept, of Taxation, 322 U. S. 435 530 Mississippi Valley Barge Line Co. v. United States, 292 U. S. 282 513 Mississippi Valley Barge Line Co. v. United States, 4 F. Supp. 745 518 Missouri v. Fiske, 290 U. S. 18 57 Missouri v. Holland, 252 U. S. 416 673 Missouri v. Kansas, 213 U. S. 78 214 Missouri v. Kentucky, 11 Wall. 395 229 Missouri v. Nebraska, 196 U.S. 23 214,215 Missouri ex rel. Wabash Ry. Co. v. Public Service Comm’n, 273 U. S. 126 237 Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502 141 Page. Monaco v. Mississippi, 292 U. S. 313 51 Monamotor Oil Co. v. John- son, 292 U. S. 86 338, 339 Montgomery v. Realty Ac- ceptance Corp., 51 F. 2d 642 257 Mooney v. Holohan, 294 U. S. 103 602 Moore v. New York Cotton Exchange, 270 U. S. 593 569, 570, 573 Morgan v. Commissioner, 309 U. S. 78 124 Morgan v. Parham, 16 Wall. 471 304, 306, 312, 314 Morton Salt Co. v. Suppiger Co., 314 U. S. 488 246,250 Municipal Investors Assn. v. Birmingham, 316 U. S. 153; 298 Mich. 314 398 Murdock v. Pennsylvania, 319 U. S. 105 87 Murphy Oil Co. v. Burnet, 287 U. S. 299 282,286 Murray v. Wilson Distilling Co., 213 U. S. 151 51 Nachod v. Engineering & Re- search Corp., 108 F. 2d 594 257 Nadal v. May, 233 U. S. 447 457,459 Nardone v. United States, 302 U. S. 379 67 Nardone v. United States, 308 U. S. 338 67,493 Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362 298, 314,315,317,322,324,325 National Bank of Commerce v. Allen, 223 F. 472 531 National Brake & Electric Co. v. Christensen, 254 U. S. 425 248,259,270 National Broadcasting Co. v. United States, 319 U. S. 190 632 National Labor Relations Board. See Labor Board. National Lead Co. v. United States, 252 U. S. 140 282 TABLE OF CASES CITED. XLI Page. National Park Bank, Ex parte, 256 U. S. 131 256 National Union Fire Ins. Co. v. Wanberg, 260 U. S. 71 544,567,595 Near v. Minnesota, 283 U. S. 697 89 Nebraska v. Iowa, 143 U. S. 359 215 Neirbo Co. v. Bethlehem Corp., 308 U. S. 165 61 Nelson v. Montgomery Ward & Co., 312 U. S. 373 336, 337,352,444 Nelson v. Sears, Roebuck & Co., 312 U. S. 359 336, 337,346,347,348,352,444 Neumeyer v. Krakel, 110 Ky. 624 461 New Brunswick v. United States, 276 U. S. 547 187,198 New Hampshire v. Louisiana, 108 U. S. 76 708 New Jersey Telephone Co. v. Tax Board, 280 U. S. 338 316 New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552 124 New York, Ex parte, No. 1, 256 U. S. 490 51 New York Central & H. R. R. Co. v. Miller, 202 U. S. 584 294,295,296,309,312,320 New York Central & H. R. R. Co. v. Müler, 173 N.Y. 255 295 New York Central & H. R. R. Co. v. Müler, 89 App. Div. 127; 177 N. Y. 584 296 New York ex rei. Cohn v. Graves, 300 U.S. 308 442,711 New York ex rei. New York Central & H. R. R. Co. v. Müler, 173 N. Y. 255 295 New York ex rei. New York Central & H. R. R. Co. v. Müler, 89 App. Div. 127; 177 N.Y. 584 296 New York ex rei. Rogers v. Graves, 299 U. S. 401 176 New York ex rei. Whitman v. Wüson, 318 U. S. 688 237 Page. New York, L. E. & W. R. Co. v. Pennsylvania, 158 U. S. 431 315 New York Life Ins. Co. v. Cravens, 178 U. S. 389 544, 567,570,572,585 New York Life Ins. Co. v. Deer Lodge County, 231 U.S. 495 544, 548, 549, 563, 567, 568, 569, 570, 571, 572, 573, 577, 585, 593, 649. Nickel v. Cole, 256 U. S. 222 197 Noble v. Mitchell, 164 U. S. 367 544,567,585 Norfolk & Western R. Co. v. Pennsylvania, 136 U. S. 114 316 Norris v. Alabama, 294 U. S. 687 14 North British & Mercantile Ins. Co. v. Rose, 228 F. 290 470 North Chicago Rolling Mill Co. v. St. Louis Ore Co., 152 U. S. 596 260 Northern Pacific R. Co. v. Hambly, 154 U. S. 349 455 Northern Pacific Ry. Co. v. Myers, 172 U. S. 589 187 Northern Securities Co. v. United States, 193 U. S. 197 562,570,578 Northwest Airlines v. Min- nesota, 322 U. S. 292 358 Northwestern Mutual Life Ins. Co. v. Wisconsin, 247 U. S. 132 544,567,585,595 North Whittier Heights Cit- rus Assn. v. Labor Board, 109 F. 2d 76 129 Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 131 Nutting v. Massachusetts, 183 U. S. 553 544,567,585 Nye v. United States, 313 U. S. 33 697 Ocean Insurance Co. v. Fields, 2 Story 59 259,271 Ochoa v. Hernandez y Morales, 230 U. S. 139 641 XLII TABLE OF CASES CITED. Page. Okemah v. United States, 140 F. 2d 963 366,369 Oklahoma v. Atchison, T. & S. F. Ry. Co., 220 U. S. 277 708 Oklahoma v. Texas, 260 U. S. 606 215,228 Oklahoma v. Wells, Fargo & Co., 223 U. S. 298 316,318 Oklahoma ex rel. Johnson v. Cook, 304 U. S. 387 708 Oklahoma Gas Co. v. Oklahoma Packing Co., 292 U. S. 386 384 Old Dominion Steamship Co. v. Virginia, 198 U. S. 299 309, 311, 315 Orient Insurance Co. v. Daggs, 172 U. S. 557 567 Osborn v. Bank of United States, 9 Wheat. 738 176 Owensboro National Bank v. Owensboro, 173 U. S. 664 176 Pacific Railroad v. Missouri Pacific Ry. Co., Ill U. S. 505 259 Palko v. Connecticut, 302 U.S. 319 159 Panhandle Oil Co. v. Missis- sippi ex rel. Knox, 277 U. S. 218 177,193 Paramino Lumber Co. v. Marshall, 309 U. S. 370 622, 713 Paramount Famous Lasky Corp. v. United States, 282 U. S. 30 554 Parker v. Brown, 317 U. S. 341 546, 548, 562,582 Parker v. Motor Boat Sales, 314 U. S. 244 131, 557 Parker v. Richard, 250 U. S. 235 363,365 Patterson v. Alabama, 294 U. S. 600 156 Patterson v. Checotah, 187 Okla. 587 54 Patterson v. Colorado, 205 U. S. 454 89 Paul v. Virginia, 8 Wall. 168 543, 545, 546, 547, 562, 567, 569, 572, 578, 585, 649 Page. Pawhuska v. Pawhuska Oil Co., 250 U. S. 394 712 Penn Dairies v. Milk Control Comm’n, 318 U. S. 261 579 Penney Co. v. Tax Commis- sion, 238 Wis. 69 529 Pennoyer v. McConnaughy, 140 U. S. 1 50 Pennsylvania R. Co. v. Pub- lic Service Comm’n, 250 U. S. 566 586 Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 546, 549,551,552 Peonage Cases, 123 F. 671 11 Peonage Charge, In re, 138 F. 686 11 People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253 489 People ex rel. Maloney v. Douglas, 195 N. Y. 145 462 Perkins v. Elg, 307 U. S. 325 432 Peto v. Howell, 101 F. 2d 353 554 Phelps-Dodge Corp. v. Labor Board, 313 U. S. 177 129, 616,653 Philadelphia Fire Assn. v. New York, 119 U. S. 110 544, 567,581,585 Philadelphia & Southern S. S. Co. v. Pennsylvania, 122 U. S. 326 316 Phillips v. Bell, 84 Fla. 225 13,28 Phillips v. Negley, 117 U. S. 665 255 Phillips v. United States, 312 U. S. 246 385 Phoenix Ry. Co. v. Landis, 231 U. S. 578 455,456 Pickens v. Merriam, 242 F. 363 245 Pickford v. Talbott, 225 U. S. 651 245,260,270 Piedmont & Northern Ry. Co. v. Interstate Commerce Comm’n, 286 U. S. 299 638 Pierce v. United States, 252 U. S. 239 693 TABLE OF CASES CITED. XLIII Page. Pittman v. Home Owners’ Loan Corp., 308 U. S. 21 183 Pittsburgh, C., C. & St. L. Ry. Co. v. Backus, 154 U.S. 421 315 Pittsburgh Plate Glass Co. v. Labor Board, 313 U. S. 146 134,517 Pocket Veto Case, 279 U. S. 655 578 Polish National Alliance v. Labor Board, 322 U. S. 643 538,563,580,587 Ponzi v. Fessenden, 258 U. S. 254 491 Porter v. Sabin, 149 U. S. 473 414 Porter v. United States, 27 F. 2d 882 529 Prince v. Massachusetts, 321 U. S. 158 87 Privett v. United States, 256 U. S. 201 366 Publicker v. Shallcross, 106 F. 2d 949 245 Puerto Rico v. Rubert Hermanos, 315 U. S. 637 456,458 Puget Sound Co. v. Tax Commission, 302 U. S. 90 316 Pullman Co. v. Richardson, 261 U. S. 330 315,316 Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18 297, 298,309,311,314,315,321, 322, 323, 324. Pullman’s Car Co. v. Pennsylvania, 107 Pa. 156 297 Purcell v. Miner, 4 Wall. 519 259,270,271 Putnam v. Day, 22 Wall. 60 259 Raff old Process Corp. v. Castanea Paper Co., 105 F. 2d 126 271 Railroad Co. v. Commissioners, 98 U. S. 541 52 Ray v. United States, 301 U. S.158 371 R. C. A. Communications v. United States, 43 F. Supp. 851 518 Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362 53, 55,56 Page. Realty Acceptance Corp. v. Montgomery, 284 U. S. 547 255,258 Reason v. State, 94 Miss. 290 606 Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109 44 Red River Broadcasting Co. v. Communications Comm’n, 98 F. 2d 282 518 Richards v. Mackall, 124 U.S. 183 260,270 Richardson v. Fajardo Sugar Co., 241 U. S. 44 57 Richmond Mortgage Corp. v. Wachovia Bank Co., 300 U. S. 124 713 Risty v. Chicago, R. I. & P. Ry. Co., 270 U. S. 378 712 Robb v. Vos, 155 U. S. 13 260 Roberts, In re, 244 U. S. 650 388 Robinson v. United States, 261 U. S. 486 98 Rocha, Ex parte, 30 F. 2d 823 376 Rochester Telephone Corp. v. United States, 307 U. S. 125 3, 38, 131, 513 Roemer v. Simon, 91 U. S. 149 255,257,258 Rogers v. Graves, 299 U. S. 401 176 Rolston v. Missouri Fund Comm’rs, 120 U. S. 390 51 Root Refining Co. v. Universal Oil Products Co., 89 F. 2d 991 473 Rosenthal v. New York Life Ins. Co., 304 U. S. 263 237 Roth v. State, 158 Ind. 242 462 Rounds v. State, 171 Tenn. 511 171 Rowley v. Chicago & North Western Ry. Co., 293 U. S. 102 315 Rubber Company v. Goodyear, 9 Wall. 805 259 269,270,271 Ruhlin v. New York Life Ins. Co., 304 U. S. 202 237 Runnels v. United States, 138 F. 2d 346 68 XLIV TABLE OF CASES CITED. Page. Russell v. Southard, 12 How. 139 258 St. Clair County v. Lovingston, 23 Wall. 46 215 St. Joseph Stock Yards v. United States, 298 U. S. 38 515 St. Louis v. Ferry Co., 11 Wall. 423 304, 306,312,314,317,318 St. Louis & East St. Louis Ry. Co. v. Hagerman, 256 U.S. 314 315 St. Marie v. United States, 24 F. Supp. 237; 108 F. 2d 876 420 Salinger v. United States, 272U.S. 542 90,91 Salmon v. Johnson, 78 Okla. 182 365 Samuel v. Jarrah Timber & Wood Paving Corp., L. R. [1904] A. C. 323 470 Sancho Bonet v. Texas Co., 308 U. S. 463 466 Sanford v. Commissioner, 308 U. S. 39 286 Sanford Fork & Tool Co., In re, 160 U. S. 247 257 Sanitary Refrigerator Co. v. Winters, 280 U. S. 30 473 Santa Fe Central Ry. Co. v. Friday, 232 U.S. 694 455,456 Santa Fe County v. Coler, 215 U.S. 296 455,456 Savage v. Jones, 255 U. S. 501 209 Sawyer v. Prickett, 19 Wall. 146 21 Schenck v. United States, 249 U. S. 47 687,690,693 Schneiderman v. United States, 320 U. S. 118 670, 671, 678, 679 Schollenberger, Ex parte, 96 U. S. 369 61 Schomp v. Fuller Brush Co., 124 N. J. L. 487; 126 N. J. L.368 121,122 Schwab v. Richardson, 263 U. S. 88 311 Scotten v. Littlefield, 235 U.S. 407 259,269 Page. Seattle v. Oregon & Washington R. Co., 255 U. S. 56 63 Second Employers’ Liability Cases, 223 U. S. 1 207,652 Securities & Exchange Comm’n v. Chenery Corp., 318 U.S. 80 653 Securities & Exchange Comm’n v. United States Realty Co., 310 U. S. 434 383 Self v. State, 65 Tenn. 244 146, 171 Seven Cases v. United States, 239 U. S. 510 90 Shaffer v. Carter, 252 U. S. 37 441,442,444 Sheldon v. Sill, 8 How. 441 258,470 Shelton v. Van Kleeck, 106 U. S. 532 259 Shira v. State, 187 Ind. 441 461 Shurtleff v. United States, 189 U. S. 311 462 Sibbald v. United States, 12 Pet. 488 255,256,257 Silver v. Silver, 280 U. S. 117 714 Silverthorne Lumber Co. v. United States, 251 U. S. 385 492 Simmons Co. v. Grier Bros. Co., 258 U. S. 82 259,270 Simon v. Southern Ry. Co., 236 U. S. 115 260 Singer Sewing Machine Co. v. Unemployment Compensation Comm’n, 167 Ore. 142 121 Sioux Remedy Co. v. Cope, 235 U. S. 197 211 Slaughter-House Cases, 16 Wall. 36 554 Smith v. Allwright, 321 U. S. 649 579 Smith v. Bryan, 100 Va. 199 461,462,464 Smith v. Kansas City Title Co., 255 U. S. 180 583 Smith v. Reeves, 178 U. S. 436 50,51,53,55,57 Smith v. Snow, 294 U. S. 1 484 TABLE OF CASES CITED. XLV Page. Smyth v. Ames, 169 U. S. 466 55 Sneed v. Commissioner, 119 F. 2d 767; 121 F. 2d 725 286 Sonnebom Bros. v. Cureton, 262 U. S. 506 343 Sorenson v. Sutherland, 109 F. 2d 714 270 Southard v. Russell, 16 How. 547 249,259,270 South Carolina Highway Dept. v. Barnwell Bros., 303 U. S.177 209,443,548 South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251 124,129,131 Southern Pacific Co. v. Kentucky, 222 U. S. 63 294, 309,312,314,315,318 Southern Pacific Co. v. United States, 307 U. S. 393 74,76 Southern Ry. Co. v. Kentucky, 274 U. S. 76 316,318 Southern Ry. Co. v. Watts, 260 U. S. 519 315 Spies v. United States, 317 U. S. 492 687 Spokane & Inland E. R. Co. v. United States, 241 U. S. 344 638 Sprague v. Ticonic Bank, 307 U. S.161 255 Sprout v. South Bend, 277 U. S. 163 212 Stafford v. Wallace, 258 U. S. 495 545,547,554 Standard Accident Ins. Co. v. United States, 302 U. S. 442 104 Standard Oil Co. v. United States, 283 U. S. 163 475, 554,570,578 Stanley v. Schwalby, 162 U. S. 255 54 Stanton v. Baltic Mining Co., 240 U. S. 103 280 State v. Ellis, 294 Mo. 269 606 State v. Wood, 122 La. 1014 606 State ex rel. Libtz v. Coleman, 149 Fla. 28 6 Page. State Freight Tax Case, 15 Wall. 232 316 State Tax Comm’n v. Aid-rich, 316 U. S. 174 294, 311,443,444 State Tax Comm’n v. Van Cott, 306 U. S. 511 156 State Tax on Railway Gross Receipts, 15 Wall. 284 316 Sterling v. Constantin, 287 U. S.378 51 Stewart v. Keyes, 295 U. S. 403 363,365 Stockwell v. Morris, 46 Wyo. 1 122 Story Parchment Co. v. Paterson Co., 282 U. S. 555 88 Stover Bedding Co. v. Industrial Comm’n, 99 Utah 423 122 Strady v. State, 45 Tenn. 300 171 Stratton v. St. Louis S. W. Ry. Co., 284 U. S. 530 52 Stratton’s Independence v. Howbert, 231 U. S. 399 280 Stromberg v. California, 283 U. S. 359 597 Stuart v. Boulware, 133 U. S. 78 414 Stuart v. Ellsworth, 105 Me. 523 462 Studwell v. Palmer, 5 Paige 166 258 Sturges v. Crowninshield, 4 Wheat. 122 548 Sunderland v. United States, 266 U. S. 226 366 Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381 536, 649 Sweeney v. Lomme, 22 Wall. 208 455 Swift & Co. v. United States, 196 U. S. 375 536, 545, 547 Tackett v. Commonwealth, 285 Ky. 83 390 Taylor v. Georgia, 315 U. S. 25 7,10,13, 23, 25, 26, 28 Taylor v. United States, 244 F. 321 11 XLVI TABLE OF CASES CITED. Page. Telegraph Co. v. Texas, 105 U. S. 460 177 Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U. S. 1 587 Terral v. Burke Construc- tion Co., 257 U. S. 529 567 Texas v. Florida, 306 U. S. 398 296 Thames & Mersey Ins. Co. v. United States, 237 U. S. 19 570 Thomas v. Richmond, 12 Wall. 349 707 Thornton v. United States, 271 U. S. 414 549 Tiaco v. Forbes, 228 U. S. 549 622 Tiffany v. National Bank, 18 Wall. 409 404 Tigner v. Texas, 310 U. S. 141 27 Tilghman v. Proctor, 102 U. S. 707 485 Tindal v. Wesley, 167 U. S. 204 50 Tod v. Waldman, 266 U. S. 113 622 Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399 269 Tomlinson v. Branch, 15 Wall. 460 51 Tool Company v. Norris, 2 Wall. 45 709 Tot v. United States, 319 U. S. 463 502 Town of Okemah v. United States, 140 F. 2d 963 366,369 Transportation Co. v. Wheel- ing, 99 U. S. 273 314 Travis v. Yale & Towne Mfg. Co., 252 U. S. 60 442 Treat v. Grand Canyon Ry. Co., 222 U. S. 448 455,456 Trenton v. New Jersey, 262 U. S. 182 712 Truly v. Wanzer, 5 How. 141 259 Tubman v. Baltimore & Ohio R. Co., 190 U. S. 38 255 Tutun v. United States, 270 U.S. 568 672 Page. Twining v. New Jersey, 211 U. S. 78 490,498 Tyler, In re, 149 U. S. 164 51 Tyler v. Magwire, 17 Wall. 253 249 Vajtauer v. Comm’r of Immigration, 273 U. S. 103 496 Van Brocklin v. Tennessee, 117 U. 8. 151 188,192 Vancouver v. Attorney-Gen- eral of Canada, [1944] S. C. R. 23 198 Vandenbark v. Owens-Illi- nois Co., 311 U. S. 538 236 Vernon v. Alabama, 313 U. S. 547 155 Villanueva v. Villanueva, 239 U.S. 293 456,457 Vinson v. Washington Gas Light Co., 321 U. S. 489 383, 523,524,525 Virginia Coupon Cases, 114 U. S. 269 50 Virginian Ry. Co. v. United States, 272 U. S. 658 715 Voight v. Wright, 141 U. S. 62 358 Von Hoffman v. City of Quincy, 4 Wall. 535 395 Unemployment Compensation Comm’n v. Jefferson Ins. Co., 215 N. C. 479 121 Union Stock Yards Co. v. United States, 9 F. Supp. 864 518 Union Tank Line Co. v. Wright, 249 U. S. 275 309, 316,325 Union Transit Co. v. Kentucky, 199 U. S. 194 295,296, 297, 309, 311, 312,316, 324 Union Transit Co. v. Lynch, 177 U. S.149 309,315 United Leather Workers v. Herkert & Meisel Co., 265 U. S. 457 578 United Mine Workers v. Coronado Coal Co., 259 U. S. 344 573, 578, 702, 703 United States v. American Bell Telephone Co., 128 U. S. 315 250,251,252 TABLE OF CASES CITED. XLVII Page. United States v. American Bell Telephone Co., 167 U. S. 224 252 United States v. American Surety Co., 200 U. S. 197 104, 105,110 United States v. American Tobacco Co., 221 U. S. 106 558 United States v. American Trucking Assns., 310 U. S. 534 124,131 United States v. Ansonia Brass & Copper Co., 218 U. S. 452 183 United States v. Appalachian Power Co., 311 U. S. 377 303 United States v. Bathgate, 246 U.S. 220 388,392 United States v. Beebe, 180 U. S. 343 260 United States v. Bond, 108 F. 2d 504 365 United States v. Borden Co., 308 U. S. 188 538,564 United States v. Broughton, 235 U. S.133 10 United States v. Burr, 25 Fed.Cas.38 500 United States v. California Canneries, 279 U. S. 553 142 United States v. Candelaria, 271 U. S. 432 368 United States v. Carolina Freight Carriers Corp., 315 U. S. 475 715 United States v. Classic, 313 U. S. 299 387, 388, 392, 617 United States v. Colgate & Co., 250 U.S. 300 564 United States v. Cooper Corp., 312 U. S. 600 381, 578 United States v. Cunningham, 125 F. 2d 28 100 United States v. Darby, 312 U. S. 100 580,647 United States v. Eberhart, 127 F. 252 11 United States v. Gaskin, 320 U. S. 527 10 United States v. General Motors Corp., 121 F. 2d 376 591 Page. United States v. Ginsberg, ’ 243 U. S. 472 672 United States v. Goedde & Co., 40 F. Supp. 523 702 United States v. Gradwell, 243 U.S. 476 388 United States v. Grogan, 39 F. Supp. 819; 44 F. Supp. 871 97 United States v. Hartford- Empire Co., 46 F. Supp. 541 243 United States v. Haupt, 136 F. 2d 661 68 United States v. Heinszen & Co., 206 U. S. 370 622,641 United States v. Illinois Central R. Co., 303 U. S. 239 686 United States v. Invader Oil Corp., 5 F. 2d 715 699 United States v. Irwin, 316 U. S. 23 107 United States v. Jones, 109 U. S. 513 368 United States v. Knight Co., 156 U. S. 1 558 United States v. Knight’s Adm’r, 1 Black 488 258 United States v. Kombst, 286 U. S. 424 528 United States v. Lanza, 260 U. S. 377 493 United States v. Laudani, 320 U. S. 543 696 United States v. Lee, 106 U. S. 196 51 United States v. Ludey, 274 U. S.295 280 United States v. Maryland Casualty Co., 25 F. Supp. 778 100 United States v. Mayer, 235 U. S. 55 255,258 United States v. McClellan, 127 F. 971 11 United States v. McRae, L. R. 3 Ch. App. 79 494 United States v. Mitchell, 322 U. S. 65 158, 598 United States v. Monia, 317 U. S. 424 493, 637 XLVIII TABLE OF CASES CITED. Page. United States v. Morgan, 307 U. S. 183 620, 621 United States v. Mosley, 238 U. S. 383 387, 392 United States v. Murdock, 284 U. S. 141 492, 497 United States v. Murdock, 290 U. S. 389 686 United States v. Ness, 245 U. S. 319 675 United States v. Norris, 281 U. S. 619 91 United States v. Northern Pacific Ry. Co., 288 U. S. 490 515 United States v. Nunnally Investment Co., 316 U. S. 258 58 United States v. Oppenheimer, 242 U. S. 85 68 United States v. Patten, 226 U. S.525 536,554,564,570 United States v. Payne, 264 U. S. 446 430 United States v. Reid, 12 How. 361 66 United States v. Reynolds, 235 U. S. 133 10,17,30 United States v. Rickert, 188 U. S. 432 188 United States v. St. Pierre, 132 F. 2d 837 500 United States v. Saline Bank, 1 Pet. 100 494, 497 United States v. Shaw, 309 U. S. 495 54 United States v. Simpson, 252 U. S. 465 549 United States v. Snyder, 149 U. S. 210 183 United States v. Socony- Vacuum Oil Co., 310 U. S. 150 536,591 United States v. South-Eastern Underwriters Assn., 322 U. S. 533 653 United States v. Swift & Co., 318 U. S. 442 564 United States v. Throckmorton, 98 U. S. 61 244, 246,260,261 Page United States v. Trans- Missouri Freight Assn., 166 U. S. 290 554,559 United States v. Trenton Potteries Co., 273 U. S. 392 536 United States v. Two Hundred Barrels of Whiskey, 95 U. S. 571 404 United States v. U. S. Fidelity & Guaranty Co., 309 U. S. 506 54 United States v. Wayne Pump Co., 317 U. S. 200 564 United States Express Co. v. Minnesota, 223 U. S. 335 315 U. S. ex rel. Bilokumsky v. Tod, 263 U. S. 149 496 U. S. ex rel. Innes v. Crystal, 319 U. S. 755 757 U. S. ex rel. Maine Potato Growers Assn. v. Interstate Commerce Comm’n, 88 F. 2d 780 517 U. S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103 496 U. S. Fidelity & Guaranty Co. v. Bartlett, 231 U. 8. 237 104 U. S. Glue Co. v. Oak Creek, 247 U. S. 321 711 Universal Oil Products Co. v. Globe Oil Co., 40 F. Supp. 575,137 F. 2d 3 472,483 Utah Construction Co. v. United States, 15 F. 2d 21 105 Utah Power & Light Co. v. United States, 243 U. S. 389 183 Wabash Ry. Co. v. Public Service Comm’n, 273 U. S. 126 237 Wagner v. City of Covington, 251 U. S. 95 311 Waialua Co. v. Christian, 305 U.S. 91 455,456,458,459 Walker v. Altmeyer, 137 F. 2d 531 130 Walker v. Robbins, 14 How. 584 259 TABLE OF CASES CITED. XLIX Page. Wallace v. Cutten, 298 U. S. 229 404 Wallace v. Hines, 253 U. S. 66 316,318 Walsh Construction Co. v. U. S. Guarantee Co., 76 F. 2d 240 257 Wan v. United States, 266 U. S. 1 71,154,158,496,601 Ward v. Love County, 253 U. S. 17 52,58 Ward v. Texas, 316 U. S. 547 155 Ware & Leland v. Mobile County, 209 U.S.405 569, 570,573,578 Washington Bridge Co. v. Stewart, 3 How. 413 255,256 Washington Recorder Co. v. Ernst, 199 Wash. 176 122 Waskey v. Hammer, 179 F. 273 257 Waterman v. Banks, 144 U. S. 394 470 Watson v. Jones, 13 Wall. 679 86 Wayne Gas Co. v. Owens- Illinois Co., 300 U. S. 131 255 Weeks v. United States 232 U. S. 383 490,492 Weil v. Neary, 278 U. S. 160 418 Wells, Fargo & Co. v. Nevada, 248 U. S. 165 315 Wells Fargo & Co. v. Taylor, 254 U. S. 175 260 Welton v. Missouri, 91 U. S. 275 358,551 West v.. A. T. & T. Co., 311 U. S. 223 237 Western Chemical Co. v. United States, 271 U. S. 268 715 Western Live Stock v. Bureau of Revenue, 303 U. S. 250 210, 309,316,338,569,711 Western Union Telegraph Co. v. Kansas, 216 U. S. 1 353 Pag«. Western Union Telegraph Co. v. Trapp, 186 F. 114 58 Wetmore v. Karrick, 205 U.S. 141 255 Wheeler v. United States, 226 U.S. 478 699 Wheeling Steel Corp. v. Fox, 298U. S. 193 311,318 White v. Crow, 110 U. S. 183 260 White v. Dunbar, 119 U. S. 47 485 White v. Texas, 310 U. S. 530 152,155 Whiting v. Bank of United States, 13 Pet. 6 245,259 Whitley v. State, 78 Miss. 255 606 Whitman v. Wilson, 318 U. S. 688 237 Whitney v. California, 274 U. S. 357 27, 394 Whitney v. Dick, 202 U. S. 132 258 Wichita Company v. City Bank, 306 U. S. 103 459 Wichita Royalty Co. v. City National Bank, 97 F. 2d 249 257 Wickard v. Fübum, 317 U. S. Hl 209,545, 546,580,583,587,652 Wilentz v. Sovereign Camp, 306 U. S. 573 384 Williams v. Mayor, 289 U. S. 36 712 Williams v. North Carolina, 317 U. S. 287 597 Williams v. Pollock, 153 Fla. 338 7 Willson v. Black Bird Creek Marsh Co., 2 Pet. 245 548 Wiloil Corp. v. Pennsylvania, 294 U. S. 169 352 Wilson v. City of Hollis, 142 P. 2d 633 234, 235 Wilson v. United States, 162 U. S. 613 71 Wilson v. United States, 221 U. S.361 699,700 Winton v. Amos, 255 U. S. 373 366 L TABLE OF CASES CITED. Page. Wisconsin v. J. C. Penney Co., 311 U. S. 435 331, 352, 437, 438, 443, 444, 447, 527, 528, 530. Wisconsin v. J. C. Penney Co., 238 Wis. 69 438 Wisconsin Bridge Co. v. Industrial Comm’n, 233 Wis. 467 122 Wisconsin Gas Co. v. Department of Taxation, 243 Wis. 216 439,529 Wood v. United States, 128 F. 2d 265 155 Page. Woods v. City National Bank Co., 312 U. S. 262 417, 418 Worcester County Trust Co. v. Riley, 302 U. S. 292 51 Yakus v. United States, 321 U. S. 414 403 Yarbrough, Ex parte, 110 U. S. 651 387 Yonkers v. United States, 320 U. S. 685 652 Young, Ex parte, 209 U. S. 123 59 TABLE OF STATUTES Cited in Opinions (A) Statutes of the United States. Page. 1795, Jan. 29, c. 20, 1 Stat. 414...................665 1803, Mar. 3, c. 40, 2 Stat. 244...................238 1839, Mar.’ 3,’ c. *82,’ ’§ 2, 5 Stat. 339 ............ 47 1845, Feb. 26, c. 22, 5 Stat. 727 .................. 47 1861, Jan. 29, c. 20, 12 Stat. 126...................213 1867, Mar. 2, c. 187, 14 Stat. 546 ................... 4 1870, May 31, c. 114,16 Stat. 140 ................. 385 1871, Feb. 28, c. 99, §§ 4, 6, 16 Stat. 433......... 385 1887, Feb. 4, c. 104, 24 Stat. 379 ................. 643 1887, Feb. 4, c. 104, § 5, 24 Stat. 379............ 31 1887, Feb. 4, c. 104, § 22, 24 Stat. 379............. 72 1887, Feb. 8, c. 119, 24 Stat. 388 ................. 419 1890, July 2, c. 647, §§ 1, 2, 26 Stat. 209 ........ 533 1891, Jan. 12, c. 65, §§ 4, 5, 26 Stat. 712..........419 1891, Mar. 3, c. 517, § 5, 26 Stat. 827 ............ 47 1894, Feb. 8, c. 25, 28 Stat. 36 .................. 385 1894, Aug. 13, c. 280,28 Stat. 278.................. 102 1894, Aug. 15, c. 290,28 Stat. 305 ................. 419 1902, June 6, c. 1036, § 21, 32 Stat. 310.......... 96 1903, Feb. 11, c. 544, § 1, 32 Stat. 823............ 379 1903, Feb. 11, c. 544, §2, 32 Stat. 823... 137,379,716 1903, Feb. 14, c. 552, § 6, 32 Stat. 828............ 533 1905, Feb. 24, c. 778, 33 Stat. 811................... 102 1906, June 29, c. 3592, § 15, 34 Stat. 596.......... 665 1907, Mar. 2, c. 2564, 34 Stat. 1246 ........... 533 1908, May 27, c. 199, 35 Stat. 312....................363 1910, June 25, c. 395, § 2, 36 Stat. 825 ............ 369 1910, June 25, c. 431, § 17,36 Stat. 859............. 419 1911, Mar. 3, c. 231, § 291, 36 Stat. 1167......... 137 1914, Oct. 15, c. 323,38 Stat. 730................... 533 1917, Mar. 2, c. 146, 39 Stat. 969................... 419 1917, June 15, c. 30, §§ 3, 4, 40 Stat. 217.........680 1917, Aug. 10, c. 53, § 5, 40 Stat. 276............. 398 1918, June 14, c. 101, §§ 1, 2,40 Stat. 606........ 363 1920, Feb. 28, c. 91, § 307, 41 Stat.456........ 643 1920, Feb. 28, c. 91, § 407, 41 Stat. 456 .......... 31 1920, June 5, c. 250, § 29, 41 Stat. 988............. 533 1921, Mar. 3, c. 136,41 Stat. 1359.................. 680 1924, June 7, c. 291, 43 Stat. 477 .................. 72 1925, Feb. 12, c. 213, §§ 2, 3,4,8,43 Stat. 883... 42 1925, Feb. 13, c. 229, § 1, 43 Stat. 938............. 137 1925, Feb. 13, c. 229, § 8, 43 Stat. 938............. 694, 733,741,765 1926, Apr. 12, c. 115, § 3, 44 Stat. 239............. 363 LI LII TABLE OF STATUTES CITED. Page. 1926, May 20, c. 347, 44 Stat. 577............. 694 1927, Mar. 4, c. 509, 44 Stat. 1424.................. Ill 1928, May 10, c. 517,45 Stat. 495................... 363 1930, June 17, c. 497,46 Stat. 590................... 202 1932, Mar. 23, c. 90, 47 Stat. 70.................... 694 1932, June 30, c. 333,47 Stat. 474................... 363. 1933, Jan. 27, c. 23, 47 Stat. 777................... 363 1933, June 16, c. 91, 48 Stat. 217.................... 31 1934, May 10, c. 277, § 23, 48 Stat. 680........ 526 1934, June 13, c. 482, § 1, 48 Stat. 948............. 694 1934, June 18, c. 569,48 Stat. 979................... 694 1934, June 18, c. 569, § 2, 48 Stat. 979............. 694 1934, June 18, c. 576,48 Stat. 984 .................. 419 1934, June 19, c. 652, § 2, 48 Stat. 1064....... 31, 111 1935, July 5, c. 372, 49 Stat. 44g.................. 694 1935, July 5, c.’ ’372, § 2, 49 Stat. 449...:.... 111,643 1935, July 5, c. 372, §§ 8, 9, 49 Stat. 449........ Ill 1935, July 5, c. 372, § 10, 49 Stat. 449......... 111,607 1935, Aug. 24, c. 642, §§ 1, 2, 49 Stat. 793.......... 102 1935, Aug. 31, c. 836, § 31,49 Stat. 1075 ........... 643 1936, June 22, c. 690,49 Stat. 1648 ................. 47 1936, June 22, c. 690, §§ 23, 41, 42, 113, 114, 49 Stat. 1648............ 275 1936, June 26, c. 831, § 2, 49 Stat. 1967............ 363 1937, Apr. 26, c. 127, § 4, 50 Stat. 72.............. 643 1938, June 23, c. 601, § 1, 52 Stat. 973 ............ 643 1938, June 23, c. 601, § 501, 52 Stat. 973.......... 292 Page. 1938, June 25, c. 676, §§ 2, 3, 5, 7, 8,13,16, 52 Stat. 1060................. 607 1938, June 25, c. 679,52 Stat. 1077 ................ 202 1939, Aug. 9, c. 605, 53 Stat. 1266................. 607 1939, Aug. 11, c. 685, § 1, 53 Stat. 1404........... 643 1940, Sept. 18, c. 722, §§ 1,5, 54 Stat. 905.......... 31 1940, Sept. 18, c. 722, § 321, 54 Stat. 905................ 72 1940, Oct. 14, c. 876, §§ 334, 338, 54 Stat. 1137.... 665 1942, Jan. 30, c. 26, 56 Stat. 23 ........................ 503 1942, Jan. 30, c. 26, § 205, 56 Stat. 23 ............ 398 1942, Mar. 27, c. 199, Tit. Ill, § 2, 56 Stat. 178.... 398 1942, Apr. 6, c. 210, § 1, 56 Stat. 198 ........... 379 1942, May 9, c. 295, 56 Stat. 271 ............... 533 1942, Oct. 2, c. 578, § 1, 56 Stat. 765............ 503 1942, Dec. 2, c. 668, § 301, 56 Stat. 1035........... 102 1943, June 25, c. 144, 57 Stat. 163 ................. 694 1944, June 9, c. 239, 58 Stat. 272 ............... 716 Constitution. See Index at end of volume. Criminal Code. § 19....................385 §37..................... 78 §215................ 78,487 § 269.................... 4 Judicial Code. §128.................... 238 §237 ................. 174, 340,435,710,713,717 Revised Statutes. § 1990 ................... 4 §§4141, 4178............ 292 §5526................... 4 U.S. Code. Title 7, § 644 et seq.... 47 Title 8, §56.................. 4 §§ 405, 738......... 665 TABLE OF STATUTES CITED. liii Page. U. S. Code—Continued. Title 9............... 42 Title 10, § 1375....... 72 Title 11, §11............... 379 §22............... 533 Title 15, §§1,2.............533 §26............... 137 §29..... 137, 379, 716 §§ 1-7, 12-28 ..... 379 §§77,80............ 533 §834.............. 643 Title 16, §831........ 643 Title 18, §51................385 §88................ 78 § 338.......... 78,487 §398.............. 369 §420.......... 643,694 §444................ 4 §682 ............. 533 Title 19, §§1484, 1499, 1505, 1641......... 202 Title 25, §§331,345.......... 419 §§355,375,409 ..... 363 Title 26, §§ 11-23.... 275 Title 28, §41.......... 1,47,526 §47................ 31 §225...... 238,451,465 §230 ............. 694 §344 ............ 340, 393,435,710,713,717 §345........... 31, 137 § 350.... 733,741, 765 §861.............. 340 Title 29, §§101,151.........694 § 152........Ill, 643 §§158,159.......... Ill § 160....Ill, 607, 643 §§ 201 et seq.....607 Title 33, § 901 et seq.... Ill Title 35, § 69........ 238 Title 40, §269 .............. 96 §§270 et seq...... 102 §276 ............. 694 §407.............. 102 Title 41, §§ 10,28.... 102 Page. U. S. Code—Continued. Title 42 (Supp. II), § 1651............. 102 Title 45, §51............... 643 §151...............694 Title 47, § 152.....31, 111 Title 48, §863 ...... 451 Title 49, § 1 et seq........643 §5................ 31 § 22.............. 72 §§ 306-308......... 1, 31 §401............. 643 §521............. 292 Title 50, §§ 31 et seq., 33. 680 Appendix, § 1501.. 694 Appendix, Supp. II, §§ 901 et seq., 961 et seq..........503 Appendix, Supp. Ill, §§ 633, 925.. 398 Agricultural Adj u s t m e n t Act................. 47 Anti-Racketeering Act.....694 Arbitration Act, §§ 2, 3,4,8. 42 Bankruptcy Act, c. X, § 2... 379 Bituminous Coal Act, § 4... 643 Civil Aeronautics Act, §1................... 643 § 501................ 292 Clayton Act...............533 §15...................379 §16.................. 137 Communications Act, 1934, §2................31, 111 Criminal Appeals Act... 385, 533 Emergency Price Control Act, 1942.......... 503 §205................. 398 Enforcement Act, 1870, § 19. 385 Espionage Act, 1917, §§ 3, 4...................680 Expediting Act, §1....................379 §2............... 137,379 Fair Labor Standards Act, §§2,3,5,7,8,13,16.. 607 Federal Antipeonage Act... 4 Federal Employers’ Liability Act, §1.............643 General Allotment Act, 1887. 419 LIV TABLE OF STATUTES CITED. Page. Heard Act, 1894............ 102 Holding Company Act, §§ 11, 24................... 503 Indian Reorganization Act, 1934................. 419 Inflation Control Act, 1942, § 1................. 503 Interstate Commerce Act.. 379, 607,643 Part I, §§ 1, 5............. 31 §22..................... 72 §203 ................... 31 §206.................. 1,31 §§ 207, 208............... 1 §212.................... 31 Kansas Admission Act......213 Kickback Act, 1934, § 1.... 694 Longshoremen’s & Harbor Workers’ Act......... Ill Mann Act, 1910, § 2.........369 Merchant Marine Act, 1920, Miller Act, 1935,’ §§’i,*2’' ” 102 Mission Indian Act, 1891, §§ 4, 5...............419 Nationality Act, 1940, §§ 334, 338 ............ 665 National Labor Relations Act.......... 369,533,694 § 2.....................Ill, 643 §§8,9................... Ill § 10....................Ill, 607 Norris-LaGuardia Act......694 Packers and Stockyards Act.................503 Railway Labor Act.........694 Revenue Act, 1913, § II.... 275 Revenue Act, 1916, § 5.... 275 Page. Revenue Act, 1918, § 234.. 275 Revenue Act, 1921......... 526 § 214....................275 Revenue Act, 1924, § 214.. 275 Revenue Act, 1926, § 214.. 275 Revenue Act, 1928, § 23.... 275 Revenue Act, 1932, § 23... 275 Revenue Act, 1934, § 23 . 275,526 Revenue Act, 1936, §§ 23, 41, 42, 113, 114.... 275 Second War Powers Act, Title III, § 2.........398 Securities Act...............533 Selective Training and Service Act of 1940..... 680 Sherman Act.......... 137, 379 §§ 1, 2...................533 Social Security Act.......174 Stabilization Act, 1942, § 1.. 503 Tariff Act, 1930............ 202 Tennessee Valley Authority Act, §31.............. 643 Transportation Act, 1920, §1.................... 31 §307................ 643 §321..................... 72 §407 .................... 31 Transportation Act, 1940, §1....................... 31 §321..................... 72 Wagner Act................. Ill §10....................643 Warehousing Act............202 War Labor Disputes Act, 1943 ............... 694 White Slave Traffic Act, 1910, §2.............369 (B) Statutes of the States and Territories. Alabama. 1896-1897 Laws, No. 634, p. 1428........ 533 Arizona. 1912 Laws, c. 73, p. 354................. 533 Arkansas. 1905 Acts, No. 1, p. 1.. 533 1907 Acts, No. 184, p. 430 ................ 533 1937 Acts, No. 154.... 327 Arkansas—Continued. 1939 Acts, No. 364..... 327 1941 Acts, No. 386..... 327 Gross Receipts Act, 1941 ........... 327 California. 1891 Stats., 442 ........ 47 Compensation Act.......Ill Political Code, §3669.. 47 Colorado. 1907 Sess. Laws, c. 211, §6............... 47 TABLE OF STATUTES CITED. LV Page. Florida. Constitution, Art. V, §§3,17................... 4 1891 Laws, c. 4032....... 4 1907 Laws, c. 5678, §§1,2.................... 4 1913 Laws, c. 6528, §§ 1, 2, 3................... 4 1919, Laws, cs. 7808, 7917, 7936 .............. 4 1941 Stats., §§ 32.05, 33.03, 36.01, 817.01, 817.09, 817.10, 817.29 . 4 1943 Laws, c. 22000.... 4 Georgia. 1890-91 Laws, No. 745, p. 206 ................ 533 Illinois. 1933 Laws, p. 924..... 340 1943 Laws, § 1, p. 1121. 340 Indiana. 1933 Laws, p. 388...... 340 1937 Laws, c. 117, §§ 2, 6, pp. 611, 615.......340 Burns Stats. Ann., § 64r-2601................... 340 Gross Income Tax Act, 1933, §§2,6...........340 Iowa. 1896 Laws, c. 22, p. 31.. 533 Code, 1939, §§ 6943.075, 6943.103, 6943.104, 6943.109, 6943.111, 6943.112, 6943.125... 335 Use Tax Law, 1939.... 335 Constitution, 1859..... 213 1889 Laws, c. 257, p. 389.................. 533 1897 Laws, c. 265, p. 481.................. 533 1939 Laws, c. 355...... 213 Kentucky. Rev. Stats. 1942, §§ 124.180, 124.220, 124.280.............. 385 Louisiana. 1912 Acts, No. 224, p. 509 ................. 533 Maine. 1893 Laws, c. 285, p. 339.................. 533 Page. Massachusetts. 1852 Laws, c. 231...... 533 Michigan. 1887 Laws, No. 285, p. 384. . 533 1923 Pub. Acts, No. 316, c. X, § 18............. 393 1927 Pub. Acts, No. 331. 393 1937 Pub. Acts, Nos. 114, 155, 325 ......... 393 1939 Pub. Acts, Nos. 29, 244, 282, 329.......... 393 1941 Pub. Acts, Nos. 234, 363 .............. 393 Minnesota. 1935 Laws, cs. 200; 230, §2..................... 202 1941 Stats., c. 303...... 202 1941 Stats., §§272.01, 273.01 ................ 292 1941 Stats., § 620.64... 4 Foreign Corporation Act, §§ 5, 13, 15, 20, 21......................202 Mississippi. 1906 Laws, c. 101, p. 78. 533 Code 1906, § 5002........ 533 Missouri. 1895 Laws, p. 237 ....... 533 Nebraska. 1897 Laws, c. 79, p. 347. 533 1897 Laws, c. 81, p. 354. 533 1913 Laws, c. 154, pp. 393, 419............... 533 New Hampshire. 1851 Laws, c. 1111........533 1885 Laws, c. 93, p. 289. 533 New York. 1935 Laws, c. 630, § 789 . 487 1938 Laws, c. 108, § 17.. 487 Civil Practice Act, Art. 45............. 487 §789................ 487 Stock Corporation Law, § 114...................435 North Carolina. Pub. Laws 1905, c. 424, p. 429................. 533 Pub. Laws 1915, c. 166, p. 243................ 533 Ohio. 1885 Laws, No. 284, p. 231.................... 533 LVI TABLE OF STATUTES CITED. Page. Oklahoma. Constitution, Art. 10, §28 ................... 232 1913 Sess. Laws, c. 240, Art. 1, § 7.......... 47 1915 Sess. Laws, c. 107, Art. 1, §§ 2, 3, 6, 7,.. 47 1931 Stats., § 10478, 12651, 12660, 12661, 12665 .................. 47 1941 Sess. Laws, c. 1, Tit. 36............... 47 62 Stats. 1941, § 431 et seq..................232 Oregon. Gen. Laws, 1909, c. 230, pp. 388, 399 .......... 533 Pennsylvania. Purdon’s Stat. Ann., Tit. 53, § 2022........... 174 Purdon’s Stat. Ann. Tit. 72, §§ 5020-201...... 174 Tax Law................ 174 Puerto Rico. 1928 Acts, No. 53, §§ 17, 29............ 451 1931 Acts, No. 88..... 451 1931 Acts, No. 99, §§ 9, 21, 22, 26, 27, 36, 39, 50.;..................451 1937 Acts, No. 10.......451 Civil Code (1930 ed.), §§ 1418, 1759 ....... 465 Civil Service Act, 1931. 451 Mortgage Law, Art. 152 ................. 465 Rhode Island. 1855 Laws, p. 17, § 17.. 533 Page. South Carolina. 1902 Acts, No. 574, p. 1057 ............... 533 South Dakota. 1903 Laws, c. 158, p. 183................. 533 Tennessee. 1905 Acts, c. 479, p. 1019................ 533 Tcx&s Gen. Laws 1903, c. 94, p. 119.................533 Virginia. 1898 Acts, c. 644, p. 683 ................ 533 Wisconsin. 1897 Laws, c. 356, p. 908................. 533 1935 Laws, c. 505, § 3.. 435, 526 1935 Laws, c. 552... 435,526 1937 Laws, c. 233..... 526 1937 Laws, c. 309, §3 . 435, 526 1939 Laws, c. 198... 526 1939 Laws, c. 198, § 1... 435 1941 Laws, c. 63, §3... 435, 526 1941 Stats., §71.60.... 435 1943 Laws, c. 367, § 2... 435, 526 Privilege Dividend Tax Act............. 435, 526 Washington. 1911 Sess. Laws, c. 49, pp. 161,195........... 533 1915 Sess. Laws, c. 97, p. 278................ 533 (C) Treaties. Guadalupe Hidalgo, 1848 (Mexico).......................419 (D) Foreign Statutes. English. Australia Constitutional Act, 1900, c. 12, § 51, 63 & 64 Viet...........643 British North America Act, 1867, c. 3, §91, 30 & 31 Viet.......... 643 India. Indian Evidence Act, 1872, §§25,26.... 65 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1943. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY CO. et al. v. UNITED STATES et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA. No. 482. Argued March 8, 1944.—Decided April 10, 1944. 1. The findings upon which the Interstate Commerce Commission based its authorization of motor carrier operations in this case were supported by the evidence; and the court below properly declined to substitute its own inferences from the testimony for those of the Commission and to weigh the evidence anew. P. 2. 2. Upon application by a motor carrier under §§ 206 (a) and 207 (a) of Part II of the Interstate Commerce Act for authorization of operations over certain routes, the Commission, upon the facts found, had power under § 208 (a) to authorize the applicant to serve intermediate points on the routes, though the applicant had not sought authority in respect of the intermediate points. P. 3. 3. The record does not sustain the claim that the protestants were denied the opportunity for an adequate hearing before the Commission. P. 3. 50 F. Supp. 249, affirmed. Appeal from a decree of a district court of three judges dismissing a suit to set aside in part an order of the Interstate Commerce Commission. Mr. Amos M. Mathews, with whom Mr. Warren New-come was on the brief, for appellants. 1 2 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. Mr. Nelson Thomas, with whom Solicitor General Fahy and Messrs. Walter J. Cummings, Jr. and Daniel W. Knowlton were on the brief, for the United States et al.; Mr. Perry R. Moore, with whom Mr. Frederick H. Stinch-field was on the brief, for Cornelius W. Styer; and Mr. Fred W. Putnam for the Glendenning Motorways, Inc.,— appellees. Mr. Justice Jackson delivered the opinion of the Court. Appellants are five railroads operating in Minnesota and North Dakota. They claim to be aggrieved by an order of the Interstate Commerce Commission granting operating authority to a motor carrier of goods in that territory. Appellee Cornelius Styer, doing business as Northern Transportation Company, made application for two classes of common-carrier rights. As to certain routes he sought “grandfather rights” under § 206 (a) of Part II of the Interstate Commerce Act, 49 U. S. C. § 306 (a). As to certain others, he sought authority under §§ 206 (a) and 207 (a) of the Act, 49 U. S. C. §§ 306 (a), 307 (a), by showing that the proposed service “is or will be required by the present or future public convenience and necessity.” After due hearings both classes of rights were granted. Styer later transferred them to the appellee Glendenning Motorways, Inc. The railroads brought an action in the District Court for Minnesota against the Commission and the carriers to annul the Commission’s certificate, pursuant to 28 U. S. C. § 41 (28). The cause came on before a court of three judges who dismissed the complaint on the merits. It was brought here by direct appeal. It is contended that there is no evidence to support the findings on which the Commission granted operating rights. The court below examined the evidence as to each challenged finding and found each “not unsupported by CHICAGO, ST. P., M. & 0. RY. CO. v. U. S. 3 1 Opinion of the Court. evidence.” It declined, quite properly, to substitute inferences of its own for those drawn by the Commission from testimony and declined to weigh anew conflicts in it. This was no error, and we affirm the findings. Gregg Cartage & Storage Co. v. United States, 316 U. S. 74; Rochester Telephone Corp. v. United States, 307 U. S. 125. The question of law in the case is whether the Commission on its finding need for such service had power to authorize service of intermediate points not asked for by the applicant. The applicant has accepted and is defending the grant, but the competing rail carriers complain of it. In the grandfather case Styer stated that he did not claim and was not applying for authority to carry goods in interstate commerce from any Minnesota point to any Minnesota point. But he had begun operations only two months prior to the “grandfather” date. The Commission found that he had held out service to such intermediate points and that there was public need for it. In the convenience and necessity case, before hearing Styer filed an amendment to his application which withdrew request for authority as to “all service in interstate commerce between points in Minnesota.” The Commission, however, found that he had served such intermediate points on the route as shippers had requested it, that such service was fulfilling a public need, and was required by the public convenience and necessity. It is said that these actions withdrew the intermediate points from issue and threw the protesting parties off their guard and that they did not have opportunity for adequate hearing on the matters ultimately decided. However, after receiving the report of Division 5 recommending granting, as was done, the railroads filed a petition for reconsideration. It is not in evidence. Whether surprise was claimed and evidence was indicated that could 4 OCTOBER TERM, 1943. Syllabus. 322 U. S. be added on rehearing, we do not know. The Court endeavors to protect the right of parties to fair hearings, but it will not presume that their rights have been substantially denied when they do not embrace the opportunity to prove their grievance in the court below. It is clear that the Commission on the facts found had power to include in the authorization provision for service greater than the carrier had asked. Section 208 (a) of the Act provides that in any certificate issued under either § 206 or § 207 “there shall, at the time of issuance and from time to time thereafter, be attached to the exercise of the privileges granted by the certificate such reasonable terms, conditions, and limitations as the public convenience and necessity may from time to time require, including terms, conditions, and limitations as to the extension of the route or routes of the carrier.” 49 U. S. C. § 308 (a). Judgment affirmed. POLLOCK v. WILLIAMS, SHERIFF. APPEAL FROM THE SUPREME COURT OF FLORIDA. No. 345. Argued February 10, 1944.—Decided April 10, 1944. 1. A statute of Florida which makes guilty of a misdemeanor any person who, with intent to defraud, obtains an advance upon an agreement to render services, and which provides further that failure to perform the services for which an advance was obtained shall be prima facie evidence of intent to defraud, held violative of the Thirteenth Amendment and the federal Antipeonage Act. Pp. 5, 17. 2. In view of the history and operation of the Florida statute, it can not be said that a plea of guilty is uninfluenced by the statute’s threat to convict by its prima facie evidence section; hence the entire statute is invalid, and a conviction under it, though based upon a plea of guilty, can not be sustained. P. 15. 3. That upon a trial of the defendant his testimony in respect of his intent would have been competent is immaterial. P. 25. 153 Fla. 338, 14 So. 2d 700, reversed. POLLOCK v. WILLIAMS. 5 4 Opinion of the Court. Appeal from the reversal of a judgment which, upon a writ of habeas corpus, discharged the prisoner, appellant here. Mr. Raymer F. Maguire, with whom Messrs.,W. H. Poe and Thomas T. Purdom were on the brief, for appellant. Mr. John C. Wynn, Assistant Attorney General of Florida, with whom Messrs. J. Tom Watson, Attorney General, and Woodrow M. Melvin, Assistant Attorney General, were on the brief, for appellee. Mr. Justice Jackson delivered the opinion of the Court. Appellant Pollock questions the validity of a statute of the State of Florida making it a misdemeanor to induce advances with intent to defraud by a promise to perform labor and further making failure to perform labor for which money has been obtained prima fade evidence of intent to defraud.1 It conflicts, he says, with the Thirteenth Amendment to the Federal Constitution and with the antipeonage statute enacted by Congress thereunder. Claims also are made under the due process and equal 1 The Florida statute under which Pollock is held was enacted as Chapter 7917 of the Acts of 1919. It was re-enacted as §§ 817.09 and 817.10, Statutes of 1941, in the revision and compilation of the general statute laws of the State. It reads: “817.09 Obtaining property by fraudulent promise to perform labor or service.—Any person in this state who shall, with intent to injure and defraud, under and by reason of a contract or promise to perform labor or service, procure or obtain money or other thing of value as a credit, or as advances, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars, or by imprisonment not exceeding six months. “817.10 Same; prima facie evidence of fraudulent intent.—In all prosecutions for a violation of § 817.09 the failure or refusal, without just cause, to perform such labor or service or to pay for the money or other thing of value so obtained or procured shal| be prima facie evidence of the intent to injure and defraud.” 6 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. protection clauses of the Fourteenth Amendment which we find it unnecessary to consider. Pollock was arrested January 5, 1943, on a warrant issued three days before which charged that on the 17th of October, 1942, he did “with intent to injure and defraud under and by reason of a contract and promise to perform labor and service, procure and obtain money, to-wit: the sum of $5.00, as advances from one J. V. O’Albora, a corporation, contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Florida.” He was taken before the county judge on the same day, entered a plea of guilty, and was sentenced to pay a fine of $100 and in default to serve sixty days in the county jail. He was immediately committed. On January 11,1943, a writ of habeas corpus was issued by the judge of the circuit court, directed to the jail keeper, who is appellee here. Petition for the writ challenged the constitutionality of the statutes under which Pollock was confined and set forth that “at the trial aforesaid, he was not told that he was entitled to counsel, and that counsel would be provided for him if he wished, and he did not know that he had such right. Petitioner was without funds and unable to employ counsel. He further avers that he did not understand the nature of the charge against him, but understood that if he owed any money to his prior employer and had quit his employment without paying the same, he was guilty, which facts he admitted.” The Sheriff’s return makes no denial of these allegations, but merely sets forth that he holds the prisoner by virtue of the commitment “based upon the judgment and conviction as set forth in the petition.” The Supreme Court of Florida has said that “undenied allegations of the petition are taken as true.”2 2 State ex rel. Libtz v. Coleman, 149 Fla. 28, 5 So. 2d 60. POLLOCK v. WILLIAMS. 7 4 Opinion of the Court. The Circuit Court held the statutes under which the case was prosecuted to be unconstitutional and discharged the prisoner. The Supreme Court of Florida reversed.3 It read our decisions in Bailey v. Alabama4 and Taylor v. Georgia5 to hold that similar laws are not in conflict with the Constitution in so far as they denounce the crime, but only in declaring the prima fade evidence rule. It stated that its first impression was that the entire Florida act would fall, as did that of Georgia, but on reflection it concluded that our decisions were called forth by operation of the presumption, and did not condemn the substantive part of the statute where the presumption was not brought into play. As the prisoner had pleaded guilty, the Florida court thought the presumption had played no part in this case, and therefore remanded the prisoner to custody. An appeal to this Court was taken and probable jurisdiction noted.6 Florida advances no argument that the presumption section of this statute is constitutional, nor could it plausibly do so in view of our decisions. It contends, however, (1) that we can give no consideration to the presumption section because it was not in fact brought into play in the case, by reason of the plea of guilty; (2) that so severed the section denouncing the crime is constitutional. I. These issues emerge from an historical background against which the Florida legislation in question must be appraised. The Thirteenth Amendment to the Federal Constitution, made in 1865, declares that involuntary servitude 3 Williams v. Pollock, 153 Fla. 338, 14 So. 2d 700. 4 219 U.S. 219. 5315U. S. 25. 6 October 25, 1943. 8 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. shall not exist within the United States and gives Congress power to enforce the article by appropriate legislation.7 Congress on March 2,1867, enacted that all laws or usages of any state “by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise,” are null and void, and denounced it as a crime to hold, arrest, or return a person to the condition of peonage.8 Congress thus raised both a shield and a sword against forced labor because of debt. Clyatt v. United States was a case from Florida in which the Federal Act was used as a sword and an employer T “Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. “Section 2. Congress shall have power to enforce this article by appropriate legislation.” 8 The Act of March 2,1867,14 Stat. 546, reads: “The holding of any person to service or labor under the system known as peonage is hereby declared to be unlawful, and the same is hereby abolished and forever prohibited in the Territory of New Mexico, or in any other Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of the Territory of New Mexico, or of any other Territory or State of the United States, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, be, and the same are hereby, declared null and void; and any person or persons who shall hold, arrest, or return, or cause to be held, arrested, or returned, or in any manner aid in the arrest or return of any person or persons to a condition of peonage, shall, upon conviction, be punished by fine not less than one thousand nor more than five thousand dollars, or by imprisonment not less than one nor more than five years, or both, at the discretion of the court.” The first part of the statute is now 8 U. S. C. § 56 (R. S. § 1990) and the criminal provision is § 269 of the Criminal Code, 18 U. S. C. §444 (R. S. §5526). POLLOCK v. WILLIAMS. 9 4 Opinion of the Court. convicted under it. This Court sustained it as constitutional and said of peonage: “It may be defined as a status or condition of compulsory service, based upon the indebtedness of the peon to the master. The basal fact is indebtedness. . . . Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. ... A clear distinction exists between peonage and the voluntary performance of labor or rendering of services in payment of a debt. In the latter case the debtor, though contracting to pay his indebtedness by labor or service, and subject like any other contractor to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels performance or a continuance of the service.”9 Then came the twice-considered case of Bailey v. Alabama,10 in which the Act and the Constitution were raised as a shield against conviction of a laborer under an Alabama act substantially the same as the one before us now. Bailey, a Negro, had obtained $15 from a corporation on a written agreement to work for a year at $12 per month, $10.75 to be paid him and $1.25 per month to apply on his debt. In about a month he quit. He was convicted, fined $30, or in default sentenced to hard labor for 20 days in lieu of the fine and 116 days on account of costs. The Court considered that the portion of the state law defining the crime would require proof of intent to defraud, and so did not strike down that part; nor was it expressly sustained, nor was it necessarily reached, for the prima facie evidence provision had been used to obtain a conviction. 9 197 U. S. 207, 215-16 (1905). 10 211 U. S. 452 (1908), where held to be brought here prematurely, and219U.S.219 (1911). 10 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. This Court held the presumption, in such a context, to be unconstitutional. Later came United States v. Reynolds and United States v. Broughton11 in which the Act of 1867 was sword again. Reynolds and Broughton were indicted under it. The Alabama Code authorized one under some circumstances to become surety for a convict, pay his fine, and be reimbursed by labor. Reynolds and Broughton each got himself a convict to work out fines and costs as a farm hand at $6.00 per month. After a time each convict refused to labor further and, under the statute, each was convicted for the refusal. This Court said, “Thus, under pain of recurring prosecutions, the convict may be kept at labor, to satisfy the demands of his employer.” It held the Alabama statute unconstitutional and employers under it subject to prosecution. In Taylor v. Georgia11 12 the Federal Act was again applied as a shield, against conviction by resort to the presumption, of a Negro laborer, under a Georgia statute in effect like the one before us now. We made no effort to separate valid from invalid elements in the statute, although the substantive and procedural provisions were, as here, in separate, and separately numbered, sections. We said, “We think that the sections of the Georgia Code upon which this conviction rests are repugnant to the Thirteenth Amendment and to the Act of 1867, and that the conviction must therefore be reversed.” Only recently in a case from Northern Florida a creditor-employer was indicted under the Federal Act for arresting a debtor to peonage, and we sustained the indictment. United States v. Gaskin.13 These cases decided by this Court under the Act of 1867 came either from Florida or one of the adjoining states. 11235U.S. 133 (1914). 12315U.S.25 (1942). 13 320 U.S. 527. POLLOCK v. WILLIAMS. 11 4 Opinion of the Court. And these were but a part of the stir caused by the Federal Antipeonage Act and its enforcement in this same region.14 * This is not to intimate that this section, more than others, was sympathetic with peonage, for this evil has never had general approval anywhere, and its sporadic appearances have been neither sectional nor racial. It is mentioned, however, to indicate that the Legislature of Florida acted with almost certain knowledge in designing its successive “labor fraud” acts in relation to our series of peonage decisions. The present Act is the latest of a lineage, in which its antecedents were obviously associated with the practice of peonage. This history throws some light on whether the present state act is one “by virtue of which any attempt shall hereafter be made” to “enforce involuntary servitude,” in which event the Federal Act declares it void. In 1891, the Legislature created an offense of two elements: obtaining money or property upon a false promise to perform service, and abandonment of service without just cause and without restitution of what had been obtained.16 In 1905, this Court decided Clyatt v. United States, indicating that any person, including public officers, 14 See Peonage Cases, 123 F. 671; United States v. Eberhart, 127 F. 252; United States v. McClellan, 127 F. 971; In re Peonage Charge, 138 F. 686; Ex parte Drayton, 153 F. 986; Taylor v. United States, 244 F. 321. 16 “Any person in the State of Florida, who by false promises and with the intent to injure or defraud, obtains from another, any money or personal property, or any person who has entered into a written contract, with, at the time, the intent to defraud, to do or to perform any act or service, and in consideration thereof, obtains from the hirer, money or other personal property, and who abandons the service of said hirer without just cause, without first re-paying such money or paying for such personal property, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine not less than five nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days, nor more than one year, or both fine and imprisonment.” Florida Laws 1891, c. 4032. 12 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. even if acting under state law, might be guilty of violating the Federal Act. In 1907, the Florida Legislature enacted a new statute, nearly identical in terms with that of Alabama.16 In 1911, in Bailey v. Alabama, this Court held such an act unconstitutional. In 1913, the Florida Legislature repealed the 1907 act, but re-enacted in substance the section denouncing the crime, omitting the presumption of intent from the failure to perform the service or make restitution.17 In 1919, the Florida Supreme Court 16 It provided: “Section 1. That from and after the passage of this act any person in the State of Florida, who shall contract with another to perform for him services of any kind with intent to procure money, or other thing of value thereby, and not to perform the service contracted for, or whoever, after having so contracted, shall obtain or procure from the hirer money or other thing of value, with intent not to perform such service, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine of not more than one thousand dollars or by imprisonment in the county jail not more than one year, or by both fine and imprisonment. “Sec. 2. That satisfactory proof of the contract, the procuring thereon of money or other thing of value, the failure to perform the services so contracted for, or failure to return the money so advanced with interest thereon at the time said labor or service was to be performed, without good and sufficient cause, shall be deemed prima facie evidence of the intent referred to in the preceding section.” Florida Laws 1907, c. 5678. 17 “Section 1. Any person in this State who shall contract with another to perform any labor or service and who shall, by reason of such contract and with the intent to injure and defraud, obtain or procure money or other thing of value as a credit or advances from the person so contracted with and who shall, without just cause, fail or refuse to perform such labor or service or fail or refuse to pay for the money or other thing of value so received upon demand, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars or by imprisonment for a period not exceeding six months. “Sec. 2. That Chapter 5678, Acts of 1907, be and the same is hereby repealed. “Sec. 3. That all laws in conflict with the provisions of this Act are hereby repealed.” Florida Laws 1913, c. 6528. POLLOCK v. WILLIAMS. 13 4 Opinion of the Court. held this act, standing alone, void under the authority of Bailey v. Alabama.16 Whereupon, at the session of 1919, the present statute was enacted, including the prima facie evidence provisions, notwithstanding these decisions by the Supreme Court of Florida and by this Court. The Supreme Court of Florida later upheld a conviction under this statute on a plea of guilty, but declined to pass on the presumption section, because, as in the present case, the plea of guilty was thought to make its consideration unnecessary.19 The statute was re-enacted without substantial change in 1941. Again in 1943 it was re-enacted despite the fact that the year before we held a very similar Georgia statute unconstitutional in its entirety.20 II. The State contends that we must exclude the prima fade evidence provision from consideration because in • fact it played no part in producing this conviction. Such was the holding of the State Supreme Court. We are not concluded by that holding, however, but under the circumstances are authorized to make an independent determination.21 18 Goode v. Nelson, 73 Fla. 29,74 So. 17. “As ‘involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted,’ is forbidden ‘within the United States’ by the Federal Constitution, a crime to be punished by imprisonment cannot lawfully be predicated upon the breach of a promise to perform labor or service.” 73 Fla. at 32. 19 Phillips v. Bell, 84 Fla. 225, 94 Sb. 699. In this case no reference was made to the prior decision of the Florida court in Goode v. Nelson, supra note 18. 20 Florida Statutes (1941) §§817.09, 817.10; Florida Laws 1943, c. 22000, approved June 10, 1943. Taylor v. Georgia was decided January 12,1942. 315 U. S. 25. 21 “That the question is one of fact does not relieve us of the duty to determine whether in truth a federal right has been denied. When a federal right has been specially set up and claimed in a state court, it is our province to inquire not merely whether it was denied in 14 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. What the prisoner actually did that constituted the crime cannot be gleaned from the record. The charge is cast in the words of the statute and is largely a conclusion. It affords no information except that Pollock obtained $5 from a corporation in connection with a promise to work which he failed to perform, and that his doing so was fraudulent. If the conclusion that the prisoner acted with intent to defraud rests on facts and not on the prima jade evidence provisions of the statute, none are stated in the warrant or appear in the record. None were so set forth that he could deny them. He obtained the money on the 14th of October, 1942, and the warrant was not sought until January 2, 1943. Whether the original advancement was more or less than $5, what he represented or promised in obtaining it, whether he worked a time and quit, or whether he never began work at all are undisclosed. About all that appears is that he obtained an advancement of $5 from a corporation and failed to keep his agreement to work it out. He admitted those facts and the law purported to supply the element of intent. He admitted the conclusion of guilt which the statute express terms but also whether it was denied in substance and effect. If this requires an examination of evidence, that examination must be made. Otherwise, review by this Court would fail of its purpose in safeguarding constitutional rights. Thus, whenever a conclusion of law of a state court as to a federal right and findings of fact are so intermingled that the latter control the former, it is incumbent upon us to analyze the facts in order that the appropriate enforcement of the federal right may be assured.” Norris v. Alabama, 294 U. S. 587, 589. See Lisenba v. California, 314 U. S. 219, 236; Chambers v. Florida, 309 U. S. 227. “Even though the constitutional protection invoked be denied on non-federal grounds, it is the province of this Court to inquire whether the decision of the state court rests upon a fair or substantial basis. If unsubstantial, constitutional obligations may not be thus evaded.” Broad River Power Co. v. South Carolina, 281 U. S. 537, 540; Demorest n. City Bank Farmers Trust Co., 321 U. S. 36. POLLOCK v. WILLIAMS. 15 4 Opinion of the Court. made prima fade thereon. He was fined $20 for each dollar of his debt, and in default of payment was required to atone for it by serving time at the rate of less than 90 per day. Especially in view of the undenied assertions in Pollock’s petition we cannot doubt that the presumption provision had a coercive effect in producing the plea of guilty. The statute laid its undivided weight upon him. The legislature had not even included a separability clause.22 Of course the function of the prima fade evidence section is to make it possible to convict where proof of guilt is lacking. No one questions that we clearly have held that such a presumption is prohibited by the Constitution and the federal statute. The Florida Legislature has enacted and twice re-enacted it since we so held. We cannot assume it was doing an idle thing. Since the presumption was known to be unconstitutional and of no use in a contested case, the only explanation we can find for its persistent appearance in the statute is its extra-legal coercive effect in suppressing defenses. It confronted this defendant. There was every probability that a law so recently and repeatedly enacted by the legislature would be followed by the trial court, whose judge was not required to be a lawyer. The possibility of obtaining relief by appeal was not bright, as the event proved, for Pollock had to come all the way to this Court and was required, and quite regularly, to post a supersedeas bond of $500, a hundred times the amount of his debt. He was an illiterate Negro laborer in the toils of the law for the want of $5. Such considerations bear importantly on the decision of a prisoner even if aided by counsel, as Pollock was not, whether to plead guilty and hope for leniency or to fight. It is plain that, had his plight after conviction 22 The Florida Legislature has made use of separability clauses where separability was the desire. See Florida Laws 1919, cc. 7808, 7936. 16 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. not aroused outside help, Pollock himself would have been unheard in any appellate court. In the light of its history, there is no reason to believe that the law was generally used or especially useful merely to punish deceit. Florida has a general and comprehensive statute making it a crime to obtain money or property by false pretenses23 or commit “gross fraud or cheat at common law.”24 25 These appear to authorize prosecution for even the petty amount involved here.26 We can conceive reasons, even if unconstitutional ones, which might lead well-intentioned persons to apply this Act as a means to make otherwise shiftless men work,26 but if in addition to this general fraud protection employers as a class are so susceptible to imposition that they need extra legislation, or workmen so crafty and subtle as to constitute a special menace, we do not know it, nor are we advised of such facts. We think that a state which maintains such a law in face of the court decisions we have recited may not be heard to say that a plea of guilty under the circumstances is not due to pressure of its statutory threat to convict him on the presumption. As we have seen, Florida persisted in putting upon its statute books a provision creating a presumption of fraud 23 Florida Statutes (1941) §817.01. 24 Florida Statutes (1941) §817.29. 25 These statutes earry permissible maximum punishment such, however, that they may be prosecuted only in courts presided over by judges required to be lawyers and where presumably defendant’s rights are more accurately observed. See Florida Constitution, Art. V, §§ 3, 17; Florida Statutes (1941) §§ 32.05, 33.03, 36.01. 26 Dr. Albert Bushnell Hart in The Southern South, after reviewing and unsparingly condemning evidences of peonage in some regions, says, “Much of the peonage is simply a desperate attempt to make men earn their living. The trouble is that nobody is wise enough to invent a method of compelling specific performance of a labor contract which shall not carry with it the principle of bondage.” P. 287. POLLOCK v. WILLIAMS. 17 4 Opinion of the Court. from the mere nonperformance of a contract for labor service three times after the courts ruled that such a provision violates the prohibition against peonage. To attach no meaning to such action, to say that legally speaking there was no such legislation, is to be blind to fact. Since the Florida Legislature deemed these repeated enactments to be important, we take the Legislature at its own word. Such a provision is on the statute books for those who are arrested for the crime, and it is on the statute books for us in considering the practical meaning of what Florida has done. In the view we take of the purpose and effect of this prima jade evidence provision it is not material whether as matter of state law it is regarded as an independent and severable provision. III. We are induced by the evident misunderstanding of our decisions by the Florida Supreme Court, in what we are convinced was a conscientious and painstaking study of them, to make more explicit the basis of constitutional invalidity of this type of statute. The undoubted aim of the Thirteenth Amendment as implemented by the Antipeonage Act was not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States. Forced labor in some special circumstances may be consistent with the general basic system of free labor. For example, forced labor has been sustained as a means of punishing crime,27 and there are duties such as work on 27 United States v. Reynolds, 235 U. S. 133, 149; Loeb n. Jennings, 133 Ga. 796, 67 8. E. 101, affirmed on other grounds, 219 U. S. 582; Dunbar v. Atlanta, 7 Ga. App. 434, 67 8. E. 107. Cf. Chicago v. Williams, 254 Ill. 360, 98 N. E. 666; Chicago v. Coleman, 254 Ill. 338, 98 N.. E. 521. 18 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. highways28 which society may compel. But in general the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers. When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work. Resulting depression of working conditions and living standards affects not only the laborer under the system, but every other with whom his labor comes in competition. Whatever of social value there may be, and of course it is great, in enforcing contracts and collection of debts, Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free from compulsory service. This congressional policy means that no state can make the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor. The federal statutory test is a practical inquiry into the utilization of an act as well as its mere form and terms. Where peonage has existed in the United States it has done so chiefly by virtue of laws like the statute in question. Whether the statute did or did not include the presumption seems to have made little difference in its practical effect. In 1910, in response to a resolution of the House of Representatives, the Immigration Commission reported the results of an investigation of peonage among immigrants in the United States.29 It found that no general system of peonage existed, and that sentiment did not support it anywhere. On the other hand, it found sporadic cases of probable peonage in every state in the Union except Oklahoma and Connecticut. It pointed out that “there has probably existed in Maine the most com- 28 Butler v. Perry, 240 U. S. 328. 29 Report on Peonage, Abstracts of Reports of the Immigration Commission, Vol. II, p. 439, Sen. Doc. No. 747, 61st Cong., 3d Sess. POLLOCK v. WILLIAMS. 19 4 Opinion of the Court. plete system of peonage in the entire country,” in the lumber camps.80 In 1907, Maine enacted a statute, applicable only to lumber operations but in its terms very like the section of the Florida statute we are asked to sep- 30 * * * * * * 30 The operation of the system is described as follows: “In late years the natives who formerly supplied the labor for the logging concerns in that State have been engaged in the paper mills, and the lumber companies have been compelled to import laborers, largely foreigners, from other States. Boston is the chief labor market for the Maine forests. The employment agents misrepresent conditions in the woods, and frequently tell the laborers that the camps will be but a few miles from some town where they can go from time to time for recreation and enjoyment. Arriving at the outskirts of civilization the laborers are driven in wagons a short distance into the forests and then have to walk sometimes 60 or 70 miles into the interior, the roads being impassable for vehicles. The men will then be kept in the heart of the forest for months throughout the winter, living in a most rugged fashion and with no recreation whatever. A great many of them have rebelled against this treatment, and they have left their employers by the score. The lumbermen having advanced transportation and supplies have appealed to the legislature for protection. In February, 1907, a bill became a law making it a crime for a person to— enter into an agreement to labor for any lumbering operation or in driving logs and in consideration thereof receive any advances of goods, money, or transportation, and unreasonably and with intent to defraud, fail to enter into said employment as agreed and labor a sufficient length of time to reimburse his employer for said advances and expenses. Judges in municipal courts and trial justices were given jurisdiction to try cases under this law, and the act provided that it would take effect immediately upon approval. When this bill was before the legislature, requests were made by citizens interested in factories and other industries that the provisions of the statute be made to protect all employers of labor. The attorney who introduced the bill on behalf of the lumber interests which he represented, has stated that he had refused to accede to these requests, inasmuch as he believed the provision should not be extended. The protection granted by the statute, therefore, was restricted to a favored class, persons interested in ‘lumbering operations and in driving logs.’ ” Peonage Report, supra note 29, p. 447. 20 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. arate and save. The law was enforcible in local courts not of record. The Commission pointed out that the Maine statute, unlike that of Minnesota31 and the statutes of other states in the West and South, did not contain a prima facie evidence provision. But as a practical matter the statute led to the same result.32 81 Minnesota Stat. (1941) § 620.64. 32 “There is no provision in the Maine statute that— the failure or refusal of any employee to perform such labor or render such services in accordance with his contract or to pay in money the amount for such transportation or such advancement shall be prima facie evidence of his intent to defraud; as appears in the contract-labor law of Minnesota and in the statutes of other States in the West and the South. However, justices of the peace in Maine have decided indiscriminately that, in order to obtain a conviction under the law of that State, it is necessary to show only that the laborer obtained the ‘advances’ and failed ‘to labor a sufficient length of time to reimburse his employer.’ “A justice at Houlton, Maine, who is a lawyer by profession, told the attorney representing the peonage committee that he decided in cases brought under the contract-labor law that ‘the burden of proof is upon the defendant,’ who must show to the court ‘beyond a reasonable doubt that he had no intent to defraud.* This justice added that once in a while if a laborer has a really good excuse he will let him off, as he believes ‘every man has some rights, although he may be poor.’ Another justice of the peace at Patten, Maine, stated that if it was shown that a laborer had obtained the advances and had not worked sufficiently to settle for them he found the defendant guilty without considering the question of intent to defraud. This seems to be the general attitude of the rural justices of Maine toward the contract-labor law. “Considerable peonage has resulted from this statute. The law has been vigorously enforced. Soon after its passage prosecutions were commenced in the lumber regions, and the jail at Dover, the county seat of one of the large lumber counties of Maine, was crowded with laborers convicted of defrauding their employers out of ‘advances of goods, money, or transportation.’ “Involuntary servitude results in utilizing this statute to intimidate laborers to work against their will. On account of the vigorous methods pursued in enforcing the above-described law, it soon became POLLOCK v. WILLIAMS. 21 4 Opinion of the Court. The fraud which such statutes purport to penalize is not the concealment or misrepresentation of existing facts, such as financial condition, ownership of assets, or data relevant to credit. They either penalize promissory representations which relate to future action and conduct or they penalize a misrepresentation of the present intent or state of mind of the laborer.83 In these “a hair perhaps divides the false and true.” Of course there might be provable fraud even in such matters. One might engage for the same period to several employers, collecting an advance from each, or he might work the same trick of hiring out and collecting in advance again and again, or otherwise provide proof that fraud was his known throughout the lumber region of Maine that any laborer was liable to imprisonment who refused to work according to the provisions of his contract until he had settled for all advances, no matter what misrepresentations may have been made to induce him to enter into the agreement. The contract-labor law has become a club which the foremen and superintendents draw upon the laborers who refuse to go to work or to continue at work. If a man leaves his employer before settling for advances, he will be pursued and apprehended, or someone will telephone to the constable, who will arrest the laborer. He will then be brought before the justice, and ‘sent down the river,’ to prison; or if he consents to labor until he shall have reimbursed for all advances and the fine and cost of the prosecution, the employer will settle with the court and constable and will take the laborer back into the forest. No doubt many of the laborers never attempt to escape, although they may consider that they have been basely deceived about the conditions of labor.” Peonage Report, supra note 29, pp. 448-49. 33 The Court at one time said, “The law gives a different effect to a representation of existing facts, from that given to a representation of facts to come into existence. To make a false representation the subject of an indictment, or of an action, two things are generally necessary, viz., that it should be a statement likely to impose upon one exercising common prudence and caution, and that it should be the statement of an existing fact. A promissory statement is not, ordinarily, the subject either of an indictment or of an action.” Sawyer v. Prickett, 19 Wall. 146,160. 22 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. design and purpose. But in not one of the cases to come before this Court under the antipeonage statute has there been evidence of such subtlety or design. In each there was the same story, a necessitous and illiterate laborer, an agreement to work for a small wage, a trifling advance, a breach of contract to work. In not one has there been proof from which we fairly could say whether the Negro never intended to work out the advance, or quit because of some real or fancied grievance, or just got tired. If such statutes have ever on even one occasion been put to a worthier use in the records of any state court, it has not been called to our attention. If this js the visible record, it is hardly to be assumed that the off-the-record uses are more benign. It is a mistake to believe that in dealing with statutes of this type we have held the presumption section to be the only source of invalidity. On the contrary, the substantive section has contributed largely to the conclusion of unconstitutionality of the presumption section. The latter in a different context might not be invalid. Indeed, we have sustained the power of the state to enact an almost identical presumption of fraud, but in transactions that did not involve involuntary labor to discharge a debt. James-Dickinson Farm Mortgage Co. v. Harry:84 Absent this feature any objection to prima facie evidence or presumption statutes of the state can arise only under the Fourteenth Amendment, rather than under the Thirteenth. In deciding peonage cases under the latter this Court has been as careful to point out the broad power of the state to create presumptions as it has to point out its power to punish frauds. It “has frequently recognized the general power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence in the courts of its own government. In the exercise of this 34 273 U. S. 119. POLLOCK v. WILLIAMS. 23 4 Opinion of the Court. power numerous statutes have been enacted providing that proof of one fact shall be prima facie evidence of the main fact in issue; and where the inference is not purely arbitrary and there is a rational relation between the two facts, and the accused is not deprived of a proper opportunity to submit all the facts bearing upon the issue, it has been held that such statutes do not violate the requirements of due process of law.” Bailey v. Alabama.35 36 But the Court added that “the State may not in this way interfere with matters withdrawn from its authority by the Federal Constitution or subject an accused to conviction for conduct which it is powerless to proscribe.”38 And it proceeded to hold that the presumption, when coupled with the other section, transgressed those limits, for while it appeared to punish fraud the inevitable effect of the law was to punish failure to perform labor contracts. In Taylor v. Georgia both sections of the Act were held unconstitutional. There the State relied on the presumption to convict. But it was not denied that a state has power reasonably to prescribe the prima facie inferences to be drawn from circumstantial evidence. It was the substance of the crime to establish which the presumption was invoked that gave a forbidden aspect to that method of short-cutting the road to conviction. The decision striking down both sections was not, as the Supreme Court of Florida thought, a casual and unconsidered use of the plural. Mr. Justice Byrnes knew whereof he spoke; unconstitutionality inhered in the substantive quite as much as in the procedural section and no part of the invalid statute could be separated to be salvaged. Where in the same substantive context the State threatens by statute to convict on a presumption, its inherent coercive power is such that we are constrained to hold that it is equally use 55 219 U. S. 219,238. 36 219 U. S. 219,239. 24: OCTOBER TERM, 1943. Opinion of the Court. 322U.S. ful in attempts to enforce involuntary service in discharge of a debt, and the whole is invalid. It is true that in each opinion dealing with statutes of this type this Court has expressly recognized the right of the state to punish fraud, even in matters of this kind, by statutes which do not either in form or in operation lend themselves to sheltering the practice of peonage. Deceit is not put beyond the power of the state because the cheat is a laborer nor because the device for swindling is an agreement to labor. But when the state undertakes to deal with this specialized form of fraud, it must respect the constitutional and statutory command that it may not make failure to labor in discharge of a debt any part of a crime. It may not directly or indirectly command involuntary servitude, even if it was voluntarily contracted for. From what we have said about the practical considerations which are relevant to the inquiry whether any particular state act conflicts with the Antipeonage Act of 1867 because it is one by which “any attempt shall hereafter be made to establish, maintain or enforce” the prohibited servitude, it is apparent that we should not pass on hypothetical acts. Reservation of the question of the validity of an act unassociated with a presumption now, as heretofore, does not denote approval. The Supreme Court of Florida has held such an act standing alone unconstitutional.37 A considerable recorded experience would merit examination in relation to any specific labor fraud act.38 We do not enter upon the inquiry further than the Act before us. 37 Goode v. Nelson, supra note 18. 38 On the practical effect of such laws as amounting to the existence of involuntary servitude in the United States, see: Peonage, Encyclopedia of Social Sciences; Commons & Andrews, Principles of Labor Legislation, p. 37; Wilson, Forced Labor in the United States, Chapters VI and VII; “Report of Chas. W. Russell, Assistant Attorney General, Relative to Peonage Matters,” in Report of Attorney General (1937) p. 207; and Report of Immigration Commission, supra note 29. POLLOCK v. WILLIAMS. 25 4 Reed, J., dissenting. Another matter deserves notice. In Bailey v. Alabama it was observed that the law of that state did not permit the prisoner to testify to his uncommunicated intent, which handicapped him in meeting the presumption. In Taylor v. Georgia the prisoner could not be sworn, but could and did make a statement to the jury. In this Florida case appellee is under neither disability, but is at liberty to offer his sworn word as against presumptions. These distinctions we think are without consequence. As Mr. Justice Byrnes said in Taylor v. Georgia, the effect of this disability “was simply to accentuate the harshness of an otherwise invalid statute.” We impute to the Legislature no intention to oppress, but we are compelled to hold that the Florida Act of 1919 as brought forward on the statutes as §§ 817.09 and 817.10 of the Statutes of 1941 are, by virtue of the Thirteenth Amendment and the Antipeonage Act of the United States, null and void. The judgment of the court below is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Reed, dissenting: The Thirteenth Amendment to the Constitution of the United States reads as follows: “Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. “Section 2. Congress shall have power to enforce this article by appropriate legislation.” To meet the problem of peonage, that is, “compulsory service in payment of a debt,”1 Congress enacted the legislation set out in note 8 of the Court’s opinion which de 1 Bailey v. Alabama, 219 U. S. 219,242. 26 OCTOBER TERM, 1943. Reed, J., dissenting. 322U.S. dared invalid laws of a state by virtue of which involuntary service is enforced or attempted to be enforced in liquidation of any debt. This Court reiterates today in accordance with its previous rulings that the second section of the Florida statute, § 817.10 set out in note 1 of today’s opinion, is invalid under the Thirteenth Amendment and the Federal Act because this second section enforces labor by fear of conviction of the crime denounced in the first section. The second section provides that a refusal to perform labor for which one has contracted and been paid in advance is prima facie evidence of an intent to defraud under the first section which makes it a crime to obtain money with intent to defraud under a contract to perform labor. This conclusion is accepted as a proper interpretation of the Federal prohibitions. In the effort to obliterate compulsory labor to satisfy a debt, Congress may invalidate a state law which coerces that labor by fear of a conviction obtained by a presumption of law which may be false in fact. Taylor v. Georgia, 315 U. S. 25. However much peonage may offend our susceptibilities, and however great our distaste for a statute which is capable of use as a means of imposing peonage on the working man, the present statute is, in this Court, no more immune than any other which a state may enact, from the salutary requirement that its constitutionality must be presumed, and that the burden rests on him who assails it, on constitutional grounds, to show that it is either unconstitutional on its face or that it has been or will be in fact so applied as to deny his constitutional rights. This Court now holds, as it has held before, that when the presumption section is applied in the trial of a criminal charge under the substantive section, both are invalid and a conviction thus obtained by resort to a presumption of law which may be false in fact, cannot be sustained. But the Court’s opinion fails to bridge the gap between POLLOCK v. WILLIAMS. 27 4 Reed, J., dissenting. these earlier decisions of the Court and its present conclusion that the substantive provision, when resorted to alone as the basis for a sentence on an admission of guilt, is likewise invalid, because of the mere existence of the presumption section. Whether this conclusion rests upon the ground that the State of Florida cannot constitutionally make it a penal offense for a laborer fraudulently to procure advances of wages for which he intends to render no service or upon the ground that the presumption section has in fact operated in this case to coerce petitioner’s plea of guilty, the one is plainly without support in law and the other is without support in the record. So far as the decision of the Court rests on the ground that the substantive section is unconstitutional on its face, the decision necessarily proceeds on the assumption that because of the Thirteenth Amendment a state is without power to punish a workman who fraudulently procures an advance of a wage when he intends not to work for it, or that the two sections in law and in fact are inseparable in their application so that the substantive section is tainted by the presumption section, although in this case it is not shown to have influenced the plea of guilty. We are given no constitutional reason for saying that a state may not punish the fraudulent procurement of an advance of wages as well as the giving of a check drawn on a bank account in which there are no funds, or any other course of conduct which the common law has long recognized, as the procuring of money or property by fraud or deceit. There is of course no constitutional reason why Florida should not punish fraud in labor contracts differently from fraud in other classes of contracts. Legislation need not seek to correct every abuse by a single enactment. The state may select its objective. Whitney v. California, 274 U. S. 357,370; Tigner v. Texas, 310 IT. S. 28 OCTOBER TERM, 1943. w Reed, J., dissenting. 322U.S. 141,149. The Constitution does not require that all persons should be treated alike but only that those in the same class shall receive equal treatment. Not only has the Supreme Court of Florida held as a matter of law that the two sections of the statute now before us are separable,2 but it is obvious that as a matter of law the presumption section is not called into operation where, as here, the accused does not go to trial but pleads guilty to the substantive charge. In rejecting these conclusions as to the separability of the two sections, we take it that the Court is not rejecting the Supreme Court of Florida’s interpretation of the Florida statute, but rather that it concludes as a matter of fact that the presumption section is so all-pervasive in its operation that we must 2 The Supreme Court of Florida said: “This is not the first challenge of the act which has appeared in this court. The identical matter was considered in Phillips v. Bell, 84 Fla. 225, 94 So. 699, where the court concluded that the portion of the law defining the crime was harmonious with the Thirteenth Amendment, and observed, without deciding the point, that if the part referring to the prima facie character of certain evidence should be pronounced unconstitutional the ruling would not affect the remainder.” The court then took up Bailey v. Alabama, 211 U. S. 452, and noted as to it: “We think it very significant that the court remarked upon the lack of doubt that the offenses defined could be made a crime. Gist of the decision, as we understand it, was, summarizing, that the part of the law describing the crime and the one providing for the presumption were not interdependent and that if, in the prosecution, the state did not resort to the latter the validity of the former would be unaffected.” Later, speaking of our opinion in the Taylor case, the Florida court said: “The section anent presumptive evidence had been relied upon to secure a conviction, so the court again had for determination the question of the constitutionality of the first section when the second was brought into play. Not being faced with that problem here we conclude that the first Bailey decision and ours in Phillips v. Bell are in accord and that they in turn are not in conflict with the rulings in the second Bailey case and Taylor v. Georgia, supra” POLLOCK v. WILLIAMS. 29 4 Reed, J., dissenting. conclude without further proof that it so operated in petitioner’s case as to coerce his plea of guilty to the charge of violating the substantive section. But neither the present record nor any facts of which we can take judicial notice lend support to that conclusion. For all that appears petitioner had no defense to the charge even though the substantive section had stood alone. Unless we are to presume that the statute can only be given an unconstitutional application, we cannot say that petitioner had any defense to the charge of fraud to which he pleaded guilty, and certainly we cannot treat the presumption section as depriving him of a defense which he did not have. The Court apparently concludes that the enactment and maintenance of the presumption section, after a determination here of its invalidity, makes the entire statute invalid on its face. This result is reached by assuming that the existence of the presumption section coerces involuntary labor under the contract by fear of conviction for violation of the first or substantive section. We cannot properly take judicial notice of such an effect. If pleaded and proven a different situation would emerge. The petition for habeas corpus in this case can hardly be said to go farther than object to conviction on the ground of the unconstitutionality of the Florida statute as a whole. No coercion to plead guilty is alleged. The statements in the petition as to lack of counsel and of knowledge of the elements of the offense are referred to in the Court’s opinion but we do not understand that the Court relies upon them. No use was made of the presumption section at the trial. Petitioner pleaded guilty to the substantive crime. No allegations or proof appear in the record that the Florida statute was used or applied to promote peonage or involuntary servitude of petitioner or to coerce his plea of guilty. The decision is in effect that 30 OCTOBER TERM, 1943. Reed, J., dissenting. 322U.S. because the two sections standing together are capable of being used in violation of the Thirteenth Amendment and the peonage act, each must be taken to be invalid on its face. The presumption of constitutionality of statutes is a safeguard wisely conceived to keep courts within constitutional bounds in the exercise of their extraordinary power of judicial review. It should not be disregarded here. We cannot conclude that a statute which merely punishes a fraud in a contract, as the first section does if considered alone, violates the provision of the Thirteenth Amendment against involuntary servitude or is null and void under 8 U. S. C. § 56 because it is an attempt to enforce compulsory service for a debt. Conviction under the statute results not in peonage, work for a debt, but in punishment for crime, probably in the county workhouse. Cf. United States v. Reynolds, 235 U. S. 133,149. The conception embodied in the Court’s opinion that the fear of conviction for his fraud might compel the defendant to work as agreed is without basis in the record. At any rate, fear of punishment is supposed to be a deterrent to crime. The conviction should be affirmed. The Chief Justice joins in this dissent. U. S. v. MARSHALL TRANSPORT CO. 31 Counsel for Parties. UNITED STATES et al. v. MARSHALL TRANSPORT CO. ET AL. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MARYLAND. No. 589. Argued March 28, 1944.—Decided May 1, 1944. On an application to the Interstate Commerce Commission of two carriers by motor vehicle for permission for one to purchase the property and operating rights of the other, the Commission found that the proposed vendee was controlled through stock ownership by a non-carrier. Held that by the proposed transaction the non-carrier would “acquire control of another carrier through ownership of its stock or otherwise,” within the purview of § 5 (2) (a) of Part I of the Interstate Commerce Act, as amended by the Transportation Act of 1940; that § 5 (2) (b) required that application to the Commission for approval be made by the non-carrier; and that in the absence of an application from the non-carrier the Commission was without authority to approve the transaction. Pp. 37, 41. 52 F. Supp. 1010, reversed. Appeal from a decree of a district court of three judges which set aside an order of the Interstate Commerce Commission, 39 M. C. C. 271. Mr. Daniel H. Kunkel, with whom Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Robert L. Pierce, Walter J. Cummings, Jr., and Daniel W. Knowlton were on the brief, for the United States et al.; and Mr. Charles E. Cotterill, with whom Mr. Harold G. Hemly was on the brief, for the Coastal Tank Lines, Inc. et al.,—appellants. Mr. Robert C. Winter, with whom Messrs. George H. Klein, Bigham D. Eblen, and Harry 8. Elkins were on the brief {Mr. Robert W. Williams entered an appearance), for appellees. 32 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. Mr. Chief Justice Stone delivered the opinion of the Court. On an application to the Interstate Commerce Commission of two carriers by motor vehicle, appellee Refiners Transport Terminal Corporation and appellee Marshall Transport Company, for permission for Refiners to purchase the property and operating rights of Marshall, the Commission found that Refiners, the vendee-carrier, was controlled through stock ownership by a non-carrier, Union Tank Car Company, and that the proposed purchase would result in the acquisition by Union of control of the property and business of Marshall. Construing §§5(2) (a) and (b) of Part I of the Interstate Commerce Act, 24 Stat. 379, as amended by the Transportation Act of 1940, 54 Stat. 905, 49 U. S. C. §§ 5 (2) (a) and (b), as requiring the application to be made by Union, the noncarrier corporation controlling Refiners, the Commission denied the application of the carriers for lack of power in the Commission to approve the purchase. The questions for our decision are (1) whether the acquisition of the property and franchises of one carrier by another, which is controlled by a non-carrier, involves the acquisition of control of the first or vendor-carrier by the non-carrier for which the Commission’s approval is required by § 5 (2) (a) of the Interstate Commerce Act; and if so (2) whether the Commission rightly held that under § 5 (2) (b) of the Act it could not consider the propriety of the transaction in the absence of an application by the non-carrier for the Commission’s authority to acquire control. Appellee Refiners holds certificates of public convenience and necessity from the Interstate Commerce Commission to operate as a common carrier, by motor vehicle, of gasoline and petroleum products in Pennsylvania and eight of the central states. Refiners, as the Commission U. S. v. MARSHALL TRANSPORT CO. 33 31 Opinion of the Court. found, is controlled through ownership of 82.6% of its outstanding common stock by Union Tank Car Company, a non-carrier corporation. Marshall, a corporation, holds a certificate of public convenience and necessity under the grandfather clause, § 206 of the Interstate Commerce Act, 49 U. S. C. § 306, authorizing carriage, as a common carrier, of petroleum products, in bulk in tank trucks, over irregular routes in Maryland, Delaware, Pennsylvania, Virginia, and Washington, D. C. By their joint application Refiners and Marshall sought authority of the Commission under § 5 (2) (a) for Refiners to acquire by purchase the operating property and rights of Marshall. After a hearing on the application, in which nine motor carriers, co-appellants here, appeared as protestants, and the Antitrust Division of the Department of Justice intervened, Division 4 of the Commission issued its report finding that the proposed purchase was within the scope of § 5 (2) (a) and (b) and would be consistent with the public interest. It overruled contentions of the protestants that the proposed purchase would result in the acquisition of control of Marshall by Union, the non-carrier, through its control of Refiners, the purchaser, so as to require that Union join in the application. 39 M. C. C. 93. On petition for rehearing the Commission reversed the holding of Division 4. It concluded that as Union, the non-carrier, already controlled one carrier, Refiners, the purchase of the property and business of Marshall by Refiners would result in their control by Union, and that under §§5(2) (a) and (b) and related sections this could not be done without an application by Union for the Commission’s authority to do so. 39 M. C. C. 271. Union having failed to apply for that authority within the twenty days allowed for that purpose by the Commission’s order, the Commission dismissed the pending application of Refiners and Marshall. Upon the suit of appel- 34 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. lees the District Court for Maryland, three judges sitting, set aside the Commission’s order, Circuit Judge Soper dissenting, 52 F. Supp. 1010, and the case comes here on appeal under 28 U. S. C. §§ 47 (a), 345. Section 5 (2) (a) of the Act, makes it “lawful, with the approval and authorization of the Commission ... for two or more carriers to consolidate or merge their properties or franchises . . . into one corporation for the ownership, management, and operation of the properties theretofore in separate ownership; or for any carrier ... to purchase . . . the properties ... of another; ... or for a person which is not a carrier and which has control of one or more carriers to acquire control of another carrier through ownership of its stock or otherwise.” Section 5 (2) (b) provides that “Whenever a transaction is proposed under subparagraph (a), the carrier or carriers or person seeking authority therefor shall present an application to the Commission. . . .” And § 5 (3) provides that “Whenever a person which is not a carrier is authorized, by an order entered under paragraph (2), to acquire control of any carrier or of two or more carriers, such person thereafter shall, to the extent provided by the Commission in such order, be considered as a carrier subject to” specified provisions of the Act, relating mainly to the keeping of accounts, the making of reports, access to records, the issuance of securities and the assumption of liabilities. Section 5 (4) makes it “unlawful for any person, except as provided in paragraph (2), to enter into any transaction within the scope of subparagraph (a) thereof, or to accomplish or effectuate, or to participate in accomplishing or effectuating, the control or management in a common interest of any two or more carriers, however such result is attained, whether directly or indirectly, by use of ... a holding or investment company or companies, a voting trust or trusts, or in any other manner whatsoever. . . . As used in this paragraph and paragraph (5), the words U. S. v. MARSHALL TRANSPORT CO. 35 31 Opinion of the Court. ‘control or management’ shall be construed to include the power to exercise control or management.” In determining whether, under the non-carrier control clause of § 5 (2) (a), Union, the non-carrier here, is required to file an application with the Commission, the issue turns on the questions whether, within the meaning of the statute, Union is by the proposed transaction attempting to “acquire control” of Marshall and, if so, whether Union is within the requirement of § 5 (2) (b) that the person seeking the authority of the Commission to acquire such control shall present his application to the Commission. In answering these questions the District Court thought that the several instances specified by § 5 (2) (a), in which the Commission is authorized to permit acquisition of carrier control, are separate and independent of each other so that, the Commission having full authority to authorize Refiners to purchase Marshall under the merger and purchase provisions of § 5 (2) (a), its authority in that respect is not limited or superseded by the non-carrier control provision appearing later in the subparagraph and that provision is therefore inapplicable. In any case, the District Court concluded that these provisions are permissive only, giving the Commission authority to act with respect to any one without regard to the restriction imposed by any other. Since Refiners’ and Marshall’s application to the Commission for approval of Refiners’ purchase of Marshall’s property and operating rights are within the permissive authority of the Commission under the purchase provision of § 5 (2) (a), the Court thought that it was not necessary for Union to comply with the non-carrier provision and with the requirement of § 5 (2) (b) by joining in the application even though the non-carrier provision would otherwise be applicable to the transaction. But this overlooks the fact, which the Commission thought controlling, that the present transaction may fall 36 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. within both the purchase provision and the non-carrier control provision of the statute since it involves not only the purchase of Marshall by Refiners but also the acquisition of control of Marshall by Union, through its control of Refiners. The question then is not whether the noncarrier control provision limits or supersedes the purchase provision but whether, as the Commission thought, both apply, and if so the extent to which they restrict the Commission’s authority to approve the acquisition of control by a non-carrier which has not filed an application pursuant to § 5 (2) (b). As a matter of statutory construction it does not follow that such parts of the proposed transaction in this case as are subject to the requirement of the non-carrier control provision can escape that requirement because the transaction also involves a purchase which falls within and satisfies the requirement of the purchase provision of the statute. Section 5 (4) prohibits each of the transactions enumerated in § 5 (2) (a) unless approved by the Commission. And it is plain that if the proposed transaction involves Union’s non-carrier control of Marshall within the meaning of § 5 (2) (a) appropriate application to the Commission for its approval must be made in conformity to § 5 (2) (b). Hence our inquiry must be directed to the nature of the requirement of the non-carrier control provision of the statute and to the question whether if applicable it is satisfied by appellees’ application to the Commission in which Union did not join. It is not doubted that if Union, having control of Refiners, sought to acquire stock control of Marshall, Union would be required by § 5 (2) (b) to apply for the Commission’s authority to do so. But it is said that having control of Refiners, Union may, by procuring Refiners’ compliance with the purchase provisions of the statute alone, extend its control indefinitely to other carriers merely by directing the purchase of their property and U. S. v. MARSHALL TRANSPORT CO. 37 31 Opinion of the Court. business by Refiners, without subjecting itself to the jurisdiction of the Commission as provided in § 5 (3), so long as Union does not act directly as the purchaser of the property1 or of a controlling stock interest in such other carriers. We think that neither the language nor the legislative history of the statute admits of so narrow a construction. Section § 5 (4) makes it unlawful, without the approval of the Commission as provided by § 5 (2) (a), for a person which is not a carrier and which has control of one or more carriers to acquire control of another carrier through ownership of its stock or otherwise. Not only is this language broad enough in terms to embrace the acquisition of control by a non-carrier through the purchase, by a controlled carrier, of the property and business of another carrier, but the legislative history indicates that such was its purpose. Congress, by § 407 of the Transportation Act of 1920, 41 Stat. 480, amended the Interstate Commerce Act so as to provide in § 5 (2) that the Commission should have authority to permit a rail carrier or carriers to acquire control of another by lease or purchase of stock; by § 5 (8) the carriers affected were relieved from the operation of the antitrust laws, and by § 5 (6) the Commission was authorized upon special conditions to approve the actual consolidation of rail carriers. By the 1933 amendment of § 5 (2), 48 Stat. 217, the Commission was given further authority to permit unified control of two separate carriers “through ownership of their stock” and in 1940, § 5 (2) (a) was amended to read as at present by the addition 1 Such an acquisition of operating property, whether or not within § 5 (2) (a), would render the acquiring corporation an operating carrier within §§203 (a) (14)—(16) subject as such to the jurisdiction of the Commission under Part II. Similarly the transfer of the carrier’s operating franchises would be subject to the Commission’s jurisdiction under § 212 (b). 38 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. of the words “or otherwise” to the phrase last quoted, and the section was made applicable to motor carriers, 54 Stat. 905. Section 1 (3) (b) of the Act as amended in 1940 declares that “control” “shall be construed to include actual as well as legal control, whether ihaintained or exercised through or by reason of the method of or circumstances surrounding organization or operation, through or by common directors, officers, or stockholders, a voting trust or trusts, a holding or investment company or companies, or through or by any other direct or indirect means; and to include the power to exercise control.” The Conference Committee Report on the Transportation Act of 1940, H. R. Rep. No. 2832, 76th Cong., 3d Sess., p. 63, points out that this definition of “control” was added in order to make applicable to specified sections of the Act, including § 5, the benefit of the interpretation of this Court in Rochester Telephone Co. v. United States, 307 U. S. 125, 145-6, of the similar definition of “control” in § 2 of the Communications Act of 1934, 48 Stat. 1065, 47 U. S. C. § 152 (b). In that case this Court had emphasized the breadth of the statutory language as embracing every type of control in fact. It had declared that the existence of control must be determined by a regard for the “actualities” of intercorporate relationships and that the Commission’s determinations of fact, if warranted by the record, were conclusive. Here the statute has declared that the non-carrier control to be approved by the Commission is control through stock ownership “or otherwise.” § 5 (2) (a). It has in the broadest terms prohibited the effectuating of “control or management . . ., however such result is attained, whether directly or indirectly, by use of common directors, officers, or stockholders, a holding or investment company . . ., or in any other manner whatsoever.” § 5 (4). “Control or management” is defined to include “the power to exercise control'or management.” § 5 (4). The con- U. S. v. MARSHALL TRANSPORT CO. 39 31 Opinion of the Court. trol or management whose acquisition is prohibited unless the approval of the Commission is secured is that which is obtained “in any . . . manner whatsoever” “however such result is attained, whether directly or indirectly,” § 5 (4). It includes “actual as well as legal control,” § 1 (3) (b), and “the power to exercise control or management,” § 5 (4). Appellees argue that the Commission, in finding that the proposed purchase of the property and franchises of Marshall would be an acquisition of “control” requiring the Commission’s approval under §§ 5 (2) (a) and 5 (4), disregarded the words of the statute which speaks only of acquisition of control of another “carrier,” defined in § 1 (3) (a) as a person, “natural or artificial,” and not of acquisition of control of its property. But such a literal interpretation of the statute ignores its essential object. What § 5 (4) read with § 5 (2) (a) prohibits, unless authorized by the Commission, is the merger by two or more carriers of “their properties or franchises . . . into one corporation for the ownership, management, and operation of the properties theretofore in separate ownership,” and the acquisition by a non-carrier, having control of one carrier, of control of another, or the effectuating in any other manner of “the control or management in a common interest of any two or more carriers.” The statute is thus concerned, not merely with the acquisition of control of one corporation by another, but with the acquisition of control of a corporation which is doing the business of a carrier, because such control is in effect control of its carrier business. Control of that business, which may be effected by stock ownership, may also be “otherwise” effected through a contract of a controlled carrier to purchase the business of the other carrier, if the purchase receives the approval of the Commission. The power thus acquired over the vendor-carrier by the contract of purchase is the power “to exercise control or 40 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. management” over its carrier business which, under § 5 (4), can become effective only with the approval of the Commission. As the Commission pointed out in its report, there can be no more direct or positive manner of obtaining control than by outright purchase of another carrier’s business and property and the purpose of the Act would be defeated if outright purchase, through the medium of a controlled subsidiary carrier, of another carrier’s property and operating rights, were exempted, while control by purchase of stock of the other carrier through the same subsidiary remained within the Act. The Commission also emphasized the fact that, as the motor carrier business is now organized, purchase of the assets and franchises of carriers would be the usual and in many cases the only feasible method of acquiring control of them. It pointed out that many of the businesses are owned by individuals or partnerships, often possessing extensive operating rights. In the case of corporations their stock is usually closely held and they are without outstanding long-term debt obligations. In all these cases a simple and usual method of acquiring control of other carriers is by the cash purchase of their assets and operating rights and the assumption of their liabilities followed by liquidation of the vendor. The Commission concluded, “Proceeding thus through a controlled subsidiary, a non-carrier holding company, or others, may expand at will without becoming subject to our jurisdiction under the construction adopted by the division. We cannot agree to that construction of ‘control’ as used in the act.” 39 M. C. C. at 275. For the reasons which we have stated we think the Commission’s construction of the Act in this respect is correct. The question remains whether the Commission had authority to proceed in the absence of any application by Union. By § 5 (4) any transaction within the scope of U. S. v. MARSHALL TRANSPORT CO. 41 31 Opinion of the Court. subparagraph (a) of paragraph (2) is unlawful except as provided by that paragraph, which includes subparagraph (b). Section 5 (2) (a), read with § 5 (4), requires the acquisition of control to be with the approval of the Commission. And § 5 (2) (b) requires the “person” seeking authority for a transaction covered by subparagraph (a) , here the non-carrier control of Marshall, to present an application to the Commission. The Commission may approve the application “subject to such terms and conditions and such modifications as it shall find to be just and reasonable.” The purpose of these provisions of §§ 5 (2) (b) and 5 (4) is apparent when they are read with § 5 (3), which authorizes the Commission, by its order permitting non-carrier control, to require such noncarrier to be considered a carrier subject to the Act to the extent provided in the order made in conformity to § 5 (3). The control over the non-carrier contemplated by § 5 (3) can be acquired only if the non-carrier subjects itself to the jurisdiction of the Commission by filing its application with the Commission for its approval of such non-carrier control as is provided by § 5 (2) (b). The purpose of § 5 (3) to subject the non-carrier, thus acquiring control, to specified provisions of the Act would be defeated if the non-carrier were not to become subject to the Commission’s order. That is avoided by making it unlawful to acquire non-carrier control save on the non-carrier’s application to the Commission in conformity to § 5 (2) (b) . As appellees’ application to the Commission involved the acquisition of non-carrier control of Marshall by Union, Union was a person seeking authority for such control and as such was required by § 5 (2) (b) to make application to the Commission. To approve the transaction involving such non-carrier control without the application of the non-carrier would be to authorize 42 OCTOBER TERM, 1943. Counsel for Parties. 322U.S. Union’s non-carrier control of Marshall without subjecting the former to the Commission’s jurisdiction as required by § 5 (3). The Commission rightly concluded that it was without authority to approve such control unless Union, the non-carrier, filed its application with the Commission, and since Union failed to do so within the time allowed by the Commission’s order, the Commission properly dismissed the pending application in which Union had failed to join. It was therefore error for the District Court to set aside the Commission’s order and the judgment of the District Court is Reversed. Mr. Justice Roberts is of the opinion that the judgment should be affirmed for the reasons given by the District Court. THE ANACONDA et al. v. AMERICAN SUGAR REFINING CO. certiorari to the circuit court of appeals for the FIFTH CIRCUIT. No. 649. Argued March 29, 1944.—Decided April 24, 1944. The parties to an agreement for arbitration of disputes arising out of a charter party can not by stipulation make unavailable the right of the aggrieved party under § 8 of the United States Arbitration Act to begin his proceeding by “libel and seizure of the vessel . . . according to the usual course of admiralty proceedings.” P. 46. 138 F. 2d 765, affirmed. Certiorari, 321 U. S. 758, to review the reversal of a judgment, 48 F. Supp. 385, dismissing a libel in admiralty. Mr. Cody Fowler for petitioners. Mr. Henry N. Longley, with whom Mr. John W. R. Zisgen was on the brief, for respondent. THE ANACONDA v. AMER. SUGAR CO. 43 42 Opinion of the Court. Mr. Justice Roberts delivered the opinion of the Court. We granted certiorari because this case poses an important question arising under the United States Arbitration Act.1 The question arises in these circumstances. The petitioner Smith-Rowland Company, Inc., as owner, chartered to the respondent, American Sugar Refining Company, the barge “Anaconda” for a voyage from Havana, Cuba, to Port Everglades, Florida. After arrival at the latter port, the respondent filed in a federal district court a libel in personam against the petitioner with a prayer for process of foreign attachment, and in rem against the vessel, which was seized by the marshal. Smith-Rowland Company, Inc., appearing specially, excepted to the jurisdiction of the court, relying on a provision of the charter party which was: “Any and all differences and disputes of whatsoever nature arising out of this charter shall be put to arbitration at the final place of discharge . . . pursuant to the provisions of the United States Arbitration Act . . . except that the provisions of Section 8 thereof shall not apply to any arbitration hereunder.” (Italics supplied.) Section 8 of the Act is: “If the basis of jurisdiction be a cause of action otherwise justiciable in admiralty, then, notwithstanding anything herein to the contrary, the party claiming to be aggrieved may begin his proceeding hereunder by libel and seizure of the vessel . . . according to the usual course of admiralty proceedings, and the court shall then have jurisdiction to direct the parties to proceed with the arbitration and shall retain jurisdiction to enter its decree upon the award.” The court treated the petitioner’s exception as a motion to dismiss, and ordered dismissal1 2 on the ground that it was competent to the parties, while availing themselves of the 1 Act of February 12,1925, c. 213,43 Stat. 883; Title 9 U. S. C. 248F. Supp. 385. 44 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. provisions of the Act rendering arbitration agreements enforceable in courts of admiralty, to preclude resort to the usual process of seizure as security for compliance with any arbitral award. The respondent appealed from the order, and the parties entered a stipulation for value pursuant to which the barge was released from the marshal’s custody. The Circuit Court of Appeals reversed the judgment.3 We hold its action was right. Within the spheres of its operation,—maritime transactions and transactions in commerce, interstate and with foreign nations,—the Arbitration Act rendered a written provision in a contract by the parties to such a transaction, to arbitrate controversies arising thereout, specifically enforceable. Thereby Congress overturned the existing rule that performance of such agreements could not be compelled by resort to courts of equity or admiralty.4 After declaring (§ 2)5 such agreements to be enforceable, Congress, in succeeding sections, implemented the declared policy. By § 3 it provided that “if any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court . . . shall on application of one of the parties stay the trial . . . until such arbitration has been had” if the applicant is not in default in proceeding with such arbitration. The section obviously envisages action in a court on a cause of action and does not oust the court’s jurisdiction of the action, though the parties have agreed to arbitrate. And, it would seem there is nothing to prevent the plaintiff from commencing the action by attachment if such procedure is available 3138 F. 2d 765. 4 See Red Cross Line n. Atlantic Fruit Co., 264 U. S. 109; 120-121, 123. 5 The sections have the same section numbers in Title 9 of the United States Code. THE ANACONDA v. AMER. SUGAR CO. 45 42 Opinion of the Court. under the applicable law. This section deals with suits at law or in equity. The concept seems to be that a power to grant a stay is enough without the power to order that the arbitration proceed, for, if a stay be granted, the plaintiff can never get relief unless he proceeds to arbitration. Section 8, that with which we are especially concerned, deals with the admiralty jurisdiction. It has already been quoted. If the cause of action is one cognizable in admiralty, then, though the parties have agreed to arbitrate, “notwithstanding anything herein [i. e. in the Act] to the contrary” the party claiming to be aggrieved may begin “his proceeding hereunder by libel and seizure,” “according to the usual course of admiralty proceedings,” and the court may direct the parties to proceed with arbitration and retain jurisdiction to enter its decree on the award. Here again the Act plainly contemplates that one who has agreed to arbitrate may, nevertheless, prosecute his cause of action in admiralty, and protects his opponent’s right to arbitration by court order. Far from ousting or permitting the parties to the agreement to oust the court of jurisdiction of the cause of action the statute recognizes the jurisdiction and saves the right of an aggrieved party to invoke it. Finally we turn to § 4, which permits “a party aggrieved by the alleged failure” of his opponent to arbitrate as agreed, to petition any federal court of appropriate jurisdiction at law, in equity or in admiralty, for an order directing that arbitration proceed. Provision is made for framing an issue and trying it as to whether the parties are bound to arbitrate and the entry of an order accordingly. From this provision it is clear that the parties may proceed in an admiralty case without the customary libel and seizure. And it has been so held.6 6 The Aakre, 21F. Supp. 540. 46 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. Section 8 says the aggrieved party, “notwithstanding” the right granted by § 4, may begin a suit in admiralty by libel and seizure. Our question is whether the Act contemplates or permits consensual elimination of the procedure thus saved by the Act and contractual confinement of the aggrieved party’s resort to a court to a petition for an order to arbitrate under § 4. We think the answer must be in the negative. Congress may have thought it wise not to raise doubts under the admiralty clause of the Constitution. It may have thought that in many causes in admiralty if the aggrieved party could not seize the ship of his opponent, an arbitral award would be wholly unenforceable as the vessel might seldom or never again be within the jurisdiction of our courts. But, whatever its reasons, Congress plainly and emphatically declared that although the parties had agreed to arbitrate, the traditional admiralty procedure with its concomitant security should be available to the aggrieved party without in any way lessening his obligation to arbitrate his grievance rather than litigate the merits in court. It is enough that Congress has so declared. We think a party can not stipulate away such a jurisdiction which the legislation declares open as heretofore. The judgment is Affirmed. GREAT NORTHERN INS. CO. v. READ. 47 Counsel for Parties. GREAT NORTHERN LIFE INSURANCE CO. v. READ, INSURANCE COMMISSIONER. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 235. Argued January 31, 1944.—Decided April 24, 1944. 1. On review by certiorari of a judgment of the Circuit Court of Appeals, the respondent may urge in support of the judgment a contention which was sustained by the District Court. P. 49. 2. A foreign insurance company brought suit in the federal district court of Oklahoma against the Insurance Commissioner of Oklahoma, to recover payments made to him pursuant to a state statute which levied a tax of four per cent on premiums received by foreign insurance companies in the State. Section 12665, Oklahoma Statutes of 1931, prescribed a judicial procedure for recovery of money wrongfully collected as taxes. Held: (1) The suit was a suit against the State, and not maintainable without its consent. Eleventh Amendment; Smith v. Reeves, 178 U.S. 436. P. 53. (2) The State had consented to its being sued only in its own courts, and the suit was therefore not maintainable in the federal court. P. 55. 3. A State may limit to its own courts suits against it to recover taxes; and its intent in respect of such suits to submit to the jurisdiction of courts other than those of its own creation must clearly appear. P. 54. 4. Smyth v. Ames, 169 U. S. 466; Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362; and Gunter v. Atlantic Coast Line, 200 U. S. 273, distinguished. P. 55. 136 F. 2d 44, vacated. Certiorari, 320 U. S. 726, to review the affirmance of a judgment dismissing on the merits a suit to recover sums alleged to have been illegally exacted as taxes. Messrs. Charles R. Holton and John A. Johnson, with whom Mr. Herbert R. Tews was on the brief, for petitioner. 48 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. Mr. Fred Hansen, First Assistant Attorney General of Oklahoma, with whom Mr. Randell S. Cobb, Attorney General, was on the brief, for respondent. Mr. John H. Miley filed a brief, as amicus curiae, in support of petitioner. Mr. Justice Reed delivered the opinion of the Court. This writ brings here for review the action of petitioner, a foreign insurance company, to recover taxes paid to respondent, the Insurance Commissioner of Oklahoma, which were levied by § 10478, Oklahoma Statutes 1931, as amended by Chapter 1 (a), Title 36, Session Laws of Oklahoma 1941. This was an annual four per cent tax on premiums received by foreign insurance companies in Oklahoma, and it, together with certain specified fees, was in lieu of all other taxes and fees in Oklahoma. Petitioner paid the tax under protest and, alleging diversity of citizenship, 28 U. S. C. § 41, brought suit against the Insurance Commissioner in the District Court of the United States. The procedure for recovery is laid down by § 12665, Oklahoma Statutes 1931.1 1 “12665. Payment Under Protest Where Relief by Appeal Not Provided—Action to Recover. “In all cases where the illegality of the tax is alleged to arise by reason of some action from which the laws provide no appeal, the aggrieved person shall pay the full amount of the taxes at the time and in the manner provided by law, and shall give notice to the officer collecting the taxes showing the grounds of complaint and that suit will be brought against the officer for recovery of them. It shall be the duty of such collecting officer to hold such taxes separate and apart from all other taxes collected by him, for a period of thirty days and if within such time summons shall be served upon such officer in a suit for recovery of such taxes, the officer shall further hold such taxes until the final determination of such suit. All such suits shall be brought in the court having jurisdiction thereof, and they shall have precedence therein; if, upon final determination of any such suit, the court shall determine that the taxes were illegally collected, as not GREAT NORTHERN INS. CO. v. READ. 49 47 Opinion of the Court. The percentage of premiums due was increased from two to four per cent by the amendment of 1941, effective April 25th of that year. The District Court refused recovery. The Circuit Court of Appeals affirmed. Great Northern Life Insurance Co. v. Read, 136 F. 2d 44. Certiorari was granted on petitioner’s assertion of error in requiring it to pay a tax allegedly discriminatory under the Fourteenth Amendment as compared with the taxation of domestic insurance companies, and also unconstitutional as levied after the company’s admission to the state and on premiums collected during the business year for which a license was already in force. A conflict in principle was suggested with Hanover Fire Insurance Co. v. Harding, 272 U. S. 494. We granted certiorari, 320 IT. S. 726, and asked discussion of the right of petitioner to maintain its suit in a federal court. As we conclude that this suit could not be maintained in the federal court, we do not reach the merits of the issue as to the validity of the tax. The right of petitioner to maintain this suit in a federal court depends, first, upon whether the action is against an individual or against the State of Oklahoma. Secondly, if the action is determined to be against the state, the question arises as to whether or not the state has consented to suit against itself in the federal court. Respondent challenged the right of petitioner to seek relief in the District Court by the defense in its answer that the complaint fails to state a claim upon which relief can be granted. R. C. P. 12 (b) and (e) .* 2 This challenge, being due the state, county or subdivision of the county, the court shall render judgment showing the correct and legal amount of taxes due by such person, and shall issue such order in accordance with the court’s findings, and if such order shows that the taxes so paid are in excess of the legal and correct amount due, the collecting officer shall pay to such person the excess and shall take his receipt therefor.” 2 There is here no want of jurisdiction of the parties or subject matter. We are not passing upon a certification of an issue as to juris 50 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. on the ground that the state had not consented to be sued, was sustained by the District Court. The contention is available here to sustain the judgment on appeal. Le-Tulle v. Scofield, 308 U. S. 415. In Smith v. Reeves, 178 U. S. 436, an action was instituted in the federal trial court by railroad receivers against the defendant “as Treasurer of the State of California” to recover taxes assessed against and paid by the railroad. The proceeding was brought under § 3669 of the California Political Code, as amended by California Statutes (1891) 442, which authorized a suit against the State Treasurer for the recovery of taxes which were illegally exacted. The defendant could demand trial of the action in the Superior Court of the County of Sacramento, California. If the final judgment was against the Treasurer, the Comptroller of the state was directed to draw his warrant on state funds for its satisfaction. As the suit was against a state official as such, through proceedings which were authorized by statute, to compel him to carry out with the state’s funds the state’s agreement to reimburse moneys illegally exacted under color of the tax power, this Court held, p. 439, it was a suit against the state. The state would be required to pay.3 The case therefore is plainly distinguishable from those to recover personally from a tax collector money wrongfully exacted by him under color of state law, Atchison, T. & S. F. Ry. Co. v. O’ Connor, 223 U. S. 280; cf. Matthews v. Rodgers, 284 U. S. 521, 528; to recover under general law possession of specific property likewise wrongfully obtained or held, Tinddl v. Wesley, 167 U. S. 204, 221; Virginia Coupon diction such as arose under the Act of March 3, 1891, § 5, 26 Stat. 827, in Illinois Central R. Co. n. Adams, 180 U. S. 28, 37. If this is a suit against the state, a failure to show the state’s consent to be sued in the face of this answer would be fatal. Cf. Berryessa Cattle Co. v. Sunset Pacific Oil Co., 87 F. 2d 972, 974. 3 Pennoyer v. McConnaughy, 140 U. S. 1, 10. Compare Louisiana v. Jumel, 107 U. S. 711, 726. GREAT NORTHERN INS. CO. v. READ. 51 47 Opinion of the Court. Cases, 114 U. S. 269, 285; United States v. Lee, 106 U. S. 196; to perform a plain ministerial duty, Board of Liquidation v. McComb, 92 U. S. 531, 541; Rolston v. Missouri Fund Comm’rs, 120 U. S. 390, 411; or to enjoin an affirmative act to the injury of plaintiff, Sterling v. Constantin, 287 U. S. 378, 393; Tomlinson v. Branch, 15 Wall. 460; Davis v. Gray, 16 Wall. 203,220; In re Tyler, 149 U. S. 164, 190. Only in Smith v. Reeves was the action authorized by statute against the officer in his official capacity. In the other instances relief was sought under general law from wrongful acts of officials. In such cases the immunity of the sovereign does not extend to wrongful individual action and the citizen is allowed a remedy against the wrongdoer personally. This ruling that a state could not be controlled by courts in the performance of its political duties through suits against its officials has been consistently followed. Chandler n. Dix, 194 U. S. 590; Fitts v. McGhee, 172 U. S. 516, 529; Murray v. Wilson Distilling Co., 213 U. S. 151, 167; Lankford v. Platte Iron Works Co., 235 U. S. 461, 468 et seq.; Ex parteState of New York, No. 1,256 U. S. 490,500; Worcester County Co. v. Riley, 302 U. S. 292, 296, 299. Efforts to force, through suits against officials, performance of promises by a state collide directly with the necessity that a sovereign must be free from judicial compulsion in the carrying out of its policies within the limits of the Constitution. Monaco v. Mississippi, 292 U. S. 313, 320; Louisiana v. Jumel, 107 U. S. 711, 720. A state’s freedom from litigation was established as a constitutional right through the Eleventh Amendment. The inherent nature of sovereignty prevents actions against a state by its own citizens without its consent. Hans v. Louisiana, 134 U. S. 1,10,16. Oklahoma provides for recovery of unlawful exactions paid to its collectors under protest. § 12665 Oklahoma Statutes 1931. Note 1, supra. In our view of this case it 52 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. is unnecessary for us to pass upon whether this method of protecting taxpayers was intended to be exclusive of all other remedies, including actions against an individual who happened to be a tax collector, or whether if it were so intended it would surmount all constitutional objections. Compare Burrill v. Locomobile Co., 258 U. S. 34, and Anniston Mfg. Co. v. Davis, 301U. S. 337,341-43. See also Antrim Lumber Co. v. Sneed, 175 Okla. 47, 49-51, 52 P. 2d 1040,1043-45. A suit against a state official under § 12665 to recover taxes is held to be a suit against the state by Oklahoma and the remedy exclusive of other state remedies. Antrim Lumber Co. n. Sneed, supra, 175 Okla, at 51, 52 P. 2d at 1045. This interpretation of an Oklahoma statute by the Supreme Court of the state accords with our view, as set out above, of the meaning of a suit against a state. Petitioner brought this action against the collector, the Insurance Commissioner, in strict accord with the requirements of § 12665. It alleged that there was no appeal provided by Oklahoma laws from defendant’s action in collecting and gave notice of protest and suit to defendant at the time of payment in the language of the section. By so doing petitioner was relieved of the necessity of establishing that the payment was not voluntary4 and obtained the advantage of a statutory lien lis pendens on the tax payment. By § 12665, Oklahoma creates a judicial procedure for the prompt recovery by the citizen of money wrongfully collected as taxes. It is the sovereign’s method of tax administration. Oklahoma designates the official to be sued, orders him to hold the tax, empowers its courts to 4 Board of Commissioners v. Ward, 68 Okla. 287, 288, 173 P. 1050; Broadwell v. Board of Commissioners, 71 Okla. 162, 163, 175 P. 828; cf. Ward v. Love County, 253 U. S. 17,22; Broadwell v. Carter County, 253 U. S. 25; Carpenter v. Shaw, 280 U. S. 363, 369; Railroad Co. v. Commissioners, 98 U. S. 541,544; Stratton v. St. Louis S. W. Ry. Co., 284 U. S. 530, 532. GREAT NORTHERN INS. CO. v. READ. 53 47 Opinion of the Court. do complete justice by determining the amount properly due and directs its collector to pay back any excess received to the taxpayer. The state provides this procedure in lieu of the common law right to claim reimbursement from the collector. The issue of coercion and duress was eliminated at the pre-trial conference without objection by the petitioner. The section makes sure the taxpayer’s recovery of illegal payments. The section is like the California statute involved in Smith v. Reeves, supra, except for the immaterial difference that the money collected is directed to be held separate and apart by the collector instead of being held in the general funds of the State Treasurer. See § 3669, California Political Code, as amended by California Statutes (1891) 442. In the Reeves case, as here, the suit was against the official, not the individual. The Oklahoma section differs from the Colorado law, § 6, Chapter 211, Session Laws of Colorado 1907, considered in Atchison, T. & S. F. Ry. Co. v. O’Connor, supra, in that the Colorado statute left the taxpayer to his remedy against the collector and merely directed the refund of the tax by the Treasurer in accordance with any judgment or decree which might be obtained. In the O’Connor case, in accordance with the statute, the suit, as this Court’s opinion shows, was against the individual, not the official. We are of the view that the present proceeding under § 12665 is like Smith v. Reeves, a suit against the state. But it is urged that if this is a suit against the state, Oklahoma has consented to this action in the federal court. Cf. Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 391. The principle of immunity from litigation assures the states and the nation from unanticipated intervention in the processes of government, while its rigors are mitigated by a sense of justice which has continually expanded by consent the suability of the sovereign. The history of 54 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. sovereign immunity and the practical necessity of unfettered freedom for government from crippling interferences require a restriction of suability to the terms of the consent, as to persons, courts and procedures. Antrim Lumber Co. v. Sneed, 175 Okla. 47, 52 P. 2d 1040; Patterson n. City of Checotah, 187 Okla. 587,103 P. 2d 97; Beers v. Arkansas, 20 How. 527; Kawananakoa v. Polyblank, 205 U. S. 349; Minnesota v. United States, 305 U. S. 382, 388; United States n. U. S. Fidelity & Guaranty Co., 309 U. S. 506,512? The immunity may, of course, be waived. Clark v. Barnard, 108 U. S. 436, 447. When a state authorizes a suit against itself to do justice to taxpayers who deem themselves injured by any exaction, it is not consonant with our dual system for the federal courts to be astute to read the consent to embrace federal as well as state courts. Federal courts, sitting within states, are for many purposes courts of that state, Madisonville Traction Co. v. Mining Co., 196 U. S. 239, 255, but when we are dealing with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the state’s intention to submit its fiscal problems to other courts than those of its own creation must be found.5 6 The Oklahoma section in question, 12665, was enacted in 1915 as a part of a general amendment to then existing tax laws. Session Laws 1915, p. 149, Chap. 107, Art. One, subdivision B, § 7.7 This subdivision of the act of 1915 is 5 Keif er & Keif er v. R. F. C., 306 U. S. 381, is not to the contrary. When authority to sue is given, that authority is liberally construed to accomplish its purpose. United States v. Shaw, 309 U. S. 495, 501. 6 Cf. Matthews v. Rodgers, 284 U. S. 521, 525. The Federal Government’s consent to suit against itself, without more, in a field of federal power does not authorize a suit in a state court. Stanley v. Schwalby, 162 U. S. 255,270; Minnesota v. United States, 305 U. S. 382, 384, 389. 7 See also Session Laws 1913, Ch. 240, Art. 1, § 7. GREAT NORTHERN INS. CO. v. READ. 55 47 Opinion of the Court. concerned with administrative review of boards of equalization and provides a complete procedure including review by the district and Supreme Court of Oklahoma, as the case may be, which are given authority to affirm, modify or annul the action of the boards. §§ 2 and 3. Section 6 requires the payment of the taxes which fall due, pending administrative review, and provides for recovery of such taxes in accordance with the ultimate finding on review in language practically identical with that of § 7 (§ 12665) here involved. Furthermore, § 12665 gives directions to the Oklahoma officer as to his obligations, requires the court to give precedence to these cases and directs the kind of judgment to be returned, see note 1, supra, which is quite different in language, if not in effect, from the judgment a federal court would render. It is clear to us that the legislature of Oklahoma was consenting to suit in its own courts only. Chandler v. Dix, 194 U. S. 590. Smith v. Reeves, supra, p. 445, holds that an act of a state js valid which limits to its own courts suits against it to recover taxes. There California’s intention to so limit was made manifest by authorizing the state officer to demand trial in the Superior Court of Sacramento County. Atchison, T. & S. F. Ry. Co. v. O’ Connor, considered above at p. 53, is not applicable since it was not a suit against the state. Petitioner urges that Smyth v. Ames, 169 U. S. 466, 517, and Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 391, 392, are precedents which lead to a contrary conclusion on this issue of the suability of Oklahoma in the District Court of the United States. The former is clearly inapposite. That case involved proceedings to enjoin enforcement of an allegedly unconstitutional state statute providing for intrastate railroad rates. Since the state act provided a remedy, the state took the position 56 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. that federal equity jurisdiction was ousted. This Court held the federal equity jurisdiction continued to restrain unconstitutional acts by state officers which threatened irreparable damage, pp. 474, 477, 515-19. In the Reagan case, a proceeding for injunction to restrain the members of the Texas Railroad Commission from enforcing rates which were alleged to be unconstitutional was allowed to be maintained in equity in a federal court. This Court said it was maintainable against the defendants both under the general equity jurisdiction of the federal courts and under the provisions of the state statute which allowed review “in a court of competent jurisdiction in Travis County, Texas. . . .” It was thought that the United States Circuit Court, sitting in Travis County, was covered by this language. As it was concluded, however, that this was not a suit against the state, page 392, we do not feel impelled to extend the ruling of the Reagan case on this alternative basis of jurisdiction to a suit, such as this, against a state for recovery of taxes. Gunter n. Atlantic Coast Line, 200 U. S. 273, is also distinguishable. There the Attorney General of South Carolina appeared in a federal court to answer for the state in an injunction suit under the authority of a statute which read as follows: “if the State be interested in the revenue in said action, the county auditor shall, immediately upon the commencement of said action, inform the Auditor of State of its commencement, of the alleged cause thereof, and the Auditor of State shall submit the same to the Attorney General, who shall defend said action for and on behalf of the State.” p. 286. This Court construed this to consent to an appearance in the federal court and held its decision res judicata against the state and added at p. 287: GREAT NORTHERN INS. CO. v. READ. 57 47 Frankfurter, J., dissenting. “If there were doubt—which we think there is not—as to the construction which we give to the act of 1868, that doubt is entirely dispelled by a consideration of the contemporaneous interpretation given to the act by the officials charged with its execution, by the view which this court took as to the real party in interest on the record in the Pegues case, and by the action as well as non-action which followed the decision of that case by the state government in all its departments through a long period of years.” The administrative construction by a state of these statutes of consent have influence in determining our conclusions. Cf. Parish, v. State Banking Board, 235 U. S. 498, 512; Richardson v. Fajardo Sugar Co., 241 U. S. 44, 47; Missouri v. Fiske, 290 IT. S. 18,24. It may be well to add that the construction given the Oklahoma statute leaves open the road to review in this Court on constitutional grounds after the issues have been passed upon by the state courts. Chandler v. Dix, 194 U. S. 590, 592; Smith v. Reeves, 178 U. S. 436,445. The judgment of the Circuit Court of Appeals is vacated and the cause is remanded to the District Court with directions to dismiss the complaint for want of jurisdiction. Mr. Justice Frankfurter, with whom the Chief Jus-tic® and Mr. Justice Roberts concur, dissenting: To avoid the imposition of penalties and other serious hazards, the plaintiff paid money under claim of a tax which Oklahoma, we must assume, had no power to exact. Concededly, he could sue to recover the moneys so paid to the defendant, a tax collector, in a state court in Oklahoma. But to allow the suit to be brought in a federal court sitting in Oklahoma would derogate, this Court now holds, from the sovereignty of Oklahoma. Such a result, I believe, derives from an excessive regard for formalism 58 OCTOBER TERM, 1943. Frankfurter, J., dissenting. 322U.S. and from a disregard of the whole trend of legislation, adjudication and legal thought in subjecting the collective responsibility of society to those rules of law which govern as between man and man. To repeat, this is a simple suit to get back money from a collector who for present purposes had no right to demand it. So far as the federal fiscal system is concerned, this common law remedy has been enforced throughout our history, barring only a brief interruption.1 See United States v. Nunnally Investment Co., 316 U. S. 258. And if, instead of avoiding the serious consequences of not paying this state tax, the plaintiff had resisted payment and sought an injunction against the tax collector for seeking to enforce the unconstitutional tax, under appropriate circumstances the federal courts would not have been without jurisdiction. See, e. g., Western Union Telegraph Co. v. Trapp, 186 F. 114; Ward v. Love County, 253 U. S. 17; Carpenter v. Shaw, 280 U. S. 363. Finally, as I read the opinion of the Court, even a suit of this very nature for the recovery of money paid for a disputed tax will lie against the collector in what is called his individual capacity; that is, a suit against the same person on the same cause of action for the same remedy can be brought, if only differently entitled. In view of the history of such a suit as this and of the incongruous consequences of dis- 1 The Swartwout scandal led to the Act of March 3, 1839 (§ 2, 5 Stat. 339, 348), which this Court construed as a withdrawal of the suability of the collector. Cary v. Curtis, 3 How. 236. That decision was rendered on January 21,1845, and Congress promptly restored the old liability. Act of Feb. 26, 1845, c. XXII, 5 Stat. 727. See Brown, A Dissenting Opinion of Mr. Justice Story (1940) 26 Va. L. Rev. 759. Again, in view of the complicated administrative problems raised by the invalidation of the Agricultural Adjustment Act, Congress devised a special scheme for the recovery of the illegal exactions made under the Act. 49 Stat. 1747,7 U. S. C. § 644 et seq.; Anniston Mfg. Co. v. Davis, 301 U. S. 337, GREAT NORTHERN INS. CO. v. READ. 59 47 Frankfurter, J., dissenting. allowing it in the form in which it was a case in the federal court in Oklahoma, the claims of sovereignty which are sought to be respected must surely be attenuated and capricious. The Eleventh Amendment has put state immunity from suit into the Constitution. Therefore, it is not in the power of individuals to bring any State into court—the State’s or that of the United States—except with its consent. But consent does not depend pn some ritualistic formula. Nor are any words needed to indicate submission to the law of the land. The readiness or reluctance with which courts find such consent has naturally been influenced by prevailing views regarding the moral sanction to be attributed to a State’s freedom from suability. Whether this immunity is an absolute survival of the monarchial privilege, or is a manifestation merely of power, or rests on abstract logical grounds, see Kawa-nanakoa v. Polyblank, 205 U. S. 349, it undoubtedly runs counter to modern democratic notions of the moral responsibility of the State. Accordingly, courts reflect a strong legislative momentum in their tendency to extend the legal responsibility of Government and to confirm Maitland’s belief, expressed nearly fifty years ago, that “it is a wholesome sight to see ‘the Crown’ sued and answering for its torts.” 3 Maitland, Collected Papers, 263.2 Assuming that the proceeding in this case to recover from the individual moneys demanded by him in defiance of the Constitution is a suit against the State, compare Ex parte Young, 209 U. S. 123, 155; Atchison, T. & S. F. 2 “With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.” Doubtless this statement of Dicey’s, Law of the Constitution, 8th ed., at p. 189, 9th ed. at p. 193, was an idealization of actuality. But in the perspective of our time its validity as an ideal has gained and not lost. 60 OCTOBER TERM, 1943. Frankfurter, J., dissenting. 322U.S. Ry. Co. v. O’Connor, 223 U. S. 280, Oklahoma has consented that he be sued. The only question therefore is as to the scope of the consent. Has she confined the right to sue to her own courts and excluded the federal courts within her boundaries? She has not said so. Is such restriction indicated by practical considerations in the administration of state affairs? If it makes any difference to Oklahoma whether this suit against a tax collector is pressed in an Oklahoma state court rather than in a federal court sitting in Oklahoma, the difference has not been revealed. There is here an entire absence of the considerations that led to the decision in Burford v. Sun Oil Co., 319 U. S. 315. There it was deemed desirable, as a matter of discretion, that a federal equity court should step aside and leave a specialized system of state administration to function. Here the suit in a federal court would not supplant a specially adaptable state scheme of administration nor bring into play the expert knowledge of a state court regarding local conditions. The subject matter and the course of the litigation in the federal court would be precisely the same as in the state court. The case would merely be argued in a different building and before a different judge. Language restrictive of suit in a federal court is lacking, and intrinsic policy does not suggest restrictive interpretation to withdraw from a federal court questions of federal constitutional law. Legislation giving consent to sue is not to be treated in the spirit in which seventeenth century criminal pleading was construed. Only by such overstrained rendering of the Oklahoma statute does the Court finally achieve exclusion of the right of the plaintiff to go to a federal court. To the language of that statute I now turn. By § 12665 Oklahoma Statutes, 1931, the State authorized an action to recover moneys illegally exacted as a tax, in a situation like the present, where the exaction is one “from which the laws provide no appeal.” The relevant juris- GREAT NORTHERN INS. CO. v. READ. 61 47 Frankfurter, J., dissenting. dictional provision is as follows: “All such suits shall be brought in the court having jurisdiction thereof, and they shall have precedence therein. . . .” The part that the federal courts play in the grant of such jurisdiction by the States is not a new problem. With his customary hardheadedness Chief Justice Waite, for this Court, stated the guiding consideration in ascertaining the relation of the federal court within a State to the judicial process recognized by that State: “While the Circuit Court may not be technically a court of the Commonwealth, it is a court within it; and that, as we think, is all the legislature intended to provide for.” Ex parte Schollenberger, 96 U. S. 369, 377. This conception of a federal court as a court within the State of its location has ever since dominated our decisions. See, e. g., Madisonville Traction Co. v. Mining Co., 196 U. S. 239,255-56; Neirbo Co. v. Bethlehem Corp., 308 U. S. 165,171. It is a conception which has been acted upon by state legislatures. For jurisdictional purposes federal courts have been assimilated to the courts of the States in which they may sit. When we are dealing with jurisdictional matters legislation should be interpreted in the light of such professional history. Even if an ambiguity could be squeezed out of a grant of jurisdiction which applies so aptly to a federal court in Oklahoma as to an Oklahoma state court—“suits shall be brought in the court having jurisdiction thereof”—neither logic nor history nor reason counsels an interpretation that attributes to the State hostility against a suit in a federal court on an exclusively federal right as to which the last say in any event belongs to a federal court.3 3 Of course the State can at any time withdraw its consent to be sued. See Beers v. Arkansas, 20 How. 527. But statutes have steadily enlarged the range of a State’s suability and rarely has there been a recession. See, generally, Borchard, State and Municipal Liability in Tort—Proposed Statutory Reform (1934) 20 A. B. A. J. 747; Borchard, Governmental Responsibility in Tort (1926) 36 Yale L. J. 1, 17, (1927) 36 Yale L. J. 757, 1039, (1928) 28 Col. L. Rev. 577, 735. 62 OCTOBER TERM, 1943. Frankfurter, J., dissenting. 322U.S. In the past, even when the jurisdictional grant has been couched in language giving substantial ground for the argument of restriction of jurisdiction to the state court, this Court has not found denial by a State of the right to go to a federal court within that State when it in fact opened the door of its own courts. Thus, in Madisonville Traction Co. v. Mining Co., supra, a Kentucky statute required, among other things, appointment of commissioners in a condemnation proceeding by the county court, examination of the report at its first regular term, issuance of orders in conformity with the Kentucky Civil Code of Practice and allowance of appeals from the county courts. And yet this Court held, as a matter of construction, that it was “not to be implied from the statute in question that the State intended to exclude . . . the federal courts.” 196 U. S. at 256. The section now under consideration is only one of several statutory provisions for challenging like tax assessments in courts. In all the other provisions, the jurisdiction is explicitly given only to state courts. See, e. g., §§ 12651,12660,12661. If in § 12665 Oklahoma has seen fit to allow suits to be brought “in the court having jurisdiction thereof,” which as a matter of federal jurisdictional law certainly includes the federal court in Oklahoma, and has not seen fit to designate the state courts for such jurisdiction, why should this Court interpolate a restriction which the Oklahoma Legislature has omitted? The fact that the Legislature has also provided that such suits “shall have precedence” is no more embarrassment to federal j urisdiction than to state j urisdiction. That is merely an admonition to courts of the importance of disposing of litigation affecting revenue with all convenient dispatch. Nor is there any other provision of the statute giving this right of action that remotely requires a procedure to be followed or relief to be given peculiar to state courts or different from established procedure and relief in the fed- GREAT NORTHERN INS. CO. v. READ. 63 47 Frankfurter, Z, dissenting. eral courts. Only on the assumption that federal courts are alien courts is there anything in § 12665 that is not as suited to a proceeding in a federal court as it is to one in a state court. The situation thus presented by the Oklahoma legislation is very different from that which was here in Chandler v. Dix, 194 U. S. 590. There a suit was brought against state officials to remove a cloud on title to lands claimed by the State. The relief that was sought and the procedure for pursuing it plainly indicated “that the legislature had in mind only proceedings in the courts of the State. A copy of the complaint is to be served upon the prosecuting attorney, who is to send a copy thereof within five days to the Auditor General, and this is to be in lieu of service of process. It then is left to the discretion of the Auditor General to cause the Attorney General to represent him, and it is provided that in such suits no costs shall be taxed. These provisions with regard to procedure and costs show that the statute is dealing with a matter supposed to remain under state control. . . . [The] statute does not warrant the beginning of a suit in the federal court to set aside the title of the State.” 194 U. S. at 591-592. The marked difference between the Michigan statute and this Oklahoma statute is further evidenced by the fact that § 12665 gives an action to recover not merely illegal state taxes but also taxes of the “county or sub-division of the county” that have been illegally collected. But counties or their subdivisions do not enjoy immunity from suit. Lincoln County v. Luning, 133 U. S. 529; Seattle v. Oregon & Washington R. Co., 255 U. S. 56, 71. If the other jurisdictional requirements are present, they can be sued in a federal court without the leave of Oklahoma. It is not, I submit, a rational way to construe the Oklahoma statute, dealing with a particular type of illegal exaction raising the same kind of issue and involving the same procedure. 64 OCTOBER TERM, 1943. Frankfurter, J., dissenting. 322U.S. so as to recognize jurisdiction of federal courts over suits against the county and its sub-division but to find a purpose to exclude suits as to illegal state exactions. I have proceeded on the assumption that the action below was under § 12665, and as such an action against the State. But the suit was not brought under § 12665. It was brought as an ordinary common law action for the recovery of money against an officer acting under an unconstitutional statute. The defendant answered the suit, but did not claim the State’s immunity from suit and the court’s resulting lack of jurisdiction. What is even more significant is that he did allege lack of jurisdiction on another ground not now relevant. In a word, the defendant did not claim, on behalf of the State, the immunity which this Court now affords him. He did not even make this claim at the pre-trial conference and the claim did not emerge as one of the issues defined by the pre-trial conference under Rule 16. In disposing of the case, the Judge interpreted the action as having been brought under § 12665, although the pleadings gave no warrant for such conclusion, and on such interpretation, he found that the defendant could claim and had not waived Oklahoma’s immunity. Evidently, however, the District Court was not content with its own finding of want of “jurisdiction” for it proceeded to dispose of the constitutional issues on their merits. I think that the claim of the State’s immunity was not in the case under Illinois Central R. Co. v. Adams, 180 U. S. 28, which held that in a suit nominally against an individual sovereign immunity is a defense that must be raised by appropriate pleading. Doubtless for this reason, the jurisdictional question on which the case is now made to turn was not even discussed by the Circuit Court of Appeals. That court, I believe, properly passed on the constitutional merits, but since the case here goes off on jurisdiction, I intimate no views upon them. UNITED STATES v. MITCHELL. 65 Opinion of the Court. UNITED STATES v. MITCHELL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. Nos. 514 and 515. Argued March 27, 1944.—Decided April 24, 1944. 1. Promptly and spontaneously after a housebreaking suspect had been taken into custody by police officers and had arrived at the police station, he admitted his guilt and consented to the officers’ recovering stolen property from his home. Held that the admission of guilt and the property thus recovered were admissible in evidence in a criminal prosecution in a federal court, and that the admissibility of the evidence was not affected by the subsequent illegal detention of the suspect for eight days before arraignment. McNabb v. United States, 318 U. S. 332, distinguished. P. 69. 2. The power of this Court to establish rules governing the admissibility of evidence in the federal courts is not to be used to discipline law enforcement officers. P. 70. 138 F. 2d 426, reversed. Certiorari, 321 U. S. 756, to review reversals, in two cases, of convictions of housebreaking and larceny. Solicitor General Fahy, with whom Assistant Attorney General Tom C. Clark, and Messrs. Robert S. Erdahl, Paul A. Freund, and Jesse Climenko were on the brief, for the United States. Mr. James J. Laughlin for respondent. Mr. Justice Frankfurter delivered the opinion of the Court. Under each of two indictments for housebreaking and larceny, the defendant Mitchell was separately tried and convicted, but his convictions were reversed by the Court of Appeals, 138 F. 2d 426, solely on the ground that the admission of testimony of Mitchell’s oral confessions and of stolen property secured from his home through his consent was barred by our decision in McNabb v. United 66 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. States, 318 U. S. 332. In view of the importance to federal criminal justice of proper application of the McNabb doctrine, we brought the case here. Practically the whole body of the law of evidence governing criminal trials in the federal courts has been judge-made. See United States v. Reid, 12 How. 361, and Funk v. United States, 290 U. S. 371. Naturally these evidentiary rules have not remained unchanged. They have adapted themselves to progressive notions of relevance in the pursuit of truth through adversary litigation, and have reflected dominant conceptions of standards appropriate for the effective and civilized administration of law. As this Court when making a new departure in this field took occasion to say a decade ago, “The public policy of one generation may not, under changed conditions, be the public policy of another.” Funk v. United States, supra at 381. The McNabb decision was merely another expression of this historic tradition, whereby rules of evidence for criminal trials in the federal courts are made a part of living law and not treated as a mere collection of wooden rules in a game. That case respected the policy underlying enactments of Congress as well as that of a massive body of state legislation which, whatever may be the minor variations of language, require that arresting officers shall with reasonable promptness bring arrested persons before a committing authority. Such legislation, we said in the McNabb case, “constitutes an important safeguard—not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil im- UNITED STATES v. MITCHELL. 67 65 Opinion of the Court. plications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection. A statute carrying such purposes is expressive of a general legislative policy to which courts should not be heedless when appropriate situations call for its application.” 318 U. S. at 344. In the circumstances of the McNabb case we found such an appropriate situation, in that the defendants were illegally detained under aggravating circumstances: one of them was subjected to unremitting questioning by half a dozen police officers for five or six hours and the other two for two days. We held that “a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law. Congress has not explicitly forbidden the use of evidence so procured. But to permit such evidence to be made the basis of a conviction in the federal courts would stultify the policy which Congress has enacted into law.” 318 U. S. at 345. For like reasons it was held in the Nardone case that where wiretapping is prohibited by Congress the fruits of illegal wiretapping constitute illicit evidence and are therefore inadmissible. Nardone v. United States, 302 U. S. 379; 308 U. S. 338. Inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure, were the decisive features in the McNabb case which led us to rule that a conviction on such evidence could not stand. We are dealing with the admissibility of evidence in criminal trials in the federal courts. Review by this 68 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. Court of state convictions presents a very different situation, confined as it is within very narrow limits. Our sole authority is to ascertain whether that which a state court permitted violated the basic safeguards of the Fourteenth Amendment. Therefore, in cases coming from the state courts in matters of this sort, we are concerned solely with determining whether a confession is the result of torture, physical or psychological, and not the offspring of reasoned choice. How difficult and often elusive an inquiry this implies, our decisions make manifest. And for the important relation between illegal incommunicado detention and “third-degree” practices, see IV, Report, National Commission on Law Observance and Enforcement (better known as the Wickersham Commission) (1931) pp. 4, 35 et seq., 152; and the debates in the House of Commons on the Savidge case, 217 H. C. Deb. (5th ser. 1928) pp. 1216-1220,1303-1339, 1921-1931, and Inquiry in Regard to the Interrogation by the Police of Miss Savidge, Cmd. 3147 (1928); Report of the Royal Commission on Police Powers and Procedure, Cmd. 3297 (1929). But under the duty of formulating rules of evidence for federal prosecutions, we are not confined to the constitutional question of ascertaining when a confession comes of a free choice and when it is extorted by force, however subtly applied. See United States v. Oppenheimer, 242 IT. S. 85, 88. The McNabb decision was an exercise of our duty to formulate policy appropriate for criminal trials in the federal courts. We adhere to that decision and to the views on which it was based. (For cases in which applications of the McNabb doctrine by circuit courts of appeals were left unchallenged by the Government, see United States v. Haupt, 136 F. 2d 661; Gros v. United States, 136 F. 2d 878; Runnels v. United States, 138 F. 2d 346.) UNITED STATES v. MITCHELL. 69 65 Opinion of the Court. But the foundations for application of the McNabb doctrine are here totally lacking. Unlike the situation in other countries, see, for instance, §§25 and 26 of the Indian Evidence Act, 1872/ under the prevailing American criminal procedure, as was pointed out in tfie McNabb case, “The mere fact that a confession was made while in the custody of the police does not render it inadmissible.” 318 U. S. at 346. Under the circumstances of this case, the trial courts were quite right in admitting, for the juries’ judgment, the testimony relating to Mitchell’s oral confessions as well as the property recovered as a result of his consent to a search of his home. As the issues come before us the facts are not in dispute and are quickly told. In August and early October 1942, two houses in the District of Columbia were broken into and from each property was stolen. The trail of police investigation led to Mitchell who was taken into custody at his home at 7 o’clock in the evening on Monday, October 12, 1942, and driven by two police officers to the precinct station. Within a few minutes of his arrival at the police station, Mitchell admitted guilt, told the officers of various items of stolen property to be found in his home and consented to their going to his home to recover the property.1 2 It is 1 § 25: “No confession made to a Police officer, shall be proved as against a person accused of any offence.” § 26: “No confession made by any person whilst he is in the custody of a Police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.” 2 In both cases Mitchell denied the testimony of the officers that he had in fact made prompt and spontaneous confession and consent to the search of his home, and on the basis of such denial motions were made to exclude the evidence. The trial judges ruled that whether these statements were in fact made in the circumstances narrated were questions of fact for the juries, As such they were left to the 70 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. these admissions and that property which supported the convictions, and which were deemed by the court below to have been inadmissible. Obviously the circumstances of disclosure by Mitchell are wholly different from those which brought about the disclosures by the McNabbs. Here there was no disclosure induced by illegal detention, no evidence was obtained in violation of any legal rights, but instead the consent to a search of his home, the prompt acknowledgement by an accused of his guilt, and the subsequent rueing apparently of such spontaneous cooperation and concession of guilt. But the circumstances of legality attending the making of these oral statements are nullified, it is suggested, by what followed. For not until eight days after the statements were made was Mitchell arraigned before a committing magistrate. Undoubtedly his detention during this period was illegal. The police explanation of this illegality is that Mitchell was kept in such custody without protest through a desire to aid the police in clearing up thirty housebreakings, the booty from which was found in his home. Illegality is illegality, and officers of the law should deem themselves special guardians of the law. But in any event, the illegality of Mitchell’s detention does not retroactively change the circumstances under which he made the disclosures. These, we have seen, were not elicited through illegality. Their admission, therefore, would not be use by the Government of the fruits of wrongdoing by its officers. Being relevant, they could be excluded only as a punitive measure against unrelated wrongdoing by the police. Our duty in shaping rules of evidence relates to the propriety of admitting evidence. juries, and we here accept their verdict as did the court below. Mitchell, it must be emphasized, merely denied that he made these statements and so did not contest the time of making them. While at the trial there was a claim by Mitchell that he was abused by the police officers, in the state of the record that issue is not here. UNITED STATES v. MITCHELL. 71 65 Reed, J., concurring. This power is not to be used as an indirect mode of disciplining misconduct. Judgment reversed. Mr. Justice Douglas and Mr. Justice Rutledge concur in the result. Mr. Justice Black dissents. Mr. Justice Reed: As I understand McNabb v. United States, 318 U. S. 332, as explained by the Court’s opinion of today, the McNabb rule is that where there has been illegal detention of a prisoner, joined with other circumstances which are deemed by this Court to be contrary to proper conduct of federal prosecutions, the confession will not be admitted. Further, this refusal of admission is required even though the detention plus the conduct do not together amount to duress or coercion. If the above understanding is correct, it is for me a desirable modification of the McNabb case. However, even as explained I do not agree that the rule works a wise change in federal procedure. In my view detention without commitment is only one factor for consideration in reaching a conclusion as to whether or not a confession is voluntary. Tne juristic theory under which a confession should be admitted or barred is bottomed on the testimonial trustworthiness of the confession. If the confession is freely made without inducement or menace, it is admissible. If otherwise made, it is not, for if brought about by false promises or real threats, it has no weight as proper proof of guilt. Wan v. United States, 266 U. S. 1, 14; Wilson v. United States, 162 U. S. 613, 622; 3 Wigmore Evidence (1940 Ed.) § 882. As the present record shows no evidence of such coercion, I concur in the result. 72 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. SOUTHERN RAILWAY CO. v. UNITED STATES. CERTIORARI TO THE COURT OF CLAIMS. No. 578. Argued March 28, 29, 1944.—Decided April 24, 1944. Under a land-grant equalization agreement whereby a non-land-grant carrier agreed to accept for the transportation of Government property “the lowest net rates lawfully available” over land-grant routes, the Government is entitled to the lowest rate which it could have obtained over any land-grant route, however circuitous, which could have been used. P. 76. 100 Ct. Cis. 175, affirmed. Certiorari, 321 U. S. 758, to review a judgment denying recovery in a suit by the railroad company upon a land grant equalization agreement. Mr. Sidney S. Aiderman, with whom Messrs. Seddon G. Boxley and S. R. Prince were on the brief, for petitioner. Assistant Attorney General Shea, with whom Solicitor General Fahy was on the brief, for the United States. Mr. Justice Douglas delivered the opinion of the Court. In 1933 petitioner, a common carrier, entered into a “Freight-Land-Grant Equalization Agreement” with the Quartermaster General, acting for the United States. This agreement was made under the authority of § 22 of the Interstate Commerce Act. 24 Stat. 387, 49 U. S. C. § 22. So far as material here, petitioner agreed “to accept for the transportation of property shipped for account of the Government of the United States and for which the Government of the United States is lawfully entitled to reduced rates over land-grant roads, the lowest net rates lawfully available, as derived through deductions account of land-grant distance from the lawful SOUTHERN RY. CO. v. UNITED STATES. 73 72 Opinion of the Court. rates filed with the Interstate Commerce Commission applying from point of origin to destination at time of movement.” (Italics added.) From the point of view of the carrier the purpose of the agreement was to give it a portion of government business which might have been routed over land-grant routes.1 Land-grant roads were under an obligation to furnish transportation to the government free of charge or at reduced rates. See Public Aids to Transportation, Federal Coordinator of Transportation (1938), Vol. II, pp. 3-42 for a review of the various Acts of Congress. At the time when this agreement was made land-grant roads were required to allow the United States 50% deductions from the commercial rate for the transportation of property or troops of the United States.1 2 43 Stat. 477, 486, 10 U. S. C. § 1375. “Railroads which compete with the reduced-rate lines found themselves unable to participate, not only in the local transportation of federal troops and property between the termini of the reduced-rate lines, but also in through movements from and to points beyond such termini.” Public Aids to Transportation, supra, p. 42. Accordingly most of those roads entered into land 1 The Court of Claims made the following finding in this case: “The purpose and effect of the freight equalization agreements of the defendant with plaintiff and with other common carriers was to equalize rates on Government property over various routes serving the same point of origin and destination, where one or more of those routes had been aided in whole or in part by grant of public lands, rates over all routes from point of origin to destination being brought down to the level of that over the route producing the lowest net rate on account of land-grant deduction. This arrangement was designed to give the equalizing carrier a portion of the Government business that was possible of routing over the governing land-grant route, and to give the Government a greater range in choice of routes where considerations of economy entered into the selection.” 2 But see §321 of the Transportation Act of 1940, 54 Stat. 898, 954. 74 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. grant equalization agreements with the United States in order to get as large a share of the business as possible.3 See Southern Pacific Co. v. United States, 307 U. S. 393, 394. The one involved in the present case is an example. This suit involves 374 shipments of government property over petitioner’s lines and its connections made between 1934 and 1938 while this agreement was in force.4 There were available in case of each shipment several routes between the point of origin and the point of destination. Petitioner’s route was in general the shortest. But there were other routes containing land grants of varying percentages which it was possible to use for these shipments. And the rates shown by tariffs on file with the Interstate Commerce Commission for freight shipments between the points in question were the same (with exceptions not important here) for each of the alternative routes regardless of the mileage. Petitioner computed its charges so as to allow the rate reductions to which the United States would have been entitled had it actually made the shipments by one of the available, alternative land-grant routes. The United States, however, claimed greater deductions. It showed a longer and more circuitous route which could have been used5 and which contained more land-grant mileage than the alternative route chosen by 3 Petitioner’s road includes 145 miles of land-grants. But as pointed out in Public Aids to Transportation, supra, p. 42, “The land-grant railroads are parties to these agreements for the reason that, in many instances, a non-aided portion of a land-grant railroad competes with a reduced-rate portion of another land-grant railroad.” 4 These consisted of 147 shipments of livestock by the Federal Surplus Relief Corporation from midwestern points to southeastern points; and 227 shipments of property by the Tennessee Valley Authority. 5 Thus in case of the shipments of livestock the routes on which the United States made its computation of rates were from 137 to almost 700 miles longer than the ones actually used. SOUTHERN RY. CO. v. UNITED STATES. 75 72 Opinion of the Court. petitioner. Since the tariff rates over either alternative route were the same, the greater land grants included in the route selected by the United States resulted in lower rates than those which were computed on the basis of the land-grant route selected by petitioner. The United States paid the lower rates. Petitioner brought suit in the Court of Claims for the difference between the amount paid and the rates computed on the basis of the tariffs for the route which it had selected. The Court of Claims denied recovery. 100 Ct. Cis. 175. The case is here on a petition for a writ of certiorari which we granted because of the public importance of the problem. The Court of Claims found that the circuitous routes on which the United States based its computations could have been used for the shipments in question. But petitioner contends that such an interpretation of the word “available” is unreasonable in the present context and that it should be construed to mean “capable of being employed or made use of with advantage.” In that connection, petitioner argues that it would have been improvident and uneconomical to ship livestock on such circuitous routes and that those routes would never in fact have been used by the United States. It is argued, moreover, that the equalization agreement properly construed requires petitioner to equalize rates computed by land-grant routes which are competitive for government traffic. Its purpose, according to that contention, was to secure for petitioner traffic which in its absence would be likely to move over competing land-grant routes, as distinguished from traffic which was possible of routing over the cheapest land-grant route. We agree, however, with the Court of Claims. In this context the “lowest net rates lawfully available” mean to us the lowest net rates which could have been obtained on the basis of tariffs on file with the Interstate Commerce 76 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. Commission. Whether such circuitous routes as were employed in the present computation would have been actually used for these shipments in absence of the equalization agreement is of course unknown. But circuitous routing by the United States in order to obtain the benefits of its earlier land-grants to railroads was apparently a common practice. See Public Aids to Transportation, supra, p. 42. The records show that the privilege of obtaining the benefit of rates on land-grant routes is a valuable privilege indeed.* 6 We cannot assume that the United States intended to surrender any of those benefits by granting the equalizing carriers more favorable rates than those to which it was lawfully entitled on the land-grant routes, unless the purpose to do so was plainly expressed. It must be remembered that the equalization agreement was a rate-making agreement. Its object was to divert shipments to the non-land-grant route. The land-grant route was chosen merely for the purpose of computing the rate. The fact that in a given case the shipment probably would not have moved over the land-grant route is immaterial. The United States was bargaining for low rates for the shipment of its property. It did not differentiate between the types of property shipped. It did not in terms state that land-grant routes, though actually available, would not be used in computing the rate unless they would in fact have been convenient or practicable to use for the particular shipment. The standard it prescribes is “the lowest net rates lawfully available.” We may not resolve any ambiguities which may linger in that phrase against the United States. Of. Southern Pacific Co. v. United States, supra, p. 401. We are not warranted in assuming that the United States was more generous to this carrier than the 6 See Public Aids to Transportation, supra, pp. 43-45; Kenny, Land-Grant Railroads and the Government (1933), 9 Journal of Land & Public Utility Economics 368. SOUTHERN RY. CO. v. UNITED STATES. 77 72 Opinion of the Court. language of the contract requires. We must assume that the contracting officers for the United States drove as provident a bargain as a reading of the agreement fairly permits. At times the United States has made equalization agreements which were more favorable to the equalizing carriers than the instant one appears to be. Thus in 1917 a passenger land-grant equalization agreement was made with petitioner and other carriers7 whereby they agreed to accept the lowest net fare “lawfully available, as derived, through deductions account land-grant distance via a usually traveled route for military traffic, from a lawful fare filed with the Interstate Commerce Commission as applying from point of origin to destination via such route at time of movement.” (Italics added.) That agreement suggests that when the United States desired to give equalizing carriers more favorable rates than the lowest rates to which it was lawfully entitled on land-grant routes, it chose apt words to express its purpose. It also gives added significance to the omission of any such qualification in the present agreement. It suggests that if we read into the agreement the qualification which the petitioner desires, we would remake the contract. Much material bearing on administrative construction of various types of equalization agreements has been pressed upon us. But we have not relied on it as we found it inconclusive. Affirmed. 7 See Manual for the Quartermaster Corps, 1916 (1917), vol. 2, pp. 223,230. 78 OCTOBER TERM, 1943. Counsel for Parties. 322U.S. UNITED STATES v. BALLARD et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 472. Argued March 3, 6, 1944.—Decided April 24, 1944. Upon an indictment charging use of the mails to defraud, and conspiracy so to do, respondents were convicted in the District Court. The indictment charged a scheme to defraud through representations—involving respondents’ religious doctrines or beliefs—which were alleged to be false and known by the respondents to be false. Holding that the District Court had restricted the jury to the issue of respondents’ good faith and that this was error, the Circuit Court of Appeals reversed and granted a new trial. Held: 1. The only issue submitted to the jury by the District Court was whether respondents believed the representations to be true. P. 84. 2. Respondents did not acquiesce in the withdrawal from the jury of the issue of the truth of their religious doctrines or beliefs, and are not barred by the rule of Johnson v. United States, 318 U. S. 189, from reasserting here that no part of the indictment should have been submitted to the jury. P. 85. 3. The District Court properly withheld from the jury all questions concerning the truth or falsity of respondents’ religious beliefs or doctrines. This course was required by the First Amendment’s guarantee of religious freedom. P. 86. The preferred position given freedom of religion by the First Amendment is not limited to any particular religious group or to any particular type of religion but applies to all. P. 87. 4. Respondents may urge in support of the judgment of the Circuit Court of Appeals points which that court reserved, but since these were not fully presented here either in the briefs or oral argument, they may more appropriately be considered by that court upon remand. P. 88. 138 F. 2d 540, reversed. Certiorari, 320 U. S. 733, to review the reversal of convictions for using the mails to defraud and conspiracy. Solicitor General Fahy, with whom Assistant Attorney General Tom C. Clark, Mr. Robert S. Erdahl, and Miss UNITED STATES v. BALLARD. 79 78 Opinion of the Court. Beatrice Rosenberg were on the brief, for the United States. Messrs. Roland Rich Woolley and Joseph F. Rank, with whom Mr. Ralph C. Curren was on the brief, for respondents. Mr. Justice Douglas delivered the opinion of the Court. Respondents were indicted and convicted for using, and conspiring to use, the mails to defraud. § 215 Criminal Code, 18 U. S. C. § 338; § 37 Criminal Code, 18 U. S. C. § 88. The indictment was in twelve counts. It charged a scheme to defraud by organizing and promoting the I Am movement through the use of the mails. The charge was that certain designated corporations were formed, literature distributed and sold, funds solicited, and memberships in the I Am movement sought “by means of false and fraudulent representations, pretenses and promises.” The false representations charged were eighteen in number. It is sufficient at this point to say that they covered respondents’ alleged religious doctrines or beliefs. They were all set forth in the first count. The following are representative: that Guy W. Ballard, now deceased, alias Saint Germain, Jesus, George Washington, and Godfre Ray King, had been selected and thereby designated by the alleged “ascertained masters,” Saint Germain, as a divine messenger; and that the words of “ascended masters” and the words of the alleged divine entity, Saint Germain, would be transmitted to mankind through the medium of the said Guy W. Ballard; that Guy W. Ballard, during his lifetime, and Edna W. Ballard, and Donald Ballard, by reason of their alleged high spiritual attainments and righteous conduct, had been selected as divine messengers through which the words of the alleged “ascended masters,” in 80 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. eluding the alleged Saint Germain, would be communicated to mankind under the teachings commonly known as the “I Am” movement; that Guy W. Ballard, during his lifetime, and Edna W. Ballard and Donald Ballard had, by reason of supernatural attainments, the power to heal persons of ailments and diseases and to make well persons afflicted with any diseases, injuries, or ailments, and did falsely represent to persons intended to be defrauded that the three designated persons had the ability and power to cure persons of those diseases normally classified as curable and also of diseases which are ordinarily classified by the medical profession as being incurable diseases; and did further represent that the three designated persons had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons afflicted with diseases and ailments; Each of the representations enumerated in the indictment was followed by the charge that respondents “well knew” it was false. After enumerating the eighteen misrepresentations the indictment also alleged: At the time of making all of the afore-alleged representations by the defendants, and each of them, the defendants, and each of them, well knew that all of said aforementioned representations were false and untrue and were made with the intention on the part of the defendants, and each of them, to cheat, wrong, and defraud persons intended to be defrauded, and to obtain from persons intended to be defrauded by the defendants, money, property, and other things of value and to convert the same to the use and the benefit of the defendants, and each of them,; The indictment contained twelve counts, one of which charged a conspiracy to defraud. The first count set forth all of the eighteen representations, as we have said. Each of the other counts incorporated and realleged all of them and added no additional ones. There was a demurrer and a motion to quash, each of which asserted, among other things, that the indictment attacked the religious beliefs UNITED STATES v. BALLARD. 81 78 Opinion of the Court. of respondents and sought to restrict the free exercise of their religion in violation of the Constitution of the United States. These motions were denied by the District Court. Early in the trial, however, objections were raised to the admission of certain evidence concerning respondents’ religious beliefs. The court conferred with counsel in absence of the jury and with the acquiescence of counsel for the United States and for respondents confined the issues on this phase of the case to the question of the good faith of respondents. At the request of counsel for both sides the court advised the jury of that action in the following language: Now, gentlemen, here is the issue in this case: First, the defendants in this case made certain representations of belief in a divinity and in a supernatural power. Some of the teachings of the defendants, representations, might seem extremely improbable to a great many people. For instance, the appearance of Jesus to dictate some of the works that we have had introduced in evidence, as testified to here at the opening transcription, or shaking hands with Jesus, to some people that might seem highly improbable. I point that out as one of the many statements. Whether that is true or not is not the concern of this Court and is not the concern of the jury—and they are going to be told so in their instructions. As far as this Court sees the issue, it is immaterial what these defendants preached or wrote or taught in their classes. They are not going to be permitted to speculate on the actuality of the happening of those incidents. Now, I think I have made that as clear as I can. Therefore, the religious beliefs of these defendants cannot be an issue in this court. The issue is: Did these defendants honestly and in good faith believe those things? If they did, they should be acquitted. I cannot make it any clearer than that. If these defendants did not believe those things, they did not believe that Jesus came down and die- 82 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. tated, or that Saint Germain came down and dictated, did not believe the things that they wrote, the things that they preached, but used the mail for the purpose of getting money, the jury should find them guilty. Therefore, gentlemen, religion cannot come into this case. The District Court reiterated that admonition in the charge to the jury and made it abundantly clear. The following portion of the charge is typical: The question of the defendants’ good faith is the cardinal question in this case. You are not to be concerned with the religious belief of the defendants, or any of them. The jury will be called upon to pass on the question of whether or not the defendants honestly and in good faith believed the representations which are set forth in the indictment, and honestly and in good faith believed that the benefits which they represented would flow from their belief to those who embraced and followed their teachings, or whether these representations were mere pretenses without honest belief on the part of the defendants or any of them, and, were the representations made for the purpose of procuring money, and were the mails used for this purpose. As we have said, counsel for the defense acquiesced in this treatment of the matter, made no objection to it during the trial, and indeed treated it without protest as the law of the case throughout the proceedings prior to the verdict. Respondents did not change their position before the District Court after verdict and contend that the truth or verity of their religious doctrines or beliefs should have been submitted to the jury. In their motion for new trial they did contend, however, that the withdrawal of these issues from the jury was error because it was in effect an amendment of the indictment. That was also one of their specifications of errors on appeal. And other errors urged on appeal included the overruling of the demurrer to the indictment and the motion to quash, and the UNITED STATES v. BALLARD. 83 78 Opinion of the Court. disallowance of proof of the truth of respondents’ religious doctrines or beliefs. The Circuit Court of Appeals reversed the judgment of conviction and granted a new trial, one judge dissenting. 138 F. 2d 540. In its view the restriction of the issue in question to that of good faith was error. Its reason was that the scheme to defraud alleged in the indictment was that respondents made the eighteen alleged false representations; and that to prove that defendants devised the scheme described in the indictment “it was necessary to prove that they schemed to make some, at least, of the (eighteen) representations . . . and that some, at least, of the representations which they schemed to make were false.” 138 F. 2d 545. One judge thought that the ruling of the District Court was also error because it was “as prejudicial to the issue of honest belief as to the issue of purposeful misrepresentation.” Id., p. 546. The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented. The United States contends that the District Court withdrew from the jury’s consideration only the truth or falsity of those representations which related to religious concepts or beliefs and that there were representations charged in the indictment which fell within a different category.1 The argument is that this latter group of 1 Petitioner has placed three representations in this group: (1) A portion of the scheme as to healing which we have already quoted and which alleged that respondents “had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons afflicted with diseases and ailments”; (2) The portion of the scheme relating to certain religious experiences described in certain books (Unveiled Mysteries and The Magic Presence) and concerning which the indictment alleged “that the defendants represented that Guy W. Ballard, Edna W. Ballard, and Donald Ballard actually encountered the experiences pertaining to each of their said names as related and 84 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. representations was submitted to the jury, that they were adequate to constitute an offense under the Act, and that they were supported by the requisite evidence. It is thus sought to bring the case within the rule of Hall v. United States, 168 U. S. 632, 639-640, which held that where an indictment contained “all the necessary averments to constitute an offense created by the statute,” a conviction would not be set aside because a “totally immaterial fact” was averred but not proved. We do not stop to ascertain the relevancy of that rule to this case, for we are of the view that all of the representations charged in the indictment which related at least in part to the religious doctrines or beliefs of respondents were withheld from the jury. The trial judge did not differentiate them. He referred in the charge to the “religious beliefs” and “doctrines taught by the defendants” as matters withheld from the jury. And in stating that the issue of good faith was the “cardinal question” in the case he charged, as already noted, that “The jury will be called upon to pass on the question of whether or not the defendants honestly and in good faith believed the representations which are set forth in the indictment.” Nowhere in the charge were any of the separate representations submitted to the jury. A careful reading of the whole charge leads us to agree with the Circuit Court of Appeals on this phase of the case that the only issue submitted to the jury was the question as stated by the District Court, of respondents’ “belief in their representations and promises.” The United States contends that respondents acquiesced in the withdrawal from the jury of the truth of their reli- set forth in said books, whereas in truth and in fact none of said persons did encounter the experiences”; (3) The part of the scheme concerning phonograph records sold by respondents on representations that they would bestow on purchasers “great blessings and rewards in their aim to achieve salvation” whereas respondents “well knew that said . . . records were man-made and had no ability to aid in achieving salvation.” UNITED STATES v. BALLARD. 85 78 Opinion of the Court. gious doctrines or beliefs and that their consent bars them from insisting on a different course once that one turned out to be unsuccessful. Reliance for that position is sought in Johnson v. United States, 318 U. S. 189. That case stands for the proposition that, apart from situations involving an unfair trial, an appellate court will not grant a new trial to a defendant on the ground of improper introduction of evidence or improper comment by the prosecutor, where the defendant acquiesced in that course and made no objection to it. In fairness to respondents that principle cannot be applied here. The real objection of respondents is not that the truth of their religious doctrines or beliefs should have been submitted to the jury. Their demurrer and motion to quash made clear their position that that issue should be withheld from the jury on the basis of the First Amendment. Moreover, their position at all times was and still is that the court should have gone the whole way and withheld from the jury both that issue and the issue of their good faith. Their demurrer and motion to quash asked for dismissal of the entire indictment. Their argument that the truth of their religious doctrines or beliefs should have gone to the jury when the question of their good faith was submitted was and is merely an alternative argument. They never forsook their position that the indictment should have been dismissed and that none of it was good. Moreover, respondents’ motion for new trial challenged the propriety of the action of the District Court in withdrawing from the jury the issue of the truth of their religious doctrines or beliefs without also withdrawing the question of their good faith. So we conclude that the rule of Johnson v. United States, supra, does not prevent respondents from reasserting now that no part of the indictment should have been submitted to the jury. As we have noted, the Circuit Court of Appeals held that the question of the truth of the representations concerning 86 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. respondents’ religious doctrines or beliefs should have been submitted to the jury. And it remanded the case for a new trial. It may be that the Circuit Court of Appeals took that action because it did not think that the indictment could be properly construed as charging a scheme to defraud by means other than misrepresentations of respondents’ religious doctrines or beliefs. Or that court may have concluded that the withdrawal of the issue of the truth of those religious doctrines or beliefs was unwarranted because it resulted in a substantial change in the character of the crime charged. But on whichever basis that court rested its action, we do not agree that the truth or verity of respondents’ religious doctrines or beliefs should have been submitted to the jury. Whatever this particular indictment might require, the First Amendment precludes such a course, as the United States seems to concede. “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” Watson v. Jones, 13 Wall. 679,728. The First Amendment has a dual aspect. It not only “forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship” but also “safeguards the free exercise of the chosen form of religion.” Cantwell v. Connecticut, 310 U. S. 296,303. “Thus the Amendment embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.” Id., pp. 303-304. Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. Board of Education v. Barnette, 319 U. S. 624. It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. UNITED STATES v. BALLARD. 87 78 Opinion of the Court. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man’s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position. Murdock v. Pennsylvania, 319 U. S. 105. As stated in Davis v. Beason, 133 U. S. 333, 342, “With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.” See Prince 88 OCTOBER TERM, 1943. Stone, C. J., dissenting. 322U.S. v. Massachusetts, 321 U. S. 158. So we conclude that the District Court ruled properly when it withheld from the jury all questions concerning the truth or falsity of the religious beliefs or doctrines of respondents. Respondents maintain that the reversal of the judgment of conviction was justified on other distinct grounds. The Circuit Court of Appeals did not reach those questions. Respondents may, of course, urge them here in support of the judgment of the Circuit Court of Appeals. Langnes v. Green, 282 U. S. 531, 538-539; Story Parchment Co. v. Paterson Co., 282 U. S. 555, 560, 567-568. But since attention was centered on the issues which we have discussed, the remaining questions were not fully presented to this Court either in the briefs or oral argument. In view of these circumstances we deem it more appropriate to remand the cause to the Circuit Court of Appeals so that it may pass on the questions reserved. Lutcher & Moore Lumber Co. v. Knight, 217 U. S. 257, 267-268; Brown v. Fletcher, 237 U. S. 583. If any questions of importance survive and are presented here, we will then have the benefit of the views of the Circuit Court of Appeals. Until that additional consideration is had, we cannot be sure that it will be necessary to pass on any of the other constitutional issues which respondents claim to have reserved. The judgment is reversed and the cause is remanded to the Circuit Court of Appeals for further proceedings in conformity to this opinion. Reversed. Mr. Chief Justice Stone, dissenting: I am not prepared to say that the constitutional guaranty of freedom of religion affords immunity from crim-minal prosecution for the fraudulent procurement of money by false statements as to one’s religious experiences, UNITED STATES v. BALLARD. 89 78 Stone, C. J., dissenting. more than it renders polygamy or libel immune from criminal prosecution. Davis v. Beason, 133 U. S. 333; see Chaplins ky v. New Hampshire, 315 U. S. 568, 572; cf. Patterson v. Colorado, 205 U. S. 454, 462; Near v. Minnesota, 283 U. S. 697, 715. I cannot say that freedom of thought and worship includes freedom to procure money by making knowingly false statements about one’s religious experiences. To go no further, if it were shown that a defendant in this case had asserted as a part of the alleged fraudulent scheme, that he had physically shaken hands with St. Germain in San Francisco on a day named, or that, as the indictment here alleges, by the exertion of his spiritual power he “had in fact cured . . . hundreds of persons afflicted with diseases and ailments,” I should not doubt that it would be open to the Government to submit to the jury proof that he had never been in San Francisco and that no such cures had ever been effected. In any event I see no occasion for making any pronouncement on this subject in the present case. The indictment charges respondents’ use of the mails to defraud and a conspiracy to commit that offense by false statements of their religious experiences which had not in fact occurred. But it also charged that the representations were “falsely and fraudulently” made, that respondents “well knew” that these representations were untrue, and that they were made by respondents with the intent to cheat and defraud those to whom they were made. With the assent of the prosecution and the defense the trial judge withdrew from the consideration of the jury the question whether the alleged religious experiences had in fact occurred, but submitted to the jury the single issue whether petitioners honestly believed that they had occurred, with the instruction that if the jury did not so find, then it should return a verdict of guilty. On this 90 OCTOBER TERM, 1943. Stone, C. J., dissenting. 322U.S. issue the jury, on ample evidence that respondents were without belief in the statements which they had made to their victims, found a verdict of guilty. The state of one’s mind is a fact as capable of fraudulent misrepresentation as is one’s physical condition or the state of his bodily health. See Seven Cases v. United States, 239 U. S. 510, 517; cf. Durland v. United States, 161 U. S. 306, 313. There are no exceptions to the charge and no contention that the trial court rejected any relevant evidence which petitioners sought to offer. Since the indictment and the evidence support the conviction, it is irrelevant whether the religious experiences alleged did or did not in fact occur or whether that issue could or could not, for constitutional reasons, have been rightly submitted to the jury. Certainly none of respondents’ constitutional rights are violated if they are prosecuted for the fraudulent procurement of money by false representations as to their beliefs, religious or otherwise. Obviously if the question whether the religious experiences in fact occurred could not constitutionally have been submitted to the jury the court rightly withdrew it. If it could have been submitted I know of no reason why the parties could not, with the advice of counsel, assent to its withdrawal from the jury. And where, as here, the indictment charges two sets of false statements, each independently sufficient to sustain the conviction, I cannot accept respondents’ contention that the withdrawal of one set and the submission of the other to the jury amounted to an amendment of the indictment. An indictment is amended when it is so altered as to charge a different offense from that found by the grand jury. Ex parte Bain, 121 U. S. 1. But here there was no alteration of the indictment, Salinger v. United States, 272 U. S. 542, 549, nor did the court’s action, in effect, add anything to it by submitting to the jury matters which UNITED STATES v. BALLARD. 91 78 Stone, C. J., dissenting. it did not charge. United States v. Norris, 281 U. S. 619, 622. In Salinger v. United States, supra, 548-9, we explicitly held that where an indictment charges several offenses, or the commission of one offense in several ways, the withdrawal from the jury’s consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of the indictment. See also Goto v. Lane, 265 U. S. 393, 402-3; Ford v. United States, 273 U. S. 593, 602. Were the rule otherwise the common practice of withdrawing from the jury’s consideration one count of an indictment while submitting others for its verdict, sustained in Dealy v. United States, 152 U. S. 539,542, would be a fatal error. We may assume that under some circumstances the submission to the jury of part only of the matters alleged in the indictment might result in such surprise to the defendant as to amount to the denial of a fair trial. But, as in the analogous case of a variance between pleading and proof, a conviction can be reversed only upon a showing of injury to the “substantial rights” of the accused. Berger v. United States, 295 U. S. 78, 82. Here no claim of surprise has been or could be made. The indictment plainly charged both falsity of, and lack of good faith belief in the representations made, and it was agreed at the outset of the trial, without objection from the defendants, that only the issue of respondents’ good faith belief in the representations of religious experiences would be submitted to the jury. Respondents, who were represented by counsel, at no time in the course of the trial offered any objection to this limitation of the issues, or any contention that it would result in a prohibited amendment of the indictment. So far as appears from the record before us the point was raised for the first time in the specifications of errors in the Circuit Court of Appeals. It is asserted that it was argued to the District Court on 92 OCTOBER TERM, 1943. Jackson, J., dissenting. 322U.S. motions for new trial and in arrest of judgment. If so, there was still no surprise by a ruling to which, as we have said, respondents’ counsel assented when it was made. On the issue submitted to the jury in this case it properly rendered a verdict of guilty. As no legally sufficient reason for disturbing it appears, I think the judgment below should be reversed and that of the District Court reinstated. Mr. Justice Roberts and Mr. Justice Frankfurter join in this opinion. Mr. Justice Jackson, dissenting: I should say the defendants have done just that for which they are indicted. If I might agree to their conviction without creating a precedent, I cheerfully would do so. I can see in their teachings nothing but humbug, untainted by any trace of truth. But that does not dispose of the constitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes the danger of such prosecutions. The Ballard family claimed miraculous communication with the spirit world and supernatural power to heal the sick. They were brought to trial for mail fraud on an indictment which charged that their representations were false and that they “well knew” they were false. The trial judge, obviously troubled, ruled that the court could not try whether the statements were untrue, but could inquire whether the defendants knew them to be untrue; and, if so, they could be convicted. I find it difficult to reconcile this conclusion with our traditional religious freedoms. In the first place, as a matter of either practice or philosophy I do not see how we can separate an issue as to what is believed from considerations as to what is believable. The most convincing proof that one believes his statements is to show that they have been true in his expe- UNITED STATES v. BALLARD. 93 78 Jackson, J., dissenting. rience. Likewise, that one knowingly falsified is best proved by showing that what he said happened never did happen. How can the Government prove these persons knew something to be false which it cannot prove to be false? If we try religious sincerity severed from religious verity, we isolate the dispute from the very considerations which in common experience provide its most reliable answer. In the second place, any inquiry into intellectual honesty in religion raises profound psychological problems. William James, who wrote on these matters as a scientist, reminds us that it is not theology and ceremonies which keep religion going. Its vitality is in the religious experiences of many people. “If you ask what these experiences are, they are conversations with the unseen, voices and visions, responses to prayer, changes of heart, deliverances from fear, inflowings of help, assurances of support, whenever certain persons set their own internal attitude in certain appropriate ways.”1 If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences, like some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of consciousness does not include religious insight. When one comes to trial which turns on any aspect of religious belief or representation, unbelievers among his judges are likely not to understand and are almost certain not to believe him. And then I do not know what degree of skepticism or disbelief in a religious representation amounts to actionable fraud. James points out that “Faith means belief 1 William James, Collected Essays and Reviews, pp. 427-8; see generally his Varieties of Religious Experience and The Will to’Believe. See also Burton, Heyday of a Wizard. 94 OCTOBER TERM, 1943. Jackson, J., dissenting. 322U.S. in something concerning which doubt is still theoretically possible.”2 Belief in what one may demonstrate to the senses is not faith. All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credulity than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop’s fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches and even more difficult to say how far it is reliance upon a teacher’s literal belief which induces followers to give him money. There appear to be persons—let us hope not many— who find refreshment and courage in the teachings of the “I Am” cult. If the members of the sect get comfort from the celestial guidance of their “Saint Germain,” however doubtful it seems to me, it is hard to say that they do not get what they pay for. Scores of sects flourish in this country by teaching what to me are queer notions. It is plain that there is wide variety in American religious taste. The Ballards are not alone in catering to it with a pretty dubious product. The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people. But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in 2 William James, The Will to Believe, p. 90. UNITED STATES v. BALLARD. 95 78 Jackson, J., dissenting. their humdrum lives. They live in mental confusion or moral anarchy and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish. Prosecutions of this character easily could degenerate into religious persecution. I do not doubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as for example if one represents that funds are being used to construct a church when in fact they are being used for personal purposes. But that is not this case, which reaches into wholly dangerous ground. When does less than full belief in a professed credo become actionable fraud if one is soliciting gifts or legacies? Such inquiries may discomfort orthodox as well as unconventional religious teachers, for even the most regular of them are sometimes accused of taking their orthodoxy with a grain of salt. I would dismiss the indictment and have done with this business of judicially examining other people’s faiths. 96 OCTOBER TERM, 1943. Opinion of the Court. 322U.S- UNITED STATES v. AMERICAN SURETY CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 381. Argued March 27, 28, 1944.—Decided April 24, 1944. 1. Under the Government construction contract here involved, the Government was not entitled to recover liquidated damages for delay in completion, where, though subsequently to the specified completion date, the Government terminated the contractor’s right to proceed. P. 100. 2. A Government construction contract may validly provide for liquidated damages in limited situations only. Act of June 6,1902, § 21. P. 101. 136 F. 2d 437, affirmed. Certiorari, 320 U. S. 729, to review a judgment which reversed in part a judgment for the United States in a suit upon a construction contract, 44 F. Supp. 871. Mr. Robert L. Stern, with whom Solicitor General Fahy, Assistant Attorney General Shea, and Messrs. W. Marvin Smith and Hubert H. Margolies were on the brief, for the United States. Mr. Homer Cummings, with whom Messrs. Carl McFarland and Sterling M. Wood were on the brief, for respondent. Mr. Justice Murphy delivered the opinion of the Court. On June 24, 1931, one John V. Grogan entered into a contract1 with the United States to construct certain public buildings at the United States Inspection Station at 1 The form of contract used was U. S. Standard Form No. 23 construction contract, approved by the President on November 19, 1926, and used between 1926 and 1935. U. S. V. AMERICAN SURETY CO. 97 96 Opinion of the Court. Babb-Piegan, Montana. Respondent became the surety on Grogan’s performance bond to the United States. The completion date of the contract was March 4, 1932, but this was extended to June 20, 1933. Grogan failed to complete the work by the extended date. The Government, however, allowed him to continue with the construction. On July 20, 1934, thirteen months later, the work was still uncompleted. Pursuant to its authority under Article 9 of the construction contract, the Government thereupon terminated Grogan’s right to proceed with the work because of his continuing default. The Government finished the work through another contractor, expending $2,044.04 more than it would have been required to expend had Grogan completed the work. The United States brought this suit in the District Court to recover the excess cost and also to recover liquidated damages of $9,875 for the delay occasioned by Grogan’s default. The liquidated damages were computed on the basis of an agreed $25 per day for the 395 days between June 20, 1933, the extended date for completion, and July 20,1934, when the contract right to proceed was terminated. Grogan was not served and never appeared. The District Court denied respondent’s motion to strike from the complaint the paragraph alleging a right to liquidated damages. United States v. Grogan, 39 F. Supp. 819. The court subsequently rendered judgment, after trial without a jury, for the United States for $2,044.04 as excess cost of completion and $9,875 as liquidated damages for delay. See United States v. Grogan, 44 F. Supp. 871. On appeal, the court below affirmed the judgment as to the excess cost but reversed as to the liquidated damages. American Surety Co. v. United States, 136 F. 2d 437. The public importance of the issue of the Government’s right to liquidated damages under these circumstances led us to grant certiorari. 320 U. S. 729. 98 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. Section 21 of the Act of June 6, 1902,2 provides that all contracts for the construction of any public building under the control of the Treasury Department shall contain a stipulation calling for liquidated damages for delay in completion of the work and that such stipulation shall be conclusive and binding upon all parties. Proof of actual damages is rendered unnecessary. This statute, however, does not purport to require liquidated damages to be paid in amounts or under circumstances beyond those stipulated by the parties. Robinson v. United States, 261 U. S. 486, 488. It was pursuant to this statutory command that Article 9 of the construction contract in issue was inserted. Thus this article is determinative of the Government’s right to liquidated damages under the circumstances of this case. Article 9, set out in the margin,3 provides in effect that: (1) if the contractor refuses or fails to prosecute the work 2C. 1036, 32 Stat. 310, 326; 40 U. S. C. § 269. This provides: “In all contracts entered into with the United States for the construction or repair of any public building or public work under the control of the Treasury Department, a stipulation shall be inserted for liquidated damages for delay; and the Secretary of the Treasury is authorized and empowered to remit the whole or any part of such damages as in his discretion may be just and equitable; and in all suits hereafter commenced on any such contracts or on any bond given in connection therewith it shall not be necessary for the United States, whether plaintiff or defendant, to prove actual or specific damages sustained by the Government by reason of delays, but such stipulation for liquidated damages shall be conclusive and binding upon all parties.” See H. Rep. No. 1794, p. 8 (57th Cong., 1st Sess.); 35 Cong. Rec. 4935. 3 “Delays—Damages.—If the contractor refuses or fails to prosecute the work, or any separable part thereof, with such diligence as will insure its completion within the time specified in Article 1, or any extension thereof, or fails to complete said work within such time, the Government may, by written notice to the contractor, terminate his right to proceed with the work or such part of the work as to which there has been delay. In such event, the Government may take over U. S. v, AMERICAN SURETY CO. 99 96 Opinion of the Court. with proper diligence or to complete his work within the specified time, the Government may at any time terminate his right to proceed and prosecute the same to completion by contract or otherwise, in which case the Government may recover from the contractor or his surety any excess cost occasioned thereby; (2) “if the Government does not terminate the right of the contractor to proceed, the contractor shall continue the work, in which event the actual damages for the delay will be impossible to determine and in lieu thereof the contractor shall pay to the Government as fixed, agreed, and liquidated damages for each calendar day of delay until the work is completed or accepted the amount as set forth in the specifications.” In this instance, paragraph 5 of the accompanying specifications provides that “the contractor shall pay to the government the amount of Twenty-Five Dollars ($25.00) as fixed, agreed, and liquidated damages for each calendar day’s delay in the completion of the contract.” This paragraph merely provides the agreed rate of the per diem liquidated damages to be paid in the situations contemplated by Article 9. It is obviously not intended to spell out the situations where liquidated damages are to be paid and cannot, con- tile work and prosecute the same to completion by contract or otherwise, and the contractor and his sureties shall be liable to the Government for any excess cost occasioned the Government thereby. If the contractor’s right to proceed is so terminated, the Government may take possession of and utilize in completing the work such materials, appliances, and plant as may be on the site of the work and necessary therefor. If the Government does not terminate the right of the contractor to proceed, the contractor shall continue the work, in which event the actual damages for the delay will be impossible to determine and in lieu thereof the contractor shall pay to the Government as fixed, agreed, and liquidated damages for each calendar day of delay, until the work is completed or accepted the amount as set forth in the specifications or accompanying papers and the contractor and his sureties shall be liable for the amount thereof. . . .” 100 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. trary to the Government’s contention, control the language of Article 94 5 The impact of Article 9 on the facts of this case is clear. The contractor having failed to complete his work within the specified time, the Government exercised its option under the first part of Article 9 to terminate his right to proceed. This power to terminate could be exercised before or on the stipulated completion date or, as in this case, at any date thereafter. The Government then made other arrangements to complete the construction work and was entitled to, and did recover, the excess cost occasioned thereby. It thus waived its right to liquidated damages under the second part of Article 9. That right is conditioned upon the Government not terminating the contractor’s right to proceed. Where there is such a termination, even though it be subsequent to the stipulated completion date, the right to liquidated damages disappears. Such has been the uniform and correct result heretofore reached in the application of this type of contract provision. See United States v. Cunningham, 125 F„ 2d 28; United States V. Maryland Casualty Co., 25 F. Supp. 778; Maryland Casualty Co. v. United States, 93 Ct. Cis. 247. See also Fidelity & Casualty Co. v. United States, 81 Ct. Cis. 495; Commercial Casualty Insurance Co. n. United States, 83 Ct. Cis. 367; American Employer’s Insurance Co. v. United States, 91 Ct. Cis. 231. The Government has urged us to read the second part of Article 9 as though the right to liquidated damages were 4 The directions for the preparation of construction contracts upon the form here involved state that “The specifications should include a paragraph stating the amount of liquidated damages that will be paid by the contractor for each calendar day of delay, as indicated in Article 9 of the contract.” It was pursuant to this direction that paragraph 5 of the specifications in the instant case was inserted. This instruction indicates that the specifications are to include no more than “the amount” or rate of per diem damages that are to be applied “as indicated in Article 9 of the contract.” U. S. v. AMERICAN SURETY CO. 101 96 Opinion of the Court. based, not upon a condition precedent that the Government not terminate, but upon a continuing condition, under which liquidated damages would accrue “so long as the Government does not terminate” the contractor’s right to proceed. This is said to be the only way to give full effect to the prime purpose of § 21 of the 1902 Act to eliminate the uncertainties and difficulties of establishing actual damages to the Government by delay in obtaining the use of a public building. Otherwise proof is required of actual damages for the delay where termination occurs before completion in the teeth of a statute which dispenses with such proof in suits on a construction contract containing a stipulation “for liquidated damages for delay.” The Government also claims that failure to allow it liquidated damages under these circumstances leaves it entirely to the contractor whether liquidated damages will ever be paid since he can relieve himself of such liability at any time short of completion simply by abandoning the work or provoking the Government to terminate his right to proceed. The Government contracting officers in turn would be induced to allow the contractor to proceed to completion despite inexcusable delays so as not to forfeit mounting liquidated damages, thus precluding prompt completion and occupancy of needed structures. But we are confronted here with an unambiguous contract that clearly limits the right to liquidated damages to situations where the Government does not at any time terminate the contractor’s right to proceed. That it may be wiser to expand the right to such damages to every case of delay, regardless of whether there is a termination, is of course not relevant in interpreting and applying clear words of limitation in the contract. We find nothing, moreover, in § 21 of the 1902 Act that fills in interstices deliberately left open by the parties. No statutory language or policy forbids the Government and a contractor from stipulating for liquidated damages in 102 OCTOBER TERM, 1943. Statement of the Case. 322U.S. limited situations only. Indeed the statute makes any such stipulation “conclusive and binding upon all parties,” thereby foreclosing the Government’s right to object to its own failure to insist upon liquidated damages in other situations. Since we are not justified in rewriting the clear provisions of the contract to include what might well have been but was not inserted, the judgment below must be Affirmed. CLIFFORD F. MacEVOY CO. et al. v. UNITED STATES FOR THE USE AND BENEFIT OF CALVIN TOMKINS CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 483. Argued March 7, 1944.—Decided April 24, 1944. 1. Where A sold materials to B who merely sold them to a contractor for use on a Government project, A is not entitled to recover upon a payment bond furnished by the contractor pursuant to the Miller Act. P. 104. 2. The term “subcontractor” in the proviso of § 2 (a) of the Miller Act—“any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon said payment bond”—does not include a materialman who merely sells materials to the contractor. P. 108. 3. The salutary policy of the Miller Act to protect those whose labor and materials go into public projects does not warrant disregard of the plain words of limitation in the proviso of § 2 (a) of the Act. P. 107. 137 F. 2d 565, reversed. Certiorari, 320 U. S. 733, to review the reversal of a judgment, 49 F. Supp. 81, dismissing the complaint in a suit against a Government contractor and surety upon a payment bond. MacEVOY CO. v. UNITED STATES. 103 102 Opinion of the Court. Mr. Edward F. Clark, with whom Messrs. Elmer 0. Goodwin and John A. Shorten were on the brief, for petitioners. Mr. Benjamin P. DeWitt for respondent. Solicitor General Fahy, Assistant Attorney General Shea, and Messrs. Valentine Brookes and Melvin Richter filed a brief on behalf of the United States, as amicus curiae, urging affirmance. Mr. Justice Murphy delivered the opinion of the Court. The United States entered into a contract with the petitioner Clifford F. MacEvoy Company whereby the latter agreed to furnish the materials and to perform the work necessary for the construction of dwelling units of a Defense Housing Project near Linden, New Jersey, on a cost-plus-fixed-fee basis. Pursuant to the Miller Act,1 MacEvoy as principal and the petitioner Aetna Casualty and Surety Company as surety executed a payment bond in the amount of $1,000,000, conditioned on the prompt payment by MacEvoy “to all persons supplying labor and material in the prosecution of the work provided for in said contract.” The bond was duly accepted by the United States. MacEvoy thereupon purchased from James H. Miller & Company certain building materials for use in the prosecution of the work provided for in MacEvoy’s contract with the Government. Miller in turn purchased these materials from the respondent, Calvin Tomkins Company. Miller failed to pay Tomkins a balance of $12,033.49. There is no allegation that Miller agreed to perform or did perform any part of the work on the construction project. 1 Act of August 24, 1935, c. 642, 49 Stat. 793; 40 U. S. C. § 270a et seq. 104 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. Nor is it disputed that MacEvoy paid Miller in full for the materials. Within ninety days from the date on which Tomkins furnished the last of the materials to Miller, Tomkins gave written notice to MacEvoy and the surety of the existence and amount of Tomkins’ claim for materials furnished to Miller. Tomkins as use-plaintiff then instituted this action against MacEvoy and the surety on the payment bond. The District Court granted petitioners’ motion to dismiss the complaint for failure to state a claim against them. 49 F. Supp. 81. The Circuit Court of Appeals reversed the judgment. 137 F. 2d 565. We granted certiorari because of a novel and important question presented under the Miller Act. 320 U. S. 733. Specifically the issue is whether under the Miller Act a person supplying materials to a materialman of a Government contractor and to whom an unpaid balance is due from the materialman can recover on the payment bond executed by the contractor. We hold that he cannot. The Heard Act,2 which was the predecessor of the Miller Act, required Government contractors to execute penal bonds for the benefit of “all persons supplying him or them with labor and materials in the prosecution of the work provided for in such contract.” We consistently applied a liberal construction to that statute, noting that it was remedial in nature and that it clearly evidenced “the intention of Congress to protect those whose labor or material has contributed to the prosecution of the work.” United States v. American Surety Co., 200 U. S. 197, 204. See also Mankin v. United States, 215 U. S. 533; U. S. Fidelity & Guaranty Co. v. Bartlett, 231U. S. 237; Brogan n. National Surety Co., 246 U. S. 257; Fleischmann Construction Co. v. United States, 270 U. S. 349; Standard 2 Act of August 13,1894, c. 280, 28 Stat. 278, as amended by Act of February 24, 1905, c. 778, 33 Stat. 811; 40 U. S. C. § 270. MacEVOY CO. v. UNITED STATES. 105 102 Opinion of the Court. Accident Insurance Co. v. United States, 302 U. S. 442. We accordingly held that the phrase “all persons supplying [the contractor] . . . with labor and materials” included not only those furnishing labor and materials directly to the prime contractor but also covered those who contributed labor and materials to subcontractors. United States v. American Surety Co., supra, 204; Mankin v. United States, supra, 539; Illinois Surety Co. v. John Davis Co., 244 U. S. 376, 380. We had no occasion, however, to determine under that Act whether those who merely sold materials to materialmen, who in turn sold them to the prime contractors, were included within the phrase and hence entitled to recover on the penal bond.3 The Miller Act, while it repealed the Heard Act, reinstated its basic provisions and was designed primarily to eliminate certain procedural limitations on its beneficiaries.4 There was no expressed purpose in the legis 3 In United States v. American Surety Co., 200 U. S. 197, 204, we said, “There is no language in the statute nor in the bond which is therein authorized limiting the right of recovery to those who furnish material or labor directly to the contractor, but all persons supplying the contractor with labor or materials in the prosecution of the work provided for in the contract are to be protected. The source of the labor or material is not indicated or circumscribed. It is only required to be ‘supplied’ to the contractor in the prosecution of the work provided for.” This broad language, which went beyond that required by the facts and the holding in that case, might seem to justify recovery by persons supplying materials to materialmen. Such was the holding in Utah Construction Co. v. United States, 15 F. 2d 21. Our denial of certiorari in that case, 273 U. S. 745, was not a determination by us of the issue, however. Compare Continental Casualty Co. v. North American Cement Corp., 91F. 2d 307, expressing the opposite opinion under an identical District of Columbia statute. 4 Under the Heard Act, a single bond was required to protect both the Government and the suppliers of labor and materials. The Government was given the sole right to sue on the bond for six months after completion of the work and final settlement. Other claimants could sue only thereafter and had to join in a single action. Serious 106 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. lative history to restrict in any way the coverage of the Heard Act; the intent rather was to remove the procedural difficulties found to exist under the earlier measure and thereby make it easier for unpaid creditors to realize the benefits of the bond. Section 1 (a) (2) of the Miller Act requires every Government contractor, where the amount of the contract exceeds $2,000, to furnish to the United States a payment bond with a surety “for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person.” Section 2 (a) further provides that “every person who has furnished labor or material in the prosecution of the work provided for in such contract” and who has not been paid in full therefor within ninety days after the last labor was performed or material supplied may bring suit on the payment bond for the unpaid balance. A proviso then states: “Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor inconveniences and delays resulted. The claimants, often in need of immediate funds, were compelled to settle meritorious claims for less than the full amount. The Miller Act was designed to meet these difficulties by requiring that the prime contractor execute two bonds— a performance bond to protect the Government and a payment bond to protect the creditors. Creditors can sue on the latter bond without waiting for the Government and even without waiting for completion of the project. Each creditor may sue separately ninety days after the labor is completely performed or materials fully supplied. Hearings on H. R. 2068, et al., Bonds of Contractors on Public Works, House Committee on the Judiciary, 74th Cong., 1st Sess.; 79 Cong. Rec. 11702, 13382; H. Rep. No. 1263 and S. Rep. No. 1238 (74th Cong., 1st Sess.). MacEVOY CO. v. UNITED STATES. 107 102 Opinion of the Court. or furnished or supplied the last of the material for which such claim is made. . . .” The Miller Act, like the Heard Act, is highly remedial in nature. It is entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects. Fleisher Engineering Co. v. United States, 311 U. S. 15, 17, 18 ; cf. United States v. Irwin, 316 U. S. 23, 29, 30. But such a salutary policy does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds. Ostensibly the payment bond is for the protection of “all persons supplying labor and material in the prosecution of the work” and “every person who has furnished labor or material in the prosecution of the work” is given the right to sue on such payment bond. Whether this statutory language is broad enough to include persons supplying material to materialmen as well as those in more remote relationships we need not decide. Even if it did include such persons we cannot disregard the limitations on liability which Congress intended to impose and did impose in the proviso of § 2 (a). However inclusive may be the general language of a statute, it “will not be held to apply to a matter specifically dealt with in another part of the same enactment. . . . Specific terms prevail over the general in the same or another statute which otherwise might be controlling.” Ginsberg & Sons v. Popkin, 285 U. S. 204,208. The proviso of § 2 (a), which had no counterpart in the Heard Act, makes clear that the right to bring suit on a payment bond is limited to (1) those materialmen, laborers and subcontractors who deal directly with the prime contractor and (2) those materialmen, laborers and subsubcontractors who, lacking express or implied contractual relationship with the prime contractor, have direct contractual relationship with a subcontractor and who give 108 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. the statutory notice of their claims to the prime contractor. To allow those in more remote relationships to recover on the bond would be contrary to the clear language of the proviso and to the expressed will of the framers of the Act.5 Moreover, it would lead to the absurd result of requiring notice from persons in direct contractual relationship with a subcontractor but not from more remote claimants. The ultimate question in this case, therefore, is whether Miller, the materialman to whom Tomkins sold the goods and who in turn supplied them to MacEvoy, was a subcontractor within the meaning of the proviso. If he was, Tomkins’ direct contractual relationship with him enables Tomkins to recover on MacEvoy’s payment bond. If Miller was not a subcontractor, Tomkins stands in too remote a relationship to secure the benefits of the bond. The Miller Act itself makes no attempt to define the word “subcontractor.” We are thus forced to utilize ordinary judicial tools of definition. Whether the word includes laborers and materialmen is not subject to easy solution, for the word has no single exact meaning.6 In a broad, generic sense a subcontractor includes anyone who has a contract to furnish labor or material to the prime contractor. In that sense Miller was a subcontractor. But under the more technical meaning, as established by usage 5 “A sub-subcontractor may avail himself of the protection of the bond by giving written notice to the contractor, but that is as far as the bill goes. It is not felt that more remote relationships ought to come within the purview of the bond.” H. Rep. No. 1263 (74th Cong., 1st Sess.), p. 3. 6 In analogous situations, state and lower federal courts have expressed divergent opinions as to whether the word “subcontractor” includes laborers and materialmen. See annotation in 141 A. L. R. 321 for a summary of the conflicting cases. We have not heretofore had occasion to define the word in this connection. Any loose, interchangeable use of “subcontractor” and “materialman” in any prior decision of ours is without significance. MacEVOY CO. v. UNITED STATES. 109 102 Opinion of the Court. in the building trades, a subcontractor is one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract, thus excluding ordinary laborers and materialmen. To determine which meaning Congress attached to the word in the Miller Act, we must look to the Congressional history of the statute as well as to the practical considerations underlying the Act. It is apparent from the hearings before the subcommittee of the House Committee on the Judiciary leading to the adoption of the Miller Act that the participants had in mind a clear distinction between subcontractors and materialmen. In opening the hearings, Representative Miller, the sponsor of the bill that became the Miller Act, stated in connection with the various proposed bills that “we would like to have the reaction and opinion of members in reference to those bills that deal with the general subject of requiring a bond for the benefit of laborers and materialmen who deal with subcontractors on public works.” 7 And the authoritative committee report8 made numerous references to and distinguished among “laborers, materialmen and subcontractors.” Similar uncontradicted statements were made in both houses of Congress when the Act was pending before them.9 The fact that 7 Hearings on H. R. 2068, et al., Bonds of Contractors on Public Works, House Committee on the Judiciary, 74th Cong., 1st Sess., p. 1. See also statements by Rep. Miller, id., pp. 18, 26, 60, 67, 74; Rep. Robsion, p. 30; Rep. McLaughlin, p. 73; Rep. Dockweiler, pp. 12-22; Rep. Celler, pp. 83, 84, 89; Edward H. Cushman, pp. 23-31, 85. 8 H. Rep. No. 1263 (74th Cong., 1st Sess.), pp. 1, 2. 9 Rep. Miller stated in the House that “This bill merely provides that in the construction of public buildings and other public works there shall be two bonds, one for the performance of the contract with the Government, and the other a payment bond for the protection of subcontractors and those furnishing the labor and material. Under the present law we have but one bond, with a dual obligation, but it is not satisfactory in that it does not afford protection to the 110 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. subcontractors were so consistently distinguished from materialmen and laborers in the course of the formation of the Act is persuasive evidence that the word “subcontractor” was used in the proviso of § 2 (a) in its technical sense so as to exclude materialmen and laborers.10 11 Practical considerations underlying the Act likewise support this conclusion. Congress cannot be presumed, in the absence of express statutory language, to have intended to impose liability on the payment bond in situations where it is difficult or impossible for the prime contractor to protect himself. The relatively few subcontractors who perform part of the original contract represent in a sense the prime contractor and are well known to him. It is easy for the prime contractor to secure himself against loss by requiring the subcontractors to give security by bond, or otherwise, for the payment of those who contract directly with the subcontractors. United States v. American Surety Co., supra, 204; Mankin v. United States, supra, 540. But this method of protection is generally inadequate to cope with remote and undeterminable liabilities incurred by an ordinary materialman, who may be a manufacturer, a wholesaler or a retailer.11 Many such materialmen are usually involved in large subcontractors, materialmen, and laborers. This merely provides for two bonds, one for the protection of the Government’s interests, and the other for the protection of the rights of labor, the subcontractors, and material furnishers.” 79 Cong. Rec. 11702. Sen. Burke said in the Senate that “This bill would amend that law by requiring an additional bond, a payment bond, for the protection of materialmen and laborers, subcontractors, and all who put forth their labor or furnish materials or incur expenditures in connection with the work.” 79 Cong. Rec. 13382. 10 See, in general, Campbell, “The Protection of Laborers and Materialmen Under Construction Bonds,” 3 Univ, of Chicago L. Rev. 1; Annotation, 77 A. L. R. 21. 11 See Note, “The Widening Scope of Protection of Statutory Construction Bonds,” 45 Harvard L. Rev. 1236. BOARD v. HEARST PUBLICATIONS. Ill 102 Syllabus. projects; they deal in turn with innumerable sub-materialmen and laborers. To impose unlimited liability under the payment bond to those sub-materialmen and laborers is to create a precarious and perilous risk on the prime contractor and his surety. To sanction such a risk requires clear language in the statute and in the bond so as to leave no alternative.12 Here the proviso of § 2 (a) of the Act forbids the imposition of such a risk, thereby foreclosing Tomkins’ right to sue on the payment bond. The judgment of the court below is Reversed. NATIONAL LABOR RELATIONS BOARD v. HEARST PUBLICATIONS, INC. NO. 336. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.* * Argued February 8, 9, 1944.—Decided April 24, 1944. 1. The meaning of the term “employee” in the National Labor Relations Act is to be determined not exclusively by reference to common-law standards, local law, or legal classifications made for other purposes, but with regard also to the history, context and purposes 12 Congress has shown its ability in other statutes to make clear an intent to include materialmen within the meaning of the word “subcontractor.” See § 301 (a) (3) of the Act of Dec. 2, 1942, 56 Stat. 1035, 42 U. S. C. Supp. II, § 1651 (a) (3), providing that the provisions of the Act shall not apply to employees of a “subcontractor who is engaged exclusively in furnishing materials or supplies.” In other statutes, Congress has clearly used the term “subcontractor” in contrast to “materialman.” See 40 U. S. C. § 407 (b); 41 U. S. C. § 10b (a) and (b); 41U. S. C. § 28. * Together with No. 337, National Labor Relations Board v. Stockholders Publishing Co., Inc., No. 338, National Labor Relations Board v. Hearst Publications, Inc., and No. 339, National Labor Relations Board v. Times-Mirror Co., also on writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit. 112 OCTOBER TERM, 1943. Statement of the Case. 322U.S. of the Act and to the economic facts of the particular relationship. Pp. 120, 129. 2. The determination of the National Labor Relations Board that, in the circumstances of the case, a person is an “employee” under the National Labor Relations Act, may not be set aside on review if it has warrant in the record and a reasonable basis in law. P. 130. 3. The conclusion of the National Labor Relations Board that “newsboys” distributing respondents’ papers on the streets of the city were employees under the National Labor Relations Act is supported by the findings and the evidence and has ample basis in the law. P. 131. The Board found that the “newsboys” work continuously and regularly, rely upon their earnings for the support of themselves and their families, and have their total wages influenced in large measure by the publishers (respondents) who dictate their buying and selling prices, fix their markets and control their supply of papers; that their hours of work and their efforts on the job are supervised and to some extent prescribed by the publishers or the publishers’ agents; and that a substantial part of their sales equipment and advertising materials is furnished by the publishers with the intention that it be used for the publishers’ benefit. 4. The Board’s designation of the collective bargaining units in this case—(1) full-time newsboys and “checkmen,” engaged to sell papers within the city, and excluding bootjackers, temporary, casual, and part-time newsboys; and (2) newsboys selling at established spots in the city, four or more hours per day, five or more days per week, except temporary newsboys—was within its discretion and is sustained. P. 132. (a) That the Board’s selection of the collective bargaining units emphasizes difference in tenure rather than in function was, on the record in this case, not an abuse of discretion. P. 133. (b) The Board’s exclusion of suburban newsboys from the collective bargaining units, on the ground that they were not organized by the union, was, on the record in this case, not an abuse of discretion. P. 133. 136 F. 2d 608, reversed. Certiorari, 320 U. S. 728, to review decrees denying enforcement of orders of the National Labor Relations Board (39 N. L. R. B. 1245,1256) and setting aside the orders. BOARD v. HEARST PUBLICATIONS. 113 111 Opinion of the Court. Mr. Alvin J. Rockwell, with whom Solicitor General Fahy, Messrs. Robert L. Stern and Frank Donner, and Miss Ruth Weyand were on the brief, for petitioner. Mr. John M. Hall, with whom Mr. Oscar Lawler was on the brief; Mr. Lewis B. Binford, with whom Mr. Thomas S. Tobin was on the brief; Mr. Edward L. Compton, with whom Mr. H. S. Mac Kay, Jr., was on the brief; and Mr. T. B. Cosgrove, with whom Mr. John N. Cramer was on the brief,—for respondents in Nos. 336, 337, 338, and 339, respectively. Mr. Arthur W. A. Cowan filed a brief on behalf of the International Printing Pressmen & Assistants’ Union, as amicus curiae, in support of petitioner. Mr. Justice Rutledge delivered the opinion of the Court. These cases arise from the refusal of respondents, publishers of four Los Angeles daily newspapers, to bargain collectively with a union representing newsboys who distribute their papers on the streets of that city. Respondents’ contention that they were not required to bargain because the newsboys are not their “employees” within the meaning of that term in the National Labor Relations Act, 49 Stat. 450,29 U. S. C. § 152,1 presents the important question which we granted certiorari2 to resolve. 1 Section 2 (3) of the Act provides that “The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual 114 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. The proceedings before the National Labor Relations Board were begun with the filing of four petitions for investigation and certification* 2 3 by Los Angeles Newsboys Local Industrial Union No. 75. Hearings were held in a consolidated proceeding4 5 after which the Board made findings of fact and concluded that the regular full-time newsboys selling each paper were employees within the Act and that questions affecting commerce concerning the representation of employees had arisen. It designated appropriate units and ordered elections. 28 N. L. R. B. 1006.8 At these the union was selected as their representative by majorities of the eligible newsboys. After the union was appropriately certified, 33 N. L. R. B. 941, 36 N. L. R. B. 285, the respondents refused to bargain with it. Thereupon proceedings under § 10, 49 Stat. 453-455, 29 U. S. C. § 160, were instituted, a hearing6 * was held and respondents were found to have violated §§8(1) and 8 (5) of the Act, 49 Stat. 452-453, 29 U. S. C. § 158 (1), (5). They were ordered to cease and desist from such violations and to bargain collectively with the union upon request. 39 N. L. R. B. 1245,1256. Upon respondents’ petitions for review and the Board’s petitions for enforcement, the Circuit Court of Appeals, one judge dissenting, set aside the Board’s orders. Re- employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse.” 2 320 U. S. 728. 8 Pursuant to § 9 (b) and (c) of the Act; 49 Stat. 453, 29 U. S. C. § 159 (b) and (c). 4 Although it treated the four representation petitions in one consolidated proceeding and disposed of them in one opinion, the Board did not consider evidence with respect to one publisher as applicable to any of the others. 5 Subsequently those orders were amended in various details. 29 N. L. R. B. 94, 95; 30 N. L. R. B. 696, 697 ; 31 N. L. R. B. 697. 6 The record in the representation proceeding was in effect incor- porated in the complaint proceeding. BOARD v. HEARST PUBLICATIONS. 115 111 Opinion of the Court. jecting the Board’s analysis, the court independently examined the question whether the newsboys are employees within the Act, decided that the statute imports common-law standards to determine that question, and held the newsboys are not employees. 136 F. 2d 608. The findings of the Board disclose that the Los Angeles Times and the Los Angeles Examiner, published daily and Sunday,7 are morning papers. Each publishes several editions which are distributed on the streets during the evening before their dateline, between about 6:00 or 6:30 p. m. and 1:00 a. m., and other editions distributed during the following morning until about 10:00 o’clock. The Los Angeles Evening Herald and Express, published every day but Sunday, is an evening paper, which has six editions on the presses between 9:00 a. m. and 5:30 p. m.8 The News, also published every day but Sunday, is a twenty-four hour paper with ten editions.9 The papers are distributed to the ultimate consumer through a variety of channels, including independent dealers and newsstands often attached to drug, grocery or confectionery stores, carriers who make home deliveries, and newsboys who sell on the streets of the city and its suburbs. Only the last of these are involved in this case. The newsboys work under varying terms and conditions. They may be “bootj ackers,” selling to the general public at places other than established corners, or they may sell 7 The Times’ daily circulation is about 220,000 and its Sunday circulation is about 368,000. The Examiner’s daily circulation is about 214,000 and its Sunday circulation is about 566,000. 8 The Herald has a circulation of about 243,000. Both it and the Examiner are owned by Hearst Publications, Inc. 9 The News has a circulation of about 195,000. Its first three and seventh editions are consigned for the most part to route delivery or suburban dealers. Its fourth edition, which goes to press at 2:45 a. m., is sold in the city during the mornings. The remaining editions, which go to press at regular intervals between 9:50 a. m. and 5:00 p. m., are sold in the city during the afternoons. 116 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. at fixed “spots.” They may sell only casually or part-time, or full-time; and they may be employed regularly and continuously or only temporarily. The units which the Board determined to be appropriate are composed of those who sell full-time at established spots. Those vendors, misnamed boys, are generally mature men, dependent upon the proceeds of their sales for their sustenance, and frequently supporters of families. Working thus as news vendors on a regular basis, often for a number of years, they form a stable group with relatively little turnover, in contrast to schoolboys and others who sell as bootj ackers, temporary and casual distributors. Over-all circulation and distribution of the papers are under the general supervision of circulation managers. But for purposes of street distribution each paper has divided metropolitan Los Angeles into geographic districts. Each district is under the direct and close supervision of a district manager. His function in the mechanics of distribution is to supply the newsboys in his district with papers which he obtains from the publisher and to turn over to the publisher the receipts which he collects from their sales, either directly or with the assistance of “checkmen” or “main spot” boys.10 11 The latter, stationed at the important corners or “spots” in the district, are newsboys who, among other things, receive delivery of the papers, redistribute them to other newsboys stationed at less important corners, and collect receipts from their sales.11 For that service, which occupies a minor portion 10 The Examiner, the Herald, and the News all employ “main spot” boys or checkmen; the Times does not. 11 The Times district managers deliver the papers directly to the newsboys and collect directly from them. On the other papers district managers may deliver bundles of papers to the checkmen or directly to the newsboys themselves. The Times customarily transports its newsboys to their “spots” from the Times building, where they first report and pick up their papers. The other respondents offer similar transportation to those of their newsboys who desire it. BOARD v. HEARST PUBLICATIONS. 117 111 Opinion of the Court. of their working day, the checkmen receive a small salary from the publisher.12 The bulk of their day, however, they spend in hawking papers at their “spots” like other full-time newsboys. A large part of the appropriate units selected by the Board for the News and the Herald are checkmen who, in that capacity, clearly are employees of those papers. The newsboys’ compensation consists in the difference between the prices at which they sell the papers and the prices they pay for them. The former are fixed by the publishers and the latter are fixed either by the publishers or, in the case of the News, by the district manager.13 In practice the newsboys receive their papers on credit. They pay for those sold either sometime during or after the close of their selling day, returning for credit all unsold papers.14 Lost or otherwise unreturned papers, however, must be paid for as though sold. Not only is the “profit” per paper thus effectively fixed by the publisher, but substantial control of the newsboys’ total “take home” can be effected through the ability to designate their sales areas and the power to determine the number of papers allocated to each. While as a practical matter this power is not exercised fully, the newsboys’ “right” to decide how many papers they will take is also not absolute. In practice, the Board found, they cannot determine the size of their established order without the cooperation of the district manager. And often the number of papers they must take is determined unilaterally by the district managers. In addition to effectively fixing the compensation, respondents in a variety of ways prescribe, if not the 12 In the case of the Examiner these “main spot” boys, although performing services similar to those of checkmen, are less closely knit to the publisher and sometimes receive no compensation for their services. 13 See infra, note 15. 14 Newsboys selling the Herald in one residential area do not receive credit for all unsold papers. 118 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. minutiae of daily activities, at least the broad terms and conditions of work. This is accomplished largely through the supervisory efforts of the district managers, who serve as the nexus between the publishers and the newsboys.18 The district managers assign “spots” or corners to which the newsboys are expected to confine their selling activities.15 16 Transfers from one “spot” to another may be ordered by the district manager for reasons of discipline or efficiency or other cause. Transportation to the spots from the newspaper building is offered by each of respondents. Hours of work on the spots are determined not simply by the impersonal pressures of the market, but to a real extent by explicit instructions from the district managers. Adherence to the prescribed hours is observed closely by the district managers or other supervisory agents of the publishers. Sanctions, varying in severity 15 Admittedly the Times, Examiner, and Herald district managers are employees of their respective papers. While the News urged earnestly that its managers are not its employees, the Board found otherwise. They do not operate on a formal salary basis but they receive guaranteed minimum payments which the Board found are “no more than a fixed salary bearing another label.” And while they, rather than the publisher, fix the price of the paper to the newsboy, the Board found, on substantial evidence, that they function for the News in specified districts, distribute racks, aprons, advertising placards from the News to the newsboys, give instructions as to their use, supervise the redistributing activities of the checkmen (themselves clearly employees of the News), and hand out News checks to the checkmen for their services. On this and other evidence suggesting that however different may be their formal arrangements, News district managers bear substantially the same relation to the publisher on one hand and the newsboys on the other as do the other district managers, the Board concluded that they were employees of the paper. 16 Although from time to time these “spots” are bought and sold among the vendors themselves, without objection by district managers and publishers, this in no way negates the need for the district managers’ implicit approval of a spotholder or their authority to remove vendors from their “spots” for reasons of discipline or efficiency. BOARD v. HEARST PUBLICATIONS. 119 111 Opinion of the Court. from reprimand to dismissal, are visited on the tardy and the delinquent. By similar supervisory controls minimum standards of diligence and good conduct while at work are sought to be enforced. However wide may be the latitude for individual initiative beyond those standards, district managers’ instructions in what the publishers apparently regard as helpful sales technique are expected to be followed. Such varied items as the manner of displaying the paper, of emphasizing current features and headlines, and of placing advertising placards, or the advantages of soliciting customers at specific stores or in the traffic lanes are among the subjects of this instruction. Moreover, newsboys are furnished with sales equipment, such as racks, boxes and change aprons, and advertising placards by the publishers. In this pattern of employment the Board found that the newsboys are an integral part of the publishers’ distribution system and circulation organization. And the record discloses that the newsboys and checkmen feel they are employees of the papers; and respondents’ supervisory employees, if not respondents themselves, regard them as such. In addition to questioning the sufficiency of the evidence to sustain these findings, respondents point to a number of other attributes characterizing their relationship with the newsboys17 and urge that on the entire 17 E. g., that there is either no evidence in the record to show, or the record explicitly negatives, that respondents carry the newsboys on their payrolls, pay “salaries” to them, keep records of their sales or locations, or register them as “employees” with the Social Security Board, or that the newsboys are covered by workmen’s compensation insurance or the California Compensation Act. Furthermore, it is urged the record shows that the newsboys all sell newspapers, periodicals and other items not furnished to them by their respective publishers, assume the risk for papers lost, stolen or destroyed, purchase and sell their “spots,” hire assistants and relief men and make arrangements among themselves for the sale of competing or leftover papers. 120 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. record the latter cannot be considered their employees. They base this conclusion on the argument that by common-law standards the extent of their control and direction of the newsboys’ working activities creates no more than an “independent contractor” relationship and that common-law standards determine the/‘employee” relationship under the Act. They further urge that the Board’s selection of a collective bargaining unit is neither appropriate nor supported by substantial evidence.18 19 I. The principal question is whether the newsboys are “employees.” Because Congress did not explicitly define the term, respondents say its meaning must be determined by reference to common-law standards. In their view “common-law standards” are those the courts have applied in distinguishing between “employees” and “independent contractors” when working out various problems unrelated to the Wagner Act’s purposes and provisions. The argument assumes that there is some simple, uniform and easily applicable test which the courts have used, in dealing with such problems, to determine whether persons doing work for others fall in one class or the other. Unfortunately this is not true. Only by a long and tortuous history was the simple formulation worked out which has been stated most frequently as “the test” for deciding whether 4>ne who hires another is responsible in tort for his wrongdoing.18 But this formula has been by no means 18 They have abandoned here the contention, made in the circuit court, that the Act does not reach their controversies with the newsboys because they do not affect commerce. 19 The so-called “control test” with which common-law judges have wrestled to secure precise and ready applications did not escape the difficulties encountered in borderland cases by its reformulation in the Restatement of the Law of Agency § 220. That even at the common law the control test and the complex of incidents evolved in BOARD v. HEARST PUBLICATIONS. 121 111 Opinion of the Court. exclusively controlling in the solution of other problems. And its simplicity has been illusory because it is more largely simplicity of formulation than of application. Few problems in the law have given greater variety of application and conflict in results than the cases arising in the borderland between what is clearly an employeremployee relationship and what is clearly one of independent, entrepreneurial dealing.* 20 This is true within the limited field of determining vicarious liability in tort. It becomes more so when the field is expanded to include all of the possible applications of the distinction. It is hardly necessary to stress particular instances of these variations or to emphasize that they have arisen principally, first, in the struggle of the courts to work out common-law liabilities where the legislature has given no guides for judgment,21 more recently also under statutes which have posed the same problem for solution in the light of the enactment’s particular terms and purposes.22 applying it to distinguish an “employee” from an “independent contractor,” for purposes of vicarious liability in tort, did not necessarily have the same significance in other contexts, compare Lumley v. Gye [1853] El. & BL 216, and see also the cases collected in 21 A. L. R. 1229 et seq.; 23 A. L. R. 984 et seq. 20 See, e. g., Stevens, The Test of the Employment Relation (1939) 38 Mich. L. Rev. 188; Steffen, Independent Contractor and the Good Life (1935) .2 U. of Chi. L. Rev. 501; Leidy, Salesmen as Independent Contractors (1938) 28 Mich. L. Rev. 365; N. Y. Law Revision Commission Report, 1939 (1939) Legislative Document No. 65 (K). 21 See note 20 supra. 22 Compare, e. g., McKinley v. Payne Lumber Co., 200 Ark. 1114, 143 S. W. 2d 38; Industrial Comm’n v. Northwestern Ins. Co., 103 Colo. 550, 88 P. 2d 560; Schomp v. Fuller Brush Co., 124 N. J. L. 487,12 A. 2d 702; 126 N. J. L. 368,19 A.2d 780; Unemployment Compensation Comm’n v. Jefferson Ins. Co., 215 N. C. 479,2 S. E. 2d 584; Singer Sewing Machine Co. v. Unemployment Compensation Comm’n, 167 Ore. 142, 103 P. 2d 708, with McCain v. Crossett Lumber Co., 174 S. W. 2d 114 (Ark.) ; Hill Hotel Co. v. Kinney, 138 Neb. 760, 295 122 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. It is enough to point out that, with reference to an identical problem, results may be contrary over a very considerable region of doubt in applying the distinction, depending upon the state or jurisdiction where the determination is made;23 and that within a single jurisdiction a person who, for instance, is held to be an “independent contractor” for the purpose of imposing vicarious liability in tort may be an “employee” for the purposes of particular legislation, such as unemployment compensation. See, e. g., Globe Grain & Milling Co. v. Industrial Comm’n, 98 Utah 36, 91 P. 2d 512. In short, the assumed simplicity and uniformity, resulting from application of “common-law standards,” does not exist. Mere reference to these possible variations as characterizing the application of the Wagner Act in the treatment of persons identically situated in the facts surrounding their employment and in the influences tending to disrupt it, would be enough to require pause before accepting a thesis which would introduce them into its administration. This would be true, even if the statute itself had indicated less clearly than it does the intent they should not apply. Two possible consequences could follow. One would be to refer the decision of who are employees to local state law. The alternative would be to make it turn on a sort of pervading general essence distilled from state law. Congress obviously did not intend the former result. It N. W. 397; Washington Recorder Co. v. Ernst, 199 Wash. 176, 91 P. 2d 718; Wisconsin Bridge Co. v. Industrial Comm’n, 233 Wis. 467, 290 N. W. 199. See generally Wolfe, Determination of Employer-Employee Relationships in Social Legislation (1941) 41 Col. L. Rev. 1015. And see note 23 infra. 23 Compare Stockwell v. Morris, 46 Wyo. 1, with Auer v. Sinclair Refining Co., 103 N. J. L. 372; Schomp v. Fuller Brush Co., 124 N. J. L. 487, 126 N. J. L. 368, with Fuller Brush Co. v. Industrial Comm’n, 99 Utah 97; Stover Bedding Co. v. Industrial Comm’n, 99 Utah 423, with Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000. BOARD v. HEARST PUBLICATIONS. 123 111 Opinion of the Court. would introduce variations into the statute’s operation as wide as the differences the forty-eight states and other local jurisdictions make in applying the distinction for wholly different purposes. Persons who might be “employees” in one state would be “independent contractors” in another. They would be within or without the statute’s protection depending not on whether their situation falls factually within the ambit Congress had in mind, but upon the accidents of the location of their work and the attitude of the particular local jurisdiction in casting doubtful cases one way or the other. Persons working across state lines might fall in one class or the other, possibly both, depending on whether the Board and the courts would be required to give effect to the law of one state or of the adjoining one, or to that of each in relation to the portion of the work done within its borders. Both the terms and the purposes of the statute, as well as the legislative history, show that Congress had in mind no such patchwork plan for securing freedom of employees’ organization and of collective bargaining. The Wagner Act is federal legislation, administered by a national agency, intended to solve a national problem on a national scale. Cf. e. g., Sen. Rep. No. 573, 74th Cong., 1st Sess. 2-4. It is an Act, therefore, in reference to which it is not only proper but necessary for us to assume, “in the absence of a plain indication to the contrary, that Congress . . . is not making the application of the federal act dependent on state law.” Jerome n. United States, 318 U. S. 101,104. Nothing in the statute’s background, history, terms or purposes indicates its scope is to be limited by such varying local conceptions, either statutory or judicial, or that it is to be administered in accordance with whatever different standards the respective states may see fit to adopt for the disposition of unrelated, local problems. Consequently, so far as the meaning of “employee” in this statute is concerned, “the federal law must prevail no matter what name is given to the interest or 124 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. right by state law.” Morgan n. Commissioner, 309 U. S. 78, 81; cf. Labor Board N. Blount, 131 F. 2d 585 (C. C. A.). II. Whether, given the intended national uniformity, the term “employee” includes such workers as these newsboys must be answered primarily from the history, terms and purposes of the legislation. The word “is not treated by Congress as a word of art having a definite meaning. . . .” Rather “it takes color from its surroundings . . . [in] the statute where it appears,” United States v. American Trucking Assns., 310 U. S. 534, 545, and derives meaning from the context of that statute, which “must be read in the light of the mischief to be corrected and the end to be attained.” South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251,259; cf. New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552; Drivers’ Union v. Lake Valley Co., 311 U.S. 91. Congress, on the one hand, was not thinking solely of the immediate technical relation of employer and employee. It had in mind at least some other persons than those standing in the proximate legal relation of employee to the particular employer involved in the labor dispute.24 It cannot be taken, however, that the purpose was to include all other persons who may perform service for another or was to ignore entirely legal classifications made for other purposes. Congress had in mind a wider field than the narrow technical legal relation of “master and servant,” as the common law had worked this out in all its variations, and at the same time a narrower one than the entire area of rendering service to others. The question comes down therefore to how much was included of the inter- 24 Cf. notes 28-30 infra and text. BOARD v. HEARST PUBLICATIONS. 125 111 Opinion of the Court. mediate region between what is clearly and unequivocally “employment,” by any appropriate test, and what is as clearly entrepreneurial enterprise and not employment. It will not do, for deciding this question as one of uniform national application, to import wholesale the traditional common-law conceptions or some distilled essence of their local variations as exclusively controlling limitations upon the scope of the statute’s effectiveness. To do this would be merely to select some of the local, hairline variations for nation-wide application and thus to reject others for coverage under the Act. That result hardly would be consistent with the statute’s broad terms and purposes. Congress was not seeking to solve the nationally harassing problems with which the statute deals by solutions only partially effective. It rather sought to find a broad solution, one that would bring industrial peace by substituting, so far as its power could reach, the rights of workers to selforganization and collective bargaining for the industrial strife which prevails where these rights are not effectively established. Yet only partial solutions would be provided if large segments of workers about whose technical legal position such local differences exist should be wholly excluded from coverage by reason of such differences. Yet that result could not be avoided, if choice must be made among them and controlled by them in deciding who are “employees” within the Act’s meaning. Enmeshed in such distinctions, the administration of the statute soon might become encumbered by the same sort of technical legal refinement as has characterized the long evolution of the employee - independent contractor dichotomy in the courts for other purposes. The consequences would be ultimately to defeat, in part at least, the achievement of the statute’s objectives. Congress no more intended to 126 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. import this mass of technicality as a controlling “standard” for uniform national application than to refer decision of the question outright to the local law. The Act, as its first section states, was designed to avert the “substantial obstructions to the free flow of commerce” which result from “strikes and other forms of industrial strife or unrest” by eliminating the causes of that unrest. It is premised on explicit findings that strikes and industrial strife themselves result in large measure from the refusal of employers to bargain collectively and the inability of individual workers to bargain successfully for improvements in their “wages, hours or other working conditions” with employers who are “organized in the corporate or other forms of ownership association.” Hence the avowed and interrelated purposes of the Act are to encourage collective bargaining and to remedy the individual worker’s inequality of bargaining power by “protecting the exercise ... of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” 49 Stat. 449, 450. The mischief at which the Act is aimed and the remedies it offers are not confined exclusively to “employees” within the traditional legal distinctions separating them from “independent contractors.” Myriad forms of service relationship, with infinite and subtle variations in the terms of employment, blanket the nation’s economy. Some are within this Act, others beyond its coverage. Large numbers will fall clearly on one side or on the other, by whatever test may be applied. But intermediate there will be many, the incidents of whose employment partake in part of the one group, in part of the other, in varying proportions of weight. And consequently the legal pendulum, for purposes of applying the statute, may swing one way BOARD v. HEARST PUBLICATIONS. 127 111 Opinion of the Court. or the other, depending upon the weight of this balance and its relation to the special purpose at hand. Unless the common-law tests are to be imported and made exclusively controlling, without regard to the statute’s purposes, it cannot be irrelevant that the particular workers in these cases are subject, as a matter of economic fact, to the evils the statute was designed to eradicate and that the remedies it affords are appropriate for preventing them or curing their harmful effects in the special situation. Interruption of commerce through strikes and unrest may stem as well from labor disputes between some who, for other purposes, are technically “independent contractors” and their employers as from disputes between persons who, for those purposes, are “employees” and their employers. Cf. Drivers9 Union.?. Lake Valley Co., 311 U. S. 91. Inequality of bargaining power in controversies over wages, hours and working conditions may as well characterize the status of the one group as of the other. The former, when acting alone, may be as “helpless in dealing with an employer,” as “dependent ... on his daily wage” and as “unable to leave the employ and to resist arbitrary and unfair treatment” as the latter. For each, “union . . . [may be] essential to give . . . opportunity to deal on equality with their employer.” 25 And for each, collective bargaining may be appropriate and effective for the “friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions.”26 49 Stat. 449. In 26 American Steel Foundries Co. v. Tri-City Council, 257 U. S. 184, 209, cited in H. R. Rep. No. 1147, 74th Cong., 1st Sess. 10; cf. Bakery & Pastry Drivers v. Wohl, 315 U. S. 769. 26 The practice of self-organization and collective bargaining to resolve labor disputes has for some time been common among such varied types of “independent contractors” as musicians (How Collective Bargaining Works (20th Century Fund, 1942) 848-866; Proceedings of the 47th Annual Convention of the American Federation 128 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. short, when the particular situation of employment combines these characteristics, so that the economic facts of the relation make it more nearly one of employment than of independent business enterprise with respect to the ends sought to be accomplished by the legislation, those characteristics may outweigh technical legal classification for purposes unrelated to the statute’s objectives and bring the relation within its protections. To eliminate the causes of labor disputes and industrial strife, Congress thought it necessary to create a balance of forces in certain types of economic relationships. These do not embrace simply employment associations in which controversies could be limited to disputes over proper “physical conduct in the performance of the service.”27 On the contrary, Congress recognized those economic relationships cannot be fitted neatly into the containers designated “employee” and “employer” which an earlier law had shaped for different purposes. Its Reports on the bill disclose clearly the understanding that “employers and employees not in proximate relationship may be drawn into common controversies by economic forces,”28 and that the very disputes sought to be avoided might involve of Musicians (1942)), actors (see, e. g., Collective Bargaining by Actors (1926) Bureau of Labor Statistics, Bulletin No. 402; Harding, The Revolt of the Actors (1929); Ross, Stars and Strikes (1941)), and writers (see, e. g., Rosten, Hollywood (1941); Ross, Stars and Strikes (1941) 48-63), and such atypical “employees” as insurance agents, artists, architects and engineers (see, e. g., Proceedings of the 2d Convention of the UOPWA, C. I. 0. (1938); Proceedings of the 3d Convention of the UOPWA, C. I. 0. (1940); Handbook of American Trade Unions (1936), Bureau of Labor Statistics, Bull. No. 618, 291-293; Constitution and By-Laws of the IFTEAD of the A. F. L., 1942). 27 Control of “physical conduct in the performance of the service” is the traditional test of the “employee relationship” at common law. Cf., e. g., Restatement of the Law of Agency § 220 (1). 28 Sen. Rep. No. 573,74th Cong., 1st Sess. 7. BOARD v. HEARST PUBLICATIONS. 129 111 Opinion of the Court. “employees [who] are at times brought into an economic relationship with employers who are not their employers.” 29 In this light, the broad language of the Act’s definitions, which in terms reject conventional limitations on such conceptions as “employee,” “employer,” and “labor dispute,”30 leaves no doubt that its applicability is to be determined broadly, in doubtful situations, by underlying economic facts rather than technically and exclusively by previously established legal classifications. Cf. Labor Board v. Blount, supra. Hence “technical concepts pertinent to an employer’s legal responsibility to third persons for acts of his servants” have been rejected in various applications of this Act both here (International Association of Machinists v. Labor Board, 311 U. S. 72,80-81; H. J. Heinz Co. v. Labor Board, 311U. S. 514,520-521) 31 and in other federal courts (Labor Board v. Condenser Corp., 128 F. 2d 67 (C. C. A.); North Whittier Heights Citrus Assn. v. Labor Board, 109 F. 2d 76, 82 (C. C. A.).; Labor Board v. Blount, supra). There is no good reason for invoking them to restrict the scope of the term “employee” sought to be done in this case. That term, like other provisions, must be understood with reference to the purpose of the Act and the facts involved in the economic relationship.32 “Where all the conditions of the relation require protection, protection ought to be given.”33 29 Sen. Rep. No. 573,74th Cong., 1st Sess. 6. 80 Cf. Phelps-Dodge Corp. v. Labor Board, 313 U. S. 177; and compare Drivertf Union v. Lake Valley Co., 311 U. S. 91, with Sen. Rep. No. 573,74th Cong., 1st Sess. 7. 31 Compare Labor Board v. Waterman S. S. Corp., 309 U. S. 206; Phelps-Dodge Corp. v. Labor Board, 313 U. S. 177. 82 Cf. South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251; Lehigh Valley Coal Co. n. Yensavage, 218 F. 547, 552 (C. C. A.). 83 Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 552 (C. C. A.). 130 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. It is not necessary in this case to make a completely definitive limitation around the term “employee.” That task has been assigned primarily to the agency created by Congress to administer the Act. Determination of “where all the conditions of the relation require protection” involves inquiries for the Board charged with this duty. Everyday experience in the administration of the statute gives it familiarity with the circumstances and backgrounds of employment relationships in various industries, with the abilities and needs of the workers for selforganization and collective action, and with the adaptability of collective bargaining for the peaceful settlement of their disputes with their employers. The experience thus acquired must be brought frequently to bear on the question who is an employee under the Act. Resolving that question, like determining whether unfair labor practices have been committed, “belongs to the usual administrative routine” of the Board.84 Gray v. Powell, 314 U. S. 402, 411. Cf. Labor Board n. Standard Oil Co., 138 F. 2d 885, 887-888. In making that body’s determinations as to the facts in these matters conclusive, if supported by evidence, Congress entrusted to it primarily the decision whether the evidence establishes the material facts. Hence in reviewing the Board’s ultimate conclusions, it is not the court’s function to substitute its own inferences of fact for the Board’s, when the latter have support in the record. Labor Board v. Nevada Copper Corp., 316 U. S. 105; cf. Walker v. Altmeyer, 137 F. 2d 531 (C. C. A.). Undoubtedly questions of statutory interpretation, especially when arising in the first instance in judicial proceedings, are for 34 * * * * 34 E. g., Matter of Metro-Goldwyn-Mayer Studios, 7 N. L. R. B. 662, 686-690; Matter of KMOX Broadcasting Station, 10 N. L. R. B. 479; Matter of Interstate Granite Corp., 11 N. L. R. B. 1046; Matter of Sun Life Ins. Co., 15 N. L. R. B. 817; Matter of Kelly Co., 34 N. L. R. B. 325; Matter of John Yasek, 37 N. L. R. B. 156. BOARD v. HEARST PUBLICATIONS. 131 111 Opinion of the Court. the courts to resolve, giving appropriate weight to the judgment of those whose special duty is to administer the questioned statute. Norwegian^Nitrogen Products Co. v. United States, 288 U. S. 294; United States v. American Trucking Assns., 310 U. S. 534. But where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court’s function is limited. Like the commissioner’s determination under the Longshoremen’s & Harbor Workers’ Act,35 that a man is not a “member of a crew” (South Chicago Coal & Dock Co. N. Bassett, 309 U. S. 251) or that he was injured “in the course of employment” (Parker v. Motor Boat Sales, 314 U. S. 244) and the Federal Communications Commission’s determination36 that one company is under the “control” of another (Rochester Telephone Corp. v. United States, 307 U. S. 125), the Board’s determination that specified persons are “employees” under this Act is to be accepted if it has “warrant in the record” and a reasonable basis in law. In this case the Board found that the designated newsboys work continuously and regularly, rely upon their earnings for the support of themselves and their families, and have their total wages influenced in large measure by the publishers, who dictate their buying and selling prices, fix their markets and control their supply of papers. Their hours of work and their efforts on the job are supervised and to some extent prescribed by the publishers or their agents. Much of their sales equipment and advertising materials is furnished by the publishers with the intention that it be used for the publisher’s benefit. Stating that “the primary consideration in the determination of the applicability of the statutory definition is whether 85 44 Stat. 1424,33 U. S. C. § 901 et seq. 36 Under § 2 (b) of the Communications Act of 1934, 48 Stat. 1064,1065,47 U. S. C. § 152 (b). 132 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. effectuation of the declared policy and purposes of the Act comprehend securing to the individual the rights guaranteed and protection afforded by the Act,” the Board concluded that the newsboys are employees. The record sustains the Board’s findings and there is ample basis in the law for its conclusion. III. The Board’s selection of the collective bargaining units also must be upheld. The units chosen for the News and the Herald consist of all full-time37 38 newsboys and checkmen engaged to sell the papers in Los Angeles. Boot-jackers, temporary, casual and part-time88 newsboys are excluded. The units designated for the Times and the Examiner consist of newsboys selling at established spots39 in Los Angeles40 four or more hours per day five or more days per week, except temporary newsboys.41 The Board predicated its designations in part upon the finding that the units included, in general, men who were responsible workers, continuously and regularly employed as vendors and dependent upon their sales for their liveli- 37 Full-time newsboys for the Herald includes those who regularly sell to the public five or more editions five or more days per week. Full-time newsboys for the News includes those who regularly sell to the general public the fifth, sixth, eighth, ninth and tenth, or the sixth, eighth, ninth and tenth editions five or more days per week, or the fourth and earlier editions for at least four hours daily between 4:00 a. m. and 10:00 a. m. five days per week. 38 Part-time newsboys for the Herald means those selling less than five editions daily or for less than five days per week. 39 Established spots are comers at which newsboys sold those papers for at least five or more days per week during at least six consecutive months. 40 Glendale is included in the Times unit. 41 Temporary newsboys are those selling for less than thirty-one consecutive days. BOARD v. HEARST PUBLICATIONS. 133 111 Opinion of the Court. hood, while schoolboys and transient or casual workers were excluded. The discretion which Congress vested in the Board to determine an appropriate unit is hardly overstepped by the choice of a unit based on a distinction so clearly consistent with the need for responsible bargaining. That the Board’s selection emphasizes difference in tenure rather than function is, on this record certainly, no abuse of discretion. Nor is there substance in the objection that the Board’s designations on the one hand fail to embrace dll workers who in fact come within the responsible or stable fulltime category generically stated, and on the other hand fail to exclude all who in fact come within the schoolboy or more volatile part-time category. The record does not suggest that the units designated, at least so far as Los Angeles newsboys are concerned, do not substantially effectuate the Board’s theory or embrace a large portion of those who would make up a stable bargaining group based on responsible tenure and full-time work. In these matters the Board cannot be held to mathematical precision. If it chooses to couch its orders in terms which for good reasons it regards effective to accomplish its stated ends, peripheral or hypothetical deviations will not defeat an otherwise appropriate order. Another objection urged by the Times, the Herald and the Examiner is to the Board’s exclusion of suburban newsboys42 from the units on the ground they were not organized by the union. The Board found that although all vendors in metropolitan Los Angeles were eligible for membership, the union had not been extended to the suburban groups generally and that no other labor organization was seeking to represent respondents’ employees. There is no suggestion either that the union deliberately 42 Except newsboys selling the Times in Glendale. 134 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. excluded suburban newsboys who sought admission or that suburban newsboys have displayed any interest in collective bargaining or self-organization. Wide variations in the forms of employee self-organization and the complexities of modern industrial organization make difficult the use of inflexible rules as the test of an appropriate unit. Congress was informed of the need for flexibility in shaping the unit to the particular case43 and accordingly gave the Board wide discretion in the matter. Its choice of a unit is limited specifically only by the requirement that it be an “employer unit, craft unit, plant unit, or subdivision thereof” and that the selection be made so as “to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of the Act.” Pittsburgh Plate Glass Co. v. Labor Board, 313 U. S. 146. The flexibility which Congress thus permitted has characterized the Board’s administration of the section and has led it to resort to a wide variety of factors in case-to-case determination of the appropriate unit.44 Among the considerations to which it has given weight is the extent of organization of the union requesting certification or collective bargaining. This is done on the expressed theory that it is desirable in the determination of an appropriate unit to render collective bargaining of the company’s employees an immediate possibility.45 * * 48 No 43 Hearings before Committee on Education and Labor on S. 1958, 74th Cong., 1st Sess. 83. 44 E. g., see First Annual Report of the National Labor Relations Board 112-120; Second Annual Report of the National Labor Rela- tions Board 122-140; Third Annual Report of the National Labor Relations Board 156-197; Fourth Annual Report of the National Labor Relations Board 82-97; Fifth Annual Report of the National Labor Relations Board 63-72; Sixth Annual Report of the National Labor Relations Board 63-71. 48 Matter of Gulf Oil Corp., 4 N. L. R. B. 133. BOARD v. HEARST PUBLICATIONS. 135 111 Roberts, J., dissenting. plausible reason is suggested for withholding the benefits of the Act from those here seeking it until a group of geographically separated employees becomes interested in collective bargaining. In the circumstances disclosed by this record we cannot say the Board’s conclusions are lacking in a “rational basis.” The judgments are reversed and the causes are remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Reed concurs in the result. He is of the opinion that the test of coverage for employees is that announced by the Board in the matter of Stockholders Publishing Company, Inc., and Los Angeles Newsboys Local Industrial Union No. 75, C. I. 0., and other similar cases, decided January 9, 1941, 28 N. L. R. B. 1006, 1022-23. Mr. Justice Roberts: I think the judgment of the Circuit Court of Appeals should be affirmed. The opinion of that court reported in 136 F. 2d 608, seems to me adequately to state the controlling facts and correctly to deal with the question of law presented for decision. I should not add anything were it not for certain arguments presented here and apparently accepted by the court. I think it plain that newsboys are not “employees” of the respondents within the meaning and intent of the National Labor Relations Act. When Congress, in § 2 (3), said “The term ‘employee’ shall include any employee, . . it stated as clearly as language could do it that the provisions of the Act were to extend to those who, as a result of decades of tradition which had become part of the common understanding of our people, bear the named relationship. Clearly also Congress did not dele- 136 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. gate to the National Labor Relations Board the function of defining the relationship of employment so as to promote what the Board understood to be the underlying purpose of the statute. The question who is an employee, so as to make the statute applicable to him, is a question of the meaning of the Act and, therefore, is a judicial and not an administrative question. I do not think that the court below suggested that the federal courts sitting in the various states must determine whether a given person is an employee by application of either the local statutes or local state decisions. Quite the contrary. As a result of common law development, many prescriptions of federal statutes take on meaning which is uniformly ascribed to them by the federal courts, irrespective of local variance. Funk v. United States, 290 U. S. 371. This court has repeatedly resorted to just such considerations in defining the very term “employee” as used in other federal statutes, as the opinion of the court below shows. There is a general and prevailing rule throughout the Union as to the indicia of employment and the criteria of one’s status as employee. Unquestionably it was to this common, general, and prevailing understanding that Congress referred in the statute and, according to that understanding, the facts stated in the opinion below, and in that of this court, in my judgment, demonstrate that the newsboys were not employees of the newspapers. It is urged that the Act uses the term in some loose and unusual sense such as justifies the Board’s decision because Congress added to the definition of employee above quoted these further words: “and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, . . .” The suggestion seems to be that Congress intended that the term employee should mean those who were not in fact employees, but it ALLEN CO. v. CASH REGISTER CO. 137 111 Syllabus. is perfectly evident, not only from the provisions of the Act as a whole but from the Senate Committee’s Report, that this phrase was added to prevent any misconception of the provisions whereby employees were to be allowed freely to combine and to be represented in collective bargaining by the representatives of their union. Congress intended to make it clear that employee organizations did not have to be organizations of the employees of any single employer. But that qualifying phrase means no more than this and was never intended to permit the Board to designate as employees those who, in traditional understanding, have no such status. ALLEN CALCULATORS, INC. v. NATIONAL CASH REGISTER CO. et al. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO. No. 592. Argued March 28, 1944.—Decided May 1, 1944. Pursuant to the provisions of an earlier decree of injunction in a suit by the United States against a defendant under the antitrust laws, the defendant petitioned for and was granted leave on certain conditions to acquire stock of a competitor. The proceeding was adversary throughout and neither party appealed. The appellant here had sought but was denied leave to intervene. Held: 1. Under Rule 24 (a) of the Rules of Civil Procedure, appellant was not entitled to intervene as of right. P. 140. (a) No statute of the United States conferred an “unconditional right” to intervene. Clayton Act, § 16; R. C. P. 24 (a) (1). P. 140. (b) The appellant would not be bound by any judgment in the action. R. C. P. 24 (a) (2). P. 141. (c) Appellant had no interest in “a distribution or other disposition of property in the custody of the court.” R. C. P. 24 (a) (3). P. 141. (d) Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502, distinguished. P. 141. 138 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. 2. Upon the entire record, it does not appear that the district court abused its discretion in denying the appellant leave to intervene. R.C.P. 24(b) (2). P.142. Where examination of the entire record leading to the court’s final order discloses that the issues were thoroughly explored and that the parties were adequately represented, the action of the court denying intervention should not be reviewed. Appeal dismissed. Appeal under the Expediting Act from an order of the District Court denying leave to intervene in an antitrust proceeding. Mr. Murray Seasongood, with whom Mr. Frank R. Bruce was on the brief, for appellant. Mr. Hugh McD. Ritchey, with whom Messrs. Joseph S. Graydon, Garrard Winston, and Chauncey B. Garver were on the brief, for the National Cash Register Co., appellee. Solicitor General Fahy, Assistant Attorney General Berge, and Messrs. Charles H. Weston, Elliott H. Moyer and Robert L. Stem submitted for the United States, appellee. Mr. Justice Roberts delivered the opinion of the Court. By a decree, entered February 1, 1916, in a suit by the United States against National Cash Register Company, the latter was restrained, pursuant to the antitrust statutes, from acquiring ownership or control of the business or plant of a competitor manufacturing or selling cash registers or other registering devices. The injunction, however, provided that, in case National should desire such acquisition, “a petition may be presented to this Court stating the reasons therefor, and if the Court upon investigation into all the circumstances of the case and after notice of not less than sixty days to the Attorney General shall determine that such business or patents or plant so desired to be ac- ALLEN CO. v. CASH REGISTER CO. 139 137 Opinion of the Court. quired will supplement the plant, patents, machines, or facilities of the defendant corporation and that the acquisition thereof is desired for that purpose and will not substantially lessen competition, then jurisdiction is reserved to pass an order permitting the same upon such terms and conditions as may be right.” National, desiring to acquire stock of Allen-Wales Adding Machine Corporation, petitioned for leave and gave the required notice to the Attorney General. The Government filed an answer opposing the grant. The matter was set for hearing in the District Court November 15, 1943. On that day Allen Calculators, Inc., the appellant, presented a motion for leave to intervene. The United States consented to the proposed intervention; National opposed it. The District Judge granted intervention conditionally and allowed counsel for the appellant to make an opening statement and to take some part in the proceedings. Subsequently, but prior to the closing of the hearing, he ruled that the appellant would not be allowed to intervene. Before making his ruling, he was advised, in answer to his inquiry, that the president of the appellant would be called as a witness by the Government. November 16 he entered a formal order denying intervention. The issues, which were tried upon evidence submitted by National and by the Government, were whether the purported acquisition would eliminate competition between certain products of National and Allen-Wales, would eliminate potential competition between other products of the two companies, and would, in other respects, be contrary to the purpose of the original decree. The proceeding was adversary throughout. December 4 the appellant filed its petition for appeal from the order denying intervention. December 7 the District Judge entered findings of fact and an order granting National’s petition upon certain conditions which he 140 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. deemed necessary to insure compliance with the original decree in the suit. Neither party has appealed from that order. December 10 the Judge allowed this appeal with a proviso that allowance should not operate as a stay of the order granting National’s petition. The appeal is to this court under the Expediting Act.1 Rule 24 of the Rules of Civil Procedure1 2 is: “(a) Intervention of Right.—Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. “(b) Permissive Intervention.—Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” The appellant insists that it was entitled to intervene as of right, but we think that, in the light of the express provisions of clause (a) the contention must be rejected. No statute of the United States confers an unconditional 1 Act of Feb. 11,1903, c. 544, § 2, 32 Stat. 823, as amended March 3, 1911, c. 231, § 291,36 Stat. 1167,15 U. S. C. § 29. Of. Act of Feb. 13, 1925, c. 229, § 1,43 Stat. 938,28 U. S. C. § 345. 2 28 U. S. C. A., following § 723c. ALLEN CO. v. CASH REGISTER CO. 141 137 Opinion of the Court. right of intervention, as required by (1). The appellant relies on § 16 of the Clayton Act,3 but that section merely authorizes private parties to sue for relief against threatened damage consequent upon the violation of the antitrust laws. It grants no privilege, much less an unconditional right, to intervene in suits under the Sherman Act brought by the United States. The application did not fall under (2) for the appellant clearly would not be bound by any judgment in the action. Nor had it any interest in the distribution or disposition of property in the custody of the court so as to come under (3). The appellant relies upon Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502. That case, however, is to be distinguished. There the applicant on whose behalf intervention was asked was named in the original decree as one who should be heard in respect of its property rights in the event certain action was taken. Such action was taken and, despite the terms of the original decree, intervention was denied. Clearly, as to the intervenor, the action was final. We accordingly entertained the appeal. The appellant had standing to invoke the discretion of the District Judge to permit it to intervene under (b) (2) on the ground that its “claim or defense and the main action have a question of law or fact in common.” The rule provides that, in exercising discretion as to intervention of this character, the court shall consider whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties. It is common knowledge that, where a suit is of large public interest, the members of the public often desire to present their views to the court in support of the claim or the defense. To permit a multitude of such interventions may result 315 U. S. C. § 26. 142 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. in accumulating proofs and arguments without assisting the court. The record here discloses that the parties produced all data they and the court thought was available upon the issues in the case. Moreover, the court invited the Government to call the appellant’s president to testify as to his knowledge concerning the issues. The challenged order is but an order in the cause and not the final judgment. The exercise of discretion in a matter of this sort is not reviewable by an appellate court unless clear abuse is shown; and it is not ordinarily possible to determine that question except in the light of the whole record. If, in this case, National’s petition had ultimately been dismissed, a review of the court’s denial of appellant’s intervention would have been an idle gesture. Where, as here, examination of the entire record leading to the court’s final order discloses that the issues were thoroughly explored and that the parties were adequately represented, the action of the court denying intervention should not be reviewed. It was, inter alia, to prevent the delay of unwarranted appeals by disappointed applicants to intervene, which would suspend the ultimate disposition of suits under the antitrust acts, that jurisdiction to review District Court decrees was not vested in the Circuit Courts of Appeals but solely in this court, and that the statute limited the right of appeal to final decrees.* The record shows that the District Court had entered a final decree on the merits of National’s petition prior to allowing the present appeal; and, if we treat the appeal as taken from that final decree, as we think is required by the Expediting Act,8 and as attacking that decree because the appellant had been wrongfully denied intervention, we should have to affirm the judgment since * United States v. California Canneries, 279 U. S. 553. 6 United States v. California Canneries, supra. ASHCRAFT v. TENNESSEE. 143 137 Syllabus. it is not shown that the District Court abused its discretion in denying intervention.® The appeal is Dismissed. The Chief Justice took no part in the consideration or decision of this case. Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Murphy dissent. ASHCRAFT et al. v. TENNESSEE. CERTIORARI TO THE SUPREME COURT OF TENNESSEE. No. 391. Argued February 28, 1944.—Decided May 1,' 1944. 1. Upon review here of a conviction of a defendant in a criminal case in a state court, it is the duty of this Court to make an independent examination of the defendant’s claim that his conviction, alleged to have been obtained through the use in evidence of confessions coerced by law enforcement officers, was in violation of his rights under the Federal Constitution. P. 147. 2. An independent examination by this Court of the defendant’s claim in such a case can not be foreclosed by the finding of the state court, or the verdict of a jury, or both. P. 148. 3. The treatment of the alleged confessions by the two state courts, and the trial court’s instructions to the jury in respect of the alleged confessions, make more important in this case an independent examination by this Court of the defendants’ claims. P. 147. 4. Upon undisputed evidence, this Court concludes that if the defendant Ashcraft made a confession it was not voluntary but compelled, and that his conviction, resting upon the alleged confession, must be set aside as in violation of the Federal Constitution. P. 153. The uncontradicted evidence—inter alia, that Ashcraft had been held incommunicado for thirty-six hours, during which time with- • Id., cases cited p. 556. 144 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. out sleep or rest, he had been interrogated by relays of officers and investigators—showed a situation inherently coercive. 5. In making such disposition of cases as justice may require, this Court must consider any change, in fact or in law, which has supervened since the judgment was entered. P. 156. 6. The conviction of a codefendant having been sustained by the state court upon the assumption that Ashcraft’s confession was properly admitted and his conviction valid, the judgment as to the codefendant is vacated and the case remanded for further proceedings. P. 155. Reversed. Certiorari, 320 U. S. 728, to review the affirmance of convictions of two defendants tried jointly in the state court. Messrs. James F. Bickers and Grover N. McCormick for petitioners. Mr. Nat Tipton, with whom Mr. Roy H. Beeler, Attorney General of Tennessee, was on the brief, for respondent. Mr. Justice Black delivered the opinion of the Court. About three o’clock on the morning of Thursday, June 5, 1941, Mrs. Zelma Ida Ashcraft got in her automobile at her home in Memphis, Tennessee, and set out on a trip to visit her mother’s home in Kentucky. Late in the afternoon of the same day, her car was observed a few miles out of Memphis, standing on the wrong side of a road which she would likely have taken on her journey. Just off the road, in a slough, her lifeless body was found. On her head were cut places inflicted by blows sufficient to have caused her death. Petitioner Ware, age 20, a Negro, was indicted in a state court and found guilty of her murder. Petitioner Ashcraft, age 45, a white man, husband of the deceased, charged with having hired Ware to commit the murder, was tried jointly with Ware and convicted as an accessory before the fact. Both were sentenced to ninety-nine years in the state peniten- ASHCRAFT v. TENNESSEE. 145 143 Opinion of the Court. tiary. The Supreme Court of Tennessee affirmed the convictions. In applying to us for certiorari, Ware and Ashcraft urged that alleged confessions were used at their trial which had been extorted from them by state law enforcement officers in violation of the Fourteenth Amendment, and that “solely and alone” on the basis of these confessions they had been convicted. Their contentions raised a federal question which the record showed to be substantial and we brought both cases here for review. Upon oral argument before this Court Tennessee’s legal representatives conceded that the convictions could not be sustained without the confessions but defended their use upon the ground that they were not compelled but were “freely and voluntarily made.” The record discloses that neither the trial court nor the Tennessee Supreme Court actually held as a matter of fact that petitioners’ confessions were “freely and voluntarily made.” The trial court heard evidence on the issue out of the jury’s hearing, but did not itself determine from that evidence that the confessions were voluntary. Instead it overruled Ashcraft’s objection to the use of his alleged confession with the statement that, “This Court is not able to hold, as a matter of law, that reasonable minds might not differ on the question of whether or not that alleged confession was voluntarily obtained.” And it likewise overruled Ware’s objection to use of his alleged confession, stating that “the reasonable minds of twelve men might . . . differ as to . . . whether Ware’s confession was voluntary, and . . . therefore, that is a question of fact for the jury to pass on.”1 Nor did the * xThe legal test applied by the trial court to determine the admissibility of the two confessions was stated thus: “The Court has come to the conclusion . . . that the law in Tennessee with reference to confession is simply this: it is largely 146 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. State Supreme Court review the evidence pertaining to the confessions and affirmatively hold them voluntary. In sustaining the petitioners’ convictions, one Justice dissenting, it went no further than to point out that, “The trial judge . . . held ... he could not say that the confessions were not voluntarily made and, therefore, permitted them to go to the jury,” and to declare that it, likewise, was “unable to say that the confessions were not freely and voluntarily made.”* 2 If, therefore, the question of the voluntariness of the two confessions was actually decided at all it was by the jury. And the jury was charged generally on the subject of the two confessions as follows: “I further charge you that if verbal or written statements made by the defendants freely and voluntarily and without fear of punishment or hope of reward, have been proven to you in this case, you may take them into consideration with all of the other facts and circumstances in the case. ... In statements made at the time of the arrest, you may take into consideration the condition of the minds of the prisoners owing to their arrest and a question of fact as to whether or not a confession is voluntary, and is made without hope of reward or fear of punishment. It only becomes a question of law for the Court to decide when, from the facts surrounding the taking of the alleged confessions or statements, the Court, as a matter of law, can hold that the State has failed to carry its burden, which it has of showing that the confessions were free and voluntary, and that reasonable minds could not differ, and could come to but one conclusion that the confessions were involuntary and forced.” 2 Notwithstanding the apparent fact that neither the trial court nor the appellate court affirmatively held the confessions voluntary, the Tennessee Supreme Court, in its opinion, restated the rule it had announced in previous cases, that, “When confessions are offered as evidence, their competency becomes a preliminary question, to be determined by the court. . . . [If] the judge allow the jury to determine the preliminary fact, it is error, for which the judgment will be reversed.” See Self v. State, 65 Tenn. 244,253. ASHCRAFT v. TENNESSEE. 147 143 Opinion of the Court. whether they were influenced by motives of hope or fear, to make the statements. Such a statement is competent evidence against the defendant who makes it and is not competent evidence against the other defendant . . . You cannot consider it for any purpose against the other defendant.” Concerning Ashcraft’s alleged confession this general charge constituted the sole instruction to the jury.3 But with regard to Ware’s alleged confession the jury further was instructed: “It is his [Ware’s] further theory that he was induced by the fear of violence at the hands of a mob and by fear of the officers of the law to confess his guilt of the crime charged against him, but that such confession was false and that he had nothing whatsoever to do with, and no knowledge of the alleged crime. If you believe the theory of the defendant, Ware, ... it is your duty to acquit him.” Having submitted the two alleged confessions to the jury in this manner, the trial court instructed the jury that: “What the proof may show you, if anything, that the defendants have said against themselves, the law presumes to be true, but anything the defendants have said in their own behalf, you are not obliged to believe. . . .” This treatment of the confessions by the two state courts, the manner of the confessions’ submission to the jury, and the emphasis upon the great weight to be given confessions make all the more important the kind of “independent examination” of petitioners’ claims which, in 3 On motion for new trial, Ashcraft’s counsel urged error in that, "The court ... in delivering his charge to the jury ... in no place or at any time . . . presented the theory of the defendant Ashcraft to the jury. He wholly and completely in his charge ignored the contention and theory of the defendant Ashcraft that the alleged confession or admissions made by him . . . were not freely and voluntarily made. . . .” 148 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. any event, we are bound to make. Lisenba v. California, 314 U. S. 219, 237-238. Our duty to make that examination could not have been “foreclosed by the finding of a court, or the verdict of a jury, or both.” Id. We proceed therefore to consider the evidence relating to the circumstances out of which the alleged confessions came. First, as to Ashcraft. Ashcraft was born on an Arkansas farm. At the age of eleven he left the farm and became a farm hand working for others. Years later he gravitated into construction work, finally becoming a skilled dragline and steam-shovel operator. Uncontra-dicted evidence in the record was that he had acquired for himself “an excellent reputation.” In 1929 he married the deceased Zelma Ida Ashcraft. Childless, they accumulated, apparently through Ashcraft’s earnings, a very modest amount of jointly held property including bank accounts and an equity in the home in which they lived. The Supreme Court of Tennessee found “nothing to show but what the home life of Ashcraft and the deceased was pleasant and happy.” Several of Mrs. Ashcraft’s friends who were guests at the Ashcraft home on the night before her tragic death testified that both husband and wife appeared to be in a happy frame of mind. The officers first talked to Ashcraft about 6 P. M. on the day of his wife’s murder as he was returning home from work. Informed by them of the tragedy, he was taken to an undertaking establishment to identify her body which previously had been identified only by a driver’s license. From there he was taken to the county jail where he conferred with the officers until about 2 A. M. No clues of ultimate value came from this conference, though it did result in the officers’ holding and interrogating the Ashcrafts’ maid and several of her friends. During thè following week the officers made extensive investigations in Ashcraft’s neighborhood and ASHCRAFT v. TENNESSEE. 149 143 Opinion of the Court. elsewhere and further conferred with Ashcraft himself on several occasions, but none of these activities produced tangible evidence pointing to the identity of the murderer. Then, early in the evening of Saturday, June 14, the officers came to Ashcraft’s home and “took him into custody.” In the words of the Tennessee Supreme Court, “They took him to an office or room on the northwest corner of the fifth floor of the Shelby County jail. This office is equipped with all sorts of crime and detective devices such as a fingerprint outfit, cameras, high-powered lights, and such other devices as might be found in a homicide investigating office. ... It appears that the officers placed Ashcraft at a table in this room on the fifth floor of the county jail with a light over his head and began to quiz him. They questioned him in relays until the following Monday morning, June 16, 1941, around nine-thirty or ten o’clock. It appears that Ashcraft from Saturday evening at seven o’clock until Monday morning at approximately nine-thirty never left this homicide room on the fifth floor.”4 Testimony of the officers shows that the reason they questioned Ashcraft “in relays” was that they became so tired they were compelled to rest. But from 7:00 Saturday evening until 9:30 Monday morning Ashcraft had no rest. One officer did say that he gave the suspect a single five minutes’ respite, but except for this five minutes the procedure consisted of one continuous stream of questions. As to what happened in the fifth-floor jail room during this thirty-six hour secret examination the testimony 4 From the testimony it appears that Ashcraft was taken from the jail about 11 o’clock Sunday night for a period of approximately an hour to help the officers hunt the place where Ware lived. On his return Ashcraft was, for a short time, kept in a jail room different from that in which he was kept the rest of the time. 150 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. follows the usual pattern and is in hopeless conflict.’ Ashcraft swears that the first thing said to him when he was taken into custody was, “Why in hell did you kill your wife?”; that during the course of the examination he was threatened and abused in various ways; and that as the hours passed his eyes became blinded by a powerful electric light, his body became weary, and the strain on his nerves became unbearable.* 6 The officers, on the other hand, swear that throughout the questioning they were kind and considerate. They say that they did not accuse Ashcraft of the murder until four hours after he was brought to the jail building, though they freely admit that from that time on their barrage of questions was constantly directed at him on the assumption that he was 8 “As the report avers, ‘The third degree is a secret and illegal practice.’ Hence the difficulty of discovering the facts as to the extent and manner it is practiced.” IV Reports of National Committee on Law Observance and Enforcement (Wickersham Commission), U. S. Government Printing Office, 1931, Lawlessness in Law Enforcement, p. 3. Station houses and jails are most frequently employed for third degree practices, “upstairs rooms or back rooms being sometimes picked out for their greater privacy.” Id., The Third Degree, p. 170. Cf. Chambers v. Florida, 309 U. S. 227,238. 6 “ ‘Work’ is the term used to signify any form of what is commonly called the third degree, and may consist in nothing more than a severe cross-examination. Perhaps in most cases it is no more than that, but the prisoner knows that he is wholly at the mercy of his inquisitor and that the severe cross-examination may at any moment shift to a severe beating. . . . Powerful lights turned full on the prisoner’s face, or switched on and off have been found effective. . . . The most commonly used method is persistent questioning, continuing hour after hour, sometimes by relays of officers. It has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired.” Report of Committee on Lawless Enforcement of Law made to the Section of Criminal Law and Criminology of the American Bar Association (1930) 1 American Journal of Police Science 575, 579-580, also quoted in IV Wickersham Report, supra, p. 47. ASHCRAFT v. TENNESSEE. 151 143 Opinion of the Court. the murderer. Together with other persons whom they brought in on Monday morning to witness the culminar tion of the thirty-six hour ordeal the officers declare that at that time Ashcraft was “cool,” “calm,” “collected,” “normal”; that his vision was unimpaired and his eyes not bloodshot; and that he showed no outward signs of being tired or sleepy. As to whether Ashcraft actually confessed, there is a similar conflict of testimony. Ashcraft maintains that although the officers incessantly attempted by various tactics of intimidation to entrap him into a confession, not once did he admit knowledge concerning or participation in the crime. And he specifically denies the officers’ statements that he accused Ware of the crime, insisting that in response to their questions he merely gave them the name of Ware as one of several men who occasionally had ridden with him to work. The officers’ version of what happened, however, is that about 11 P. M. on Sunday night, after twenty-eight hours’ constant questioning, Ashcraft made a statement that Ware had overpowered him at his home and abducted the deceased, and was probably the killer. About midnight the officers found Ware and took him into custody, and, according to their testimony, Ware made a self-incriminating statement as of early Monday morning, and at 5:40 A. M. signed by mark a written confession in which appeared the statement that Ashcraft had hired him to commit the murder. This alleged confession of Ware was read to Ashcraft about six o’clock Monday morning, whereupon Ashcraft is said substantially to have admitted its truth in a detailed statement taken down by a reporter. About 9:30 Monday morning a transcript of Ashcraft’s purported statement was read to him. The State’s position is that he affirmed its truth but refused to sign the transcript, saying that he first wanted to consult his lawyer. As to 152 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. this latter 9:30 episode the officers’ testimony is reinforced by testimony of the several persons whom they brought in to witness the end of the examination. In reaching our conclusion as to the validity of Ashcraft’s confession we do not resolve any of the disputed questions of fact relating to the details of what transpired within the confession chamber of the jail or whether Ashcraft actually did confess.7 Such disputes, we may say, are an inescapable consequence of secret inquisitorial practices. And always evidence concerning the inner details of secret inquisitions8 is weighted against an accused, 7 The use in evidence of a defendant’s coerced confession cannot be justified on the ground that the defendant has denied he ever gave the confession. White v. Texas, 310 U. S. 530,531-532. 8 State and federal courts, textbook writers, legal commentators, and governmental commissions consistently have applied the name of “inquisition” to prolonged examination of suspects conducted as was the examination of Ashcraft. See, e. g., cases cited in IV Wickersham Report, supra, and also pp. 44, 47, 48, and passim; Pound (Cuthbert W.), Inquisitorial Confessions, 1 Cornell L. Q. 77; Chambers v. Florida, 309 U. S. 227, 237; Bram v. United States, 168 U. 8. 532, 544; Brown v. Walker, 161 U. S. 591, 596; Counselman v. Hitchcock, 142 U. S. 547, 573; cf. Cooper v. State, 86 Ala. 610, 611, 6 So. 110. In a case where no physical violence was inflicted or threatened, the Supreme Court of Virginia expressly approved the statement of the trial judge that the manner and methods used in obtaining the confession read “like a chapter from the history of the inquisition of the Middle Ages.” Enoch v. Commonwealth, 141 Va. 411, 423, 126 S. E. 222, 225; and see Cross v. State, 142 Tenn. 510, 514,221 S. W. 489. The analogy, of course, was in the fact that old inquisition practices included questioning suspects in secret places, away from friends and counsel, with notaries waiting to take down “confessions,” and with arrangements to have the suspect later affirm the truth of his confession in the presence of witnesses who took no part in the inquisition. See Encyclopedia Britannica, Fourteenth Ed., “Inquisition”; Prescott, Ferdinand and Isabella, Sixth Ed., Part First, Chap. VII, The Inquisition; VIII Wigmore on Evidence, Third Ed., p. 307. “In the more serious offenses the party suspected is arrested, he is placed on his inquisition before the chief of police, and ASHCRAFT v. TENNESSEE. 153 143 Opinion of the Court. particularly where, as here, he is charged with a brutal crime, or where, as in many other cases, his supposed offense bears relation to an unpopular economic, political, or religious cause. Our conclusion is that if Ashcraft made a confession it was not voluntary but compelled. We reach this conclusion from facts which are not in dispute at all. Ashcraft, a citizen of excellent reputation, was taken into custody by police officers. Ten days’ examination of the Ashcrafts’ maid, and of several others, in jail where they were held, had revealed nothing whatever against Ashcraft. Inquiries among his neighbors and business associates likewise had failed to unearth one single tangible clue pointing to his guilt. For thirty-six hours after Ashcraft’s seizure during which period he was held incommunicado, without sleep or rest, relays of officers, experienced investigators, and highly trained lawyers questioned him without respite. From the beginning of the questioning at 7 o’clock on Saturday evening until 6 o’clock on Monday morning Ashcraft denied that he had anything to do with the murder of his wife. And at a hearing a statement is obtained. . . . Where the office of the district attorney is in political harmony with the police system, the district attorney is generally invited to be present as an inquisitor.” 2 Wharton on Criminal Evidence, Eleventh Ed., pp. 1021-1022; and see Notes 5 and 6, supra. An admirable summary of the generally expressed judicial attitude toward these practices is set forth in the Report of The Committee on Lawless Enforcement of Law, 1 Amer. Journ. of Police Science, supra, p. 587: “Holding incommunicado is objectionable because arbitrary—at the mere will and unregulated pleasure of a police officer. . . . The use of the third degree is obnoxious because it is secret; because the prisoner is wholly unrepresented; because there is present no neutral, impartial authority to determine questions between the police and the prisoner; because there is no limit to the range of the inquisition, nor to the pressure that may be put upon the prisoner.” 154 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. before a magistrate about 8:30 Monday morning Ashcraft pleaded not guilty to the charge of murder which the officers had sought to make him confess during the previous thirty-six hours. We think a situation such as that here shown by uncontradicted evidence is so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear.9 It is inconceivable that any court of justice in the land, conducted as our courts are, open to the public, would permit prosecutors serving in relays to keep a defendant witness under continuous cross-examination for thirty-six hours without rest or sleep in an effort to extract a “voluntary” confession. Nor can we, consistently with Constitutional due process of law, hold voluntary a confession where prosecutors do the same thing away from the restraining influences of a public trial in an open court room.10 9 Bram v. United States, 168 U. S. 532, 556, 562-563; see also Wan v. United States, 266 U. S. 1, 14-15; Burdeau v. McDowell, 256 U. S. 465, 475; Counselman v. Hitchcock, 142 U. S. 547, 573-574; 3 Elliot’s Debates, pp. 445-449, 452; cf. Chambers v. Florida, 309 U. S. 227. The question in the Bram case was whether Bram had been compelled or coerced by a police officer to make a self-incriminatory statement, contrary to the Fifth Amendment; and the question here is whether Ashcraft similarly was coerced to make such a statement, contrary to the Fourteenth Amendment. Liseriba v. California, 314 U. S. 219, 236-238. Taken together, the Bram and Lisenba cases hold that a coerced or compelled confession cannot be used to convict a defendant in any state or federal court. And the decision in the Bram case makes it clear that the admitted circumstances under which Ashcraft is alleged to have confessed preclude a holding that he acted voluntarily. 10 Compare the following allegation contained in Ashcraft’s motion for new trial, “The Sheriff’s deputies ... set themselves up as a quasi judicial tribunal and tried . . . and convicted him there and in so doing rendered a trial . . . before the trial court . . . and the jury of peers ... a mere formality,” with Lisenba v. California, supra, p. 237. “The ASHCRAFT v. TENNESSEE. 155 143 Opinion of the Court. The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession.* 11 There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government. Second, as to Ware. Ashcraft and Ware were jointly tried, and were convicted on the theory that Ashcraft hired Ware to perform the murder. Ware’s conviction was sustained by the Tennessee Supreme Court on the assumption that Ashcraft’s confession was properly admitted and his conviction valid. Whether it would have been sustained had the court reached the conclusion we have reached as to Ashcraft we cannot know. Doubt as to what the state court would have done under the changed requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions . . .” Cooley’s Constitutional Limitations, Sixth Ed. (1890) p. 379; see also Keddington v. State, 19 Ariz. 457, 459, 172 P. 273. “The aid of counsel in preparation would be farcical if the case could be foreclosed by a preliminary inquisition which would squeeze out conviction or prejudice by means unconstitutional if used at the trial.” Wood v. United States, 128 F. 2d 265. 271. See also Chambers v. Florida, supra, p. 237, Note 10. 11 Chambers v. Florida, 309 U. S. 227; Canty v. Alabama, 309 U. S. 629; White v. Texas, 310 U. S. 530; Lomax v. Texas, 313 U. S. 544; Vernon v. Alabama, 313 U. S. 547; Liseriba v. California, 314 U. S. 219, 236-238; Ward v. Texas, 316 U. S. 547, 555; and see Bram v. United States, 168 U. S. 532. 156 OCTOBER TERM, 1943. Jackson, J., dissenting. 322U.S. circumstances brought about by our reversal of its decision as to Ashcraft is emphasized by the position of the State’s representatives in this Court. They have asked that if we reverse Ashcraft’s conviction we also reverse Ware’s. In disposing of cases before us it is our responsibility to make such disposition as justice may require. “And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.” Patterson n. Alabama, 294 U. S. 600, 607; State Tax Commission v. Van Cott, 306 U. S. 511, 515-516. Application of this guiding principle to the case at hand requires that we send Ware’s case back to the Tennessee Supreme Court. Should that Court in passing on Ware’s conviction in the light of our ruling as to Ashcraft adopt the State Attorney General’s view and reverse the conviction there then would be no occasion for our passing on the federal question here raised by Ware. Under these circumstances we vacate the judgment of the Tennessee Supreme Court affirming Ware’s conviction, and remand his case to that Court for further proceedings. The judgment affirming Ashcraft’s conviction is reversed and the cause is remanded to the Supreme Court of Tennessee for proceedings not inconsistent with this opinion. It is so ordered. Mr. Justice Jackson, dissenting: A sovereign State is now before us, summoned on the charge that it has obtained convictions by methods so unfair that a federal court must set aside what the state courts have done. Heretofore the State has had the benefit of a presumption of regularity and legality. A confession made by one in custody heretofore has been ASHCRAFT v. TENNESSEE. 157 143 Jackson, J., dissenting. admissible in evidence unless it was proved and found that it was obtained by pressures so strong that it was in fact involuntarily made, that the individual will of the particular confessor had been overcome by torture, mob violence, fraud, trickery, threats, or promises. Even where there was excess and abuse of power on the part of officers, the State still was entitled to use the confession if upon examination of the whole evidence it was found to negative the view that the accused had “so lost his freedom of action that the statements made were not his but were the result of the deprivation of his free choice to admit, to deny, or to refuse to answer.” Liseriba v. California, 314 U. S. 219,241. In determining these issues of fact, respect for the sovereign character of the several States always has constrained this Court to give great weight to findings of fact' of state courts. While we have sometimes gone back of state court determinations to make sure whether the guaranties of the Fourteenth Amendment have or have not been violated, in close cases the decisions of state courts have often been sufficient to tip the scales in favor of affirmance. Lisenba v. California, supra, 238, 239; Buchalter v. New York, 319 U. S. 427, 431; cf. Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287, 294. As we read the present decision the Court in effect declines to apply these well-established principles. Instead, it: (1) substitutes for determination on conflicting evidence the question whether this confession was actually produced by coercion, a presumption that it was, on a new doctrine that examination in custody of this duration is “inherently coercive”; (2) it makes that presumption irrebuttable—i. e., a rule of law—because, while it goes back of the state decisions to find certain facts, it refuses to resolve conflicts in evidence to determine whether other of 158 OCTOBER TERM, 1943. Jackson, J., dissenting. 322U.S. the State’s proof is sufficient to overcome such presumption; and, in so doing, (3) it sets aside the findings by the courts of Tennessee that on all the facts this confession did not result from coercion, either giving those findings no weight or regarding them as immaterial. We must bear in mind that this case does not come here from a lower federal court over whose conduct we may assert a general supervisory power. If it did, we should be at liberty to apply rules as to the admissibility of confessions, based on our own conception of permissible procedure, and in which we may embody restrictions even greater than those imposed upon the States by the Fourteenth Amendment. See Bram v. United States, 168 U. S. 532; Wan v. United States, 266 U. S. 1; McNabb n. United States, 318 U. S. 332, 341; United States v. Mitchell, 322 U. S. 65. But we have no such supervisory power over state courts. We may not lay down rules of evidence for them nor revise their decisions merely because we feel more confidence in our own wisdom and rectitude. We have no power to discipline the police or law-enforcement officers of the State of Tennessee nor to reverse its convictions in retribution for conduct which we may personally disapprove. The burden of protecting society from most crimes against persons and property falls upon the State. Different States have different crime problems and some freedom to vary procedures according to their own ideas. Here, a State was forced by an unwitnessed and baffling murder to vindicate its law and protect its society. To nullify its conviction in this particular case upon a consideration of all the facts would be a delicate exercise of federal judicial power. But to go beyond this, as the Court does today, and divine in the due process clause of the Fourteenth Amendment an exclusion of confessions on an irrebuttable presumption that custody and examination are “inher-ently coercive” if of some unspecified duration within ASHCRAFT v. TENNESSEE. 159 143 Jackson, J., dissenting. thirty-six hours, requires us to make more than a passing expression of our doubts and disagreements. I. The claim of a suspect to immunity from questioning creates one of the most vexing problems in criminal law—that branch of the law which does the courts and the legal profession least credit. The consequences upon society of limiting examination of persons out of court cannot fairly be appraised without recognition of the advantage criminals already enjoy in immunity from compulsory examination in court. Of this latter Mr. Justice Cardozo, for an all but unanimous Court, said: “This too might be lost, and justice still be done. Indeed, today as in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope, or destroy it altogether. No doubt there would remain the need to give protection against torture, physical or mental.” Palko v. Connecticut, 302 U. S. 319, 325-26. This Court never yet has held that the Constitution denies a State the right to use a confession just because the confessor was questioned in custody where it did not also find other circumstances that deprived him of a “free choice to admit, to deny, or to refuse to answer.” Lisenko v. California, 314 U. S. 219, 241. The Constitution requires that a conviction rest on a fair trial. Forced confessions are ruled out of a fair trial. They are ruled out because they have been wrung from a prisoner by measures which are offensive to concepts of fundamental fairness. Different courts have used different terms to express the test by which to judge the inadmissibility of a confession, such as “forced,” “coerced,” “involuntary,” “extorted,” “loss of freedom of will.” But always where we have professed to speak with the voice of the due process clause, the test, in whatever words stated, has been 160 OCTOBER TERM, 1943. Jackson, J., dissenting. 322U.S. applied to the particular confessor at the time of confession. It is for this reason that American courts hold almost universally and very properly that a confession obtained during or shortly after the confessor has been subjected to brutality, torture, beating, starvation, or physical pain of any kind is prima fade “involuntary.” The effect of threats alone may depend more on individual susceptibility to fear. But men are so constituted that many will risk the postponed consequences of yielding to a demand for a confession in order to be rid of present or imminent physical suffering. Actual or threatened violence have no place in eliciting truth and it is fair to assume that no officer of the law will resort to cruelty if truth is what he is seeking. We need not be too exacting about proof of the effects of such violence on the individual involved, for their effect on the human personality is invariably and seriously demoralizing. When, however, we consider a confession obtained by questioning, even if persistent and prolonged, we are in a different field. Interrogation per se is not, while violence per se is, an outlaw. Questioning is an indispensable instrumentality of justice. It may be abused, of course, as cross-examination in court may be abused, but the principles by which we may adjudge when it passes constitutional limits are quite different from those that condemn police brutality, and are far more difficult to apply. And they call for a more responsible and cautious exercise of our office. For we may err on the side of hostility to violence without doing injury to legitimate prosecution of crime; we cannot read an undiscriminating hostility to mere interrogation into the Constitution without unduly fettering the States in protecting society from the criminal. It probably is the normal instinct to deny and conceal any shameful or guilty act. Even a “voluntary confes- ASHCRAFT v. TENNESSEE. 161 143 Jackson, J., dissenting. sion” is hot likely to be the product of the same motives with which one may volunteer information that does not incriminate or concern him. The term “voluntary” confession does not mean voluntary in the sense of a confession to a priest merely to rid one’s soul of a sense of guilt. “Voluntary confessions” in criminal law are the product of calculations of a different order, and usually proceed from a belief that further denial is useless and perhaps prejudicial. To speak of any confessions of crime made after arrest as being “voluntary” or “uncoerced” is somewhat inaccurate, although traditional. A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser. The Court bases its decision on the premise that custody and examination of a prisoner for thirty-six hours is “inherently coercive.” Of course it is. And so is custody and examination for one hour. Arrest itself is inherently coercive, and so is detention. When not justified, infliction of such indignities upon the person is actionable as a tort. Of course such acts put pressure upon the prisoner to answer questions, to answer them truthfully, and to confess if guilty. But does the Constitution prohibit use of all confessions made after arrest because questioning, while one is deprived of freedom, is “inherently coercive”? The Court does not quite say so, but it is moving far and fast in that direction. The step it now takes is to hold this confession inadmissible because of the time taken in getting it. The duration and intensity of an examination or inquisition always have been regarded as one of the relevant and important considerations in estimating its effect on the will of the individual involved. Thirty-six hours is a long stretch of questioning. That the inquiry was prolonged and persistent is a factor that in any calculation 162 OCTOBER TERM, 1943. Jackson, J., dissenting. 322 U. S. of its effect on Ashcraft would count heavily against the confession. But some men would withstand for days pressures that would destroy the will of another jn hours. Always heretofore the ultimate question has been whether the confessor was in possession of his own will and self-control at the time of confession. For its bearing on this question the Court always has considered the confessor’s strength or weakness, whether he was educated or illiterate, intelligent or moronic, well or ill, Negro or white. But the Court refuses in this case to be guided by this test. It rejects the finding of the Tennessee courts and says it must make an “independent examination” of the circumstances. Then it says that it will not “resolve any of the disputed questions of fact” relating to the circumstances of the confession. Instead of finding as a fact that Ashcraft’s freedom of will was impaired, it substitutes the doctrine that the situation was “inherently coercive.” It thus reaches on a part of the evidence in the case a conclusion which I shall demonstrate it could not properly reach on all the evidence. And it refuses to resolve the conflicts in the other evidence to determine whether it rebuts the presumption thus reached that the confession is a coerced one. If the constitutional admissibility of a confession is no longer to be measured by the mental state of the individual confessor but by a general doctrine dependent on the clock, it should be capable of statement in definite terms. If thirty-six hours is more than is permissible, what about 24? or 12? or 6? or 1? All are “inherently coercive.” Of course questions of law like this often turn on matters of degree. But are not the States entitled to know, if this Court is able to state, what the considerations are which make any particular degree decisive? How else may state courts apply our tests? ASHCRAFT v. TENNESSEE. 163 143 Jackson, J., dissenting. The importance of defining these new constitutional standards of admissibility of confessions is emphasized by the decision to return the companion case of Ware to the Supreme Court of Tennessee for reconsideration “in the light of our ruling as to Ashcraft.” Except for Ware’s own testimony, all of the evidence is that when he confronted Ashcraft in custody Ware confessed immediately, voluntarily, and almost spontaneously. But he had been arrested, taken from bed into custody, and detained and questioned. Does the doctrine of inherent coerciveness condemn the Ware confession? Should the Tennessee court decide whether Ware, obviously a much weaker character than Ashcraft, was actually coerced into confessing? It already has decided that question and this Court does not hold the fact determined wrongly. Ware’s case is properly in this Court. Why should not this Court decide Ware’s case on the merits and thus test and expound its novel ruling as applied to a different set of circumstances? No one can regard the rule of exclusion dependent on the state of the individual’s will as an easy one to apply. It leads to controversy, speculation, and variations in application. To eliminate these evils by eliminating all confessions made after interrogation while in custody is a drastic alternative, but it is the logical consequence of today’s ruling, as its application to the facts of Ashcraft’s case will show. II. Apart from Ashcraft’s uncorroborated testimony, which the Tennessee courts refused to believe, there is much evidence in this record from persons whom they did believe and were justified in believing. This evidence shows that despite the “inherent coerciveness” of the circumstances of his examination, the confession when made was delib- 164 OCTOBER TERM, 1943. Jackson, J., dissenting. 322U.S. erate, free, and voluntary in the sense in which that term is used in criminal law. This Court could not, in our opinion, hold this confession an involuntary one except by substituting its presumption in place of analysis of the evidence and refusing to weigh the evidence even in rebuttal of its presumption. As in most such cases, we start with some admitted facts. In the early morning Mrs. Ashcraft left her home in an automobile to visit relatives. She was found murdered. She had not been robbed nor ravished, although an effort had been made to give the crime an appearance of robbery. The officers knew of no other motive for the killing and naturally turned to her husband for information. On the afternoon of the crime, Thursday, June 5, 1941, they took Ashcraft to the morgue to identify the body, and to the county jail, where he was kept and interviewed until 2:00 a. m. He makes no complaint of his treatment at this time. In this and several later interviews he made a number of statements with reference to the condition of the car, and as to Mrs. Ashcraft’s having taken a certain drug, and as to money which she was accustomed to carry on her person, which further investigation indicated to be untrue. Still Ashcraft was not arrested. He professed to be willing to assist in identifying the killer. At last, on Saturday evening, June 14, an officer brought Ashcraft to the jail for further questioning. He was taken to a room on the fifth floor and questioned intermittently by several officers over a period of about thirty-six hours. There are two versions as to what happened during this period of questioning. According to the version of the officers, which was accepted by the court which saw the witnesses, what happened? On Saturday evening Ashcraft was taken to the jail, where he was questioned by Mr. Becker and Mr. Battle. Becker is in the Intelligence ASHCRAFT v. TENNESSEE. 165 143 Jackson, J., dissenting. Service of the United States Army at the present time and before that was in charge of the Homicide Bureau of the Sheriff’s office of Shelby County, Tennessee. Battle has for eight years been an Assistant Attorney General of the County. They began questioning Ashcraft about 7:00 p. m. They recounted various statements of his which had proved untrue. About 11:00 o’clock Ashcraft said he realized the circumstances all pointed to him and that he could not explain the circumstances. They then accused him of the murder, but he denied it. About 3:00 a. m. Becker and Battle retired and left Ashcraft in charge of Ezzell, a special investigator connected with the Attorney General’s office. He questioned Ashcraft and discussed the crime with him until about 7:00 on Sunday morning. Becker and Battle then returned and interviewed him intermittently until about noon, when Ezzell returned and remained until about 5:00. Becker then returned, and about 11:00 o’clock Sunday night Ashcraft expressed a desire to talk with Ezzell. Ezzell was sent for and Ashcraft told him he wanted to tell him the truth. He said, “Mr. Ezzell, a Negro killed my wife.” Ezzell asked the Negro’s name, and Ashcraft said, “Tom Ware.” Up to this time Ware had not been suspected, nor had his name been mentioned. Ashcraft explained that he did not tell the officers before because “I was scared; the Negro said he would burn my house down if I told the law.” Thereupon Becker, Battle, Ezzell, and Mr. Jayroe, connected with the Sheriff’s office, took Ashcraft in a car and found Ware. When questioned at the jail, Ware turned to Ashcraft and said in substance that he had told Ashcraft when this thing happened that he did not intend to take the entire blame. The officers thereupon turned their attention to Ware. He promptly admitted the killing and said Ashcraft hired him to do it. Waldauer, the court reporter, was called to take down this confession, and 166 OCTOBER TERM, 1943. Jackson, J., dissenting. 322 U. S. completed his transcript at about 5:40 a. m. He read it to Ware and told him he did not have to sign it unless he so chose. Ware made his mark upon it and swore to it before Waldauer as a Notary Public. A copy was given to Ashcraft, and he then admitted that he had hired Ware to kill his wife. He was given breakfast and then in response to questions made a statement which was taken down by the court reporter, Waldauer. It was transcribed, but Ashcraft declined to sign it, saying that he wanted his lawyer to see it before he signed it. No effort was made to compel him to sign the confession. However, two business men of Memphis, Mr. Castle, vice president of a bank, and Mr. Pidgeon, president of the Coca-Cola Bottling Company, were called in. Both testified that Ashcraft in their presence asserted that the transcript was correct but that he declined to sign it. The officers also called Dr. McQuiston to the jail to make a physical examination of both Ashcraft and Ware. He had practiced medicine in Memphis for twenty-eight years and both Mr. and Mrs. Ashcraft had been his patients for something like five years. In the presence of this friendly doctor Ashcraft might have complained of his treatment and avowed his innocence. The doctor testified, however, that Ashcraft said he had been treated all right, that he made no complaint about his eyes, and that they were not bloodshot. The doctor made a physical examination, and says Ashcraft appeared normal. He further testified as to Ashcraft, “Well, sir, he said he had not been able to get along with his wife for some time; that her health had been bad; that he had offered her a property settlement, and that she might go her way and he his way; and he also stated that he offered this colored man, Ware, a sum of money to make away with his wife.”1 The doctor says * uThe officers had been baffled as to any motive for Ashcraft to murder his wife (who was his third, two former ones having been ASHCRAFT v. TENNESSEE. 167 143 Jackson, J., dissenting. that that statement was entirely voluntary. No matter what pressure had been put on Ashcraft before, the courts below could reasonably believe that he made this statement voluntarily to a man of whom he had no fear and who knew his family relations. Ashcraft’s story of torture could only be accepted by disbelieving such credible and unimpeached contradiction. Ashcraft testified that he was refused food, and was not allowed to go to the lavatory, and was denied even a drink of water. Other testimony is that on Saturday night he was brought a sandwich and coffee about midnight; that he drank the coffee but refused the sandwich; that on Sunday morning he was given a breakfast and was fed again about noon a plate lunch consisting of meat and vegetables and coffee. Both Waldauer, the Reporter, and Dr. McQuiston testified that they saw breakfast served to Ashcraft the next morning before the statement taken down by Waldauer. Ashcraft claims he was threatened and that a cigarette was slapped out of his mouth. This is all denied. This Court rejects the testimony of the officers and disinterested witnesses in this case that the confession was voluntary not because it lacked probative value in itself nor because the witnesses were self-contradictory or were impeached. On the contrary, it is impugned only on grounds such as that such disputes “are an inescapable consequence of secret inquisitorial practices.” We infer from this that since a prisoner’s unsupported word often conflicts with that of the officers, the officer’s testimony for constitutional purposes is always prima facie false. We know that police standards often leave much to be desired, but we are not ready to believe that the democratic proc- separated from him by divorce). He disclosed in his confession to them that her sickness had resulted in a degree of irritability which had made them incompatible and resulted in his sexual frustration. 168 OCTOBER TERM, 1943. Jackson, J., dissenting. 322 U. S. ess brings to office men generally less believable than the average of those accused of crime. Reference also is made to the fact that when petitioner was questioned investigation had failed “to unearth one single tangible clue pointing to his guilt.” We cannot see the relevance of such circumstances on the question of the voluntary or involuntary character of his statements to the officers. Is the suggestion that if they had probable clews to his guilt, their questioning of him would have been better justified? This questioning is characterized as a “secret inquisition,” invoking all of the horrendous historical associations of those words. Certainly the inquiry was participated in by a good many persons, and we do not see how it could have been much less “secret” unless the press should have been called in. Of course, any questioning may be characterized as an “inquisition,” but the use of such characterizations is no substitute for the detached and judicial consideration that the court below gave to the case. We conclude that even going behind the state court decisions into the facts, no independent judgment on the whole evidence that Ashcraft’s confession was in fact coerced is possible. And against this background of facts the extreme character of the Court’s ruling becomes apparent. I am not sure whether the Court denies the State all right to arrest and question the husband of the slain woman. No investigation worthy of the name could fail to examine him. Of all persons, he was most likely to know whether she had enemies or rivals. Would not the State have a constitutional right, whether he was accused or not, to arrest and detain him as a material witness? If it has the right to detain one as a witness, presumably it has the right to examine him. ASHCRAFT v. TENNESSEE. 169 143 Jackson, J., dissenting. Could the State not confront Ashcraft with his false statements and ask his explanation? He did not throw himself at any time on his rights, refuse to answer, and demand counsel, even according to his own testimony. The strategy of the officers evidently was to keep him talking, to give him plenty of rope and see if he would not hang himself. He does not claim to have made objection to this. Instead he relied on his wits. The time came when it dawned on him that his own story brought him under suspicion, and that he could not meet it. Must the officers stop at this point because he was coming to appreciate the uselessness of deception? Then he became desperate and accused the Negro. Certainly from this point the State was justified in holding and questioning him as a witness, for he claimed to know the killer. That accusation backfired and only turned up a witness against him. He had run out of expedients and inventions; he knew he had lost the battle of wits. After all, honesty seemed to be the best, even if the last, policy. He confessed in detail. At what point in all this investigation does the Court hold that the Constitution commands these officers to send Ashcraft on his way and give up the murder as insoluble? If the State is denied the right to apply any pressure to him which is “inherently coercive” it could hardly deprive him of his freedom at all. I, too, dislike to think of any man, under the disadvantages and indignities of detention being questioned about his personal life for thirty-six hours or for one hour. In fact, there is much in our whole system of penology that seems archaic and vindictive and badly managed. Every person in the community, no matter how inconvenient or embarrassing, no matter what retaliation it exposes him to, may be called upon to take the witness stand and tell all he knows about a crime—except the person who knows most about it. 170 OCTOBER TERM, 1943. Jackson, J., dissenting. 322U.S. Efforts of prosecutors to compensate for this handicap by violent or brutal treatment or threats we condemn as passionately and sincerely as other members of the Court. But we are not ready to say that the pressure to disclose crime, involved in decent detention and lengthy examination, although we admit them to be “inherently coercive,” are denied to a State by the Constitution, where they are not proved to have passed the individual’s ability to resist and to admit, deny, or refuse to answer. III. The Court either gives no weight to the findings of the Tennessee courts or it regards their inquiry as to the effect on the individuals involved as immaterial. We think it was a material inquiry and that respect is due to their conclusion. The Supreme Court of Tennessee, writing in this case, stated the law of that State by which it reviewed and affirmed the action of the trial court. It said, “When confessions are offered as evidence, their competency becomes a preliminary question to be determined by the court. This imposes upon the presiding judge the duty of deciding the fact whether the party making the confession was influenced by hope or fear. This rule is so well established, that if the judge allow the jury to determine the preliminary fact, it is error, for which the judgment will be reversed. “In the instant case the trial judge heard the witnesses as to their confessions out of the presence of the jury, and he held that under the facts he could not say that the confessions were not voluntarily made and, therefore, permitted them to go to the jury.” (Emphasis supplied.) The rule of law thus laid down complied with the law as this Court had settled it at the time of trial. The Tennessee Supreme Court made a painstaking examination of the evidence in the light of the claim that ASHCRAFT v. TENNESSEE. 171 143 Jackson, J., dissenting. the confessions were coerced. It concluded that it was “unable to say that the confessions were not freely and voluntarily made. Both of the plaintiffs in error have had a fair trial and we decline to disturb the conviction.” That court, it is clear, renders no mere lip service to the guaranties of the Constitution. In other cases it has set aside convictions because confessions used at trials were found to have been coerced.2 There is not the least indication that the court was passionate or biased or that the result does not represent the honest judgment of a high-minded court, sensitive to these problems. A trial judge out of hearing of the jury saw and heard Ashcraft and saw and heard those whom Ashcraft accused of coercing him. In determining a matter of this kind no one can deny the great advantage of a court which may see and hear a man who claims that his will succumbed and those who, it is claimed, were so overbearing. The real issue is strength of character, and a few minutes’ observation of the parties in the courtroom is more informing than reams of cold record. There is not the slightest indication that the trial judge was prejudiced or indifferent to the prisoner’s rights. Ashcraft’s counsel moved to exclude his confession “for the reason that the statements contained therein were not freely and voluntarily made, nor were they free from duress and restraint, but were secured by compulsion. . . .” The court said, “. . . the sole proposition, as the Court sees it from this testimony, is that he was confined and questioned for a period of approximately thirty-six hours. I think counsel concedes that is practically the main ground upon which he rests his motion. There was no physical violence offered to the defendant Ashcraft, and none claimed.” He overruled the motion and received the confession. This 2 Deathridge v. State, 33 Tenn. 75; Strady n. State, 45 Tenn. 300; Self v. State, 65 Tenn. 244; Cross v. State, 142 Tenn. 510, 221 S. W. 489; Rounds v. State, 171 Tenn. 511,106 S. W. 2d 212. 172 OCTOBER TERM, 1943. Jackson, J., dissenting. 322U.S. Court, not one of whose members ever saw Ashcraft or any one of the State’s witnesses, overturns the decision by the trial judge. Moreover, a jury held Ashcraft’s statements incredible. After the trial judge, out of their presence, heard the evidence and decided the confession was admissible, the jury heard the evidence to decide whether the confession should be believed. Ashcraft again testified and so did all of the witnesses for the State. Conduct of the hearing both by the judge and the prosecutors was above criticism. The Court observes: “If, therefore, the question of the voluntariness of the two confessions was actually decided at all it was by the jury.” Is it suggested that a State consistently with the Constitution may not leave this question to the sole determination of a jury? I had supposed that the constitutional duty of a State when such questions of fact arise is to furnish due process of law for deciding them. Does not jury trial meet this test? Here Tennessee, and I think very commendably, provided the double safeguards of a preliminary trial by the judge and a final determination by the jury. The Court’s opinion makes a critical reference to the charge of the trial judge. However, diligent counsel took no exception to the part of the charge quoted, made no request for further instruction on the subject, and assigned no error to the charge. Even if we think the charge inadequate, does the inadequacy of a charge constitute want of due process? And if so, do we review questions as to the charge although counsel for the petitioner made no objection during the trial when the judge could have corrected the error, but after the trial was over assigned it as one of twelve reasons for demanding a new trial? No conclusion that this confession was actually coerced can be reached on this record except by reliance upon the utterly uncorroborated statements of defendant Ashcraft. ASHCRAFT v. TENNESSEE. 173 143 Jackson, J., dissenting. His testimony does not carry even ordinary guaranties of truthfulness, and the courts and jury were not bound to accept it. Perjury is a light offense compared to murder and they may well have believed that Ashcraft was ready to resort to a lesser crime to avoid conviction of a greater one. Furthermore, the very grounds on which this Court now upsets his conviction Ashcraft repudiated at the trial. He asserts that he was abused, but he does not testify as this Court holds that it had the effect of forcing an involuntary confession from him. On the contrary, he flatly insists that it had no such effect and that he never did confess at all. Against Ashcraft’s word the state courts and jury accepted the testimony of several apparently disinterested witnesses of high standing in their communities, in addition to that of the accused officers. One of the witnesses to Ashcraft’s admission of guilt was his own family physician, two were disinterested businessmen of substance and standing, another was an experienced court reporter who had long held this position of considerable trust. Another was a member of the bar. Certainly, the state courts were not committing an offense against the Constitution of the United States in refusing to believe that this whole group of apparently reputable citizens entered into a conspiracy to swear a murder onto an innocent man, against whom not one of them is shown to have had a grievance or a grudge. This is not the case of an ignorant and unrepresented defendant who has been the victim of prej udice. Ashcraft was a white man of good reputation, good position, and substantial property. For a week after this crime was discovered he was not detained, although his stories to the officers did not hang together, but was at large, free to consult his friends and counsel. There was no indecent haste, but on the contrary evident deliberation, in suspect- 174 OCTOBER TERM, 1943. Syllabus. 322 U. S. ing and accusing him. He was not sentenced to death, but for a term that probably means life. He was defended by resourceful and diligent counsel. The use of the due process clause to disable the States in protection of society from crime is quite as dangerous and delicate a use of federal judicial power as to use it to disable them from social or economic experimentation. The warning words of Mr. Justice Holmes in his dissenting opinion in Baldwin v. Missouri, 281 U. S. 586, 595, seem to us appropriate for rereading now. Mr. Justice Roberts and Mr. Justice Frankfurter join in this opinion. UNITED STATES et al. v. COUNTY OF ALLEGHENY. APPEAL FROM THE SUPREME COURT OF PENNSYLVANIA. No. 417. Argued March 1, 1944.—Decided May 1, 1944. Pursuant to a contract with the United States for the production of ordnance, a contractor installed machinery in his mill. In the assessment of the mill for state taxes, the value of the machinery was included. Held: 1. Whether the machinery was property of the United States was a federal question. P. 182. 2. Title to the machinery was in the United States. P. 183. 3. The state tax law, so far as it purports to authorize taxation of the property interests of the United States in the machinery in the contractor’s plant, or to use that interest to tax or to enhance the tax upon the Government’s bailee, violates the Federal Constitution. P. 192. 4. The claim in this case that immunity from state taxation was waived is unsupported. P. 189. (a) A provision of the contract requiring the contractor to abide by the “applicable” state law was inadequate to waive federal immunity. P. 189. (b) A provision of the contract whereby the Government was obligated to pay certain taxes of the contractor did not operate to waive immunity. P. 189. U. S. v. ALLEGHENY COUNTY. 175 174 Opinion of the Court. 5. The invalidity of the tax was not dependent upon where its economic burden fell. P. 189. 6. Local governments may not impose either compensatory or retaliatory taxes on property interests of the Federal Government. P. 190. 7. The contractor, upon whom the tax was laid, and the Government, as intervenor, having made timely insistence in the proceeding below that the state tax law as applied violated the Federal Constitution, and the highest court of the State having rendered final judgment against the claim of federal right, this Court has jurisdiction on appeal. Jud. Code § 237 (a). P. 191. 347 Pa. 191,32 A. 2d 236, reversed. Appeal from the reversal of a judgment which held a state tax invalid under the Federal Constitution. Solicitor General Fahy, with whom Assistant Attorney General Samuel 0. Clark, Jr., Judge Advocate General Cramer, and Messrs. Sewall Key, J. Louis Monarch, Alvin J. Rockwell, and Paul F. Mickey were on the brief, for the United States; and Messrs. Elder W. Marshall and Carl E. Glock submitted for the Mesta Machine Co.,—appellants. Mr. Edward G. Bothwell, with whom Mr. John J. O’Connell was on the brief, for appellee. By special leave of Court, Miss Anne X. Alpern, with whom Messrs. Ray L. Chesebro, L. E. Latourette, William E. Kemp, Richmond B. Keech, J. H. O’Connor, and Charles S. Rhyne were on the brief, for the member cities of the National Institute of Municipal Law Officers, as amici curiae, urging affirmance. Mr. Justice Jackson delivered the opinion of the Court. We are called upon to solve another of the recurring conflicts between the power to tax and the right to be free from taxation which are inevitable where two governments function at the same time and in the same territory. 176 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. In arguing the case of McCulloch v. Maryland, Luther Martin, Attorney General of Maryland, himself a member of the Constitutional Convention, said, “The whole of this subject of taxation is full of difficulties, which the Convention found it impossible to solve, in a manner entirely satisfactory. The first attempt was to divide the subjects of taxation between the State and the national government. This being found impracticable, or inconvenient, the State governments surrendered altogether their right to tax imports and exports, and tonnage; giving the* authority to tax all other subjects to Congress, but reserving to the States a concurrent right to tax the same subjects to an unlimited extent. This was one of the anomalies of the government, the evils of which must be endured, or mitigated by discretion and mutual forbearance.” McCulloch v. Maryland, 4 Wheat. 316, 376. Where discretion and forbearance have failed, it often has fallen to this Court to determine specific cases for which the Convention was unable to agree upon a general rule. Looking backward it is easy to see that the line between the taxable and the immune has been drawn by an unsteady hand. But since 1819, when Chief Justice Marshall in the McCulloch case expounded the principle that properties, functions, and instrumentalities of the Federated Government are immune from taxation by its constituent parts, this Court never has departed from that basic doctrine or wavered in its application. In the course of time it held that even without explicit congressional action immunities had become communicated to the income or property or transactions of others because they in some manner dealt with or acted for the Government.1 In 1 See Dobbins v. Commissioners, 16 Pet. 435; Collector v. Day, 11 Wall. 113; New York ex rel. Rogers v. Graves, 299 U. S. 401; Osborn n. Bank of United States, 9 Wheat. 738; Owensboro National U. S. v. ALLEGHENY COUNTY. 177 174 Opinion of the Court. recent years this Court has curtailed sharply the doctrine of implied delegated immunity.* 2 But unshaken, rarely questioned, and indeed not questioned in this case, is the principle that possessions, institutions, and activities of the Federal Government itself in the absence of express congressional consent are not subject to any form of state taxation. The real controversy here is whether, especially in view of recent decisions, taxing authorities of the Commonwealth of Pennsylvania have infringed this admitted immunity. Mesta Machine Company, an appellant with the United States, exists as a corporation under the laws of Pennsylvania and has a manufacturing plant in the County of Allegheny, of that Commonwealth, the County being appellee herein. It is engaged in the manufacture of heavy machinery. In October 1940, the War Department desired to produce a quantity of large field guns. It could have assembled an organization, created a Government-owned corporation, and erected a plant which would have been wholly tax immune. Clallam County v. United States, 263 U. S. 341. But for reasons of time and policy it chose to utilize a going concern under private management and ownership. Mesta’s plant was not equipped for the manufacture of ordnance. It was agreed that certain additional equipment specially required for Bank n. Owensboro, 173 U. S. 664; Choctaw, 0. & G. R. Co. v. Harrison, 235 U. S. 292; Gillespie v. Oklahoma, 257 U. S. 501; Jaybird Mining Co. v. Weir, 271 U. S. 609; Federal Land Bank v. Crosland, 261 U. S. 374; Telegraph Co. v. Texas, 105 U. S. 460; Leloup v. Port of Mobile, 127 U. S. 640; Indian Motocycle Co. n. United States, 283 U. S. 570; Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218; Graves v. Texas Co., 298 U. S. 393. 2 See Alabama v. King & Boozer, 314 U.S. 1; Graves v. New York ex rel. O’Keefe, 306 U. S. 466; James v. Dravo Contracting Co., 302 U. S. 134; Helvering v. Gerhardt, 304 U. S. 405; Helvering v. Mountain Producers Corp., 303 U. S. 376. L 178 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. the work should be furnished at Government cost and should remain the property of the United States. The basic arrangement between Mesta and the Government was provided for by three separate titles of a single contract, made in October 1940. A title was devoted to each feature of the arrangement, being generally: procurement of Government-owned equipment at Government cost; lease of such equipment by the Government to Mesta; and Mesta’s undertaking to make and deliver the guns at a fixed price each. In February 1941 a supplemental contract was made. Under the first title of the contract, machinery was to be procured in three possible ways: Mesta, as an independent contractor and not as agent of the Government, could purchase it; Mesta could manufacture it; or the Government at its option could furnish any part of it. In carrying out the agreement Mesta manufactured one machine, the Government furnished eight gun-boring lathes and two rifling machines from its Watervliet Arsenal, and the rest Mesta purchased from other machine-tool manufacturers. The machinery bought or built by Mesta was inspected and accepted on behalf of the United States, which thereupon compensated Mesta as agreed. The contract provided that title to all such property should vest in the Government upon delivery at the site of work and inspection and acceptance. By the second title of the contract the Government leased this equipment to Mesta for the period during which guns are manufactured by it under this contract or later supplements. As rental Mesta agreed to pay the sum of one dollar. Mesta was permitted to use the equipment “for the purpose of expediting the manufacture of guns” and for no other, without consent, except that such machinery as was “purchased or furnished to supplement its existing facilities” might be used “for general purposes.” Liability of Mesta for loss, damage, or destruction U. S. v. ALLEGHENY COUNTY. 179 174 Opinion of the Court. of equipment was “that of a bailee under a mutual benefit bailment.” Mesta could not remove any of it without permission, and at all times it was accessible to Government inspection. On termination of the gun-supply contract, unless a stand-by contract was made, Mesta agreed to remove and ship the equipment according to Government directions, in good condition subject to fair wear and tear and depreciation. The leasing title of the contract made no mention of taxation. The equipment-procurement title provided for reimbursement of Mesta “in the performance of the work under this Title” for payments “under the Social Security Act, and any applicable State or local taxes, fees, or charges which the Contractor may be required on account of this contract to pay on or for any plant, equipment, process, organization, materials, supplies, or personnel.” The gun-supply title recited that the contract price did not “include any tax imposed by any state, county, or municipality upon the transaction of this purchase of guns. The Government shall not be liable, directly or indirectly, for the payment of any such taxes, except that if the Contractor after using every effort short of litigation to procure exemption or refund, as the case may be, should be compelled to pay to any state, county or municipality, any tax upon the transaction of this procurement, an amount equal to the tax so paid shall be paid by the Government on demand of the Contractor, in addition to the prices herein stated.” The Government admits liability to reimburse Mesta if it is obliged to pay tax by reason of the assessment in question here. The machinery was bolted on concrete foundations in Mesta’s plant on real property owned by it. It could be removed without damage to the building. The present controversy flared when the assessing authorities of Allegheny County revised Mesta’s previously determined assessment for ad valorem taxes. They added 180 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. thereto the value of the machinery in question, fixed at $618,000. This included property acquired from other tool manufacturers as above described, $444,000; that manufactured by Mesta, $14,000; lathes brought from the Watervliet Arsenal, $160,000. Mesta protested and exhausted administrative remedies without avail, and on July 30, 1942, paid under protest $5,137.12, the amount of the tax attributable to this increased assessment. Mesta took a timely appeal allowed by statute to the Court of Common Pleas. The United States petitioned to intervene, reciting that it would be required to reimburse Mesta by force of its contract. Intervention was permitted against objection by the County, and the United States has participated in the litigation since. Mesta attacked the assessment under both state and federal law, claiming that under the State Tax Law property belonging to another was not to be considered a part of its mill and that if construed to authorize assessment and taxation of this machinery, the statute violated the Federal Constitution. The Court of Common Pleas held that the State Act authorized the assessment, but that the machinery here involved was “owned by the United States” and so for constitutional reasons could not be included. The Supreme Court of Pennsylvania, on appeal of the County, reversed, and reinstated the assessment. It held that under the state law regardless of who held the title to it the machinery constituted a part of the mill for purposes of assessment and was properly assessed as real estate. It acknowledged that property held by the United States is “beyond the pale of taxation” by a state, but this assessment, it said, is not against the United States but against Mesta, which is operating its mill for private purposes. If Mesta defaulted in tax payments, the Court held that “the paramount rights of the Government in the U. S. v. ALLEGHENY COUNTY. 181 174 Opinion of the Court. machinery could not be divested or in any way affected,” hence the Government could suffer no loss. Evidence that the machinery was not owned by Mesta it held to be irrelevant and improperly admitted. Twa Justices dissented. The United States and Mesta appealed and we postponed consideration of jurisdictional questions to the hearing on the merits. I. It is denied that the Government has valid title to the machinery. This contention is urged by the member cities of the National Institute of Municipal Law Officers, permitted to file a brief and to argue orally as amici curiae. Their position is that “the Government is subject to the legal rules applicable to private transactions.” Under Pennsylvania law transfer of title to personal property to be good as against subsequent purchasers and lienors must be accompanied by delivery of possession. They say that inspection and acceptance by a contracting officer on behalf of the United States at the Mesta plant did not under decisional law of Pennsylvania amount to delivery of possession to the United States and hence that its title is defective. The position of the County is less extreme. It argued earlier in the litigation that the machinery became part of Mesta’s real estate upon installation and that the United States had only “a reversionary interest after the termination of the contract.” It later conceded that title to the property was not in Mesta “except for tax purposes.” The Pennsylvania Supreme Court thought it immaterial whether title was in the Government, but said, “. . . this private arrangement between the Mesta Company, the owner of the land and buildings and operator of the mill, and the federal government, the owner of the machinery, which treats the equipment as personal property and per- 182 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. mits the latter to remove it at the termination of the contract, can in no way change the legal effect of the Act of Assembly which specifically designates machinery, under these circumstances, as real estate for tax purposes.” We do not determine whether, under Pennsylvania law, the retention of possession by Mesta would protect only good-faith purchasers or lienors who relied upon it or whether, as urged by the amici, it also makes the Government’s title imperfect as against these taxing authorities, who were fully advised of the Government’s claim before the assessment was made. Even if the latter were true, we do not think the state law would be decisive of the question of title. The Constitution provides that “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . .” Art. IV, § 3, cl. 2. It also gives Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution” all powers vested in the Government or in any department or officer thereof, Art. 1, § 8, cl. 18, and it makes the laws of the United States enacted pursuant thereto “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Every acquisition, holding, or disposition of property by the Federal Government depends upon proper exercise of a constitutional grant of power. In this case no contention is made that the contract with Mesta is not fully authorized by the congressional power to raise and support armies and by adequate congressional authorization to the contracting officers of the War Department. It must be accepted as an act of the Federal Government warranted by the Constitution and regular under statute. U. S. v. ALLEGHENY COUNTY. 183 174 Opinion of the Court. Procurement policies so settled under federal authority may not be defeated or limited by state law. The purpose of the supremacy clause was to avoid the introduction of disparities, confusions and conflicts which would follow if the Government’s general authority were subject to local controls. The validity and construction of contracts through which the United States is exercising its constitutional functions, their consequences on the rights and obligations of the parties, the titles or liens which they create or permit, all present questions of federal law not controlled by the law of any State. Clearfield Trust Co. v. United States, 318 U. S. 363; Jackson County v. United States, 308 U. S. 343; Carpenter v. Shaw, 280 U. S. 363; Utah Power & Light Co. v. United States, 243 U. S. 389; United States v. Ansonia Brass & Copper Co., 218 U. S. 452; see D’Oench, Duhme Ac Co. v. Federal Deposit Ins. Corp., 315 U. S. 447; Deitrick v. Greaney, 309 U. S. 190; Federal Land Bank v. Bismarck Lumber Co., 314 U. S. 95. Federal statutes may declare liens in favor of the Government and establish their priority over subsequent purchasers or lienors irrespective of state recording acts. Detroit Bank v. United States, 317 U. S. 329; United States v. Snyder, 149 U. S. 210. Or the Government may avail itself, as any other lienor, of state recording facilities, in which case, while it has never been denied that it must pay nondiscriminatory fees for their use, the recording may not be made the occasion for taxing the Government’s property. Federal Land Bank n. Crosland, 261 U. S. 374; Pittman n. Home Owners’ Loan Corp., 308 U. S. 21. We hold that title to the property in question is in the United States and is effective for tax purposes. II. The County denies, however, that it is taxing property belonging to the United States. First, it says it taxes only the land, which the United States does not own; and the 184 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. machinery is not taxed, but is considered only as an enhancement of the value of the land to Mesta, its owner. Secondly, it says the lien of the tax does not encumber and the process of collection does not involve any sale or other interference with the machinery. The Pennsylvania Supreme Court has upheld the questioned tax because upon these grounds it concluded that no interference with the federal function resulted. “Where a federal right is concerned we are not bound by the characterization given to a state tax by state courts or legislatures, or relieved by it from the duty of considering the real nature of the tax and its effect upon the federal right asserted.” Carpenter v. Shaw, 280 U. S. 363, 367-68. It is not contended that the scheme of taxation employed by Pennsylvania is anything other than the old and widely used ad valorem general property tax. This taxation plan involves the identification and valuation of the variable individual holdings to be taxed, commonly called the assessment, the application of a uniform rate calculated on the need for public revenues, and the collection, in default of payment, by distraint and sale of the property assessed and taxed. This form of taxation is not regarded primarily as a form of personal taxation but rather as a tax against the property as a thing. Its procedures are more nearly analogous to procedures in rem than to those in personam. While personal liability for the tax may be and sometimes is imposed, the power to tax is predicated upon jurisdiction of the property, not upon jurisdiction of the person of the owner, which often is lacking without impairment of the power to tax. In both theory and practice the property is the subject of the tax and stands as security for its payment. The Pennsylvania statutes embody this scheme of taxation. They are a century old. The basic provision reads: U. S. v. ALLEGHENY COUNTY. 185 174 Opinion of the Court. “The following subjects and property shall... be valued and assessed, and subject to taxation”3 Taxes are “declared to be a first lien on said property”4 (Emphasis supplied.) It is only under these legislative provisions that the tax in question is laid. The procedure of the assessors is consistent with no other theory than that the machinery itself was being assessed and taxed exactly as land was being assessed and taxed. The Government-owned machinery was inspected and itemized by the assessor, each machine was then separately appraised by a machinery expert, and the aggregate full values of $618,000 were carried into the assessment. The assessment against Mesta was entered in the books of the assessors as follows: “Land, $293,795; Buildings, $1,123,124; Machinery, $2,489,085; Total assessment, $3,906,004.” The machinery item included the value of the Government’s property. The assessors made no claim that the temporary presence of the Government’s machinery actually enhanced the market value or the use value of Mesta’s land. The assessors simply and forthrightly valued Mesta’s land as land, and the Government’s machines as machinery, and added the latter to the former. We discern little theoretical difference, and no practical difference at all, between what was done and what would be done if the machinery were taxed in form. Its full value was ascertained and added to the base to which the annual rates would apply for county, city, borough, town, township, school, and poor purposes. We hold that the substance of this procedure is to lay an ad valorem general property tax on property owned by the United States. 3 Penn. Stat. Ann. (Purdon) tit. 72, § 5020-201. 4 Id., tit. 53, §2022. 186 OCTOBER TERM, 1943. Opinion of the Court, 322U.S. III. It is contended, however, that Government title does not prevent such state taxation, because the incidence of the tax is borne by Mesta, not the Government, and the taxation creates no lien upon its property or interference with its function. The Commonwealth certainly has broad powers and choices of methods to tax Mesta, a corporation created by it and domiciled and operating within its borders. The trend of recent decisions has been to withdraw private property and profits from the shelter of governmental immunity but without impairing the immunity of the State or the Nation itself. Benefits which a contractor receives from dealings with the Government are subject to state income taxation.5 6 Salaries received from it may be taxed.® The fact that materials are destined to be furnished to the Government does not exempt them from sales taxes imposed on the contractor’s vendor.7 But in all of these cases what we have denied is immunity for the contractor’s own property, profits, or purchases. We have not held either that the Government could be taxed or its contractors taxed because property of the Government was in their hands. The distinction between taxation of private interests and taxation of governmental interests, although sometimes difficult to define, is fundamental in application of the immunity doctrine as developed in this country. Mesta has some legal and beneficial interest in this property. It is a bailee for mutual benefit. Whether such a right of possession and use in view of all the circumstances could be taxed by appropriate proceedings we do not decide. Its leasehold interest is subject to some 8 James v. Dravo Contracting Co., 302 U. S. 134. 6 Graves v. New York ex rel. O’Keefe, 306 U. S. 466. 7 Alabama n. King & Boozer, 314 U. S. 1. U. S. v. ALLEGHENY COUNTY. 187 174 Opinion of the Court. qualification of the right to use the property except for gun manufacture, is limited to the period it engages in such work, and is perhaps burdened by other contractual conditions. We have held that where private interests in property were so preponderant that all the Government held was a naked title and a nominal interest, the whole value was taxable to the equitable owner. Northern Pacific Ry. Co. n. Myers, 172 U. S. 589; New Brunswick v. United States, 276 U. S. 547. But that is not the situation here, and the State has made no effort to segregate Mesta’s interest and tax it. The full value of the property, including the whole ownership interest, as well as whatever value proper appraisal might attribute to the leasehold, was included in Mesta’s assessment. It is contended the whole value of the property may be reached since the impact of the tax is upon Mesta. In support of this we are reminded that the tax, so the Supreme Court of Pennsylvania held, falls upon the real estate alone, because the lien thereof does not touch the Government’s property, which before or after tax default may be removed. But renunciation of any lien on Government property itself, which could not be sustained in any event, hardly establishes that it is not being taxed. The fact is that the lien on the underlying land is increased because of and in proportion to the assessment of the machinery. If the tax is collected by selling the land out from under the machinery, the effect on its usefulness to the Government would be almost as disastrous as to sell the machinery itself. The coercion of payment from compelling the Government to move its property and interrupt production at the Mesta plant would defeat the purpose of the Government in owning and leasing it. We think, however, that the Government’s property interests are not taxable either to it or to its bailee. The “Government” is an abstraction, and its possession of property largely constructive. Actual possession and cus- 188 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. tody of Government property nearly always are in someone who is not himself the Government but acts in its behalf and for its purposes. He may be an officer, an agent, or a contractor. His personal advantages from the relationship by way of salary, profit, or beneficial personal use of the property may be taxed as we have held. But neither he nor the Government can be taxed for the Government’s property interest. Rarely does a state or municipality pursue the Federal Government itself. Most of the immunity cases we have been called upon to deal with involved assertion of a right to tax Government property against an individual. In United States v. Rickert, 188 U. S. 432, this Court decided that improvements made upon lands to which the United States held title but which were put in possession of Indians for their benefit remained immune from taxation and that cattle, horses, and chattels purchased with the money of the Government and “put into the hands of the Indians to be used in execution of the purpose of the Government in reference to them” were likewise immune from taxation. In Van Brocklin v. Tennessee, 117 U. S. 151, Tennessee attempted to sell for state taxes lands which the United States owned at the time the taxes were assessed and levied, but in which it had ceased to have any interest at the time of sale. There, as here, it was claimed the collection affected only private persons, whose equities in the matter were at least doubtful, and that the United States could suffer no harm. The Court held, however, that the immunity protected the private owner, for the tax had been laid against an interest of the Government which was beyond the reach of state taxing power. See also Irwin v. Wright, 258 U. S. 219; Lee v. Osceola Improvement District, 268 U. S. 643. A State may tax personal property and might well tax it to one in whose possession it was found, but it could hardly tax one of its citizens because of moneys of the U. S. v. ALLEGHENY COUNTY. 189 174 Opinion of the Court. United States which were in his possession as Collector of Internal Revenue, Postmaster, Clerk of the United States Court, or other federal officer, agent, or contractor. We hold that Government-owned property, to the full extent of the Government’s interest therein, is immune from taxation, either as against the Government itself or as against one who holds it as a bailee. IV. We find no support for the claim that the immunity has been waived. Congress certainly has not done. so. It is true that the contract requires Mesta to obey and abide by the “applicable” law of Pennsylvania. But such language does not require Mesta to submit to unconstitutional exactions. It clearly is inadequate to waive federal immunity, even if we assume a contracting officer had power to do so. Likewise any contractual obligation of the War Department to pay Mesta’s taxes does not operate either to waive or to create an immunity. Nor is the validity of the tax dependent upon the ultimate resting place of the economic burden of the tax. We also think it immaterial what, if any, right of reimbursement the Pennsylvania law grants a lessee against a private lessor in similar circumstances. State law could not obligate the Central Government to reimburse for a valid tax, much less for an invalid one. Each party urges equities in its favor. The Government points to the exigencies of war, points to numerous and increasing state efforts to tax such property, and urges against the decision below that it is a precedent for taxation of a substantial portion of property of the Government valued at 7% billion dollars in the possession and use of private contractors engaged in war production. It owns property on private lands, under contracts similar to this, with a value approximating two billion dollars, over $257,000,000 of it located in Pennsylvania. 190 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. Appellees, and especially the amici, on the other hand, point for a different purpose to the amount of Government property in war production. It is said that increased municipal services, to serve and protect the influx of war workers, are required in all communities where large war contracts of this type are placed; that such local services rely heavily on real estate taxation; that to exclude property such as this, together with the large real estate holdings that have been and are being acquired by the Government, imposes this increased cost on others. While validation of assessments of this character will measurably increase the cost of waging the war, it is argued that the Federal Government may diffuse the cost throughout the country instead of putting a back-breaking burden on local governments where war plants are located. For these reasons we are urged to hold the position of the Government “unsound, as well as inequitable.” Such considerations remind us of our heavy responsibility in deciding the issues but hardly provide a guide or alter the usual principles for decision. The equities in this unfortunate conflict between the United States and one of its most important industrial communities are not capable of judicial ascertainment or equalization. Whether a county loses more than it gains by such federal activity and what other federal benefits ought to be considered if a balance were to be struck between advantages and disadvantages, we cannot say. The adjustment of benefits and burdens is for other departments, and studies to that end have been undertaken.® We can only say that our 8 See Report on Federal Contributions to States and Local Governmental Units with Respect to Federally Owned Real Estate, House Doc. No. 216, 78th Cong., 1st Sess. (1943). This comprehensive report shows the impossibility of generalizing about the equities between the Federal Government and a community in cases dealing with isolated properties. Much federally owned property is held for the accommodation and service of the locality, such as the Post Office or U. S. v. ALLEGHENY COUNTY. 191 174 Opinion of the Court. constitutional system as judicially interpreted from the beginning leaves no room for the localities to impose either compensatory or retaliatory taxation on Government property interests. Their remedy lies in petition to the Federal Congress, which also is their Congress. V. Our jurisdiction was questioned by appellee’s motion to dismiss, and its consideration was postponed to hearing of the merits. The argument runs that the tax is laid only upon Mesta and therefore only Mesta can question its validity; that if Mesta does so, it can be only under the Fourteenth Amendment; that no question has been assigned under this Amendment and hence the appeal should be dismissed. The questions in this case do not arise under the Fourteenth Amendment. They depend on provisions adopted and principles settled long before the Fourteenth Amendment and which exist independently of it. The United States was admitted to the case as an intervenor. Both it and Mesta raised these questions of taxability, as either may do. The United States may question the taxation in order to protect its sovereignty over the property in question. Mesta as bailee is under a duty to protect the property and may protect itself from unlawful burdens put upon it because of its possession of the the courthouses. Other is held for general administrative purposes in which the locality has an interest or for the care of wards, such as veterans, in which local inhabitants share with others. The report considers all federally owned real estate and improvements, but not personalty. It shows that the United States had within Pennsylvania on June 30, 1937, property costing $278,519,000, with market value of $151,806,000. The estimated annual tax based on fair market value at local rates would be $3,152,000. But the average annual federal aid to that State is reported to be: 1928-30, $6,834,000; 1931-33, $10,791,000; 1934-37, all kinds, $190,071,000 (excluding FERA, CWA, and WPA: $23,118,000). 192 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. property. The tax is calculated and imposed on the land and machinery as a unit, the lien of the assessment on the machinery becomes a lien on the land which can be taken to pay the tax occasioned by the machinery. Since the tax must be paid out of Mesta’s property it is in a position to challenge the validity of the tax, as was the case in Van Brocklin v. Tennessee, supra. Both Mesta and the Government made timely insistence that the Pennsylvania Tax Law as applied violates the Federal Constitution. The highest court of the State rendered final judgment against the claim of federal right. We have jurisdiction by appeal. Judicial Code § 237 (a). The motion to dismiss is denied. The Tax Law of the Commonwealth of Pennsylvania as interpreted and applied in this case violates the Federal Constitution in so far as it purports to authorize taxation of the property interests of the United States in the machinery in Mesta’s plant, or to use that interest to tax or to enhance the tax upon the Government’s bailee. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. Mr. Justice Black and Mr. Justice Douglas concur in the result. Mr. Justice Roberts: I think the judgment of the Supreme Court of Pennsylvania is right and should be affirmed for the reasons stated in its opinion. If James v. Dravo Contracting Co., 302 U. S. 134, were not upon our books, or had been decided the other way, I should agree to the opinion of the court. In that case, at the insistence of the United States, this court held that a state gross receipts tax upon payments by the United States to a contractor for erecting structures on United U. S. v. ALLEGHENY COUNTY. 193 174 Roberts, J., dissenting. States property was valid because the tax was not laid upon the contract, the Government, its property, its officers, or its instrumentality; was laid upon an independent contractor and was nondiscriminatory. Although admitting that the payment of the tax imposed a burden upon the activities of the United States because it inevitably increased the cost of exercise of its functions, the court nonetheless sustained the exaction. I then thought, as I still think, that the decision overruled a century of precedents in this court. It was not long before the Government repented its generosity. Four years later, it insisted, in Alabama v. King & Boozer, 314 U. S. 1, that a state sales tax upon a purchase of building materials by a contractor who was to incorporate them into a Government project, and where, upon delivery, inspection, and acceptance, they became the property of the Government, was so direct a tax on the Government as to infringe its constitutional immunity. The court, however, followed to its logical conclusion the decision in Dravo and expressly overruled earlier decisions inconsistent with Dravo and King & Boozer.1 I concurred in that decision, feeling myself bound by the Dravo case. In this case, as I think, the court necessarily reverts to the test of burdensomeness by a form of words and, as a result, again plunges the applicable principle into confusion. The truth is that the tax liability of Mesta in respect of its manufacturing plant has been increased by the presence in the plant of machinery bailed to the taxpayer by the federal Government. It is true too that, either as a result of the express terms of the Government’s contract with Mesta, the Government’s monetary obligation to 1 Panhandle Oil Co. v. Knox, 277 U. S. 218; Graves v. Texas Co., 298 U. S. 393. 194 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. Mesta will be increased by the imposition of increased tax or, as in the Dravo case, if the contractor is liable for an increase of tax by reason of the fact that he is such contractor, the Government, in the long run, will have to pay more for goods and services as a result of such increase. In order to relieve the Government of this burden, the court is now obliged to say that the law of Pennsylvania is something different from what the Supreme Court of the Commonwealth has declared it, and that a century of State administrative and judicial construction is meaningless when the supposed necessity arises to unburden the Government from the result of state taxation upon privately owned property. The law of Pennsylvania is, and always has been, that a tax imposed on real estate is enhanced in amount by buildings and machinery placed upon the land with the consent of the owner even though he does not own the improvements but is a mere bailee. The lien of the tax extends only to the land owned by the taxpayer and the bailed improvements are neither under the lien nor subject to seizure or sale for payment of the tax. But this settled law is brushed aside and it is said, notwithstanding these facts, that, in some indefinable way, Pennsylvania has in truth levied an ad valorem tax upon property of the United States which is in the possession of Mesta as bailee. This is nothing in substance but to say, in the teeth of the Dravo and King & Boozer cases, that if a tax levied upon a contractor of the Government imposes a burden upon the Government’s activities it violates the constitutional immunity and must be stricken down. Whereas, in those cases, the court accepted the tax for what it was, viz., a tax upon the contractor and not upon the Government, here, although under state law the liability to the State is that of the contractor and his property, and can, in no event, be the liability of the Government or its property,—except as the Government either U. S. v. ALLEGHENY COUNTY. 195 174 Frankfurter, J., dissenting. contractually assumes the burden or bears it as an incident of the contractor’s burden,—the court announces that the tax is laid on the Government’s property. I think the case was decided by the court below on a nonfederal ground. The decision is pitched solely upon the character and incidence of the real property tax of the Commonwealth. As that court, in the light of a hundred years of history, defined the tax and the tax lien neither was laid upon or collectable from the United States or its property. As a result of that decision Mesta became liable for an increased tax as a result of certain transactions with the Government. Unless the doctrine of immunity from consequent burden on the Government, as the other party to the contract, is to be reimported into our jurisprudence, the appeal should be dismissed because the decision below was based upon an adequate nonfederal ground. Me. Justice Frankfurter, dissenting: I should like to add a few words to the opinion of my brother Roberts, with which, in the main, I agree. This controversy is treated by the Court as though it presented a challenge by Pennsylvania to the authority of the United States. The case is not entitled, on the facts as I understand them, to have such importance attributed to it. We are all agreed that a State must subordinate its policies to the constitutional powers duly exercised by the United States. War of course evokes powers of government not available in times of peace, but it is no less true of the war powers of the Government than of the peace powers that the Constitution and the laws enacted in accordance with it are “the supreme Law of the Land.” United States Constitution, Art. VI. Implicit in our federal scheme is immunity of the Federal Government from taxation by the States. After having long been the subject of differences of opinion, the 196 OCTOBER TERM, 1943. Frankfurter, J., dissenting. 322U.S. extent of this implied immunity was greatly curtailed. The basis of the doctrine was shifted from that of an argumentative financial burden to the Federal Government to that of freedom from discrimination against transactions with the Government and freedom from direct impositions upon the property and the instrumentalities of the Government. The decisions in James v. Dravo Contracting Co., 302 U. S. 134, and Alabama v. King & Boozer, 314 U. S. 1, mean nothing unless they mean that it is not enough that the Government may ultimately have to bear the cost of a part or even the whole of a tax which a State imposes on a third person who has business relations with the Government, when a State could impose such a tax upon such a third person but for the fact that the transaction which gave rise to it was not with a private person but with the Government. So much for the scope of the implied immunity of the Government from state taxation as I understand the decisions to date. But in carrying on effectively the task committed to it, the United States can, I believe, go beyond the judicial doctrine of implied immunity from taxation. I have no doubt that Congress, by appropriate legislation, could immunize those who deal with the Government from sales and property taxes which States otherwise are free to impose. On the record before us, Pennsylvania has not challenged the implied immunity of the Federal Government from taxation nor has she sought to tax that which Congress has said should be free from taxation. Pennsylvania has not taxed property owned by the Government. Pennsylvania has not used her otherwise unquestioned power of taxation to discriminate against one dealing with the Government. Finally, Pennsylvania has not tried to impose a tax which Congress, in order to facilitate war production, has' forbidden the States to levy. U. S. v. ALLEGHENY COUNTY. 197 174 Frankfurter, J., dissenting. Pennsylvania merely seeks to enforce a tax assessment against the owner of lands and buildings in the manner in which she has made such an assessment for one hundred years. She has assessed real property concededly owned by Mesta at a valuation increased by the value of the machinery made available to Mesta by various arrangements with the Government. But it is the realty that is being taxed, precisely as other realty is taxed, and by precisely the same method of determining the value of other realty. If the machinery which has here been affixed to the land through arrangements with the Government had been machinery that belonged to Remington Arms and Mesta had been operating through Remington as a sub-contractor for the Government, I suppose no one would doubt that Pennsylvania could assess the value of the land taxed against Mesta as it was here assessed, quite regardless of the retention of the title by Remington of the annexed fixtures, the value of which served to enhance the amount at which the land was assessed. It cannot alter the nature of the tax as a tax against Mesta’s ownership of the land and buildings whether the enhancing fixtures belong to the Government or to Remington. Constitutional answers do at times turn on a nicety but not on a nicety without at least a nice significance. The case thus appears to me one that was decided by the Pennsylvania Supreme Court on the settled construction of the Pennsylvania statute as a tax on realty, and not at all as a tax on the only thing that belongs to the United States, namely, machinery annexed to the realty. Here also “there can be no pretence that the Court adopted its view in order to evade a constitutional issue, and the case has been decided upon grounds that have no relation to any federal question.” Nickel v. Cole, 256 U. S. 222, 225. The only interest which the State here taxed was an interest within the power of the State to tax; it was not a 198 OCTOBER TERM, 1943. Syllabus. 322 U.S. federal interest. See Elder v. Wood, 208 U. S. 226, 232; New Brunswick v. United States, 276 IT. S. 547. The rate at which that interest was taxed is equally a matter for Pennsylvania to determine. In view qf the Dravo case, supra, and Alabama v. King cfc Boozer, supra, there is not before us a constitutionally immunized burden of the Government. Insofar as the financial burden has been directly assumed by the Government it has been so assumed by arrangements which the contracting officers of the Government saw fit to make with Mesta. In respect to the problem we are considering, the constitutional relation of the Dominion of Canada to its constituent Provinces is the same as that of the United States to the States. A recent decision of the Supreme Court of Canada is therefore pertinent. In City of Vancouver v. Attorney-General of Canada, [1944] S. C. R. 23, that Court denied the Dominion’s claim to immunity in a situation precisely like this, as I believe we should deny the claim of the Government. UNITED STATES et al. v. WABASH RAILROAD CO. ET AL. ON PETITION FOR REHEARING. No.. 453. Decided May 8, 1944. Nothing in the record or in the petition for rehearing requires decision in the present proceeding of the contention that, as a result of changed conditions after the case was submitted to the Commission, the spotting service as now performed is not in excess of the carriers’ obligation under their tariff rates, and that its performance by the carriers without charge is therefore not unlawful. The petition for rehearing is denied without prejudice to appellees’ presentation of the question in any appropriate proceeding before the Commission and the courts. P. 201. Rehearing denied. UNITED STATES v. WABASH R. CO. 199 198 Opinion of the Court. Petition for rehearing in the case of United States v. Wabash R. Co., 321 U. S. 403. Messrs. C. C. Le Forgee, Luther M. Walter, Nuel D. Belnap, and John S. Bwrchmore for the Staley Manufacturing Co., petitioner. Mr. Chief Justice Stone: In its petition for rehearing, appellee Staley Manufacturing Co. for the first time calls to our attention certain alleged changes in the location and arrangement of tracks on which are placed cars moving to and from the tracks of the line-haul carriers from and to Staley’s industrial tracks. The changes are alleged to have occurred after the submission of the case to the Interstate Commerce Commission and are said to call for a different conclusion than that reached by the Commission as to whether the spotting service now performed by Staley is a part of the service covered by the line-haul tariffs. The Commission’s report considered in detail the circumstances attending the placing of cars at what are termed the Burwell tracks, which it found to be located within the Staley plant area and to have been leased by Staley to appellee Wabash Railroad Co. Its report states that, in general, cars delivered to Staley were initially placed by the carrier on the Burwell tracks and thence switched to appropriate unloading points at the Staley plant, while cars received from Staley were generally placed on the Wabash Railroad’s general or storage tracks, but were also sometimes placed on the Burwell tracks. The Commission found, on sufficient evidence then before it, that “the movements between points of loading or unloading within the plant area of the Staley Company and the Burwell yard, the storage yard, or the general yard of the Wabash ... in all instances are, and must be, co- 200 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. ordinated with the industrial operations of the Staley Company and conform to its convenience.” And in its second conclusion of law it stated that “all services between the Burwell yard or the storage or general yard of the Wabash and points of loading or unloading within the plant area of the Staley Company are plant services for the Staley Company and not common-carrier services covered by the line-haul rates and charges of respondent carriers.” By their petitions for rehearing addressed to the Commission, appellees alleged that since March 1, 1941, three months after the case had been submitted to the Commission and about two months before it rendered its decision, the use of the Burwell tracks had been discontinued, and that those tracks had thereafter been disconnected and were being dismantled. They further alleged that appellee Wabash Railroad was in course of constructing new tracks on its own property “adjacent to its yard tracks north of the Staley plant” and “immediately north of the so-called Burwell yard” for use in the interchange of cars with Staley and other shippers, and that meanwhile the interchange was being performed from its general or storage yards. Appellees moved respectively that the Commission reconsider its decision “upon such further proceedings as may be appropriate and necessary,” and that “the case be set down for a further hearing, and that . . . the Commission reconsider its order.” No evidence was specified or tendered to prove before the Commission the allegations of the petitions for rehearing, and no opportunity to introduce evidence was in terms requested. The Commission denied the petitions for rehearing without opinion. Before the District Court appellees set out the substance of their petitions to the Commission for rehearing and urged that the Commission erred in denying them. The UNITED STATES v. WABASH R. CO. 201 198 Opinion of the Court. United States in its answer admitted only that appellees had alleged in those petitions for rehearing the matters set forth; the truth of the matters alleged was not admitted by either appellant. No new evidence was taken in the District Court. That court did not pass on this question, and made no findings as to the extent or effect of the alleged change of conditions. Nothing in the petitions to the Commission for rehearing or in the petition here affords any basis for saying that the alleged changes in conditions are of a character which would require any modification of the Commission’s order or that appellees could not, with due diligence, have brought the changes to the attention of the Commission before it made its report. They were not referred to in appellees’ briefs in this Court. Compare rule 27, paragraphs 4 and 6; I. T. S. Rubber Co. v. Essex Rubber Co., 272 U. S. 429, 431-2; Flournoy v. Wiener, 321 U. S. 253, 260-61. Neither the Commission nor the District Court have made findings with respect to them and they were not considered by this Court or referred to in its opinion. We find nothing in the record or in the petition before us which calls on the Court in the present proceeding to pass on the question now sought to be raised. Our decision is accordingly without prejudice to appellees’ presentation in any appropriate proceeding before the Commission and the courts, of their contention that as a result of changed conditions after the case was submitted to the Commission, the spotting service as now performed is not in excess of the carriers’ obligation under their tariff rates, and that its performance by the carriers without charge is therefore not unlawful. The petition for rehearing is denied. 202 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. UNION BROKERAGE CO. v. JENSEN et al. CERTIORARI TO THE SUPREME COURT OF MINNESOTA. No. 291. Argued February 1,1944.—Decided May 8,1944. A statute of Minnesota denying to all foreign corporations the right to maintain any action in the courts of the State unless they have previously obtained a certificate of authority to do business within the State, for which a filing fee of $5.00 plus an initial license fee of $50.00 is exacted—held valid as applied to a federally licensed customhouse broker whose business was localized in the State; and not in conflict with existing federal laws and regulations relating to customhouse brokers or with the commerce clause of the Constitution. Pp. 207, 212. 215 Minn. 207, 9 N. W. 2d 721, affirmed. Certiorari, 320 U. S. 724, to review a judgment which, reversing a judgment of the trial court, ordered dismissal of a suit brought by a foreign corporation. Mr. Leonard Eriksson for petitioner. Mr. Ordner T. Bundlie for respondents. Mr. Justice Frankfurter delivered the opinion of the Court. This is a suit brought in one of the lower courts of Minnesota by the Union Brokerage Company against Jensen and Rime for breach of fiduciary obligations in relation to Union’s business, that of customhouse brokerage. The only defense to the suit with which we are concerned is the alleged disability of Union to resort to Minnesota’s courts for want of compliance with her laws governing the transaction of business in the State as a foreign corporation. Minn. L. 1935, c. 200, Minn. Stat. 1941, c. 303. The Supreme Court of Minnesota sustained this defense, reversed the judgment in favor of the peti- UNION BROKERAGE CO. v. JENSEN. 203 202 Opinion of the Court. tioner, and ordered the suit dismissed. 215 Minn. 207, 9 N. W. 2d 721. We brought the case here to determine the important question whether enforcement of the Minnesota Foreign Corporation Act in this situation runs counter to federal law pertaining to customhouse brokers or is barred by the Commerce Clause. 320 U. S. 724. Another claim that state authority must yield to controlling federal authority over interstate and foreign commerce is thus presented. It becomes necessary therefore to ascertain precisely what demand the State has here made, in relation to what transactions or activity it is making such demand, in what way federal authority has regulated such transactions or activity, and, finally, whether the Commerce Clause by its own force, in case federal law has not actually taken control, excludes the State from the exercise of the power it has here asserted. For many years the petitioner, a North Dakota corporation, conducted a customhouse brokerage business at Portal, North Dakota, a port of entry from Canada by way of the Canadian Pacific Railway. In July, 1940, the Canadian Pacific re-routed most of its shipments whereby they no longer entered the United States through Portal but came through Noyes, Minnesota, with the result that more than 90% of Union’s business was diverted from Portal. After November, 1940, at which time respondent Jensen resigned as officer of Union under circumstances giving rise to this suit, Union began to do business at Noyes and was doing business in Minnesota when it brought this suit. We shall outline the nature of this customhouse brokerage business only so far as is relevant to a consideration of our problem. On goods shipped from Canada into this country the consignee of imported merchandise must “make entry” of 204 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. them at the office of the collector of customs at Noyes either in person or by an authorized agent, and this must be done within forty-eight hours of the report of the vehicle which carried the goods unless the collector extends the time. Tariff Act of 1930, 46 Stat. 590, 722, 52 Stat. 1083,19 U. S. C. § 1484 (a). To make entry, the contents and value of the shipment must be declared and the tariff estimated, and the production of a certified invoice and a bill of lading is generally required. 19 U. S. C. § 1484 (b) (c) (e) (g). Speed in making entry is vital, because goods cannot proceed to their ultimate destination until its completion. Apart from the fact that importers cannot always or even often make entries in person, the procedure makes demands upon skill and experience. The specialist in these services is the customhouse broker. In addition, he advances the duty in order that the goods may be cleared. 19 U. S. C. § 1505. The competence of the broker also bears on the efficient collection of customs duties in that the likelihood of additional assessment or refund after final determination of the duty is greatly lessened by accuracy in the tentative computation. But since errors and differences of opinion are inevitable, to insure collection of deficiencies the Government requires a bond prior to release. 19 U. S. C. § 1499; 19 Code Fed. Reg. § 6.27. The business of customhouse brokers, it is apparent, demands a sense of responsibility and skill. To protect importers as well as the Treasury, Congress has authorized the Secretary of the Treasury to “prescribe rules and regulations governing the licensing as customhouse brokers of citizens of the United States of good moral character, and of corporations, associations, and partnerships, and may require as a condition to the granting of any license, the showing of such facts as he may deem advisable as to the qualifications of the applicant to render valuable serv- UNION BROKERAGE CO. v. JENSEN. 205 202 Opinion of the Court. ice to importers and exporters.” 46 Stat. 759, 19 U. S. C. § 1641 (a). Elaborate regulations define the investigation to be made of the character and reputation of the applicant and his experience in customs matters. 31A Code Fed. Reg. § 11.3 (b). The applicant is then directed to appear before an examining subcommittee which determines the “applicant’s knowledge of customs law and procedure and his fitness to render valuable service to importers and exporters.” 31A Code Fed. Reg. § 11.3 (e) (f). On approval of a favorable report of the subcommittee by the Committee on Enrollment and Disbarment of the Treasury Department, a license issues. 31A Code Fed. Reg. §§ 11.3 (f) (g), 11.4. “A licensed customhouse broker requires no further enrollment under the regulations in this part for the transaction, within the customs districts in which he is licensed, of any business relating specifically to the importation or exportation of merchandise under customs or internal-revenue laws.” 31A Code Fed. Reg. § 11.5. Union’s license authorizes it to do business in District No. 34 which embraces both Portal, North Dakota, and Noyes, Minnesota. 19 Code Fed. Reg. § 1.2. The regulations require it to keep records of its financial transactions as customhouse broker, and its books and papers must be kept on file available for at least five years. 31A Code Fed. Reg. § 11.8. Business relations with those who have been denied a license because of moral turpitude or those whose license has been revoked are prohibited, and the licensee is under a duty not to promote evasion of obligations to the Government. Prompt payment and accounting of funds due to the Government or his client are required of the broker, and responsible and ethical conduct is generally enjoined. 31A Code Fed. Reg. § 11.9. Does this scheme of federal regulation of the business of customhouse brokers preclude the requirement of Minne 206 OCTOBER TERM, 1943. Opinion of the Court. 322 TJ. S. sota legislation which the Supreme Court of that State has enforced against Union? This brings us to a consideration of the precise demand against which Union protests. Minnesota has not singled out the customhouse brokerage business for legislation nor has she made requirements of foreign corporations doing customhouse brokerage business. What is in controversy is the applicability of a general law of Minnesota dealing with all foreign corporations. More specifically, § 20 of the Minnesota Foreign Corporation Act requires a certificate of any foreign corporation doing business in the State as a prerequisite for maintaining an action in a court of that State. In addition a filing fee of five dollars and initial license fee of fifty dollars is exacted on making application for a certificate of authority. §§21 (a) (1), 6. Such an application must contain the name of the corporation, its home state or country, the address of its principal office and that of its proposed registered office in Minnesota, the names and addresses of its directors and officers, a statement of its aggregate number of authorized shares and kindred information. § 5. The applicant must furthermore consent to the service of process upon it and appoint an agent upon whom service can be made, and in lieu of such appointment or if the agent cannot be found, service may be made upon the Secretary of State. §§ 5 (6), 13 (a) (2). A foreign corporation doing business in Minnesota without a certificate of authority is subject to a penalty not exceeding $1,000 and “an additional penalty not exceeding $100.00 for each month or fraction thereof during which it shall continue to transact business in this state without a certificate of authority therefor.” § 20 (c). Having obtained such a certificate, the corporation is required to file annual reports on the basis of which an annual fee is assessed. The measure of the fee is substantially the same as that set for domestic corporations but in its computation the property UNION BROKERAGE CO. v. JENSEN. 207 202 Opinion of the Court. and gross receipts of a foreign corporation are allocated between those derived from within and those derived from without Minnesota and credit is given for the latter. § 15; cf. Minn. L. 1935, c. 230, § 2. We have before us only one narrow aspect of this Minnesota legislation, namely the power of Minnesota to deny to Union access to its courts because it has not obtained a certificate required of all foreign corporations doing business in the State. We have not before us the taxing power of Minnesota over such a business as that of Union, for we do not know the extent or nature of the power to tax that Minnesota would claim against Union. Of course Minnesota could not deny access to its courts to Union merely because it is engaged in the customs brokerage business. See Second Employers’ Liability Cases, 223 U. S. 1, and Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377. But the limited and defined control which federal authority has thus far seen fit to assert over customhouse brokers does not deny to Minnesota the power to subject Union to the same demand which it makes of all other foreign corporations seeking the facilities of Minnesota’s courts. The federal requirements and this state requirement can move freely within the orbits of their respective purposes without impinging upon one another. The federal regulations are concerned solely with the relations of the customhouse broker to the United States and to the importer and exporter. The limited federal supervision of the financial activities of Union is restricted to these federal interests. Such supervision does not touch the interest of the State in the protection of those who have other dealings with Union, and therefore does not preempt appropriate means for their protection. In a situation like the present, where an enterprise touches different and not common interests between Na 208 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. tion and State, our task is that of harmonizing these interests without sacrificing either. The proper attitude of mind for making such an accommodation is illustrated by Federal Compress Co. n. McLean, 291U. S. 17. The Tariff Act of 1930 in this case, as the Warehousing Act in that case, confers upon licensees certain privileges, and secures to the Federal Government by means of these licensing provisions a measure of control over those engaged in the customhouse brokerage business. But such circumscribed control by the Federal Government does not imply immunity from control by the State within the sphere of its special interests. “The government exercises that control in the furtherance of a governmental purpose to secure fair and uniform business practices. But the appellant, in the enjoyment of the privilege, is engaged in its own behalf, not the government’s, in the conduct of a private business for profit.” Federal Compress Co. v. McLean, supra at 22-23. The state and federal regulations here applicable have their separate spheres of operation. The Federal Government has dealt with the manner in which customhouse brokerage is carried on. Minnesota, however, is legitimately concerned with safeguarding the interests of its own people in business dealings with corporations not of its own chartering but who do business within its borders. Union’s business is localized in Minnesota, it buys materials and services from people in that State, it enters into business relationships, as this case, a suit against its former president, illustrates, wholly outside of the arrangements it makes with importers or exporters. To safeguard responsibility in all such dealings, dealings quite outside transactions immediately connected with import and export, Minnesota has made the same exactions of Union as of every other foreign corporation engaged in similar transactions. The Federal Government has recognized that there is such a UNION BROKERAGE CO. v. JENSEN. 209 202 Opinion of the Court. proper field for state regulation complementary to federal regulation, for the Treasury has provided that “a licensee having a license in force in one district may on application to the Committee be granted a license to transact business in another district without further examination, provided it appears on investigation that the licensee is authorized to do business in the State or States in which such other district is situated.” 31A Code Fed. Reg. § 11.6. Those who are responsible for protecting the interests of the revenue as well as of commerce have thus given emphatic indication that a State has a legitimate interest in the regulation of those engaged in the brokerage business within its borders. Where the Government has provided for collaboration the courts should not find conflict. See Savage v. Jones, 225 U. S. 501, and Kelly v. Washington, 302 U. S. 1. This brings us to the final question. Does the Minnesota legislation do that which the Commerce Clause was designed to prevent—does it express hostility toward those engaged in foreign commerce or practically obstruct its conduct? What we have said makes it abundantly clear that the business of Union is related to the process of foreign commerce. As the trial court found, the customhouse broker in clearing the shipments, “aids in the collection of customs duties and facilitates the free flow of commerce between a foreign country and the United States.” The fees exacted by customhouse brokers “are charges upon the commerce itself”; they are charges for services afforded in the movement of goods beyond the boundaries of a State. See Hopkins v. United States, 171 U. S. 578, 591-2; Wickard v. Filburn, 317 U. S. Ill, 122. But the Commerce Clause does not cut the States off from all legislative relation to foreign and interstate commerce. South Carolina Highway Dept. v. Barnwell Bros., 210 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. 303 U. S. 177; Western Live Stock v. Bureau, 303 U. S. 250. Such commerce interpenetrates the States, and no undisputed generality about the freedom of commerce from state encroachment can delimit in advance the interacting areas of state and national power when Congress has not by legislation foreclosed state action. The incidence of the particular state enactment must determine whether it has transgressed the power left to the States to protect their special state interests although it is related to a phase of a more extensive commercial process. The information here sought of all foreign corporations by Minnesota as a basis for granting them certificates to do business within her borders is a conventional means of assuring responsibility and fair dealing on the part of foreign corporations coming into a State. Apart from any question of interference with foreign commerce such a requirement is plainly within the regulatory power of a State. But, as we have noted, while the business of Union is that of a customhouse broker, its activities are not confined to its services at the port of entry. It has localized its business, and to function effectively it must have a wide variety of dealings with the people in the community. The same considerations that justify the particular regulatory measure alone before us, namely the requirement of a certificate of authority in the case of foreign corporations carrying on business other than customhouse brokerage, apply to the carrying on of Union’s business in Minnesota. The burden, such as it is, falls on foreign businesses that commingle with Minnesota people, and the burden, a fee of fifty dollars, is sufficiently small fairly to represent the cost of governmental supervision of foreign business enterprises coming into Minnesota. In short, it is a supervisory and not a fiscal measure. As such it imposes costs upon the State which UNION BROKERAGE CO. v. JENSEN. 211 202 Opinion of the Court. those who are supervised must, as is often the case, themselves pay. See Clyde Mallory Lines v. Alabama, 296 U. S. 261, 267. We have considered literally scores of cases in which the States have exerted authority over foreign corporations and in doing so have dealt with aspects of interstate and foreign commerce. Whatever may be the generalities to which these cases gave utterance and about which there has been, on the whole, relatively little disagreement, the fate of state legislation in these cases has not been determined by these generalities but by the weight of the circumstances and the practical and experienced judgment in applying these generalities to the particular instances. To review them to any extent would be writing the history of the adjudicatory process in relation to the Commerce Clause. Suffice it to say that we have not here a case of a foreign corporation merely coming into Minnesota to contribute to or to conclude a unitary interstate transaction, see International Textbook Co. v. Pigg, 217 U. S. 91; Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, nor of the State’s withholding “the right to sue even in a single instance until the corporation renders itself amenable to suit in all the courts of the State by whosoever chooses to sue it there.” Sioux Remedy Co. v. Cope, 235 U. S. 197, 205. The business of Union, we have seen, is localized in Minnesota, and Minnesota, in the requirement before us, merely seeks to regularize its conduct. Nor is there here an attempt to tax property or gross receipts earned outside the State, as was the case in Looney n. Crane Co., 245 U. S. 178. In the absence of applicable federal regulation, a State may impose non-discriminatory regulations on those engaged in foreign commerce “for the purpose of insuring the public safety and convenience; ... a license fee no larger in amount than is reasonably 212 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. required to defray the expense of administering the regulations may be demanded.” Sprout v. South Bend, 277 U. S. 163,169. The Commerce Clause does not deprive Minnesota of the power to protect the special interest that has been brought into play by Union’s localized pursuit of its share in the comprehensive process of foreign commerce. To deny the States the power to protect such special interests when Congress has not seen fit to exert its own legislative power would be to give an immunity to detached aspects of commerce unrelated to the objectives of the Commerce Clause. By its own force that Clause does not imply relief to’ those engaged in interstate or foreign commerce from the duty of paying an appropriate share for the maintenance of the various state governments. Nor does it preclude a State from giving needful protection to its citizens in the course of their contacts with businesses conducted by outsiders when the legislation by which this is accomplished is general in its scope, is not aimed at interstate or foreign commerce, and involves merely burdens incident to effective administration. And so we conclude that in denying Union the right to go to her courts because Union did not obtain a certificate to carry on its business as required by the Foreign Corporation Act, Minnesota offended neither federal legislation nor the Commerce Clause. Judgment affirmed. Mr. Justice Jackson and Mr. Justice Rutledge dissent. KANSAS v. MISSOURI. 213 Opinion of the Court. KANSAS v. MISSOURI. BILL IN EQUITY. No. 9, original. Argued January 31, 1944.—Decided May 8, 1944. Upon the evidence in this case, in which Kansas claims title to certain land now lying on the Missouri side of the Missouri Biver in the Forbes Bend area, Kansas has failed to show that, at any time during the period in question, the main channel of the Missouri River shifted from a course such as the river now follows (or one slightly closer to the Kansas bluffs) to one following the course of the channel on the Missouri side when the flow was divided. Therefore the land in dispute must be awarded to Missouri, and the boundary will be fixed in accordance with the recommendations of the Special Master. Pp. 214,232. Bill of Complaint by Kansas against Missouri to determine and fix the boundary between the States. Leave to file the bill was granted by this Court, 310 U. S. 614. Mr. Joseph E. Schroeder, with whom Messrs. A. B. Mitchell, Attorney General of Kansas, and Clarence V. Beck were on the brief, for complainant. Messrs. Tyre W. Burton and Frank W. Hayes, Assistant Attorneys General of Missouri, with whom Mr. Roy McKittrick, Attorney General, was on the brief, for defendant. Mr. Justice Rutledge delivered the opinion of the Court. Kansas brings this original suit against Missouri to have determined their common boundary from the mouth of the Kaw or Kansas River northwardly, over a distance of approximately 128 miles, along the channel of the Missouri River to its intersection with Kansas’ north boundary line. At the time of Kansas’ admission to the Union, January 29, 1861, the western boundary of Missouri followed the 214 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. thread of the Missouri River, that is, the middle line of its main navigable channel, between these points.1 This line then became the common boundary pf the two states.1 2 The bill of complaint was filed in 1940. It alleged that the thread of the stream had shifted frequently, sometimes suddenly, sometimes gradually, and that these changes had caused controversies concerning the true boundary. When the proceeding began it was in dispute at a number of places.3 But during pendency of the suit the parties have settled all differences except one. This relates to the section of the boundary in the Forbes Bend region.4 After the filing of the suit a master was appointed. Extensive hearings were held. Both documentary and oral evidence was presented. The master has filed his report, which makes findings and conclusions in favor of Missouri. Kansas says these are contrary to the law and to the weight of the evidence. The land in dispute consists of about 2,000 acres. This now lies on the Missouri side of the river toward the lower end of Forbes Bend. Kansas claims this land was at one time soil accreted to the Kansas bank, which an avulsive change in the course of the main channel has put back on the Missouri side; or, in the alternative, that the tract 1 Cf. Missouri v. Kansas, 213 U. S. 78; Missouri v. Nebraska, 196 U. S.23. 2 Act of Admission of Kansas, 12 Stat. 126; Kansas Constitution of 1859, Charters and Constitutions of the United States, Part I, 629, 630. 3 The complaint alleged disputes over the line at points along the river between War Department Survey Stations 399 and 405, at other points in Atchison County, Kansas, and at points along the river between War Department Survey Stations 510 and 515 (Forbes Bend). 4 Attempts at settlement by negotiation had been authorized by Kansas before this proceeding was begun (Laws of Kansas, 1939, c. 355). Apparently they were unavailing, and this suit was instituted. After it was begun, however, the parties agreed to a settlement with respect to all areas but this one and incorporated it in this record. It will be made part of the decree. KANSAS v. MISSOURI. 215 213 Opinion of the Court. formed as an island on the Kansas side of the main channel and, as a result of a sudden shift in that channel to the other side of the island and the drying up of the old course, it has become physically attached to Missouri. In either event, Kansas urges, it follows that the boundary remains at the center of the river’s former main channel. Missouri denies that the land accreted to Kansas, that there was avulsion, or that the island ever lay on the Kansas side of the main channel. The States are not in dispute about the applicable law. They agree that when changes take place by the slow and gradual process of accretion the boundary moves with the shifting in the main channel’s course.0 Likewise, they agree that a sudden or avulsive change in that course does not move the boundary, but leaves it where the channel formerly had run.5 6 However, the parties are sharply at odds over the facts and the conclusions to be drawn from the evidence. In view of this and since we think the facts as presented by the evidence are conclusive of the controversy, it becomes necessary to sketch them and to refer to portions of the evidence in order to give an understanding of the issues and the basis for our conclusions. L Forbes Bend lies between Doniphan County, Kansas, and Holt County, Missouri. The disputed boundary, according to the master’s findings, extends along the main channel of the river as it now flows for a distance of about five miles bending southeasterly from Channel Mileage Station 515 to Station 510 (as measured and marked in 5 Jefferis v. East Omaha Land Co., 134 U. S. 178; St. Clair County v. Lovingston, 23 Wall. 46; Nebraska v. Iowa, 143 U. S. 359. 6 Nebraska v. Iowa, 143 U. S. 359; Missouri v. Nebraska, 196 U. S. 23; Oklahoma v. Texas, 260 U. S. 606. 216 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. 1890). As the river enters Forbes Bend from the north it flows east of south. Near the point of entrance it is joined by Wolf Creek. This comes into the river from the Kansas side in an easterly direction. The mouth of Wolf Creek is roughly adjacent to Station 515. From this point the Kansas bluffs swing in a gradual convex curve southeasterly until they reach a point above Station 510. On the Missouri side the bluffs run, as they do on the Kansas side, generally southeasterly. Throughout the Forbes Bend region the distance as the crow flies from the Kansas bluffs to the Missouri bluffs is four miles, more or less. Adjacent to and parallel with the Missouri bluffs, but between them and the river, lie tracks of the Burlington Railroad. The Missouri River is a vagrant, turbulent stream. Its name reflects this character. The Big Muddy is said to carry more silt than any other river except the Yellow River in China. It is constantly changing its course within the region between its bluffs, shifting from side to side as natural forces work upon its flow. Expert testimony is that a change of conditions in one bend produces changes as great, or nearly so, in the next bend below. The river flows around a big bend, known as Wolf Creek Bend, just before it reaches the mouth of Wolf Creek. Here it runs almost due south. It is conceded by all that in 1900 the river flowed southeasterly in a single channel from the mouth of Wolf Creek, hugging the Kansas bluffs throughout the entire course of flow to Station 510. As it presently flows, the river makes a wide arc, first to the left or Missouri bank in a course almost due east or north of east, before it turns sharply to the south again at a point midway between the bluffs, and follows this southerly course until it strikes the old main channel at the Kansas bluffs above Station 510. This bend now is in the form of a bow, with the river proper forming the bow and the old channel along the Kansas bank its string. Roughly, KANSAS v. MISSOURI. 217 213 Opinion of the Court. therefore, the difference between the present flow through Forbes Bend and the flow in 1900 is the difference between the bow and the string. At the center of the bow the distance between the old channel and the present one appears to be at most one mile. However, as will appear, the channel’s present location results from more complex changes than merely a movement of the river north and east over the distance lying between these two channels. According to the greatly preponderant though not undisputed evidence, there was a division of channels in Forbes Bend from about 1914 or 1917 to 1927 or 1928. During this time the more westerly or Kansas channel lay slightly west of where the present channel runs. The Missouri or easterly channel lay on the other side of the area in dispute, which then formed part of a bar or island. At one time, probably about 1922 or 1923, during the period of greatest erosion of the Missouri bank, this channel came within half a mile or less of the Burlington tracks. The Missouri channel, with the river above it, then followed a course almost due east or slightly north of east from below the mouth of Wolf Creek to the point of its closest approach to the railroad. Then it swung sharply to the south and in a curving line came back to join the original channel near the Kansas bluffs above Station 510. From the recital thus far it is clear that in 1900 the land which then lay where the disputed tract now lies was Missouri land. This is undisputed. Likewise, the tract now is attached to Missouri on the easterly bank of the river. This is because the Missouri channel dried up during some five to eight years beginning around 1927 or earlier. But, before that process began, for many years the land in question lay between the two channels. And it is from conflicting views concerning whether, how and when these major changes took place the parties derive their respective claims to sovereignty over this soil. 218 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. Kansas first claims that the land in dispute became hers by accretion. Her principal theory is that beginning in 1900 and during a period extending to 1917 or to 1927 the river channel, due to changes upstream, gradually moved out from the Kansas bluffs over a distance of some three to three and a half miles to the north and east.7 As Missouri soil thus was being cut away, it is said the land in question was built up gradually on the Kansas side. In any event, if it was not connected firmly to the Kansas shore it was separated only by narrow and irregular chutes and sloughs, not by any sort of regular channel. Then either in 19178 or in 19279 ice jams forming in the river caused it suddenly to leave its channel near the Missouri bluffs and to open a new one near where the present channel runs. Relying upon accretion from 1900 to 1917 or 1927 for acquisition of the disputed area, Kansas relies upon avulsion in 1917 or 1927 to prevent losing the area again to Missouri. Her alternative theory of island formation is relied on in case that of accretion and avulsion fails on the proof. By this, the island formed on her side of the main channel and the subsequent shift of the main 7 Since Kansas claims avulsive change both in 1917 and in 1927, and that the accretion began about 1900 or shortly thereafter, her claim necessarily implies that the period of accretion extended either from 1900 to 1917 or from 1900 to 1927. 8 At that time, according to this claim, the main channel of the river flowed through the so-called Missouri channel to the north and east, but was suddenly changed by the ice jam back from that channel into a chute on the Kansas side. This chute previously had cut across the allegedly accreted land a little to the west of where the present channel now lies. The complaint alleges that the ice jam occurred “on or about February 1918.” The scanty testimony in the record if completely accepted would establish the ice jam in 1917 rather than in 1918; cf. note 24 infra. 9 The complaint alleges that the ice jam occurred “during the year 1927.” The witnesses who testify to the jam at this time date it variously in 1927,1928 and 1929; cf. note 25 infra. KANSAS v. MISSOURI. 219 213 Opinion of the Court. flow to the Kansas channel and drying up of the Missouri channel did not affect her jurisdiction. Missouri meets all of Kansas’ claims with denial on the facts. She says first that the land in question has been at no time accreted soil of Kansas. On the contrary, she claims that the disputed area formed as an island in the river bed beginning about 1910 or 1912, and from then until 1927 or 1928 there was a divided flow around this island, a Missouri channel running north and east of it with a Kansas channel to the south and west. She insists that the Kansas channel always remained the main channel of the stream and only a minor one reached proximity to the railroad tracks. Accordingly, she says the island formed as Missouri land and always remained Missouri territory. Missouri thus opposes her view of island formation, both to Kansas’ view of that process and to her claim of accretion and avulsion. However, Missouri adds a further argument even if the Kansas theory of accretion is conceded. According to this, the effect of the accretion to the Kansas bank is counteracted by the fact that at no time was there an avulsive change, whether in 1917 or in 1927. On the contrary the river moved back gradually as it came. In this view the accretive process working against Missouri ended in 1923 or 1924, when the Missouri channel reached greatest proximity to the railroad tracks. Beginning in those years and continuing gradually until 1933 or 1934, the river moved slowly back to a point beyond the location of the present channel. Thus purporting to follow the accretion theory in both directions, Missouri claims the land in question. It may be noted that crucial to Kansas’ case, whether on her theory of accretion and avulsion or on that of island formation, is the need for showing that the main channel followed the course of the Missouri channel. 220 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. II. Roughly the history of the Bend, for our purposes, may be divided into three periods, namely, from 1900 to 1917; from 1917 to 1928; and from 1928 to 1940, when this suit was begun. There is documentary evidence as well as oral testimony for the period prior to 1900. There is little or no documentary evidence in the form of maps, photographs, drawings or other materials from 1900 to 1923. There is a considerable amount of documentary material from 1923 on. Perhaps the most important documentary item is a map of the Forbes Bend region compiled from the field in 1923 by the United States Engineer Office at Kansas City, designated as complainant’s Exhibit 46 in this record. Another map of considerable assistance, with information penciled on it by two witnesses who testified at the hearings, is complainant’s Exhibit 47. This purports to show in less detail than Exhibit 46 conditions in the Bend in 1926. The witnesses’ penciled additions, placing channels and other landmarks, with their testimony, give considerable information about conditions in the Bend from 1921 or 1922 on to 1926 and later. Assistance also is derived from complainant’s Exhibit 56. This is an aerial survey photograph of the Forbes Bend region made in 1941, showing conditions when this suit was begun. Reference to these exhibits will be made as the testimony of some of the witnesses is referred to. It is clearly established that sometime around 1900, fixed by some older witnesses variously as beginning earlier and by others later, the river began a northerly and eastward movement, cutting away the Missouri bank and filling in on the Kansas bank.10 Neighborhood testimony attributes the beginning of this movement to some change 10 C. McWilliams (1892); P. Dyer (1898); C. Hudgins (1900); J. H. Simpson (1904); J. E. Simpson (1905). KANSAS v. MISSOURI. 221 213 Opinion of the Court. in conditions upstream, taking place apparently around the mouth of Wolf Creek or in Wolf Creek Bend above.11 Whatever this change may have been, it apparently threw the current of the stream against the solid rock formation on what is known as Lookout Mountain. This is a point on the Kansas bluffs about a mile or a mile and a half below the mouth of Wolf Creek. The current, striking this rock with force, was thrown over to the north or Missouri bank. The soil composition of the north bank is a common formation in the Missouri River valley. Underneath the surface soil is sand or quicksand. This is covered by a layer of gumbo soil. Testimony in the record discloses there is no great erosion when the water is very high or very low. But when it is at an intermediate stage the water comes in contact with the underlying sand, washes it out, and the topsoil falls into the river in great chunks, often twenty feet long by ten feet wide. As the current was forced from the Kansas rock to the Missouri sand, it undercut more and more of the Missouri soil. Evidence in the record also shows that between 1900 and 1920, or a little later, from 4,000 to 5,000 acres of Missouri soil was washed into the river by this process. On this stood houses, bams, a school building known as the Baker schoolhouse, and other structures, which either went into the river as the soil was undermined or were moved to prevent their falling in. The Baker schoolhouse, which in 1900 was a mile or more northeast from the river bank, was moved about 1915 to prevent its going into the river.11 12 11 Cf. testimony of L. F. Stalcup. 12 Witnesses vary as to the exact time from 1910-11 to 1916 (J. H. Peret: 1910-12; Mrs. S. Jenkins: 1910-12; R. E. Simpson: 1913; C. McWilliams: 1912-13; C. Harper: 1915; C. Hudgins: 1915; B. Hudgins: 1916; E. McCoy: 1915). But most of them put this event in 1912 or later, and the most reliable testimony, by those who moved the building (C. Hudgins and B. Hudgins), places it in 1915 or 1916. 222 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. By that time the erosion was moving at great speed and this continued until the farthest point was reached, a half mile or less from the Burlington railroad, about 1923 to 1925.13 The clear weight of the evidence is that there was only a single channel of the river until about 1912 or 1914. Witnesses for both Kansas and Missouri substantiate this.14 The evidence also clearly establishes that there was a divided flow from 1917 or earlier to 1927. This too is substantiated by both Kansas and Missouri witnesses.15 The evidence, however, is conflicting concerning when the division first took place and whether, while it remained, the Kansas channel or the Missouri channel was the main one. Witnesses for Missouri, and some for Kansas, testify that the division occurred before 1917 and that the two channels remained substantially equal or the Kansas channel was the larger in the volume of water carried between the time of the division and sometime between 1922 and 1927 or 1928.16 The Missouri witnesses fairly uniformly agree that the flow in the two channels was at 13 C. McWilliams (1924-25); E. McCoy (1922); A. H. Murray (1922-23); Ralph Dyer (1923-24); W. Metcalf (1917); cf.E.A.Cole (1923,1928). 14 Varying dates are given for the time at which a divided flow was first noted. Kansas witnesses: I. Muse: 1900; L. F. Stalcup: 1910-1911; J. E. Simpson: 1912-13, 1917; 0. McKay: 1917; R. E. Simpson: 1918; C. Baskins: 1917; C. W. Ryan: 1917 or 1919; J. McKay; 1920. Missouri witnesses: D. Barbour: 1903; B. Hudgins: 1914; C. Harrison: 1914; Ralph Dyer: 1913-14; C. Harper: 1915; A. H. Murray: 1915; H. H. Hall: 1916; W. Metcalf: 1916; J. Fitzgerald: 1917; Raymond Dyer: 1917-1918. 15 See note 14 supra. A few Kansas witnesses maintain there was only one channel through this period. 16 See note 14 supra. Kansas’ witnesses testified variously that there always had been a channel on the Kansas side, that it was swifter than the Missouri channel (J. H. Simpson), that the Kansas channel KANSAS v. MISSOURI. 223 213 Opinion of the Court. least “fifty-fifty” and some of them say the Kansas channel always carried the heavier volume of water.* 17 They also generally agree that the Missouri channel began to decrease and the Kansas channel to increase in volume at some time before 1927. Some place the beginning of this process as early as 1921 or 1922.18 The evidence is substantial that the decrease in the Missouri flow and the increase in the Kansas flow began before 1927; and it is almost unanimous that, from 1928 on, the Missouri channel contained no current or only the flow of Mill Creek Drainage Ditch, which by that time had been diverted into the Missouri channel. Witnesses for Missouri attribute a substantial portion of the filling up of the Missouri channel to deposits made by the Mill Creek Ditch.19 They agree, and the evidence for Kansas hardly contradicts this,20 that between 1928 and 1934 the Missouri channel was the “main river” (Mrs. J. Coufal), that the Kansas channel was much the larger in 1918 (R. E. Simpson), that most of the water was on the Kansas side in 1920 (P. Bottiger); cf. C. B. Caton, that the river was just about evenly divided in 1917 (C. Baskins). Missouri witnesses said that there was always a substantial flow in the Kansas channel and that it was about as large as or larger than the Missouri channel (e. g., Ralph Dyer, B. Hudgins, C. Dinwiddie, J. Fitzgerald, C. Harper, Raymond Dyer). They placed boats in the Kansas rather than the Missouri channel (E. McCoy); in 1918 (W. L. Moore); 1916 to 1929 (H. H. Hall); and in 1927 (C. Hudgins). 17 See note 16 supra. 18 W. Metcalf: 1917; W. L. Moore: 1918; C. Dinwiddie: 1920-22; C. Harrison: 1921; J. Fitzgerald: 1923-1925; cf. P. Bottiger: 1920. 19J. Fitzgerald, E. Wales, J. H. Peret (Kansas witness); cf. E. McCoy, C. Harper. 20E. g., J. H. Gray: 1928 et seq.; A. F. Hays: 1926 et seq.; J. B. Gray: 1927-30; G. Atkinson: 1929-after 1934; J. H. Peret: 1929-33; C. Coufal: 1929-33; C. W. Ryan: 1928-31; some Kansas witnesses claim the drying up of the Missouri channel was a sudden concomitant of an ice jam in 1929 but add that the Missouri channel contained water until 1933 or 1934 (e. g., C. Coufal, E. A. Cole), or 1935 or 1936 when it dried up as a result of government diking and revetment work upstream (e. g., J. Coufal). 224 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. almost completely dried up. The great preponderance of the evidence as a whole is that this occurred gradually over a period of years, varying according to different witnesses from two or three to eight or ten years. On the other hand, Kansas witnesses are not in accord among themselves as to what occurred in the Bend between 1912 and 1928. Some of them say there was a divided flow.21 Others deny this but qualify their denials by asserting that, although the main channel of the river ran over into Missouri close to the Burlington tracks until 1927, there were chutes on the island and particularly there was one chute running from about the mouth of Mill Creek Ditch as it was in 1917 (directly across northerly from the northern end of the bar or island) due south to the Kansas bluffs at about Station 510.22 * However, they maintain generally that this was a small chute, or smaller than the Missouri channel, at any rate up to 1922 or 1923. A few say it was small until 1927 when the alleged ice jam occurred.28 Some witnesses for Kansas maintain that there were big ice jams in 191724 and in 1927.25 Different witnesses testify to the two alleged jams. Those who say one occurred in 1917 assert that it threw the main flow back from the Missouri channel into the Kansas channel. Likewise some of those who say there was a jam in 1927 21 See note 14 supra. ®2 E. g., A. F. Hays, C. Coufal, K. Brownlee, K. Robinson. 28 E. A. Cole, J. Coufal. Cole is a Kansas claimant to ownership of part of the disputed land. Coufal once worked for him. 24 C. Baskins: 1917; J. E. Simpson: 1917; P. Dyer: 1917; C. Dyer. 26 E. A. Cole: 1929; C. Coufal: 1929; J. Coufal: 1929; Mrs. J. Coufal: 1929; E. L. Rockwell: 1927; I. Overstreet: 1927; H. W. Linville: 1927; P.Dyer: 1927 or 1928. Mrs.Coufal, however, testified the “main river” was on the Kansas side of the island at that time. In this respect her testimony flatly contradicts that of her husband and Cole. KANSAS v. MISSOURI. 225 213 Opinion of the Court. accredit the same consequence to that jam. The two Kansas theories of avulsion therefore are entirely inconsistent, though each is supported by some evidence. If there was avulsion in 1917, there hardly could have been avulsion, on this record, in 1927. On the other hand, several Kansas witnesses, familiar with the territory during one or both of the two years in question, testify they saw no ice jams in those years.26 Others say they saw ice but not in large or unusually large quantities or with unusual effects on the flow of the river.27 28 Nearly all of the Missouri witnesses deny that there were ice jams either in those years or at other times, although some refer to ice in the river as not uncommon in winter or early spring. The Missouri witnesses are fairly unanimous in saying that at no time had ice conditions or others caused a sudden change in the river’s course26 and in this they are supported by a number of Kansas witnesses.29 When we turn to complainant’s Exhibit 46 we find very substantial support for Missouri’s view that during the controverted period the flow of the river was divided and that the Kansas channel equalled or exceeded the Missouri channel in the flow or volume of water carried. This map, compiled by the Corps of Engineers of the United States Army, who had charge of the river’s development, shows conditions in 1923. Two channels appear, with a large sand bar or island between them. The map places the Missouri channel within less than a half mile of the Burlington tracks. It shows a width of about 1,250 feet at the narrowest point. Soundings, read from the 26 D. Baskins, J. Kotsch, R. E. Simpson, J. H. Simpson, W. Prusman, G. Atkinson. 271. Muse, L. F. Stalcup; cf. A. P. Staver. 28 C. Hudgins, V. Harrison, C. Dinwiddie, R. L. Greene, W. Metcalf, E. Wales; cf. E. McCoy, H. H. Hall, D. Barbour. 20 Cf. note 20 supra; J. Kotsch, W. Prusman, C. McWilliams. 226 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. south end of the island around the curve to its north end, disclose that the deepest water ran from point to point as follows: 15 feet, 16 feet, 25 feet, 13 feet, 14 feet. On the westerly side of the island the Kansas channel was a little wider at its narrowest point. Its soundings from south to north at appropriate intervals were 31 feet, 12 feet, 12 feet and 13 feet. The Missouri channel meandered from the south to the east and north and then back around the north end of the island or bar in a due westerly direction. On the other hand, the Kansas channel was much shorter, running straight north from the south end of the island along its western shore to its northern end. The map shows that the higher portion of the island was covered with willows and a small part at the lower end was under cultivation. Furthermore, it is significant that at the north end of the island, just opposite the mouth of Mill Creek Ditch, the water in the Missouri channel was comparatively shallow. Exhibit 46 furnishes the most reliable evidence in the record of conditions in Forbes Bend at a given time. If only this exhibit and the facts it discloses were considered, clearly it could not be ruled that the main navigable channel of the river was the Missouri channel. For purposes of navigation, the Kansas channel was much the shorter and more direct and, from the soundings as well as the shorter flow, it apparently carried at least an equal volume of water. Exhibit 47, which is described as a revision from airplane photographs, shows in general a somewhat similar though less detailed picture for 1926. However, two witnesses for Kansas, Kenneth Robinson and Joseph H. Gray, who hunted in the region from 1920 to 1927 or 1928, testified concerning this exhibit and marked on it in penciled lines their recollections of the channels’ respective courses in 1922. Their testimony gives perhaps the strongest support to Kansas’ case that the main channel KANSAS v. MISSOURI. 227 213 Opinion of the Court. during a portion of the disputed period was on the Missouri side. But, apart from its inconsistency as to the location and direction of the Kansas chute,30 it does not accord with the more reliable evidence given concerning conditions in the Bend at the same time by complainant’s Exhibit 46 and it is contradicted by numerous witnesses for Missouri as well as by some for Kansas in allocating a larger flow to the Missouri channel. It cannot therefore be accepted as controlling. HI. The evidence need not be stated in further detail. In our opinion it fully supports the master’s ultimate findings and conclusions. It was his view, first, that there was no avulsive change, whether in 1917, 1927, or at any time. He found there was some evidence of an ice jam in 1917 and more to substantiate such a claim for 1927. But he also found, and the evidence, though not undisputed, fully substantiates his conclusion, that neither of these jams was sufficient to cause a sudden change in the river’s course. There is very considerable doubt, on the record as a whole, whether the alleged jam in 1917 occurred at all. 30 They agreed that the Missouri channel flowed around the island not far from the Burlington tracks, turning south at that point and flowing against the Kansas bluffs at Station 510. They also agreed that the Kansas channel was a chute. But they differed concerning its direction and location. Robinson placed it as running almost due south across the center of the island in a straight course. Gray placed the Kansas chute more to the west and with a curving course. Both testified that the Missouri channel was the main channel at that time. The inconsistency between Exhibit 46 and the testimony and drawings of Robinson and Gray may be accounted for in part, though not altogether, by the fact they were in the Bend for hunting and fishing purposes, chiefly in the fall, whereas Exhibit 46 was made from surveys in June and July. The difference in time, however, is hardly enough to account for the difference either in width or depth of the Kansas channel as shown by the exhibit and by their testimony. 228 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. In any event, the preponderant evidence is that it amounted to little, if anything, more than the normal piling of ice on the heads of bars and islands during the spring breakup.31 There is evidence that this occurred each year. The proof therefore to sustain avulsion in 1917 is not sufficient and this phase of the case may be put aside. We agree with the master that the evidence to show a more unusual piling up of ice at the head of the island in 1927 is somewhat stronger.32 But we also agree with him that the evidence as a whole is clearly preponderating that this did not cause an avulsive change. As has been stated, there is some evidence that the alleged 1927 jam caused the main channel of the river to shift then and suddenly from the Missouri channel to the Kansas channel as the latter flowed from 1927 or 1928 until the Government’s revetment work on the river forced the channel to its present location after 1935. But this is not enough to sustain Kansas’ case. Both by virtue of her position as complainant and on the facts, Kansas has the burden of proof in this case. Cf. Oklahoma v. Texas, 260 U. S. 606. The disputed location was in Missouri in 1900. It lies on the Missouri side now and has done so, by practically all the evidence, since at least 1927 or 1928. These facts put upon Kansas the burden of showing that in the meantime the land lay on the Kansas side of the main channel by virtue of natural changes which were effective to change the jurisdiction. Kansas has shown beyond doubt that one branch of the river eroded to a point or points north and east of this land, probably as early as 1920, possibly earlier. But beyond this fact, whether on her theory of accretion and avulsion or on that of island formation, the weight of the evidence is against her view of what occurred. 81 Cf. notes 27-29 supra. 32 Cf. note 25 supra. KANSAS v. MISSOURI. 229 213 Opinion of the Court. Kansas’ main difficulty perhaps is that by attempting to prove one theory of what happened in Forbes Bend she divides the weight of her evidence and thus goes far to disprove her other theory. To show accretion and avulsion she was required to prove that the river’s main channel moved gradually from the Kansas bluffs in 1900 to the farthest erosion point in Missouri in 1927, and then suddenly shifted back to a new channel cut then through the middle of the accreted soil, leaving the old one from that time on a minor or dry one. To show sovereignty by island formation it was necessary to prove that the island formed on the Kansas side of the main channel, in which event a subsequent shift in the main flow to the other side of the island would not affect her jurisdiction,33 although Missouri’s alternative contention seems to be to the contrary.34 By proving the formation of the island, Kansas in effect disproves that the disputed area became accreted soil attached firmly to the Kansas bank. Her own evidence in this respect, added to that given by Missouri, far outweighs the evidence she presented to show accretion beyond where the present channel lies and creates an overwhelming preponderance that the flow was divided from 1912 or at any rate 1917 to 1927 or 1928; that the island formed in this period; and thus that the soil in question was not at any time attached firmly to the Kansas bank by accretion. If it was formed as island soil, it was not accreted soil. Kansas’ evidence concerning the division of flow and formation of the island, together with that concerning 33 Missouri v. Kentucky, 11 Wall. 395; Davis v. Anderson-TvJly Co., 252 F. 681 (C. C. A.); Commissioners v. United States, 270 F. 110 (C. C. A.). 34 Missouri apparently urges that even if the land formed as an island on the Kansas side, the process by which the main channel shifted from the eastern to the western channel and the former gradually filled with alluvial deposits thus connecting the island to the Missouri shore, entitles it to sovereignty over the disputed lands. 230 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. the drying up of the Missouri channel, also proves not that the river suddenly cut a new channel through accreted soil in 1927, but that it merely shifted the volume of flow from one channel to another preexisting one. In other words it goes to disprove both accretion and avulsion. Missouri and Kansas witnesses are agreed that the main flow was in the Kansas channel from 1927 on and there is substantial agreement that by 1933 or 1935 the Missouri channel had dried up, except for the flow of Mill Creek Ditch, and largely had filled up by deposits from that stream and other forces. Missouri witnesses say this drying up began before 1927, some as early as 1922 or 1923, and therefore continued for ten or twelve years. Kansas witnesses generally say it began in 1927 and continued for from three to seven or eight years. Only a few of them say the ice jam that year cut a new channel. More testify that the main flow then shifted from one channel to the other, and some join the witnesses for Missouri in saying that this shift began earlier. Except for the few witnesses who testify to the sudden cutting of a new channel, the great weight of the testimony is that whatever change occurred in reduction of the flow in the Missouri channel required several years to complete. It was a gradual process, and therefore not the sudden shift necessary to show avulsion. We need not decide what the effect would be if the evidence had shown this was a gradual cutting of a new channel. It was at most a gradual shifting from one to another. Kansas clearly has failed to prove that there was a single channel of the river which gradually moved over to the farthest erosion point, meanwhile accreting this land to her soil, then suddenly moved back, either in 1917 or in 1927, to a new channel cut through the accreted soil. Only by accepting the evidence given by the few witnesses who supported this theory, which was contradicted both by the weight of her own evidence concerning island for KANSAS v. MISSOURI. 231 213 Opinion of the Court. mation and by substantially all that was offered for Missouri, could a finding in Kansas’ favor be made under the theory of accretion and avulsion. Kansas’ stronger case upon the proof is on the theory of island formation. On this, as under that of accretion and avulsion, it was necessary for her to show that the Missouri channel was the river’s main channel and thus the island, which is now part of the disputed land, was formed on her side of the river’s thread. On this crucial issue Kansas’ case is stronger perhaps than in any other respect. She presented substantial evidence to show that while the river was divided or during some part of that period, more especially from 1921 or 1922 to 1927, the Missouri channel was the main one, both in volume of water carried and, less clearly, in availability for navigation. There is, however, at least an equal weight of evidence, given both by Missouri witnesses and by some for Kansas, that the Kansas channel remained the main navigable channel throughout the period of division. The evidence on this controlling issue unfortunately is not as free from conflict or doubt as we might wish. But it cannot be said, when account is taken of all the evidence, both oral and documentary, that a preponderance sustains Kansas’ view that the main channel ever changed to the Missouri side. Kansas’ burden required preponderant proof. She has not made it. As the case has been made, both the master and this Court have had to rely upon the inadequate and inconclusive documentary evidence and the conflicting and often vague recollections of neighborhood witnesses. The sum does not add up to the weight of proof Kansas was required to establish in order to prevail. The master saw and heard the witnesses. His conclusions in all respects were in favor of Missouri. We find no basis in the record for any conclusion that he performed his task with other than fair, disinterested, painstaking effort and attitude. 232 OCTOBER TERM, 1943. Syllabus. 322 U. S. His judgment accords with the conclusions we make from our own independent examination of the record. It is not necessary for us to decide more than that Kansas has failed to show that the main channel of the river shifted at any time in question from a course such as the river now follows, or one slightly closer to the Kansas bluffs, to one following the course of the Missouri channel when the flow was divided. It follows the land in dispute must be awarded to Missouri and the boundary will be fixed as the master has recommended in his report. A decree will be entered accordingly. [See post, p. 654.] HUDDLESTON et al. v. DWYER et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 628. Argued April 25, 1944.—Decided May 15, 1944. 1. It is the duty of the federal appellate courts, as well as the trial court, to ascertain and apply the state law where that law controls the decision. P. 236. 2. A judgment of a federal court in a case ruled by state law, correctly applying that law as authoritatively declared by the state courts when the judgment was rendered, must be reversed on appellate review if in the meantime the state courts have disapproved their former rulings and adopted different ones. P. 236. 3. This Court ordinarily will not decide questions of state law which may conveniently be decided first by the court whose judgment is here on review. P. 237. 4. Upon review here of a judgment of the Circuit Court of Appeals in a case in which the decision is controlled by state law, it appears that a decision of the highest court of the State, rendered subsequently to those on which the Circuit Court of Appeals relied, has at least raised such doubt as to the applicable state law as to require its reexamination. The judgment therefore is vacated and the cause remanded to the Circuit Court of Appeals for reconsideration in the light of the subsequent state court decision. P. 236. 137 F. 2d 383, vacated. HUDDLESTON v. DWYER. 233 232 Opinion of the Court. Certiorari, 321 U. S. 759, to review the affirmance of an order directing a levy of taxes to provide funds for the payment of respondent bondholders. Mr. William E. Davis, with whom Messrs. Joseph R. Brown and Frank H. Moore were on the brief, for petitioners. Mr. William L. Curtis submitted for respondents. Per Curiam. Respondents are owners of defaulted paving bonds issued by the City of Poteau in Le Flore County, Oklahoma, the bonds being secured by assessments for benefits, payable in ten annual installments, upon the property in two improvement districts established by the city, including certain lots owned by the county, and others belonging to the city, which it later conveyed to the county. Respondents brought suit in 1937 in the District Court for Eastern Oklahoma, against the county, its Board of Commissioners and other officers of the county and city, alleging diversity of citizenship, and seeking a judgment fixing the county’s liability under state law for the assessments and asking mandamus to compel a tax levy by the county officials for the payment of the overdue assessments, and other relief. The District Court dismissed the complaint. The Circuit Court of Appeals for the Tenth Circuit reversed and remanded the cause to the District Court with directions to determine the amounts due on the respective assessments against the lots in question, and in the event of failure to provide funds for the payment of the judgment, then to entertain jurisdiction in an ancillary proceeding in mandamus to compel the necessary tax levies. Dwyer v. Le Flore County, 97 F. 2d 823. The District Court entered judgment accordingly, retaining jurisdiction for such action as might be necessary to effectuate the judgment. 234 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. No funds having been provided for payment of the overdue assessments, respondents brought the present proceeding in the District Court for mandamus, to compel petitioners, County Commissioners and other county officers, to make the tax levies necessary for payment of the amounts adjudged to be due. The District Court gave judgment for mandamus, in effect directing petitioners, beginning with the fiscal year 1942-3, to make ten annual levies in connection with the county general fund levies, sufficient to pay successively the ten assessment installments which became due and payable in the years 1925 to 1934 inclusive, with interest at 12% from the due date of the annual installments until August 13,1937, the date when the complaint was filed, and thereafter with interest at the rate of 6% per annum upon the aggregate of such installments and interest already accrued. One of the defenses to the petition for mandamus in the District Court was that under Oklahoma law a county is without authority to levy and collect a tax in one year to pay improvement assessments which became due in an earlier year. This defense was urged on appeal to the Circuit Court of Appeals which overruled it and affirmed the judgment of the District Court, 137 F. 2d 383, after an examination of the Oklahoma authorities, including Independent School District No. 39 v. Exchange National Co., 164 Okla. 176, 23 P. 2d 210; First National Bank v. Board of Education, 174 Okla. 164, 49 P. 2d 1077; Board of Educations. Johnston, 189 Okla. 172,115 P. 2d 132, and Wilson v. City of Hollis, decided by the Oklahoma Supreme Court on October 6, 1942 and not officially reported. The Court of Appeals found none of these cases to be precisely in point but concluded that the Supreme Court of Oklahoma had consistently and pointedly avoided the announcement of the rule contended for. It accordingly held that the District Court had correctly directed tax levies to provide for payment, from the HUDDLESTON v. DWYER. 235 232 Opinion of the Court. general tax fund, of the overdue installments of the improvement assessments, with interest as prescribed. Petitioners filed a timely petition for rehearing which was denied on September 1,1943. On December 17,1943, petitioners moved for leave to file a second petition for rehearing which the Circuit Court of Appeals denied. In their second petition, petitioners brought to the attention of the court and relied upon an opinion of the Supreme Court of Oklahoma in Wilson v. City of Hollis, of October 19,1943, — Okla. —, 142 P. 2d 633, which had superseded its earlier opinion on which the Circuit Court of Appeals had relied in its opinion in this case. Petitioners contended that by its later opinion the Supreme Court of Oklahoma had determined that Oklahoma law did not authorize the levy of a general fund tax to pay assessment installments which fell due in prior years, but that such installments could be paid only from a sinking fund levy, and that no statutory penalties or additional interest for delinquency could be collected. In its second opinion the Supreme Court of Oklahoma reexamined in detail the mode of enforcing past due installments of improvement assessments against the property of municipalities and counties in Oklahoma. It differentiated between the liability of municipally owned and privately owned property located within improvement districts, and it appears to have held, with respect to the former, that under the applicable provisions of the Oklahoma statutes mandamus to enforce the levy of a general fund tax will lie only in the year in which the assessment installment falls due, that money from the general fund cannot be applied to the payment of obligations of a prior fiscal year, and that “no delinquency that will carry with it additional interest or penalty can accrue against public property.” It said that judgment could be rendered against a county or municipality for past due installments which could be paid as are other judgments against a 236 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. county or municipality under Okla. Const. Art. 10, § 28, and 62 O. S. 1941, § 431, et seq., i. e., in three annual installments out of sinking fund levies. In announcing these conclusions the Supreme Court of Oklahoma stated that it found confusion arising out of its decisions on this subject, and that it was forced to reexamine its earlier decisions, including some of those on which the Circuit Court of Appeals had relied in deciding this case, to differentiate some, and to bring others into conformity with its conclusions announced in the Wilson case. In particular it declared that Independent School District No. 39 v. Exchange National Co., supra, and First National Bank v. Board of Education, supra, were in part overruled. State law is the controlling rule of decision in this case as to both substantive and procedural rights of the parties. Erie R. Co. v. Tompkins, 304 U. S. 64; Federal Rules of Civil Procedure, Rules 69 (a), 81 (b), 28 U. S. C. following § 723 (c). It is the duty of the federal appellate courts, as well as the trial court, to ascertain and apply the state law where, as in this case, it controls decision. Meredith n. Winter Haven, 320 U. S. 228. And a judgment of a federal court ruled by state law and correctly applying that law as authoritatively declared by the state courts when the judgment was rendered, must be reversed on appellate review if in the meantime the state courts have disapproved of their former rulings and adopted different ones. “Until such time as a case is no longer sub judice, the duty rests upon federal courts to apply state law under the Rules of Decision statute in accordance with the then controlling decision of the highest state court.” Vandenbark v. Owens-Illinois Co., 311 U.S. 538,543. The second opinion of the Oklahoma Supreme Court in the Wilson case has at least raised such doubt as to the applicable Oklahoma law as to require its reexamination HUDDLESTON v. DWYER. 237 232 Opinion of the Court. in the light of that opinion and of later decisions of the Supreme Court of Oklahoma on which respondents rely, before pronouncement of a final judgment in the case by the federal courts. That doubt is not to be resolved in the first instance by this Court. We have often had occasion to point out the importance to the orderly judicial administration of state laws in the federal courts that questions of state law required to be decided here should first be considered and decided by the state or federal court from which the case is brought to this Court for review. Dorchy v. Kansas, 264 U. S. 286, 290-91; Missouri ex rel. Wabash Ry. Co. v. Public Service Comm’n, 273 U. S. 126,131; Ruhlin v. New York Life Ins. Co., 304 U. S. 202, 206-7; New York ex rel. Whitman v. Wilson, 318 U. S. 688, 690-91. The decision of the highest court of a state on matters of state law are in general conclusive upon us, and ordinarily we accept and therefore do not review, save in exceptional cases, the considered determination of questions of state law by the intermediate federal appellate courts, cf. Ruhlin v. New York Life Ins. Co., supra. When we are called upon to decide them, the expression of the views of the judges of those courts, who are familiar with the intricacies and trends of local law and practice, if not indispensable, is at least a highly desirable and important aid to our determination of state law questions. This Court will not ordinarily decide them without that aid where they may conveniently first be decided by the court whose judgment we are called upon to review. See, e. g., Ruhlin v. New York Life Ins. Co., supra; Rosenthal v. New York Life Ins. Co., 304 U. S. 263, 264; West v. A. T. & T. Co., 311 U. S. 223, 241; Klaxon Co. v. Stentor Co., 313 U. S. 487,497; Meredith v. Winter Haven, supra. Accordingly, without passing on any of the other contentions of the parties, we vacate the judgment below and remand the cause to the Circuit Court of Appeals so that it may reconsider its decision in the light of the decisions 238 OCTOBER TERM, 1943. Syllabus. 322 U.S. and opinions of the Supreme Court of Oklahoma in the Wilson and later cases. So ordered. HAZEL-ATLAS GLASS CO. v. HARTFORDEMPIRE CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 398. Argued February 9, 10, 1944.—Decided May 15, 1944. Upon appeal from a judgment of the District Court denying relief in a suit by Hartford against Hazel for infringement of a patent, the Circuit Court of Appeals in 1932 held Hartford’s patent valid and infringed, and upon its mandate the District Court entered judgment accordingly. In 1941, Hazel commenced in the Circuit Court of Appeals this proceeding, wherein it conclusively appeared that Hartford, through publication of an article purporting to have been written by a disinterested person, had perpetrated a fraud on the Patent Office in obtaining the patent and on the Circuit Court of Appeals itself in the infringement suit. Upon review here of an order of the Circuit Court of Appeals denying relief, held: 1. Upon the record, the Circuit Court of Appeals had the power and the duty to vacate its 1932 judgment and to give the District Court appropriate directions. P. 247. (a) Even if Hazel failed to exercise due diligence to uncover the fraud, relief may not be denied on that ground alone, since public interests are involved. P. 246. (b) In the circumstances, Hartford may not be heard to dispute the effectiveness nor to assert the truth of the article. P. 247. 2. The Circuit Court of Appeals is directed to set aside its 1932 judgment, recall its 1932 mandate, dismiss Hartford’s appeal, and to issue a mandate to the District Court directing it to set aside its judgment entered pursuant to the 1932 mandate, to reinstate its original judgment denying relief to Hartford, and to take such additional action as may be necessary and appropriate. P. 250. 137 F. 2d 764, reversed. HAZEL-ATLAS CO. v. HARTFORD CO. 239 238 Opinion of the Court. Certiorari, 320 U. S. 732, to review an order of the Circuit Court of Appeals denying relief in a bill of review proceeding commenced in that court. Mr. Stephen H. Philbin, with whom Mr. Henry R. Ashton was on the brief, for petitioner. Mr. Francis W. Cole, with whom Messrs. Walter J. Blenko, Edgar J. Goodrich, and James M. Carlisle were on the brief, for respondent. Solicitor General Fahy, Assistant Attorney General Shea, and Messrs. Robert L. Stern and Melvin Richter filed a brief on behalf of the United States, as amicus curiae, urging reversal. Mr. Justice Black delivered the opinion of the Court. This case involves the power of a Circuit Court of Appeals, upon proof that fraud was perpetrated on it by a successful litigant, to vacate its own judgment entered at a prior term and direct vacation of a District Court’s decree entered pursuant to the Circuit Court of Appeals’ mandate. Hazel-Atlas commenced the present suit in November, 1941, by filing in the Third Circuit Court of Appeals a petition for leave to file a bill of review in the District Court to set aside a judgment entered by that Court against Hazel in 1932 pursuant to the Third Circuit Court of Appeals’ mandate. Hazel contended that the Circuit Court of Appeals’ judgment had been obtained by fraud and supported this charge with affidavits and exhibits. Hartford-Empire, in whose favor the challenged judgment had been entered, did not question the appellate court’s power to consider the petition, but filed counter affidavits and exhibits. After a hearing the Circuit Court concluded that since the alleged fraud had been practiced on it rather than the District Court it would pass on the 240 OCTOBER TERM, 1943. Opinion of the Court. 322 U. S. issues of fraud itself instead of sending the case to the District Court. An order was thereupon entered denying the petition as framed but granting Hazel leave to amend the prayer of the petition to ask that the Circuit Court itself hear and determine the issue of fraud. Hazel accordingly amended, praying that the 1932 judgments against it be vacated and for such other relief as might be just. Hartford then replied and filed additional exhibits and affidavits. The following facts were shown by the record without dispute. * In 1926 Hartford had pending an application for a patent on a machine which utilized a method of pouring glass into molds known as “gob feeding.” The application, according to the Circuit Court, “was confronted with apparently insurmountable Patent Office opposition.” To help along the application, certain officials and attorneys of Hartford determined to have published in a trade journal an article signed by an ostensibly disinterested expert which would describe the “gob feeding” device as a remarkable advance in the art of fashioning glass by machine. Accordingly these officials prepared an article entitled “Introduction of Automatic Glass Working Machinery; How Received by Organized Labor,” which referred to “gob feeding” as one of the two “revolutionary devices” with which workmen skilled in bottle-blowing had been confronted since they had organized. After unsuccessfully attempting to persuade the President of the Bottle Blowers’ Association to sign this article, the Hartford officials, together with other persons called to their aid, procured the signature of one William P. Clarke, widely known as National President of the Flint Glass Workers’ Union. Subsequently, in July 1926, the article was published in the National Glass Budget, and in October 1926 it was introduced as part of the record in support of the pending application in the Patent Office. HAZEL-ATLAS CO. v. HARTFORD CO. 241 238 Opinion of the Court. January 3,1928, the Patent Office granted the application as Patent No. 1,655,391. On June 6, 1928, Hartford brought suit in the District Court for the Western District of Pennsylvania charging that Hazel was infringing this “gob feeding” patent, and praying for an injunction against further infringement and for an accounting for profits and damages. Without referring to the Clarke article, which was in the record only as part of the “file-wrapper” history, and which apparently was not then emphasized by counsel, the District Court dismissed the bill on the ground that no infringement had been proved. 39 F. 2d 111. Hartford appealed. In their brief filed with the Circuit Court of Appeals, the attorneys for Hartford, one of whom had played a part in getting the spurious article prepared for publication, directed the Court’s attention to “The article by Mr. William Clarke, former President of the Glass Workers’ Union.” The reference was not without effect. Quoting copiously from the article to show that “labor organizations of practical workmen recognized” the “new and differentiating elements” of the “gob feeding” patent owned by Hartford, the Circuit Court on May 5, 1932, held the patent valid and infringed, reversed the District Court’s judgment, and directed that court to enter a decree accordingly. 59 F. 2d 399, 403, 404. At the time of the trial in the District Court in 1929, where the article seemingly played no important part, the attorneys of Hazel received information that both Clarke and one of Hartford’s lawyers had several years previously admitted that the Hartford lawyer was the true author of the spurious publication. Hazel’s attorneys did not at that time attempt to verify the truth of the hearsay story of the article’s authorship, but relied upon other defenses which proved successful. After the opinion of the Circuit Court came down on May 5, 1932, quoting the spurious 242 OCTOBER TERM, 1943. Opinion of the Court. 322 TJ. S. article and reversing the decree of the District Court, Hazel hired investigators for the purpose of verifying the hearsay by admissible evidence. One of these investigators interviewed Clarke in Toledo, Ohio, on May 13 and again on May 24. In each interview Clarke insisted that he wrote the article and would so swear if summoned. In the second interview the investigator asked Clarke to sign a statement telling in detail how the article was prepared, and further asked to see Clarke’s files. Clarke replied that he would not “stultify” himself by signing any “statement or affidavit”; and that he would show the records to no one unless compelled by a subpoena. At the same time, he reinforced his claim of authorship by asserting that he had spent seven weeks in preparing the article. But unknown to Hazel’s investigator, a representative of Hartford, secretly informed of the investigator’s view that Hazel’s only chance of reopening the case “was to get an affidavit from someone, to the effect that this article was written” by Hartford’s attorney, also had traveled to Toledo. Hartford’s representative first went to Toledo and talked to Clarke on May 10, three days before Hazel’s investigator first interviewed Clarke; and he returned to Toledo again on May 22 for a five-day stay. Thus at the time of the investigator’s second interview with Clarke on May 24, representatives of both companies were in touch with Clarke in Toledo. But though Hartford’s representative knew the investigator was there, the latter was unaware of the presence of the Hartford representative. On May 24, Hazel’s investigator reported failure; the same day, Hartford’s man reported “very successful results.” Four days later, on May 28, Hartford’s representative reported his “success” more fully. Clarke, he said, had been of “great assistance” and Hartford was in a “most satisfactory position”; it did not “seem wise to distribute copies of all the papers” the representative then had or HAZEL-ATLAS CO. v. HARTFORD CO. 243 238 Opinion of the Court. to “go into much detail in correspondence”; and Hartford was “quite indebted to Mr. Clarke” who “might easily have caused us a lot of trouble. This should not be forgotten. . . .” Among the “papers” which the representative had procured from Clarke was an affidavit signed by Clarke stating that he, Clarke, had “signed the article and released it for publication.” The affidavit was dated May 24—the very day that Clarke had told Hazel’s investigator he would not “stultify” himself by signing any affidavit and would produce his papers for no one except upon subpoena. Shortly afterward Hazel capitulated. It paid Hartford $1,000,000 and entered into certain licensing agreements. The day following the settlement, Hartford’s representative traveled back to Toledo and talked to Clarke. At this meeting Clarke asked for $10,000. Hartford’s representative told him that he wanted too much money and that Hartford would communicate with him further. A few days later the representative paid Clarke $500 in cash; and about a month later delivered to Clarke, at some place in Pittsburgh which he has sworn he cannot remember, an additional $7,500 in cash. The reason given for paying these sums was that Hartford felt a certain moral obligation to do so, although Hartford’s affidavits deny any prior agreement to pay Clarke for his services in connection with the article. Indisputable proof of the foregoing facts was, for the first time, fully brought to light in 1941 by correspondence files, expense accounts and testimony introduced at the trial of the United States v. Hartford-Empire Company et al., 46 F. Supp. 541, an anti-trust prosecution begun December 11,1939. On the basis of the disclosures at this trial Hazel commenced the present suit. Upon consideration of what it properly termed this “sordid story,” the Circuit Court, one Judge dissenting, held, first, that the fraud was not newly discovered; sec 244 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. ond, that the spurious publication, though quoted in the 1932 opinion, was not the primary basis of the 1932 decision; and third, that in any event it lacked the power to set aside the decree of the District Court because of the expiration of the term during which the 1932 decision had been rendered. Accordingly the Court refused to grant the relief prayed by Hazel. Federal courts, both trial and appellate, long ago established the general rule that they would not alter or set aside their judgments after the expiration of the term at which the judgments were finally entered. Bronson n. Schulten, 104 U. S. 410. This salutary general rule springs from the belief that in most instances society is best served by putting an end to litigation after a case has been tried and judgment entered. This has not meant, however, that a judgment finally entered has ever been regarded as completely immune from impeachment after the term. From the beginning there has existed alongside the term rule a rule of equity to the effect that under certain circumstances, one of which is after-discovered fraud, relief will be granted against judgments regardless of the term of their entry. Marine Insurance Co. v. Hodgson, 7 Cranch 332; Marshall v. Holmes, 141 U. S. 589. This equity rule, which was firmly established in English practice long before the foundation of our Republic, the courts have developed and fashioned to fulfill a universally recognized need for correcting injustices which, in certain instances, are deemed sufficiently gross to demand a departure from rigid adherence to the term rule. Out of deference to the deep-rooted policy in favor of the repose of judgments entered during past terms, courts of equity have been cautious in exercising their power over such judgments. United States n. Throckmorton, 98 U. S. 61. But where the occasion has demanded, where enforcement of the judgment is “mani- HAZEL-ATLAS CO. v. HARTFORD CO. 245 238 Opinion of the Court. festly unconscionable,” Pickford v. Talbott, 225 U. S. 651, 657, they have wielded the power without hesitation.1 Litigants who have sought to invoke this equity power customarily have done so by bills of review or bills in the nature of bills of review, or by original proceedings to enjoin enforcement of a judgment.1 2 And in cases where courts have exercised the power, the relief granted has taken several forms: setting aside the judgment to permit a new trial, altering the terms of the judgment, or restraining the beneficiaries of the judgment from taking any benefit whatever from it.3 But whatever form the relief has taken in particular cases, the net result in every case has been the same: where the situation has required, the court has, in some manner, devitalized the judgment even though the term at which it was entered had long since passed away. Every element of the fraud here disclosed demands the exercise of the historic power of equity to set aside fraudulently begotten judgments. This is not simply a case of a judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury. Here, even if we consider nothing but Hartford’s sworn admissions, we find a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Ap 1 See, e. g., Art Metal Works v. Abraham & Strauss, 107 F. 2d 940 and 944; Publicker v. Shallcross, 106 F. 2d 949; Chicago, R. I. & P. Ry. Co. v. Callicotte, 267 F. 799; Pickens V. Merriam, 242 F. 363; Lehman n. Graham, 135 F. 39; Bolden v. Sloss-Sheffield Steel & Iron Co., 215 Ala. 334, 110 So. 574, 49 A. L. R. 1206. For a collection of early cases see Note (1880) 20 Am. Dec. 160. 2 See Whiting v. Bank of the United States, 13 Pet. 6, 13; Dexter v. Arnold, 5 Mason 303, 308-315. See, also, generally, 3 Ohlinger’s Federal Practice pp. 814-818; 3 Freeman on Judgments (5th ed.) § 1191; Note (1880) 20 Am. Dec. 160, supra. 3 See 3 Freeman on Judgments (5th ed.) §§ 1178,1779. 246 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. peals. Cf. Marshall v. Holmes, supra. Proof of the scheme, and of its complete success up to date, is conclusive. Cf. United States v. Throckmorton, supra. And no equities have intervened through transfer of the fraudulently procured patent or judgment to an innocent purchaser. Cf. Ibid.; Hopkins v. Hebard, 235 U. S. 287. The Circuit Court did not hold that Hartford’s fraud fell short of that which prompts equitable intervention, but thought Hazel had not exercised proper diligence in uncovering the fraud and that this should stand in the way of its obtaining relief. We cannot easily understand how, under the admitted facts, Hazel should have been expected to do more than it did to uncover the fraud. But even if Hazel did not exercise the highest degree of diligence, Hartford’s fraud cannot be condoned for that reason alone. This matter does not concern only private parties. There are issues of great moment to the public in a patent suit. Mercoid Corporation v. Mid-Continent Investment Co., 320 U. S. 661; Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488. Furthermore, tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud. The Circuit Court also rested denial of relief upon the conclusion that the Clarke article was not “basic” to the Court’s 1932 decision. Whether or not it was the primary basis for that ruling, the article did impress the Court, as HAZEL-ATLAS CO. v. HARTFORD CO. 247 238 Opinion of the Court. shown by the Court’s opinion. Doubtless it is wholly impossible accurately to appraise the influence that the article exerted on the judges. But we do not think the circumstances call for such an attempted appraisal. Hartford’s officials and lawyers thought the article material. They conceived it in an effort to persuade a hostile Patent Office to grant their patent application, and went to considerable trouble and expense to get it published. Having lost their infringement suit based on the patent in the District Court wherein they did not specifically emphasize the article, they urged the article upon the Circuit Court and prevailed. They are in no position now to dispute its effectiveness. Neither should they now be permitted to escape the consequences of Hartford’s deceptive attribution of authorship to Clarke on the ground that what the article stated was true. Truth needs no disguise. The article, even if true, should have stood or fallen under the only title it could honestly have been given—that of a brief in behalf of Hartford, prepared by Hartford’s agents, attorneys, and collaborators. We have, then, a case in which undisputed evidence filed with the Circuit Court of Appeals in a bill of review proceeding reveals such fraud on that Court as demands, under settled equitable principles, the interposition of equity to devitalize the 1932 judgment despite the expiration of the term at which that judgment was finally entered. Did the Circuit Court have the power to set aside its own 1932 judgment and to direct the District Court likewise to vacate the 1932 decree which it entered pursuant to the mandate based upon the Circuit Court’s judgment? Counsel for Hartford contend not. They concede that the District Court has the power upon proper proof of fraud to set aside its 1932 decree in a bill of review proceeding, but nevertheless deny that the Circuit Court possesses a similar power for the reason that the term during 248 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. which its 1932 judgment was entered had expired. The question, then, is not whether relief can be granted, but which court can grant it. Equitable relief against fraudulent judgments is not of statutory creation. It is a judicially devised remedy fashioned to relieve hardships which, from time to time, arise from a hard and fast adherence to another court-made rule, the general rule that judgments should not be disturbed after the term of their entry has expired. Created to avert the evils of archaic rigidity, this equitable procedure has always been characterized by flexibility which enables it to meet new situations which demand equitable intervention, and to accord all the relief necessary to correct the particular injustices involved in these situations. It was this flexibility which enabled courts to meet the problem raised when leave to file a bill of review was sought in a court of original jurisdiction for the purpose of impeaching a judgment which had been acted upon by an appellate court. Such a judgment, it was said, was not subject to impeachment in such a proceeding because a trial court lacks the power to deviate from the mandate of an appellate court. The solution evolved by the courts is a procedure whereby permission to file the bill is sought in the appellate court. The hearing conducted by the appellate court on the petition, which may be filed many years after the entry of the challenged judgment, is not just a ceremonial gesture. The petition must contain the necessary averments, supported by affidavits or other acceptable evidence; and the appellate court may in the exercise of a proper discretion reject the petition, in which case a bill of review cannot be filed in the lower court. National Brake Co. v. Christensen, 254 U. S. 425, 430-433. We think that when this Court, a century ago, approved this practice and held that federal appellate courts have the power to pass upon, and hence to grant or deny, peti- HAZEL-ATLAS CO. v. HARTFORD CO. 249 238 Opinion of the Court. tions for bills of review even though the petitions be presented long after the term of the challenged judgment has expired, it settled the procedural question here involved. Southard v. Russell, 16 How. 547.4 To reason otherwise would be to say that although the Circuit Court has the power to act after the term finally to deny relief, it has not the power to act after the term finally to grant relief. It would, moreover, be to say that even in a case where the alleged fraud was on the Circuit Court itself, the relevant facts as to the fraud were agreed upon by the litigants, and the Circuit Court concluded relief must be granted, that Court nevertheless must send the case to the District Court for decision. Nothing in reason or precedent requires such a cumbersome and dilatory procedure. Indeed the whole history of equitable procedure, with the traditional flexibility which has enabled the courts to grant all the relief against judgments which the equities require, argues against it. We hold, therefore, that the Circuit Court on the record here presented5 had 4 See also Tyler n. Magwire, 17 Wall. 253, 283: “Repeated decisions of this court have established the rule that a final judgment or decree of this court is conclusive upon the parties, and that it cannot be reexamined at a subsequent term, except in cases of fraud, as there is no act of Congress which confers any such authority.” (Italics supplied.) 5 do not hold, and would not hold, that the material questions of fact raised by the charges of fraud against Hartford could, if in dispute, be finally determined on ex parte affidavits without examination and cross-examination of witnesses. It should again be emphasized that Hartford has never questioned the accuracy of the various documents which indisputably show fraud on the Patent Office and the Circuit Court, and has not claimed, either here or below, that a trial might bring forth evidence to disprove the facts as shown by these documents. And insofar as a trial would serve to bring forth additional evidence showing that Hazel was not diligent in uncovering these facts, we already have pointed out that such evidence would not in this case change the result. Moreover, we need not decide whether, if the facts relating to the fraud were in dispute and difficult of ascertainment, the Circuit Court 250 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. both the duty and the power to vacate its own judgment and to give the District Court appropriate directions. The question remains as to what disposition should be made of this case. Hartford’s fraud, hidden for years but now admitted, had its genesis in the plan to publish an article for the deliberate purpose of deceiving the Patent Office. The plan was executed, and the article was put to fraudulent use in the Patent Office, contrary to law. U. S. C., Title 35, § 69; United States v. American Bell Telephone Co., 128 U. S. 315. From there the trail of fraud continued without break through the District Court and up to the Circuit Court of Appeals. Had the District Court learned of the fraud on the Patent Office at the original infringement trial, it would have been warranted in dismissing Hartford’s case. In a patent case where the fraud certainly was not more flagrant than here, this Court said: “Had the corruption of Clutter been disclosed at the trial . . ., the court undoubtedly would have been warranted in holding it sufficient to require dismissal of the cause of action there alleged for the infringement of the Downie patent.” Keystone Driller Co. v. Excavator Co., 290 U. S. 240, 246; cf. Morton Salt Co. v. G. S. Suppiger Co., supra, 493, 494. So, also, could the Circuit Court of Appeals have dismissed the appeal had it been aware of Hartford’s corrupt activities in suppressing the truth concerning the authorship of the article. The total effect of all this fraud, practiced both on the Patent Office and the courts, calls for nothing less than a complete denial of relief to Hartford for the claimed infringement of the patent thereby procured and enforced. Since the judgments of 1932 therefore must be vacated, the case now stands in the same position as though Hartford’s corruption had been exposed at the original trial, here should have held hearings and decided the case or should have sent it to the District Court for decision. Cf. Art Metal Works v. Abraham & Strauss, supra, Note 1. HAZEL-ATLAS CO. v. HARTFORD CO. 251 238 Roberts, J., dissenting. In this situation the doctrine of the Keystone case, supra, requires that Hartford be denied relief. To grant full protection to the public against a patent obtained by fraud, that patent must be vacated. It has previously been decided that such a remedy is not available in infringement proceedings, but can only be accomplished in a direct proceeding brought by the Government. United States v. American Bell Telephone Co., supra. The judgment is reversed with directions to set aside the 1932 judgment of the Circuit Court of Appeals, recall the 1932 mandate, dismiss Hartford’s appeal, and issue mandate to the District Court directing it to set aside its judgment entered pursuant to the Circuit Court of Appeals’ mandate, to reinstate its original judgment denying relief to Hartford, and to take such additional action as may be necessary and appropriate. Reversed. Mr. Justice Roberts: No fraud is more odious than an attempt to subvert the administration of justice. The court is unanimous in condemning the transaction disclosed by this record. Our problem is how best the wrong should be righted and the wrongdoers pursued. Respect for orderly methods of procedure is especially important in a case of this sort. In simple terms, the situation is this. Some twelve years ago a fraud perpetrated in the Patent Office was relied on by Hartford in the Circuit Court of Appeals. The court reversed a judgment in favor of Hazel, decided that Hartford was the holder of a valid patent which Hazel had infringed and, by its mandate, directed the District Court to enter a judgment in favor of Hartford. This was done and, on the strength of the judgment, Hartford and Hazel entered into an agreement of which more hereafter. So long as that judgment stands unmodified, the agreement of the parties will be unaffected by anything involved in the suit under discussion. Hazel concededly now 252 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. desires to be in a position to disregard the agreement to its profit. The resources of the law are ample to undo the wrong and to pursue the wrongdoer and to do both effectively with due regard to the established modes of procedure. Ever since this fraud was exposed, the United States has had standing to seek nullification of Hartford’s patent.1 The Government filed a brief as amicus below and one in this court. It has elected not to proceed for cancellation of the patent.1 2 It is complained that members of the bar have knowingly participated in the fraud. Remedies are available to purge recreant officers from the tribunals on whom the fraud was practiced. Finally, as to the immediate aim of this proceeding, namely, to nullify the judgment if the fraud procured it, and if Hazel is equitably entitled to relief, an effective and orderly remedy is at hand. This is a suit in equity in the District Court to set aside or amend the judgment. Such a proceeding is required by settled federal law and would be tried, as it should be, in open court with living witnesses instead of through the unsatisfactory method of affidavits. We should not resort to a disorderly remedy, by disregarding the law as applied in federal courts ever since they were established, in order to reach one inequity at the risk of perpetrating another. In a suit brought by Hartford against Hazel in the Western District of Pennsylvania charging infringement of Hartford’s patent No. 1,655,391, a decree was entered against Hartford March 31, 1930, on the ground that Hazel had not infringed. On appeal, the Circuit Court 1 United States v. American Bell Telephone Co., 128 U. S. 315; 167 U. S. 224,238. 2 The facts with respect to the fraud practiced on the Patent Office have been known for some years. HAZEL-ATLAS CO. v. HARTFORD CO. 253 238 Roberts, J., dissenting. of Appeals filed an opinion, May 5, 1932, reversing the judgment of the District Court and holding the patent valid and infringed. On Hazel’s application, the time for filing a petition for rehearing was extended five times. On July 21, 1932, Hazel entered into a general settlement and license agreement with Hartford respecting the patent in suit and other patents, which agreement was to be effective as of July 1, 1932. Hazel filed no petition for • rehearing and, on July 30, 1932, the mandate of the Circuit Court of Appeals went to the District Court. Pursuant to the mandate, that court entered its final judgment against Hazel for an injunction and an accounting. No such accounting was ever had because Hazel and Hartford had settled their differences. November 19, 1941, Hazel presented to the Circuit Court of Appeals its petition for leave to file in the District Court a bill of review. Attached was the proposed bill. Affidavits were filed by Hazel and Hartford. The Circuit Court of Appeals heard the matter and made an order denying the petition for leave to file, holding that any fraud practiced had been practiced on the Circuit Court of Appeals and, therefore, that court should itself pass upon the question whether the mandate should be recalled and the case reopened. Leave was granted to Hazel to amend its petition to seek relief from the Circuit Court of Appeals. The order provided for an answer by Hartford and for a hearing and determination by the Circuit Court of Appeals. The Circuit Court of Appeals, on the basis of the amended petition, the answer, and the affidavits, denied relief on the grounds: (1) that the fraud had not been effective to influence its earlier decision; (2) that the court was without power to deal with the case as its mandate had gone down and the term had long since expired; (3) that Hazel had been negligent and guilty of inexcusable delay in presenting the matter to the court; and 254 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. (4) that the only permissible procedure was in the District Court, where the judgment rested, by bill in equity in the nature of a bill of review. One judge dissented, holding that the court had power (1) to recall the cause; (2) to enter upon a trial of the issues made by the petition and answer, and (3) itself to review and revise its earlier decision, enter a new judgment in the case on the • corrected record and send a new mandate to the District Court. As I understand the opinion of this court, while it reverses the decision below, it only partially adopts the view of the dissenting judge, for the holding is: (1) that the court below has power at this date to deal with the matter either as a new suit or as a continuation of the old one; (2) that it can recall the case from the District Court; (3) that it can grant relief; (4) that it can hear evidence and act as a court of first instance or a trial court; (5) that such a trial as it affords need not be according to the ordinary course of trial of facts in open court, by examination and cross-examination of witnesses, but that the proofs may consist merely of ex parte affidavits; and (6) that such a trial has already been afforded and it remains only, in effect, to cancel Hartford’s patent. I think the decision overrules principles settled by scores of decisions of this court which are vital to the equitable and orderly disposition of causes,—principles which, upon the soundest considerations of fairness and policy, have stood unquestioned since the federal judicial system was established. I shall first briefly state these principles. I shall then as briefly summarize the reasons for their adoption and enforcement and, finally, I shall show why it would not be in the interest of justice to abandon them in this case. 1. The final and only extant judgment in the litigation is that of the District Court entered pursuant to the mandate of the Circuit Court of Appeals. The term of the HAZEL-ATLAS CO. v. HARTFORD CO. 255 238 Roberts, J., dissenting. District Court long ago expired and, with that expiration, all power of that court to reexamine the judgment or to alter it ceased, except for the correction of clerical errors. The principle is of universal application to judgments at law,3 decrees in equity,4 and convictions of crime, though, as respects the latter, its result may be great individual hardship.5 6 The rule might, for that reason, have been relaxed in criminal cases, if it ever is to be, for there, in contrast to civil cases, no other judicial relief is available. In the promulgation of the Federal Rules of Civil Procedure this court took notice of the fact that terms of the district court vary in length and that the expiration of 3 Bank of United States v. Moss, 6 How. 31, 38; Roemer v. Simon, 91 U. S. 149; Phillips v. Negley, 117 U. S. 665, 672, QIS','Hickman v. Fort Scott, 141 U. S. 415; Tubman v. Baltimore & Ohio R. Co., 190 U. S. 38; Wetmore v. Karrick, 205 U. S. 141, 151-2; In re Metropolitan Trust Co., 218 U. S. 312, 320; Delaware, L. & W. R. Co. v. Rellstdb, 276 U. S. 1, 5; Realty Acceptance Corp. v. Montgomery, 284 U. S. 547, 549. 4 Cameron n. McRoberts, 3 Wheat. 591; Sibbald v. United States, 12 Pet. 488, 492; Washington Bridge Co. v. Stewart, 3 How. 413, 426; Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207; Wayne Gas Co. y. Owens-Illinois Co., 300 U. S. 131, 136; Sprague v. Ticonic Bank, 307 U. S. 161,169. 6 United States v. Mayer, 235 U. S. 55, 67. In this case one Freeman was convicted in the District Court. After he had taken an appeal to the Circuit Court of Appeals he filed, after the term had expired, a motion to set aside the judgment on the ground that a juror wilfully concealed bias against the defendant when examined on his voir dire. After hearing this motion the district judge found as a fact that the juror had been guilty of misconduct and that the defendant and his counsel neither had knowledge of the wrong nor could have discovered it earlier by due diligence. The district judge was in doubt whether, after the expiration of the term, he had power to deal with the judgment of conviction. The Circuit Court of Appeals certified the question to this court which, in a unanimous opinion, rendered after full argument by able counsel, held in accordance with all earlier precedents that, even in a case of such hardship, the District Court had no such power. 256 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. the term might occur very soon, or quite a long time, after the entry of a judgment. In order to make the practice uniform, Rule 60-B provides: “On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no- case exceeding six months after such judgment, order, or proceeding was taken. . . . This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding. . . .” Thus there has been substituted for the term rule a definite time limitation within which a district court may correct or modify its judgments. But the salutary rule as to finality is retained and, after the expiration of six months, the party must apply, as heretofore, by bill of review,—now designated a civil action—to obtain relief from a judgment which itself is final so far as any further steps in the original action are concerned. The term rule applies with equal force to an appellate court. Over the whole course of its history, this court has uniformly held that it was without power, after the going down of the mandate, and the expiration of the term, to rehear a case or to modify its decision on the merits.6 And this is equally true of the circuit courts of appeal.7 6 Hudson v. Guestier, 7 Cr. 1; Jackson v. Ashton, 10 Pet. 480; Sib-bald v. United States, supra, 492; Washington Bridge Co. v. Stewart, supra; Brooks v. Railroad Co., 102 U. S. 107; Barney v. Friedman, 107 U. S. 629; Hickman v. Fort Scott, supra, 419; Bushnell v. Crooke Mining Co., 150 U. S. 82. 7 Ex parte National Park Bank, 256 TJ. S. 131. “That court was powerless to modify the decree after the expiration of the term at which it was entered. If the omission in the decree had been adequately called to the court’s attention during the term it would doubt- HAZEL-ATLAS CO. v. HARTFORD CO. 257 238 Roberts, J., dissenting. The court below, unless we are to overthrow a century-and-a-half of precedents, lacks power now to revise its judgment and lacks power also to send its process to the District Court and call up for review the judgment entered on its mandate twelve years ago.8 * No such power is inherent in an appellate court; none such is conferred by any statute. 2. The Circuit Court of Appeals is without authority either to try the issues posed by the petition and answer on the affidavits on file, or, to do as the dissenting judge below suggests, hold a full-dress trial. The federal courts have only such powers as are expressly conferred on them. Certain original jurisdiction is vested in this court by the Constitution. Its powers as an appellate court are those only which are given by statute.” The circuit courts of appeal are creatures of statute. No original jurisdiction has been conferred on them. They exercise only such appellate functions as Congress has granted. The grant is plain. “The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions ... in the district courts . . 10 Nowhere is there any grant of jurisdiction to try cases, to less have corrected the error complained of; or relief might have been sought in this court by a petition for a writ of certiorari. The bank failed to avail itself of remedies open to it.” (p. 133.) The circuit courts of appeal have uniformly observed the rule thus announced. Hart v. Wilt see, 25 F. 2d 863; Nachod v. Engineering & Research Corp., 108 F. 2d 594; Montgomery v. Realty Acceptance Corp., 51 F. 2d 642; Foster Bros. Mfg. Co. v. Labor Board, 90 F. 2d 948; Wichita Royalty Co. v. City National Bank, 97 F. 2d 249; Hawkins v. Cleveland, C., C. & St. L. Ry. Co., 99 F. 322; Walsh Construction Co. v. U. S. Guarantee Co., 76 F. 2d 240; Waskey v. Hammer, 179 F. 273. 6 Sibbald v. United States, supra, 492; Roemer v. Simon, 91 U. S. 149; In re Sanford Fork & Tool Co., 160 U. S. 247. • Ex parte Bollman, 4 Cr. 75, 93. 10 Judicial Code § 128 as amended; 28 U. S. C. 225. 258 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. enter judgments, or to issue executions or other final process. . courts created by statute must look to the statute as the warrant for their authority; certainly they cannot go beyond the statute, and assert an authority with which they may not be invested by it, or which may be clearly denied to them.”11 This court has never departed from the view that circuit courts of appeal are statutory courts having no original jurisdiction but only appellate jurisdiction.11 12 13 Neither this court18 nor a circuit court14 of appeals may hear new evidence in a cause appealable from a lower court. No suggestion seems ever before to have been made that they may constitute themselves trial courts, embark on the trial of what is essentially an independent cause and enter a judgment of first instance on the facts and the law. But this is what the opinion sanctions. 3. The temptation might be strong to break new ground in this case if Hazel were otherwise remediless. Such is 11 Cary v. Curtis, 3 How. 236, 245. See Sheldon v. Sill, 8 How. 441,449; Kentucky v. Powers, 201 U. S. 1,24. 12 Whitney v. Dick, 202 U. S. 132, 137; United States v. Mayer, supra, 65; Realty Acceptance Corp. v. Montgomery, supra, 549. 13 Russell v. Southard, 12 How. 139, 158, 159; United States v. Knight’s Adm’r, 1 Black 488; Roemer v. Simon, supra. In the Russell case Chief Justice Taney said: “It is very clear that affidavits of newly-discovered testimony cannot be received for such a purpose. This court must affirm or reverse upon the case as it appears in the record. We cannot look out of it, for testimony to influence the judgment of this court sitting, as an appellate tribunal. And, according to the practice of the court of chancery from its earliest history to the present time, no paper not before the court below can be read on the hearing of an appeal. Eden v. Earl Bute, 1 Bro. Par. Cas. 465; 3 Bro. Par. Cas. 546; Studwell v. Palmer, 5 Paige, 166. “Indeed, if the established chancery practice had been otherwise, the act of Congress of March 3d, 1803, expressly prohibits the introduction of new evidence, in this court, on the hearing of an appeal from a circuit court, except in admiralty and prize causes.” 14 Realty Acceptance Corp. v. Montgomery, supra, 550, 551. HAZEL-ATLAS CO. v. HARTFORD CO. 259 238 Roberts, J., dissenting. not the fact. The reports abound in decisions pointing the way to relief if, in equity, Hazel is entitled to any. Since Lord Bacon’s day a decree in equity may be reversed or revised for error of law,15 16 for new matter subsequently occurring, or for after-discovered evidence. And this head of equity jurisdiction has been exercised by the federal courts from the foundation of the nation.16 Such a bill is an original bill in the nature of a bill of review. Equity also, on original bills, exercises a like jurisdiction to prevent unconscionable retention or enforcement of a judgment at law procured by fraud, or mistake unmixed with negligence attributable to the losing party, or rendered because he was precluded from making a defense which he had. Such a bill may be filed in the federal court which rendered the judgment or in a federal court other than the court, federal or state, which rendered it.17 15 A bill filed to correct error of law apparent on the record is called a strict bill of review and some rules as to time are peculiarly applicable to such bills. See Whiting v. Bank of United States, 13 Pet. 6,13,14,15; Shelton v. Van Kleeck, 106 U. S. 532; Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207. Street, Federal Equity Practice, § 2129 et seq. With this type of bill we are not here concerned. 16 Ocean Ins. Co. v. Fields, 2 Story 59; Whiting v. Bank of United States, supra; Southard v. Russell, 16 How. 547; Minnesota Co. v. St. Paul Co., 2 Wall. 609; Purcell v. Miner, 4 Wall. 519; Rubber Co. v. Goodyear, 9 Wall. 805; Easley v. Kellom, 14 Wall. 279; Putnam v. Day, 22 Wall. 60; Buffington v. Harvey, 95 TJ. S. 99; Craig v. Smith, 100 U. S. 226; Shelton v. Van Kleeck, supra; Pacific Railroad v. Missouri Pacific Ry. Co., Ill U. S. 505; Central Trust Co. n. Grant Locomotive Works, supra; Boone County v. Burlington & M. R. R. Co., 139 U. S. 684; Hopkins v. Hebard, 235 U. S. 287; Scotten v. Littlefield, 235 U. S. 407; National Brake & Electric Co. v. Christensen, 254 U. S. 425; Simmons Co. v. Grier Bros. Co., 258 U. S. 82; Jackson v. Irving Trust Co., 311 U. S. 494,499. 17 Logan v. Patrick, 5 Cr. 288; Marine Ins. Co. v. Hodgson, 7 Cr. 332; Dunn v. Clarke, 8 Pet. 1; Truly v. Warner, 5 How. 141; Creath’s Adm’r v. Sims, 5 How. 192; Humphreys v. Leggett, 9 How. 297; Walker v. Robbins, 14 How. 584; Hendrickson v. Hinckley, 17 How. 260 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. Whether the suit concerns a decree in equity or a judgment at law, it is for relief granted by equity against an unjust and inequitable result, and is subject to all the customary doctrines governing the award of equitable relief. New proof to justify a bill of review must be such as has come to light after judgment and such as could not have been obtained when the judgment was entered. The proffered evidence must not only have been unknown prior to judgment, but must be such as could not have been discovered by the exercise of reasonable diligence in time to permit its use in the trial. Unreasonable delay, or lack of diligence in timely searching for the evidence, is fatal to the right of a bill of review, and a party may not elect to forego inquiry and let the cause go to judgment in the hope of a favorable result and then change his position and attempt, by means of a bill of review, to get the benefit of evidence he neglected to produce. These principles are established by many of the cases cited in notes 16 and 17, and specific citation is unnecessary. The principles are well settled. And, in this class of cases as in others, although equity does not condone wrongdoing, it will not extend its aid to a wrongdoer; in 443; Leggett v. Humphreys, 21 How. 66; Gue v. Tide Water Canal Co., 24 How. 257; Freeman v. Howe, 24 How. 450; Kibbe v. Benson, 17 Wall. 624; Crim v. Handley, 94 U. S. 652; Brown v. County of Buena Vista, 95 U. S. 157; United States v. Throckmorton, 98 U. S. 61; Bronson v. Schulten, 104 U. S. 410; Embry v. Palmer, 107 U. S. 3; White v. Crow, 110 U. S. 183; Krippendorj n. Hyde, 110 U. 8. 276; Johnson v. Waters, 111 U. S. 640; Richards v. Mackall, 124 U. S. 183; Arrowsmith v. Gleason, 129 U. S. 86; Knox County v. Harshman, 133 U. S. 152; Marshall v. Holmes, 141 U. S. 589; North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U. 8. 596; Robb v. Vos, 155 U. 8. 13; Howard v. De Cordova, 177 U. S. 609; United States v. Beebe, 180 U. S. 343; Pickford v. Talbott, 225 U. 8. 651; Simon v. Southern Ry. Co., 236 U. S. 115; Wells Fargo & Co. v. Taylor, 254 U. S. 175. HAZEL-ATLAS CO. v. HARTFORD CO. 261 238 Roberts, J., dissenting. other words, the complainant must come into court with clean hands. 4. Confessedly the opinion repudiates the unbroken rule of decision with respect to the finality of a judgment at the expiration of the term; that with respect to jurisdiction of an appellate court to try issues of fact upon evidence, and that with respect to the necessity for resorting to a bill of review to modify or set aside a judgment once it has become final. Perusal of the authorities cited will sufficiently expose the reasons for these doctrines. It is obvious that parties ought not to be permitted indefinitely to litigate issues once tried and adjudicated.18 There must be an end to litigation. If courts of first instance, or appellate courts, were at liberty, on application of a party, at any time to institute a summary inquiry for the purpose of modifying or nullifying 18 It has frequently been said that where the ground for a bill of review is fraud, review will not be granted unless the fraud was extrinsic. See United States v. Throckmorton, 98 U. S. 61. The distinction between extrinsic and intrinsic fraud is not technical but substantial. The statement that only extrinsic fraud may be the basis of a bill of review is merely a corollary of the rule that review will not be granted to permit relitigation of matters which were in issue in the cause and are, therefore, concluded by the judgment or decree. The classical example of intrinsic as contrasted with extrinsic fraud is the commission of perjury by a witness. While perjury is a fraud upon the court, the credibility of witnesses is in issue, for it is one of the matters on which the trier of fact must pass in order to reach a final judgment. An allegation that a witness perjured himself is insufficient because the materiality of the testimony, and opportunity to attack it, was open at the trial. Where the authenticity of a document relied on as part of a litigant’s case is material to adjudication, as was the grant in the Throckmorton case, and there was opportunity to investigate this matter, fraud in the preparation of the document is not extrinsic but intrinsic and will not support review. Any fraud connected with the preparation of the Clarke article in this case was extrinsic, and, subject to other relevant rules, would support a bill of review. 262 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. a considered judgment, no reliance could be placed on that which has been adjudicated and citizens could not, with any confidence, act in the light of what has apparently been finally decided. If relief on equitable grounds is to be obtained, it is right that it should be sought by a formal suit upon adequate pleadings and should be granted only after a trial of issues according to the usual course of the trial of questions of fact. A court of first instance is the appropriate tribunal, and the only tribunal, equipped for such a trial. Appellate courts have neither the power nor the means to that end. On the strongest grounds of public policy bills of review are disfavored, since to facilitate them would tend to encourage fraudulent practices, resort to perjury, and the building of fictitious reasons for setting aside judgments. 5. I think the facts in the instant case speak loudly for the observance, and against the repudiation, of all the rules to which I have referred. The court’s opinion implies that the disposition here made is justified by uncontradicted facts, but the record demonstrates beyond question that serious controverted issues ought to be resolved before Hazel may have relief. In 1926 Hartford brought a suit for infringement of the Peiler Patent against Nivison-Weiskopf Company in the Southern District of Ohio. Counsel for the defendants in that case were Messrs. William R. and Edmund P. Wood of Cincinnati. About the same time, Hartford brought a similar suit for infringement against Kearns-Gorsuch Bottle Company, a subsidiary of Hazel. Counsel for Kearns were the same who have represented Hazel throughout this case. In 1928 Hartford brought suit against Hazel in the Western District of Pennsylvania for a like infringement. The same counsel represented Hazel. The Ohio suits HAZEL-ATLAS CO. v. HARTFORD CO. 263 238 Roberts, J., dissenting. came to trial first. In them a decision was rendered adverse to Hartford. Appeals were taken to the Circuit Court of Appeals of the Sixth Circuit, were consolidated, and counsel for the defendants appeared together in that court, which decided adversely to Hartford (58 F. 2d 701). In the preparation for the defense of the Nivison suit, William R. Wood called upon Clarke and interviewed him in the presence of a witness. Clarke admitted that Hatch of Hartford had prepared the article published under Clarke’s name. In the light of this fact the Messrs. Wood notified Hartford that they would require the presence of Hatch at the trial of the suit and Hatch was in attendance during that trial. Repeatedly during the trial, Hatch admitted to the Messrs. Wood that he was in fact the author of the article. It was well understood that the defendant wanted him present so that if any reference to or reliance upon the article developed they could call Hatch and prove the facts. There was no such reference or reliance. As counsel for the various defendants opposed to Hartford were acting in close cooperation, Messrs. Wood attended the trial of the Hartford-Hazel suit in Pittsburgh, which must have occurred in 1929 or early 1930. (See 39 F. 2d 111.) One or other of the Messrs. Wood was present throughout that trial and Edmund P. Wood was in frequent consultation with the Hazel representatives and counsel. Hazel’s counsel was the same at that trial as in the present case. The Messrs. Wood told Hazel’s counsel and representatives that Clarke had admitted Hatch was the author of the article and that Hatch had also freely admitted the same thing. Hazel’s counsel and representatives discussed at length, in the presence of Mr. Wood, the advisability of attacking the authenticity of the article. Counsel for Hazel, in these conferences, took the position that “an attack on the article might be a 264 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. boomerang in that ir might emphasize the truth of the only statements in the article” which he regarded as of any possible pertinence. Mr. Wood’s affidavit giving in detail the discussions and the conclusion of Hazel’s counsel is uncontradicted, and demonstrates that Hazel’s counsel knew the facts with regard to the Clarke article and knew the names of witnesses who could prove those facts. After due deliberation, it was decided not to offer proof on the subject. The District Court found in favor of Hazel, holding that Hazel had not infringed. Hartford appealed to the Third Circuit Court of Appeals. In that court Hartford’s counsel referred in argument to the Clarke article and the court, in its decision, referred to the article as persuasive of certain facts in connection with the development of glass machinery. The Circuit Court of Appeals for the Sixth Circuit rendered its decision in the Nivison and Kearns cases on May 12, 1932, and the Third Circuit Court of Appeals rendered its decision in the Hartford-Hazel case on May 6,1932. Counsel for Hazel was then, nearly ten years prior to the filing of the instant petition, confronted with the fact that, in its opinion, the Circuit Court of Appeals had accredited the article. Naturally counsel was faced with the question whether he should bring to the court’s attention the facts respecting that article. As I have said, he asked and was granted five extensions of time for filing a petition for rehearing. Meantime negotiations were begun with Hartford for a general settlement and for Hazel’s joining in the combination and patent pool of which Hartford was the head and front. At the same time, however, evidently as a precaution against the breakdown of the negotiations, Hazel’s counsel obtained affidavits to be signed by the Messrs. Wood setting forth the facts which they had gleaned concerning the author- HAZEL-ATLAS CO. v. HARTFORD CO. 265 238 Roberts, J., dissenting. ship of the Clarke article. These affidavits were intended for use in the Third Circuit Court of Appeals case for they were captioned in that case. Being made by reputable counsel who are accredited by both parties to this proceeding, they were sufficient basis for a petition for rehearing while the case was still in the bosom of the Circuit Court of Appeals. It is idle to suggest that counsel would not have been justified in applying to the court on the strength of them. Had counsel filed a petition and attached to it the affidavits of the Messrs. Wood, without more, he would have done his duty to the court in timely calling its attention to the fraud which had been perpetrated. But more, the court would undoubtedly have reopened the case, granted rehearing, and remanded the case to the District Court with permission to Hazel to summon and examine witnesses. It is to ignore realities to suggest, as the opinion does, that counsel for Hazel was helpless at that time and in the then existing situation. But counsel did not rest there. He commissioned an investigator who interviewed a labor leader named Maloney in Philadelphia. This man refused to talk but the investigator’s report would make it clear to anyone of average sense that he knew about the origin of the article, and any lawyer of experience would not have hesitated to summon him as a witness and put him under examination. Moreover, the investigator interviewed Clarke and his report of the evasive manner and answers of Clarke convince me, and I believe would convince any lawyer of normal perception, that the Woods’ affidavits were true and that Clarke would have so admitted if called to the witness stand. Most extraordinary is the omission of Hazel’s counsel, although then in negotiation with Hartford for a settlement, to make any inquiry concerning Hatch or to interview Hatch, or to have him interviewed 266 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. when counsel had been assured that Hatch had no inclination to prevaricate concerning his part in the preparation of the article. The customary modes of eliciting truth in court may well establish that in the circumstances Hazel’s counsel deliberately elected to forego any disclosure concerning the Clarke article and to procure instead the favorable settlement he obtained from Hartford. In any event, we know that, on July 21,1932, Hartford and Hazel entered into an agreement, which is now before this court in the record in Nos. 7-11 of the present term, on appeal from the District Court for Northern Ohio. Under the agreement Hazel paid Hartford $1,000,000. Hartford granted Hazel a license on all machines and methods embodying patented inventions for the manufacture of glass containers at Hartford’s lowest royalty rates. Hartford agreed to pay Hazel one-third of its net royalty income to and including January 3, 1945, over and above $850,000 per annum. At the same time, Hazel entered into an agreement with the Owens-Illinois Glass Company, another party to the Hartford patent pool and the conspiracy to monopolize the glass manufacturing industry found by the District Court. In the autumn of 1933 counsel for Shawkee Company, defendant in another suit by Hartford, obtained documents indicating Hatch’s responsibility for the Clarke article, and wrote counsel for Hazel inquiring what he knew about the matter. Hazel’s counsel, evidently reluctant to disturb the existing status, replied that, while he suspected Hartford might have been responsible for the article, he did not at the time of trial, know of the papers which counsel for Shawkee had unearthed, and added that his recollection was then “too indefinite to be positive and I would have to go through the voluminous mass of papers relating to the various Hartford-Empire HAZEL-ATLAS CO. v. HARTFORD CO. 267 238 Roberts, J., dissenting. litigations, including correspondence, before I could be more definite.” The District Court for Northern Ohio has found that the 1932 agreement and coincident arrangements placed Hazel in a preferred position in the glass container industry and drove nearly everyone else in that field into taking licenses from Hartford, stifled competition, and gave Hazel, as a result of rebates paid to it, a great advantage over all competitors in the cost of its product. It is uncontested that, as a result of the agreement, Hazel has been repaid the $1,000,000 it paid Hartford and has received upwards of $800,000 additional. In 1941 the United States instituted an equity suit in Northern Ohio against Hartford, Hazel, Owens-Illinois, and other corporations and individuals to restrain violation of the antitrust statutes. That court found that the defendants conspired to violate the antitrust laws and entered an injunction on October 8, 1942. (46 F. Supp. 541.) Hazel and other defendants appealed to this court. The same counsel represented Hazel in that suit, and in the appeal to this court, as represented the company in the District Court and in the Third Circuit Court of Appeals in this case. In its brief in this court Hazel strenuously contended that the license agreement executed in 1932, and still in force, was not violative of the antitrust laws and should be sustained. Of course, in 1941 counsel for Hazel faced the possibility that the District Court in Ohio might find against Hazel, and that this court might affirm its decision. Considerations of prudence apparently dictated that Hazel should cast an anchor to windward. Accordingly, November 19, 1941, it presented its petition for leave to file a bill of review in the District Court for Western Pennsylvania and attached a copy of the proposed bill. In answer to questions at our bar as to the ultimate purpose of this proceed- 268 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. ing, counsel admitted that, if successful in it, Hazel proposed to obtain every resultant benefit it could. In the light of the circumstances recited, it becomes highly important closely to scrutinize Hazel’s allegations. It refers to the use by the Circuit Court of Appeals of the Clarke article in the opinion and then avers: “That although prior to the decision of this Court your petitioner suspected and believed that the article had been written by one of plaintiff’s employees, instead of by Clarke, and had been caused by plaintiff to be published in the National Glass Budget, petitioner did not know then or until this year material and pertinent facts which, if petitioner had then known and been able to present to this Court, should have resulted in a decision for petitioner. [Italics added.] “That such facts were disclosed to petitioner for the first time in suit of United States of America v. Hartford, et al., in the United States District Court for the Northern District of Ohio, and are specified in paragraphs 4, 5 and 6 of the annexed bill of review, which is made a part hereof. “That your petitioner could not have ascertained by the use of proper and reasonable diligence the newly discovered facts prior to the said suit, and that the newly discovered evidence is true and material and should cause a decree in this cause different from that heretofore made.” In the proposed bill of review these allegations are repeated and it is added that the new facts ascertained consist of the testimony of Hatch in the antitrust suit and five letters written by various parties connected with the conspiracy and a memorandum prepared by Hatch which were in evidence in that suit. The bill then adds: “The new matter specified in the preceding paragraphs 4, 5 and 6 is material, it only recently became known to plaintiff, which could not have previously obtained it with due diligence, and such new evidence if it had been previously known to this Court and to the Circuit Court HAZEL-ATLAS CO. v. HARTFORD CO. 269 238 Roberts, J., dissenting. of Appeals would have caused a decision different from that reached.” Neither the petition nor the bill is under oath but there is attached an affidavit of counsel for Hazel in which he states that in or before 1929 Hazel “had suspected, and I believed,” that the Clarke article had been written by Hatch and that Hartford had caused the article to be published, adding: “having been so told by the firm of Messrs. Wood and Wood, Cincinnati lawyers, who said they had so been told by Clarke and also by Hatch.” The affidavit also attaches the reports of the investigator above referred to and refers to the exhibits and testimony in the antitrust suit in Northern Ohio. In the light of the facts I have recited, it seems clear that if Hazel’s conduct be weighed merely in the aspect of negligent failure to investigate, the decision of this court in Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, may well justify a holding, on all available evidence, that, at least, Hazel was guilty of inexcusable negligence in not seeking the evidence to support an attack upon the decree. But it is highly possible that, upon a full trial, it will be found that Hazel held back what it knew and, if so, is not entitled now to attack the original decree. In Scotten v. Littlefield, 235 U. S. 407, in affirming the denial of a bill of review, this court said that if the claim now made was “not presented to the Court of Appeals when there on appeal it could not be held back and made the subject of a bill of review, as is now attempted to be done.” Repeatedly this court has held that one will not be permitted to litigate by bill of review a question which it had the opportunity to litigate in the main suit, whether the litigant purposely abstained from bringing forward the defense or negligently omitted to prosecute inquiries which would have made it available.19 19 Hendrickson v. Hinckley, supra, 446; Rubber Co. v. Goodyear, supra, 806; Crim v. Handley, supra, 660; Bronson v. Schulten, supra, 270 OCTOBER TERM, 1943. Roberts, J., dissenting. 322U.S. And certainly an issue of such importance affecting the validity of a judgment, should never be tried on affidavits.20 As I read the opinion of the court, it disregards the contents of many of the affidavits filed in the cause and holds that solely because of the fraud which was practiced on the Patent Office and in litigation on the patent, the owner of the patent is to be amerced and in effect fined for the benefit of the other party to the suit, although that other comes with unclean hands21 and stands adjudged a party to a conspiracy to benefit over a period of twelve years under the aegis of the very patent it now attacks for fraud. To disregard these considerations, to preclude inquiry concerning these matters, is recklessly to punish one wrongdoer for the benefit of another, although punishment has no place in this proceeding. Hazel well understood the course of decision in federal courts. It came into the Circuit Court of Appeals with a petition for leave to file a bill of review, a procedure required by long-settled principles. Inasmuch as the judgment it attacked had been entered as a result of the action of the Circuit Court of Appeals, Hazel properly applied to that court for leave to file its bill in the District Court.22 The respondent did not object on procedural grounds to the Circuit Court of Appeals considering and acting on the petition. That court of its own motion denied the petition and permitted amendment to pray relief there. 417, 418; Richards v. Mackall, supra, 188, 189; Boone County v. Burlington & M. R. R. Co., supra, 693; Pickford v. Talbott, supra, 658. 20 Jackson v. Irving Trust Co., supra, 499; Sorenson v. Sutherland, 109 F. 2d 714,719. 21 Creath’s Adm’r v. Sims, supra, 204. 22 Southard v. Russell, supra, 570, 571; Purcell v. Miner, supra, 519; Rubber Co. v. Goodyear, supra; National Brake & Electric Co. v. Christensen, supra, 431; Simmons Co. v. Grier Bros. Co., supra, 91. SHAWKEE MEG. CO. v. HARTFORD CO. 271 238 Syllabus. On the question what amounts to a sufficient showing to move an appellate court to grant leave to file a bill of review in the trial court, the authorities are not uniform. Where the lack of merit is obvious, appellate courts have refused leave,23 but where the facts are complicated it is often the better course to grant leave and to allow available defenses to be made in answer to the bill.24 In the present instance, I think it would have been proper for the court to permit the filing of the bill in the District Court where the rights of the parties to summon, to examine, and to cross-examine witnesses, and to have a deliberate and orderly trial of the issues according to the established standards would be preserved. I should reverse the order of the Circuit Court of Appeals with directions to permit the filing of the bill in the District Court. Mr. Justice Reed and Mr. Justice Frankfurter join in this opinion. The Chief Justice agrees with the result suggested in this dissent. SHAWKEE MANUFACTURING CO. et al. v. HARTFORD-EMPIRE CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 423. Argued February 9, 10, 1944.—Decided May 15, 1944. Decided upon the authority of Hazel-Atlas Glass Co. v. Hartford-Empire Co., ante, p. 238. 137 F. 2d 764, reversed. 23 Purcell v. Miner, supra; Rubber Co. v. Goodyear, supra. 24 Ocean Insurance Co. v. Fields, 2 Story 59; In re Gamewell Fire-Alarm Tel. Co., 73 F. 908; Raff old Process Corp. v. Castanea Paper Co., 105 F. 2d 126. 272 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. Certiorari, 320 U. S. 732, to review an order of the Circuit Court of Appeals denying relief in a bill of review proceeding commenced in that court. Mr. William B. Jaspert for petitioners. Mr. Francis W. Cole, with whom Messrs. Walter J. Blenko, Edgar J. Goodrich, and James M. Carlisle were on the brief, for respondent. Solicitor General Fahy, Assistant Attorney General Shea, and Messrs. Robert L. Stern and Melvin Richter filed a brief on behalf of the United States, as amicus curiae, urging reversal. Mr. Justice Black delivered the opinion of the Court. Here as in Hazel-Atlas Glass Co. v. Hartford-Empire Co., ante, p. 238, the Circuit Court of Appeals for the Third Circuit has declined to set aside judgments entered at a prior term. 137 F. 2d 764. Both this case and the Hazel-Atlas case involve the validity of judgments obtained by Hartford-Empire adjudicating infringement of the “gob feeding” patent No. 1,655,391 owned by Hartford. In the Hazel-Atlas case, supra, we have held Hartford’s proven frauds in connection with obtaining and enforcing that patent were of such nature that the decree of infringement against Hazel-Atlas should be set aside, and have directed that appropriate orders be entered to accomplish that purpose. Nevertheless, it is argued that the decrees rendered against Shawkee and others should be allowed to stand because of certain differences between their situation and that of Hazel-Atlas. These are the differentiating facts: Hartford’s infringement suit against Shawkee and the other petitioners was not begun until 1933 after the decision of the Third Circuit Court of Appeals the previous year holding Hartford’s “gob feeding” patent valid and SHAWKEE MFG. CO. v. HARTFORD CO. 273 271 Opinion of the Court. infringed by Hazel-Atlas. The District Court, having been reversed by that previous decision, held Shawkee and the others guilty of infringement. On appeal to the Third Circuit Court of Appeals, that court did not again quote from the spurious Clarke article but, like the District Court, simply held in favor of Hartford on the authority of the 1932 decision. 68 F. 2d 726. While the appeal was pending final disposition in the Circuit Court, Shawkee’s counsel communicated with Judge Buffington charging that the Clarke article was spurious; but at that time Shawkee had no direct proof of its charge. That proof, as pointed out in our Hazel-Atlas opinion, supra, was available only after the United States offered its evidence in the anti-trust suit in 1941. None of these facts, we think, should deprive Shawkee and the others of relief against Hartford’s fraudulent conduct. To obtain its judgment against them, Hartford successfully used the judgment against Hazel-Atlas without disclosing its previous misconduct. Keystone Driller Co. v. Excavator Co., 290 U. S. 240, 246-247. Hartford can derive no aid from the fact that Shawkee reported to the Circuit Court its belief as to the deceptive authorship of the Clarke article. With that charge on the record, honest dealing with the Court required that Hartford should make a full disclosure of its fraudulent conspiracy. Its failure to do so under these circumstances aggravated the previous deception it had practiced on the Patent Office and the courts. The prayer for relief of Shawkee and the others was that the court adjudge that Hartford did not come into court with clean hands, and that they be fully freed from further obligations under the j udgments against them. This relief should be granted. They further prayed that a master be appointed by the Circuit Court of Appeals to render an accounting of costs incurred in these and former proceedings, moneys paid by them to Hartford pursuant to the 274 OCTOBER TERM, 1943. Dissent. 322 TJ. S. challenged judgments, and damages sustained by them because of Hartford’s unlawful use of its patent. Whether this type of relief will be granted must depend upon further proceedings in the District Court which entered the judgment of infringement. The judgment of the Circuit Court of Appeals is reversed. The cause is remanded to it with directions to set aside its 1934 judgment, recall the mandate, and dismiss the appeal; and issue mandate to the District Court with directions to set aside its judgment finding Hartford’s patent valid and infringed, deny Hartford all relief against infringement of this patent, and permit Shawkee and the others to bring such further proceedings as may be appropriate in accordance with their prayer for relief. Reversed. Mr. Justice Roberts: For the reasons given in my dissent in Hazel-Atlas Glass Co. v. Hartford-Empire Co., ante, p. 251,1 think that the decree should be reversed and the cause remanded, with directions to the court below to grant the petitioners leave to file a bill of review in the District Court. Mr. Justice Reed and Mr. Justice Frankfurter join in this opinion. The Chief Justice agrees with the result suggested in this dissent. DOUGLAS v. COMMISSIONER. 275 Counsel for Parties. DOUGLAS v. COMMISSIONER OF INTERNAL REVENUE. NOS. 130 AND 131. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.* Argued March 7, 1944.—Decided May 15, 1944. 1. Article 23 (m)-10 (c) of Treasury Regulations 94, which, in the case of a lease of an iron ore mine terminated in 1937 without any ore having been extracted during the existence of the lease, requires that depletion deductions taken in prior years on receipt of advance royalties be restored to the lessor’s capital account and that a corresponding amount be returned as income for the year in which the lease was terminated, held valid, as authorized by and consistent with § 23 (m) of the Revenue Act of 1936, and not inconsistent with §§ 113 (b) (1) (B) and 114 (b) (1) or §§ 41 and 42 of the Act. P. 280. 2. A judgment of the Circuit Court of Appeals reversing a decision of the Board of Tax Appeals which refused to treat as income of the taxpayer for the year in which the lease was terminated the amount of a depletion deduction which, in the year taken and allowed, resulted in no tax benefit, affirmed here by an equally divided court. P. 287. 134 F. 2d 762, affirmed. Certiorari, 320 U. S. 734, to review a judgment which affirmed in part and reversed in part a decision of the Board of Tax Appeals upon review of determinations of deficiencies in income tax. Mr. Kimball B. DeVoy, with whom Messrs. James E. O’Brien and Thomas P. Helmey were on the brief, for petitioners. *Together with No. 132, Estate of Robinson et al. v. Commissioner of Internal Revenue, and No. 133, Dalrymple v. Commissioner of Internal Revenue, also on writs of certiorari to the Circuit Court of Appeals for the Eighth Circuit. 276 OCTOBER TERM, 1943. Opinion of the Court. 322 IT. S. Miss Helen R. Carloss, with whom Solicitor General Fahy, Assistant Attorney General Samuel 0. Clark, Jr., and Messrs. Sewall Key and Valentine Brookes were on the brief, for respondent. Messrs. F. G. Davidson, Jr., Theodore L. Harrison, J. Donald Rawlings, and W. A. Sutherland filed a brief on behalf of the Virginian Hotel and other taxpayers, as amici curiae. Mr. Justice Reed delivered the opinion of the Court. The Commissioner of Internal Revenue assessed income tax deficiencies against the petitioners for the year 1937, because of their failure to include in income for that year sums required to be reported by the terms of Article 23 (m)-10 (c) of Treasury Regulations 94, issued pursuant to § 23 (m), Revenue Act of 1936. The facts were not in dispute. Bessie P. Douglas, the petitioner in Nos. 130 and 131, was in 1929 co-owner with Adeline R. Morse, Charles H. Robinson, and Irene B. Robinson Cirkler of an iron ore mine in St. Louis County, Minnesota, known as the Pettit mine. The petitioners in No. 132 are the executors of the estate of Charles H. Robinson, and the petitioner in No. 133 is the transferee of the assets of the estate of Irene B. Robinson Cirkler, deceased.1 In 1929 its co-owners leased this mine to the Republic Steel Corporation. The lease, as amended in 1933, ran for a term of thirty years, but the lessee was given the power to cancel it at the end of eight years. The lessee undertook to pay a royalty of 40 cents a ton for the ore removed and guaranteed minimum royalties of $20,000 a year for the first five years and $40,000 a year thereafter, subject after 1 Bessie P. Douglas owned a one-half interest; each of the other co-tenants owned a one-sixth interest. The executor of the estate of Adeline R. Morse did not appeal from an adverse decision of the Board of Tax Appeals. DOUGLAS v. COMMISSIONER. 277 275 Opinion of the Court. five years to the payment of $60,000 a year as a minimum during the time it failed to remove certain water from the mine. In case the guarantee required the lessee to pay in any one year for more ore than it actually removed, it was entitled to have the excess payment applied against removals in later years. The lessee paid the minimum royalties each year, but it removed no ore at all, and as of July 1, 1937, at the end of the eight-year period, it surrendered the lease. Each lessor took a proper depletion deduction in the respective years the royalties were paid, 1929 to 1936, inclusive. In the year 1933, Bessie P. Douglas claimed a depletion deduction of $4,958.05, but since she had sustained a net loss of $13,947.51, this deduction did not affect her tax liability. The Commissioner required all of the deductions to be taxed as income in 1937. The Board of Tax Appeals affirmed his conclusion, except as to the 1933 deductions by Bessie P. Douglas, which was reversed. 46 B. T. A. 943. Upon appeals by the taxpayers and, in No. 131, by the Commissioner, the Circuit Court of Appeals upheld the original assessments. 134 F. 2d 762. We granted petitions for writs of certiorari to settle a question reserved by our decision in Herring v. Commissioner, 293 U. S. 322, 328, as to cost depletion, and to consider an issue similar to that involved in Dobson v. Commissioner, 320 U. S. 489. The Revenue Act of 1913, § II (G) (b), granted a deduction for depletion based solely on actual production and “not to exceed 5 per centum of the gross value at the mine of the output for the year.” Under this Act, advance royalties were taxed without deduction for depletion. In 1916 Congress removed the 5% ceiling, but the deduction was still limited to the year of actual extraction. Revenue Act of 1916, § 5 (a) Eighth (b). The relevant parts of the depletion section reached substantially their present form in the Revenue Act of 1918, which, like the 1916 Act, authorized “a reasonable allow 278 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. ance for depletion . . . under rules and regulations to be prescribed” with the approval of the Secretary of the Treasury; but the 1918 Act no longer, limited the allowance to the product actually mined and sold during the year. The section now reads as follows: “Sec. 23. Deductions from Gross Income. “In computing net income there shall be allowed as deductions: • • • • • “(m) Depletion.—In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. In any case in which it is ascertained as a result of operations or of development work that the recoverable units are greater or less than the prior estimate thereof, then such prior estimate (but not the basis for depletion) shall be revised and the allowance under this subsection for subsequent taxable years shall be based upon such revised estimate. . . .” Revenue Act of 1936, c. 690, 49 Stat. 1648,1658-60. From the beginning of income taxation, as now, the regulations covered the conventional situations of payments for ores as mined and made provision for depletion measured by the volume actually extracted. The 1918 Act permitted the new regulations, Regulations 45, Article 215 (c), to provide for the first time a deduction in the year of receipt of advance royalties of a depletion allowance calculated on the unit value of the mineral in place. This met a frequently recurring variation from the normal lease. As a corollary the regulations required that in case a lease was surrendered before the lessee had extracted all the ore for which advance royalties had been DOUGLAS v. COMMISSIONER. 279 275 Opinion of the Court. paid, a sum equal to the depletion allowance previously granted on such ore should be taxed as income in the year of the surrender of the lease. The bonus or advanced royalty regulations have remained practically unchanged since 1919.2 The subsections applicable to prepaid royalties are as follows: “Art. 23 (m)-10. Depletion—Adjustments of accounts based on bonus or advanced royalty • • ■ • • • “(b) If the owner has leased a mineral property for a term of years with a requirement in the lease that the lessee shall extract and pay for, annually, a specified number of tons, or other agreed units of measurement, of such mineral, or shall pay, annually, a specified sum of money which shall be applied in payment of the purchase price or royalty per unit of such mineral whenever the same shall thereafter be extracted and removed from the leased premises, an amount equal to that part of the basis for depletion allocable to the number of units so paid for in advance of extraction will constitute an allowable deduction from the gross income of the year in which such payment or payments shall be made; but no deduction for depletion by the lessor shall be claimed or allowed in any subsequent year on account of the extraction or removal in such year of any mineral so paid for in advance and for which deduction has once been made. “(c) If for any reason any such mineral lease expires or terminates or is abandoned before the mineral which 2 In addition to Regulations 45, Article 215, the provision appeared thereafter in Regulations 62, Article 215, issued under §214 (a) of the Revenue Act of 1921; Regulations 65 and 69, Article 216, issued under §214 (a) of the Revenue Acts of 1924 and 1926; Regulations 74, Article 236, issued under § 23 (1) of the Revenue Act of 1928; Regulations 77, Article 230, issued under § 23 (1) of the Revenue Act of 1932; Regulations 86 and 94, Article 23 (m)-10, issued under § 23 (m) of the Revenue Acts of 1934 and 1936. They have remained unchanged under the Code, Regulations 111, § 29.23 (m)-10. 280 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. has been paid for in advance has been extracted and removed, the lessor shall adjust his capital account by restoring thereto the depletion deductions made in prior years on account of royalties on mineral paid for but not removed, and a corresponding amount must be returned as income for the year in which the lease expires, terminates, or is abandoned.” Treasury Regulations 94, promulgated under the Revenue Act of 1936. The deficiency here assessed falls squarely under the subsections. Their validity is therefore the decisive issue. In our opinion the regulations are valid. Since the revenue acts have not forbidden recognition of bonus or advanced royalties as a basis for the calculation of appropriate depletion, the provision of the regulations for a depletion offset against their receipt is within the broad rule-making delegation of § 23 (m). Royalty or bonus payments in advance of actual extraction of minerals are, like sales after severance or royalty payments on actual production, gross income and not a recovery of capital. Stratton’s Independence N. Howbert, 231 U. S. 399, 418; Stanton v. Baltic Mining Co., 240 U. S. 103, 114; Burnet v. Harmel, 287 U. S. 103; Herring v. Commissioner, 293 U. S. 322, 324. Cf. Anderson v. Helvering, 310 U. S. 404, 407-8. Any deduction from this income for depletion, of course, may be allowed upon such terms as Congress may deem advisable. Helvering v. Bankline Oil Co., 303 U. S. 362, 366; United States v. Ludey, 274 U. S. 295, 302. Depletion based on cost is like depreciation. Congress has allowed a recovery of the capital invested in a mine but, except in discovery or percentage depletion in special instances which are not here involved, see § 114, allowed nothing beyond that investment. § § 23 (m) and (n), 113, 114; 49 Stat. 1648, 1660, 1682-1687. Deduction is allowed for the exhaustion of the property—the ore mass. Lynch v. Alworth-Stephens DOUGLAS v. COMMISSIONER. 281 275 Opinion of the Court. Co., 267 U. S. 364, 370. It may be in step with extraction, where extraction and sale synchronize with payments for the ore or the deduction may be allowed against advance payments of royalties or bonus. The theory of depletion is the same in both cases. In either situation, the depletion deduction is allowed in the ore extracted or expected to be extracted. Regulations 45, Art. 23 (m)-2 and -10 (a) and (b). Thus the mine owner under Article 23 (m)-10 is compensated for the use of his mineral reserves jn the production of gross income. By the 1919 Regulations, the plan of restoring the sum of depletion deductions to capital and carrying a corresponding amount to income in the year of the termination of a lease without production was adopted instead of a permanent reduction of basis or a restoration of the depletion deductions to income for the years in which they were deducted. The Act—§ 23 (m)—did not specifically authorize this handling of unrealized depletion. By the terms of the section a reasonable allowance for depletion was required, “according to the peculiar conditions in each case.” As Congress obviously could not foresee the multifarious circumstances which would involve questions of depletion, it delegated to the Commissioner the duty of making the regulations. Article 23 (m)-10 (c) was developed to take care of the type of situation where because of a lease’s cancellation without extraction, the reason for allowing depletion disappeared. As no diminution occurred in the ore mass, no depletion was appropriate. Congress has enacted numerous revenue acts since that time and has seen no occasion to change the statutory delegation of authority to the Commissioner of Internal Revenue which is the basis of this long-standing regulation. This evidences that subsections 23 (m)-10 (b) and (c) are within the rule-making authority which was intended to be granted the Commis- 282 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. sioner. National Lead Co. v. United States, 252 U. S. 140, 145-46; Murphy Oil Co. v. Burnet, 287 U. S. 299, 307. As no depletion of the ore mass occurred or can occur under the lease which produced the gross income, the issue is not whether the regulation gives a reasonable allowance for depletion when prepaid royalties are involved. That issue has been decided in favor of the validity of such allowances in other cases. Herring N. Commissioner, 293 U. S. 322; Murphy Oil Co. v. Burnet, 287 U. S. 299. The problem here is the validity of Article 23 (m)-10 (c) when the depletion for which a deduction has been previously allowed fails in the manner anticipated as a possibility at the time of deduction. A. Petitioners attack the validity of the regulation on the ground that the restoration of the accumulated deductions to capital, i. e., the depletion basis, with a corresponding increase of the taxpayers’ annual income for the year of the restoration, is contrary to the requirements of certain sections of the 1936 Act. §§23 (m), 114 (b) (1) and 113 (b) (1) (B). It is unnecessary to appraise the effect in other years of the antecedents of these sections. Petitioners urge that the depletion deductions which were the untaxed portion of the royalties paid in prior years were capital recoveries in those prior years which resulted in a statutory, permanent reduction of basis which cannot be restored to basis and hence cannot be treated as income for 1937. Petitioners point to § 23 (m), supra, p. 278, as providing for the deduction for depletion on payment of advance royalties. It is contended that §§114 (b) (1) and 113 (b) (1) (B)3 supplement the statutory direction 8 “Sec. 114. Basis for Depreciation and Depletion. (b) Basis for depletion.— (1) General Rule.—The basis upon which depletion is to be allowed in respect of any property shall be the adjusted basis provided DOUGLAS v. COMMISSIONER. 283 275 Opinion of the Court. of 23 (m) for depletion by requiring the permanent lowering of the basis to reflect the depletion which § 23 offers.4 This, of course, is a contention that depletion for advance royalties is, as a matter of statute, not necessarily and inevitably tied to extraction, actual or prospective. Summarily expressed, it is that the depletion was permanent, not conditional, and not subject to recovery when it became clear that no minerals were to be extracted. To accept these arguments as a sound interpretation of the meaning of these provisions, however, would put into § 23 (m) of the Act of 1936 a requirement for depletion against advance royalties which the words of § 114 do not import. We think the Government is correct in its argument that the adjustment of basis authorized by § 113 (b) (1) (A) includes a restoration of depletion to capital account (basis) under the words “or other items, in section 113 (b) for the purpose of determining the gain upon the sale or other disposition of such property, except as provided in paragraphs (2), (3), and (4) of this subsection. . . .” “Sec. 113. Adjusted Basis for Determining Gain or Loss. (b) Adjusted basis.—The adjusted basis for determining the gain or loss from the sale or other disposition of property, whenever acquired, shall be the basis determined under subsection (a), adjusted as hereinafter provided. (1) General Rule.—Proper adjustment in respect of the property shall in all cases be made— (A) for expenditures, receipts, losses, or other items, properly chargeable to capital account, including taxes and other carrying charges on unimproved and unproductive real property, but no such adjustment shall be made for taxes or other carrying charges for which deductions have been taken by the taxpayer in determining net income for the taxable year or prior taxable years; (B) in respect of any period since February 28, 1913, for exhaustion, wear and tear, obsolescence, amortization, and depletion, to the extent allowed (but not less than the amount allowable) under this Act or prior income tax laws. . . .” 4 The second sentence of § 23 (m), relating to a change of estimate as to recoverable mineral, is said to indicate a legislative intention that the basis, once reduced, is not to be restored. 284 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. properly chargeable to capital account,” when the termination of the lease without extraction of ore forces the reconsideration of depletion. Consequently, we hold that §§ 23 (m), 114 (b) (1) and 113 (b) (1) (B) do not affect the power of the Commissioner under § 23 (m) to restore to the basis the amounts previously deducted in accordance with Article 23 (m)-10 (b) of Regulations 94. The taxpayer who receives advance royalties receives a gross income but has no statutory right to depletion apart from actual or prospective extraction. To grant irrecoverable depletion in circumstances where cancellation of the lease occurs prior to extraction would sever depletion from extraction and, if no later extraction followed, deflect income into the capital account without any corresponding capital loss. B. Petitioners vigorously press another argument against the validity of the regulations. This is that the separate annual instalments of untaxed royalties (prior depletion deductions), since these untaxed portions of the royalties were income for the prior years, may not be accumulated and taxed for 1937 because such treatment is fictional, distorts the 1937 income to petitioners’ detriment, is unreasonable and violates §§ 23 (m), 41 and 42 of the Act. The latter two sections require the computation of income, net and gross, upon the basis of an annual accounting period and the inclusion of gross income in the year received by the taxpayer. The applicability of all three sections depends upon whether a sum equal to depletion deductions allowed in prior years may be treated as income for 1937. Petitioners deny that this may be done and rely for the soundness of their position upon the familiar principle of annual computation of income, “as the. net result of all transactions within the year.” Burnet v. Sanford & Brooks Co., 282 U. S. 359, 365. DOUGLAS v. COMMISSIONER. 285 275 Opinion of the Court. It is true that the advanced royalties were income to the taxpayers for the respective years in which they were received. A certain portion of each of such payments was, however, properly deducted from this income for depletion under Article 23 (m)-10 (b). In accordance with our position and conclusion, as set out in the paragraphs under the preceding section A of this opinion, such deductions were not finally charged to basis but were tentatively so charged, subject to the contingency that there should occur under the lease an actual extraction of mineral units which would be allocable to the deduction. Under subsection (c) there was the further requirement that if the contingency failed, the suspended sums should fall into income in the year that the failure was manifested by the termination of the lease. It seems entirely proper for the Commissioner not only to provide for a reasonable allowance for depletion when advance royalties are paid but also to provide for the situation when the expected depletion did not take place. Annual deductions were made by the taxpayer from his income. These were allowed to compensate for the exhaustion of capital. An event occurred in 1937, the termination of the lease, which restored the deductions for depletion to income. This requirement is, we think, within the delegation of authority to the Commissioner. The power delegated to him to make regulations for depletion must necessarily include power to provide for situations where the anticipated depletion of the mineral mass does not occur. The manner in which the Commissioner exercised that power by attributing the sums restored to basis to the 1937 income, rather than to the years 1929 to 1936, is not invalid as an arbitrary penalty or an improper attribution under the theory of an annual period for determination of income taxes. On the termination of the lease, the 286 OCTOBER TERM, 1943. Opinion of the Court. 322U.S. lessee surrendered the right to extract without royalty the ore for which royalty had been prepaid. This surrender returned to the taxpayer in 1937 a legal right. Thereupon the taxpayer was in position to again sell the right to extract this ore or to mine that selfsame ore itself. The record does not show any valuation of this right which the lessee surrendered. The lessee paid for the right the amount attributed to the petitioners’ income. Irrespective of the actual value of the right in 1937, it does not seem unfair for a general regulation to put this value on the right restored to the taxpayer in the year of its restoration. The decisions uphold the regulation. Sneed v. Commissioner, 119 F. 2d 767, 770-771; 121 F. 2d 725; Lamont v. Commissioner, 120 F. 2d 996; Grace M. Barnett, 39 B. T. A. 864.5 5 Petitioner calls attention to Knapp v. Commissioner, 7 B. T. A. 790, and Cooper v. Commissioner, 7 B. T. A. 798, acquiesced in respectively by the Commission, Acq. VII-1 Cum. Bui. 17 and 7, June 30, 1928; Acquiescence withdrawn December 31, 1932, XI-2 Cum. Bui. 12, 14. Petitioners’ point is that whatever may be the validity of the regulations, taxpayers should not have their depletion deductions, for the years when the Commissioner’s acquiescence was in effect, carried to income in a later year. We agree that these decisions held invalid a regulation like Art. 23 (m)-10 (c) which includes in income for a taxable year deductions allowed in prior years. The effect of the Commissioner’s acquiescence is uncertain. Cf. C. B. XIII-2-IV. During the period of acquiescence, the regulation continued in existence and was republished in the edition of December 1, 1931, approved February 15, 1929, of Regulations 74 under the Revenue Act of 1928, Art. 236 (c). This was prior to the decision in Murphy Oil Co. v. Burnet, 287 U. S. 299, 304, decided December 5, 1932, thought by petitioner to have brought about the withdrawal of the acquiescence. Acquiescence by the Commissioner in a Tax Court ruling followed by action which is inconsistent with the withdrawal of an affected regulation is not a sufficiently definite administrative practice to justify a judicial ruling against the regulation on the strength of the acquiescence. Estate of Sanford v. Commissioner, 308 U. S. 39,49; Higgins v. Smith, 308 U. S. 473,478. DOUGLAS v. COMMISSIONER. 287 275 Rutledge, J., dissenting. The restoration of the right to petitioners in 1937 is analogous to the surrender of a leasehold, improved by the lessee, to the lessor. In such a case, the value of the improvements is income to the lessor at the time of the surrender. Helvering v. Bruun, 309 U. S. 461. Cf. Maryland Casualty Co, v. United States, 251 U. S. 342. C. The last contention of petitioners for our consideration is that where depletion deductions were taken in years when no equivalent tax benefit resulted, the amount of the deduction which resulted in no tax benefit should not be attributed to the year of the surrender of the lease. This question arises only in No. 131. The Board of Tax Appeals refused to allow the addition to the 1937 income of the taxpayer of sums which represented the amount of deductions for depletion beyond amounts of deductions which offset income. The Circuit Court of Appeals reversed. Upon this last point, the decision below in No. 131 is affirmed by an equally divided court. The members of this Court who join in the dissent do not reach this question but their position on other issues results in their voting for a reversal of the entire judgment of the Circuit Court of Appeals. Two other members of this Court are of the view that in No. 131 the judgment of the Circuit Court of Appeals should be reversed and that the decision of the Board of Tax Appeals should be affirmed. In Nos. 130, 132 and 133, the foregoing leads us to the conclusion that the regulations are valid and the judgments of the Circuit Court of Appeals are Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Rutledge, dissenting: In my opinion Article 23 (m)-10 (c) is not a reasonable exercise of the rule-making authority conferred by § 23. 288 OCTOBER TERM, 1943. Rutledge, J., dissenting. 322U.S. By that section Congress provided: “In computing net income there shall be allowed as deductions ... a rea^ sonable allowance for depletion . . . according to the peculiar conditions in each case . . . under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary.” Revenue Act of 1936,49 Stat. 1648. (Emphasis added.) Since adoption of the Revenue Act of 1918 this authority has been executed in part by Regulations 45, Article 215 (c) and its successors, which permit the deduction in years when advance royalties are received. It is not urged, nor could it well be, that the deduction in such circumstances is not one comprehended by the statute. In making that mandate Congress clearly did not intend the privilege to be granted merely on terms which would defeat its operation. Yet this, in my judgment, is exactly the effect of Article 23 (m)-10 (c). In requiring that “a corresponding amount must be returned as income for the year in which the lease expires, terminates, or is abandoned,” the regulation piles up as “income” for a single year the sum of all the deductions taken in the previous ones. Wholly apart from whether in theory or in fact “income” can be said to be realized by thus piling up the deductions,1 this requirement imposes risks and burdens upon taking the deduction heavier than any advantage to be gained from it and therefore prohibitive. The consequences hardly could be illustrated better than by the case of Bessie P. Douglas. By taking the deduction during the eight years when she received advance royalties, 1929 to 1936 inclusive, she saved a total in taxes of about $7,000. Then her lease was canceled by the lessee. And in 1937, a year in which she received no cash return from the lease, her tax liability was increased by 1 Compare, e. g., 26 U. S. C. §§ 11-23, and see also 4 Mertens, Law of Federal Income Taxation (1942) § 24.64. DOUGLAS v. COMMISSIONER. 289 275 Rutledge, J., dissenting. about $26,500 for having taken the deduction in previous years. She was thus forced to pay approximately $19,500 more in taxes than if she had never taken it. The regulation’s destructive effect bears on all who receive advance royalties, not merely on those who actually must return accumulated prior deductions as “income” in a single year. The taxpayer must take the deduction, if at all, as his royalties accrue, not later as the ore is removed. The system of annual accounting is said to require this. Cf. Burnet v. Thompson Oil & Gas Co., 283 U. S. 301, 306; Burnet v. Sanford & Brooks Co., 282 U. S. 359. Yet it is said also to require that the deductions be telescoped into “income” for a single year in which the returns they represent are not received, and with an effect in tax burden, by the mere fact of the aggregation, far beyond any which would be imposed if the deductions never had been authorized or taken. Hence all who receive advance royalties are faced with the choice of taking the deductions and thus risking this pyramiding of “income,” against the chance the lessee will some day deplete the property, or of foregoing the deductions altogether. It is true the taxpayer may receive an economic benefit in the release of his ore from the right of another to remove it. And by the regulation’s requirement that he restore to his capital account an amount equal to the sum of the accumulated deductions, he also receives a possible future tax benefit in larger deductions allowable if and when he sells or leases the minerals again. But these benefits are wholly uncertain. In fact, release of his ore from the right of removal gives him not income then realized in cash to the amount of accumulated deductions, but unsold ore in the ground which the lessee has found it unprofitable to remove although he has paid for it. The only contingency on which the taxpayer really benefits by the deductions is in the event the lessee ultimately does deplete the property. But it is difficult to 290 OCTOBER TERM, 1943. Rutledge, J., dissenting. 322U.S. believe Congress deliberately extended the opportunity for deduction to lessors whose property is not in fact depleted by the lessee’s operations 2 only to authorize the Commissioner to nullify and penalize that opportunity. This the regulation does, in effect, when it imposes on one who takes the deduction the risk, on a contingency beyond his control, of having to pay in taxes several times the amount of the deductions on the happening of the contingency. Nor is the regulation reasonably adapted to recoupment of the losses in revenue, wholly proper when incurred but which later events require to be made up. On the contrary, it perverts recoupment by pyramiding income spread in receipt over many years into “income” received in a single, entirely different one. And in a day when the tax rate mounts more often than yearly the skyrocketing effect of the process operates with wholly incalculable effect on the taxpayer, who it will be noted has no control over the contingency which brings it into play. A regulation which would require the taxpayer to pay the taxes deducted for the prior years together with the usual interest and penalties would be harsh enough in discouragement of taking the deduction. In effect it would penalize one who rightfully takes an allowance as much as one who wrongfully does so. But, even so, this would bear some semblance of reasonable relation to recouping the losses sustained by the revenue and to allocating income to the year in which it is received. However, to amalgamate the deductions into “income” for a single year, in which none of it is actually received, is an entirely different thing. It is to make of the so-called scheme of deductions a snare for the unwary who violate no law 2 Compare Rev. Act of 1913 § II (G) (b); Rev. Act of 1916 § 5 (a) (Eighth) (b) with Rev. Act of 1918 § 234 (a) (9); Rev. Act of 1936 §23(m). DOUGLAS v. COMMISSIONER. 291 275 Rutledge, J., dissenting. but comply with it fully; and at the same time to strain the theory of annual accounting beyond any reasonable application. The regulation, therefore, both effectively nullifies a privilege which Congress provided the taxpayer shall have and reaches farther than any reasonable recouping provision should go. It is no answer to say deduction is a privilege which Congress need not have extended, or having extended can qualify out of existence. The question is whether Congress did, or authorized the Commissioner to do, the latter. Its language, its prior treatment of the problem3 and its treatment of a related problem in the identical section of the Revenue Act all point to the conclusion it did neither. Other questions are raised on the record. It is unnecessary to consider them. In my opinion Congress would not have nullified its grant of the privilege to take “a reasonable allowance for depletion” by enacting Article 23 (m)-10 (c) to make exercising it so hazardous, capricious, and unjust in consequence.4 That being true, I do not think authority was delegated to the Commissioner to adopt or to the Secretary to approve it. I would reverse the judgment. Mr. Justice Murphy joins in this opinion. 3 Cf. note 2 supra. 4 The uncertain career of Article 23 (m)-10 (c), adverted to in the Court’s opinion, offers no support for Congressional acquiescence in the Commissioner’s position before 1932 and only doubtfully suggests it after that date. In this case the nullifying effect of the limitation upon the privilege granted prevents removal of that doubt. 292 OCTOBER TERM, 1943. Conclusion and Judgment. 322U.S. NORTHWEST AIRLINES, INC. v. MINNESOTA. CERTIORARI TO THE SUPREME COURT OF MINNESOTA. No. 33. Argued October 19, 20, 1944.—Decided May 15, 1944. A corporation which was incorporated under the laws of Minnesota, and which had its principal place of business in that State, owned and operated in interstate commerce a fleet of airplanes; for all of the planes, a city within the State was the home port registered with the Civil Aeronautics Authority and the overhaul base; and none of the planes was continuously without the State during the whole tax year. Held that a general Minnesota personal property tax applied to all personal property within the State and without discrimination applied on the corporation’s entire fleet of airplanes did not violate the commerce clause, nor the due process clause of the Fourteenth Amendment, of the Federal Constitution. Pp. 293, 300. 213 Minn. 395, 7 N. W. 2d 691, affirmed. Certiorari, 319 U. S. 734, to review the affirmance of a judgment for the State in a suit against the company to recover delinquent personal property taxes. Mr. Michael J. Doherty, with whom Mr. W. E. Rumble was on the brief, for petitioner. Mr. Andrew R. Bratter and Mr. George B. Sjoselius, Assistant Attorney General of Minnesota, with whom Messrs. J. A. A. Burnquist, Attorney General, and James F. Lynch were on the brief, for respondent. Mr. Justice Frankfurter announced the conclusion and judgment of the Court. The question before us is whether the Commerce Clause or the Due Process Clause of the Fourteenth Amendment bars the State of Minnesota from enforcing the personal property tax it has laid on the entire fleet of airplanes owned by the petitioner and operated by it in interstate transportation. The answer involves the application of NORTHWEST AIRLINES v. MINNESOTA. 293 292 Conclusion and Judgment. settled legal principles to the precise circumstances of this case. To these, about which there is no dispute, we turn. Northwest Airlines is a Minnesota corporation and its principal place of business is St. Paul. It is a commercial airline carrying persons, property and mail on regular fixed routes, with due allowance for weather, predominantly within the territory comprising Illinois, Minnesota, North Dakota, Montana, Oregon, Wisconsin and Washington. For all the planes St. Paul is the home port registered with the Civil Aeronautics Authority, under whose certificate of convenience and necessity Northwest operates. At six of its scheduled cities, Northwest operates maintenance bases, but the work of rebuilding and overhauling the planes is done in St. Paul. Details as to stopovers, other runs, the location of flying crew bases and of the usual facilities for aircraft, have no bearing on our problem. The tax in controversy is for the year 1939. All of Northwest’s planes were in Minnesota from time to time during that year. All were, however, continuously engaged in flying from State to State, except when laid up for repairs and overhauling for unidentified periods. On May 1, 1939, the time fixed by Minnesota for assessing personal property subject to its tax (Minn. Stat. 1941, § 273.01), Northwest’s scheduled route mileage in Minnesota was 14% of its total scheduled route mileage, and the scheduled plane mileage was 16% of that scheduled. It based its personal property tax return for 1939 on the number of planes in Minnesota on May 1, 1939. Thereupon the appropriate taxing authority of Minnesota assessed a tax against Northwest on the basis of the entire fleet coming into Minnesota. For that additional assessment this suit was brought. The Supreme Court of Minnesota, with three judges dissenting, affirmed the judgment of a lower court in favor of the State. 213 Minn. 294 OCTOBER TERM, 1943. Conclusion and Judgment. 322U.S. 395, 7 N. W. 2d 691. A new phase of an old problem led us to bring the case here. 319 U. S. 734. The tax here assessed by Minnesota is a tax assessed upon “all personal property of persons residing therein, including the property of corporations . . .” Minn. Stat. 1941, § 272.01. It is not a charge laid for engaging in interstate commerce or upon airlines specifically; it is not aimed by indirection against interstate commerce or measured by such commerce. Nor is the tax assessed against planes which were “continuously without the State during the whole tax year,” N. Y. Central & H. R. R. Co. v. Miller, 202 U. S. 584, 594, and had thereby acquired “a permanent location elsewhere,” Southern Pacific Co. v. Kentucky, 222 U. S. 63, 68; and see Cream of Wheat Co. v. Grand Forks, 253 U. S. 325, 328-330. Minnesota is here taxing a corporation for all its property within the State during the tax year no part of which receives permanent protection from any other State. The benefits given to Northwest by Minnesota and for which Minnesota taxes—its corporate facilities and the governmental resources which Northwest enjoys in the conduct of its business in Minnesota—are concretely symbolized by the fact that Northwest’s principal place of business is in St. Paul and that St. Paul is the “home port” of all its planes. The relation between Northwest and Minnesota—a relation existing between no other State and Northwest—and the benefits which this relation affords are the constitutional foundation for the taxing power which Minnesota has asserted. See State Tax Comm’n v. Aldrich, 316 U. S. 174, 180. No other State can claim to tax as the State of the legal domicile as well as the home State of the fleet, as a business fact. No other State is the State which gave Northwest the power to be as well as the power to function as Northwest functions in Minnesota; no other State could impose a tax that derives from the significant legal relation of creator and creature NORTHWEST AIRLINES v. MINNESOTA. 295 292 Conclusion and Judgment. and the practical consequences of that relation in this case. On the basis of rights which Minnesota alone originated and Minnesota continues to safeguard, she alone can tax the personalty which is permanently attributable to Minnesota and to no other State. It is too late to suggest that this taxing power of a State is less because the tax may be reflected in the cost of transportation. See Delaware Railroad Tax, 18 Wall. 206, 232. Such being the case, it is clearly ruled by N. Y. Central & H. R. R. Co. v. Miller, supra. Here, as in that case, a corporation is taxed for all its property within the State during the tax year none of which was “continuously without the State during the whole tax year.” Therefore the doctrine of Union Transit Co. v. Kentucky, 199 U. S. 194, does not come into play. The fact that Northwest paid personal property taxes for the year 1939 upon “some proportion of its full value” of its airplane fleet in some other States does not abridge the power of taxation of Minnesota as the home State of the fleet in the circumstances of the present case. The taxability of any part of this fleet by any other State than Minnesota, in view of the taxability of the entire fleet by that State, is not now before us. It was not shown in the Miller case and it is not shown here that a defined part of the domiciliary corpus has acquired a permanent location, i. e., a taxing situs, elsewhere.1 That * xIn the Miller case, the New York Central Railroad introduced evidence that during the taxable years in question, a proportion of its cars, ranging from about 12% to 64%, was used outside of New York. This figure was arrived at by using the ratio between Central’s mileage outside of New York and its total mileage. The comptroller nevertheless ruled that all of Central’s cars were taxable in New York, the State of domicile. On review of this ruling as applied in the first tax year involved, the New York Court of Appeals remitted the proceedings to the comptroller to determine whether any of the rolling stock was used exclusively out of the State. 173 N. Y. 255, 65 N. E. 1102. No such evidence was introduced for any tax year, although there was evidence to show “that a certain proportion of cars, although 296 OCTOBER TERM, 1943. Conclusion and Judgment. 322U.S. was the decisive feature of the Miller case, and it was deemed decisive as late as 1933 in Johnson Oil Co. v. Oklahoma, 290 U. S. 158, which was strongly pressed upon us by Northwest. In that case it was not the home State, Illinois, but a foreign State, Oklahoma, which was seeking to tax a whole fleet of tank cars used by the oil company. That case fell outside of the decision of the Miller case and ours falls precisely within it. “Appellant had its domicile in Illinois,” as Mr. Chief Justice Hughes pointed out, “and that State had jurisdiction to tax appellant’s personal property which had not acquired an actual situs elsewhere.” 290 U. S. at 161.* 2 This constitutional basis for what Minnesota did reflects practicalities in the relations between the States and air transportation. “It has been customary to tax operating airplanes at their overhaul not the same cars, was continuously without the State during the whole tax year.” 202 U. S. 584, 594. The comptroller made no reduction in the tax, and this action was affirmed by the Appellate Division (89 App. Div. 127, 84 N. Y. S. 1088), the Court of Appeals (177 N. Y. 584,69 N. E. 1129) and on review here. 2 In the Johnson Oil Co. case, supra, this Court reaffirmed not less than three times that the State of domicile has jurisdiction to tax the personal property of its corporation unless such property has acquired an “actual situs” in another State. And by “actual situs” it meant, as its references to Union Transit Co. v. Kentucky, supra, and the Miller case indicate, what those cases required for “actual situs” before the constitutional power of the domiciliary State to tax could be curtailed, namely continuous presence in another State which thereby supplants the home State and acquires the taxing power over personalty that has become a permanent part of the foreign State. Surely the situs which personal property may acquire for tax purposes in a State other than that of the owner’s domicile cannot be made to depend on some undefined concept of “permanence” short of a tax year, leaving the adequate size of the fraction of the tax year for judicial determination in each year. Such a doctrine would play havoc with the tax laws of the forty-eight States. It would multiply manifold the recognized difficulties of ascertaining the domicile of individuals. See Texas v. Florida, 306 U. S. 398; District of Columbia v. Murphy, 314 U. S. 441. NORTHWEST AIRLINES v. MINNESOTA. 297 292 Conclusion and Judgment. base.” Thompson, State and Local Taxation Affecting Air Transportation (1933) 4 J. Air L. 479, 483. The doctrine of tax apportionment for instrumentalities engaged in interstate commerce introduced by Pullman’s Car Co, v. Pennsylvania, 141 U. S. 18, is here inapplicable. The principle of that case is that a non-domiciliary State may tax an interstate carrier “engaged in running railroad cars into, through and out of the State, and having at all times a large number of cars within the State ... by taking as the basis of assessment such proportion of its capital stock as the number of miles of railroad over which its cars are run within the State bears to the whole number of miles in all the States over which its cars are run.” Union Transit Co. v. Kentucky, supra, at 206. This principle was successively extended to the old means of transportation and communication, such as express companies and telegraph systems. But the doctrine of apportionment has neither in theory nor in practice been applied to tax units of interstate commerce visiting for fractional periods of the taxing year. (Thus, for instance, “The coaches of the company . . . are daily passing from one end of the State to the other,” in Pullman’s Car Co. v. Pennsylvania, supra, at 20, citing the opinion of the court below in 107 Pa. 156, 160.) The continuous protection by a State other than the domiciliary State— that is, protection throughout the tax year—has furnished the constitutional basis for tax apportionment in these interstate commerce situations, and it is on that basis that the tax laws have been framed and administered. The taxing power of the domiciliary State has a very different basis. It has power to tax because it is the State of domicile and no other State is. For reasons within its own sphere of choice Congress at one time chartered interstate carriers and at other times has left the chartering and all that goes with it to the States. That is a practical fact of legislative choice and a practical fact 298 OCTOBER TERM, 1943. Conclusion and Judgment. 322U.S. from which legal significance has always followed. That far-reaching fact was recognized, as a matter of course, by Mr. Justice Bradley in his dissent in the Pullman’s Car Co. case, supra, at 32. Congress of course could exert its controlling authority over commerce by appropriate regulation and exclude a domiciliary State from authority which it otherwise would have because it is the domiciliary State. But no judicial restriction has been applied against the domiciliary State except when property (or a portion of fungible units) is permanently situated in a State other than the domiciliary State.3 And permanently means continuously throughout the year, not a fraction thereof, whether days or weeks. Such was the unanimous decision in the Miller case or the Miller case decided nothing. The present case is precisely the case which Mr. Justice Holmes assumed the Miller case to be. By substituting Minnesota for New York we have inescapably the facts of the present case: “Suppose, then, that the State of Minnesota had taxed the property directly, there was nothing to hinder its taxing the whole of it. It is true that it has been decided that property, even of a domestic corporation, cannot be taxed 3 In the most recent apportionment case to come before this Court, Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362, we merely sustained the application by the Tennessee Railroad Commission and the Tennessee Supreme Court of a “familiar and frequently sanctioned formula” for apportionment on a mileage basis against the claim of the inapplicability of this formula in the circumstances of that case because of the disparity in the revenue-producing capacity between the lines in and out of Tennessee. Mathematical exactitude in making the apportionment has never been a constitutional requirement. That is the essence of the Browning holding. No suggestion can be found at any stage of that litigation in any wise touching the present problem, namely, whether the domiciliary State is constitutionally limited in taxing all the movables that come within it except by the Union Transit doctrine, that a proportion which had during the entire tax year been within another State cannot be taxed in the domiciliary State. NORTHWEST AIRLINES v. MINNESOTA. 299 292 Conclusion and Judgment. if it is permanently out of the State. . . . But it has not been decided, and it could not be decided, that a State may not tax its own corporations for all their property within the State during the tax year, even if every item of that property should be taken successively into another State for a day, a week, or six months, and then brought back. Using the language of domicil, which now so frequently is applied to inanimate things, the State of origin remains the permanent situs of the property, notwithstanding its occasional excursions to foreign parts.” N. Y. Central & H. R. R. Co. v. Miller, supra, at 596-597/ Surely, the power of the State of origin to “tax its own corporations for all their property within the State during the tax year” cannot constitutionally be affected whether the property takes fixed trips or indeterminate trips so long as the property is not “continuously without the State during the whole tax year,” N. Y. Central & H. R. R. Co. v. Miller, supra, at 594, even when, as in the Miller case, from 12% to 64% of the property was shown to have been used outside of New York during the tax year, but in no one visited State permanently, that is, for the whole year. And that is the decisive constitutional fact about the Miller case—that although from 12% to 64% of the rolling stock of the railroad was outside of New York throughout the tax year, New York was nevertheless allowed to tax it all because no part was in any other State throughout the year. To introduce a new doctrine of tax apportionment as a limitation upon the hitherto established taxing power of the home State is not merely to indulge in constitutional 4 In speaking of “occasional excursions to foreign parts” and “random excursions” (202 U. S. at 597), Mr. Justice Holmes merely put colloquially the legally significant fact that neither any specific cars nor any average of cars was so continuously in any other State as to have been withdrawn from the home State and to have established for tax purposes an adopted home State. 300 OCTOBER TERM, 1943. Conclusion and Judgment. 322U.S. innovation. It is to introduce practical dislocation into the established taxing systems of the States. The doctrine of tax apportionment has been painfully evolved in working out the financial relations between the States and interstate transportation and communication conducted on land and thereby forming a part of the organic life of these States. Although a part of the taxing systems of this country, the rule of apportionment is beset with friction, waste and difficulties, but at all events it grew out of, and has established itself in regard to, land commerce.6 To what extent it should be carried over to the totally new problems presented by the very different modes of transportation and communication that the airplane and the radio have already introduced, let alone the still more subtle and complicated technological facilities that are on the horizon, raises questions that we ought not to anticipate; certainly we ought not to embarrass the future by judicial answers which at best can deal only in a truncated way with problems sufficiently difficult even for legislative statesmanship. The doctrine in the Miller case, which we here apply, does not subject property permanently located outside of the domiciliary State to double taxation. But not to subject property that has no locality other than the State of its owner’s domicile to taxation there would free such floating property from taxation everywhere. And what the Miller case decided is that neither the Commerce Clause nor the Fourteenth Amendment affords such constitutional immunity. Each new means of interstate transportation and communication has engendered controversy regarding the 8 And that the constitutional power of the domiciliary State to tax vessels is precisely the same as its power to tax rolling stock is conclusively shown by the Court’s reliance in the Miller case on a case decided a week before, namely, Ayer & Lord Co. v. Kentucky, 202 U.S. 409. NORTHWEST AIRLINES v. MINNESOTA. 301 292 Black, J., concurring. taxing powers of the States inter se and as between the States and the Federal Government. Such controversies and some conflict and confusion are inevitable under a federal system. They have long been the source of difficulty and dissatisfaction for us, see J. B. Moore, Taxa-tion of Movables and the Fourteenth Amendment (1907) 7 Col. L. Rev. 309; Groves, Intergovernmental Fiscal Relations, Proceedings Thirty-fifth Annual Conference, National Tax Association, p. 105, and have equally plagued the British federal systems, see Report of the [Australian] Royal Commission on the Constitution, (1929) c. XII (p. 127), c. XIX (p. 187), c. XXIII (at p. 259); Report of the [Canadian] Royal Commission on Dominion-Provincial Relations, (1940) Bk. I, c. VIII, Bk. II, § B, c. III. In response to arguments addressed also to us about the dangers of harassing state taxation affecting national transportation, the concurring judge below adverts to the power of Congress to incorporate airlines and to control their taxation. But insofar as these are matters that go beyond the constitutional issues which dispose of this case, they are not our concern. Affirmed. Mr. Justice Black, concurring: I concur in the judgment of the Court and in substantially all that is said in the opinion, but I would not in this case foreclose consideration of the taxing rights of States other than Minnesota. I believe there is small support in reason or in the Constitution for the doctrine that the Commerce Clause in and of itself prohibits a state from applying its general tax laws to transactions and properties in interstate commerce unless it is able to make two correct prophecies as to what this Court ultimately may hold, namely, (1) The permissible total of taxes which might be imposed by an aggregate of states on the taxed properties or transactions; and (2) The proportion of this total which the state itself 302 OCTOBER TERM, 1943. Jackson, J., concurring. 322U.S. fairly may claim. See dissenting opinions in Adams Manufacturing Co. v. Storen, 304 U. S. 307, 316; Gwin, White & Prince v. Hennef ord, 305 U. S. 434, 442. Extension of this dubious doctrine to the new problems of air transport gives promise of little but tax confusion. The differing views of members of the Court in this and related cases illustrate the difficulties inherent in the judicial formulation of general rules to meet the national problems arising from state taxation which bears in incidence upon interstate commerce. These problems, it seems to me, call for Congressional investigation, consideration, and action. The Constitution gives that branch of government the power to regulate commerce among the states, and until it acts I think we should enter the field with extreme caution. See dissenting opinion, McCarroll v. Dixie Greyhound Lines, 309 U. S. 176, 183. Mr. Justice Jackson, concurring: This case considers for the first time constitutional limitations upon state power to tax airplanes. Several principles of limitation have been judicially evolved in reference to ships and to railroad rolling stock. The question is which, if any, of these should be transferred to air transport. We are at a stage in development of air commerce roughly comparable to that of steamship navigation in 1824 when Gibbons v. Ogden, 9 Wheat. 1, came before this Court. Any authorization of local burdens on our national air commerce will lead to their multiplication in this country. Moreover, such an example is not likely to be neglected by other revenue-needy nations as international air transport expands. Aviation has added a new dimension to travel and to our ideas. The ancient idea that landlordism and sovereignty extend from the center of the world to the periph- NORTHWEST AIRLINES v. MINNESOTA. 303 292 Jackson, J., concurring. ery of the universe has been modified. Today the landowner no more possesses a vertical control of all the air above him than a shore owner possesses horizontal control of all the sea before him. The air is too precious as an open highway to permit it to be “owned” to the exclusion or embarrassment of air navigation by surface landlords who could put it to little real use. Students of our legal evolution know how this Court interpreted the commerce clause of the Constitution to lift navigable waters of the United States out of local controls and into the domain of federal control. Gibbons v. Ogden, 9 Wheat. 1, to United States v. Appalachian Power Co., 311 U. S. 377. Air as an element in which to navigate is even more inevitably federalized by thè commerce clause than is navigable water. Local exactions and barriers to free transit in the air would neutralize its indifference to space and its conquest of time. Congress has recognized the national responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Its privileges, rights and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government. Congress has not extended its protection and control to the field of taxation, although I take it no one denies that constitutionally it may do so. It may exact a single uniform federal tax on the property or the business to 304 OCTOBER TERM, 1943. Jackson, J., concurring. 322U.S. the exclusion of taxation by the states. It may subject the vehicles or other incidents to any type of state and local taxation, or it may declare them tax-free altogether. Our function is to determine what rule governs in the absence of such legislative enactment. Certainly today flight over a state either casually or on regular routes and schedules confers no jurisdiction to tax. Earlier ideas of a state’s sovereignty over the air above it might argue for such a right to tax, but it is one of those cases where legal philosophy has to take account of the fact that the world does move. Does the act of landing within a state, even regularly and on schedule, confer jurisdiction to tax? Undoubtedly a plane, like any other article of personal property, could land or remain within a state in such a way as to become a part of the property within the state. But when a plane lands to receive and discharge passengers, to undergo servicing or repairs, or to await a convenient departing schedule, it does not in my opinion lose its character as a plane in transit. Long ago this Court held that the landing of a ship within the ports of a state for similar purposes did not confer jurisdiction to tax. Hays v. Pacific Mail S. S. Co., 17 How. 596; St. Louis v. Ferry Co., 11 Wall. 423; Morgan v. Parham, 16 Wall. 471; cf. Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409. I cannot consider that to alight out of the skies onto a landing field and take off again into the air confers any greater taxing jurisdiction on a state than for a ship for the same purposes to come alongside a wharf on the water and get under way again. What, then, remains as a basis for Minnesota’s claim to tax this entire fleet of planes at their full value as property of the State of Minnesota? They have been within the state only transiently and in the same manner in which they have been in many states: to serve the public and to be serviced. The planes have received no “protection” NORTHWEST AIRLINES v. MINNESOTA. 305 292 Jackson, J., concurring. or “benefit” from Minnesota that they have not received from many others. It might be difficult, in view of the complete control of this type of activity by the Federal Government, to find what benefits or protection any state extends. But no distinction whatever can be pointed out between those extended by Minnesota and those extended by any state where there is a terminal or a stopping place. But it is said that Minnesota incorporated the company. Of course it is her right to tax the company she has created and the franchise she has granted. I suppose there are many ways that she might constitutionally measure the value of this privilege. If she chartered a corporation on condition that all property it might acquire, tangible or intangible, should be taxable under her laws, I do not think a company which accepted such a charter could appeal to the Constitution to give back what it voluntarily contracted away. But no such stipulation has been made in the charter in this case. The tax imposed here is a general ad valorem property tax on the full value of every plane of the fleet operated by this company. Domicile of an owner is a usual test of power to tax intangibles, but has not generally been a conclusive test of taxability of tangible property situated elsewhere. If we should suppose that this corporation had a Delaware charter instead of a Minnesota one, and had nothing in Delaware except its agent, but operated otherwise in Minnesota exactly as it has done, would we say that the entire right to tax the fleet moved to Delaware because it was the corporation’s state of domicile? I do not think that domicile, in the facts of this case, is decisive of Minnesota’s claim to tax the tangible property of the company wherever situate. It is strongly and plausibly advocated that the theory of apportionment of the total value among the several states of operation, heretofore applied to state taxation 306 OCTOBER TERM, 1943. Jackson, J., concurring. 322U.S. of railroad rolling stock, be transferred to air transportation. This would mean that each state of operation (no one ventures to say whether flight alone or both flight and landing would be required) could tax a proportion of the total value. The apportionment theory is a mongrel one, a cross between desire not to interfere with state taxation and desire at the same time not utterly to crush out interstate commerce. It is a practical, but rather illogical, device to prevent duplication of tax burdens on vehicles in transit. It is established in our decisions and has been found more or less workable with more or less arbitrary formulae of apportionment. Nothing either in theory or in practice commends it for transfer to air commerce. A state has a different relation to rolling stock of railroads than it has to airplanes. Rolling stock is useless without surface rights and continuous structures on every inch of land over which it operates. Surface rights the railroad has acquired from the state or under its law. There is a physical basis within the state for the taxation of rolling stock which is lacking in the case of airplanes. It seems more than likely that no solution of the competition among states to tax this transportation agency can be devised by the judicial process without legislative help. The best analogy that I find in existing decisions is the “home port” theory applied to ships. See Hays v. Pacific Mail S. S. Co., St. Louis n. Ferry Co., Morgan v. Parham, supra. There is difficulty in the application of this doctrine to air commerce, I grant. There is no statutory machinery for fixing the home port. If federal registration established statehood as it establishes nationality, the home port doctrine would be easy to apply. However, on the record before us it seems unquestioned that Minnesota is in an operational as well as in a domiciliary sense the home port of this fleet. On that doctrine Minnesota can tax the fleet, but its right to do so is exclusive, NORTHWEST AIRLINES v. MINNESOTA. 307 292 Jackson, J., concurring. for no other state can acquire jurisdiction to tax merely because it provides a port of call. I therefore concur in the conclusion reached by the opinion of Mr. Justice Frankfurter. I do not accept the opinion because it falls short of commitment that Minnesota’s right is exclusive of any similar right elsewhere. It is, I know, difficult to judge and dangerous to foreclose claims of other states that are not before us. That is the weakness of the judicial process in these tax questions where the total problem that faces an industry reaches us only in installments. If the reasoning should hereafter be extended to support full taxation everywhere, it would offend the commerce clause, as I see it, even more seriously than apportioned taxation everywhere. The evils of local taxation of goods or vehicles in transit are not measured by the exaction of one locality alone, but by the aggregation of them. I certainly do not favor exemption of interstate commerce from its “just share of taxation.” But history shows that fair judgment as to what exactions are just to the passer-by cannot be left to local opinion. When local authority is taxing its own, the taxed ones may be assumed to be able to protect themselves at the polls. No such sanction enforces fair dealing to the transient. In all ages and climes those who are settled in strategic localities have made the moving world pay dearly. This the commerce clause was designed to end in the United States. The rule I suggest seems most consonant with the purposes of the commerce clause among those found in our precedents. But the whole problem we deal with is unprecedented. I do not think we can derive from decisional law a satisfactory adjustment of the conflicting needs of the nation for free air commerce and the natural desire of localities to have revenue from the business that goes on about them. 308 OCTOBER TERM, 1943. Stone, C. J., dissenting. 322U.S. I concur in the affirmance of the judgment below, but only because the record seems to me to establish Minnesota as a “home port” within the meaning of the old and somewhat neglected but to me wise authorities cited. Mr. Chief Justice Stone, dissenting: In my opinion the Minnesota levy imposed an unconstitutional tax on petitioner’s vehicles of interstate transportation in violation of the commerce clause, and for that reason the judgment below should be reversed. Petitioner, a Minnesota corporation, is owner of a large number of airplanes which it uses exclusively in interstate transportation moving on regular schedules and over fixed routes extending through eight states between Chicago, Illinois, and the Pacific coast, with the usual landing fields and maintenance bases at intermediate points, including Minneapolis and St. Paul, Minnesota. It is stipulated that on May 1,1939,14% of the total mileage of the prescribed interstate routes was in Minnesota and that 16% of the daily plane mileage of all petitioner’s interstate planes was in that state. Although the Minnesota statute taxing personal property directs that it shall be listed for taxation on May 1st of each year and assessed for taxation at its value on that date, Minn. Stat. 1941 § 273.01, the state taxing authorities have levied on petitioner, and the Minnesota Supreme Court and this Court have sustained, an annual tax on the full value of all its planes used in interstate commerce which have come into the state at any time during the year. It is evident that if, with the Minnesota tax now sustained, other states are left free to impose a further or comparable tax on the same property for the same tax period, a serious question is raised whether the tax is not a prohibited burden on interstate commerce. It is no longer doubted that interstate business “must pay its way” by sustaining its fair share of the property NORTHWEST AIRLINES v. MINNESOTA. 309 292 Stone, C. J., dissenting. tax burden which the states in which the interstate business is done may lawfully impose generally on property located within them. See Western Live Stocky v. Bureau, 303 U. S. 250, 254-5 and cases cited. Obviously interstate business bears no undue part of that burden if the personal property tax imposed on it by a given state is—like a tax on real estate located there—exclusive of all other property taxes imposed by other states, as is the case with the taxation of vessels, Old Dominion S. S. Co. v. Virginia, 198 U. S. 299; Southern Pacific Ry. v. Kentucky, 222 U. S. 63 and cases cited; cf. N. Y. Central & H. R. R. Co. v. Miller, 202 U. S. 584, or if the tax on its personal property regularly used over fixed routes in interstate commerce, both within and without the taxing state, is fairly apportioned to its use within the state, as has until now been the rule as to railroad cars. Marye v. Baltimore & Ohio R. Co., 127 U.S. 117, 123-4; Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18; American Refrigerator Transit Co. v. Hall, 174 U. S. 70; Union Transit Co. v. Lynch, 177 U. S. 149; Union Transit Co. v. Kentucky, 199 U. S. 194; Germania Refining Co. v. Fuller, 245 U. S. 632; Union Tank Line Co. v. Wright, 249 U. S. 275; Johnson Oil Co. v. Oklahoma, 290 U. S. 158. If the tax levied here were held to be exclusive of all property taxes imposed on petitioner’s airplanes by other states there could be no serious question of an undue burden on interstate commerce. That question arises now only because the rationale found necessary to support the present tax leaves other states free to impose comparable taxes on the same property used in interstate commerce which Minnesota has already taxed for the entire taxable year and at its full value. Such, I think, is the necessary consequence of the Court’s decision and judgment now given. They do not sustain the tax on the ground that Minnesota, as the state of petitioner’s domicile, has exclusive power to tax respondent’s 310 OCTOBER TERM, 1943. Stone, C. J., dissenting. 322U.S. planes which pass in and out of Minnesota in performance of their interstate functions. They do not deny that the planes are constitutionally subject, to some extent, to personal property taxes by the states through which they pass. Our decisions, as will presently appear, establish that they are, and that vehicles of interstate transportation moving from the state of the owner’s domicile over regular routes within the jurisdiction of other states also acquire a tax situs there, so that, to an extent presently to be considered, they may be taxed by each of the states through which they pass. In fact the record discloses that petitioner’s interstate planes, already taxed by Minnesota for their full value, are in addition subjected to personal property taxes in six of the seven other states through which they fly. But if petitioner’s airplanes, which are taxable for some portion of their value in each of the states in which they carry on interstate transportation over fixed routes and regular schedules, are also taxed for their full value by Minnesota, the state of the domicile, it is evident that merely because they are engaged in interstate commerce they may be subjected to multiple state taxation far in excess of their value, and far beyond any tax which any one of the states concerned could under its established system of taxation impose on vehicles whose movements are confined within its territorial limits. It is a scheme of property taxation on which, so far as the decision now rendered gives us any hint, the commerce clause sets no restriction, but which is so burdensome in its operation as compared with the taxes imposed on intrastate vehicles that few interstate carriers could support it and survive economically. The case thus sharply presents in a new form the old question whether the commerce clause affords any protection against multiple state taxation of the physical NORTHWEST AIRLINES v. MINNESOTA. 311 292 Stone, C. J., dissenting. facilities used in interstate transportation which, because they move from state to state, are exposed to full taxation in each, save only as the due process and commerce clauses may prevent. Although the question is new in form it is old in substance and this Court has considered it so often in other but similar relationships that the answer here seems plain. Of controlling significance in this case are certain elementary propositions, so long accepted and applied by this Court that they cannot be said to be debatable here, although they seem not to have been taken into account in deciding this case either here or in the Minnesota Supreme Court. The first is that the constitutional basis for the state taxation of the airplanes, which are chattels, is their physical presence within the taxing state, and not the domicile of the owner. Union Transit Co. v. Kentucky, supra; Johnson Oil Co. v. Oklahoma, supra, 161-2 and cases cited. In this respect, as this Court has often pointed out, the taxation of chattels rests on a different basis than does the taxation of intangibles, which have no physical situs and may be reached by the tax gatherer only through exertion of the power of the state over the person of those who have some legal interest in the intangibles. Union Transit Co. v. Kentucky, supra, 205-6; Schwab v. Richardson, 263 U. S. 88, 92; Frick n. Pennsylvania, 268 U. S. 473, 494; Blodgett v. Silberman, 277 U. S. 1,16-18; Wheeling Steel Corp. v. Fox, 298 U. S. 193, 209-10; Curry v. McCanless, 307 U. S. 357, 363-6; Graves v. Elliott, 307 U. S. 383; Graves v. Schmidlapp, 315 U. S. 657; State Tax Comm’n v. Aldrich, 316 U. S. 174. A state may, within the Fourteenth Amendment, tax a chattel located within its limits, although its owner is domiciled elsewhere. Brown v. Houston, 114 U. S. 622; Coe v. Errol, 116 U. S. 517; Pullman’s Car Co. v. Pennsylvania, supra; Old Dominion S. S. Co. v. Virginia, supra. 312 OCTOBER TERM, 1943. Stone, C. J., dissenting. 322U.S. But due process precludes the state of the domicile from taxing it unless it is brought within that state’s boundaries. Delaware, L. & W. R. Co. v. Pennsylvania, 198 U. S. 341; Union Transit Co. v. Kentucky, supra; Frick v. Pennsylvania, supra, 489 et seq. It is plain then that for present purposes, and so far as the Fourteenth Amendment is concerned, respondent’s airplanes, which are chattels regularly moving over fixed interstate routes, are subject in some measure to the taxing power of every state in which they regularly stop on their interstate mission.1 In some instances it may be that vehicles of transportation moving interstate are so sporadically and irregularly present in other states that they acquire no tax situs there, Hays v. Pacific Mail S. S. Co., 17 How. 596; St. Louis v. Ferry Co., 11 Wall. 423; Morgan v. Parham, 16 Wall. 471; Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409, and hence remain taxable to their full value by the state of the domicile because they are not taxable elsewhere, N. Y. Central & H. R. R. Co. v. Miller, supra; Southern Pacific Co. v. Kentucky, supra. But that is not the case as to any of the planes here involved. And our decisions establish that, except in the case of tangibles which have nowhere acquired a tax situs based on physical presence, and for that reason remain taxable at the domicile even if never present there, the state’s power to tax chattels depends 1 We need not consider here whether the jurisdiction of a state over air above it—as distinguished from the control of a private landowner over air above his land—affords a basis for taxation of planes which regularly fly over the state but do not regularly land within its borders. For in six of the seven states, other than Minnesota, over which petitioner’s airplanes regularly fly, they also make regular scheduled landings. Plainly those states have jurisdiction to tax a proportionate part of their value and to that extent the judgment of the Minnesota Supreme Court, permitting taxation in full by the domicile, is erroneous, and the cause should be remanded for further proceedings. NORTHWEST AIRLINES v. MINNESOTA. 313 292 Stone, C. J., dissenting. on their physical presence and is neither added to nor subtracted from because the taxing state may or may not happen to be the state of the owner’s domicile. We need not consider to what extent the due process clause limits the taxing power of each state through which airplanes or other vehicles of interstate transportation pass, to the taxation of part only of their value, fairly related to their use within the state, or precluded the Minnesota Supreme Court from extending to tangible property moving in more than one state the rule of Curry v. McCanless, supra, and subsequent cases, permitting full taxation of intangibles by each state having a substantial relationship to the interest taxed. For we are dealing here with tangible instrumentalities of interstate commerce, entitled as such to the protection afforded by the commerce clause from unduly burdensome state taxation, even though the tax might otherwise be within the constitutional power of the state. And it is plain, as this Court has often held, that if one state may impose a personal property tax at full value on an interstate carrier’s vehicles of transportation, and other states through which they pass may also tax them for the same tax period, the resulting tax would be destructive of the commerce by imposing on it a multiple tax burden to which intrastate carriers are not subjected. This Court has never denied the power of the several states to impose a property tax on vehicles used in interstate transportation in the taxing state. It has recognized, as we have seen, that such instruments of interstate transportation, at least if moving over fixed routes on regular schedules, may thus acquire a tax situs in every state through which they pass. And it has met the problem of burdensome multiple taxation by the several states through which such vehicles pass by recognizing that the due process clause or the commerce clause or both pre- 314 OCTOBER TERM, 1943. Stone, C. J., dissenting. 322U.S. elude each state from imposing on the interstate commerce involved an undue or inequitable share of the tax burden. In Nashville, C. & St. L. Ry. v. Browning, 310 U. S. 362, 365, we recently considered “the guiding principles for adjustment of the state’s right to secure its revenues and the nation’s duty to protect interstate transportation.” We declared that “The problem to be solved is what portion of an interstate organism may appropriately be attributed to each of the various states in which it functions.” And, in sustaining the tax, apportioned according to mileage, upon the entire property, including rolling stock, of an interstate railroad, imposed by Tennessee, the state of the owner’s domicile, in which its principal business office and over 70% of its trackage was located, we said that the state could not “use a fiscal formula ... to project the taxing power of the state plainly beyond its borders.” This Court has accordingly held invalid state taxation of vehicles of interstate transportation unless the tax is equitably apportioned to the use of the vehicles within the state compared to their use without, whether the tax is laid by the state of the domicile or another.2 * * * & Such an 2 The rule, generally applied, that vessels are taxable only by the domicile, Hays v. Pacific Mail S. S. Co., 17 How. 596, 597; St. Louis v. Ferry Co., 11 Wall. 423, 430, 431-2; Morgan v. Parham, 16 Wall. 471, 475; Transportation Co. n. Wheeling, 99 U. S. 273, 279-80; Ayer & Lord Tie Co. v. Kentucky, 202 U. S. 409, 421; Southern Pacific Co. v. Kentucky, 222 U. S. 63, 68, 69, 77, is no exception to these rules. For vessels ordinarily move on the high seas, outside the jurisdiction of any state, and merely touch briefly at ports within a state. Hence they acquire no tax situs in any of the states at which they touch port, and are taxable by the domicile or not at all. See Pullman’s Car Co. n. Pennsylvania, 141 U. S. 18, 23; Southern Pacific Co. v. Kentucky, supra, 75. The suggestion in the earlier cases, see Hays v. Pacific Mail S. S. Co., supra, 600; St. Louis v. Ferry Co., supra; Morgan v. Parham, supra, that vessels were to be taxed exclusively at the home port, whether or not it was the domicile, was rejected in Ayer