UNITED STATES REPORTS VOLUME 324 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1944 From January 29,1945 (Concluded) to and Including (In Part) April 23, 1945 UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1946 For sale by the Superintendent of Documents, U. S. Government Printing Office Washington 25, D. C. - Price $2.75 (Buckram) Erratum.—322 U. S. 551, line 10, “confined” should be “confided”. n 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. *0n Monday, March 26, 1945, the Chief Justice announced the death, on March 22,1945, at San Diego, Calif., of John Hessin Clarke, of Ohio, a former Associate Justice of this Court. Appointed by President Wilson, Mr. Justice Clarke took his seat October 9, 1916, and resigned as of September 18,1922. m SUPREME COURT OF THE UNITED STATES Allotment of Justices It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the Circuits, agreeably to the Acts of Congress in such case made and provided, and that such allotment be entered of record, viz: For the First Circuit, Felix Frankfurter, Associate Justice. For the Second Circuit, Robert H. Jackson, Associate Justice. For the Third Circuit, Owen J. Roberts, Associate Justice. For the Fourth Circuit, Harlan F. Stone, Chief Justice. For the Fifth Circuit, Hugo L. Black, Associate Justice. For the Sixth Circuit, Stanley Reed, Associate Justice. For the Seventh Circuit, Frank Murphy, Associate Justice. For the Eighth Circuit, Wiley Rutledge, Associate Justice. For the Ninth Circuit, William 0. Douglas, Associate Justice. For the Tenth Circuit, Wiley Rutledge, Associate Justice. For the District of Columbia, Harlan F. Stone, Chief Justice. March 1,1943. (For the next previous allotment, see 314 U. S. p. iv.) IV TABLE OF CASES REPORTED Page Acme Poultry Corp. v. United States.......... 860 Adams, Cantrell v.............................821 Adams v. City Bank Farmers Trust Co...........865 Adirondack Transit Lines v. United States..... 824 Adkison v. Ragen............................. 884 A. E. Staley Mfg. Co., Trade Comm’n v.........746 A. H. Phillips, Inc. v. Walling............. 490 Akins v. Texas.............................. 836 Alabama, Bums v........................... 843,887 Alabama Great Southern R. Co., Davis v....... 846 Alderson, Charleston Savings Assn, v...... 182, 888 Allison v. Pennsylvania..................... 849 Alma Motor Co. v. Timken-Detroit Axle Co......832 American Tobacco Co. v. United States........ 836 American Trucking Assns. v. Hancock Lines..... 774 Amrine, Bissell v.............................875 Anchor Mills Co., Green v.....................880 Anderson v. Louisiana........................ 868 Anderson v. Tway..............................861 Andrews v. Robertson......................... 874 Andrews v. United States...................... 49 Anglin & Stevenson, United States v...........844 Aronson v. New York...........................845 Arsenal Building Corp. v. Greenberg.......... 697 Atlantic Co. v. Broughton.....................883 Atlantic Co., Broughton v.................... 883 Atlantic Co. v. Carthan.......................883 Atlantic Co., Carthan v.......................883 Automotive Maintenance Co., Precision Co. v...806 Badenhausen v. Baetjer........................882 Baetjer, Badenhausen v....................... 882 v VI TABLE OF CASES REPORTED. Page Baker, Ex parte................................ 822 Baker v. Ragen............................... 855, 863 Bank of Nova Scotia, Sampayo v............... 859,891 Bar Association, Mitchell v..................... 845 Barland v. Illinois............................. 883 Barlow v. Utah...............................829,891 Barnes Co. v. International Harvester Co........ 850 Barnesville Farmers Elevator Co., Holt v........ 858 Barr v. United States............................ 83 Barry v. Reading Co.......................... 867, 891 Bartell v. Illinois.......................... 842,890 Bartelt v. Thompson..............................828 Barthel v. Stamm................................ 878 Barton, Fraser v................................ 849 Batson v. Squier................................ 874 Beach, United States v.......................... 193 Beard, Glenn v.................................. 889 Belcher v. Louisville & Nashville R. Co......... 117 Benefit Association of Ry. Employees, Miner v.. 840, 886 Benitez Sampayo v. Bank of Nova Scotia......... 859, 891 Benitez Sampayo v. United States............. 859, 891 Bennett, Pullett v.............................. 851 Benton v. St. Louis-San Francisco R. Co......... 843 Berger v. United States......................... 848 Berkshire, Molloy & Co. v....................... 886 Bernards v. Johnson............................. 826 Beuttas, United States v........................ 768 Bingham v. Commissioner......................... 835 Bissell v. Amrine............................... 875 Blacker, Thatcher v............................. 848 Bioomenthal v. Ragen............................ 863 Board of Governors, Mitchell v.................. 845 Board of Health, Johnson v...................... 822 Bollenbach v. United States..................... 837 Boston & Maine Railroad, Negro v................ 862 Boundary County v. Woldson...................... 843 Bowen v. Johnston............................... 876 TABLE OF CASES REPORTED. vn Page Bowles, Cudmore v............................... 841 Bowles, Pfeiffer Brewing Co. v.................. 865 Bowles, Safeway Stores v........................ 847 Bowles v. Seminole Rock & Sand Co............... 835 Bowles, Speten v................................ 877 Bowles v. United States......................... 830 Brand Investment Co., United States v............850 Braner v. Illinois.............................. 875 Brim, Wall v.................................... 857 Brooklyn Savings Bank v. O’Neil................. 697 Brooks v. Ragen................................. 876 Brooks v. United States......................... 878 Brotherhood of Transit Employees v. Madden........825 Broughton v. Atlantic Co...................... 883 Broughton, Atlantic Co. v....................... 883 Brown, Ex parte............................. 825, 826 Brown Forman Distillers Corp., United States v... 293 Bulldog Electric Products Co. v. Electric Co.... 857, 888 Burgess, Ex parte............................... 823 Burgess, Ex parte............................... 823 Burns v. Alabama............................ 843, 887 Butler, Ex parte................................ 825 B-W Construction Co., United States v........... 768 Byra v. New Jersey.............................. 884 Caldwell Sugars, Inc. v. Commissioner....... 851,888 California, Coyle v............................. 863 California, Talbott v........................... 845 California Alkali Export Assn. v. United States.... 834 California Shipbuilding Corp. v. Industrial Comm’n. 843 Calloway v. Hart................................ 866 Callus, 10 East 40th St. Building v..............833 Canadian Aviator v. United States................215 Canadian River Gas Co. v. Power Comm’n...... 581,831 Cantrell v. Adams................................821 Carnahan v. Nierstheimer........................ 846 Carter v. Johnston.............................. 874 Carter v. Kubler................................ 877 Carthan v. Atlantic Co.......................... 883 VIII TABLE OF CASES REPORTED. Page Carthan, Atlantic Co. v...................... 883 Catlin v. United States...................... 229 Catovolo v. Hibbs............................ 828 Central Dispensary & Hospital v. Labor Board..847 Central National Bank Co., Herget v............ 4 Central States Electric Co. v. Muscatine..... 138 Chapman v. Hunter........................ 856,891 Chapman, Potomac Chemical Co. v.............. 881 Charleston Federal Savings Assn. v. Alderson... 182, 888 Chase National Bank v. Dixon, Irmaos & Cia....850 Chatwin v. United States......................835 Chicago, B. & Q. R. Co., Howard v............ 879 Chicago, B. & Q. R. Co., Illinois Comm’n v....824 Choate v. Commissioner......................... 1 Christensen v. United States................. 835 Chronister, Robertson v...................... 883 C. I. 0. v. McAdory...........................832 City Bank Farmers Trust Co., Adams v..........865 City of. See name of city. Cleveland v. United States................... 835 Coe, Companhia Antarctica Paulista v......... 880 Coe, Minnesota Mining & Mfg. Co. v........ 887, 889 Coe, Special Equipment Co. v................. 370 Cohen v. United States....................... 885 Cole Co. v. United States................. 822,887 Colorado Interstate Gas Co. v.Pow Comm’n.. 581,831 Colorado-Wyoming Gas Co. v. Power Comm’n.... 626 Commissioner, Caldwell Sugars v........... 851,888 Commissioner, Choate v......................... 1 Commissioner v. Court Holding Co............. 331 Commissioner v. Disston...................... 832 Commissioner v. Field........................ 113 Commissioner, Fondren v....................... 18 Commissioner, Franklin Peanut Co. v.......... 867 Commissioner, Friedmann v.................... 865 Commissioner, Goldwasser v................... 890 Commissioner, Greenan v...................... 848 TABLE OF CASES REPORTED. ix Page Commissioner, Guaranty Trust Co. v............ 393 Commissioner, Hay v..................... 863, 891 Commissioner, Kroger v....................... 866 Commissioner, Mallinckrodt v.................. 871 Commissioner, Meurer Steel Barrel Co. v....... 860 Commissioner, National Memorial Park v.........858 Commissioner, Putnam v........................ 393 Commissioner, Roberts v....................... 841 Commissioner, Slack Bros. v............... 852, 889 Commissioner v. Smith.............. 177, 695, 830, 889 Commissioner, Superior Coal Co. v............ 864 Commissioner, Taylor v...................... 871 Commissioner, Trust of Bingham v............. 835 Commissioner, Webre Steib Co. v.............. 164 Commissioner v. Wemyss....................... 303 Commissioner v. Wheeler...................... 542 Commodore Park, United States v.............. 386 Compagna v. United States..................... 867 Companhia Antarctica Paulista v. Coe.......... 880 Condenser Corp. v. Micamold Radio Corp........ 861 Congress of Industrial Organizations v. McAdory... 832 Connecticut Light & Power Co. v. Power Comm’n... 515 Copperweld Steel Co. v. Industrial Comm’n......780 Cordts v. Ragen............................... 846 Corning Glass Works v. United States.......... 570 Corn Products Refining Co. v Trade Comm’n...... 726 Cotton State Fertilizer Co. v. Hurt........... 844 Court Holding Co., Commissioner v............. 331 Coyle v. California........................... 863 Crapo v. Johnston............................. 886 Crews, Garber v............................... 200 Crist v. Ragen............................... 851 Cudmore v. Bowles............................. 841 Darger v. United States....................... 835 Daulley v. Ragen............................ 884 Davenport v. United States.................... 881 Davis v. Alabama Great Southern R. Co......... 846 Davis v. Johnston............................. 828 X TABLE OF CASES REPORTED. Page Deal, Robinson v.............................. 850 De Beers Consolidated Mines v. United States....839 Des Rosiers v. Ford Motor Co...................857 Dickey v. Raisin Proration Zone............... 869 Disney Productions v. Labor Board..............877 Disston, Commissioner v....................... 832 District Court, Wilson v...................... 886 Dixon, Irmaos & Cia., Chase Bank v............ 850 Dize v. Maddrix............................... 697 Dockstader v. United States................... 835 Dr. William H. Hay Foundation v. Sanatorium.....877 Dolan v. Meyer................................ 867 Dollert v. Pratt-Hewit Oil Corp............ 853,889 Doss v. Lindsley........................... 829, 863 Dow Chemical Co. v. Halliburton Co............ 320 Dow Chemical Co., Halliburton Co. v........... 320 Drake v. United States........................ 862 Driscoll v. Howard-Vaughan Co................. 853 Drummond v. United States......................316 Duel, State Farm Ins. Co. v................ 154, 887 Duncan v. Kahanamoku.......................... 833 Duncombe v. Martinson......................... 829 Du Pont de Nemours & Co. v. Wright............ 873 E. I. du Pont de Nemours & Co. v. Wright........ 873 Eldridge v. Keith............................. 851 Emerald Coal & Coke Co., Kennedy v............ 872 Estate of. See name of estate. Euler v. Illinois............................. 851 Evans v. Nierstheimer...................... 859, 889 Evatt, Hooven & Allison Co. v................. 652 Evatt, Ohio ex rei. Foster v.................. 878 Ex parte. See name of party. Fahs, Merrill v............................ 308, 888 Farmers Bank & Trust Co., Ledbetter v......... 886 Farrington, Hays v.............................885 Federal Land Bank, Putnam v................ 826, 882 Federal Land Bank, Wragg v.................... 872 TABLE OF CASES REPORTED. xi Page Federal Petroleum Board, Genecov v............. 865 Federal Power Comm’n, Canadian River Co. v.. 581, 831 Federal Power Comm’n, Colorado Gas Co. v.... 581,831 Federal Power Comm’n, Colorado-Wyoming Co. v.. 626 Federal Power Comm’n, Connecticut Co. v.........515 Federal Power Comm’n, Panhandle Co. v...........635 Federal Trade Comm’n, Corn Products Co. v....... 726 Federal Trade Comm’n, Segal Lock Co. v..........885 Federal Trade Comm’n v. Staley Mfg. Co......... 746 Fidelity-Philadelphia Trust Co. v. Rothensies.. 108 Field, Commissioner v.......................... 113 Fife v. Ragen.................................. 851 Finn v. Meighan................................ 834 Fitzgerald v. Sanford.......................... 869 Fitzgerald Construction Co. v. Pedersen........ 720 Fitzpatrick v. Nierstheimer.................... 842 Fleish v. Johnston..............................840 Fleming, Illinois Commerce Comm’n v............ 823 Florida, Kinsey v.............................. 846 Florida, Pearce v.............................. 851 Florida ex rel. Watson, Hill v..................832 Fondren v. Commissioner......................... 18 Ford Motor Co., Des Rosiers v...................857 Ford Motor Co. v. Pennsylvania.............. 827, 890 Fort Tryon Gardens, Metrik v................. 866 Foster v. Evatt................................ 878 Foxall v. Ragen.............................. 851 Frankfort Distilleries, United States v.........293 Franklin v. New York City...................... 847 Franklin Life Ins. Co. v. Heitchew............. 865 Franklin Peanut Co. v. Commissioner............ 867 Fraser v. Barton............................... 849 Fraser v. United States........................ 842 Frazier, Ex parte.............................. 823 Frederick v. United States.................... 861 Friedmann v. Commissioner...................... 865 Gaines, Ex parte............................... 831 XII TABLE OF CASES REPORTED. Page Gallagher v. Ragen.............................868 Gapinski v. Nierstheimer...................... 846 Garber v. Crews............................... 200 Gemsco, Inc. v. Walling....................... 244 Genecov v. Federal Petroleum Board............ 865 General Electric Co. v. Jewel Lamp Co..........838 General Insurance Co., Pathfinder Co. v....... 844 General Motors Corp., Horton v................ 844 Georgia v. Pennsylvania R. Co............. 439, 890 Georgia, White v............................ 864 Giese v. United States........................ 885 Glenn v. Beard................................ 889 Globe Indemnity Co. v. United States.......... 852 Golden v. Missouri........................... 874 Goldstone v. United States.................... 833 Goldwasser v. Commissioner.................... 890 Gordon v. Illinois............................ 851 Graham v. Squier.............................. 845 Graham, Steinberg v.......................... 823 Great Lakes Transit Corp. v. Marceau.......... 872 Green v. Anchor Mills Co..................... 880 Greenan v. Commissioner....................... 848 Greenberg, Arsenal Building Corp, v........... 697 Group of Institutional Investors, Park v...... 857 Guaranty Trust Co. v. Commissioner............ 393 Guiseppi v. Walling.......................... 244 Gurney, Price v........................ 100, 825, 886 Haines v. Nierstheimer...................... 842 Hall v. United States......................... 871 Halliburton Oil Well Co. v. Dow Co............ 320 Halliburton Oil Well Co., Dow Co. v........... 320 Hammersmith v. New York....................... 875 Hammond, Harris v........................... 859 Hancock Truck Lines, Common Carriers Conference v...................................... 774 Hancock Truck Lines, United States v.......... 774 Hanley v. Ragen............................ 851 TABLE OF CASES REPORTED. xin Page Hardware Mutual Casualty Co., Wendlinger v...... 882 Harnischfeger Corp., Walling v................ 837 Harris v. Hammond.............................. 859 Harris, Thompson v............................. 845 Hart, Calloway v............................... 866 Hartford-Empire Co. v. United States........ 570, 888 Hastings v. Haystone Securities Corp........... 860 Hawk v. Olson................................. 839 Hawke, Ex parte............................... 878 Hay v. Commissioner........................ 863, 891 Hay Foundation v. Safety Harbor Sanatorium...... 877 Hays v. Farrington............................. 885 Haystone Securities Corp., Hastings v.......... 860 Hazel-Atlas Glass Co. v. United States..........570 Heitchew, Franklin Life Ins. Co. v............. 865 Herb v. Pitcairn............................... 117 Herget v. Central National Bank Co............... 4 Hesley v. Ragen.............................. 842 Hibbs, Catovolo v.............................. 828 Higbee Co., Young v............................ 204 Hill v. Florida ex rel. Watson -............... 832 Hines v. Louisville & Nashville R. Co......... 858 Hinman, Wilson v...................... 822, 886, 889 Hiram Walker, Inc., United States v............ 293 Hoffman, Republic of Mexico v.................. 30 Holland v. Illinois........................ 829, 854 Holt v. Barnesville Farmers Elevator Co........ 858 Hooven & Allison Co. v. Evatt................. 652 Horni Signal Mfg. Corp. v. Katz................ 882 Horton v. General Motors Corp................. 844 House v. Mayo.............................. 42, 886 Howard v. Chicago, B. & Q. R. Co................ 879 Howard-Vaughan Co., Driscoll v................. 853 Howe v. United States................... 841, 886 Hunter, Chapman v........................ 856, 891 Hunter, Mosher v.............................. 888 Hurt, Cotton State Fertilizer Co. v.............844 XIV TABLE OF CASES REPORTED. Page Illinois, Barland v.................................. 883 Illinois, Bartell v............................. 842, 890 Illinois, Braner v................................... 875 Illinois, Euler v.................................... 851 Illinois, Gordon v.................................. 851 Illinois, Holland v............................. 829, 854 Illinois, Locke v.................................... 875 Illinois, Whited v.................................. 842 Illinois Central R. Co., Illinois Comm’n v........... 823 Illinois Commerce Comm’n v. Chicago, B. & Q. R. Co.................................................. 824 Illinois Commerce Comm’n v. Fleming.............. 823 Illinois Commerce Comm’n v. Illinois Central R. Co. 823 Illinois Commerce Comm’n v. Scandrett........... 824 Illinois Commerce Comm’n v. Sprague.............. 824 Illinois ex rel. Railway Employees, Miner v.... 840, 886 Illinois ex rel. Reusing v. Nierstheimer............. 825 Illinois State Supreme Court, Piskorz v.............. 883 Industrial Accident Comm’n, Shipbuilding Corp, v.. 843 Industrial Commission, Copperweld Steel Co. v.... 780 Institutional Investors, Park v...................... 857 International Harvester Co., Barnes Co. v............ 850 International Union v. Wisconsin Board............... 884 In the Matter of. See name of party. Jack Cole Co. v. United States.................. 822, 887 Jackson, U. S. ex rel. Rogalski v.................... 873 Jefferson County v. T. V. A..................... 871,891 Jessop v. United States.............................. 835 Jewel Incandescent Lamp Co., Electric Co. v.......... 838 J. F. Fitzgerald Construction Co. v. Pedersen........ 720 John Barnes Co. v. Harvester Co...................... 850 Johnson, Bernards v.................................. 826 Johnson v. Board of Health........................... 822 Johnson v. Ragen..................................... 859 Johnson v. United States............................. 852 Johnston, Bowen v.................................... 876 Johnston, Carter v................................... 874 TABLE OF CASES REPORTED. xv Page Johnston, Crapo v............................ 886 Johnston, Davis v........................... 828 Johnston, Fleish v........................... 840 Johnston, Mahoney v.......................... 853 Johnston, Michener v...................«..... 874 Johnston, O’Keith v.......................... 873 Jones v. Stewart............................ 845 Jones v. Whittle............................. 829 Kahanamoku, Duncan v......................... 833 Katz, Horni Signal Corp, v................... 882 Kaufman v. United States..................... 867 Keeton v. Thompson........................... 838 Keith, Eldridge v............................ 851 Kelby, Manhattan Co. v....................... 866 Kelly v. Swygert............................. 830 Kelly v, United States.................... 855, 888 Kennedy v. Emerald Coal & Coke Co............ 872 King v. United States........................ 854 King County v. Washington Chocolate Co........ 880 Kinsey v. Florida............................ 846 Kirsch v. Ragen.............................. 846 Klein v. Moser............................... 879 Korematsu v. United States.................. 885 Kramer v. United States...................... 878 Kroger v. Commissioner....................... 866 Kubler, Carter v............................. 877 Kuczynski v. O’Brien......................... 888 Labor Board, Central Dispensary & Hospital v..847 Labor Board v. Le Tourneau Co.............. 793 Labor Board, May Stores Co. v................ 838 Labor Board, Ohio Public Service Co. v....... 857 Labor Board, Onan v......................... 843 Labor Board, Point Breeze Assn, v............ 870 Labor Board, Regal Knitwear Co. v.............. 9 Labor Board, Republic Aviation Corp, v....... 793 Labor Board, Wallace Corp, v................. 885 Labor Board, Walt Disney Productions v........877 H XVI TABLE OF CASES REPORTED. Page Labor Board, Western Electric Co. v........... 870 Lack v. Western Loan & Building Co............ 877 Ledbetter v. Farmers Bank & Trust Co.......... 886 Lesser v. New York............................ 875 Le Tourneau Co., Labor Board v................ 793 Lewis, Ex parte............................... 825 Liggett & Myers Tobacco Co. v. United States....836 Lindsley, Doss v........................... 829, 863 Locke v. Illinois............................ 875 Loew v. United States......................... 840 Long Island Lighting Co., Securities Comm’n v...... 837 Louisiana, Anderson v........................ 868 Louisville & Nashville R. Co., Belcher v...... 117 Louisville & Nashville R. Co., Hines v........ 858 Lutz v. Ragen................................ 760 Lyerla v. Nierstheimer........................ 846 Lynch Corp. v. United States.................. 570 Mackreth v. Williams....................... 855, 889 Madden, Transit Employees v................... 825 Maddrix, Dize v............................... 697 Maggio v. Zeitz............................... 841 Mahoney v. Johnston........................... 853 Malinski v. New York.......................... 401 Mallinckrodt v. Commissioner.................. 871 Mancuso v. Ragen........................... 856,888 Manhattan Co. v. Kelby........................ 866 Marceau, Great Lakes Transit Corp, v.......... 872 Maretzo v. Walling............................ 244 Maritote v. United States................... 867 Market Street R. Co. v. Railroad Comm’n.... 548, 890 Marsh v. Nierstheimer......................... 883 Martine, Ex parte............................. 822 Martino v. Michigan Window Cleaning Co.........849 Martinson, Duncombe v........................ 829 May Department Stores Co. v. Labor Board........ 838 Mayo, House v.............................. 42,886 McAdory, C. I. O. v.......................... 832 TABLE OF CASES REPORTED. xvn Page McBride, Ex parte.............................831 McClendon, Ex parte...........................831 McConnell, Ex parte...................... 828,831 McCoy v. Pescor............................. 868 McKesson & Robbins, United States v...........293 McLean v. Texas...............................870 McMahan, Ex parte........................... 828 McMullen v. Squier........................... 842 Mechanical Ice Tray Co. v. General Motors Corp.... 844 Meighan, Finn v.............................. 834 Merrill v. Fahs.......................... 308,888 Metrik v. Fort Tryon Gardens..................866 Meurer Steel Barrel Co. v. Commissioner...... 860 Mexico v. Hoffman............................. 30 Meyer, Dolan v................................867 Meyers v. Ragen.............................. 869 Micamold Radio Corp., Condenser Corp, v....... 861 Michael, In the Matter of.................... 837 Michener v. Johnston......................... 874 Michigan, Woodson v.......................... 853 Michigan Window Cleaning Co., Martino v.......849 Miller, Ex parte.................. :..........825 Millman v. Ragen..............................842 Miner v. Illinois ex rel. Railway Employees. 840,886 Minnesota Mining & Mfg. Co. v. Coe........ 887, 889 Minntole, Ex parte............................831 Mississippi, Simmons v....................... 821 Mississippi Board of Health, Johnson v........822 Missouri, Golden v........................... 874 Mitchell v. United States.................... 887 Mitchell v. Washington State Bar Assn........ 845 Molloy & Co. v. Berkshire................... 886 Montgomery Ward & Co., United States v...... 858, 888 Moore v. Moore................................849 Moore, Moore v............................. 849 Morrill v. Waern Building Corp................871 Morris v. Ragen.............................. 856 637582°—46-2 XVIII TABLE OF CASES REPORTED. Page Morris Plan Industrial Bank v. Raphiel......... 879 Morton v. United States..........................875 Moser, Klein v................................. 879 Mosher v. Hunter................................888 Mosher v. Wayland.............................. 862 Moskovitz, Ex parte.............................. 886 Muscatine, Central States Electric Co. v......... 138 Muschany v. United States....................... 49 National Aluminate Corp. v. Permutit Co......... 864 National Distillers Products Corp., U. S. v.... 293 National Labor Relations Board. See Labor Board. National Memorial Park v. Commissioner......... 858 National War Labor Board, U. S. Gypsum Co. v.. 856, 890 Negro v. Boston & Maine Railroad............... 862 New Jersey, Byra v............................. 884 New York, Aronson v............................ 845 New York, Hammersmith v........................ 875 New York, Lesser v............................. 875 New York, Malinski v........................... 401 New York, Petersen v........................ 876, 891 New York City, Franklin v...................... 847 Nierstheimer, Carnahan v....................... 846 Nierstheimer, Evans v....................... 859, 889 Nierstheimer, Fitzpatrick v.................... 842 Nierstheimer, Gapinski v....................... 846 Nierstheimer, Haines v......................... 842 Nierstheimer, Illinois ex rei. Rensing v....... 825 Nierstheimer, Lyerla v......................... 846 Nierstheimer, Marsh v.......................... 883 Nierstheimer, O’Neill v........................ 885 Nierstheimer, Sires v.......................... 883 Nierstheimer, Van Dyke v....................... 846 North Carolina, Weinstein v.................... 849 Northwestern Bands of Shoshones v. United States................................... 335, 890 Nuveen, Okeechobee County v.................... 881 O’Brien, Kuczynski v............................888 TABLE OF CASES REPORTED. xix Page Ohio, Tompsett v................................ 869 Ohio ex rel. Foster v. Evatt.................... 878 Ohio Public Service Co. v. Labor Board.......... 857 Oil Workers Union v. Texoma Gas Co.............. 872 Okeechobee County v. Nuveen..................... 881 O’Keith v. Johnston............................. 873 Okin, Securities & Exchange Comm’n v............ 835 Olson, Hawk v................................... 839 Olson, Rice v................................... 786 Onan v. Labor Board............................. 843 O’Neil, Brooklyn Savings Bank v................. 697 O’Neill v. Nierstheimer......................... 885 Orangeburg v. Southern R. Co............ 860 Oriolo v. United States......................... 824 Otis & Co. v. Securities & Exchange Comm’n....... 887 Overholser, Wrobel v............................ 854 Owens-Illinois Glass Co. v. United States....... 570 Pacific Gas & Electric Co. v. Securities Comm’n.. 826, 890 Paddy v. United States.......................... 855 Pan American Airways, Wyman v................... 882 Panhandle Eastern Pipe Line Co. v. Comm’n........ 635 Park v. Group of Investors...................... 857 Pathfinder Petroleum Co. v. General Ins. Co...... 844 Pearce v. Florida.............................. 851 Pedersen, Fitzgerald Construction Co. v......... 720 Pennsylvania, Allison v......................... 849 Pennsylvania, Ford Motor Co. v.............. 827, 890 Pennsylvania, Quaker Oats Co. v............. 827, 890 Pennsylvania R. Co., Georgia v.............. 439,890 Peplowski, Ex parte......................... 830, 890 Permutit Co., National Aluminate Corp, v......... 864 Perry v. United States.......................... 855 Pescor, McCoy v................................. 868 Petersen v. New York........................ 876, 891 Petty v. United States.......................... 835 Pfeiffer Brewing Co. v. Bowles.................. 865 Phillips v. Ragen............................... 851 XX TABLE OF CASES REPORTED. Page Phillips, Inc. v. Walling......................490 Pierce v. United States....................... 873 Piskorz v. Illinois Supreme Court............. 883 Pitcairn, Herb v.............................. 117 Point Breeze Employees Assn. v. Labor Board.....870 Potomac Chemical Co. v. Chapman............... 881 Potts v. Potts................................ 868 Potts, Potts v................................ 868 Potts v. Rabb................................. 870 Povich v. Sanford............................. 854 Pratt-Hewit Oil Corp., Dollert v........... 853, 889 Precision Instrument Co. v. Automotive Co....... 806 President & Directors of Manhattan Co. v. Kelby... 866 Price v. Gurney....................... 100,825,886 Proctor v. United States...................... 862 Pullett v. Bennett............................ 851 Putnam v. Commissioner........................ 393 Putnam v. Federal Land Bank................ 826, 882 Quaker Oats Co. v. Pennsylvania............ 827, 890 Rabb, U. S. ex rel. Potts v................... 870 Ragen, Adkison v.............................. 884 Ragen, Baker v............................. 855, 863 Ragen, Bloomenthal v.......................... 863 Ragen, Brooks v............................... 876 Ragen, Cordts v............................... 846 Ragen, Crist v....K........................... 851 Ragen, Daulley v.............................. 884 Ragen, Fife v................................. 851 Ragen, Foxall v............................... 851 Ragen, Gallagher v............................ 868 Ragen, Hanley v............................... 851 Ragen, Hesley v............................... 842 Ragen, Johnson v............................. 859 Ragen, Kirsch v............................... 846 Ragen, Lutz v................................. 760 Ragen, Mancuso v........................... 856, 888 Ragen, Meyers v............................. 869 TABLE OF CASES REPORTED. xxi Page Ragen, Millman v.............................. 842 Ragen, Morris v............................... 856 Ragen, Phillips v............................ 851 Ragen, Resco v................................ 883 Ragen, Rooney v............................ 851 Ragen, Scott v................................ 856 Ragen, Watkins v............................ 863 Ragen, Wescott v............................. 842 Ragen, Westrup v............................ 863 Ragen, White v................................ 760 Ragen, Wright v.............................. 851 Railroad Commission, Market Street R. Co. v... 548, 890 Railway Employees, Miner v................. 840, 886 Raisin Proration Zone, Dickey v............. 869 Rambo v. United States........................ 848 Raphiel, Morris Plan Bank v................... 879 Reading Co., Barry v....................... 867, 891 Regal Knitwear Co. v. Labor Board............... 9 Regular Common Carriers Conference v. Hancock Lines...................................... 774 Rensing v. Nierstheimer......................... 825 Republic Aviation Corp. v. Labor Board.......... 793 Republic of Mexico v. Hoffman.................. 30 Resco v. Ragen................................. 883 Reynolds Tobacco Co. v. United States...... 836, 891 Riccia v. Welch................................ 854 Rice v. Olson.................................. 786 Richardson v. Richardson....................... 864 Richardson, Richardson v........................ 864 Richetsky, Ex parte............................. 828 R. J. Reynolds Tobacco Co. v. United States.... 836, 891 Roberts v. Commissioner....................... 841 Robertson, Andrews v.......................... 874 Robertson v. Chronister...................... 883 Robinson v. Deal............................. 85Ô Robinson v. United States................. 282, 880 Rockton & Rion Railroad v. Walling............ 880 XXII TABLE OF CASES REPORTED. Page Rogalski v. Jackson............................ 873 Roodenko v. United States................... 860, 891 Rooney v. Ragen................................ 851 Root Refining Co., Universal Oil Co. v......... 839 Rothensies, Fidelity-Philadelphia Co. v........ 108 Ruthven, Ex parte.............................. 830 Ryan v. Thompson............................... 821 Safety Harbor Sanatorium, Hay Foundation v...... 877 Safeway Stores v. Bowles....................... 847 St. John v. Stubblefield....................... 869 St. Louis-San Francisco R. Co., Benton v....... 843 Sampayo v. Bank of Nova Scotia.............. 859, 891 Sampayo v. United States.................... 859, 891 Sanford, Fitzgerald v.......................... 869 Sanford, Povich v.............................. 854 Sanford, Stumpf v.............................. 876 Santa Inez Co. v. United States................ 879 Scandrett, Illinois Commerce Comm’n v.......... 824 Schenley Distillers Corp., United States v....... 293 Schwab, Ex parte............................ 825, 891 Scott v. Ragen................................. 856 Seagram-Distillers Corp., United States v........ 293 Securities & Exchange Comm’n v. Long Island Co.... 837 Securities & Exchange Comm’n v. Okin........... 835 Securities & Exchange Comm’n, Otis & Co. v....... 887 Securities & Exchange Comm’n, Pacific Gas Co. v.. 826, 890 Segal Lock & Hardware Co. v. Trade Comm’n.... 885 Seminole Rock & Sand Co., Bowles v............. 835 Shoshone Indians v. United States........... 335, 890 Simmons v. Mississippi......................... 821 Sires v. Nierstheimer.......................... 883 Slack Bros. v. Commissioner................. 852, 889 Smith, Ex parte............................... 831 Smith, Commissioner v.............. 177, 695, 830, 889 Societe Internationale Forestiere v. United States.. 839 Southern R. Co., Orangeburg v.................. 860 TABLE OF CASES REPORTED. xxm Page Special Equipment Co. v. Coe................... 370 Speegle, United States v....................... 293 Speten v. Bowles............................... 877 Sprague, Illinois Commerce Comm’n v............ 824 Spurlock v. Steer.............................. 868 Squier, Batson v................................874 Squier, Graham v............................... 845 Squier, McMullen v............................. 842 Staley Mfg. Co., Trade Comm’n v................ 746 Stamm, Barthel v............................... 878 State Farm Mutual Ins. Co. v. Duel......... 154, 887 State National Bank v. Tittle.................. 881 Steer, Spurlock v............................. 868 Steer, White v................................. 833 Steinberg v. Graham............................ 823 Stephenson, Ex parte........................... 822 Stewart, Jones v............................... 845 Stockton v. Texas.............................. 829 Stone, Viator v................................ 880 Stubblefield, St. John v....................... 869 Stubbs v. United States........................ 835 Stumpf v. Sanford.............................. 876 Superior Coal Co. v. Commissioner.............. 864 Sutton, Ex parte............................... 822 Swygert, Kelly v............................... 830 Talbott v. California.......................... 845 Taylor v. Commissioner......................... 871 10 East 40th Street Building v. Callus......... 833 Tennessee Valley Authority, Jefferson Co. v... 871, 891 Texas, Akins v................................. 836 Texas, McLean v................................ 870 Texas, Stockton v.............................. 829 Texas Mexican R. Co., Thompson v............. 838 Texoma Natural Gas Co., Oil Workers Union v.....872 Thatcher v. Blacker............................ 848 Thatcher Manufacturing Co. v. United States..... 570 Thomas, Ex parte............................... 823 XXIV TABLE OF CASES REPORTED. Page Thomas J. Molloy & Co. v. Berkshire........... 886 Thompson v. Harris.......................... 845 Thompson, Keeton v............................ 838 Thompson, Ryan v.............................. 821 Thompson v. Texas Mexican R. Co............... 838 Thompson v. United States..................... 861 Thompson, Wisconsin ex rel. Bartelt v......... 828 Tilghman v. United States..................... 870 Timken-Detroit Axle Co., Alma Motor Co. v...... 832 Tittle, State National Bank v................. 881 Tompsett v. Ohio.............................. 869 Transit Employees v. Madden................... 825 Tree v. United States......................... 852 Trust Under the Will of Bingham v. Comm’r...... 835 Tway, Anderson v.............................. 861 Two Acres of Land, United States v........ 833, 884 Union of Transit Employees v. Madden.......... 825 United Automobile Workers v. Wisconsin Board... 884 United States, Acme Poultry Corp, v........... 860 United States, Adirondack Transit Lines v......... 824 United States, American Tobacco Co. v......... 836 United States, Andrews v...................... 49 United States v. Anglin & Stevenson........... 844 United States, Barr v.......................... 83 United States v. Beach........................ 193 United States, Benitez Sampayo v.......... 859,891 United States, Berger v....................... 848 United States v. Beuttas...................... 768 United States, Bollenbach v................... 837 United States, Bowles v...................... 830 United States v. Brand Investment Co.......... 850 United States, Brooks v....................... 878 United States v. Brown Forman Corp............ 293 United States, California Alkali Assn, v...... 834 United States, Canadian Aviator v............. 215 United States, Catlin v....................... 229 United States, Chatwin v...................... 835 TABLE OF CASES REPORTED. xxv Page United States, Christensen v..................... 835 United States, Cleveland v....................... 835 United States, Cohen v........................... 885 United States, Cole Co. v........................ 887 United States v. Commodore Park.................. 386 United States, Compagna v........................ 867 United States, Corning Glass Works v............. 570 United States, Darger v.......................... 835 United States, Davenport v....................... 881 United States, De Beers Mines v.................. 839 United States, Dockstader v...................... 835 United States, Drake v........................... 862 United States, Drummond v........................ 316 United States v. Frankfort Distilleries.......... 293 United States, Fraser v.......................... 842 United States, Frederick v....................... 861 United States, Giese v........................... 885 United States, Globe Indemnity Co. v..............852 United States, Goldstone v....................... 833 United States, Hall v.............................871 United States v. Hancock Truck Lines............. 774 United States, Hartford-Empire Co. v......... 570, 888 United States, Hazel-Atlas Glass Co. v........... 570 United States v. Hiram Walker, Inc............... 293 United States, Howe v....................... 841,886 United States, Jack Cole Co. v................... 822 United States, Jessop v.......................... 835 United States, Johnson v......................... 852 United States, Kaufman v867 United States, Kelly v....................... 855, 888 United States, King v............................ 854 United States, Korematsu v....................... 885 United States, Kramer v.......................... 878 United States, Liggett & Myers Co. v............. 836 United States, Loew v............................ 840 United States, Lynch Corp, v..................... 570 United States, Maritote v........................ 867 XXVI TABLE OF CASES REPORTED. Page United States v. McKesson & Robbins................293 United States, Mitchell v......................... 887 United States v. Montgomery Ward & Co........ 858, 888 United States, Morton v........................... 875 United States, Muschany v.......................... 49 United States v. National Distillers Corp......... 293 United States, Northwestern Bands of Indians v. 335,890 United States, Oriolo v........................... 824 United States, Owens-Illinois Glass Co. v.......... 570 United States, Paddy v............................ 855 United States, Perry v............................ 855 United States, Petty v............................ 835 United States, Pierce v........................... 873 United States, Proctor v.......................... 862 United States, Rambo v............................ 848 United States, Reynolds Tobacco Co. v........ 836, 891 United States, Robinson v.................... 282, 889 United States, Roodenko v.................... 860, 891 United States, Sampayo v...................... 859,891 United States, Santa Inez Co. v................... 879 United States v. Schenley Distillers Corp......... 293 United States v. Seagram Distillers Corp.......... 293 United States, Shoshone Indians v............ 335, 890 United States, Societe Internationale v........... 839 United States v. Speegle.......................... 293 United States, Stubbs v........................... 835 United States, Thatcher Mfg. Co. v................ 570 United States, Thompson v........................ 861 United States, Tilghman v......................... 870 United States, Tree v.................. L. .^..... 852 United States v. Two Acres of Land........... 833, 884 United States, U. S. Alkali Export Assn, v........ 834 United States, Velazquez v........................ 889 United States, Vinson v........................... 830 United States, Waldon v847, 889 United States, Watkins v.......................... 826 United States, Williams v......................... 876 TABLE OF CASES REPORTED. xxvii Page United States v. Willow River Power Co......... 499 United States, Womble v........................ 830 United States, Zitting v....................... 835 U. S. Alkali Export Assn. v. United States......834 U. S. ex rel. Potts v. Rabb.................... 870 U. S. ex rel. Rogalski v. Jackson.............. 873 United States Gypsum Co. v. War Labor Board.. 856,890 Universal Oil Products Co., Ex parte....... 826, 887 Universal Oil Products Co. v. Root Rfg. Co..... 839 Utah, Barlow v............................. 829,891 Van Dyke v. Nierstheimer....................... 846 Van Orden, Ex parte............................ 828 Velazquez v. United States..................... 889 Viator v. Stone................................ 880 Vinson v. United States........................ 830 Wabash R. Co., Herb v.......................... 117 Waern Building Corp., Morrill v................ 871 Waldon v. United States.................... 847,889 Wall v. Brim................................... 857 Wallace Corp. v. Labor Board................... 885 Walling, Gemsco v.............................. 244 Walling, Guiseppi v............................ 244 Walling v. Harnischfeger Corp.................. 837 Walling, Maretzo v............................. 244 Walling, Phillips, Inc. v...................... 490 Walling, Rockton & Rion Railroad v............. 880 Walling v. Youngerman-Reynolds Co.............. 837 Walt Disney Productions v. Labor Board......... 877 War Labor Board, U. S. Gypsum Co. v........ 856,890 Washington Chocolate Co., King County v........ 880 Washington State Bar Assn., Mitchell v......... 845 Watkins v. Ragen............................... 863 Watkins v. United States....................... 826 Watson, Hill v................................. 832 Wayland, Mosher v.............................. 862 Webre Steib Co. v. Commissioner................ 164 Weinstein v. North Carolina.................... 849 XXVIII TABLE OF CASES REPORTED. Page Welch, Riccia v............................... 854 Wemyss, Commissioner v........................ 303 Wendlinger v. Hardware Mutual Co.............. 882 Wescott v. Ragen.............................. 842 Western Electric Co. v. Labor Board............870 Western Loan & Building Co., Lack v............877 Westinghouse Electric Co., Bulldog Co. v... 857, 888 Westrup v. Ragen.............................. 863 W. F. & John Barnes Co. v. Harvester Co........850 Wheeler, Commissioner v....................... 542 White v. Georgia.............................. 864 White v. Ragen................................ 760 White v. Steer................................ 833 Whited v. Illinois............................ 842 Whittle, Jones v.............................. 829 Wilhoit, Ex parte............................. 826 Williams, Mackreth v...................... 855,889 Williams v. United States..................... 876 Willow River Power Co., United States v....... 499 Wilson v. District Court...................... 886 Wilson v. Hinman....................... 822,886, 889 Wisconsin Employment Board, United Auto. Workers v........................................... 884 Wisconsin ex rel. Bartelt v. Thompson......... 828 Woldson, Boundary County v.................... 843 Womble v. United States....................... 830 Woodson v. Michigan........................... 853 Wragg v. Federal Land Bank.................... 872 Wright, Du Pont Co. v......................... 873 Wright v. Ragen............................... 851 Wrobel v. Overholser.......................... 854 Wyman v. Pan American Airways..................882 Young v. Higbee Co............................ 204 Youngerman-Reynolds Hardwood Co., Walling v... 837 Zeitz, Maggio v............................... 841 Zitting v. United States.......................835 TABLE OF CASES Cited in Opinions Page Abernathy, Ex parte, 320 U. S. 219 49 A. C. Conn Co. v. Little Suamico Lumber Co., 74 Wis. 652 513 Adams v. New York, 192 U. S. 585 422 Adams v. Russell, 229 U. S. 353 126 Adams Express Co. v. Ohio, 165 U. S. 194 190 Addison v. Holly Hill Fruit Products, 322 U. S. 607 13 Adkins v. Children’s Hospital, 261 U. S. 525 713 Alabama v. Arizona, 291 U. S. 286 445 Alaska Packers Assn. v. Industrial Accident Comm’n, 294 U. S. 532 160 Alemite Mfg. Corp. v. Staff, 42 F. 2d 832 13 Allesandro v. Smith Co., 136 F. 2d 75 493 Altoona Theatres v. Tri- Ergon Corp., 294 U. S. 477 377 Aluminum Colors, Inc. v. Empire Plating Co., 5 F. Supp. 687 12 American Insurance Co. v. Canter, 1 Pet. 511 682 American National Bank v. Crews, 191 Okla. 53 200 American Steel & Wire Co. v. Speed, 192 U. S. 500 666, 681, 683 American Telephone & Telegraph Co. v. United States, 299 U. S. 232 608 American United Insurance Co. v. Avon Park, 311 U. S. 138 214 Ames v. Kansas, 111 U. S. 449 464 Page Amick v. Mortgage Security Corp., 30 F. 2d 359 210 Anderson v. United States, 318 U.S. 350 411,423,430 Angers v. Sabatinelli, 235 Wis. 422 163 Angers v. Sabatinelli, 239 Wis. 364 163 Ann Arbor R. Co. v. United States, 281 U. S. 658 479 Annette, The, [1919] P. 105 37 Anniston Mfg. Co. v. Davis, 301U. S. 337 166,173,175 Apex Hosiery Co. v. Leader, 310 U. S. 469 298 Apfelbacher v. State, 167 Wis. 233 513 Arantzazu Mendi, The [1939] A. C. 256 37 Arizona v. California, 283 U. S. 423 392, 393 Arizona v. California, 298 U. S. 558 445,487 Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370 151, 456,459 Arkansas Gas Co. v. Department of Public Utilities, 304 U. S. 61 620 Arkansas Louisiana Gas Co. v. Texarkana, 96 F. 2d 179 587 Armour & Co. v. Alton R. Co., 312 U. S. 195 483 Armour & Co. v. Wantock, 323 U. S. 126 249 Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U. S. 315 258 Arnold Grocery Co. v. Shackelford, 140 Ga. 585 6 Arrow Stevedore Co. v. Pills- bury, 88 F. 2d 446 712 XXIX XXX TABLE OF CASES CITED. Page Arsenal Building Corp. v. Greenberg, 324 U. S. 697 724 Ashcraft v. Tennessee, 322 U. S. 143 161, 404,405,411,412,431 Assiniboine Indian Tribe v. United States, 77 Ct. Cis. 347 349 Athanasaw v. United States, 227 U. S. 326 194 Atlantic Co. v. Broughton, 146 F. 2d 480 708 Atlantic Coast Line R. Co. v. Powe, 283 U. S. 401 48 Atlas Bank v. Nahant Bank, 23 Pick. (Mass.) 480 209 Attualita, The, 238 F. 909 38 Avery v. Alabama, 308 U. S. 444 764 Avery v. Commissioner, 292 U. S. 210 396,398 Bailey v. Alabama, 219 U. S. 219 169 Bailey v. Glover, 21 Wall. 342 6 Baker v. Druesedow, 263 U. S.137 191 Baldwin v. Seelig, 294 U. S. 511 666,669,688 Baltimore National Bank v. State Tax Comm’n, 296 U. S. 538 185 Baltimore & Ohio R. Co. v. Pitcairn Coal Co., 215 U. S. 481 452 Baltimore & Ohio S. W. R. Co. v. Voigt, 176 U. S. 498 67 Balzac v. Porto Rico, 258 U. S. 298 672, 673, 674, 684, 686 Banks v. Ogden, 2 Wall. 57 5 Barker v. Harvey, 181 U. S. 481 352,353 Barnstable, The, 181 U. S. 464 224 Barringer & Co. v. United States, 319 U. S. 1 479 Barrington v. Missouri, 205 U. S. 483 412 Bates v. Clark, 95 U. S. 204 340 Bates v. United States, 323 U. S. 15 196,380 Page Beattie v. Gedney, 99 N. J. Eq. 207 396 Beaumont, S. L. & W. R. Co. v. United States, 282 U. S. 74 479 Beaver Cotton Mills, In re, 275 F. 498 107 Beaverton, The, 273 F. 539 38 Bedford v. United States, 192 U. S. 217 510 Beecher v. Wetherby, 95 U. S. 517 339 Bein v. Heath, 6 How. 228 814 Belcher v. Louisville & Nash- ville R. Co., 384 Ill. 281 134 Bell’s Gap R. Co. v. Pennsyl- vania, 134 U. S. 232 190,191 Berea College v. Kentucky, 211U. S.45 125 Berizzi Bros. Co. v. The Pesaro, 271 U. S. 562 35, 38,39,40 Bethlehem Steel Co. v, Labor Board, 120 F. 2d 641 11 Betts v. Brady, 316 U. S. 455 46, 764, 768 Birbalas v. Cuneo Printing Industries, 140 F. 2d 826 708 Bird v. United States, 187 U. S. 118 258 Blair v. Commissioner, 300 U. S.5 162 Board of Commissioners v. United States, 308 U. S. 343 715 Boeing Airplane Co. v. Labor Board, 140 F. 2d 423 796 Boese v. King, 108 U. S. 379 210 Bond v. St. Louis-San Fran- cisco R. Co., 315 Mo. 987 170 Bongiorno v. Ragen, 54 F. Supp. 973 762 Booth Fisheries Corp. v. Case, 182 Wash. 392 670 Boske v. Comingore, 177 U. S. 459 94, 97, 547 Bowden v. Johnson, 107 U. S. 251 203 Bowen v. Delaware, L. & W. R. Co., 153 N. Y. 476 6 Bowen v. Johnston, 306 U. S. 19 791,792 Bowling v. United States, 233 U. S. 528 317 TABLE OF CASES CITED. XXXI Page Boyd v. United States, 116 U. S. 616 422, 423 Brewster v. Gage, 280 U. S. 327 547 Brooklyn City R. Co. v. New York, 199 U. S. 48 190 Browder v. United States, 312 U. S. 335 90, 99 Brown v. Houston, 114 U. S. 622 666 Brown v. Maryland, 12 Wheat. 419 654, 655,656,657, 664, 665, 666, 667, 668,669, 671,672,679, 683, 685, 686,687, 688,689, 690. Brown v. Mississippi, 297 U. S. 278 414, 431, 438 Buchalter v. New York, 319 U. S. 427 439 Buckley v. Oceanic S. S. Co., 5 F. 2d 545 708 Burke v. Wells, 208 U. S. 14 657,688 Burnet v. Harmel, 287 U. S. 103 395 Burnet v. Northern Trust Co., 283 U. S. 782 116 Burt v. Union Central Life Ins. Co., 187 U. S. 362 67 Butler Bros. v. McColgan, 315 U. S. 501 827 Butterworth v. Hoe, 112 U. S. 50 384 Buttz v. Northern Pacific R. Co., 119 U. S. 55 339 Cady v. Georgia, 323 U. S. 676 187 California v. Southern Pa- cific Co., 157 U. S. 229 463 California Drive-In Restau- rant Assn. v. Clark, 22 Cal. 2d 287 267 Callaghan v. Bailey, 293 N. Y. 396 7 Campania, The, 203 F. 855 229 Campbell v. Haverhill, 155 U. S. 610 9 Campbell v. United States, 107 U. S. 407 94 Canadian Aviator, Ltd. v. United States, 142 F. 2d 709 216 Page Canadian Aviator, Ltd. v. United States, 52 F. Supp. 211 216 Canadian River Gas Co. v. Federal Power Commission, 324 U. S. 581 626, 628,631,639,649 Capital City Dairy v. Ohio, 183 U. S. 238 186 Carbice Corp. v. American Patents Corp., 283 U. S. 27 375 Carlo Poma, The, 259 F. 369 38 Carlson v. Curtiss, 234 U. S. 103 703 Carlton v. Bokee, 17 Wall. 463 383 Carpenter v. Shaw, 280 U. S. 363 362 Carter v. General American Life Ins. Co., 323 U. S. 676 185 Carter v. Virginia, 321 U. S. 131 299,300 Case v. Los Angeles Lumber Co., 308 U. S. 106 210 Case Co. v. Labor Board, 321 U. S.332 15 Caspian, The, 14 F. 2d 1013 228 Cedar Rapids Gas Co. v. Cedar Rapids, 223 U. S. 655 150, 601, 624 Cedar Rapids Gas Co. v. Cedar Rapids, 144 Iowa 426 150 Cement Manufacturing Assn. v. United States, 268 U. S. 588 735,737 Central Illinois Public Serv- ice Co. v. Industrial Comm’n, 293 Ill. 62 123 Central Kentucky Natural Gas Co. v. Railroad Comm’n, 290 U. S. 264 144 Central Transfer Co. v. Terminal R. Assn., 288 U. S. 469 453,454,455,482,485 Chambers v. Baltimore & Ohio R. Co., 207 U. S. 142 120 Chambers v. Florida, 309 U. S. 227 404, 405,428,431,438 Chappell v. United States, 160 U. S. 499 234 XXXII TABLE OF CASES CITED. Page Chappell v. United States, 81 F. 764 234 Charlesworth v. Hipsh, Inc., 84 F. 2d 834 7 Chase v. Calvird, 324 Mo. 429 792 Chase v. State, 93 Fla. 963 792 Chase National Bank v. Norwalk, 291 U. S. 431 13 Cherokee Nation v. United States, 270 U. S. 476 715 Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585 191 Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339 605 Chicago Great Western R. Co. v. Kendall, 266 U. S. 94 191 Chicago, R. I. & P. R. Co. v. Perry, 259 U. S. 548 186 Chicago, St. L. & N. 0. R. Co. v. Pullman Car Co., 139 U. S. 79 67 China, The, 7 Wall. 53 224 Choctaw Nation v. United States, 318 U. S. 423 353 Cincinnati Packet Co. v. Bay, 200 U. S. 179 186 Cincinnati Soap Co. v. United States, 301 U. S. 308 674, 677,683 Citizens National Bank v. Durr, 257 U. S. 99 185 City Bank Farmers Trust Co. v. McGowan, 323 U. S. 594 78 City Bank Farmers Trust Co. v. McGowan, 142 F. 2d 599 78 City Bank Farmers Trust Co. v. McGowan, 43 F. Supp. 790 78 City of. See name of city. Clark’s Ferry Bridge Co. v. Public Service Comm’n, 291 U.S. 227 569 Coastwise Transportation Corp. v. United States, 43 F. 2d 401 225,229 Cochran v. Kansas, 316 U. S. 255 792 Cochrane v. Deener, 94 U. S. 780 744 Page Coe v. Errol, 116 U. S. 517 685 Cohens v. Virginia, 6 Wheat. 264 618 Cole v. Violette, 319 U. S. 581 551 Coleman v. Miller, 307 U. S. 433 446 Colgate v. United States, 280 U. S. 43 337 Collector v. Richards, 23 Wall. 246 93 Collins v. Caldwell, 29 F. 2d 329 203 Collins v. Müler, 252 U. S. 364 233 Colorado v. Kansas, 320 U. S. 383 448 Colorado Interstate Gas Co. v. Federal Power Comm’n, 324 U. S. 581 626, 628,631,639 Colorado-Wyoming Gas Co. v. Federal Power Comm’n, 324 U. S. 626 639 Commercial Credit Co. v. O’Brien, 323 U. S. 665 185 Commissioner v. Bain Peanut Co., 134 F. 2d 853 165,170 Commissioner v. Brandegee, 123 F. 2d 58 21 Commissioner v. Bristol, 121 F. 2d 129 307,313 Commissioner v. Cohen, 121 F. 2d 348 395 Commissioner v. Field, 324 U. S. 113 112 Commissioner v. Gardner, 127 F. 2d 929 21 Commissioner v. Glos, 123 F. 2d 548 26 Commissioner v. Guaranty Trust Co., 144 F. 2d 756 395 Commissioner v. Heininger, 320 U.S. 467 307,334 Commissioner v. Phillips’ Estate, 126 F. 2d 851 21 Commissioner v. Prouty, 115 F. 2d 331 313 Commissioner v. Sansome, 60 F. 2d 931 f 546 Commissioner v. Scottish American Investment Co., 323 U.S. 119 307,334 TABLE OF CASES CITED. XXXIII Page Commissioner v. Taylor, 122 F. 2d 714 20, 21 Commissioner v. Wells, 132 F. 2d 405 21 Commissioner v. Wemyss, 324 U. S.303 309, 310 Compania Espanola v. The Navemar, 303 U. S. 68 32, 34, 36 Compania Naviera Vascongado v. The Cristina, [1938] A. C. 485 40 Conant, In re, 5 Blatch. 54 5 Concordia Fire Ins. Co. v. Illinois, 292 U. S. 535 193 Conn Co. v. Little Suamico Lumber Co., 74 Wis. 652 513 Connecticut General Life Ins. Co. v. Johnson, 296 U. S. 535 186 Connecticut Railway Co. v. Palmer, 305 U. S. 493 714 Connolly’s Estate v. Commissioner, 135 F. 2d 64 178 Consolidated Edison Co. v. Labor Board, 305 U. S. 197 12 Consolidated Rock Co. v. DuBois, 312 U. S. 510 214 Consolidated Turnpike v. Norfolk &O.V.R. Co., 228 U. S. 596 186 Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S.405 379, 381 Continental Securities Co. v. Belmont, 206 N. Y. 7 105 Cook v. Pennsylvania, 97 U. S. 566 657 Coos Bay Indian Tribe v. United States, 87 Ct. Cis. 143 339 Corkran Oil Co. v. Amaudet, 199 U. S. 182 185 Corn-Planter Patent, 23 Wall. 181 376 Com Products Refining Co. v. Federal Trade Comm’n, 324 U. S. 726 747,755 Coulter v. Louisville & Nash- ville R. Co., 196 U. S. 599 190,191 Cramer v. Arthur, 102 U. S. 612 89,94 637582°—46----3 Page Cramer v. United States, 261 U. S. 219 352 Crane v. Morris, 6 Pet. 598 169 Creswill v. Knights of Pythias, 225 U. S. 246 703 Crichton v. United States, 56 F. Supp. 876 804 Cristina, The [1938] A. C. 485 37,41 Crites, Inc. v. Prudential Co., 322 U. S. 408 818 Crocker v. United States, 240 U. S. 74 64,72 Cross, Ex parte, 20 Neb. 417 790 Crow Nation v. United States, 81 Ct. Cis. 238 349 Crown Die & Tool Co. v. Nye Tool Works, 261 U. S. 24 379 Cubbins v. Mississippi River Comm’n, 241 U. S. 351 510 Cumberland Coal Co. v. Board of Revision, 284 U. S. 23 191,193 Cuno Engineering Corp. v. Automatic Devices Corp., 314 U. S. 84 328 Dade County v. United States, 142 F. 2d 230 232 Dana v. Securities & Ex- change Comm’n, 125 F. 2d 542 210 Danforth v. United States, 308 U. S. 271 55,78 Davenport v. Dows, 18 Wall. 626 104,105 David v. Atlantic Co., 69 Ga. App. 643 708 Davies Warehouse Co. v. Bowles, 321 U. S. 144 9 Davis, The, 10 Wall. 15 37 Davis v. Beason, 133 U. S. 333 829 Davis v. Hardie, 108 Fla. 133 792 Davis v. Willey, 273 F. 397 6,7 Day v. Lewis, 376 Ill. 509 766 Dayton-Goose Creek R. Co. v. United States, 263 U. S. 456 478 Dayton Power Co. v. Public Utilities Comm’n, 292 U. S. 290 620 XXXIV TABLE OF CASES CITED. Page Deaver v. State, 24 Ala. App. 377 792 Deering v. Winona Har- vester Works, 155 U. S. 286 377 De Lima v. Bidwell, 182 U. S. 1 673, 681,684,694 Department of Banking v. Pink, 317 U. S. 264 551 De Saussure v. Gaillard, 127 U. S. 216 126 Dieckmann v. United States, 88 F. 2d 902 233,236 Director General of Rail- roads v. Viscose Co., 254 U.S. 498 . . 479 Disston v. Commissioner, 144 F. 2d 115 20,29 Divina Pastora, The, 4 Wheat. 52 34 Dize v. Maddrix, 144 F. 2d 584 702 Dobson v. Commissioner, 320 U. S. 489 4,58,173,307,334 Dobson v. United States, 27 F. 2d 807 226 Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373 298 Dodge v. Board of Educa- tion, 302 U. S. 74 828 Dodge v. Woolsey, 18 How. 331 104,105 Donahue v. Susquehanna Collieries Co., 138 F. 2d 3 708 Donnelly v. United States, 228 U. S. 243 791 Dooley v. United States, 182 U. S. 222 673, 681,682 Dooley v. United States, 183 U. S. 151 670, 673, 674, 681, 694 Dora, The [1919] P. 105 37 Dorchy v. Kansas, 264 U. S. 286 161 Dorr v. United States, 195 U. S.138 674,684 Douglas v. Jeannette, 319 U. S.157 821 Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377 120 Page Dow Chemical Co. v. Williams Bros. Well Corp., 81 F. 2d 495 322, 323 Dowdell v. United States, 221 U. S. 325 674 Downes v. Bidwell, 182 U. S. 244 670, 673, 674, 682, 684, 685 Duel v. State Farm Auto. Ins. Co., 240 Wis. 161 157 Dunbar v. Myers, 94 U. S. 187 330 Dunean v. Thompson, 315 U. S.1 712, 714 Duplex Co. v. Deering, 254 U. S. 443 475 Dushane v. Beall, 161 U. S. 513 6 Earle v. Carson, 188 U. S. 42 203 East Ohio Gas Co. v. Tax Comm’n,283U.S.465 533,539 Eastern-Central Assn. v. United States, 321 U. S. 194 803 Eastern Transportation Co. v. United States, 272 U. S. 675 220, 222, 223, 226, 227, 229 Eastman Kodak Co. v. Southern Photo Co., 273 U. S. 359 471 Educational Films Corp. v. Ward, 282 U. S. 379 827 Eggers v. National Radio Co., 208 Cal. 308 105 Electric Cable Co. v. Brook- lyn Edison Co., 292 U. S. 69 327 Engebretson v. West, 133 Neb. 846 ■ 6 Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U. S. 157 125 E. Regensburg & Sons v. Helvering, 130 F. 2d 507 165,171 Erie R. Co. v. Purdy, 185 U. S. 148 e 185 Ervin v. Quintanilla, 99 F. 2d 935 32, 38 Estate of. See name of estate. TABLE OF CASES CITED. XXXV Page Ethyl Gasoline Corp. v. United States, 309 U. S. 436 266, 296, 298, 375, 379, 384 Exchange, The, 7 Cranch 116 34 Ex parte. See name of party. Faber v. United States, 221 U.S. 649 673 Fashion Originators’ Guild v. Federal Trade Comm’n, 312 U. S. 457 298 Fassett, In re, 142 U. S. 479 229 Favorita, The, 43 F. 2d 569 229 Fawcus Machine Co. v. United States, 282 U. S. 375 547 Federal Communications Comm’n v. Sanders Radio Station, 309 U. S. 470 212 Federal Land Bank v. Bis- marck Co., 314 U. S. 95 263 Federal Land Bank v. Priddy, 295 U. S. 229 223 Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S.591 144, 146,152,566, 568, 600,603, 605,608,609,617, 621,649, 650. Federal Power Comm’n v. Natural Gas Pipeline Co., 315 U. S. 575 139, 566,595,605 Federal Trade Comm’n v. Algoma Lumber Co., 291 U. S. 67 739,758,760 Federal Trade Comm’n v. Bunte Bros., 312 U. S. 349 532 Federal Trade Comm’n v. Pacific States Paper Assn., 273 U. S. 52 739,758,760 Federal Trade Comm’n v. Staley Mfg. Co., 324 U. S. 746 735,741 Felix v. Scharnweber, 125 U. S. 54 186 Ferguson v. Dickson, 300 F. 961 312,315 Ferguson v. District of Co- lumbia, 270 U. S.633 44 Fidelity, The, Fed. Cas. No. 4,758 37 Page Fidelity-Philadelphia Trust Co. v. Rothensies, 324 U.S. 108 114,115 Field’s Estate v. Commissioner, 144 F. 2d 62 110 First National Bank v. Fler-shem, 290 U. S. 504 150 First National Bank v. Hartford, 273 U. S. 548 659 Fisher v. Commissioner, 132 F. 2d 383 21,28 Fishermen’s Cooperative Assn. v. State, 198 Wash. 413 670 Fiske v. Kansas, 274 U. S. 380 659 Fitzwater v. National Bank, 62 Kan. 163 105 Fleming v. Page, 9 How. 603 682 Fleming v. Post, 146 F. 2d 441 708 Fleming v. Warshawsky & Co., 123 F. 2d 622 708 Fletcher v. Porter, 20 F. 2d 23 203 Flint v. Stone Tracy Co., 220 U. S. 107 827 Florida v. Mellon, 273 U. S. 12 445,446,474 Florida v. United States, 282 U. S. 194 532,634 Flournoy v. Wiener, 321 U. S. 253 187 Foley v. Ragen, 143 F. 2d 774 762 Foley v. Ragen, 52 F. Supp. 265 762 Forbes v. United States, 268 F. 273 234 Ford v. Ford Mfg. Co., 222 Ill. App. 76 396 Ford v. Snook, 205 App. Div. 194 396 Ford Motor Co. v. Beauchamp, 308 U. S. 331 827 Ford & Son v. Little Falls Fibre Co., 280 U. S. 369 513 Fort Berthold Indians v. United States, 71 Ct. Cis. 308 349,366 Fort Smith & Western R. Co. v. Mills, 253 U. S. 206 709 XXXVI TABLE OF CASES CITED. Page Fourteen Diamond Rings v. United States, 183 U. S. 176 673,681,694 Fox Film Corp. v. Doyal, 286 U. S.123 379 Fox Film Corp. v. Muller, 296 U. S. 207 125 Fox River Paper Co. v. Railroad Comm’n, 274 U. S. 651 513 French v. Commissioner, 138 F. 2d 254 21 Frost & Co. v. Coeur D’Alene Mines Corp., 312 U. S. 38 66 Fry & Friedsam v. United States, 12 Cust. App. 486 89 Fullerton v. Texas, 196 U. S. 192 185,186 Garrett v. Moore-McCormack Co., 317 U. S. 239 712, 714,715 General American Tank Car Corp. v. Day, 270 U. S. 367 190 Genesee Chief, The, 12 How. 443 40 Georgia v. Chattanooga, 264 U. S. 472 464,465,470 Georgia v. Evans, 316 U. S. 159 447,475 Georgia v. Tennessee Copper Co., 206 U. S. 230 447,450 Gibson v. United States, 166 U. S. 269 391,510 Gifford v. Helms, 98 U. S. 248 6 Gill v. Lynch, 367 Ill. 203 123 Gilman v. Philadelphia, 3 Wall. 713 391 Goltra v. Weeks, 271 U. S. 536 772 Gonzales v. Williams, 192 U. S. 1 673 Gouled v. United States, 255 U. S. 298 422 Graham, Ex parte, 3 Wash* 456 468 Grays Harbor Co. v. Coats- Fordney Co., 243 U. S. 251 233 Great Northern R. Co. v. Merchants Elevator Co., 259 U. S. 285 452 Page Great Northern R. Co. v. Weeks, 297 U. S. 135 191 Greenleaf-Johnson Lumber Co. v. Garrison, 237 U. S. 251 392 Greer, Mills & Co. v. Stoller, 77 F. 1 467 Gregory v. Helvering, 293 U. S. 465 334 Griffiths v. Commissioner, 308 U. S. 355 334 Groel v. United Electric Co., 70 N. J. Eq. 616 105 Groesbeck v. Duluth, S. S. & A. R. Co., 250 U. S. 607 590 Grunert v. Spalding, 104 Wis. 193 162 Guess v. Montague, 140 F. 2d 500 702, 708 Guiseppi v. Walling, 144 F. 2d 608 245 Gulf, C. & S. F. R. Co. v. Dennis, 224 U. S. 503 161 Gulf Fisheries Co. v. Dar-rouzet, 17 F. 2d 374 670 Gulf Fisheries Co. v. Mac- Inerney, 276 U. S. 124 657, 666, 670, 688 Gulf & Ship Island R. Co. v. Hewes, 183 U. S. 66 186 Hadden v. Merritt, 115 U. S. 25 94 Hallowell v. United States, 221 U. S. 317 791 Hamilton-Brown Shoe Co. v. Wolf Brothers, 240 U. S. 251 48 Hansen Packing Co. v. Armour & Co., 16 F. Supp. 784 467 Harding Highway, The, 53 F. 2d 938 225 Harkness v. Hyde, 98 U. S. 476 468 Harriman v. Northern Securities Co., 197 U. S. 244 571 Harrington v. Department of Labor & Industry, 252 Mich. 87 705 Harris v. United States, 227 U. S. 340 194 TABLE OF CASES CITED. XXXVII Page Hartford Electric Light Co. v. Federal Power Comm’n, 131 F. 2d 953 528,529, 533 Hartford-Empire Co. v. United States, 323 U. S. 386 379 Hassett v. Welch, 303 U. S. 303 116 Hawaii v. Mankichi, 190 U. S. 197 674, 685 Hawes v. Oakland, 104 U. S. 450 104 Hawk, Ex parte, 321 U. 8. 114 46, 48, 49, 764, 765, 767 Hayman v. Galveston, 273 U. S. 414 822 Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238 815, 818 Hazelton v. Sheckells, 202 U. S. 71 64 Heaton-Peninsular Button- Fastener Co. v. Eureka Specialty Co., 77 F. 288 381 Hebert v. Louisiana, 272 U. S. 312 414 Hecht Co. v. Bowles, 321 U. S. 321 266 Heff, Matter of, 197 U. S. 488 791 Helvering v. Blair, 121 F. 2d 945 21 Helvering v. Enright, 312 U. S. 636 396,397,398 Helvering v. Griffiths, 318 U. S. 371 547,735,736 Helvering v. Hallock, 309 U. S. 106 110, 111, 113,116 Helvering v. Hutchings, 312 U. S. 393 27 Helvering v. Insular Sugar Refining Corp., 141 F. 2d 713 165 Helvering v. McGlue’s Estate, 119 F. 2d 167 395,400 Helvering v. Rankin, 295 U. S. 123 805 Helvering v. Safe Deposit & Trust Co., 316 U. S. 56 213 Helvering v. St. Louis Union Trust Co., 296 U. S. 39 110 Helvering v. San Joaquin Fruit Co., 297 U. S. 496 181 Page Helvering v. Winmill, 305 U. S. 79 547 Henderson v. Glens Falls Indemnity Co., 134 F. 2d 320 712 Henderson v. Usher, 125 Fla. 709 309,315 Hendrick v. Maryland, 235 U. S. 610 190 Henkel v. Cincinnati, 177 U. S. 170 186 Henry v. United States, 46 F. 2d 640 234 Herbring v. Lee, 280 U. S. Ill 187 Higgins v. Smith, 308 U. S. 473 334 Hill v. Murphy, 212 Mass. 1 105 Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229 13 Hite v. Luray, 175 Va. 218 390 Hoe v. Knap, 27 F. 204 380, 384 Hoehn v. Crews, 144 F. 2d 665 202 Hogan v. Commissioner, 141 F. 2d 92 2 Hoke v. United States, 227 U. S. 308 194 Holiday v. Johnston, 313 U.S. 342 44,45,792 Holzheimer v. Lit Brothers, 262 Pa. 150 170 Home for Incurables v. New York, 187 U. S. 155 186 Home Insurance Co. v. Dick, 281 U. S.397 186 Home Insurance Co. v. New York, 134 U. S. 594 190,191 Honesdale Co. v. Mont- gomery, 56 W. Va. 397 209 Honeyman v. Hanan, 300 U. S. 14 186 Hoopeston Canning Co. v. Cullen, 318 U. S. 313 157,158 Hopkins v. Oxley Stave Co., 83 F. 912 463 House v. Mayo, 322 U. S. 710 47 House v. Mayo, 324 U. S. 42 763,764,765,789 House v. Mayo, 122 Fla. 23 47 House v. State, 127 Fla. 145 47 House v. State, 130 Fla. 400 47 XXXVIII TABLE OF CASES CITED. Page Howard Hall Co. v. United States, 315 U. S. 495 822 Howe v. United States, 142 F. 2d 310 21 Hughes v. United States, 230 U. S. 24 510 Hull, Ex parte, 312 U. S. 546 762 Hume v. United States, 132 U. S. 406 72 Humes v. United States, 276 U. S. 487 311 Hurd v. Albert, 214 Cal. 15 162 Hurtado v. California, 110 U. S. 516 414,415 Hurwitz v. North, 271 U. S. 40 822 Hutchings-S e a 1 y National Bank v. Commissioner, 141 F. 2d 422 21 Hutchinson v. Barry, Inc., 44 F. Supp. 829 708 Huus v. New York & P. R. S. S. Co., 182 U. S. 392 673 Hysler v. Florida, 315 U. S. 411 431 Illinois Natural Gas Co. v. Central Illinois Co., 314 U. S. 498 621, 629, 630 Indian Territory Oil Co. v. Board of Equalization, 287 U. S. 573 185 Industrial Addition Assn. v. Commissioner, 323 U. S. 310 638, 639 Industrial Association of San Francisco v. United States, 268 U. S. 64 297 Inland Steel Co. v. United States, 306 U. S. 153 145,148 In re. See name of party. Insular Tax Cases, 182 U. S. 222,244; 183 U. S. 151 673, 677 International Brotherhood of Teamsters v. Keystone Freight Lines, 123 F. 2d 326 11 International Steel & Iron Co. v. National Surety Co., 297 U. S.657 127 Interstate Busses Corp. v. Blodgett, 276 U. S. 245 190 Page Interstate Busses Corp. v. Holyoke Street R. Co., 273 U. S. 45 190 Interstate Commerce Comm’n v. Goodrich Transit Co., 224 U. S. 194 599, 620, 622 Interstate Commerce Comm’n, v. Oregon-Washington R. Co., 288 U. S. 14 212 Interstate Commerce Comm’n v. United States, 289 U. S. 385 488 In the Matter of. See name of party. Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239 193 Iowa Railway & Light Co. v. Jones Auto Co., 182 Iowa 982 150 Irvine v. Spaeth, 314 U. S. 575 185 Isaacs v. Neece, 75 F. 2d 566 6 Jackson v. United States, 230 U. S. 1 510 J. C. Hart, The, 43 F. 2d 566 229 Jenkins v. International Bank, 106 U. S. 571 6 Jersey Central Power Co. v. Federal Power Comm’n, 319 U. S. 61 523, 540,541 Jett Bros. Co. v. Carrollton, 252 U. S. 1 185 J. I. Case Co. v. Labor Board, 321 U. S. 332 15 John v. Paullin, 231 U. S. 583 120 John G. Stevens, The, 170 U.S. 113 224,228 Johnson v. Cook, 304 U. S. 387 446,447,464,470,473 Johnson v. M’Intosh, 8 Wheat. 543 339 Johnson v. Risk, 137 U. S. 300 I26 Johnson v. Yellow Cab Co., 321 U. S. 383 815 Johnson Lighterage Co. No. 24, The, 231 F. 365 38 TABLE OF CASES CITED. XXXIX Page Jones v. Bowles, 322 U. S. 707 446,473,474 Jones v. Meehan, 175 U. S. 1 353,360 Jones v. Pettibone, 2 Wis. 308 503 Jones ex rel. Louisiana v. Bowles, 322 U. S. 707 446,473 Jupiter, The, [1924] P. 236 37 Jupiter No. 2, The, [1925] P. 69 37 Jupiter No. 3, The, [1927] P. 122 37 Kaegi v. Industrial Commission, 232 Wis. 16 163 Kansas v. Colorado, 206 U. S. 46 448 Kansas City, M. & B. R. Co. v. Stiles, 242 U. S.Ill 827 Kansas City Southern R. Co. v. Albers Commission Co., 223 U. S. 573 659 Katingo Hadjipatera, The, 119 F. 2d 1022 33 Katingo Hadjipatera, The, 40 F. Supp. 546 38 Kaukauna Water Power Co. v. Green Bay Canal Co., 142 U. S. 254 503 Kaukauna Water Power Co. v. Green Bay Canal Co., 75 Wis. 385 513 Kendall v. Winsor, 21 How. 322 382 Kennedy v. Waugh, 23 Wis. 468 162 Keogh v. Chicago & N. W. R. Co., 260 U. S. 156 452, 457,468,482,485 Keyes v. United States, 119 F. 2d 444 232 Keystone Driller Co. v. Gen- eral Excavator Co., 290 U. S. 240 815,819 Keystone Realty Holding Co., In re, 117 F. 2d 1003 210,213 Kihlberg v. United States, 97 U. S. 398 772 Kinney v. Anglim, 43 F. Supp. 431 20 Kirschbaum Co. v. Walling, T .316 U. S. 517 703 Kitto v. State, 98 Neb. 164 790 Page Klein v. Board of Supervisors, 282 U. S. 19 191 Klein v. United States, 283 U. S. 231 110 Klinger v. Missouri, 13 Wall. 257 126 Knotts v. Nollen, 206 Iowa 261 150 Kronprinzessin Cecilie, The, 192 F. 27 229 Kwik Set, Inc. v. Welch Grape Juice Co., 86 F. 2d 945 329 Labor Board v. American Potash & Chemical Corp., 113 F. 2d 232 704 Labor Board v. American Potash & Chemical Corp., 118 F. 2d 630 704 Labor Board v. Bachelder, 125 F. 2d 387 11 Labor Board v. Blackstone Mfg. Co., 123 F. 2d 633 10,11 Labor Board v. Brezner Tan- ning Co., 141 F. 2d 62 10 Labor Board v. Cleveland- Cliffs Iron Co., 133 F. 2d 295 11 Labor Board v. Express Publishing Co., 312 U. S. 426 13,17,486 Labor Board v. Falk Corp., 308 U. S. 453 13 Labor Board v. Feinberg Hosiery Mill, 134 F. 2d 620 11 Labor Board v. Gluek Brew- ing Co., 144 F. 2d 847 11 Labor Board v. Hearst Pub- lications, 322 U. S.111 537,800 Labor Board v. Jones & Laughlin, 301 U. S. 1 799 Labor Board v. Landis Tool Co., 145 F. 2d 152 10 Labor Board v. Link-Belt Co., 311 U. S. 584 13 Labor Board v. Newport News Shipbuilding Co., 308 U. S. 241 12 Labor Board v. Regal Knitwear Co., 140 F. 2d 746 804 Labor Board v. Southern Bell Tel. Co., 319 U. S. 50 739 XL TABLE OF CASES CITED. Page Labor Board v. Stackpole Carbon Co., 128 F. 2d 188 704 Labor Board v. Stone, 125 F. 2d 752 11 Labor Board v. Virginia Power Co., 314 U. S. 469 800 Labor Board v. Waterman S. S. Co., 309 U. S. 206 13, 799 Labor Board v. Weirton Steel Co., 135 F. 2d 494 10 Labor Board v. Williamson- Dickie Mfg. Co., 130 F. 2d 260 796 Lake Monroe, The, 250 U. S. 246 219,222 Largent v. Texas, 318 U. S. 418 768 Lawrence v. State Tax Comm’n, 286 U. S. 276 191 Leathers v. Blessing, 105 U. S. 626 228 Lee v. United States, 58 F. 2d 879 232 Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U. S. 301 377 Leitch Manufacturing Co. v. Barber Co., 302 U. S. 458 375 Lennon, In re, 166 U. S. 548 11 Le Tourneau Co. v. Labor Board, 143 F. 2d 67 796 Levering & Garrigues Co. v. Morrin, 289 U. S. 103 297 License Cases, 5 How. 504 666, 688 Liggett Co. v. Lee, 288 U. S. 517 494 Lindemann v. Rusk, 125 Wis. 210 162 L’Invincible, 1 Wheat. 238 34 Lisenba v. California, 314 U. S.219 186, 404,405,431,439 Livingston v. Moore, 7 Pet. 469 416 Ljubica Matkovic, The, 49 F. Supp. 936 38 Local 167 v. United States, 291 U. S. 293 297,571,576 Loeber v. Schroeder, 149 U. S. 580 185 Loewe v. Lawlor, 208 U. S. 274 298 Page Logan v. United States, 58 F. 2d 697 318 Lone Star Gas Co. v. Texas, 304 U. S. 224 601,625 Lone Wolf v. Hitchcock, 187 U. S. 553 339 Long v. The Tampico, 16 F. 491 38 Loughran v. Loughran, 292 U. S.216 814 Louisiana v. Bowles, 322 U. S. 707 446,473,474 Louisiana v. Cummins, 314 U. S. 577 463 Louisiana v. Cummins, 314 U. S. 580 464 Louisiana v. Texas, 176 U. S. 1 464,473 Louisville & Nashville R. Co. v. Layton, 243 U. S. 617 132 Low v. Austin, 13 Wall. 29 657, 666 Luckenbach S. S. Co. v. United States, 272 U. S. 533 176 Luke, The, 19 F. 2d 923 229 Luxton v. North River Bridge Co., 147 U. S. 337 233,234 Lyeth v. Hoey, 305 U. S. 188 213,396 Lynch v. New York, 293 U. S. 52 126, 127 Lyndhurst, The, 92 F. 681 229 Lyons v. Oklahoma, 322 U. S. 596 404, 407, 428, 429, 433, 437 Mabie v. Matteson, 17 Wis. 1 513 Maddrix v. Dize, 7 Wage Hour Rep. 313 702 Mallon v. Tonn, 163 Wis. 366 162 Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123 186 Maple Flooring Assn. v. United States, 268 U. S. 563 735 Mapleton v. Iowa Public Service Co., 209 Iowa 400 150 Market Street R. Co. v. Railroad Commission, 324 U. S. 548 800 TABLE OF CASES CITED. XLI Page Marlin v. Lewallen, 276 U. S. 58 353 Marsh v. Whitmore, 21 Wall. 178 72 Marvin v. Trout, 199 U. S. 212 186 Mason v. Routzahn, 275 U. S. 175 398 Massachusetts v. Mellon, 262 U. S. 447 445, 446, 474 Massachusetts v. Missouri, 308 U. S. 1 464, 465, 466, 470, 475 Matter of. See name of party. Matthews v. Rodgers, 284 U. S. 521 475 Maxwell v. Dow, 176 U. S. 581 415 May v. Heiner, 281 U. S. 238 113, 116 May v. New Orleans, 178 U. S. 496 657,666, 670,688 McCaughn v. Carver, 19 F. 2d 126 312, 315 McClain v. Ortmayer, 141 U. S. 419 330 McClaine v. Rankin, 197 U. S. 154 9 McCormick v. Burnet, 283 U. S. 784 116 McCullough v. Campbells- port, 123 Wis. 334 511 McDonald v. Apple River Power Co., 164 Wis. 450 513 McDonald v. Dewey, 202 U. S. 510 203 McDowell v. Gould, 166 Ga. 670 792 McGlennan v. Margowski, 90 Ind. 150 792 McGoldrick v. Compagnie Generale, 309 U. S. 430 160 McGoldrick v. Gulf Oil Corp., 309 U. S. 414 657, 666 McKnett v. St. Louis & S. F. R. Co., 292 U. S. 230 123 McLean Trucking Co. v. United States, 321 U. S. 67 456 McLeod v. Threlkeld, 319 U. S. 491 725 McMullen v. Hoffman, 174 U. S. 639 67 Page McNabb v. United States, 318 U. S. 332 411, 422 McPherson Bros. Co. v. Superior Court, 274 U. S. 726 233 Meikle v. Drain, 69 F. 2d 290 6 Meinhard v. Salmon, 249 N. Y. 458 213 Memphis Gas Co. v. Beeler, 315 U. S. 649 185 Merchants’ National Bank v. Richmond, 256 U. S. 635 703 Mercoid Corp. v. Mid-Con- tinent Investment Co., 320 U. S. 661 376,377,382,815 Merrill v. Fahs, 51 F. Supp. 120 314 Merrill-Ruckgaber Co. v. United States, 241 U. S. 387 772 Mexican Petroleum Corp. v. South Portland, 121 Me. 128 688 Micek v. Wamka, 165 Wis. 97 163 Michigan Central R. Co. v. Powers, 201 U. S. 245 190 Michoud v. Girod, 4 How. 503 72 Midland Steel Products Co. v. Labor Board, 113 F. 2d 800 796 Midland Valley R. Co. v. Barkley, 276 U. S. 482 479 Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U. S. 356 704,705 Miles Medical Co. v. Park & Sons Co., 220 U. S. 373 298 Miller v. Board of County Comm’rs, 290 U. S. 586 185 Minnesota v. National Tea Co., 309 U. S. 551 126 Minnesota v. Northern Se- curities Co., 184 U. S. 199 463 Minnesota v. United States, 305 U. S. 382 176 Minnesota Rate Cases, 230 U. S. 352 589 Minnesota Tea Co. v. Hel- vering, 302 U. S. 609 334 XLII TABLE OF CASES CITED. Page Missouri v. Illinois, 180 U.S. 208 448,450 Missouri v. Illinois, 200 U. S. 496 448,463 Missouri v. Kansas Gas Co., 265 U. S.298 621 Missouri v. Public Service Comm’n, 273 U. S. 126 161 Missouri ex rel. Southwestern Bell Tel. Co. v. Public Service Comm’n, 262 U. S. 276 605 Mitchel v. United States, 9 Pet. 711 359 Mitchell v. Louisville & Nashville R. Co., 379 Ill. 522 118,129 Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35 805 Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1 120 Monongahela Navigation Co. v. United States, 148 U. S. 312 513 Mooney v. Holohan, 294 U. S. 103 431,764 Morrison v. California, 291 U. S. 82 170 Mortensen v. United States, 322 U. S.369 194,824 Morton Salt Co. v. Suppiger Co., 314 U. S. 488 384,815 Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502 375 Muir, Ex parte, 254 U. S. 522 34,36 Munn v. Illinois, 94 U. S. 113 589 Munter v. Weil Corset Co., 261 U. S. 276 468 Murdock v. Memphis, 20 Wall. 590 125 Murrell, The, 200 F. 826 228 Muschany v. United States, 324 U. S. 49 710 Myers v. Bethlehem Corp., 303 U. S. 41 475, 477 Nahmeh v. United States, 267 U. S. 122 223 Nairn v. McCarthy, 120 F. 2d 910 7 Page National Bank v. Case, 99 U. S. 628 203 National Labor Relations Board. See Labor Board. National Tea Co. v. State, 205 Minn. 443 127 National Tea Co. v. State, 208 Minn. 607 127 Natural Gas Co. v. Slattery, 302 U. S. 300 477, 620 Natural Gas Pipeline Co. v. Federal Power Comm’n, 141 F. 2d 27 144 Nebraska Children’s Home Society v. State, 57 Neb. 765 792 Neirbo Co. v. Bethlehem Corp., 308 U. S. 165 639 Newark Natural Gas Co. v. Newark, 242 U. S. 405 601,624 New England Divisions Case, 261 U. S. 184 478 New Hampshire v. Louisiana, 108 U. S. 76 473 New Jersey v. New York City, 296 U. S. 259 15 New York, Ex parte, 256 U. S. 503 34 New York v. Barker, 179 U. S. 279 191 New York v. New Jersey, 256 U. S. 296 448 New York Central Securities Corp. v. United States, 287 U. S. 12 456 New York ex rei. Whitman v. Wilson, 318 U. S. 688 48,764 New York, N. H. & H. R. Co. v. Interstate Com- merce Comm’n, 200 U. S. 361 486 Nichols v. United States, 7 Wah. 122 176 Nichols v. United States, 64 Ct. Cis. 241 . 397 Nickey v. Mississippi, 292 U. S. 393 186 Norris v. Alabama, 294 U. S. 587 659 North v. Ringling, 149 Fla. 739 309 North Dakota v. Chicago & N. W. R. Co., 257 U. S. 485 452,454,464,470,487 TABLE OF CASES CITED. XLIII Page North Dakota v. Minnesota, 263 U. S. 365 448 Northern Pacific R. Co. v. Solum, 247 U. S. 477 479 Northern Pacific R. Co. v. United States, 227 U. S. 355 353 Northwestern Bands of Shoshone Indians v. United States, 95 Ct. Cis. 642 338,340 Northwestern Electric Co. v. Federal Power Comm’n, 321 U. S. 119 533 Northwestern Electric Co. v. Federal Power Comm’n, 125 F. 2d 882 533 Northwestern Mutual Life Ins. Co. v. Wisconsin, 247 U. S.132 827 Norwegian Nitrogen Co. v. United States, 288 U. S. 294 800 Nutter v. Andrews, 246 Mass. 224 396 Oakland v. Pacific Coast Lumber Co., 172 Cal. 332 551 Oakland v. United States, 124 F. 2d 959 232 Ocampo v. United States, 234 U. S. 91 674 Ohio Bell Tel. Co. v. Public Utilities Comm’n, 301 U. S. 292 559,800 Oklahoma v. Atchison, T. & S. F. R. Co., 220 U. S. 277 446, 451,473 Oklahoma v. Atkinson Co., 313 U.S.508 392 Oklahoma v. Cook, 304 U. S. 387 446, 447,464,470,473 Oklahoma v. Gulf, C. & S. F.R. Co., 220 U.S. 290 473 Old Colony Trust Co. v. Commissioner, 279 U. S. 716 181 Olmstead v. United States, 277 U. S. 438 422 O’Neal v. United States, 11 F. 2d 869 226 O’Neil v. Brooklyn Savings Bank, 293 N. Y. 666 701 Page O’Neil v. Brooklyn Savings Bank, 267 App. Div. 317 701 O’Neil v. Brooklyn Savings Bank, 180 Misc. 542 701,714 Opp Cotton Mills v. Administrator, 312 U. S.126 256,275 Ornstein v. Chesapeake & Ohio R. Co., 284 U. S. 572 233 Osborn v. Ozlin, 310 U. S. 53 157 Osceola, The, 189 U. S. 158 225 Overnight Motor Co. v. Mis- sel, 316 U. S. 572 707,715,718 Overstreet v. North Shore Corp., 318 U. S. 125 723,724 Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493 160 Pacific Employers Ins. Co. v. Pillsbury, 130 F. 2d 21 712 Pacific Mail S. S. Co. v. Lucas, 258 U. S. 266 712 Page v. Phelps, 108 Conn. 572 170 Pagel v. MacLean, 283 U. S. 266 161 Paine Lumber Co. v. Neal, 244 U. S. 459 475 Palko v. Connecticut, 302 U. S.319 414 Palmer v. Bender, 287 U. S. 551 395 Palmer v. Commissioner, 302 U. S. 63 181,696 Palmer v. Massachusetts, 308 U. S. 79 532 Paramount Publix Corp. v. Tri-Ergon Corp., 294 U. S. 464 327 Parker v. Motor Boat Sales, 314 U. S. 244 735 Patapsco Guano Co. v. North Carolina, 171 U. S. 345 669 Patterson v. Alabama, 294 U. S. 600 126,161 Pearson v. Yewdall, 95 U. S. 294 416 Peck v. Jenness, 7 How. 612 209 Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 725 XLIV TABLE OF CASES CITED. Page Pedersen v. Fitzgerald Construction Co., 318 U. S. 740 723 Pedersen v. Fitzgerald Construction Co., 288 N. Y. 687 722 Pedersen v. Fitzgerald Construction Co., 293 N. Y. 126 723 Pedersen v. Fitzgerald Construction Co., 262 App. Div. 665 722 Pedersen v. Fitzgerald Construction Co., 266 App. Div. 1032 723 Pedersen v. Fitzgerald Construction Co., 173 Misc. 188 722 Pennock v. Dialogue, 2 Pet. 1 382 Pennoyer v. Neff, 95 U. S. 714 239 Pennsylvania v. Quicksilver Mining Co., 10 Wall. 553 463 Pennsylvania v. West Vir- ginia, 262 U. S. 553 449 Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421 392 Pennsylvania Gas Co. v. Public Service Comm’n, 252 U. S. 23 625 People v. Adams, 176 N. Y. 351 422 People v. Daly, 212 N. Y. 183 790 People v. Defore, 242 N. Y. 13 422 People v. Fisher, 249 N. Y. 419 412 People v. Jung Hing, 212 N. Y. 393 409 People v. Lytton, 257 N. Y. 310 409 People v. Malinski, 292 N.Y. 360 418 People v. McAnally, 221 Iff. 66 767 People v. McGrath, 202 N. Y. 445 436 People v. Mummiani, 258 N. Y. 394 418 People v. Siman, 284 Ill. 28 767 Page People v. Snyder, 246 N. Y. 491 412 People v. Superior Court, 234 IU. 186 767, 792 People ex rel. Day v. Lewis, 376 Ill. 509 766 People ex rel. Swolley v. Ragen, 390 IU. 106 766 Peoria & Pekin Union R. Co. v. United States, 263 U. S. 528 639 Pepper v. Litton, 308 U. S. 295 214 Perry v. Huffman Automo- büe Co., 104 Neb. 211 704 Peru, Ex parte, 318 U. S. 578 34, 35, 36 Pesaro, The, 255 U. S. 216 34 Pesaro, The, 277 F. 473 39 Phelan v. O’Brien, 13 F. 656 6 Phelps v. Board of Educa- tion, 300 U. S. 319 827,828 Phelps Dodge Corp. v. Labor Board, 313 U. S. 177 13, 263, 798 Philadelphia, W. & B. R. Co. v. Dubois, 12 Wall. 47 377 Philadelphia, W. & B. R. Co. v. Philadelphia Towboat Co., 23 How. 209 229 Phillips Co. v. Grand Trunk W. R. Co., 236 U. S. 662 704 Piquet v. Swan, 5 Mason 35 468 Pitts v. Drummond, 189 Okla. 574 317 Pittsburgh, C., C. & St. L. R. Co. v. Backus, 154 U. S. 421 190 Pittsburgh & Southern Coal Co. v. Louisiana, 156 U. S. 590 669 Plaquemines Fruit Co. v. Henderson, 170 U. S. 511 464 Plumley v. United States, 226 U. S. 545 772 Pomeroy, In re, 51 Mont. 119 162 Porto, Alexandre, The, [1920] P. 30 ' 37 Post v. CampbeU, 110 Wis. 378 162 Powell v. Alabama, 287 U.S. 45 46,764 TABLE OF CASES CITED. XLV Page Procter & Gamble Mfg. Co. v. United States, 19 C. C. P. A. (Customs) 415 684 Providence Tool Co. v. Norris, 2 Wall. 45 64,72 Prudence Corp. v. Geist, 316 U. S. 89 715 Public Service Co. v. Lebanon, 305 U. S. 558 233,234 Public Utilities Comm’n v. Attleboro Steam & Electric Co., 273 U. S. 83 524, 526,621 Public Utilities Comm’n v. Landon, 249 U. S. 236 625 Public Utilities Comm’n v. United Fuel Gas Co., 317 U.S. 456 144,151,152 Public Utility Comm’rs v. Ynchausti & Co., 251 U. S. 401 673,674 Puerto Rico v. Shell Co., 302 U. S. 253 90,99 Puerto Rico R. Co. v. United States, 131 F. 2d 491 232,236 Purcell v. New York Central R. Co., 296 U. S. 545 186 Putzier v. Richardson, 323 U. S. 677 185 Pyle v. Kansas, 317 U. S. 213 431,764 Quickstep, The, 9 Wall. 665 228 Railroad Commission v. Pacific Gas & Electric Co., 302 U. S. 388 601,625 Railroad Commission v. Southern Pacific Co., 264 U. S. 331 478 Ralli v. Troop, 157 U. S. 386 224 Rawlings v. Ray, 312 U. S. 96 9 Rawnsley v. Trenton Mutual Life Ins. Co., 9 N. J. Eq. 95 209 Reeves v. Williamson, 317 U. S. 593 185 Regal Knitwear Co. v. Labor Board, 324 U. S. 9 804 Regensburg & Sons v. Hel- vering, 130 F. 2d 507 165,171 Reinecke v. Northern Trust Co., 278 U. S. 339 111 Rescue, The, 74 F. 847 228 Page Reynolds v. United States, 98 U. S. 145 829 Rice v. Olson, 324 U. S. 786 764 Richmond v. Irons, 121 U. S. 27 204 Richter & Co. v. Light, 97 Conn. 364 396 Rigopoulos v. Kervan, 140 F. 2d 506 703, 708 Roberts v. Commissioner, 143 F. 2d 657 21 Robertson v. Railroad Labor Board, 268 U. S. 619 467 Robinette v. Helvering, 318 U. S. 184 306 Robinson v. Baltimore & Ohio R. Co., 222 U. S. 506 479 Robinson v. Johnston, 316 U. S. 649 283 Robinson v. Johnston, 118 F. 2d 998 283 Robinson v. Johnston, 130 F. 2d 202 283 Robinson v. Johnston, 50 F. Supp. 774 283 Roche v. Evaporated Milk Assn., 319 U. S. 21 236 Rocky Mountain Bell Tel. Co. v. Montana Federation of Labor, 156 F. 809 463 Ross, Estate of, 189 Cal. 317 551 Rowell v. Lindsay, 113 U. S. 97 376 Rowley v. Chicago & Northwestern R. Co., 293 U. S. 102 191 Royal Indemnity Co. v. United States, 313 U. S. 289 715 Ryerson v. United States, 312 U. S. 405 20, 21 Sage v. Hampe, 235 U. S. 99 710 St. Louis, I. M. & S. R. Co. v. McWhirter, 229 U. S. 265 131 St. Louis, I. M. & S. R. Co. v. Southern Express Co., 108 U. S. 24 233 St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281 120 Sally McDevitt, The, v. The J. W. Paxon, 24 F. 302 228 XLVI TABLE OF CASES CITED. Page Saltonstall v. Saltonstall, 276 U. S. 260 186 Sampsell v. Imperial Paper Corp., 313 U. S. 215 210 Sanford v. Commissioner, 308 U. S. 39 311, 313 Schechter Poultry Corp. v. United States, 295 U. S. 495 254 Schoenthal v. Irving Trust Co., 287 U. S. 92 475 Schumacher v. Cornell, 96 U. S. 549 376 Scott v. Donald, 165 U. S. 107 13 Scott v. Doughty, 124 Va. 358 390 Scranton v. Wheeler, 179 U. S. 141 390, 391, 393, 510 Seaboard Air Line R. Co. v. Duvall, 225 U. S. 477 186 Seaboard Air Line R. Co. v. Watson, 287 U. S. 86 187 Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80 536 Securities & Exchange Comm’n v. United States Realty Co., 310 U. S. 434 214 Semler v. Dental Examiners, 294 U. S. 608 822 Seneca Coal & Coke Co. v. Lofton, 136 F. 2d 359 708 Seney v. Swift & Co., 260 U. S. 146 48 Sensenbrenner v. Commissioner, 134 F. 2d 883 20,21 Seufert Bros. Co. v. United States, 249 U. S. 194 353 Seymour v. Osborne, 11 Wall. 516 382 Sheets v. Commissioner, 95 F. 2d 727 313 Shoshone Tribe v. United States, 299 U. S. 476 338,350 Shoshone Indians v. United States, 85 Ct. Cis. 331 350 Shuster v. Helvering, 121 F. 2d 643 181 Silverman v. Christian, 123 N. J. Eq. 506 7 Silverthorne Lumber Co. v. United States, 251 U. S. 385 422 Page Sioux City Bridge v. Dakota County, 260 U. S.441 190,191 620 Church St. Corp., In re, 299 U. S. 24 44 Skipper v. Schumacher, 124 Fla. 384 47 Smith v. Commissioner, 131 F. 2d 254 20 Smith v. Eau Claire, 78 Wis. 457 511 Smith v. Hall, 301 U. S. 216 330 Smith v. Hines, 10 Fla. 258 309 Smith v. Illinois Bell Tel. Co., 282 U. S.133 589, 620, 622 Smith v. McCullough, 270 U. S. 456 710, 714 Smith v. Nichols, 21 Wall. 112 330 Smith v. O’Grady, 312 U. S. 329 787,792 Smith v. Shaughnessy, 318 U. S. 176 306 Smith v. Taecker, 133 Cal. App. 351 396 Smith v. Washington, 20 How. 135 511 Snowden v. Hughes, 321 U. S. 1 191 Snyder v. Massachusetts, 291 U. S. 97 431 Sonneborn Bros. v. Cureton, 262 U. S. 506 666, 669, 688 South Carolina v. Georgia, 93 U. S. 4 392,393 Southern Gas Corp. v. Alabama, 301 U. S. 148 533, 539 Southern Pacific Co. v. Bo-gert, 250 U. S. 483 212 Southern Pacific Co. v. Dar-nell-Taenzer Lumber Co., 245 U. S. 531 145 Southern R. Co. v. Postal Telegraph Co., 179 U. S. 641 233 Southern R. Co. v. Watts, 260 U. S. 519 191 Southport Petroleum Co. v. Labor Board, 315 U. S. 100 12, 14, 17 Southwestern Bell Tel. Co. v. Public Service Comm’n, 262 U. S. 276 605 Sprague v. Ticonic Bank, 307 U. S. 161 209 TABLE OF CASES CITED. XLVII Page Spring City Co. v. Commissioner, 292 U. S. 182 399 Sprott v. United States, 20 Wall. 459 67 Standard Fashion Co. v. Ma-grane-Houston Co., 258 U. S. 346 738 Standard Oil Co. v. United States, 221 U. S. 1 467, 571,575 Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20 375 State v. Campbell, 53 Minn. 354 790 State Board v. Young’s Mar- ket Co., 299 U. S. 59 299 State ex rel. Chase v. Cal- vird, 324 Mo. 429 792 State ex rel. Davis v. Hardie, 108 Fla. 133 792 State ex rel. House v. Mayo, 122 Fla. 23 47 State Tax Comm’n v. Van Cott, 306'U. S. 511 126 Steele v. Drummond, 275 U. S. 199 64 Steffler v. United States, 319 U. S. 38 44,45 Stevens v. Hauser, 39 N. Y. 302 5 Stockton v. Baltimore & N. Y. R. Co., 32 F. 9 391 Stuart v. Hayden, 169 U. S.1 203 Stuart v. State, 36 Ariz. 28 792 Stubblefield v. United States, 6 F. Supp. 440 312 Stubblefield v. United States, 79 Ct. Cis. 268 315 Sugar Institute v. United States, 297 U. S. 553 571,575 Sullivan v. Sao Paulo, 122 F. 2d 355 38 Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350 191 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 258 Sweeney v. United States, 109 U. S.618 772 Swift & Co. v. United States, 196 U. S. 375 486,571,575 Swift & Co. v. United States, 276 U. S. 311 486 Page Swinson v. Chicago, St. P., M. & O. R. Co., 294 U. S. 529 132 Swolley v. Ragen, 390 Ill. 106 766 Taft v. Commissioner, 304 U. S. 351 312 Tar Products Corp. v. Commissioner, 130 F. 2d 866 395, 396,398 Teamsters v. Keystone Freight Line, 123 F. 2d 326 11 Temple Emery, The, 122 F. 180 228 Tenner v. Dullea, 314 U. S. 692 768 Tennessee Coal Co. v. Muscoda Local, 321 U. S. 590 706, 714 Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U. S. 500 453, 455,482,485,490 Terry v. Little, 101 U. S. 216 214 Texas v. Florida, 306 U. S. 398 475,477 Texas v. Interstate Commerce Comm’n, 258 U. S. 158 452,454,487 Texas Hotel Corp. v. Waco Development Co., 87 F. 2d 395 211 Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 452,479,490 Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33 132 Thomas Jefferson, The, 10 Wheat. 428 40 Thompson’s Estate, In re, 179 Okla. 240 320 Thornton v. Mississippi, 323 U. S. 668 185 Tiger v. Western Investment Co., 221 U. S. 286 791 Tipton, Ex parte, 83 Cal. App. 742 792 Toland v. Sprague, 12 Pet. 300 468 Tollison, Ex parte, 73 Okla. Cr. 38 792 XL Vili TABLE OF CASES CITED. Page Tomkins v. Missouri, 323 U. S. 485 46,764,789 Tot v. United States, 319 U. S. 463 805 Town of Williams v. Iowa Falls Electric Co., 185 Iowa 493 150, 153 Toy Toy v. Hopkins, 212 U. S.542 791 Transportation Co. v. Chicago, 99 U. S. 635 511 Travis v. Ray, 41 F. Supp. 6 708 Très Ritos Ranch Co. v. Ab- bott, 44 N. Mex. 556 688 Trist v. Child, 21 Wall. 441 64 Truax v. Corrigan, 257 U.S. 312 659 Tulee v. Washington, 315 U. S.681 353 Turner Mfg. Co. v. Gmeinder, 183 Wis. 664 163 Twin City Pipe Line Co. v. Harding Glass Co., 283 U. S. 353 66 Twining v. New Jersey, 211 U. S. 78 414, 415, 431 Union Bridge Co. v. United States, 204 U. S. 364 392 United Fuel Gas Co. v. Railroad Comm’n, 278 U. S. 300 620 United Gas Co. v. Texas, 303 U. S.123 703 United Gilpin Corp. v. Wilmore, 100 Colo. 453 12 United Leather Workers v. Herkert & Meisel Trunk Co., 265 U. S. 457 297 United Shoe Machinery Corp. v. United States, 258 U. S. 451 375,463 United States v. Abilene & Southern R. Co., 265 U. S. 274 800 United States v. American Tobacco Co., 221 U. S. 106 571,575 United States v. Anderson, 269 U. S. 422 399 United States v. Appalachian Electric Power Co., 311 U. S.377 392, 509 Page United States v. Baltimore & Ohio R. Co., 293 U. S. 454 634 United States v. Bassett, 21 How. 412 353 United States v. Bausch & Lomb Co., 321 U. S. 707 297, 571,575 United States v. Bethlehem Steel Corp., 315 U. S. 289 58,78 United States v. Blair, 321 U. S. 730 772 United States v. Board of Commissioners, 145 F. 2d 329 350 United States v. Borden Co., 308 U. S. 188 456,457 United States v. Brig Malek Adhel, 2 How. 210 224 United States v. Bush & Co., 310 U. S. 371 94 United States v. California Canneries, 279 U. S. 553 639 United States v. Callahan Walker Co., 317 U. S. 56 772 United States v. Candelaria, 271 U. S. 432 318 United States v. Candelaria, 16 F. 2d 559 318 United States v. Carey, 143 F. 2d 445 235,236 United States v. Carolina Freight Carriers Corp., 315 U. S. 475 595,634,822 United States v. Carter, 217 U. S. 286 72 United States v. Carver, 260 U. S. 482 # 48 United States v. Celestine, 215 U. S. 278 791 United States v. Certain Land, 46 F. Supp. 921 51,55 United States v. Chandler- Dunbar Co., 229 U. S. 53 390, 392,508 United States v. Chavez, 290 U. S. 357 791 United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499 461,595,634 United States v. Chicago, M., St. P. & P. R. Co., 312 U. S. 592 390,507,509 TABLE OF CASES CITED. XLIX Page United States v. Choctaw Nation, 179 U. S. 494 353 United States v. Commodore Park, 143 F. 2d 720 387 United States v. Cornell Steamboat Co., 202 U. S. 184 34 United States v. Creek Nation, 295 U. S. 103 338 United States v. Cress, 243 U. S. 316 502,504,514, 515 United States v. Dakota- Montana Oil Co., 288 U. S. 459 3,547 United States v. Darby, 312 U. S. 100 706 United States v. Florian, 312 U. S. 656 233 United States v. Gleason, 175 U. S. 588 772 United States v. Grace Evangelical Church, 132 F. 2d 460 51 United States v. Great Lakes Towing Co., 1 Fed. Antitrust Cas. 253 12 United States v. Hellard, 322 U. S. 363 317 United States v. Hutcheson, 312 U. S. 219 297 United States v. Jefferson Electric Mfg. Co., 291U. S. 386 170 United States v. John Mc- Shain, Inc., 308 U. S. 512 772 United States v. Joint Traffic Assn., 171 U. S. 505 456, 458,490 United States v. Ju Toy, 198 U. S. 253 792 United States v. Kagama, 118 U. S. 375 790 United States v. Kirby Lum- ber Co., 284 U. S. 1 547 United States v. Lee, 106 U. S. 196 34,35 United States v. Marin, 136 F. 2d 388 235,236 United States v. Mason & Hanger Co., 260 U. S. 323 772 United States v. Masonite Corp., 316 U. S. 265 815 United States v. McGowan, 302 U. S. 535 791 637582 °— 46- -4 Page United States v. Miller, 317 U. S. 369 81 United States v. Morgan, 307 U. S.183 145,148,152,267 United States v. Morley Construction Co., 98 F. 2d 781 704 United States v. Muschany, 139 F. 2d 661 51 United States v. 94.68 Acres of Land, 45 F. Supp. 1016 55, 72 United States v. Nye, 21 How. 408 353 United States v. O’Donnell, 303 U. S. 501 352 United States v. Pan American Corp., 304 U. S. 156 822 United States v. Parker, 103 F. 2d 857 284, 290 United States v. Parker, 19 F. Supp. 450 284,290 United States v. Payne, 264 U. S. 446 353 United States v. Pelzer, 312 U. S. 399 20, 25, 395 United States v. Phellis, 257 U. S. 156 397, 399 United States v. Powers, 307 U. S. 214 258 United States v. Pullman Co., Civil Action No. 994, E. D. Pa. 1944 12 United States v. River Rouge Co., 269 U. S. 411 391 United States v. Rose, 23 How. 262 353 United States v. Santa Fe Pacific R. Co., 314 U. S. 339 339,340,347,352,359 United States v. 17,280 Acres of Land, 47 F. Supp. 267 240 United States v. Sherwood, 312 U. S. 584 222 United States v. Shoshone Tribe, 304 U. S. Ill 350, 353 United States v. Socony Vacuum Co., 310 U. S. 150 296, 458, 463 United States v. South-Eastern Underwriters Assn., 322 U. S. 533 160 United States v. Southern Pacific Co., 259 U. S. 214 456 L TABLE OF CASES CITED. Page United States v. Swift & Co., 286 U. S. 106 571, 575 United States v. Terminal Railroad Assn., 224 U. S. 383 571 United States v. Title Ins. Co., 265 U. S. 472 353 United States v. Trans-Mis-souri Freight Assn., 166 U. S. 290 456,458,490 United States v. Two Acres of Land, 144 F. 2d 207 63 United States v. 243.22 Acres of Land, 129 F. 2d 678 232 United States v. Union Pacific R. Co., 226 U. S. 470 571,575 United States v. Univis Lens Co., 316 U. S. 241 297, 298, 471, 571, 575 United States v. Vehicular Parking, Ltd., Civil Action No. 259, D. Del. 1944 12 United States v. Whitridge, 197 U. S. 135 88,89 United States v. Wilder, Fed. Cas. No. 16,694 37 United States v. Winans, 198 U. S.371 353 U. S. ex rel. Bongiorno v. Ragen, 54 F. Supp. 973 762 U. S. ex rel. Foley v. Ragen, 143 F. 2d 774 762 U. S. ex rel. Foley v. Ragen, 52 F. Supp. 265 762 U. S. Navigation Co. v. Cunard S. S. Co., 284 U. S. 474 483,485 Universal Oil Co. v. Globe Co., 322 U. S. 471 322 Urban v. Brailey, 85 Neb. 796 792 Utah Power & Light Co. v. Pfost, 286 U. S. 165 533 Uxmal, The, 40 F. Supp. 258 38 Vera Cruz No. 2, The, 9 L. R., Prob. Div. 96 [1884] 225 Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65 475 Vidal v. Philadelphia, 2 How. 127 66 Virginia v. West Virginia, 246 U. S. 565 450 Page Wabash Valley Electric Co. v. Young, 287 U. S. 488 591 Waley v. Johnston, 316 U. S. 101 46 Walish v. Milwaukee, 95 Wis. 16 511 Walker v. Sauvinet, 92 U. S. 90 416 Wall v. Chesapeake & Ohio R. Co., 256 U. S. 125 185 Walling v. American Stores Co., 133 F. 2d 840 493 Walling v. Belo Corp., 316 U. S. 624 266 Walling v. Block, 139 F. 2d 268 493 Walling v. Helmerich & Payne, 323 U. S. 37 266 Walling v. Jacksonville Paper Co., 317 U. S. 564 497 Walling v. Reuter Co., 321 U. S. 671 15,17 Walling v. Wiemann Co., 138 F. 2d 602 493 Ward v. Texas, 316 U. S. 547 438 Waring v. The Mayor, 8 Wall. 110 654,657,662,669 Warner & Co. v. Lilly & Co., 265 U.S.526 267 Washington Chocolate Co. v. King County, 21 Wash. 2d 630 655 Washington ex rel. McPherson Bros. Co. v. Superior Court, 274 U. S. 726 233 Washington Irving, The, 250 F. 797 . 229 Waterman v. Canal-Louisi-ana Bank Co., 215 U. S. 33 463 Waterman S. S. Corp. v. Labor Board, 119 F. 2d 760 704 Water Power Cases, 148 Wis. 124 513 Weber v. Chicago, R. I. & P. R. Co., 175 Iowa 358 170 Weeks v. United States, 232 U.S. 383 422,423 Welch v. Paine, 120 F. 2d 141 21,26 Welch v. Paine, 130 F. 2d 990 21 TABLE OF CASES CITED. LI Page Wells v. United States, 318 U. S. 257 44 Wentworth v. Racine County, 99 Wis. 26 162 Werner v. Illinois Central R. Co., 379 Ill. 559 118,129 West Coast Hotel Co. v. Parrish, 300 U. S. 379 713 West Coast Life Ins. Co. v. Merced Irrigation Dist., 114 F. 2d 654 162 Westenrider v. United States, 134 F. 2d 772 712 Western & Atlantic R. Co. v. Henderson, 279 U. S. 639 805 Western Distributing Co. v. Public Service Comm’n, 285 U.S. 119 620,622 Western Live Stock v. Bureau, 303 U. S. 250 827 Western Maid, The, 257 U.S. 419 41 Western Securities Co. v. Silver King Mining Co., 57 Utah 88 396 West India Oil Co. v. Dom-enech, 311 U. S. 20 673 W. G. Mason, The, 142 F. 913 228 Whitfield v. Ohio, 297 U. S. 431 186 Whitman v. Wilson, 318 U. S. 688 764 Whitney v. Butler, 118 U. S. 655 203 Whitney v. California, 274 U. S. 357 186 Whittaker v. Brictson Mfg. Co., 43 F. 2d 485 107 Whitten v. Dabney, 171 Cal. 621 209 Wichita Indians v. United States, 89 Ct. Cis. 378 339 Wick v. Superior Court, 278 U. S. 574 233, 234 Willcox v. Consolidated Gas Co., 212 U. S. 19 601, 624 Page Williams, Ex parte, 277 U. S. 267 185 Williams v. Iowa Falls Elec- tric Co., 185 Iowa 493 150,153 Williams v. Kaiser, 323 U. S. 471 45,46,48, 763, 764,789 Willink v. United States, 240 U. S. 572 510 Willis v. Bayles, 105 Ind. 363 792 Willow River Club v. Wade, 100 Wis. 86 503 Wilmington Trust Co. v. Helvering, 316 U. S. 164 4 Wilson v. United States, 232 U. S. 563 194 Winters v. United States, 207 U. S. 564 362 Wisconsin v. Illinois, 278 U. S. 367 448 Wisconsin v. Pelican Insurance Co., 127 U. S. 265 446 Wisconsin Railroad Comm’n v. Chicago, B. & Q. R. Co., 257 U. S. 563 478 Wood v. Dummer, 30 Fed. Cas. 435 209 Woodbridge v. United States, 263 U. S. 50 379 Wood Mowing Machine Co. v. Skinner, 139 U. S. 293 126 Woodruff v. Parham, 8 Wall. 123 666, 669, 683, 685, 687, 693 Woods v. City Bank, 312 U. S. 262 213 Woolsey v. Best, 299 U. S. 1 48 Worcester v. Georgia, 6 Pet. 515 348, 353, 359, 360, 362, 366, 789 Yonkers v. United States, 320 U. S. 685 532 Young v. Higbee Co., 324 U. S. 204 704 Ziffrin, Inc. v. Reeves, 308 U. S. 132 299 TABLE OF STATUTES Cited in Opinions (A) Statutes of the United States. Page 1789, July 31, c. 5, § 18, 1 Stat. 29................. 83 1789, Sept. 24, c. 20, § 11, 1 Stat. 73................ 439 1796, May 19, c. 30, 1 Stat. 469 .................... 786 1799, Mar. 2, c. 22, § 61, 1 Stat. 627................ 83 1832, July 13, c. 203, 4 Stat. 577 .................... 370 1834, June 30, c. 161, 4 Stat. 729................. 335,786 1836, July 4, c. 357, 5 Stat. 117..................... 370 1841, Aug. 19, c. 9, §8, 5 Stat. 440................. 4 1846, May 22, c. 23, 9 Stat. 14....................... 83 1851, Mar. 3, c. 41, 9 Stat. 631 .................... 335 1862, July 5, c. 135, 12 Stat. 512 .................... 335 1864, Mar. 21, cc. 36, 37, 13 Stat. 32................ 335 1865, Feb. 23, c. 45, 13 Stat. 432 .................... 335 1867, Mar. 2, c. 176, § 2, 14 Stat. 517................. 4 1867, July 20, c. 32, 15 Stat. 17..................... 335 1873, Mar. 3, c* 268,’ 17 Stat. 602 R3 1874, Dec. 15, c* 2, Í8 Stat*. 291 ................... 335 1885, Mar. 3, c. 341, 23 Stat. 362 .................... 786 1887, Feb. 8, c. 119, § 6, 24 Stat. 390 .............. 786 1887, Mar. 3, c. 359, 24 Stat. Southard, Foreign Exchange Practice and Policy (1940) pp. 185 et seq. BARR v. UNITED STATES. 91 83 Opinion of the Court. rate which is certified. The determination of the rate is left exclusively to the Federal Reserve Bank of New York. It alone is given discretion in computing it. The duty of the Secretary to publish the certified rate is as clear as the duty of the Federal Reserve Bank of New York to determine and certify it. It is true that § 522 (c) speaks only of the “buying rate.” And that use of the singular rather than the plural is stressed by respondent. We may note, however, in passing that § 1 of the Revised Statutes, 1 U. S. C. § 1, provides that “words importing the singular number may extend and be applied to several persons or things.” Beyond that is the fact that we are construing a provision of a tariff act designed, as we have said, to value imports for customs purposes by means of the buying rate of the invoice currency. The use of the singular is not inappropriate since there is a buying rate for the foreign exchange used to purchase each separate import. We assume that the “official” rate was the all-inclusive rate and could have been used in payment of exported goods of all kinds. But § 522 (c) means to us that that buying rate is to be used which is in fact applicable to the particular transaction. To look to other transactions for the buying rate is to make a valuation of a wholly hypothetical import, not a valuation of the actual one before the collector of customs. Congress could, of course, choose any standard of valuation, for the purposes of the assessment and collection of duties. But Congress in this situation endeavored to provide a flexible and realistic, not an arbitrary, standard. We can indeed see no difference in principle between the use of one of several rates for the currency of a single country and the use of one of several rates each of which is for the currency of a different country. In each different rates are used to ascertain the value of specific imports. The language of § 522 (c) read against the background of these statutes indicates to us that Congress undertook to provide in each case the rate which 92 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. gives the closest approximation to the value in dollars of the imported merchandise. That purpose would be thwarted if in the circumstances of this case only one buying rate could be used in making the valuation of the goods. The application of the “official” rate to this particular transaction would assume that petitioner imported whiskey, furs, tin, rubber, or jute rather than woolens. The valuation of the woolens would be inflated and a higher duty would be paid than a fair reading of § 522 (c) necessitates. It is said that this result runs counter to the provisions of § 402 of the Act which require that the value of imported merchandise shall be the “foreign value or the export value, whichever is higher.” But it is not apparent how that policy need in any way be defeated or impaired by the use of the “free” rate of exchange where it is in fact applicable. Reliance for the other conclusion is also placed on the general authority given the Secretary over the collection of duties on imports4 and over collectors of customs.5 6 * It is also pointed out that § 624 of the Tariff Act of 1930 provides that “In addition to the specific powers conferred by this Act, the Secretary of the Treasury is authorized to make such rules and regulations as may be necessary to carry out the provisions of this Act.”8 But these 4 “The Secretary of the Treasury shall direct the superintendence of the collection of the duties on imports as he shall judge best.” Rev. Stat. § 249,19 U. S. C. § 3. And see Rev. Stat. § 248, 5 U. S. C. § 242. 5 “The Secretary of the Treasury shall prescribe forms of entries, oaths, bonds, and other papers, and rules and regulations not inconsistent with law, to be used in carrying out the provisions of law relating to raising revenue from imports, or to duties on imports, or to warehousing, and shall give such directions to collectors and prescribe such rules and forms to be observed by them as may be necessary for the proper execution of the law.” Rev. Stat. § 251,19 U. S. C., Supp. Ill, § 66. And see Rev. Stat. § 161, 5 U. S. C. § 22. 6 Sec. 502 (c) of the Act provides that “It shall be the duty of all officers of the customs to execute and carry into effect all instructions BARR v. UNITED STATES. 93 83 Opinion of the Court. provisions merely implement authority which is granted the Secretary and make clear the existence of authority which otherwise might be only implied. They may not be used to detract from the express authority given the Federal Reserve Bank of New York under § 522 (c). But this result is criticized on the ground that it interferes with the control of foreign exchange, which fiscal function has been entrusted to the Secretary, not to the Federal Reserve Bank of New York. It hardly need be pointed out in reply, however, that our decision, like § 522 (c), is concerned only with the assessment and collection of duties upon imports through the use of a formula which Congress designed. If the use of that formula under the changed conditions of these war years is disadvantageous or undesirable, Congress, of course, can change it. But we cannot assume that Congress did not mean what it said when it selected the Federal Reserve Bank of New York rather than the Secretary to perform a restricted function on this single phase of the complicated foreign exchange problem. Nor is there substance in the argument that the Secretary’s action in publishing only one of the rates certified by the Bank is non-reviewable. Sec. 522 (c) plainly gives discretion to the Bank to determine the buying rate. And for the reasons stated we cannot say that only one buying rate must be determined and certified.7 The exercise of of the Secretary of the Treasury relative to the execution of the revenue laws; and in case any difficulty arises as to the true construction or meaning of any part of the revenue laws, the decision of the Secretary shall be binding upon all officers of the customs.” 7 The case is therefore different from Collector v. Richards, 23 Wall. 246. In that case the Director of the Mint certified two values of the franc—one under the provisions of the Act of March 3, 1873, 17 Stat. 602, the other under the Act of May 22, 1846, 9 Stat. 14. The Director of the Mint was uncertain whether the latter act had been repealed by the former. The Secretary proclaimed the rate estimated by the Director under the 1873 Act. This Court sustained a collection 94 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. the Bank’s discretionary power under § 522 (c) is in the category of administrative or executive action which this Court held non-reviewable in Cramer v. Arthur, supra, and in Hadden v. Merritt, 115 U. S. 25, 27-28. And see United States v. Bush & Co., 310 U. S. 371, 380. But the function of the Secretary in this regard is purely ministerial and is to be contrasted to other situations in which the Secretary is exercising discretionary authority. Cf. Boske v. Comingore, 177 U. S. 459. The power to publish the certified rate may not be exercised in such a way as to defeat the method of assessment which Congress has provided. Cf. Campbell v. United States, 107 U. S. 407. Congress has granted judicial review of the decisions of the collector including the legality of the orders and findings entering into the protested decision. §§ 514-517. If the decision of the collector contravenes the statutory scheme and disregards rights which Congress has bestowed, the fact that he acts pursuant to the directions of the Secretary does not save his decision from review. Campbell v. United States, supra. We think that the use of the “official” rate of exchange in assessing and collecting duties upon these imports transcended the authority of the collector and of the Secretary and that the “free” rate of exchange certified by the Federal Reserve Bank of New York should have been used. It is finally said that if more than one buying rate may be made applicable to imports from one country,* 8 confu- of duties on that basis, holding that the provisions of the 1873 Act controlled. Thus the decision was that only one value of the franc controlled, not that the power of the Secretary to proclaim the value included the power to choose between two available ones. 8 It should be noted that where two or more currencies of different character circulate in a foreign country the Treasury has provided for the use of the foreign exchange rate for each, the rate used being the rate for the currency in which the same or similar merchandise is usually bought and sold in the ordinary course of trade. See Customs Regulations of 1937, Art. 776 (a) and (e), as amended by Treas. Dec. 50251 (i) and (j), October 10, 1940. BARR v. UNITED STATES. 95 83 Frankfurter, J., dissenting. sion and complexity in administration of the Tariff Act will result. But that showing would have to be far more clear and the meaning of the Act much more dubious for us to give those administrative considerations weight in the interpretative process. Reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Frankfurter, dissenting. As part of the effective financial conduct of the war, the United Kingdom brought sterling under control by fixing its exchange value. A limited supply of sterling in foreign countries presented a special problem. But though that supply was out of its bounds, Great Britain by various mechanisms could bring it under control. Apparently it moved to do so as quickly as economic and political considerations permitted. See the statement of the Chancellor of the Exchequer on April 9, 1940, in reply to various questions in the House of Commons, 359 H. C. Deb. (5th ser. 1940) 461-463. Thus, while “the vast bulk of transactions between sterling and other currencies” was conducted at the exchange rate fixed by the Government, the supply and demand of sterling abroad created a market. By virtue of various British restrictions this free sterling market became increasingly thin. See 26 Fed. Res. Bull. (July, 1940) 638; The Commercial and Financial Chronicle, April 20, 1940, Vol. 150, Pt. 2, pp. 2478-79. Nevertheless, until the British Government completely clamped down on the use of this free sterling in payment of exports, it was possible to pay for such exports in sterling purchased at a lower rate than that which the British Government believed to be a reflection of the true value of the pound and officially fixed as such. Plainly enough, a single currency having multiple values has important bearings upon the flow of goods and 96 OCTOBER TERM, 1944. Frankfurter, J., dissenting. 324 U. S. upon international economic relations. In the case of Great Britain, the situation may have not been serious because, as we noted, free sterling played a relatively small share in the economic interchange between the two countries. The “free” rate was employed only in limited transactions and evidently represented on the part of Great Britain merely a transitory compromise with circumstances. In short, the official rate was not an unreality. But in the case of some countries, a dual system of rates of exchange may have decisive economic effects through highly organized manipulation of exchange, with all the evils that result from confusion and from depreciated currencies. To dispose of the case on the assumption that it merely involves enforcement of a Congressional policy for assuring approximate accuracy in determining the true dollar value of a particular importation is to throw the significance of the case out of focus. The problem, as I see it, is whether Congress by § 522 (c) of the Tariff Act of 1930, 46 Stat. 590, 739, 31 U. S. C. § 372 (c), prohibited the Secretary of the Treasury from safeguarding the public interest as he did, in relation to dislocations in the money markets following the outbreak of the war and to their repercussions both upon our domestic economy and our international relations. That the Treasury’s instruction to the collectors of customs to assess tariff duties on the basis of the sterling rate fixed by the British Government was not an ordinary Treasury order affecting the collection of revenue is attested by the fact that the instruction was the result of a conference of the Secretary of State, the Secretary of the Treasury, the Attorney General and the Secretary of Agriculture. See New York Times, April 17, j 1940, p. 4, col. 5; The Commercial and Financial Chron- | icle, April 20, 1940, Vol. 150, Pt. 2, pp. 2478-79. ! It is not suggested that apart from § 522 (c) this Gov- I ernment could not protect its interests in relation to the I BARR v. UNITED STATES. 97 83 Frankfurter, J., dissenting. abnormal currency situations precipitated by the war through such action as the Secretary of the Treasury here took. The wide duties of financial supervision possessed by the Secretary by virtue of his office and the broad powers implied in various provisions of law, see for instance: 5 U. S. C. § 242,19 U. S. C. § 3; § 624 of the Tariff Act of 1930, 46 Stat. 590, 759, 19 U. S. C. § 1624, and Boske v. Comingore, 177 U. S. 459, would give him ample warrant to fix a rate for dollar conversions of foreign currencies on a uniform basis reflecting the dominant value among multiple values of a foreign currency and one not subject to manipulations or influences adverse to our interests. Withdrawal of this power of the Secretary of the Treasury implies a radical curtailment of his historic and appropriate authority to protect the nation’s fiscal interests. If it chose, of course Congress could so curtail the Secretary’s powers. But such an important change in the executive responsibility for our fiscal affairs ought to be disclosed through some unequivocal Congressional expression. To find such destructive force in § 522 (c) is to attribute to it a potency not designed by Congress. It is conceded that in the legislation which is now § 522 (c) Congress was concerned solely with fluctuations in a single exchange rate, a problem thrown up after the First World War. And so Congress designated the Federal Reserve Bank as a fact-finding agency to ascertain the most durable among fluctuating quotations. But multiple rates for a single currency—with their effects upon the flow of goods and upon international economic relations and the opportunities they afford for highly organized manipulations of exchange—present a totally different > problem. That problem, as is admitted by the Federal Reserve Bank appearing before us as amicus curiae, was i not at all in the contemplation of Congress. That prob-•_ lem was not dealt with by Congress because it did not con- 98 OCTOBER TERM, 1944. Frankfurter, J., dissenting. 324 U. S. front Congress. As a problem it did not emerge until, in 1940, the present war confronted the Federal Reserve Bank and the Secretary of the Treasury with it. The Federal Reserve Bank and the Secretary of the Treasury, having different functions, naturally dealt with it differently. Although, to be sure, § 522 (c) charged the Federal Reserve Bank with the ascertainment of a single exchange rate, the Bank naturally enough solved the dilemma which confronted it when there were two rates for sterling by reporting both, although the significance of the two rates and the range of their functions varied greatly. It was not for the Bank to pick only one rate, for the Bank is merely a reporting agency and not a policy-making agency. But the determination whether one of the two rates is the rate, and if so which should have that fiscal function, is a policy problem, and the Secretary of the Treasury is the agency vested with responsibility for fiscal policies. For the selection by the Secretary of the Treasury of an exchange rate in a situation like the one before us has implications far beyond translating into dollars the value at which a particular importer actually settled for the foreign price of his goods. The selection of the governing rate of exchange in the case of multiple rates affects at least three very important phases of our international economic relations. By § 402 of the Tariff Act of 1930, 46 Stat. 590, 708, 19 U. S. C. § 1402, in the assessment of ad valorem duties it is necessary to ascertain the foreign market value, which normally means the foreign home value. Commodities subject to the “official” rate and commodities available through “free” sterling may well have an identical home value and yet, according to the contention of the importer, one valuation would have to be reached according to § 522 (c) and another according to § 402. Again, the Secretary of the Treasury may impose countervailing duties whenever he finds that importe BARR v. UNITED STATES. 99 83 Frankfurter, J., dissenting. goods enjoy a bounty, direct or indirect. Section 303 of the Tariff Act of 1930, 46 Stat. 590, 687, 19 U. S. C. § 1303. Such bounties may readily take the form of favorable exchange rates. An unwarrantably rigid denial to the Secretary of the determination of an exchange rate which in substance corresponds to the realities of international exchange may force him to exercise the penalizing power of imposing countervailing duties. Finally, foreign exchange rates affect the fruitful use of foreign trade agreements. Section 350 of the Tariff Act of 1930 as amended by 48 Stat. 943,19 U. S. C. § 1351 et seq. All these dangerous potentialities would of course be irrelevant if Congress had dealt with the problem of multiple rates in a rigid way and put the responsibility upon the Federal Reserve Bank to select one of such multiple rates. But the hand of the Government ought not to be tied too closely where, to put it mildly, the Congressional purpose has been ambiguously expressed. We cannot find such purpose from a reading of what Congress has written. We are hardly justified in assuming that if Congress had addressed itself to this problem it would have tied the hands of the Secretary of the Treasury and brought into play all the difficulties that have been indicated in the ascertainment of foreign home value, in the imposition of countervailing duties, and in embarrassing the policy of trade agreements. The power of Congress to pass new legislation is hardly a reason for giving old legislation a construction that disregards its history and its context and the unhappy consequences of such i disregard. Of course, general condemnation of a practice covers any specific manifestation of it, even though the latter was unforeseen” by Congress, Puerto Rico v. Shell Co., 302 R 8. 253, just as a general outlawry of the use of a false document hits also a use to which the document was not ordinarily” put when the legislation was passed. Brow- 100 OCTOBER TERM, 1944. Statement of the Case. 324U.S. der v. United States, 312 U. S. 335. But these are instances of proper statutory construction quite irrelevant to the present case. It is one thing for judges not to excise a particular situation from language appropriately describing a general problem. Judicial interpolation into a statute of a wholly unrelated problem not envisaged by Congress is quite another matter. In this case we have not an unforeseen situation fitting into a general context. Here we have an unforeseen problem with which Congress did not deal and yet, by not dealing with it, is said to have taken away authority theretofore belonging to the Secretary of the Treasury. If the problem itself was not in the contemplation of Congress, as this problem was not, how can it be said that Congress legislated concerning that problem? The judgment should be affirmed. Mr. Justice Black joins in this dissent. PRICE, TRUSTEE, et al. v. GURNEY et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 410. Argued January 12, 1945.—Decided February 5, 1945. 1. The bankruptcy court is without jurisdiction to entertain a Chapter X petition filed on behalf of a corporation (organized under state law) by stockholders who under the local law are without authority to institute such proceedings, even though that authority might have been obtainable under the local law by proceedings in another forum. P. 106. 2. Under the Bankruptcy Act, the power of the bankruptcy court over the debtor and its property prior to the approval of the petition does not extend to this situation. P. 106. 142 F. 2d 404, reversed. Certiorari, 323 U. S. 696, to review the reversal of an order of the bankruptcy court dismissing a petition under Chapter X of the Bankruptcy Act. PRICE v. GURNEY. 101 100 Opinion of the Court. Mr. Wm. W. Keif er, with whom Mr. George W. Tehan was on the brief, for petitioners. Mr. Charles W. Stiefel, Jr., with whom Mr. I. E. Ferguson was on the brief, for respondent. Solicitor General Fahy, Messrs. Roger S. Foster, Milton V. Freeman and Theodore L. Thau filed a brief on behalf of the Securities & Exchange Commission, as amicus curiae. Mr. Justice Douglas delivered the opinion of the Court. The Western Tool & Manufacturing Co. is an Ohio corporation. It has outstanding some 1,100 shares of stock and also bonds which total in principal amount $73,000 with large arrearages of interest. Some twenty years ago, following a default in payment of interest on the bonds, more than 50 per cent of the shares of stock were placed in a voting trust, the voting trustees being designated by the bondholders. The bonds were deposited with a bondholders’ committee. The voting trustees were members of the bondholders’ committee; and some of the voting trustees were also directors and officers of the company. Since the voting trust was formed the bondholders have been in control of the company. Directors have been elected by the voting trustees. In 1942 the trustee under the mortgage deed of trust filed a petition to foreclose the lien of the bondholders in an Ohio court. The court appointed one of the voting trustees receiver; and he has operated the company as a going concern since that time. The company filed its answer in the foreclosure proceeding, admitting the allegations of the bill and consenting to the appointment of a receiver. Thereafter a judgment was entered on the mortgage for some $134,000. Respondent acting on behalf of himself and other holders of shares or of voting trust receipts moved to set the judgment of 637582°—46______11 102 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. the state court aside. We are told that that motion was denied. It does not appear whether there was an appeal from that denial or whether respondent sought to intervene in the foreclosure proceedings. Respondent as owner of 7 shares of stock and as agent for owners of some 675 shares (including certain shares deposited under the voting trust) also filed a petition in the name of Western Tool & Manufacturing Co. in the District Court asking that the company be given relief under Chapter X of the Bankruptcy Act. 52 Stat. 883, 11 U. S. C. § 501. The petition stated, among other things, that the value of the assets of the company was greatly in excess of the indebtedness and that that value would be lost to the stockholders in the foreclosure action. Respondent accompanied the petition with an affidavit which stated that an unsuccessful attempt had been made to have the corporation file the petition. The affidavit set forth rather serious charges against the management of the company. It alleged that the directors were unlawfully elected and that the corporation was without a de jure board. It alleged that certain of the directors were occupying conflicting and inconsistent fiduciary positions, i. e. as members of the committee their fiduciary responsibility was to the bondholders, as voting trustees their fiduciary duties were to the depositing stockholders, as directors and officers their fiduciary obligation was to all the stockholders, depositing and non-depositing. It charged them with acts of mismanagement, with dissipation of the assets of the company, and with management of the company solely for the benefit of the bondholders and against the interests of the stockholders. It alleged that the voting trust was illegal and void and was no longer in effect since it had by its terms expired. And it asserted that the only way in which the value of the stockholders’ equity in the company could be preserved was by reorganization in bankruptcy. PRICE v. GURNEY. 103 100 Opinion of the Court. The District Court first approved the petition as properly filed. Later the bondholders’ committee and the corporation filed motions to dismiss the petition on the grounds, among others, that the board of directors of the company had not authorized it. A hearing was held, following which the District Court dismissed the petition. The Circuit Court of Appeals reversed, one judge dissenting. 142 F. 2d 404. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problem in the administration of the Bankruptcy Act. Chapter X provides in § 126 that “A corporation, or three or more creditors who have claims against a corporation or its property amounting in the aggregate to $5,000 or over, liquidated as to amount and not contingent as to liability, or an indenture trustee where the securities outstanding under the indenture are liquidated as to amount and not contingent as to liability, may, if no other petition by or against such corporation is pending under this chapter, file a petition under this chapter.” A creditor is defined in § 106 (4) as the holder of any “claim.” A claim is defined in § 106 (1) so as to exclude stock. And a petition is defined as one filed under Chapter X by a debtor, creditors, or indenture trustee. § 106 (9). It is therefore apparent that Congress has not given to stockholders the right to file petitions under Chapter X. The absence of that right is emphasized when we turn to other provisions of the chapter which define the rights of stockholders in these reorganization proceedings. When a debtor is continued in possession, a plan may be filed ‘by any stockholder, if the debtor is not found to be insolvent.” § 170 (3). Any stockholder has the right to be heard “on all matters arising in a proceeding under this chapter.” § 206. And detailed provisions are included for the protection of such equity as the stockholders may 104 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. have in the business. See for example § 179, § 180, § 196, § 197, § 216, § 221. Thus the rights which the stockholders are granted by the Act arise after the proceedings have been instituted. Thereafter they need not be represented solely by the debtor corporation. They may appear in their own right. Indeed, the Act contemplates their participation in the proceedings for the protection of such equity as they may have. But the initiation of the proceedings, like the run of corporate activities, is left to the corporation itself, i. e. to those who have the power of management. These principles are not seriously questioned. And respondents make no pretense of saying that they in fact have the power of management over this Ohio corporation or that § 8623-55 of Ohio’s General Corporation Act which vests the management of Ohio corporations in the board of directors1 is inapplicable here. Their theory rather is that the directors have breached their trust and have caused the corporation to commit acts which are confiscatory of the stockholders’ interests, that the corporation has a defense against or a remedy in alleviation of the foreclosure action which the directors refuse to invoke, and that therefore the stockholders under the familiar rules governing derivative actions {Dodge v. Woolsey, 18 How. 331; Davenport v. Dows, 18 Wall. 626; Hawes n. Oakland, 104 U. S. 450) may proceed on behalf of the corporation. That was the view which prevailed in the Circuit Court of Appeals. But we do not think it stands analysis. 1 That section reads in part as follows: “All the capacity of a corporation shall be vested in and all its authority, except as otherwise provided in this act or in the articles in regard to action required to be taken, authorized or approved by shareholders, shall be exercised by a board of directors of not less than three persons, which shall manage and conduct the business o the corporation.” PRICE v. GURNEY. 105 100 Opinion of the Court. There is a misconception running through the presentation of this case which should be noted at the outset. It is a misnomer to speak of the filing of the petition on behalf of the corporation as a derivative action. A derivative action is a suit by a shareholder to enforce a corporate cause of action. The corporation is a necessary party to the suit. And the relief which is granted is a judgment against a third person in favor of the corporation. That is the rule in Ohio as well as elsewhere. 10 Ohio Juris. §§ 244 et seq.; Dodge v. Woolsey, supra; Davenport v. Dows, supra; Hill v, Murphy, 212 Mass. 1, 98 N. E. 781; Groel v. United Electric Co., 70 N. J. Eq. 616, 61 A. 1061; Continental Securities Co. v. Belmont, 206 N. Y. 7, 99 N. E. 138. Similarly if a corporation has a defense to an action against it and is not asserting it, a stockholder may intervene and defend on behalf of the corporation. 10 Ohio Juris. § 257; Eggers v. National Radio Co., 208 Cal. 308, 281 P. 58; Fitzwater n. National Bank, 62 Kan. 163, 61 P. 684. Moreover, equity has evolved numerous remedies to protect not only the rights of the corporation but the interests of the stockholders as such against various acts of mismanagement. See 10 Ohio Juris. §§ 260 et seq.; Berle, Studies in the Law of Corporation Finance (1928). But respondents have not pursued either course. The petition which they have filed with the bankruptcy court is not a suit to enforce or protect a corporate right. Nor is it a suit to protect the interests of respondents as stockholders. Yet if it were either one, the federal District Court could not entertain it. No diversity of citizenship is shown and no other basis of federal jurisdiction is apparent. The question therefore is whether the bankruptcy court as an incident of its bankruptcy powers can give respondents the relief which, if their charges are taken as true, they might obtain in another forum. We do not think it can. 106 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. The District Court in passing on petitions filed by corporations under Chapter X must of course determine whether they are filed by those who have authority so to act. In absence of federal incorporation, that authority finds its source in local law. If the District Court finds that those who purport to act on behalf of the corporation have not been granted authority by local law to institute the proceedings, it has no alternative but to dismiss the petition. It is not enough that those who seek to speak for the corporation may have the right to obtain that authority. The jurisdiction which Congress has given the bankruptcy court over the debtor and its property prior to the approval of the petition (see § 111, § 112, and § 113) does not extend to this situation. The District Court in the exercise of its diversity jurisdiction would of course have the power to enforce derivative actions,2 to make faithless directors account, and the like, where local law permits. But under the Bankruptcy Act the power of the court to shift the management of a corporation from one group to another, to settle intracorporate disputes, and to adjust intracorporate claims is strictly limited to those situations where a petition has been approved. Thus § 156 provides for the displacement of the management and the appointment of a disinterested trustee3 in case of certain companies after approval of the petition. In other situations the court may continue the debtor in possession. § 156. The plan must include provisions “which are equitable, compatible with the interests of creditors and stockholders, and consistent with public policy” with respect to the manner of selection of directors, officers and the like. § 216 (11). And the plan must likewise provide for the retention and enforcement of claims, not settled or adjusted in the plan, which the corporation 2 See Rule 23 (b), Rules of Civil Procedure. 3 As defined in § 158. PRICE v. GURNEY. 107 100 Opinion of the Court. may have against officers, directors, and others. § 216 (13). But nowhere is there any indication that Congress bestowed on the bankruptcy court jurisdiction to determine that those who in fact do not have the authority to speak for the corporation as a matter of local law are entitled to be given such authority and therefore should be empowered to file a petition on behalf of the corporation. Respondents may have a meritorious case for relief. On that we intimate no opinion. But if they are to be allowed to put their corporation into bankruptcy, they must present credentials to the bankruptcy court showing their authority. It is argued that circuity of action will be avoided and the adequacy of stockholders’ remedies will be enhanced if the bankruptcy court is authorized to entertain petitions like the present one. That may well be true. But any such enlargement of the jurisdiction of the bankruptcy courts is for Congress. It has chosen to withhold from stockholders the right to institute these bankruptcy proceedings. In absence of federal incorporation, intracorporate disputes of the character presented here are, as we have said, governed by state law. The creation of a new basis of federal jurisdiction to hear them, pass on their merits, and adjudicate them is a legislative act. A different question is presented where stockholders appear in opposition to a petition filed by the corporation. See § 206. Cf. In re Beaver Cotton Mills, 275 F. 498; Whittaker v. BrictsonMjg. Co., 43 F. 2d 485. Reversed. 108 OCTOBER TERM, 1944. Counsel for Parties. 324 U. S. FIDELITY-PHILADELPHIA TRUST CO. et al., EXECUTORS, v. ROTHENSIES, COLLECTOR OF INTERNAL REVENUE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 263. Argued January 4, 5, 1945.—Decided February 5, 1945. Decedent made a transfer of property in trust to pay the income to herself for life, thence to her two daughters, with remainders to the daughters’ surviving descendants; but if both daughters should die without descendants surviving, the corpus was to go to such persons as the decedent should appoint by will. Decedent exercised the power of appointment by will and predeceased the daughters. Held: 1. The transfer was “intended to take effect in possession or enjoyment at or after (decedent’s) death,” within the meaning of § 302 (c) of the Revenue Act of 1926. P. 110. 2. The value at the date of the death of the decedent of the entire corpus of the trust was includible in the gross estate of the decedent for the purpose of the estate tax under the 1926 Act. P.111. Under § 302 (c) the taxable gross estate must include those property interests the ultimate possession and enjoyment of which is held in suspense until the moment of the grantor’s death or thereafter. 3. There was no basis for deduction from the decedent’s gross estate of the values of the estates of the daughters or their descendants. P. 112. 142 F. 2d 838, affirmed. Certiorari, 323 U. S. 693, to review the affirmance of a judgment denying recovery in a suit for refund of federal estate taxes. Mr. C. Russell Phillips for petitioners. Mr. L. W. Post, with whom Solicitor General Fahy, As-sistant Attorney General Samuel O. Clark, Jr., Messrs. Sewall Key and J. Louis Monarch were on the brief, for respondent. FIDELITY CO. v. ROTHENSIES. 109 108 Opinion of the Court. Mr. Justice Murphy delivered the opinion of the Court. Our attention here is directed toward the proper valuation for federal estate tax purposes of the corpus of an inter vivos trust where the transfer was intended to take effect in possession or enjoyment at or after death and where the settlor retained a life estate in the trust income and a reversionary interest in the corpus. On March 26, 1928, the decedent, Anna C. Stinson of Bryn Mawr, Pa., transferred certain property in trust, the value of which at the time of her death was $84,443.49. The income of the trust was to be paid to the settlor during her life and at her death to her daughters (aged 12 and 10 at the time of the creation of the trust) during their respective lives. At the death of each daughter, the corpus supporting her share of the income was to be paid to her descendants. If either daughter died without leaving surviving descendants, the corpus of her share was to be added to the share of the other daughter or of the surviving descendants of the other daughter. But if both daughters died without leaving surviving descendants, the corpus was to be paid to such persons as the settlor might appoint by will. In default of such appointment, the corpus was to go to certain named charities. The decedent exercised the power of appointment in a will made in 1930. She died in 1934 at the age of 51, leaving two unmarried daughters. The latter have subsequently married and both have children. The Commissioner determined that this arrangement was a transfer in trust intended to take effect in possession or enjoyment at or after death within the meaning of § 302 (c) of the Revenue Act of 1926, 44 Stat. 9, 70, and that the net value of all the property comprising the corpus of the trust should be included in the decedent’s gross estate for estate tax purposes. The executors, how-over, denied that the transfer fell within the meaning of 110 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. § 302 (c); they further claimed that even if § 302 (c) did apply the value of the life estates of the settlor’s daughters and the value of the remainders to their surviving descendants should be deducted from the value of the trust assets for tax purposes. The executors paid a tax on the full value of the trust assets and filed this claim for refund of the tax. The District Court denied recovery and the court below affirmed. 142 F. 2d 838. Conflict with Field’s Estate v. Commissioner, 144 F. 2d 62, led us to grant certiorari limited to the question of whether the entire value of the corpus of the trust at the time of decedent’s death should have been included in the decedent’s gross estate. The courts below, utilizing the principles set forth in Klein v. United States, 283 U. S. 231, and Helvering v. Hallock, 309 U. S. 106, correctly held that the decedent’s transfer in trust in 1928 was one intended to take effect in possession or enjoyment at or after death within the meaning of § 302 (c) of the Revenue Act of 1926, prior to the amendments of 1931 and 1932. While the matter of valuation was not argued and was not directly in issue in those cases, the inescapable consequence of the principles enunciated there and in the dissenting opinion in Helvering v. St. Louis Union Trust Co., 296 U. S. 39, 46, is to include the entire trust corpus in the gross estate of the decedent under these circumstances. Section 302 (c) itself provides for the inclusion within the gross estate of property “to the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death.” As we said in Helvering V. Hallock, supra, 110, 111, this provision “deals with property not technically passing at death but with interests theretofore created. The taxable event is a transfer inter vivos. But FIDELITY CO. v. ROTHENSIES. Ill 108 Opinion of the Court. the measure of the tax is the value of the transferred property at the time when death brings it into enjoyment.” Cf. Reinecke v. Northern Trust Co., 278 U. S. 339, 347. The taxable gross estate, in other words, must include those property interests the ultimate possession or enjoyment of which is held in suspense until the moment of the grantor’s death or thereafter. Tested by that standard, the entire corpus of the trust should have been included in the decedent’s gross estate and an estate tax levied on its net value at the date of decedent’s death. The ultimate disposition of all the trust property was suspended during the life of the decedent. Only at or after her death was it certain whether the property would be distributed under the power of appointment or as provided in the trust instrument. The life estates of the daughters were contingent upon their surviving their mother and took effect in enjoyment only at the death of the latter. The remainder interests of the descendants of the daughters were contingent upon their surviving both the decedent and the daughters and took effect in possession only after the death of the decedent. Thus until the moment of her death or until an undetermined time thereafter the decedent held a string or contingent power of appointment over the total corpus of the trust. The retention of such a string, which might have resulted in altering completely the plan contemplated by the trust instrument for the transmission of decedent’s property, subjected the value of the entire corpus to estate tax liability. It is fruitless to speculate on the probabilities of the property being distributed under the contingent power of appointment. Indeed, such speculation is irrelevant to the measurement of estate tax liability. The application of this tax does not depend upon “elusive and subtle casuistries.” Helvering v. Hallock, supra, 118. No more 112 OCTOBER TERM, 1944. Douglas, J., concurring. 324 U. S. should the measure of the tax depend upon conjectures as to the propinquity or certainty of the decedent’s reversionary interests. It is enough if he retains some contingent interest in the property until his death or thereafter, delaying until then the ripening of full dominion over the property by the beneficiaries. The value of the property subject to the contingency, rather than the actuarial or theoretical value of the possibility of the occurrence of the contingency, is the measure of the tax. That value is demonstrated by the consequences that would flow in this instance from the decedent’s survival of her daughters and any of the latter’s surviving descendants. We are not concerned here with determining whether the values of any property interests or intervening estates not affected by the decedent’s death and not subject to the contingent power of appointment should be deducted from the value of the corpus. The value of the life estate retained by the decedent obviously cannot be deducted. And the life estates of the daughters and the remainder interests of their surviving descendants were all subject to divestment by the contingent power of appointment and were freed from this contingency only at or after the decedent’s death. There is thus no basis for deducting their values as suggested by petitioners. Affirmed. Mr. Justice Douglas, concurring. The District Court found that this trust was “intended to take effect in possession or enjoyment at or after” the death of the decedent. The Circuit Court of Appeals agreed. Certiorari was not granted on that question but only on the question whether the entire value of the corpus of the trust at the time of decedent’s death should be included in her gross estate. So in this case, as in Commissioner v. Estate of Field, post, p. 113, we are COMMISSIONER v. ESTATE OF FIELD. 113 108 Syllabus. not faced with the question whether May v. Heiner, 281 U. S. 238, should survive Helvering v. Hallock, 309 U. S. 106. On the findings of the District Court, it is plain that the entire corpus must be included in decedent’s gross estate by virtue of § 302 (c) of the 1926 Act unless the value of the life estate must be deducted. The value of the life estate deducted in the Hallock case was the life estate in the settlor’s wife. It was excluded because it took effect in possession or enjoyment when the trust was created. The life estate which the decedent reserved to herself is obviously in a different category. It is not an “outstanding life estate” within the meaning of Treasury Regulations 80, Art. 17. I would rest the decision there and reserve judgment on the other questions adverted to in the opinion of the Court. COMMISSIONER OF INTERNAL REVENUE v. ESTATE OF FIELD. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 578. Argued January 5, 1945.—Decided February 5, 1945. 1. Decedent made a transfer of property in trust limited in duration to the lives of two nieces. If decedent survived both nieces the corpus was to go to the decedent rather than to the beneficiaries named in the trust instrument. The nieces survived the decedent. Held that, under § 302 (c) of the Revenue Act of 1926, the value of the entire corpus of the trust property at the death of the decedent was includible in the gross estate for the purpose of the federal estate tax. Fidelity-Philadelphia Trust Co. v. Roth-ensies, ante, p. 108. P. 115. 2. Since the corpus of the trust did not shed the possibility of reversion until the decedent’s death, the value of the entire corpus on the date of death was taxable under § 302 (c). P. 116. 144 F. 2d 62, reversed. 114 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. Certiorari, 323 U. S. 704, to review the reversal of a decision of the Tax Court, 2 T. C. 21, which sustained the Commissioner’s determination of a deficiency in estate taxes. Mr. L. W. Post, with whom Solicitor General Fahy, Assistant Attorney General Samuel O. Clark, Jr., Messrs. Sewall Key and J. Louis Monarch were on the brief, for petitioner. Mr. Edgar J. Bernheimer, with whom Mr. Harry T. Zucker was on the brief, for respondent. Mr. Charles Angulo, as amicus curiae, filed a brief on behalf of the estate of John C. Duncan. Mr. Justice Murphy delivered the opinion of the Court. This is a companion case to Fidelity-Philadelphia Trust Co. v. Rothensies, ante, p. 108. It too presents a question as to the proper valuation of the corpus of an inter vivos trust under § 302 (c) of the Revenue Act of 1926,44 Stat. 9, 70. On June 8, 1922, the decedent transferred to a trustee certain assets valued at the date of his death at the sum of $157,452.82. The material portions of the trust provided: 1. The trust was to continue for the joint lives of two nieces and the life of the survivor of them unless terminated earlier under 4, infra. 2. The income was to be paid to the decedent for his life unless the trust terminated before his death. 3. If the decedent died prior to the termination of the trust leaving issue, the trust property was to be held in trust for the children or their issue, subject to decedent’s right to reduce or cancel the amounts of the gifts by will or written instrument. Provisions were also made for a COMMISSIONER v. ESTATE OF FIELD. 115 113 Opinion of the Court. $150,000 trust for the widow which is not in issue in this case. 4. During the continuance of the trusts the income was to be paid to the beneficiary named and upon the death of the beneficiary during the continuance of the trust the corpus was to be paid to the beneficiary’s issue surviving, but if there be none, to the issue of the decedent surviving; if none, then to decedent’s brother or sister or their issue. 5. Upon termination of the trust before the death of the decedent the corpus was to be paid over to decedent. 6. Upon termination of the trust after the death of the decedent but during the existence of any trust the corpus was to be paid to the life beneficiary. The decedent at no time had any issue. At his death in 1937 at the age of 52, he was survived by the two nieces whose lives were to measure the maximum life of the trust. These nieces were then aged 18 and 25 respectively. He was also survived by his widow, a sister and issue of a deceased brother. The Tax Court held that the entire amount of $157,-452.82 was includable in the gross estate for purposes of the estate tax. 2 T. C. 21. But the court below reversed and remanded the case to the Tax Court with directions to include in the gross estate only $24,930.76—the value at the time of decedent’s death of a remainder in the sum of $157,452.82 payable at all events upon the death of the survivor of two females, aged 18 and 25 respectively. 144 F. 2d 62. The error of the court below is self-evident from our discussion in the Fidelity-Philadelphia Trust Co. case. The trust here was limited in duration to the lives of the decedent’s two nieces. But if both nieces died before the decedent, the corpus would have been paid to the decedent rather than to the beneficiaries named in the trust instrument (in this instance the decedent’s sister and the 116 OCTOBER TERM, 1944. Douglas, J., concurring. 324 U. S. issue of his deceased brother). Thus until decedent’s death it was uncertain whether any of the corpus would pass to the beneficiaries or whether it would revert to the decedent. Decedent retaining a string attached to all the property until death severed it, the entire corpus was swept into the gross estate and was taxable accordingly. There is no basis evident for deducting the value of the corpus for the period of the life expectancies of the two measuring lives, as was done by the court below. The estate tax is not based on the value of the reversionary interest of the decedent at the time of his death but on the value at the time of his death of the property to which that reversionary interest relates. It makes no difference how vested may be the remainder interests in the corpus or how remote or uncertain may be the decedent’s reversionary interest. If the corpus does not shed the possibility of reversion until at or after the decedent’s death, the value of the entire corpus on the date of death is taxable. Reversed. Mr. Justice Douglas, concurring. If the trust gave a life estate to the decedent and the remainder to his children, § 302 (c) of the 1926 Act would not require the payment of a tax under the rule of May v. Heiner, 281 U. S. 238; Burnet v. Northern Trust Co., 283 U. S. 782; McCormick v. Burnet, 283 U. S. 784; and Hassett v. Welch, 303 U. S. 303. The theory of May v. Heiner was that under those circumstances no interest in the property passed from the grantor to the remainderman on the grantor’s death, since the title of the remainderman had been definitely fixed by the trust deed. We need not determine whether the rule of May v. Heiner should survive Helvering v. Hallock, 309 U. S. 106. See Paul, Federal Estate & Gift Taxation (1942) § 7.15. For HERB v. PITCAIRN. 117 113 Counsel for Parties. in this case the grantor retained the right to reduce or cancel by will or written instrument the interests of the children; and the corpus would have been returned to the grantor if he survived his nieces. Hence it seems plain that the gifts over would take effect in possession or enjoyment only at or after the death of the grantor. HERB v. PITCAIRN et al., RECEIVERS FOR WABASH RAILWAY CO. NO. 24. CERTIORARI TO THE SUPREME COURT OF ILLINOIS.* Argued October 17, 18, 1944.—Decided February 5, 1945. The records in these cases under the Federal Employers’ Liability Act being ambiguous as to whether the state court judgments of dismissal rest on a federal ground or on an adequate state ground, it is appropriate in the circumstances that the causes be continued for such period as will enable counsel for petitioners with all convenient speed to apply to the state court for amendment, or certificate, which will show whether that court intended to rest the judgments on an adequate and independent state ground or whether decision of the federal question was necessary to the judgments rendered. P. 128. 384 Ill. 237,281, 51 N. E. 2d 277, 282, considered. Certiorari, 321 U. S. 759, to review judgments affirming dismissals of two suits under the Federal Employers’ Liability Act. Mr. Roberts P. Elam, with whom Mr. Mark D. Eagle-Ion was on the brief, for petitioners. Mr. Bruce A. Campbell, with whom Messrs. Carleton o. Hadley, Geo. D. Burroughs, James A. Farmer and Walton Whitwell were on the brief, for respondents. *Together with No. 25, Belcher v. Louisville & Nashville Railroad Co., also on certiorari to the Supreme Court of Illinois. 637583°—46-12 118 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. Mr. Justice Jackson delivered the opinion of the Court. Each of these petitioners has made an abortive attempt to maintain an action in a City Court of Illinois on a cause of action alleged under the Federal Employers’ Liability Act. As their calls upon us for relief present the same questions, in granting certiorari we consolidated the cases for argument. 321 U. S. 759. Herb alleged injury while employed as a switchman on the Wabash Railroad at or near the City of Decatur, Mason County, Illinois, on November 23, 1936. He filed complaint under the Federal Act in the City Court of Granite City, Madison County, Illinois, in December of 1937. A verdict of $30,000 was returned, which the trial court set aside. Further proceedings in the Appellate Court and the Supreme Court resulted in remand to the City Court. 377 Ill. 405, 36 N. E. 2d 555. On March 16, 1942, in other cases, the Supreme Court of Illinois decided that, under the Illinois Constitution, a city court is without jurisdiction in any case where the cause of action arose outside the city where the court is located. Werner v. Illinois Central R. Co., 379 Ill. 559,42 N. E. 2d 82; Mitchell V. L. & N. R. Co., 379 Ill. 522, 42 N. E. 2d 86. When these decisions were rendered, plaintiff moved in the City Court for a change of venue, under the Illinois Venue Statute, to the Circuit Court of Madison County, a court of general jurisdiction. Meanwhile the two-year period within which an action could be instituted under the Employers’ Liability Act had long expired. The motion for change of venue was granted and the papers certified and transferred accordingly. The defendant, limiting appearance for the sole and only purpose of the motion, moved, in the Circuit Court, to dismiss on the grounds that the City Court had no jurisdiction either to entertain or to transfer the case; that, since all proceedings theretofore were ut- HERB v. PITCAIRN. 119 117 Opinion of the Court. terly void, no action was pending or properly commenced by the City Court process, nor by the transfer; that, since no action had been commenced in a court of competent jurisdiction, any right under the federal Act had expired by its limitation, which provided that “No action shall be maintained under this Act unless commenced within two years from the day the cause of action accrued.” 35 Stat. 66, 45 U. S. C. § 56.1 The Circuit Court granted the motion to dismiss and the Supreme Court of Illinois affirmed. 384 Ill. 237, 51 N. E. 2d 277. Its affirmance is here claimed to involve a federal question, erroneously decided. Belcher alleged that he was a switchman on the Louisville & Nashville Railroad in its yards at Nashville, Tennessee, where he was injured on February 15, 1939. He filed his complaint on June 22, 1940, in the City Court of East St. Louis, Illinois. The answer joined issue generally and pleaded a release and satisfaction. Reply admitted execution in Nashville, Tennessee, of the document which defendant pleaded, but set up facts in avoidance. On trial a verdict of $20,000 was returned. The trial court set it aside, holding that the evidence did not warrant the verdict. This was on September 18, 1941, and at this stage of the litigation the Supreme Court of Illinois handed down its decisions of March 16, 1942 holding city courts without jurisdiction of causes arising outside their territorial jurisdiction. The plaintiff moved in City Court that venue be changed to Circuit Court of St. Clair County, Illinois, and the motion was granted. The statute • of limitations on the commencement of the action at this 1 An amendment adopted after the present causes of action accrued extended the limitation period to three years, 53 Stat. 1404, but no I Question of its applicability is raised and, in any event, in each case the transfer to the circuit court was made more than three years I aher the cause of action accrued. 120 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. time had run. Defendant made appearance limited to the purpose of moving to dismiss. The case was dismissed by the Circuit Court, and the dismissal was sustained by the Supreme Court of Illinois, in an opinion which adopted the opinion in the companion case. 384 Ill. 281, 51 N. E. 2d 282. First. Whether any case is pending in the Illinois courts is a question to be determined by Illinois law, as interpreted by the Illinois Supreme Court. For as we have said of the Federal Employers’ Liability Act, “we deem it well to observe that there is not here involved any attempt by Congress to enlarge or regulate the jurisdiction of state courts or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction as prescribed by local laws is appropriate to the occasion and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of Congress and susceptible of adjudication according to the prevailing rules of procedure.” Mondou n. New York, N. H. & H. R. Co., 223 U. S. 1, 56-57. “As to the grant of jurisdiction in the Employers’ Liability Act, that statute does not purport to require State Courts to entertain suits arising under it, but only to empower them to do so, so far as the authority of the United States is concerned. . . • But there is nothing in the Act of Congress that purports to force a duty upon such courts as against an otherwise valid excuse.” Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377, 387-88. And see Chambers v. Baltimore & Ohio R. Co., 207 U. S. 142, 148-49; St. Louis, I. M. & 8. R. Co. v. Taylor, 210 U. S. 281; John v. Paullin, 231 U. S. 583. The plight of petitioners is not due to any failure of the State of Illinois to provide forums adequate for the hearing of their cases under the federal statute. The state provides a system of circuit courts sitting in each of its HERB v. PITCAIRN. 121 117 Opinion of the Court. counties which have general and unlimited original jurisdiction at law and in equity. These were open to the petitioners, but they chose instead to file their complaints in city courts. It would not be open for us to say that the state in setting up a local court could not limit its jurisdiction to actions arising within the city for which it is established. When the Supreme Court held these courts without jurisdiction, plaintiffs moved in City Court under the Illinois Venue Act (Illinois Revised Statutes, 1941, ch. 146, § 36) to change venue to the Circuit Court. The City Courts granted the motion and transferred the papers to the Circuit Court. The defendants were served with no process issuing from the Circuit Court, entered no general appearance in Circuit Court. Instead, appearing specially, they moved to dismiss. In each case the motion was grounded in a complete absence of jurisdiction in the City Courts to begin, hear, or transfer the case. Each defendant denied that the Venue Act gave any power to the City Court to transfer, and each claimed that if it did, it would be unconstitutional under the State Constitution. Both also asserted that the federal statute of limitations had run at the time of purported change of venue because no suit had been “commenced” in City Court within its meaning. The Supreme Court of Illinois did not decide whether under the State Constitution the Venue Act was unconstitutional, apparently because it held the Act not to apply. It pointed out that “both the subject matter and the parties must be before the court, and jurisdiction of the one without the other will not suffice; the two must concur or the judgment will be void in any case in which the court assumes to act.” The Circuit Court had served no summons on defendants, and they made no general appearance therein. On the other hand, the City Court admittedly had no jurisdiction of the subject matter, The 122 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. Supreme Court used language which can mean that no valid proceeding was pending in either court as a matter of state law.2 We think that the Supreme Court probably has decided that as matter of Illinois law no action is pending against these defendants in any court and that all of the proceedings have been of no effect whatever. 2 “The question involved relates to the effect of the proceedings had in a court wholly incompetent to render a valid judgment, because if the judgment to be rendered would be void it necessarily follows the preliminary proceedings of the court, necessary to rendition of judgment, must likewise be void. If the court has no jurisdiction of the subject matter for judgment there can be no jurisdiction giving effect to process or pleadings. “The fallacy of [plaintiff’s] argument rests in the fact that it becomes necessary to give validity to proceedings in a court, the judgment of which, if rendered upon such proceedings, would be wholly void. If the ultimate object to be obtained in a suit at law, viz., a judgment, is utterly void, it is difficult to understand how any of the preliminaries to such a judgment, such as summons, pleadings, interlocutory orders and the like have any effect, when the result, had such proceeding been concluded in the first court, would have been a nullity. “. . . if appellant’s contention is sustained, a valid judgment could be obtained by transferring the cause to the proper court upon a summons or notice that defendants could safely disregard when served upon them. This would give the order of transfer by the city court the effect of vitalizing process that was void and considering a case commenced and pending in a proper court during a period when, in legal contemplation, no judicial control of defendants had yet been exercised. “It is clear a suit was not commenced by filing the present suit in the city court of Granite City, or by issuing summons or filing a complaint. Lacking requisite jurisdiction because of the provisions of the constitution limiting it to cases arising within the limits of the city, such court was wholly incompetent to render any judgment or to authorize any proceedings which would result in a judgment. HERB v. PITCAIRN. 123 117 Opinion of the Court. The freedom of the state courts so to decide is, of course, subject to the qualification that the cause of action must not be discriminated against because it is a federal one. McKnett v. St. Louis & 8. F. R. Co., 292 U. S. 230. But we cannot say that the court below, in so far as it did hold the city courts without power, construed the state jurisdiction and venue laws in a discriminatory fashion. In Central Illinois Public Service Co. v. Industrial Commission, 293 Ill. 62, 127 N. E. 80, and Gill v. Lynch, 367 Ill. 203,10 N. E. 2d 812, which are cited to us by petitioners, the Illinois court did uphold the power of one court to transfer a cause to another court for certain purposes. One case, however, involved a proceeding begun in a circuit court, a court of general and unlimited jurisdiction. It issued a writ of certiorari to review a decision of the state compensation commission; transfer was made under the venue statute to another circuit court because the review statute required the proceeding to be in a county where the defendant resided or could be found. In the other case a receivership proceeding was transferred from county court to the circuit court because the county court was without equitable jurisdiction. Thus neither case involved the jurisdiction of a city court nor the application of the venue statutes to a city court. Therefore, the cases are too dissimilar in their facts to make this one appear to be a discrimination against a federal right whether or not they are wholly consistent with some of the language in the present case. And there is no other basis, in the opinion of the court or elsewhere, for the intimation that if petitioners’ cases had been brought under state statutes or common law they would not have been dismissed under the same circumstances as those here present. Had the Supreme Court rested upon its observations about the jurisdiction of Illinois courts and the adequacy of their procedures to bring an action into existence, 124 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. we should be without power to direct these courts to try cases which as matter of local law are not pending. But the Court did not stop at that. Second. The case went to the Supreme Court of Illinois with a certification by the Circuit Court that a federal question was involved. The federal question, whether the action was barred by the federal statute of limitations, was raised by respondents in their motion to dismiss in the Circuit Court. In the course of its opinion the Illinois Supreme Court used language from which it seems reasonably clear that the question was decided,3 either 3 “The material point for consideration is whether the plaintiff has commenced an action within two years of the date of his injury in a court having jurisdiction to hear and determine the same, as required by section 6 of the Federal Employers’ Liability Act . . . “. . . we observe recovery under the Federal Employers’ Liability Act is conditioned upon two things: (1) commencing an action within two years from the date of the injury; and (2) commencing such action in a court having jurisdiction to hear and determine the same. . . . The plaintiff having predicated his case upon the Federal Employers’ Liability Act must comply with its provisions, both with respect to the time of commencing the suit and of bringing it in a court having jurisdiction to hear and determine it. “Conceding, but not deciding, that in proper cases a court without jurisdiction of the subject matter could by statute be authorized to transfer its proceedings . . . still the condition that the action be commenced within two years is not met . . . such statutes cannot recreate a right given under a Federal statute that has ceased to exist by the terms of the (Federal) statute. “In this case jurisdiction of the suit was wholly lacking until July 31, 1942 (if we consider the change-of-venue act valid), and at this time the condition imposed upon the plaintiff with respect to bringing his suit had expired by lapse of time. This determination makes it HERB v. PITCAIRN. 125 117 Opinion of the Court. necessarily, because the Court had not disposed of the case on state law grounds, or hypothetically. For purposes of passing on this question the Court seems to have assumed that an action is pending under state law; for only if one is pending is there occasion to consider whether the cause of action is barred. Petitioners contend therefore that the judgment below does not rest upon a state ground but upon an erroneously decided federal ground—namely, that even though the City Court had power to transfer the case, the action is barred because not “commenced” until it arrived in Circuit Court. Third. This Court from the time of its foundation has adhered to the principle that it will not review judgments of state courts that rest on adequate and independent state grounds. Murdock v. Memphis, 20 Wall. 590, 636; Berea College v. Kentucky, 211 U. S. 45, 53; Enterprise Irrigation District v. Farmers Mutual Canal Co., 243 U. S. 157, 164; Fox Film Corp. n. Muller, 296 U. S. 207. The reason is so obvious that it has rarely been thought to warrant statement. It is found in the partitioning of power between the state and federal judicial systems and in the limitations of our own jurisdiction. Our only power unnecessary to pass upon either the constitutional question involved or the validity of the change-of-venue statute.” (Italics supplied.) In the Belcher case the court said: ‘Upon parallel facts, Herb v. Pitcairn, . . . decided this day, holds that an action is not commenced within two years of the date of injury m a court of competent jurisdiction, as prescribed by section 6 of the Federal Employers’ Liability Act, by transferring the cause from a city court having no jurisdiction of the subject matter at a date when the action, if instituted originally on such date in the circuit court, could not be maintained because not commenced within the statutory time. Our disposition of the identical issue in Herb v. Pitcairn is decisive here.” 126 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion. If the Illinois court means to hold that the city courts could not adjudge, transfer, or begin these cases and that no case is pending in its courts at the present time, it is manifest that no view we might express of the federal Act would require its courts to proceed to the trial of these actions. But what to do with cases in which the record is ambiguous but presents reasonable grounds to believe that the judgment may rest on decision of a federal question has long vexed the Court. In many cases the answer has been a strict adherence to the rule that it must affirmatively appear that the federal question was decided and that its decision was essential to disposition of the case; and that where it is not clear whether the judgment rests on a federal ground or an adequate state one, this Court will not review. Klinger v. Missouri, 13 Wall. 257, 263; De Saussure v. Gaillard, 127 U. S. 216, 234; Johnson v. Risk, 137 U. S. 300, 307; Wood Mowing Machine Co. v. Skinner, 139 U. S. 293; Adams v. Russell, 229 U. S. 353, 358-61; Lynch v. New York, 293 U. S. 52. In other cases where justice seemed to require it, for example because of supervening events, the Court has said that to set aside the judgment and remand the case to the state court for further consideration is not to review, in any proper sense of the term, the decision of the state court. Patterson v. Alabama, 294 U. S. 600, 607; State Tax Comm’n v. Van Cott, 306 U. S. 511, 515. And in Minnesota v. National Tea Co., 309 U. S. 551, uncer HERB v. PITCAIRN. 127 117 Opinion of the Court. tainty as to the grounds of the decision below led the Court to vacate and remand for further consideration. National Tea Co. v. State, 205 Minn. 443, 286 N. W. 360; 208 Minn. 607, 294 N. W. 230. In Lynch v. New York, 293 U. S. 52, the Court strongly intimated that had petitioners requested a continuance in this Court to permit an application to the state court for amendment or clarification of its remittitur, there would be power and willingness to grant it. Later, in International Steel & Iron Co. v. National Surety Co., 297 U. S. 657, 662, the record failed to disclose that a federal question had been presented or decided. Counsel requested at the bar continuance to apply for amplification, and it was granted. Reargument was had in the state court upon the federal question, the court did pass on it, the further proceedings were certified, and this Court asserted jurisdiction and proceeded to decision. The practice has become common by which some state courts, such as the New York Court of Appeals, provide counsel on motion with a certificate of the court or of the Chief Judge that a stated federal question was presented and necessarily passed upon if such was the case. See, e. g., cases cited in Robertson and Kirkham, Jurisdiction of the Supreme Court, § 75. It is no criticism of a state court that we are unable to say in a case where both state and federal questions are presented, discussed, and perhaps decided, that the judgment would have been the same had only one of the grounds been present. Those courts may adjudicate both kinds of questions and because it is not necessary to their functions to make a sharp separation of the two their discussion is often interlaced. But we cannot perform our duty to refrain from interfering in state law questions and also to review federal ones without making a determination whether the one or the other controls the judgment. And in cases where the answer is not clear to us, 128 OCTOBER TERM, 1944. Black, J., dissenting. 324 U. S. it seems consistent with the respect due the highest courts of states of the Union that they be asked rather than told what they have intended. If this imposes an unwelcome burden it should be mitigated by the knowledge that it is to protect their jurisdiction from unwitting interference as well as to protect our own from unwitting renunciation. It is our purpose scrupulously to observe the long standing rule that we will not review a judgment of a state court that rests on an adequate and independent ground in state law. Nor will we review one until the fact that it does not do so appears of record. But because we will not proceed with a review while our jurisdiction is conjectural it does not follow that we should not take steps to protect our jurisdiction when we are given reasonable grounds to believe it exists. We think the simplest procedure to do so, where the record is deficient, is to hold the case pending application to the state court for clarification or amendment. It need not be elaborate or formal if it is clear and decisive in stating whether a federal question, and if so, what federal question, was decided as a necessary ground for reaching the judgment under review. In proper cases we may grant counsel’s request for continuance for the purpose. In proper cases we will impose the duty of applying for it upon petitioner or appellants upon our own motion. These causes are continued for such period as will enable counsel for petitioners with all convenient speed to apply to the Supreme Court of Illinois for amendment, or certificate, which will show whether it intended to rest the judgments herein on an adequate and independent state ground or whether decision of the federal question was necessary to the judgment rendered. Mr. Justice Black, dissenting. Far-reaching implications of the Court’s action in both these cases impel me to state the reasons for my disagreement. HERB v. PITCAIRN. 129 117 Black, J., dissenting. In November, 1936, Herb (the petitioner in No. 24) lost a leg and suffered other severe injuries. He commenced an action against the railroad in an Illinois City Court, was awarded a verdict, the trial judge entered judgment for the railroad notwithstanding the verdict, and an Illinois intermediate appellate court reversed and directed that judgment be entered for Herb. 306 Ill. App. 583, 29 N. E. 2d 543. The Illinois Supreme Court reversed the Appellate Court’s judgment insofar as it had directed that a judgment be entered for Herb, and remanded the case to the City Court for the trial judge to pass upon a motion for new trial should one be made. 377 Ill. 405, 36 N. E. 2d 555. Although five years had already elapsed since Herb’s injuries, his efforts to secure a judicial determination of his rights under federal law had just begun. Apparently, as the lengthy history of Herb’s case shows, it had long been assumed by the courts as well as by the legal profession, that Illinois City Courts had jurisdiction to try railroad employees’ cases arising under federal law. But after remand of his case to the City Court, the state Supreme Court handed down opinions in two other cases holding that City Courts did not have jurisdiction to hear and determine actions for injuries which occurred outside their territorial limits.1 In view of this new obstacle to his action, the petitioner then moved for a change of venue to the Circuit Court, under an Illinois statute authorizing transfer from a “wrong court or county” to a “proper court or county.” Ch. 146, Ill. Rev. Stat. 1941, Par. 36. The motion was granted, and in the Circuit Court the railroad moved to dismiss the cause on. the ground that (1) all of the orders of the City Court, including the change of venue, were invalid; (2) the statute authorizing transfer was unconstitutional; (3) the suit had not been “commenced” within two years after the date 1 Werner v. Illinois Central R. Co., 379 Ill. 559, 42 N. E. 2d 82; Mitchell v. Louisville & Nashville R. Co., 379 Ill. 522,42 N. E. 2d 86. 130 OCTOBER TERM, 1944. Black, J., dissenting. 324 U. S. of the injury as required by § 6 of the Federal Employers’ Liability Act. The motion to dismiss was sustained and Herb appealed. The Circuit Court Judge’s certification to the Illinois Supreme Court recited that the judgment involved construction of the Illinois and United States Constitutions, the validity of an Illinois statute, and the validity and construction of § 6 of the Federal Employers’ Liability Act. The court below in the very first sentence after reciting the facts, stated that “the material point for consideration” was whether the requirements of § 6 of the Federal Employers’ Liability Act had been met. Throughout its entire opinion, the Court construed § 6 and the City Court’s jurisdiction as related to its construction of that section, in order to determine whether or not its requirements had been met. Then, having decided that the action was not “commenced” within the federal statutory period, it summarily disposed of the state questions raised with this one sentence: “This determination makes it unnecessary to pass upon either the [Illinois] constitutional question involved or the validity of the [Illinois] change-of-venue statute.” It is true that the court below held that “proceedings in the City Court were of no effect.” In so holding, it did not decide that this fact alone authorized dismissal of the cases from the Circuit Court, which admittedly had jurisdiction to try cases arising under the federal Act. Consequently, it cannot be said that this holding provides an independent state ground for the Circuit Court’s dismissal. The only reason why the Circuit Court could dismiss under the State Court’s view was because § 6 of the federal Act required a suit to be “commenced” in two years. This made it necessary for the court to interpret the meaning and scope of “commenced.” It construed the word as meaning not only that a suit should be filed HERB v. PITCAIRN. 131 117 Black, J., dissenting. within two years of an injury, but that such suit must be filed in a court having jurisdiction to hear and determine the cause. Having thus by construction superimposed this condition on the federal Act, it proceeded to determine whether the City Court had such power. It held that the City Court did not have such power (a state question). Then applying its construction of the federal statute, it decided that the action had not been “commenced” within two years from the date of the injuries (a federal question). All of this shows a determination of federal questions which we should decide. But this Court says that other language in the state court’s opinion indicates that its judgment might really have been rested on a state procedural ground, adequate to support the dismissals. So now, more than eight years after Herb was injured, both cases are to be held here to give counsel an opportunity to ask the state Supreme Court if it “intended to rest the judgments herein on an adequate and independent state ground or whether decision of the federal question was necessary to the judgment rendered.” I would not thus lightly abdicate our ultimate responsibility to protect federally created rights. To “admit that the authority to review the action of a state court where it has decided a federal question can be rendered unavailing by a suggestion ‘that the court below may have rested its judgment’ on a non-federal ground, would simply amount to depriving this Court of all power to review federal questions if only a party chose to make such a suggestion.” St. Louis, I. M. & S. R. Co. v. McWhirter, 229 U. S. 265, 275, 276. Furthermore, even a final determination that there was an adequate state procedural ground for dismissal of these particular suits would not end the controversies, although it might protract litigation for five more years. This is true, because it is beyond belief that dismissals on these procedural grounds would bar new actions based on the 132 OCTOBER TERM, 1944. Black, J., dissenting. 324 U. S. injuries. And the federal question so clearly presented here and now, could hardly be escaped in new actions. That question is, “Are these suits barred by Section 6 of the Federal Employers’ Liability Act?” This question presents a twofold problem: (1) Does § 6 have any application to these actions; (2) If so, should the word “commenced” be construed so as to make the beginning of the suit in the City Court such a commencement? As to (1), it is to be noted that both complainants claim damages for violation of the Federal Safety Appliance Act. 27 Stat. 531 et seq.; 45 U. S. C. § 1 et seq. Violation of the Safety Appliance Act, even without the Federal Employers’ Liability Act, gives rise to a cause of action on the part of an employee injured as the proximate result of that violation. Louisville & Nashville R. Co. v. Layton, 243 U. S. 617, 620; Texas & Pacific R. Co. n. Rigsby, 241 U. S. 33, 39. That Act contains no statute of limitations. No authority has been cited to support the proposition that the condition of liability imposed by § 6 of the Federal Employers’ Liability Act applies to actions for damages for violation of the Safety Appliance Act. The rule of this Court has been to give the Safety Appliance Act, under which these claims were filed, a liberal construction, and one which will promote, not defeat, its purpose. Swinson v. Chicago, St. P., M. & 0. R. Co., 294 U. S. 529,531. Assuming that petitioners here are to be required to file new suits, and that the two year limitation of § 6 of the Federal Employers’ Liability Act applies to injuries resulting from violation of the Safety Appliance Act, it still must be determined whether filing these suits in the City Courts “commenced” actions within the meaning of that word as used in § 6. Certainly the railroads had notice of the suits. They evidently thought they had been “commenced” when they contested them in all the courts of Illinois. The lawyers for all the litigants undoubtedly felt sure that they were HERB v. PITCAIRN. 133 117 Black, J., dissenting. trying law suits in proper forums. Neither the Illinois Court of Appeals nor the State Supreme Court which remanded Herb’s case to the City Court had any doubt at that time that suits had been “commenced.” The plainest principles of justice demand that these employees be afforded a trial. No reason that can be conceived for erecting a statutory bar of two years justifies an inference that Congress intended that employees who made bona fide efforts to prosecute their claims in a court should be barred because of unanticipated decisions as to jurisdiction. The words of the statute justify the construction that these actions were “commenced” when they were filed in the City Courts. Any other construction results in a frustration of the broad objectives of the Act. Finally, I can find no warrant whatever for saying that the state Supreme Court may have sustained dismissal on the ground that no suits at all were “pending” in the state Circuit Court. That court had jurisdiction to try them. The complaints were there. True, they might have been brought there by a City Court Clerk, although so far as the record shows, petitioner’s attorneys may have taken them to the Circuit Court. But the state Supreme Court’s opinions do not indicate that Illinois law requires that a complaint be physically filed by the hands of no one except an injured person. I shall not believe the state court would make such a holding until it does so. For special reasons, in addition to those above stated, I think that this Court’s action in requiring Belcher (petitioner in No. 25) to obtain some kind of certificate of “intention” from the Illinois Supreme Court is without any conceivable justification. The argument of parties before us and the Court’s opinion have treated the Belcher case as though the Supreme Court of Illinois had sustained Jts dismissal and the Herb dismissal, in No. 24, on identical grounds. This treatment of the two cases is not justified unless the State Court’s opinion in Belcher's case is given 637582°—46------13 134 OCTOBER TERM, 1944. Black, J., dissenting. 324 U. S. a strained interpretation. The Belcher opinion did cite the Herb opinion as presenting “parallel facts” to those of the Belcher case. But the “parallel facts” in the two cases upon which the Belcher dismissal was premised, were carefully limited by the Belcher opinion’s statement of the issue to this effect: “Defendant, appearing specially, made a motion to quash the summons issued by the city court and to dismiss the cause for the reason, among others, that the cause having been ordered transferred to the circuit court on July 17, 1942, more than two years after the date plaintiff suffered his injuries, namely, February 15, 1939, he could neither institute nor maintain his action in the circuit court since it had not been commenced within two years from the day the cause of action accrued, conformably to section 6 of the Federal Employers’ Liability Act.” Belcher v. L. & N. R. Co., 384 Ill. 281,282. After stating the issue in this limited fashion, the Belcher opinion then went on to say: “Upon parallel facts, Herb v. Pitcairn, . . . decided this day, holds that an action is not commenced within two years of the date of injury in a court of competent jurisdiction, as prescribed by section 6 of the Federal Employers’ Liability Act, by transferring the cause from a city court having no jurisdiction of the subject matter at a date when the action, if instituted originally on such date in the circuit court, could not be maintained because not commenced within the statutory time. Our disposition of the identical issue in Herb v. Pitcairn is decisive here.” Belcher v. L. & N. R. Co., supra, 282-283. It thus appears that the Belcher opinion sustaining dismissal rested squarely and exclusively on the state court s conclusion that the cause of action was barred by § 6 of the Federal Employers’ Liability Act. Notwithstanding this, the Court now, six years after Belcher’s injuries, delays a final decision on the applicability of the federal Act, HERB v. PITCAIRN. 135 117 Rutledge, J., dissenting. to await a statement from the state court as to whether it would have decided it on a hypothetical state ground had that ground been considered by it in the first instance. Mr. Justice Douglas and Mr. Justice Murphy join in this dissent. Mr. Justice Rutledge, dissenting. I concur with Mr. Justice Black’s opinion in so far as it relates to the failure of the Illinois Supreme Court to take account of petitioners’ claims based on the Federal Safety Appliance Act. Clearly § 6 of the Federal Employers’ Liability Act does not apply to causes arising under the former Act and, on this ground alone, the judgments should be reversed. I agree also that the Illinois court has determined the causes under the Employers’ Liability Act solely by its view of federal law and that it has done so erroneously. It has held that neither action was “commenced” in time within the meaning of § 6 and in doing so has interpreted “commenced” to mean begun in a court competent to hear and determine the cause. Under this decision, the causes would not have been commenced, even if similar causes arising under state law were held sufficiently begun, for similar purposes, in identical circumstances. We do not know and cannot know whether local actions so filed and transferred would be barred. We do not know this because, as Mr. Justice Black points out, the Illinois Supreme Court expressly disavowed that it had applied or determined the validity of the Illinois venue statutes, which on their face purport to authorize just such transfers as occurred in these causes.1 Consequently until the 1The pertinent provisions of the Illinois venue statutes are as fol-ows: ‘That wherever any suit or proceeding shall hereafter be com-inenced, in any court of record in this state, and it shall appear to the °urt where the same is pending, that the same has been commenced w wrong court or county, then upon motion of either or any of the 136 OCTOBER TERM, 1944. Rutledge, J., dissenting. 324 U. S. validity and effect of those statutes are determined, the Illinois court’s decision in these cases must be taken to rest wholly upon its view of the meaning of § 6, entirely independently of the meaning of the state venue statutes, and to be founded solely upon a federal ground. That ground as the Illinois court decided it is, in my opinion, clearly wrong. It was, apparently, that “commenced” in § 6 always means “commenced in a court competent to hear and determine the cause,” regardless of whether local causes may be sufficiently commenced, for similar purposes, in a court of limited jurisdiction capable of transferring but not of hearing and deciding them. Nothing in § 6 or the Act so states. On the contrary, when the suit is in a state court, it is to be taken, by fair implication, that whatever is sufficient generally to constitute be parties to such suit or proceeding, the court shall change the venue of such suit or proceeding to the proper court or county, and the same when the venue shall be so changed, shall be then pending and triable in such court or county to which the same shall be so changed the same as in other cases of change of venue: Provided, that where either party to such suit or proceeding shall procure the change of venue as herein provided for, that the court shall require the plaintiff in said suit to pay all costs in such suit or proceeding, up to and including the costs of the change of venue except such costs, if any there are, as shall have been made or occasioned by answer to the merits and a trial thereon, if any such shall have been had or made, and such costs, if any, caused by answer to the merits and trial thereon shall abide the final result of such suit or proceeding the same as in other cases of change of venue.” Ill. Rev. Stat., 1943, c. 146, § 36. “Change of venue from city courts, for the same causes and in the same manner, may be taken as from circuit courts, and the cases sent to any other city court, or to any circuit court, or to any other court of competent jurisdiction where the cause complained of does not exist: . . .” Ill. Rev. Stat., 1943, c. 37, § 346. “The clerk of the court to which the change of venue is granted shall file the transcript and papers transmitted to him and docket the cause, and such cause shall be proceeded in and determined in all things, as well before as after judgment, as if it had originated in such court. Ill. Rev. Stat., 1943, c. 146, § 16. (Emphasis added.) HERB v. PITCAIRN. 137 117 Rutledge, J., dissenting. ginning of suit for other actions is beginning of suit for these. If for instance it should be the state law that local causes are sufficiently commenced from the time of filing the complaint, though in the wrong court for reasons of jurisdiction relating to trial and decision, if nevertheless upon discovery of the error the cause is transferred to another court having complete jurisdiction, nothing in § 6 or the Federal Employers’ Liability Act requires or permits suits brought under that Act to be treated differently. A state may confer upon its courts of limited jurisdiction limited powers over causes they are not competent to hear and decide. A salutary instance would be to safeguard litigants against unwitting loss of their rights of action through stumbling into jurisdictional pitfalls, by providing that actions filed in the wrong court should not be defeated through lapse of time merely because the plaintiff had mistaken his court, if upon discovery of the error, though after the period, the cause were transferred promptly to a fully competent court. Such a provision would merely create either an exception to the statute of limitations or a means of suspending the time of its running. On their face, that is what the Illinois venue statutes purport to do, though whether this is their effect is of course for the state courts to decide. In any event, such a statute would not be contrary to or inconsistent with § 6 or any other provision of the Federal Employers’ Liability Act. On the contrary, litigants in the state courts under that Act would be entitled to the benefit of such a provision if this were given to litigants having causes arising under state law. Accordingly, since the Illinois court has held that § 6 by its own terms requires that the commencing event take place in a court having jurisdiction not only to begin and ransfer, but also to hear and to decide, the judgments should be reversed and remanded. 138 OCTOBER TERM, 1944. Counsel for Parties. 324 U. S. CENTRAL STATES ELECTRIC CO. v. CITY OF MUSCATINE et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 85. Argued December 8, 1944.—Decided February 12, 1945. 1. The Circuit Court of Appeals, which, upon review of a valid rate order of the Federal Power Commission under the Natural Gas Act, had impounded pendente lite amounts paid to the natural gas company by the petitioner (a local distributor) in excess of lawful rates, was without jurisdiction to adjudicate the rights of consumers in the fund or to order payment of the fund to officers of municipalities for the benefit of those ultimately found entitled. P. 145. 2. In this situation, the most that the court below should do, in view of the apparent controversy as to the consumers’ right to a refund of rates paid to the petitioner, is to order that the fund be held for a reasonable time to permit interested persons to litigate the issue in a tribunal having jurisdiction, the order to be conditioned that if such litigation is not instituted within a reasonable time, and prosecuted to final adjudication, the fund shall be paid over to the petitioner, and that, if it be adjudged as a result of such litigation that the petitioner is indebted to its consumers because of the reduction of wholesale rates in this proceeding, further application may be made to the court as to disposition of the fund. P. 145. 3. United States v. Morgan, 307 U. S. 183, and Inland Steel Co. v. United States, 306 U. S. 153, distinguished. P. 145. Reversed. Certiorari, 322 U. S. 724, to review orders of the court below which directed payment to certain municipal officers of impounded funds claimed by the petitioner. Mr. Perry M. Chadwick, with whom Mr. Bert L. Kloo-ster was on the brief, for petitioner. Mr. Charles V. Shannon, with whom Solicitor General Fahy, Assistant Attorney General Shea, Messrs. Robert CENTRAL STATES CO. v. MUSCATINE. 139 138 Opinion of the Court. L. Stern, Jerome H. Simonds and Stanley M. Morley were on the brief, for the Federal Power Commission; and the cause was submitted by Mr. Matthew Westrate for the City of Muscatine and by Elmer E. Johnson, pro se,— respondents. Mr. Justice Roberts delivered the opinion of the Court. We are concerned in this case with the nature and extent of the powers of a federal court sitting to review an order of the Federal Power Commission. The decision of the court below denied the petitioner’s application for payment to it of a fund of some $25,000 deposited in court, and directed its payment to persons not privies to the transaction which created the fund. A detailed recitation of events is required to show how the question arises. The Federal Power Commission (hereinafter called Commission), proceeding under the Natural Gas Act,1 entered an order against the Natural Gas Pipeline Company of America (hereinafter called Pipeline) requiring it to cut its rates on natural gas to effect an annual reduction in revenue of not less than $3,750,000, effective September 1,1940. The petitioner, Central States Electric Company (hereinafter sometimes called Central), an Iowa corporation doing a public utility business in that State and elsewhere, purchased gas at wholesale from Pipeline and distributed it in Iowa. Pipeline sought a review of the Commission’s action by the Circuit Court of Appeals. The court set aside the order but, on certiorari, we reversed and sustained it.1 2 At the inception of the case Pipeline had petitioned for a 152 Stat. 821; 15 U. S. C. § 717. 2 Federal Power Commission v. Natural Gas Pipeline Co., 315 U. S. 575. 140 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. temporary stay and the court below had granted a stay on condition that a bond be filed to secure the refund to purchasers at wholesale of the amounts respectively due them if the court should sustain the reduction of rates ordered by the Commission. On the dissolution of the temporary stay another was entered to continue until the further order of the court, conditioned that Pipeline should enter a second bond in the same terms. This was done. When this court rendered its judgment sustaining the rate order, Pipeline became liable to make refunds in accordance with the bond. The court below, prior to the payment of the amount due under the bond, filed an opinion holding that it was its duty to take exclusive control over the refund when made and to determine the rights of all claimants in the fund, and made an order enjoining claimants to the fund from further proceeding in any other court. This action was pursuant to a petition of Pipeline showing that suits were being filed against it in other courts by the ultimate consumers of the gas sold by Pipeline to the local distributing companies and alleging that unless the court retained jurisdiction of the fund Pipeline would be subjected to numerous similar suits. Illinois Commerce Commission, in an answer, stated that the rates charged by distributing companies in Illinois were fixed by it and reflected the prices paid by distributors to Pipeline and that the refund, representing excessive rates paid by distributors, had been collected from the ultimate consumers and was equitably due them. The Illinois local distributors then before the court agreed that the refund should be ratably paid to the ultimate consumers. Central was not a party to the proceeding in the Circuit Court of Appeals, but, on June 29, 1942, it sent a letter to the Clerk, in response to one from him, asserting that the portion of the refund representing excessive rates paid by Central during the refund period should be repaid to CENTRAL STATES CO. v. MUSCATINE. 141 138 Opinion of the Court. it and not to the ultimate consumers. June 30, 1942, the court rendered an opinion in which it discussed the relative rights and interests of local distributors and ultimate consumers. The court found that, since the rates charged to local consumers included the excess charges paid by distributors to Pipeline, the ultimate consumers were in equity entitled to receive the refund. July 1, 1942, Pipeline paid into court a sum representing that portion of the rates paid to it in excess of the rate permitted by the Commission’s order. The court thereupon entered an order to show cause, which specified the refund period, determined that the amount paid into court was the property of the ultimate consumers, and allocated the fund to the customers of the local distributors, including Central’s customers (to whom there was allocated $25,708.54), reserved jurisdiction of the fund for the protection of all persons having rights therein, and directed all claimants to the fund to show cause why the order should not be binding on them. Later the court entered an order in which it found that Central had raised an issue concerning the relative rights of itself and its customers to the amount in question. Central, which, as we have said, had not become a party to the proceedings, then filed a petition in intervention praying that the sum be paid to it, and leave to intervene was granted. Central’s petition set forth that it purchased natural gas from Pipeline during the refund period, pursuant to a contract; that the sum in question represented amounts paid by Central during the refund period in excess of the rates fixed by the Commission’s order; that Central sold more than 81% of the gas in question without profit to Iowa Electric Company, which resold the same to some 2,400 consumers in Muscatine, Iowa, and that Central sold the balance directly to some 320 consumers in Greenfield, Iowa, 597 in Knoxville, Iowa, and 366 in Pella, Iowa; that less than 12% % of the gas sold in Knoxville and Pella was natural 142 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. gas; that Iowa Electric Company had transferred all its rights in and to the fund to Central for the purpose of these proceedings; that, by the law of Iowa, the power to fix rates for gas service is vested in its municipalities, and the utility rates in that State are not regulated by any State agency or commission; that rates to consumers had been voluntarily reduced to meet competitive conditions and that such rates had been approved by resolution of the Council of Muscatine; and that, due to conditions in the communities serviced, the rates charged consumers were insufficient to produce a fair return. Thereafter the court entered an order directing that the Attorney General of Iowa and the purchasers of gas from Central, and their respective municipal representatives in Muscatine and Greenfield, be notified of Central’s claim to the fund and that they show cause why the relief sought by Central should not be granted. No such order was made with respect to consumers in Knoxville and Pella nor to any officials of those cities. The City of Muscatine and the Mayor of Greenfield, purporting to represent the consumers in those cities, filed separate pleadings in which they asserted that the fund in question belonged to the consumers. The court, without hearing evidence, denied the relief prayed by Central by an order which was stated to be “without prejudice” to Central’s “making claim of adjustment with the cities of Muscatine, Greenfield, Knoxville and Pella ... or with the consumers of gas furnished by it in said cities.” The reason stated for making the order was that the court was without jurisdiction to hear Central’s claim since it involved a determination of “the reasonableness of petitioner’s rates” and further since the court had previously ruled that the refund belonged to the ultimate consumers. In a separate order entered the same day, the court directed payment of the sum in question to the treasurers of the several cities in specified CENTRAL STATES CO. v. MUSCATINE. 143 138 Opinion of the Court. amounts. It fixed the amount allocated to Muscatine at 81% of the fund, apparently relying upon the allegation of the petition that more than 81% of the gas purchased from Pipeline was delivered to consumers in that city. It apparently failed to give consideration to the allegation that less than 121/2% of the gas sold in Knoxville and Pella was natural gas. The order recited that the fund belonged to the ultimate consumers and that the court desired to pay it at the earliest possible time to “such parties as are* entitled to the same, and to permit of a determination of said rights by a court or body having jurisdiction thereof.” Thereafter Central filed a supplemental petition setting forth that, except for the stay order, Central would have retained the sum in question; that Central was the only party in privity with Pipeline and was, therefore, entitled to the benefit of the rate reduction, and that the bond filed pursuant to the court’s order called for payment of the refund to purchasers at wholesale, one of whom was Central. It further attacked the jurisdiction of the court to award the sum to Central’s ultimate consumers since such an award amounted to a retroactive reduction of local rates to which the Natural Gas Act, by express terms, did not apply, and, finally, asserted that the court ought not to make the award based on a conclusion of fact unsupported by any evidence that the burden of the excessive rates had been passed on to the consumers whereas the court, at the same time, disclaimed jurisdiction to determine the reasonableness of local rates and, therefore, refused to hear evidence of Central’s equitable right to the fund. Muscatine and the Mayor of Greenfield responded. The court denied the petition without hearing or argument. The court below was right in its view that as a federal court it had no power, at least in the absence of federal legislation purporting to confer such power upon it, to fix or adjust Central’s rates, that being a legislative function 144 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. of the State of Iowa. This would be so where the fund in dispute came into its possession in a proceeding to enjoin the operation of an order affecting state rates,3 and must be equally true where the proceeding was one to enjoin collection of a rate for interstate service. This, because the court below had no power as a court of equity to fix rates, and as a federal court had no power to adjudicate a matter within the legislative competence of Iowa. The court below so held in this case, and has dealt with the matter more fully and to the same effect in another.4 The Natural Gas Act clearly discloses that, though its purpose may have been to protect the ultimate consumer at retail, the means adopted was limited to the regulation of sales in interstate commerce at wholesale, leaving to the states the function of regulating the intrastate distribution and sale of the commodity. That Congress intended to leave intrastate transactions to state regulation is clear, not only from the language of the Act,5 but from the exceptionally explicit legislative record,6 and from this Court’s decisions.7 The showing made by the petitioner’s pleadings, and not denied, is that in Iowa rates are set by municipal ordinance; that the rates collected from consumers during the refund period were the lawful rates, so fixed; and that the sums impounded were deducted from the payments to Pipeline by Central out of its own funds. The only reply s Central Kentucky Natural Gas Co. v. Railroad Commission, 290 U. S. 264,271, 272. 4 Natural Gas Pipeline Co. v. Federal Power Commission, 141 F. 2d 27. 6 See, e. g., § 2 (8), 15 U. S. C. § 717 (a) (8); § 5 (a), 15 U. S. C. § 717d (a); § 13, 15 U. S. C. § 717Z; § 14a, 15 U. S. C. § 717m (a); § 15a, 15 U. S. C. § 717n (a); § 17 (a), 15 U. S. C. § 717 (p). 6 H. R. No. 709, 75th Cong., 1st Sess., pp. 1-3. 7 Public Utilities Comm’n v. United Fuel Gas Co., 317 U. S. 456, 467; Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591, 609-610. CENTRAL STATES CO. v. MUSCATINE. 145 138 Opinion of the Court. made by the municipal authorities is that the fund belongs to the ultimate consumers. Whether this is so, whether under Iowa law reparation may be demanded for sums paid by consumers under a standing rate, we do not know. Nor do we know who are proper parties under Iowa law to any proceeding to determine the relative rights of petitioner and its customers. Certainly these are questions of Iowa, not of federal, law. We are of opinion that the court below lacked jurisdiction to adjudicate the question of the consumers’ rights in the fund in dispute. United States v. Morgan, 307 U. S. 183, on which the respondents rely, is obviously distinguishable. There the fund impounded was part of the charges paid to the stockyard merchants by persons who had been charged the rates found by the Secretary of Agriculture to be excessive. Here, since the fund represents a portion of sums paid by Central to Pipeline out of Central’s funds and pursuant to contract with Pipeline, the Morgan case would be authority for repayment to Central. This is true also of Inland Steel Co. v. United States, 306 U. S. 153. Moreover, if Central had paid Pipeline the excessive rates, the latter could not have defended a suit by Central to recover the excess on the ground that Central had passed on the burden to its customers.8 The ultimate consumers’ rights being such as the law of Iowa affords, there is no reason for the payment of the fund to municipalities or municipal officers under a quasi trust for those found ultimately entitled, thus placing the burden on Central to pursue the cities or their officers for its recovery. An order to this effect is certainly not within the court’s jurisdiction as a federal court of equity. The most the court below should do, in view of the apparent controversy as to the consumers’ right to a refund of sSouthern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U. S. 531. 146 OCTOBER TERM, 1944 Black, J., dissenting. 324 U. S. rates heretofore paid to Central, is to order that the fund be held for a reasonable time to permit interested persons to litigate the issue in a tribunal having jurisdiction, the order to be conditioned that if such litigation is not instituted within a reasonable time, and prosecuted to final adjudication, the fund shall be paid over to Central, and that if it be adjudged as a result of such litigation that Central is indebted to its consumers because of the reduction of wholesale rates in this proceeding, further application may be made to the court as to its disposition. The judgment is reversed and the cause remanded for further proceedings in conformity to this opinion. So ordered. Mr. Justice Black, dissenting. The primary purpose of Congress in passing the Natural Gas Act was to protect ultimate consumers of gas from excessive prices. Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591, 610, 612. The Court’s decision today defeats that Congressional purpose, for under its interpretation of the Act the petitioner, a retail gas distributor, is awarded a windfall,1 at the expense of the very consumers the Act was designed to protect. On September 23,1938, a petition praying for reduction of the wholesale gas rates of the Natural Gas Pipeline Company was filed with the Federal Power Commission. July 23, 1940, the Commission ordered the Company to make reductions in its future rates. The Circuit Court of Appeals, upon the Company’s petition, then granted a stay pending litigation. Later, it stayed enforcement of the order. 120 F. 2d 625. As a condition of its stay, the Circuit Court of Appeals required the Company to execute a million dollar bond running to the Federal Power 1 The court below refused to construe the Natural Gas Act so as to make this petitioner “the beneficiary of a windfall, to which it intends to hold on, once it can get possession of it.” CENTRAL STATES CO. v. MUSCATINE. 147 138 Black, J., dissenting. Commission and the Illinois Commerce Commission. On March 16, 1942, this Court reversed the cause and sustained the Commission’s order. 315 U. S. 575. Subsequently, $6,377,913.57 was paid into the court by the Pipeline Company, this being the amount it had collected, pending the litigation, from Illinois, Nebraska, and Iowa gas distributing companies, in excess of the rates fixed by the Commission. The Pipeline Company, and all of the distributing companies except petitioner here and one small company in Nebraska,2 acquiesced in the holding of the court below that the funds thus impounded properly belonged to the ultimate consumers, and should be refunded to them. All of this amount, $6,377,913.57, except for the $25,708.54 now ordered by this Court to be paid to the petitioner, has been distributed to the ultimate consumers.3 The Court holds that the disposition of such funds must be made in accordance with state law and that the Circuit Court of Appeals was without jurisdiction to dispose of 2 This company subsequently settled with its consumers by turning over to them approximately 70% of the funds allocable to its purchases. 3 June 30, 1942, after a notice had been issued to petitioner Central, the Court held that all refunds “belong to the consumers, for whose benefit these proceedings were instituted.” Central did not actually intervene until fourteen months later. With reference to this delay of Central’s the court below said in its June 30, 1942 order that “Nebraska City and all other utilities stood by and accepted the situation as it was tendered by the pleadings and the parties. Now one or two of these utilities located where no State Supervisory Commission exists, are endeavoring to seize the fruits of the litigation brought for the consumers and retain the money for their own individual gain. It would be a gross travesty upon the proceedings, t e outcome, if they were to succeed. With their efforts in this respect, we have no sympathy.” Without going into a narration of what later occurred, I am of opinion that the court rightfully denied entrals intervention on the ground that it had long since decided e question. The importance of the rule announced by the court, owever, prompts me to discuss it. 148 OCTOBER TERM, 1944. Black, J., dissenting. 324 U. S. them as it did. Until today, this Court seems never to have doubted that “it is a power ‘inherent in every court of justice so long as it retains control of the subject matter and of the parties, to correct that which has been wrongfully done by virtue of its process’.” United States v. Morgan, 307 U. S. 183, 197. Here, consumers of gas have been injured by a federal court order staying the Federal Power Commission’s 1940 rate cut. In 1942, this Court sustained the Commission’s order. 315 U. S. 575. At that time, the Pipeline Company contended before this Court that if the Commission’s rate order should be sustained, the fund accumulated as a result of the stay should be retained by it, and should not be turned over to the distributing companies because “the purpose of the rate regulation is the protection of consumers and . . . will not be effectuated by refunds to wholesalers” of their “profits for past business.” Upon our remand of the cause for further proceedings, the Pipeline Company petitioned the court below to take jurisdiction of the excess funds. That court held, in impounding the fund here involved, that since it was authorized by §§ 19 (b) and (c) of the Act to issue a stay pending review of the Commission’s rate order, it had a mandatory obligation as a court of equity “to determine to whom and in what amounts the distribution shall be made.” This holding was in accord with “the governing principle that it is the duty of a court of equity granting injunctive relief to do so upon conditions that will protect all—including the public—-whose interests the injunction may affect.” Inland Steel Co. v. United States, 306 U. S. 153, 157. The injury to the consumers here did not stem from state law or the action of a state court; it was the direct result of stay orders made by a federal court. These orders, which permitted the Pipeline Company to continue to charge rates which the Commission had determined to be excessive, to the detriment of ultimate consumers, were CENTRAL STATES CO. v. MUSCATINE. 149 138 Black, J., dissenting. issued under the provisions of the Natural Gas Act. The injuries here were therefore occasioned by the application of federal law in a federal court, and raised federal, and not state law questions. For a federal court to remedy this injury by affording that protection to consumers which the act contemplated, cannot, in my judgment, be said to amount to a regulation of local gas rates. The Natural Gas Act contemplates that federal reduction of wholesale gas rates to distributors will be reflected in reduction of retail rates to the ultimate consumers. Information before the Congress when it passed the Natural Gas Act showed that a large percentage of the retail cost of gas was attributable to the wholesale cost.4 Thus the wholesale cost is a critical element in a state proceeding to regulate retail cost. An effective order of the Federal Power Commission reducing wholesale costs affords local consumers a basis for a corresponding retail reduction. But a federal rate reduction order cannot be utilized before state regulatory agencies where the federal reduction order has been stayed by a federal court. Thus, during the three years that the Power Commission’s rate reduction was held in abeyance pursuant to the stay orders, the Iowa consumers were deprived of the opportunity to obtain a reduction of their rates from the local regulatory agencies. The City of Muscatine, Iowa, promptly passed an ordinance reducing local gas rates after vacation of the orders staying enforcement of the Power Commission’s rate reduction. Ultimate consumers can secure benefits from a federal rate reduction in two ways: (1) by using the order to get 4 See Final Report of the Federal Trade Commission to the Senate, Sen. Doc. 92, Part 84—A, 70th Cong., 1st Sess., pp. 611, 612; Cong. Record, 75th Cong., 1st Sess., vol. 81, pp. 6723, 6725, 6728; Hearings Before the House Committee on Interstate & Foreign Commerce, 75th Cong., 1st Sess., on H. R. 4008, pp. 27, 38-39, 56-57; Hearing on H. R. 11662, House Subcommittee on Interstate & Foreign Commerce, 74th Cong-, 2d Sess., pp. 25, 34-35, 81. 637582°—46--14 150 OCTOBER TERM, 1944. Black, J., dissenting. 324 U. S. reduced rates before their local regulatory bodies; (2) by the impounding of funds for their benefit if a judicial stay of the federal reduction order is granted. The stay deprived these local consumers of a chance to use the Commission’s order to obtain a local rate reduction. The holding of this Court partially, if not completely, deprives them of the benefits of the impounded funds. Cf. First National Bank v. Flershem, 290 U. S. 504, 520. To deny petitioner distributing company a refund of the impounded monies would impose no deprivation upon it. Petitioner’s local rates were fixed by a Muscatine city ordinance, to which rates the petitioner alleges it voluntarily agreed. That schedule of rates, petitioner argues, was “presumptively reasonable.”5 6 * Petitioner admits that Iowa law requires the wholesale cost of gas to be one of the factors considered in determining the reasonableness of rates.8 The petitioner’s rates must therefore be considered reasonable on the basis of the old wholesale price of gas, and any increment above those rates is a “windfaU.” Furthermore, the petitioner says it was free under Iowa law to attack the rates at any time as too low. This it never did. Instead, it refrained from doing so until this Court had sustained the Commission’s order reducing wholesale rates, and until the Circuit Court of Appeals had adjudged that the monies belonged to the consumers. Not until then did it file its intervention claim for the impounded funds. The reason for this delay is not difficult to find. Petitioner, in arguing here that it should get 5 Petitioner cites in support of its argument, Iowa Railway & Light Co. v. Jones Auto Co., 182 Iowa 982,164 N. W. 780; Town of Williams v. Iowa Falls Electric Co., 185 Iowa 493, 170 N. W. 815; Knotts v. Nollen, 206 Iowa 261, 218 N. W. 563; Mapleton n. Iowa Public Service Co., 209 Iowa 400, 223 N. W. 476. 6 See Cedar Rapids Gas Co. v. Cedar Rapids, 144 Iowa 426, 120 N. W. 966, aff’d 223 U. S. 655. CENTRAL STATES CO. v. MUSCATINE. 151 138 Black, J., dissenting. this impounded fund, asserts that under Iowa law “municipalities may only fix rates prospectively.” Iowa cases cited by the petitioner7 seem to give some support to this contention, especially when considered with decisions of this Court dealing with analogous statutory situations.8 I am therefore unable to see much likelihood of these consumers obtaining relief in the Iowa state courts for the injury they have suffered as a result of the federal court’s action in granting a stay of the Federal Power Commission’s order. If my previous analysis is correct, the rule announced by the Court today means simply this: So long as litigation can be kept pending in the courts as to the validity of a Federal Power Commission rate reduction order, the benefits of the Natural Gas Act will be suspended as to ultimate consumers, and will be largely, if not exclusively, restricted to retail distributors.9 Thus, by a strange quirk of statutory construction, the effort of Congress to protect consumers from excessive rates is transformed, where litigation is pending, into an Act which exploits consumers and unjustly enriches distributing companies. This Company has already received a reasonable compensation for 7 See note 5, supra. 8Cf. Public Utilities Commission v. United Fuel Gas Co., 317 U. S. 456; Arizona Grocery Co. v. Atchison, T. Æ S. F. R. Co., 284 U. S. 370, 389. 9 When a rate schedule embodying a proposed increase in wholesale rates becomes effective, pending a determination by the Commission of the reasonableness of such increase, the Commission is authorized to require appropriate guarantees by §4 (e) of the Act. The Commission may require the natural gas companies “. . . to furnish a bond, to be approved by the Commission, to refund any amounts ordered by the Commission, to keep accurate accounts in detail of all amounts received by reason of such increase, specifying by whom and m whose behalf such amounts were paid . . .” This would appear to be broad enough to protect consumers where the amounts were paid in their behalf. Surely the Act gives no less power to a court. 152 OCTOBER TERM, 1944. Douglas, J., dissenting. 324 U. S. its services. It is entitled to no more under Iowa or federal law. Mr. Justice Murphy and Mr. Justice Rutledge concur in this dissent. Mr. Justice Douglas, dissenting. I think that the claims to the fund in possession of the court below are to be determined by state law. The Federal Power Commission has no authority to determine the rates which petitioner may charge in these Iowa cities. Under the Natural Gas Act that is for Iowa and Iowa alone to determine. Public Utilities Commission v. United Fuel Gas Co., 317 U. S. 456, 467; Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591, 610. In that respect this case differs markedly from United States v. Morgan, 307 U. S. 183. If there had been no stay order entered and the interstate rate from the Pipeline company to petitioner had been reduced when the Federal Power Commission entered its order, it still would have taken action by the local authorities to reduce the rates in these Iowa cities. But the federal court which has this fund has considerable discretion in its management. United States v. Morgan, supra. I fail to see how it abused its discretion in handing the fund over to the local officials. It is only fair to assume that a reduction in the interstate rate would have been followed by a reduction in local rates.1 That indeed was the primary objective of the Natural Gas Act. Federal Power Commission v. Hope Natural Gas Co., supra. We are pointed to no provision of local law which raises any substantial question concerning the power of the local authorities to make a readjustment of rates 1 The City of Muscatine did in fact reduce the rates after the stay order had been vacated. CENTRAL STATES CO. v. MUSCATINE. 153 138 Douglas, J., dissenting. through the distribution of funds impounded under a stay order.2 And the claim of petitioner that the local law would prevent a reduction in its rates for the period while the stay order was in effect is far too vague to acquire the dignity of a substantial question.3 He who maintains that position has the distinct burden of overcoming the presumption that as a matter of local law the consumers were entitled to the benefits of this rate reduction. Petitioner fails to carry that burden. The record is void of any credible evidence that a reduction in the interstate rate would not have warranted a reduction in local rates. Petitioner is adequately protected by the decree entered by the court below. That court did not undertake finally to determine the rights of the parties in the fund. It has turned the fund over to respondents without prejudice to petitioner’s rights in it. Those rights are determinable under Iowa law. That procedure does not preclude petitioner from its day in an Iowa court if its claim to the fund turns out to be less frivolous and more substantial than it appears to be. I think the court below selected the most equitable and just method of rectifying the injury done by its stay order. 2 Petitioner asserts, and I assume, that under the Iowa law rates can be made only prospectively. But it appears from Town of Williams v. Iowa Falls Electric Co., 185 Iowa 493, 500, 170 N. W. 815, that the Iowa courts under their “balance of convenience” rule will impound alleged excessive amounts collected by a utility company pending the outcome of rate litigation so as to protect the rights both of the utility and the consumers. If the rate increase is ultimately disallowed, the impounded funds will be returned to the customers; otherwise they will be turned over to the company. We are pointed to no authority which suggests that Iowa would not sanction the use of such a method of readjustment under the circumstances of this case. So far as appears the rates which petitioner was charging during e Per^0(l of the stay order had been voluntarily proposed by it. 154 OCTOBER TERM, 1944. Syllabus. 324 U. S. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. v. DUEL, COMMISSIONER OF INSURANCE. APPEAL FROM THE SUPREME COURT OF WISCONSIN. No. 115. Argued January 12,1945.—Decided February 12,1945. A statute of Wisconsin requires that the unearned premium reserve of every insurance company doing business within the State shall be computed by a specified percentage of premiums received and shall be shown as a liability in the annual statement required to be filed. As applied to the appellant—a foreign insurance company which operated in some States on a membership fee plan (unlawful in Wisconsin)—the statute as construed requires that in computing the reserve there be included membership fees as well as premiums received in all States. For failure to comply with the statute, appellant was denied a license to do business within the State. Held: 1. The statute does not violate the due process clause of the Fourteenth Amendment. P. 157. (a) The reserve requirement was relevant to the financial stability of insurance companies doing business within the State, and was therefore within the power of the State for the protection of its citizens. P. 158. (b) The due process clause does not demand uniformity in the requirements of the States with respect to financial statements of companies doing a multi-state business. P. 159. (c) The statute does not regulate out-of-state activities. P. 159. 2. The statute does not violate the full faith and credit clause of the Constitution. P. 159. (a) That the State of incorporation does not treat membership fees as premiums does not preclude Wisconsin’s doing so. P. 159. (b) The full faith and credit clause does not bar a State from imposing stricter financial standards for corporations doing business within its borders than are imposed by the State of incorporation. P. 159. (c) The appellant, challenging the power of Wisconsin to enforce its own statutes in its own courts, did not meet the burden STATE FARM INS. CO. v. DUEL. 155 154 Opinion of the Court. of showing that the interests of the State of incorporation were superior. P. 160. 3. As to the appellant’s contention that the statute as construed and applied violates the commerce clause of the Constitution— which question was not raised or passed upon below, but emerged after this Court’s decision in United States v. South-Eastern Underwriters Assn., 322 U. S. 533—it appears that the appellant is not foreclosed under Wisconsin procedure from obtaining a determination of that question in the Wisconsin courts, either in the present suits or in another pending proceeding, so it is not necessary to vacate the judgment below in order that the appellant may have an opportunity to obtain the ruling. Pp. 160,163. 244 Wis. 429,12 N. W. 2d 696, affirmed. Appeal from a judgment sustaining the constitutionality of a state statute as construed and applied. Messrs. R. M. Rieser and Barnabas F. Sears, with whom Mr. Herbert H. Naujoks was on the brief, for appellant. Mr. Harold H. Persons, Assistant Attorney General of Wisconsin, with whom Mr. John E. Martin, Attorney General, was on the brief, for appellee. Mr. Justice Douglas delivered the opinion of the Court. This is an appeal under § 237 (a) of the Judicial Code, 28 U. S. C. § 344 (a) from the judgment of the Wisconsin Supreme Court which sustained the constitutionality as construed and applied to appellant of § 201.18 of the Wisconsin Statutes, 1943. 244 Wis. 429, 12 N. W. 2d 696. Sec. 201.18 reads as follows: Reserves, basis for. (1) The unearned premium or reinsurance reserve for every insurance company when no other statutory provision is made therefor, shall be computed by the commissioner by setting up fifty per cent of the premiums received on all risks that have one year or less to run, and pro rata of all premiums on risks that have 156 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. more than one year to run. In the case of perpetual risks or policies, the whole amount of premium paid shall be set up as a reserve. Every such company shall show its reserve, computed upon this basis, as a liability in the annual statement required by section 201.50. “(2) Where no other provision is made therefor by law, the reserves of any insurance company shall be calculated upon such basis, method and plan as shall fully provide for all liabilities, and any basis, method and plan fixed by the order of the commissioner shall be prima facie just, reasonable and proper.” The insurance commissioner of Wisconsin refused appellant a license in 1942 and also in 1943 for failure to comply with that provision. Appellant accordingly brought suits to enjoin the commissioner from interfering with its business and to require him to issue it a license to do business in the State for the years in question. The facts may be briefly stated. Appellant is an Illinois corporation doing business in many States. It started doing business in Wisconsin in 1939. It writes various forms of automobile insurance on the mutual plan. When it writes a policy for a new customer, it charges him a membership fee in addition to a premium. The membership fee is not returnable but entitles the insured to insure one automobile so long as he remains a desirable risk and so long as the company continues to write such coverage. It is said that the membership fee gives a life option to the insured to purchase insurance at a saving of from twenty to thirty-five per cent of the usual cost. Appellant has contended that the membership fees are no part of the premiums, furnish no insurance protection, and merely reimburse it for the expense of obtaining the new business. Wisconsin took a different view. The commissioner refused renewal of appellant’s license for the years ending May 1, 1940, and STATE FARM INS. CO. v. DUEL. 157 154 Opinion of the Court. May 1, 1941. Litigation followed which resulted in the decision of Duel v. State Farm Mutual Automobile Ins. Co., 240 Wis. 161, 1 N. W. 2d 887. The Wisconsin Supreme Court held as a matter of law that the membership fees were part of appellant’s premiums and that 50 per cent of them must be included in the reserve required by § 201.18. Thereupon appellant adopted and submitted to the commissioner a new scheme for doing business in Wisconsin. The plan was to abandon the membership fee in Wisconsin, to require none of its Wisconsin policy-holders, and to do business in Wisconsin on a level premium basis. The result was that the premiums required to be paid in Wisconsin were 27 per cent higher than those required in States which construed premiums as not including membership fees. The commissioner refused to grant appellant the licenses for these later years because its reserve required by § 201.18 did not include 50 per cent of the membership fees obtained on business written in other States. The present litigation ensued. The Wisconsin Supreme Court sustained the commissioner, holding (1) that § 201.18 required a reserve which covered the over-all liability of the appellant and (2) that § 201.18 as construed and applied did not contravene appellant’s constitutional rights. Of the three constitutional questions argued here two were raised below. They are that the statute violates (1) the due process clause of the Fourteenth Amendment and (2) the full faith and credit provision of Art. IV, § 1. We think neither of the two has merit. I. So far as due process of law is concerned, this case 18 governed by the principles announced in Osborn v. Ozlin, 310 U. S. 53, and Hoopeston Canning Co. v. Cullen, 318 U. S. 313. In Osborn N. Ozlin, supra, p. 62, we stated that “The mere fact that state action may have repercussions beyond state lines is of no judicial significance 158 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. so long as the action is not within that domain which the Constitution forbids.” We sustained in that case Virginia legislation which forbade a licensed company to write insurance in Virginia except through a resident agent and which provided that the resident agent could not retain less than one-half of the customary commission even though the business originated with an out-of-state broker, the resident agent rendering only a perfunctory service. We held that by such measures Virginia was seeking to protect the interests of her citizens, not to prohibit the making of contracts beyond her borders. In Hoopeston Canning Co. v. Cullen, supra, we sustained provisions of the New York Insurance Law as applied to reciprocal insurance associations licensed to do business in New York but with headquarters in Illinois. The regulations which New York had imposed included stipulated operating reserves for payment of losses, a contingent liability of subscribers of not less than one nor more than ten times the amount of the annual premium expressed in the contract, and a requirement for the maintenance of an unimpaired surplus. We said, “Neither New York nor Illinois loses the power to protect the interests of its citizens because these associations carry on activities in both places. . .. We think the regulations themselves, since they are aimed at the protection of the solvency of the reciprocals or at promoting the convenience with which New York residents may do their insurance business, are all within the scope of state power.” 318 U. S. p. 321. Wisconsin has a legitimate concern with the financial soundness of companies writing insurance contracts with its citizens. The reserve which it requires under § 201.18 is designed to measure the entire future contingent liability on unexpired risks. That contingent liability is obviously relevant in any appraisal of the financial soundness and stability of the company. It is, to be STATE FARM INS. CO. v. DUEL. 159 154 Opinion of the Court. sure, a bookkeeping requirement. But it is more than that: It is one of Wisconsin’s measuring rods of financial stability and strength. Any financial statement required by Wisconsin or any other State would need reflect all assets and liabilities of the company in the interests of truth. Their inclusion does not mean that out-of-state activities are being regulated by Wisconsin. It only means that solvency of a multi-state business can hardly be determined on a single state basis. Accounting is no exact science. The due process clause certainly does not require uniformity in requirements for financial statements of companies doing a multi-state business. Each State must necessarily have leeway in providing its own accounting standards for companies doing business within its borders. If a state undertook to regulate out-of-state activities through such a requirement, different questions would be posed. But we fail to see that Wisconsin has done that here. We cannot say that the reserve required by Wisconsin has any purpose but the protection of its own citizens. Its adequacy or appropriateness as a standard for qualification to do business in Wisconsin is therefore a question for Wisconsin to determine. II. Little need be said in reply to the contention that the Wisconsin statute as construed and applied violates the full faith and credit provision of the Constitution. Appellant’s argument comes down to this: Illinois, the State of incorporation, does not treat the membership fees as a part of the premiums. Therefore, Wisconsin may not do so. The result would be that no State could impose stricter financial standards for foreign corporations doing business within its borders than were imposed by the State of incorporation. The full faith and credit provision requires no such result. This Court has recognized that In the case of statutes, the extra-state effect of which Congress has not prescribed, where the policy of one 160 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. state statute comes into conflict with that of another, the necessity of some accommodation of the conflicting interests of the two states” is imperative. Alaska Packers Assn. v. Industrial Accident Commission, 294 U. S. 532, 547. The full faith and credit provision may not be used to compel one State “to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Pacific Employers Ins. Co. v. Industrial Accident Commission, 306 IT. S. 493, 501. He who challenges the power of one State to enforce in its own courts its own statutes on such grounds carries the burden of showing that “of the conflicting interests involved those of the foreign state are superior to those of the forum.” Alaska Packers Assn. v. Industrial Accident Commission, supra, p. 548. That burden has not been carried here. Wisconsin obviously has a considerable interest in the financial soundness and stability of foreign as well as domestic companies doing business in Wisconsin. It is not apparent how Illinois has a superior interest. As among the several States it is Wisconsin’s prerogative to select the appropriate means of protecting its own citizens by establishing financial standards for companies which exploit the opportunities which Wisconsin affords. III. Appellant’s remaining contention is that this Wisconsin statute as construed and applied violates the Commerce Clause of the Constitution. Art. I, § 8. This question was not raised below. It emerged after the jurisdictional statement was filed here on June 1,1944. For on June 5, 1944, we decided United States v. South-Eastern Underwriters Assn., 322 U. S. 533, holding that the fire insurance business was commerce within the meaning of the Commerce Clause and the Sherman Act. 26 Stat. 209,15 U. S. C. § 1 and § 2. Since the Wisconsin Supreme Court did not pass on the question, we may not do so. McGold- STATE FARM INS. CO. v. DUEL. 161 154 Opinion of the Court. rick v. Compagnie Generate Transatlantique, 309 U. S. 430, 434. But our decision in the South-Eastern Underwriters case was a supervening event arising in the course of this litigation. We do not think appellant should be prejudiced by the fact that the decision came too late for it to obtain a ruling by the Wisconsin court. The question is what disposition we should make of this appeal so that in the interests of justice appellant may have a hearing on the commerce point. A customary procedure has been for the Court to vacate the judgment of the state court where there has been a supervening event since its rendition which alters the basis upon which the judgment rests, and to remand the case so that the court from which it came might reconsider the question in light of the changed circumstances. Gulf, C. & S. F. R. Co. v. Dennis, 224 U. S. 503; Missouri v. Public Service Commission, 273 U. S. 126; Pagel v. MacLean, 283 U. S. 266; Patterson v. Alabama, 294 U. S. 600, 607; Ashcraft v. Tennessee, 322 U. S. 143, 156. See Dorchy v. Kansas, 264 U. S. 286, 291. In those cases the supervening event had raised questions of state law which might have warranted a reversal of the judgment. If they were adequate, it would be unnecessary to reach the federal questions which were presented. Moreover, it appeared in some of those cases that unless the judgment of the state court were vacated, the opportunity to raise the new questions which had emerged might be lost. See Culf, C. & S. F. R. Co. v. Dennis, supra; Pagel v. Mac-Lean, supra. It is suggested that that course should be followed here so that this additional federal question may be passed upon by the Wisconsin Supreme Court. We would not hesitate to adopt that procedure in the interests of justice if it appeared that otherwise appellant would be foreclosed from an adjudication of the issue. Appellant does not show that it would be. Respondent assumes in its brief that appellant will not be foreclosed. 162 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. And we think that assumption is warranted for the following reasons. We are advised that appellant has pending in the Wisconsin courts another suit in respect to the license year commencing May 1, 1944. Wisconsin has the familiar rule that though the validity of the law in question might have been determined in an earlier suit, the prior judgment is not res judicata where the second suit is on a different cause of action in absence of evidence to show that the question was actually presented to the court and decided in the earlier litigation. W entworth v. Racine County, 99 Wis. 26,31, 74 N. W. 551; Grunert v. Spalding, 104 Wis. 193, 213-214, 79 N. W. 606, 80 N. W. 589; Lindemann v. Rusk, 125 Wis. 210, 237, 104 N. W. 119. But if that principle is inapplicable here it is nevertheless the general rule that res judicata is no defense where between the time of the first judgment and the second there has been an intervening decision or a change in the law creating an altered situation. 2 Freeman on Judgments (5th ed. 1925) § 713; Blair v. Commissioner, 300 U. 8. 5, 9; West Coast Life Ins. Co. v. Merced Irrigation Dist., 114 F. 2d 654, 662; In re Pomeroy, 51 Mont. 119, 151 P. 333; Hurd v. Albert, 214 Cal. 15, 26, 3 P. 2d 545. We cannot find that Wisconsin has a different rule. The Wisconsin statute, moreover, gives the court power to allow an amendment “at any stage of any action or special proceeding before or after judgment, in furtherance of justice and upon such terms as may be just” provided that “the amended pleading states a cause of action arising out of the contract, transaction or occurrence or is connected with the subject of the action upon which the original pleading is based.” Wis. Stat. 1943, § 269.44. That power has been construed very liberally. Kennedy v. Waugh, 23 Wis. 468; Post n. Campbell, 110 Wis. 378, 85 N. W. 1032; Mallon v. Tonn, 163 Wis. 366, 157 N. W. STATE FARM INS. CO. v. DUEL. 163 154 Opinion of Jackson, J. 1098; Micek v. Wamka, 165 Wis. 97, 161 N. W. 367; Turner Mjg. Co. v. Gmeinder, 183 Wis. 664, 198 N. W. 611; Kaegi v. Industrial Commission, 232 Wis. 16, 285 N. W. 845. And it exists after the case has been remanded to the trial court following an affirmance by the Wisconsin Supreme Court. See Angers v. Sabatinelli, 235 Wis. 422,293 N. W. 173; 239 Wis. 364,1 N. W. 2d 765. We conclude that appellant is not foreclosed under Wisconsin procedure from obtaining a determination in the Wisconsin courts of the commerce clause question either in the present suits or in the other pending one. Accordingly we do not think it is necessary to vacate the judgment below in order that appellant may have an opportunity to obtain the ruling. Affirmed. Mr. Justice Roberts dissents. Mr. Justice Jackson. I think that the judgment below should be vacated rather than affirmed and do not, therefore, reach the constitutional questions dealt with in the Court’s opinion. I doubt that the Wisconsin Supreme Court can open and re-examine a judgment after it is affirmed by this Court. As the Court recognizes, to vacate is the procedure that has been followed when similar situations have been presented heretofore. 164 OCTOBER TERM, 1944. Statement of the Case. 324 U. S. WEBRE STEIB CO., LTD. v. COMMISSIONER OF INTERNAL REVENUE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 148. Argued December 13, 1944.—Decided February 12, 1945. 1. In a proceeding under Title VII of the Revenue Act of 1936 for a refund of processing taxes paid under the Agricultural Adjustment Act of 1933, the presumption from margin evidence that the claimant bore the burden of the tax requires, in the absence of opposing evidence, a refund pro tanto. P. 169. 2. The presumption arising from margin evidence favorable to the claimant places upon the Commissioner the burden of going forward with evidence sufficient to support a finding that the claimant did not bear the burden of the tax. P. 170. 3. The Commissioner’s evidence in this case was sufficient to support a finding that the claimant had not borne the burden of any part of the tax, and the presumption from the claimant’s margin evidence was thereby rendered inoperative. P. 171. 4. On review of administrative decisions, this Court must determine whether there is evidence legally sufficient for administrative action, but may not weigh it. Dobson v. Commissioner, 320 U.S.489. P. 173. 5. Although the Commissioner’s rebuttal evidence rendered the presumption inoperative, the record—the margin evidence being still in the case for whatever it might be worth apart from the presumption—is not devoid of rational support for a finding that the claimant absorbed some of the tax; and the cause must be remanded to the Tax Court for a weighing of the evidence, including such further evidence as that court may properly admit. P. 174. 6. Evidence as to margins in a period later than the base period, though irrelevant to the presumption created by §907 (a), was admissible for whatever probative value it might have independently. P. 175. 140 F. 2d 768, modified. Certiorari, 323 U. S. 686, to review a judgment which, reversing a decision of the Processing Tax Board of WEBRE STEIB CO. v. COMM’R. 165 164 Opinion of the Court. Review, held that a claim for refund of processing taxes should have been disallowed in its entirety. Messrs. C. J. Batter and William A. Sutherland argued the cause, and Mr. Batter was on the brief, for petitioner. Miss Helen R. Carloss, with whom Solicitor General Fahy, Assistant Attorney General Samuel O. Clark, Jr., Mr. Sewall Key and Mrs. Maryhelen Wigle were on the brief, for the respondent. Messrs. Richard B. Barker and John C. Reid filed a brief as amici curiae. Mr. Justice Jackson delivered the opinion of the Court. This is a proceeding brought for recovery of sugar processing taxes paid under the Agricultural Adjustment Act of 1933. The Commissioner having denied in entirety the taxpayer’s claim for $8,169.97, the total tax paid by it, taxpayer petitioned for review by the Processing Tax Board of Review, as provided by statute. 49 Stat. 1749. The Board awarded refund in the amount of $3,655.82, and motions for rehearing made by both parties were denied by the Tax Court, which had succeeded to the jurisdiction of the Processing Tax Board of Review. 56 Stat. 798. On appeal, the Court of Appeals for the Fifth Circuit reversed and held that the claim should be denied. 140 F. 2d 768. We took the case to review questions of application of the “prima facie evidence” and “presumption” sections of Title VII, Revenue Act of 1936, on which there was conflict in the circuits. Commissioner v. Bain Peanut Co., 134 F. 2d 853, cert, granted, 320 U. S. 721, dismissed on motion of petitioner, 321 U. S. 800; Helver-v. Insular Sugar Refining Corp., 141 F. 2d 713; cf. Regensburg & Sons v. Helvering, 130 F. 2d 507. A new administrative procedure for recovery of taxes paid under the Agricultural Adjustment Act was provided 637582°—46______15 166 OCTOBER TERM, 1944. Opinion of the Court. 324 U. 8. by Title VII of the Revenue Act of 1936, §§ 901-917, 49 Stat. 1747, 7 IT. S. C. §§ 644-59, repealing §§ 21 (d), (e), and (g) of the 1935 amendments to the Agricultural Adjustment Act, 49 Stat. 771-73. The provisions were reviewed at length and their constitutionality upheld in Anniston Mfg. Co. v. Davis, 301 U. S. 337. In outline, so far as relevant to this case, they are as follows: The claimant is required to prove that he bore the burden of the tax. § 902. Average “margins” per unit of the commodity processed, consisting of the difference between cost of the commodity (plus tax paid, if any) and gross sales value of the articles resulting from the processing, are to be computed for the tax period and a base period; the base period is the period two years preceding imposition of the tax and the six months thereafter (February to July, 1936). §§ 907 (b), (c). If the margins for the tax period are lower than those for the base period, it is “prima facie evidence” that, to that extent, the claimant bore the burden of the tax; if they are not lower, it is “prima facie evidence” that none of the burden was borne by the claimant. § 907 (a). But this “presumption” may be rebutted either by the claimant or by the Commissioner, by proof of “the actual extent” to which the claimant shifted the tax to others. Such proof may include, but is not limited to, certain types of evidence described by the statute. § 907 (e). For our purposes the material facts must be gleaned from the findings and memorandum of the Board of Review and a stipulation filed by the parties in the Court of Appeals. Petitioner is a grower and purchaser of sugar cane, which it processes into direct-consumption sugar and edible molasses? It operates during the months of October, 1 This processing was subjected to tax by the Act of May 9, 1934, c. 263, 48 Stat. 670, amending the Agricultural Adjustment Act. See WEBRE STEIB CO. v. COMM’R. 167 164 Opinion of the Court. November and December of each year. The tax went into effect on June 8, 1934 and petitioner paid taxes until November 8,1935, so that it paid processing taxes—$7,067.12 on sugar and $1,102.85 on molasses—-for the months of October, November and December 1934 and October and November 1935. Its average statutory margin for this period was $.01192, and the total number of units processed was 2,256,676 pounds of sugar. Petitioner’s base period consisted only of the two years prior to the tax because it did no processing in the six months February to July 1936. Its average statutory margin per unit for the base period was $.01354. Thus the margin during the tax period was $.00162 per unit lower than that during the base period, creating “prima facie evidence” that petitioner had borne the tax to the extent of $3,655.82, the amount of refund allowed by the Board. Petitioner contends that this amount should have been increased by including in the margins its first processing after invalidation of the Agricultural Adjustment Act, which was its processing of the 1936 crop, October 1936 to January 1937. The average margin per unit for this period, computed as for the base period, was $.01582, or $.00228 more than the base-period margin. Evidence that the tax was not borne by petitioner was as follows: Universal increases in the sale price of sugar were effected on the date of imposition of the processing tax in the amount of $.55 per hundred pounds, to cover the amount of the tax. All of the accounts stated between petitioner and its broker, E. A. Rainold, Inc., respecting sales of molasses made through that broker, including the processing tax as a separate item and as an addition to the sale price of the article. “An account sale, typical of all such accounts, respecting the sales of sugar, made through § 9 (d) (6) (A) and (B) of the Act as amended, 7 U. S. C. §§609 (d) (6) (A),(B). 168 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. its said broker” bore the notation, “Golden Ridge, 100 Pkts. 10,000# @3.710 $371.00. F. O. B. Pltn. Tax Pd. Tax 0.5260,” $.526 being the prevailing rate of processing tax at the time the particular account was rendered. A letter from the broker Rainold to petitioner, dated January 17, 1936, contained the following: “According to memorandum you furnished us on processing tax you paid on 298,017 pounds of sugar, and we have accounted to you for there [three] cars of 800 pockets and part car of 300 pockets and when we get paid for the balance of this part car, or 500 pockets, it will total 3200 pockets or 320,000# on which the processing tax was included in the price. Therefore you have not paid any more tax than you collected and these sugars in warehouse here and elsewhere, that is Chicago, or [are] really tax free.” On the foregoing facts the Board of Review found that “The extent to which the processing tax [was] paid and borne by the petitioner and not shifted to others in any manner whatsoever is $3,655.82,” and it awarded refund in that amount. This award was based, the Circuit Court of Appeals thought, “upon the theory that the claimant had established facts sufficient to invoke the statutory presumption that it had borne the burden of the tax” to that extent. In the view of the Court of Appeals, however, the evidence “clearly was sufficient to dissolve the presumption, and since there was no other proof to support any refund, the claim should have been disallowed in its entirety.” Our first question is whether the Board was entitled to base an award upon the statutory “prima facie evidence or “presumption,” or whether the Government’s evidence removed the presumption from the case as a matter of law. For, although the Board did not state how it arrived at its award, it seems likely that it relied upon the prima facie evidence provisions and not upon a weighing of the WEBRE STEIB CO. v. COMM’R. 169 164 Opinion of the Court. evidence; petitioner does not assign error to the contrary, although it contends that the evidence supports the Board’s award. The statute, unfortunately, is beset by the ambiguity and the imprecision of definition which are not uncommon with respect to presumptions. But the difficulties of the subject will not excuse us from the duty to apply as best we may a statute Congress has seen fit to enact. At one point it speaks only of “prima facie evidence” and at another it refers to the prior section as creating a “presumption.” “Prima facie evidence” alone might be taken to signify only a permissive inference, indicating that the Commissioner or the courts might, if they saw fit, permit a recovery solely on the basis of the margin evidence. See Crane v. Morris, 6 Pet. 598, 621; Bailey v. Alabama, 219 U. S. 219,234; 9 Wigmore on Evidence (3d ed. 1940) § 2494. But the statute’s later use of the word “presumption” and the careful detail with which the margin evidence and rebuttal evidence are described argue against such an interpretation, as does the legislative background. A committee report on Title VII, explaining the necessity for amending the existing refund provisions, stated: “It has been contended that while that section [ § 21 (d) of the Agricultural Adjustment Act] states the conditions under which the Commissioner may deny a refund of taxes paid, it does not establish affirmatively any conditions, compliance with which will enable the claimant to secure a refund.” Sen. Rep. 2156,74th Cong., 2d Sess., p. 33. From this it seems clear that the new provision was meant to prescribe a minimum of proof which would require refund in the absence of opposing evidence. Therefore the inference arising from the margin evidence must be a compelled one. The statute does not tell, however, on what event the existence of the presumed fact must cease to be assumed 170 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. by the trier. Does the presumption cease to operate as soon as the Commissioner has met the burden of going forward with evidence to show shifting of the tax, or does it place on him the burden of proof? The Government and the court below, taking the former view, support it with the contention that “It is never the function of a rebuttable presumption to shift the burden of proof.” Commissioner n. Bain Peanut Co., 134 F. 2d 853, 857. It is unnecessary for us to take so broad a ground, even if it is correct.2 Dealing only with the particular presumption now before us, we find nothing to indicate that Congress attached exceptional probative value to the margin evidence, or that it desired for any other reason to tilt the scales sharply against the Commissioner rather than merely to even them somewhat in behalf of claimants. There is, for example, no reason to suppose that the Commissioner is better able than the processor to prove where the tax burden fell. On the other hand, the special problem here of preventing unjust enrichment, added to the usual strict examination of claims against the Government, convinces that Congress probably intended to leave the burden of proof on the claimant. Cf. United States v. Jefferson Electric Mfg. Co., 291 U. S. 386. In the absence of any clearer statement in the statute, therefore, we think the presumption is given adequate effect if the burden is placed on the Commissioner of going 2 But see, e. g., Morrison v. California, 291 U. S. 82, 88-91; Page v. Phelps, 108 Conn. 572,143 A. 890; Weber v. Chicago, R. I. & P. R. Co., 175 Iowa 358,151 N. W. 852; Bond v. St. Lovis-San Francisco R. Co., 315 Mo. 987, 288 S. W. 777; Holzheimer n. Lit Brothers, 262 Pa. 150, 105 A. 73; Morgan, Instructing the Jury upon Presumptions and Burden of Proof (1933) 47 Harv. L. Rev. 59, 77-83, Some Observations Concerning Presumptions (1931) 44 Harv. L. Rev. 906; Bohlen, Studies in the Law of Torts (1926) 636, 637, 648-53; American Law Institute, Model Code of Evidence, Rule 703. WEBRE STEIB CO. v. COMM’R. 171 164 Opinion of the Court. forward with evidence sufficient to support a finding that the claimant did not absorb the tax. Once such evidence is presented, the presumption becomes inoperative and the issue is to be determined as if there had never been a presumption. The statute declares, however, that the presumption may be rebutted by proof of “the actual extent” to which the burden of the tax was shifted. This language appears to mean that the presumption may be rebutted pro tanto, and not necessarily all at once or not at all. Thus it does not cease to operate on introduction of evidence merely sufficient to support a finding that some of the tax was shifted. It must be evidence sufficient to support a finding that the entire tax was shifted. Short of that, the presumption is not eliminated but only diminished to the extent that the rebuttal evidence will support a contradictory finding. See Regensburg Sons v. Helvering, 130 F. 2d 507, 509. When the margins are unfavorable to the taxpayer and favorable to the Commissioner, it is unnecessary, of course, to place a burden of going forward with evidence on the claimant, for he has that burden anyway, as well as the burden of proof. Whether this means that the statute’s language making the presumption operate in favor of the Commissioner is superfluous, or that in such a case the presumption must be given a different effect than when in favor of the claimant, we do not now decide. Cf. Regensburg & Sons v. Helvering, supra. On the view we take of the statute, the proof introduced by the Commissioner made the presumption inoperative. We certainly could not say that, viewed by itself, the Commissioner’s evidence would not permit a finding that petitioner shifted the entire burden of the tax. It tended to show that in all dealings with its broker the petitioner added the amount of the tax to the sale price and itemized it separately. That this was true as to all sales of molas- 172 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. ses seems to be conceded. It was also true, or so it might be found, as to a substantial part of the sugar sales and therefore inferentially as to all such sales. Petitioner raises some question as to the proper inference to be drawn from the sugar account and the broker’s letter quoted above. But at least the broker’s remarks that “the processing tax was included in the price” and “Therefore you have not paid any more tax than you collected” are unmistakable in their meaning. All of this evidence is among the kinds expressly mentioned by the statute as tending to rebut the presumption. More important, the statute appears specifically to provide that introduction of any evidence of this particular kind shall be sufficient to rebut the entire presumption. It states that the presumption may be rebutted by proof that the claimant modified sales contracts to reflect the initiation, termination, or change in amount of the tax, or “at any such time” changed the sale price of the article, or “at any time” billed the tax as a separate item, or indicated “by any writing” that the sale price included the amount of the tax. It then declares, “but the claimant may establish that such acts ... do not represent his practice at other times.” § 907 (e) (2). This seems clearly to mean that when any examples of the named practices are proved, it may be inferred that they represent the uniform practice of the claimant and the burden becomes his to prove that they do not. Since the Commissioner proved that not only in a few cases but in a great number the tax was indicated in writing to be included in the sale price, we think there is no doubt that he fully rebutted the presumption within the meaning of the statute. The second question is whether, with the presumption out of the case, there is evidence from which the Tax Court would be entitled to award a refund to petitioner in any amount. The court below, although it remanded the WEBRE STEIB CO. v. COMM’R. 173 164 Opinion of the Court. cause, apparently meant for it to be dismissed, for it said, “since there was no other proof to support any refund, the claim should have been disallowed in its entirety.” Literally, of course, this cannot be true, for the margin evidence remained in the case for whatever it might be worth apart from the presumption. With this the Government agrees, and it concedes that, unless we can say that the evidence would not rationally support a finding in favor of petitioner, the case must go back to the Tax Court for decision on the evidence rather than on the presumption. We must determine whether there is evidence which is legally sufficient for administrative action, but we may not weigh it. Dobson v. Commissioner, 320 U. S. 489. The fact that margins for the tax period are lower than those for the base period has some logical tendency to establish that the burden of the tax was borne by the processor. See Anniston Mjg. Co. n. Davis, 301 U. S. 337,354. There are, to be sure, other and conflicting inferences which may also be drawn. As the margins are defined, the drop might be due to a decline in the demand for the processed goods, or to a decrease in the yield of the raw commodity, or to an increase in the price of the raw commodity. But we have no basis for saying that the margin thus defined does not tend to be comparatively stable and that a fall coincident with imposition of a tax would not more likely reflect the tax than a change in other factors. We suppose the taking of average margins over a base period has some tendency to produce that result. And the Tax Court’s special experience might support such an inference. Cf. Dobson v. Commissioner, supra. Congress apparently believed that the rational connection was strong enough to justify basing a finding of absorption on the margin evidence alone. For, as we have seen, Congress intended that in a case where the margins were 174 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. favorable to the claimant and no other evidence was introduced the claimant should be entitled to a refund, and there appears no reason of convenience or policy which would lead to such a rule in the absence of rational connection. For all these reasons we think a finding of absorption which was based solely on the margin comparisons would not be irrational. Nor is the Commissioner’s evidence so conclusive as to deprive the margin evidence of all significance. It permits but does not require a finding that petitioner had a uniform practice of billing the tax as a separate item. Even though such a practice be inferred, there is no evidence to show how far petitioner succeeded in its effort to pass the tax on, except for the evidence that there was a general rise in the market on a date some months before petitioner’s processing began. The margins are some evidence that the price may not have responded continuously to the effort to shift the tax. The fact may be that neither side’s evidence goes very far toward demonstrating where the burden of the tax fell;3 the inquiry is at best a difficult one. But we do not think it can be said that the record is devoid of rational support for a finding that petitioner absorbed some of the tax. Accordingly we must remand the case for a weighing of the evidence, including, of course, such further evidence as the Tax Court may think it proper to receive in view of the way in which the case has been tried. In doing so we intimate no opinion, of course, as to whether petitioner has sustained the burden of proof placed upon it by the statute. Since the case must go back, it is necessary to pass upon a further question raised by petitioner. Petitioner, as we have noted, was not processing during the six months, 3 See Johnson, AAA Refunds: A Study in Tax Incidence (1937) 37 Col. L. Rev. 910. WEBRE STEIB CO. v. COMM’R. 175 164 Rutledge, J., dissenting. February to July 1936, designated by the statute for computing margins after the tax period. For such a case the statute provides: “If during any part of such period the claimant was not in business . . . the average prices paid or received by representative concerns engaged in a similar business and similarly circumstanced may with the approval of the Commissioner, where necessary for a fair comparison, be substituted in making the necessary computations.” § 907 (c). Contending that there were no similarly circumstanced concerns, petitioner sought to use the figures of a later period, that of its own 1936 production, in computing the base-period margins, which would have made those margins higher. We think the Board and the court below were correct in holding that the statutory method of making a prima facie case is exclusive and that the 1936 evidence might not be so used. The statute’s restrictions, however, have reference only to the presumption; they do not exclude other evidence generally relevant on the issue of whether the tax burden was shifted. The 1936 experience, though it could not help petitioner to create a favorable presumption, was entitled to be given whatever probative value it might independently have had and, subject to the usual principles of admissibility, was therefore admissible. Anniston Mfg. Co. v. Davis, 301 U. S. 337,355-56. The judgment below is modified and the cause is remanded to the Circuit Court of Appeals with directions to remand to the Tax Court for proceedings in conformity with this opinion. Mr. Justice Rutledge, dissenting. I doubt that Congress intended to involve the award of refunds of processing taxes in the abstruse learning of disappearing presumptions.” In my opinion the terms prima facie evidence” and “presumption” may be taken 176 OCTOBER TERM, 1944. Rutledge, J., dissenting. 324 U. S. to have been used interchangeably in the statute. I think no more was intended than to authorize a finding in accordance with the margin evidence, if no other were presented ; and in case opposing evidence should be offered, to allow inference either way according to the weight of the proof, taking into account the margin evidence. Hence, in this aspect of the case, I would rest on the decision of the Processing Tax Board of Review, which on the record reasonably may be considered to have been reached in this manner. I also think the statute forbids going outside the base periods prescribed for comparative data. To hold otherwise would nullify the base period provisions of the Act, which I think are valid. The cause of action here rests on a waiver of the sovereign immunity to suit which Congress may make upon such conditions as it chooses. Nichols v. United States, 7 Wall. 122; Luckenbach S. S. Co. v. United States, 272 U. S. 533, 536; Minnesota v. United States, 305 U. S. 382, 388. Allowing in the evidence concerning other periods, though not for the purpose of computing margins, accomplishes indirectly what the base period provisions were designed to prohibit. Accordingly, I think the judgment of the Circuit Court of Appeals should be reversed, with directions to affirm the decision of the Processing Tax Board of Review. Mr. Justice Black concurs in these views. COMMISSIONER v. SMITH. 177 Opinion of the Court. COMMISSIONER OF INTERNAL REVENUE v. SMITH. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 371. Argued January 30, 31, 1945.—Decided February 26, 1945. An employer gave to its employee as compensation for his services an option to purchase shares of stock at a price not less than the then value of the stock. The option had no value at that time, and the compensation contemplated by the parties was the transfer to the employee of the shares of stock after their value had increased to more than the option price. Held, under § 22 (a) of the Revenue Act of 1938 and of the Internal Revenue Code, the employee received “compensation for personal service” and hence taxable income in each year in which stock was acquired, through effective exercise of the option in that year, in the amount of the difference between the option price and the then market value of the stock. P. 181. 142 F. 2d 818, reversed. Certiorari, 323 U. S. 696, to review the reversal of a decision of the Tax Court which sustained the Commissioner’s determination of a deficiency in income tax. Mr. J, Louis Monarch, with whom Solicitor General Fahy, Assistant Attorney General Samuel 0. Clark, Jr., and Mr. Sewall Key were on the brief, for petitioner. Mr. Clarence D. Phillips, with whom Messrs. Franklin T. Griffith and Earl S. Nelson were on the brief, for respondent. Mr. Chief Justice Stone delivered the opinion of the Court. Respondent’s employer gave to him, as compensation or his services, an option to purchase from the employer certain shares of stock of another corporation at a price not less than the then value of the stock. In two later 178 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. tax years, when the market value of the stock was greater than the option price, respondent exercised the option, purchasing large amounts of the stock in each year. The question for decision is whether the difference between the market value and the option price of the stock was compensation for personal services of the employee, taxable as income in the years when he received the stock, under § 22 (a) of the Revenue Act of 1938, c. 289, 52 Stat. 447, and § 22 (a) of the Internal Revenue Code, 26 U. S. C. §22 (a). Upon a petition to review the Commissioner’s finding of a tax deficiency against respondent for those years, the Tax Court sustained the Commissioner. The Court of Appeals for the Ninth Circuit reversed, 142 F. 2d 818, holding that there was no finding and no evidence to support a finding, that the option was intended to enable respondent to make a “bargain purchase” or that the stock was issued to him as compensation for services. It concluded that the exercise of the option was a mere purchase of a capital investment which could result in taxable income only upon sale of the stock. We granted certiorari, 323 U. S. 696, on a petition which asserted conflict of the decision below with the decision of the Court of Appeals for the Sixth Circuit in Connolly’s Estate v. Commissioner, 135 F. 2d 64. The Tax Court found that for many years, and at all relevant times, respondent was employed by the Western Cooperage Company. In 1934 Western took over the management of the Hawley Pulp and Paper Co. pursuant to a plan for its reorganization. Hawley was then in financial difficulties, with an indebtedness amounting to $2,790,150. Under its contract with Hawley, Western was to retire annually a certain amount of Hawley’s indebtedness. In the event of success in this undertaking, and when the amount of Hawley’s indebtedness had been reduced by the sum of $1,400,000, Western was to receive COMMISSIONER v. SMITH. 179 177 Opinion of the Court. specified amounts of the Hawley Company’s capital stock as compensation for the services thus rendered. Respondent, in the course of his employment by Western, was active in the reorganization of the Hawley Company. As compensation for his services, the president of Western, in December 1934, gave respondent an oral option to purchase a part of the Hawley stock, to be acquired by Western under its contract. This action was confirmed by resolution of the Board of Directors of Western, pursuant to which Western, as of December 10, 1934, and “in consideration of services rendered” by respondent prior to that date, agreed in writing to sell to respondent at his option, at ten cents a share, a specified proportion of such shares of common stock as it might be entitled to receive under its contract with Hawley. On March 18, 1938, Western became entitled to the stipulated number of shares of the Hawley stock as provided by the contract with Hawley. In that and the following year respondent, by the exercise of his option, acquired from Western large amounts of the stock on payment of the option price. The Tax Court found that at the date of the option the market price of the stock did not exceed the option price, but that in 1938 the market value of the stock then acquired by respondent exceeded its option price by $81,021, and the value of that acquired in 1939 exceeded the option price by $71,663. The court found from the option itself, the resolution of Western’s Board of Directors, and from petitioner’s own testimony, that “Western gave the option to petitioner [respondent here] as compensation for services rendered in effecting the reorganization plan of Hawley.” It held that the excess of the market value of the shares over the option price in the years when the shares were received by respondent, was compensation for his services, taxable as income in those years. Since the Tax Court found that the market price of the stock on the date of the option did not exceed the option 180 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. price, it is evident that its finding that the option was given as compensation for respondent’s services, had reference to the compensation to be derived from exercise of the option after the anticipated advance in market price of the stock. Respondent testified that if the option could have been sold at the time he received it, it would have been for only a “negligible” or “nominal” amount. He has never contended that the option itself had value when given and there was no finding by the Tax Court that it then had value. The Tax Court, in stating the principle which it deemed applicable to the present case, quoted from Estate of Edward J. Connolly, 45 B. T. A. 374, as follows: “If the options had never been exercised the optionees would never have received any additional compensation.” The option could be exercised only when Western’s contract with Hawley had been successfully performed by the reduction of a large part of Hawley’s indebtedness, which would result in an increase in the value of Hawley’s capital stock to be received by Western subject to respondent’s option. Moreover, the Tax Court concluded as a matter of law that the facts which it found, and which we have detailed, brought the case, for the tax year 1938, within the provisions of § 22 (a) of the Revenue Act of 1938, and of the interpretative Treasury Regulations 101, Art. 22 (a)-l; and for the tax year 1939, within the identical provisions of § 22 (a) of the Internal Revenue Code, and Treasury Regulations 103, Art. 19.22 (a)-l. Section 22 (a) of the Revenue Act defines “gross income” subject to the Act as including “gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid. . . .” Treasury Regulations 101, Art. 22 (a)-l provides : “If property is transferred ... by an employer to an employee, for an amount substantially less than its fair market value, regardless of whether the transfer is in COMMISSIONER v. SMITH. 181 177 Opinion of the Court. the guise of a sale or exchange, such . . . employee shall include in gross income the difference between the amount paid for the property and the amount of its fair market value to the extent that such difference is in the nature of (1) compensation for services rendered . . Section 22 (a) of the Revenue Act is broad enough to include in taxable income any economic or financial benefit conferred on the employee as compensation, whatever the form or mode by which it is effected. See Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 729. The regulation specifically includes in income, property “transferred . . . by an employer to an employee, for an amount substantially less than its fair market value,” even though the transfer takes the form of a sale or exchange, to the extent that the employee receives compensation. In certain aspects an option may be spoken of as “property” in the hands of the option holder. Cf. Helvering v. San Joaquin Fruit Co., 297 U. S. 496, 498; Shuster v. Helvering, 121 F. 2d 643, 645. When the option price is less than the market price of the property for the purchase of which the option is given, it may have present value and may be found to be itself compensation for services rendered. But it is plain that in the circumstances of the present case, the option when given did not operate to transfer any of the shares of stock from the employer to the employee within the meaning of § 22 (a) and Art. 22 (a)-l. Cf. Palmer v. Commissioner, 302 U. S. 63,71. And as the option was not found to have any market value when given, it could not itself operate to compensate respondent. It could do so only as it might be the means of securing the transfer of the shares of stock from the employer to the employee at a price less than their market value, or possibly, which we do not decide, as the option flight be sold when that disparity in value existed. Hence the compensation for respondent’s services, which the parties contemplated, plainly was not confined to the mere 637582°—46----16 182 OCTOBER TERM, 1944. Syllabus. 324 U. S. delivery to respondent of an option of no present value, but included the compensation obtainable by the exercise of the option given for that purpose. It of course does not follow that in other circumstances not here present the option itself, rather than the proceeds of its exercise, could not be found to be the only intended compensation. The Tax Court thus found that the option was given to respondent as compensation for services, and implicitly that the compensation referred to was the excess in value of the shares of stock over the option price whenever the option was exercised. From these facts it concluded that the compensation was taxable as such by the provisions of the applicable Revenue Acts and regulations. We find no basis for disturbing its findings, and we conclude it correctly applied the law to the facts found. Its decision is affirmed, and the judgment of the Court of Appeals below, reversing it, is Reversed. Mr. Justice Roberts is of the opinion that the judgment should be affirmed for the reasons stated by the Circuit Court of Appeals, 142 F. 2d 818. CHARLESTON FEDERAL SAVINGS & LOAN ASSO- CIATION et al. v. ALDERSON, STATE TAX COMMISSIONER. APPEAL FROM THE SUPREME COURT OF APPEALS OF WEST VIRGINIA. No. 400. Argued February 7, 1945.—Decided February 26, 1945. 1. The validity of a state statute under the Federal Constitution does not appear to have been drawn in question in this suit in the state courts challenging tax assessments, and an appeal under § 237 (a) of the Judicial Code as amended is unauthorized; but under § 237 (c) certiorari is granted, since appellants properly raised the question of the validity of the assessments under the equal protection clause of the Federal Constitution. Pp. 184, 187. CHARLESTON ASSN. v. ALDERSON. 183 182 Opinion of the Court. 2. Even where the federal question has been properly raised and decided in the state courts, an appeal under § 237 (a) may be dismissed where appellants fail to attack a statute explicitly in their assignments of error here. P. 187. 3. Since the equal protection clause of the Fourteenth Amendment does not operate to bar taxation which does not in fact bear unequally on persons or property of the same class, mere differences in modes of assessment not shown to produce such inequality are not forbidden. P. 190. 4. Nor does the equal protection clause prohibit inequality in taxation which results from mere mistake or error in judgment of tax officials, or which is not shown to be the result of intentional or systematic undervaluation of some but not all of the taxed property in a single class. P. 190. 5. The burden of establishing the unconstitutionality of assessments for taxation is upon the protestant. P. 191. 6. Appellant loan associations failed to sustain the burden of showing that state tax officials, who assessed appellants’ property for state taxation at its full value, denied to appellants the equal protection of the laws, guaranteed by the Fourteenth Amendment, by their mode of valuation, for taxation, of property of the ¡wne class belonging to other taxpayers. P. 192. 126 W. Va. 506,30 S. E. 2d 513, affirmed. Appeal from a judgment sustaining the validity of assessments for state taxation. Mr. J. Campbell Palmer, III, with whom Mr. W. Elliott Nefflen was on the brief, for appellants. Mr. Kenneth E. Hines, Assistant Attorney General of West Virginia, with whom Mr. Ira J. Partlow, Attorney General, was on the brief, for appellee. Mr. Chief Justice Stone delivered the opinion of the Court. The question is whether the tax officials of West Virginia, who have assessed appellants’ property for state taxation at its full value, have denied to appellants the equal protection of the laws, guaranteed by the Four- 184 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. teenth Amendment, by their mode of valuation, for taxation, of property of the same class belonging to other taxpayers. Appellants are three Federal Savings and Loan Associations, organized under federal laws, and one Building and Loan Association, organized under state laws. They filed petitions with the county court of Kanawha County, West Virginia, seeking a review and reduction of the 1941 assessment of their property for taxation by the county assessor. They alleged that their property was assessed at a proportionately higher assessment valuation than the property of other taxpayers and that such assessment was unequal and discriminatory, in contravention of the state constitution and the Fourteenth Amendment to the federal Constitution. The county court, sitting as a Board of Review, reduced the assessments after a hearing. On appeal the Circuit Court for Kanawha County reversed the determination of the county court, and reestablished the assessments. The Supreme Court of Appeals of West Virginia, the highest court of the state, affirmed, 126 W. Va. 506, 30 S. E. 2d 513, holding that appellants had failed to make such a clear showing of the unequal effect of the tax as to justify their complaint. The case comes here on appeal from the judgment of the Supreme Court of Appeals of West Virginia, purporting to have been taken under § 237 (a) of the Judicial Code as amended, 28 U. S. C. § 344 (a), which authorizes an appeal from the “final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, . . . where is drawn in question the validity of a statute of any State, on the ground of its being repugnant to the Constitution, . . . and the decision is in favor of its validity.” In their protests against the assessments, filed with the county court, appellants did not draw in question the validity of any statute. They alleged CHARLESTON ASSN. v. ALDERSON. 185 182 Opinion of the Court. only that the assessments were not uniform and equal with the assessments of other property owners and that they violated the Fourteenth Amendment. And in their petition for appeal to the Supreme Court of Appeals of West Virginia appellants contended only that the assessments denied to them equal protection of the laws in violation of the Fourteenth Amendment. It is essential to our jurisdiction on appeal under § 237 (a) that there be an explicit and timely insistence in the state courts that a state statute, as applied, is repugnant to the federal Constitution, treaties or laws. Loeber v. Schroeder, 149 U. S. 580, 585; Erie R. Co. v. Purdy, 185 U. S. 148, 153-4; Fullerton v. Texas, 196 IT. S. 192, 193; Corkran Oil Co. v. Arnaudet, 199 U. S. 182, 193; Wall v. Chesapeake & Ohio R. Co., 256 U. S. 125, 126; Citizens National Bank v. Durr, 257 U. S. 99, 106; Thornton v. Mississippi, 323 U. S. 668; Carter v. General American Life Ins. Co., 323 U. S. 676; Putzier v. Richardson, 323 U. S. 677. And it has long been settled that an attack upon a tax assessment or levy, such as appellants here made, on the ground that it infringes a taxpayer’s federal rights, privileges, or immunities, will not sustain an appeal under § 237 (a). Jett Bros. Co. v. City of Carrollton, 252 U. S. 1; Citizens National Bank v. Durr, supra; Indian Territory Illuminating Oil Co. v. Board of Equalization, 287 IT. S. 573; Miller v. Board of County Comm’rs, 290 IT. S. 586; Baltimore National Bank v. State Tax Comm’n, 296 IT. S. 538; Irvine v. Spaeth, 314 U. S. 575; Memphis Gas Co. v. Beeler, 315 U. S. 649, 650; Commercial Credit Co. v. O’Brien, 323 U. S. 665; see Ex parte Williams, 277 IT. S. 267,272; cf. Reeves v. Williamson, 317 U. S. 593. Where it appears from the opinion of the state court of last resort that a state statute was drawn in question, as repugnant to the Constitution, and that the decision of the court was in favor of its validity, we have jurisdiction on appeal. For we need not inquire how and when the 186 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. question of the validity of the statute was raised when such question appears to have been actually considered and decided by that court. Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123, 134; Chicago, R. I. & P. R. Co. v. Perry, 259 U. S. 548, 551; Saltonstall v. Saltonstall, 276 U. S. 260, 267; Home Ins. Co. v. Dick, 281 U. S. 397,407; Nickey v. Mississippi, 292 U. S. 393, 394; Whitfield v. Ohio, 297 U. S. 431, 435-6. But it does not appear from the opinion of the Supreme Court of Appeals that the federal question was presented to or considered by that court. While the opinion intimates that appellants’ objection was made to the administration of the statute, it nowhere indicates that they contended that, as applied, the statute was invalid as repugnant to the federal Constitution.1 1 The President of the Supreme Court of Appeals, in allowing the appeal to this Court, wrote a memorandum opinion to the effect that the question of the validity of the statute under the Constitution was raised and decided there. Appellants urge that this indicates that the appeal is proper. While a certificate of the state court, made part of the record, to the effect that the federal question in issue was decided there is generally sufficient to sustain our jurisdiction, when it is consistent with the record, Capital City Dairy n. Ohio, 183 U. S. 238, 244; Marvin v. Trout, 199 U. S. 212, 222-4; Cincinnati Packet Co. v. Bay, 200 U. S. 179, 182; Consolidated Turnpike v. Norfolk & 0. V. R. Co., 228 U. S. 596, 599; Whitney v. California, 274 U. S. 357, 360-2; Honeyman v. Hanan, 300 U. S. 14, 22, a certificate to the same effect by the presiding justice of the state appellate court does not suffice, although it may serve to interpret indefinite or ambiguous evidence in the record, relied upon to show that the federal question was raised. Felix v. Scharnweber, 125 U. S. 54, 59, 60; Henkel v. Cincinnati, T77 U. S. 170; Gulf & Ship Island R. Co. v. Hewes, 183 U. S. 66; Home for Incurables n. New York, 187 U. S. 155, 158; Fullerton v. Texas, 196 U. S. 192,194; Seaboard Air Line R. Co. v. Duvall, 225 U. S. 477, 481; Connecticut General Life Ins. Co. v. Johnson, 296 U. S. 535; Purcell v. New York Central R. Co., 296 U. S. 545; Honeyman n. Hanan, supra, 18, and cases cited; Lisenba v. California, 314 U. S. 219. The memorandum of the President of the West Virginia court was not sufficient of itself to establish that CHARLESTON ASSN. v. ALDERSON. 187 182 Opinion of the Court. Appellants in their assignment of errors in this Court have failed to attack the state statute as repugnant to the Constitution, stating only that the finding and judgment below sustaining the assessment violate the equal protection clause. Even where the federal question has been properly raised below, an appeal under § 237 (a) may be dismissed where appellants fail to attack a statute explicitly in their assignments of error here. Cady v. Georgia, 323 U. S. 676; cf. Herbring v. Lee, 280 U. S. Ill, 117; Seaboard Air Line R. Co. v. Watson, 287 U. S. 86, 91; Flournoy v. Wiener, 321U. S. 253. For these reasons we grant appellee’s motion to dismiss the appeal. Treating the papers on which the appeal was allowed as a petition for writ of certiorari, as required by § 237 (c) of the Judicial Code, as amended, 28 U. S. C. § 344 (c), certiorari is granted, since appellants have properly attacked the validity of the assessments under the equal protection clause of the Fourteenth Amendment, and we proceed to consider the merits. Section 14 (a) of Chapter 11, Article III of the West Virginia Code of 1941, provides that “the capital of every building and loan association and federal savings and loan association, as represented or evidenced by the investment shares and investment accounts in such association, shall be assessed at its true and actual value. . . . The real and actual value of such capital, represented by the market value of such investment shares and investment accounts as aforesaid, shall be ascertained according to the best information which the assessor may be able to obtain . . Section 1 of the same chapter and article provides: “All Property shall be assessed annually as of the first day of appellants attacked a statute below, nor does the record contain any evidence which could be relied upon to show that the validity of a statute was drawn in question. 188 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. January at its true and actual value ; . . .” And Article 10, § 1 of the Constitution of West Virginia provides: “. . . taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value to be ascertained as directed by law. No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value.” This section of the constitution also provides for the division of all taxable property into four classes, with a prescribed limitation on the amount of tax which may be levied upon each class. Class I consists of “personal property employed exclusively in agriculture, . . . products of agriculture . . including livestock, while owned by the producer” and includes “money, notes, bonds, bills and accounts receivable, stocks and other similar intangible personal property,” which is the class of property for which appellants are taxed. Notwithstanding these provisions of the constitution and statutes of the state, it appears from the evidence, and the state Court of Appeals found, that in 1941, and since, the assessor of Kanawha County, following the instructions of the state tax commissioner, employed a different method in the valuation and assessment of the property of building and loan associations and federal savings and loan associations, including appellants, from that employed in assessing Class I property of other taxpayers. It is this difference in the mode of assessing the property of different taxpayers which petitioners contend has resulted in taxing the property of appellants at its full value and like property of other taxpayers at less than its full valuation, in violation of the equal protection clause. It appears from the record that the assessor in 1941 for the first time followed the uniform practice of assessing the capital of building and loan associations and federal CHARLESTON ASSN. v. ALDERSON. 189 182 Opinion of the Court. loan associations as evidenced by their investment shares and investment accounts, constituting their Class I intangibles, at their full value. But it also appears that in assessing other taxpayers on their Class I property, the assessor varied his method of assessment as to different types of property included in the class. As to them he valued money at 100%, bonds, notes and accounts receivable, except installment accounts, at about 70% of their face value and installment accounts at 65% of their face value. Livestock and agricultural products were valued at approximately 50% of their “purchase value.” The accounts receivable and notes of small loan companies were assessed at about 85% of their face value. It does not appear how commercial banks and trust companies were assessed, but for purposes of decision the state court assumed that their Class I intangibles were assessed at their full face value. The Court of Appeals found that small loan companies and other taxpayers whose Class I intangibles were taxed at less than their face value are engaged in a business different from and involving a greater risk than that in which building and loan associations and federal savings and loan associations are engaged. It found that there was a basis for the discount from face value employed in assessing notes and accounts of small loan associations, which was lacking in the assessment of the higher grade securities, held by building and loan associations and federal savings and loan associations, whose investments are generally more carefully made and better secured than those of other classes of taxpayers. The court concluded that the method of assessment and valuation employed was not adopted with the purpose of taxing some but not all Class I property at less than * s true value, but as a means of arriving at its true value, t said: “We do not have a case where the true and actual value was ascertained and a discount allowed from that 190 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. value; but rather a case where the discount was allowed, particularly as to intangibles, in an effort to reach the true value.” While the court thought that this method of assessment might in some instances be an erroneous performance of the duties of the assessor, it held that a mere error of judgment as to the mode of assessment adopted was not sufficient to establish an unlawful discrimination “where the plan, though imperfect, is adopted in a good faith effort to secure fair and equitable assessment, and equality and uniformity in taxation.” Appellants argue that denial to them of the equal protection of the laws is established by the proof of the assessor’s discrimination in his mode of assessment of the same kind of Class I property belonging to different taxpayers, and that this discrimination is shown to be “intentional and systematic.” But this argument overlooks the well established rule that the constitutional prohibition applies only to taxation which in fact bears unequally on persons or property of the same class and that mere differences in modes of assessment do not deny equal protection unless they are shown to produce such inequality. Bell’s Gap R. Co. v. Pennsylvania, 134 U. 8. 232, 236; Home Ins. Co. v. New York, 134 U. S. 594, 600; Adams Express Co. v. Ohio, 165 U. S. 194, 229; Michigan Central R. Co. v. Powers, 201 U. S. 245, 298-300; cf. Hendrick v. Maryland, 235 U. S. 610; General American Tank Car Corp. v. Day, 270 IT. S. 367; Interstate Busses Corp. N. Holyoke Street R. Co., 273 U. S. 45, 51; Interstate Busses Corp. v. Blodgett, 276 U. S. 245, 251. Nor does the equal protection clause prohibit inequality in taxation which results from mere mistake or error in judgment of tax officials, Pittsburgh, C., C. & St. L. R. Co. v. Backus, 154 IT. S. 421, 435; Coulter v. Louisville & N. R. Co., 196 U. S. 599, 609; Brooklyn City R. Co. v. New York, 199 U. 8. 48, 52; Sioux City Bridge v. Dakota County, 260 CHARLESTON ASSN. v. ALDERSON. 191 182 Opinion of the Court. U. S. 441,447; Southern R. Co. v. Watts, 260 U. S. 519,527; Baker v. Druesedow, 263 U. S. 137,142; Cumberland Coal Co. v. Board, 284 U. S. 23,25; Rowley v. Chicago & Northwestern R. Co., 293 U. S. 102, 111; Great Northern R. Co. v. Weeks, 297 U. S. 135, 139; or which is not shown to be the result of intentional or systematic undervaluation of some but not all of the taxed property in a single class. New York v. Barker, 179 U. S. 279, 284, 285; Coulter v. Louisville & N. R. Co., supra; Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585, 597; Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350,353; Sioux City Bridge v. Dakota County, supra, 447; Southern R. Co. v. Watts, supra; Snowden v. Hughes, 321 U. S. 1, 9. In all these respects appellants have the burden of establishing the unconstitutionality of the assessments which they assail, Sunday Lake Iron Co. n. Wakefield, supra, 353, and cases cited; Southern R. Co. v. Watts, supra, 526; Chicago G. W. R. Co. v. Kendall, 266 U. S. 94,99; Lawrence v. State Tax Comm’n, 286 U. S. 276,284; Great Northern R. Co. v. Weeks, supra, 139; Snowden v. Hughes, supra, 9; and they have failed to sustain that burden. It is plain that the Fourteenth Amendment does not preclude a state from placing notes and receivables in a different class from personal property used in agriculture and the products of agriculture, including livestock, and taxing the two classes differently, even though the state places them in a single class for other purposes of taxation. Bell’s Gap R. Co. v. Pennsylvania, supra, 237; Home Ins. Co. N.NewYork, supra, 606; Coulter v. Louisville & N. R. Co., supra, 608-9; Klein v. Board of Supervisors, 282 U. S. 19. As we have said, the state court concluded that the discount from face value allowed in assessing Class I intangibles of various taxpayers, other than appellants, was for 192 OCTOBER TERM, 1944. Roberts, J., dissenting. 324U.S. the purpose of arriving at the true value of the property assessed. In view of that conclusion and in the absence of any finding or persuasive evidence to the contrary, we cannot say that the allowance of the discounts has in fact resulted in the actual assessment of the intangibles of taxpayers, other than appellants, at less than their true value. Nor can we say that the discounts which were denied to appellants on their Class I intangibles for the first time in 1941 were intended to produce inequality in taxation, or were part of a systematic effort to accomplish that end, or in fact were more than errors in judgment, if that, in the administration of the tax laws. We find no persuasive evidence in the record and are pointed to none from which it could be inferred that the value of Class I intangibles of small loan companies and other taxpayers in West Virginia, not subject to the same supervision as appellants, is not generally less than face value, or that the discount allowed by the assessor on the intangibles of any given taxpayer or class of taxpayers has in fact resulted in an assessment at less than their true value. It follows that appellants have failed to sustain the burden of showing that the assessments are unconstitutionally discriminatory, and the judgment must be Affirmed. Mr. Justice Black is of the opinion that the appeal raises no substantial federal question and therefore concurs in its dismissal. For the same reason he thinks certiorari should be denied. Mr. Justice Roberts. I am of opinion the judgment should be reversed. I think the evidence is not only without contradiction but is persuasive that persons and corporations whose circumstances are precisely similar to those of the complaining taxpayers, and persons competing in the investment UNITED STATES v. BEACH. 193 182 Opinion of the Court. field with them and holding similar security, have been benefited by assessments purposely intended to discrim-inate in their favor, and against the complainants. I think the decision below plainly runs counter to decisions of this court. Cumberland Coal Co. v. Board of Revision, 284 U. S. 23; lowa-Des Moines National Bank v. Bennett, 284 U. S. 239,245; Concordia Fire Ins. Co. N. Illinois, 292 U. S. 535. UNITED STATES v. BEACH. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA. No. 620. Argued February 9, 1945.—Decided February 26, 1945. The Mann Act is applicable to transportation taking place wholly within the District of Columbia. P. 195. 144 F. 2d 533, reversed. Certiorari, 323 U. S. 705, to review the reversal of a conviction for violation of the Mann Act. Mr. Robert L. Stern, with whom Solicitor General Fahy, Assistant Attorney General Tom C. Clark, Messrs. Robert 8. Erdahl, Irving S. Shapiro and W. Marvin Smith were on the brief, for the United States. Mr. James R. Kirkland, with whom Mr. Nathan M. Lubar was on the brief, for respondent. Per Curiam. Respondent was indicted and convicted upon a jury trial, in the District Court of the United States for the istrict of Columbia, of transporting another woman in Washington, D. C., for the purpose of prostitution, in violation of the Mann Act. 36 Stat. 825, 18 U. S. C. 97, et seq. Section 2,18 U. S. C. § 398, makes it a penal 0 ense knowingly to “transport or cause to be trans- 194 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. ported, or aid or assist in obtaining transportation for, or in transporting, in interstate . . . commerce, or . . . in the District of Columbia, any woman ... for the purpose of prostitution ... or with the intent and purpose to induce, entice, or compel such woman ... to give herself up to debauchery, or to engage in any other immoral practice . . .” The prohibited transportation with the intent or purpose to induce or entice the woman transported to practice prostitution violates the statute. Hoke v. United States, 227 U. S. 308; Athanasaw v. United States, 227 U. S. 326; Harris v. United States, 227 U. S. 340, 341; Wilson v. United States, 232 U. S. 563, 571; cf. Mortensen v. United States, 322 U. S. 369, 374. The Court of Appeals for the District set aside the conviction on the ground that the Mann Act was inapplicable to transportation taking place wholly within the District. 144 F. 2d 533. That court found support for its conclusion in the numerous acts of Congress enacting local laws for the District, which make it a criminal offense for “any prostitute” to invite or persuade any person to go with her to any building for the purpose of prostitution, or for any person to entice or force any woman to go to a house of assignation, or for any person to invite, induce, or procure another to engage in prostitution or to go to any place for purposes of prostitution.1 The court thought that the addition of the prohibition of the Mann Act to this legislation, specifically applicable only in the District, was so useless and unnecessary as to indicate that the Mann Act was not designed to apply to the District of Columbia “except in its interstate aspect.” No other question was considered or decided below or discussed in the briefs and argument of counsel here, and we decide no other. 1D. C. Code (1929) Tit. 6, §§ 177, 179; D. C. Code (1940) §§ 22-2701,22-2702,22-2705 to 22-2712. UNITED STATES v. BEACH. 195 193 Opinion of the Court. But none of these enactments of local application speak of “transportation” for immoral purposes, which is the act condemned by the Mann Act. The Mann Act not only penalizes such transportation in interstate commerce, which is defined in § 1, 18 U. S. C. § 397, as including any commerce into or out of the District, but it specifically and repeatedly includes in its prohibition, such transportation “in any territory or the District of Columbia.” Congress, in enacting the Mann Act, made it perfectly plain by its Committee Reports on the proposed legislation that it was intended to apply to transportation taking place wholly within the District of Columbia. H. Rep. No. 47, 61st Cong., 2d Sess., p. 2; S. Rep. No. 886, 61st Cong., 2d Sess., p. 2. Both Reports declare: “All of the provisions which make the crime depend upon transportation in interstate or foreign commerce are made applicable to the District of Columbia, the Territories and possessions of the United States, including the Panama Canal Zone, without regard to the crossing of district, territorial, or state lines . . .” This was recognized both by the proponents and by the opponents of the bill on the floor of the House. 45 Cong. Rec. 812-813, 816; 45 Cong. Rec. App. 14. (The point was not debated in the Senate.) Congress thus, through the exercise of its police power over the District, followed its usual policy of extending legislation based on the commerce power to the same substantive acts taking place wholly within the District.2 Whether the District was already adequately protected from the evils of prostitution without the added prohibition of transportation for that purpose, was for Congress, not the courts, to decide. The prohibition was deliber- 2 See, for example, the Sherman Act (15 U. S. C. § 12), the Federal ,.r t ^0mm^sslon Act (15 u. S. C. § 44), the Federal Denture Act C. Supp. Ill, 1943, § 420g), the Anti-Racketeering Act T, o ‘ 8* C. §420b), and the Food, Drug, and Cosmetic Act (21 t’-S. C. §16). 196 OCTOBER TERM, 1944. Murphy, J., dissenting. 324U.S. ately adopted by Congress, and it conflicts with no other legislation applicable in the District. Hence the present reversal of the conviction for its violation was erroneous. As the Court of Appeals did not pass upon other grounds for reversal urged by respondent, the case is remanded to it for further proceedings not inconsistent with this opinion. Bates v. United States, 323 U. S. 15, 17, and cases cited. Reversed. Mr. Justice Roberts took no part in the consideration or decision of this case. Mr. Justice Murphy, dissenting. We are dealing here with a statute known and referred to by Congress in § 8 as the “White-slave traffic Act.” 36 Stat. 825, 827. The Congressional debates and committee reports on the legislation make it plain that the Act was designed and intended solely to prevent “whiteslave” traffic and that it should not be applied to the situation present in this case. See 45 Cong. Rec. 805, 821, 1035, 1037; H. Rep. No. 47, 61st Cong., 2d Sess.; S. Rep. No. 886, 61st Cong., 2d Sess. Prior to the passage of the Act in 1910, numerous investigations had disclosed the existence of a systematic, continuous international and interstate traffic in women and girls, who were being forced against their will to practice prostitution.1 Fraud, trickery, deceit, force and 1 “The testimony which has been collected, including correspondence and other documentary evidence, which was captured at the time of the arrest of certain notorious criminals, clearly reveals that an organized society exists both in this country, and abroad, formed for no other purpose than to exploit innocent girls for immoral purposes. This syndicate has headquarters, and distributing centers, in New York, Chicago, San Francisco, Denver, and many other American cities, extending even as far north as Nome in Alaska. From the data accumulated by the government agents, it appears that UNITED STATES v. BEACH. 197 193 Murphy, J., dissenting. liquor were used by panderers and procurers to force them into lives of shameless, immoral and involuntary servitude. Many men earned their livelihood from the sale and exploitation of these women. State laws were found entirely inadequate to cope with such an extensive international and interstate traffic. Congress, however, was careful to distinguish this vicious traffic from immorality and prostitution in general. It made it clear that the Act was aimed solely at the white-slave traffic, which was explicitly defined as “the business of securing white women and girls and of selling them outright, or of exploiting them for immoral purposes.” H. Rep. No. 47, p. 11; S. Rep. No. 886, p. 11. It was pointed out that “the women who are the victims of the traffic are unwillingly forced to practice prostitution” and that “these women are practically slaves in the true sense of the word; that many of them are kept in houses of ill fame against their will; and that force, if necessary, is used to deprive them of their liberty.” H. Rep. No. 47, p. 10; S. Rep. No. 886, p. 11. “The term ‘white slave’ includes only those women and girls who are literally slaves—those women who are owned and held as property and chattels—whose lives are lives of involuntary servitude; those who practice prostitution as a result of the activities of the procurer, and who, for a considerable period at least, continue to lead their degraded lives because of the power exercised over them by their owners.” H. Rep. No. 47, pp. 10,11; S. Rep. No. 886, p. 11.2 At the same time, the Congressional committees were careful to explain that there was no attempt, by invading the prov- within the last ten years, hundreds of girls have been transferred to various portions of the United States, through the pernicious activities of the agents of this syndicate.” 45 Cong. Rec. 1037. Webster s New International Dictionary, 2d Ed., defines "white save as "a woman held unwillingly for purposes of commercial prostitution.” 637582°—46__17 198 OCTOBER TERM, 1944. Murphy, J., dissenting. 324U.S. ince of the states, to suppress or regulate immorality in general or “to regulate the practice of voluntary prostitution.” No effort was made to prohibit or punish the practice of prostitution or the keeping of houses of ill fame. These matters were recognized to be within the proper and exclusive domain of state law. H. Rep. No. 47, PP-1,2. This rich background of Congressional intent and the clear and obvious title of the Act give meaning and boundaries to the broad language used in the statute. It was the pernicious white-slave traffic that Congress had in mind when it provided in § 2, under which respondent was convicted, for the punishment of any person transporting in interstate or foreign commerce, or in any Territory or in the District of Columbia, any woman or girl for the purpose of prostitution, debauchery or any other immoral purpose. That courts in the past have ignored the plain Congressional purpose and have applied these statutory words in a literal sense, so as to punish anyone transporting a woman for immoral purposes quite apart from any connection with white-slavery, does not command us to continue such an erroneous construction and application of the Act. Therefore I agree with the Court to the extent that its judgment means that the Act applies to white-slave traffic solely within the District of Columbia, a result required by the words of the statute and by the Congressional history. But the application of the Act to transportation solely within the District of Columbia for purposes quite unrelated to white-slavery should not be sanctioned. The Court does not pass upon that issue directly and, in its discretion, may ignore it. But the facts of this case speak out boldly and cannot be unheeded. To do so is to impose a criminal statute unfairly upon a citizen by disregarding its true intent and purpose, thereby adding another instance of tortured and grotesque application to its already unhappy history. UNITED STATES v. BEACH. 199 193 Murphy, J., dissenting. The evidence here discloses that the respondent operated a dress shop in the city of Washington and employed a girl as an assistant. The girl at the same time began to live with respondent at the latter’s apartment. Three days later respondent suggested to the girl that she could earn more money by “selling herself.” Although she had never practiced prostitution before, the girl thought it over and finally agreed to work for respondent as a prostitute. The girl practiced prostitution in respondent’s apartment and in various hotel rooms to which respondent sent her. On the day in question, respondent accompanied the girl to a hotel some four blocks from the apartment for purposes of prostitution. The trip was made by taxicab, respondent paying her own and the girl’s fare. The evidence is clear that the respondent in no way compelled, enticed or induced the girl to engage in the business of prostitution through fraud, deceit or force; it was a purely voluntary matter on the part of the girl. Thus the Court today applies the White Slave Traffic Act to a case of voluntary prostitution, despite the fact that none of the elements of white-slavery is present. Equally disregarded is the fact that Congress clearly intended such conduct to remain punishable under local laws and that adequate local laws for the District of Columbia have been provided by Congress to cope with the real evils present in this instance. Such facts make it unnecessary to invoke the White Slave Traffic Act as a means of controlling voluntary vice in the District. The Act is applied here not because white-slavery is present but because acts of voluntary prostitution followed the payment for a four-block taxicab ride, acts which are punishable under local law. Such distortion of the legislative purpose is not required to safeguard sound rules of interpretation. It can only serve to subject residents of the District of Columbia to the evils of blackmail 200 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. and persecution and to punish unjustly those whose immoral acts do not constitute white-slavery. No principle of stare decisis and no rule of statute or reason can justify such a result. Mr. Justice Black joins in this opinion. GARBER v. CREWS et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT. No. 518. Argued February 6, 7, 1945.—Decided February 26, 1945. The double liability imposed on stockholders of national banks by § 23 of the Act of December 23, 1913, held enforcible against one who sold his shares within sixty days of the closing of the bank while insolvent, even though the sale was made in good faith and though the bank’s closing was voluntary. P. 202. 144 F. 2d 665, affirmed. Certiorari, 323 U. S. 701, to review the affirmance of a judgment against the petitioner here in an action to enforce a national bank stockholders’ liability. Mr. P. C. Simons for petitioner. Mr. Christy Russell, with whom Mr. L. G. Owen was on the brief, for respondents. Mr. Justice Roberts delivered the opinion of the Court. We are called upon to determine the application in the circumstances of this case of § 23 of the Act of Dec. 23, 1913,1 which imposes liability upon stockholders of a closed national bank. November 25, 1929, the American National Bank of Enid, Oklahoma, pursuant to a resolution of its directors, 1 c. 6, 38 Stat. 251, 273,12 U. S. C. § 64. GARBER v. CREWS. 201 200 Opinion of the Court. which recited that it contemplated “disposing of its current business and thereafter going into voluntary liquidation,” sold its business and transferred its assets to the First National Bank of the same city in consideration of the payment of $350,000 and the assumption of its liabilities as disclosed by its books. The purchasing bank retained $110,000 to guarantee the collection of negotiable paper taken over and to cover certain real estate temporarily retained by the seller. American closed its business and promptly distributed the $240,000 cash received ratably amongst its stockholders. The respondents were parties to an agreement, made in 1922, whereby large sums were deposited in a bank to await the settlement of disputes relative to the ownership of the funds deposited. In 1930 settlement was reached and demand made by the respondents for the payment of the deposit. It was then discovered that the fund had been dissipated and that officers of American, which was a correspondent of the bank of deposit, had participated in the embezzlements. The respondents thereupon brought action in a state court against American, its officers and directors, to fasten liability on the bank and the individuals. A judgment against American for $249,000 was affirmed by the Supreme Court of Oklahoma.2 The respondents brought the present suit in the District Court for Western Oklahoma to establish a trust in the liquidating dividend of $240,000 paid by American to its stockholders and to recover from the stockholders the amount necessary to satisfy the balance of the judgment remaining after restitution by stockholders of the liquidating dividend; that is, to enforce the double liability of stockholders. Recovery was had on each cause of action, and also on a third against the former directors of American. The Circuit Court of Appeals affirmed the judgment 2 American National Bank v. Crews, 191 Okla. 53, 126 P. 2d 733. 202 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. on the first and second causes of action and ordered dismissal of the third.8 On November 14, 1929, the petitioner sold his stock in American in good faith and for a valuable consideration to one Oven. December 20, 1929, the stockholders and directors of American held the necessary meetings and took appropriate action under the National Bank Act3 4 to go into voluntary liquidation, and thereafter such liquidation went forward. It will be observed that the sale of petitioner’s stock was within sixty days of November 25th and within sixty days of December 20th. The petitioner was a defendant in the present action to enforce stockholders’ liability and judgment went against him as a stockholder. In a petition for certiorari he urged a number of defenses which the Circuit Court of Appeals had overruled. We granted certiorari limited to the question whether his sale of his stock relieved him of liability.5 Does § 23 of the Act of 1913 justify the judgment against the petitioner? The statute reads in part: “The stockholders in any national banking association who shall have transferred their shares or registered the transfer thereof within sixty days next before the date of the failure of such association to meet its obligations, or with knowledge of such impending failure, shall be liable to the same extent as if they had made no such transfer.” We are of opinion that the petitioner is within the plain terms of the law. On its face, the Act grants no exemption due to the facts that the sale was made for consideration and in good faith; that, at the time, American was believed to be solvent; or that the existence of the claim ultimately established by the respondents was then not known to the respondents or to the petitioner. 3 Hoehn N. Crews, 144 F. 2d 665. 412 U. S. C. § 181. 5 323 U. S. 701. GARBER v. CREWS. 203 200 Opinion of the Court. Prior to the adoption of § 23 as a part of the Federal Reserve Act of 1913,6 the liability of shareholders in a national banking association had been imposed by R. S. 5151. Section 23 of the Act of 1913 reenacted, with slight verbal changes, the first clause of the first sentence of R. S. 5151, which provided: “The shareholders of every national banking association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares; . . .” R. S. 5151 had been before this and other courts for interpretation and, under it, it was held that the gist of any action to impose liability upon a stockholder who had transferred his shares prior to the actual closing of the bank was that the transfer was not a real one or was fraudulent; that is, made with the purpose to avoid the statutory liability.7 It is obvious that when Congress came to write the Act of 1913 it intended, while leaving the right of recovery for transfers not falling within sixty days of the bank’s closing to be adjudged according to the old standard of fraud or intended evasion of liability, to announce a drastic new rule denying effect to all transfers made within sixty days of the bank’s cessation of business. It is impossible to read the new enactment of 1913 in any other sense. The only cases dealing with the question in lower federal courts have so held.8 6 Supra, Note 1. 7 National Bank v. Case, 99 U. S. 628; Bowden v. Johnson, 107 U. S. 251; Whitney v. Butler, 118 U. S. 655; Stuart v. Hayden, 169 U- S. 1; Earle v. Carson, 188 U. S. 42; McDonald v. Dewey, 202 U. S. 510. 8 Fletcher v. Porter, 20 F. 2d 23, and Collins v. Caldwell, 29 F. 2d 329, are in accord with the decision of the Circuit Court of Appeals ui the instant case. 204 OCTOBER TERM, 1944. Syllabus. 324 U. S. The petitioner insists that, as the initiation of the liquidation of American was voluntary, no cause of action against stockholders arose by reason of this action. But we think that where a bank closes its doors and ceases to transact business the right of creditors or of a receiver to enforce stockholders’ liability matures at the time of such closing whether as a result of voluntary action or of adverse action by the Comptroller of the Currency, or of the appointment of a receiver, if at that time the bank was insolvent, as American undoubtedly was, if the respondents’ claim was taken into the reckoning.9 The judgment of the court below was right and must be affirmed. Affirmed. YOUNG v. HIGBEE COMPANY et al. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 342. Argued February 1, 1945.—Decided February 26, 1945. From a decree confirming a plan of reorganization under Chapter X of the Bankruptcy Act, an appeal was taken by P and B, holders of preferred stock. The appeal was based largely upon objections to allowances made to junior claimants; and, had it been successful, the preferred stockholders as a class would have benefited. For a consideration paid to them, P and B transferred their stock to junior claimants and agreed to abandon the appeal. Petitioner, also a holder of preferred stock, sought to intervene and prosecute the appeal. The Circuit Court of Appeals denied leave and dismissed the appeal. Petitioner thereupon filed in the bankruptcy court a petition, on behalf of himself and all other preferred stockholders, seeking an accounting by P and B to the debtor or to the preferred stockholders, for the excess of the amount which they had receive over the fair value of their stock. Held: 8 8 Compare Richmond v. Irons, 121 U. S. 27, 48, 50. YOUNG v. HIGBEE CO. 205 204 Opinion of the Court. 1. The Circuit Court of Appeals’ dismissal of the appeal over petitioner’s attempt to intervene did not bar petitioner’s subsequent petition for an accounting. P. 208. 2. The fruit of the appeal by P and B belongs to all of the preferred stockholders. P. 213. 3. The bankruptcy court has jurisdiction to award the relief prayed. P. 214. 4. The alleged improper motive of the petitioner does not warrant denial of the prayer for relief, which was made on behalf of all the stockholders. P. 214. 142 F. 2d 1004, reversed. Certiorari, 323 U. S. 689, to review a judgment which affirmed the bankruptcy court’s dismissal of an application for relief. Mr. Robert W. Purcell, with whom Mr. James A. Butler was on the brief, for petitioner. Mr. Marvin C. Harrison for respondents. Solicitor General Fahy, Messrs. Roger S. Foster, Milton K Freeman, Theodore L. Thau and David Ferber filed a brief on behalf of the Securities & Exchange Commission, as amicus curiae, urging reversal. Mr. Justice Black delivered the opinion of the Court. This case presents the question of the accountability of stockholders who objected to the confirmation of a plan of reorganization under the Bankruptcy Act,1 and abandoned their appeal for a consideration to themselves, where the basis of the appeal was that, if successful, it would benefit the entire class. The Higbee Company, a department store with assets o more than six million dollars, filed a voluntary petition * 907The proceedings were begun in 1935 under § 77B, 11 U. S. C. w. June 22, 1938, Congress passed the Chandler Act, and the provisions of Chapter 10 of the Act were thereafter applicable to tnese proceedings. 52 Stat. 883-905, 11 U. S. C. 501-676. 206 OCTOBER TERM, 1944. Opinion of the Court. 324 U. 8. for reorganization. It had three types of stocks: common, and first and second preferred. Two of its directors, Bradley and Murphy, claimed that they had acquired by purchase a junior debt against the company of $1,952,-000.00. A plan for reorganization was presented under which the owners of this junior debt were to be awarded $600,000.00 in new notes and a large block of common stock. Potts and Boag, respondents here, and owners of some shares of first preferred, objected to confirmation of the plan. They contended, on several grounds, that unless the junior debt was subordinated to the preferred stock claims, the plan allotted that indebtedness too great a share in the distribution of the bankrupt’s assets.2 When the stockholders’ committee of which they were members approved the plan, Potts and Boag resigned and announced the formation of a new committee to press their objections to the junior debt allowance. Notwithstanding these objections, the Securities & Exchange Commission recommended the plan’s acceptance, 8 S. E. C. 777, and the District Court confirmed it. 50 F. Supp. 114. Potts and Boag appealed from the District Court’s decree confirming the plan. Although appealing as individuals, their appeal was based almost entirely on objections to allowances for the junior indebtedness which left less for distribution among all the preferred stockholders. Their appeal sought no separate individual relief for them- 2 This $1,952,000.00 junior indebtedness consisted of subordinated notes of the Higbee Company which had been bought by Midamenca Corporation for $100,000.00 at an auction sale in 1935. Potts and Boag consistently maintained that the junior debt’s participation in Higbee’s assets should be limited to $100,000.00. They charged that Bradley was a director of Higbee and of Midamerica, and thus occupied two conflicting fiduciary positions. They insisted that the court should find this junior debt to be “invalid and unenforceable in whole or in part” and “subordinated to the First and Second Preferred Stock.” YOUNG v. HIGBEE CO. 207 204 Opinion of the Court. selves; they appealed only to have the confirmation set aside. Had their appeal succeeded, the District Court would have been required to reduce the value of junior claims asserted by Bradley and Murphy, thereby increasing the value of the claims of the preferred stockholders as a class. In this situation, Potts and Boag sold their stock and their appeal3 to Bradley and Murphy, claimants under the junior debt; the consideration paid was $115,000.00. The par value of this stock was $26,000.00. Its admitted market value at the time, as the court below found, was $17,000.00. Pursuant to this contract for sale of the appeal a stipulation for dismissal was filed in the Circuit Court of Appeals. Petitioner Young, a preferred stockholder of the same class, sought to intervene and prosecute the appeal. His petition was denied and the case was dismissed without opinion. Young then, on behalf of him-self and all other preferred stockholders, filed a petition in the District Court setting up these facts and praying that 3 Potts’ testimony as to the sale was: ‘ Q. So that in a sense you were selling something more than your stock, I take it? A. I think so. “Q. You were selling the appeal which you had taken in behalf of yourself and Mr. Boag; that is a fair statement, isn’t it? A. I think so.” The written contract between Potts and Boag and Bradley and Murphy specifically provided for sale of the appeal as well as the stock. It reads in part: I hereby sell, assign, transfer and set over unto Charles L. Bradley and John P. Murphy, and their assigns, 260 shares of First Preferred stock of The Higbee Company, of Cleveland, Ohio, . . . together with all rights, title and interest, benefits or privileges we, or either ° us, have or may have in and to or by virtue of or arising from the matter of The Higbee Company, Debtor, J. Fred Potts and William ♦ oag, Appellants, vs. The Higbee Company, Appellee, and a certain appeal taken by J. Fred Potts and William W. Boag in said proceedings, which said appeal is now pending in the United States Circuit ^ourt of Appeals for the Sixth Circuit . . .” 208 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. he be authorized to employ counsel to compel Potts and Boag to account to the debtor for the difference between what they received and the fair value of their stock, or praying in the alternative that Potts and Boag be required to pay over that amount to the preferred stockholders.4 5 After a hearing, a special master found as a fact that Potts and Boag had appealed in behalf of themselves only and had not acted as representatives of a class. The District Court approved this finding, thought it determinative of the case, and dismissed Young’s petition. The Circuit Court of Appeals affirmed. 142 F. 2d 1004. Because considerations of substantial importance to the effective administration of corporate reorganizations are involved, we granted certiorari, 323 U. S. 689.B First. It is argued that since the Circuit Court of Appeals dismissed the appeal of Potts and Boag over Young’s attempt to intervene, Young is estopped from prosecuting the present petition. This contention has no merit, for the reason, among others, that the determinative issues 4 In both courts below Young sought an order against Bradley and Murphy as well as Potts and Boag but Bradley and Murphy have not been made respondents in this Court. 5 The petitioner has made the following statement to this Court with reference to the respondent Boag: “During the course of the appeal in the Circuit Court of Appeals it first came to Petitioner’s attention that Respondent Boag had entered the Armed Services. No one representing Boag has appeared to request a stay of proceedings pending his return. However, Petitioner has no desire to cause judgment to be entered against Boag under these circumstances. It would be entirely satisfactory to have the proceedings stayed as to Boag pending his return, although no rights against him are waived.” Under these circumstances no judgment against Boag will be entered in this case and the proceedings in the Circuit Court of Appeals will be stayed as to him. Soldiers’ & Sailors’ Civil Relief Act of 1940, 54 Stat. 1178. YOUNG v. HIGBEE CO. 209 204 Opinion of the Court. in the two proceedings were not the same. The first petition did not pray for an accounting by Potts and Boag. The court only decided then that Young could not intervene and continue that appeal, and that the appeal should be dismissed. Now, accepting the court’s dismissal of the appeal as final, Young seeks an accounting for the consideration paid Potts and Boag for agreeing to dismiss. Second. It is argued that since Potts and Boag did not expressly specify that they appealed in the interest of the whole class of preferred stockholders, but appealed only in their own names, they owed no duty to any stockholders but themselves. The appeal here, however, was not from a denial of any individual claim of Potts and Boag. Its basis was that every other preferred stockholder, as well as themselves, would be injured by confirmation. So far as the issues raised by the appeal are concerned, the rights of Potts and Boag and the other preferred stockholders were inseparable. Thus, even though their objection to confirmation contained no formal class suit allegations, the success or failure of the appeal was bound to have a substantial effect on the interests of all other preferred stockholders. The liability of one who assumes a determining position over the rights of others must turn on something more substantial than mere formal allegations in a complaint.6 Equity looks to the substance and not merely to the form. Furthermore, the right of appeal granted by a statute should not be interpreted in such way as to defeat rights clearly granted in other parts of the same Act. Peck v. Jenness, 7 How. 612, 623. Potts and Boag appealed un- v- Ticonic Bank, 307 U. S. 161. See Atlas Bank v. Nahant (Mass.) 480; Whitten v. Dabney, 171 Cal. 621, 154 • 12; Honesdale Co. v. Montgomery, 56 W. Ya. 397, 49 S. E. 434-aur^ley v. Trenton Mutual Life Ins. Co., 9 N. J. Eq. 95; Wood v. Hummer, 30 Fed. Cas. 435, No. 17,944. 210 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. der § 206 of the Chandler Act, which, contrary to the general bankruptcy procedure, grants any stockholder or creditor the right to be heard on all matters relating to corporate reorganizations. Courts have liberally construed this language as authorizing appeals.7 We are now asked to say that the privilege of appeal granted to Potts and Boag by the Act vested them with an indefeasible right to sell the privilege to the disadvantage of all other stockholders in their class. But, historically one of the prime purposes of the bankruptcy law has been to bring about a ratable distribution among creditors of a bankrupt’s assets; to protect the creditors from one another.8 And the corporate reorganization statutes look to a ratable distribution of assets among classes of stockholders as well as creditors. There would be no ratable distribution of this bankrupt estate if Potts and Boag could utilize their statutory right of appeal to get for their preferred stock $7.00 for every $1.00 paid to other preferred stockholders. We are asked to say that Congress intended such a consequence, and to construe the right of a stockholder to be heard on a plan of reorganization as carrying with it the right to “sell” the very appeal which the Act grants him. Potts and Boag, by appealing from a judgment which affected a whole class of stockholders, owed an obligation to them, the full extent of which we need not now delineate. Certainly, at the very least they owed them an obligation to act in good faith. If Potts and Boag had declined to accept this plan in bad faith, the court, under 7 In re Keystone Realty Holding Co., 117 F. 2d 1003; Dana v. S. E. C., 125 F. 2d 542; cf. Amick v. Mortgage Security Corp., 30 F. 2d 359. 8 Boese v. King, 108 U. S. 379, 385-386; Sampsell v. Imperial Paper Corp., 313 U. S. 215, 219; cf. Case v. Los Angeles Lumber Co., 308 U. S. 106. See also 66 Pa. L. Rev. 224; Senate Document No. 65,72nd Cong., 1st Sess., 6,10,49-93. YOUNG v. HIGBEE CO. 211 204 Opinion of the Court. § 203,9 could have denied them the right to vote on the plan at all. The history of this provision makes clear that it was intended to apply to those stockholders whose selfish purpose was to obstruct a fair and feasible reorganization in the hope that someone would pay them more than the ratable equivalent of their proportionate part of the bankrupt assets.10 If Potts’ and Boag’s opposition to confirmation sprang from such a purpose (and Potts and Boag did obstruct confirmation until they were able to “sell” 9 “Sec. 203. If the acceptance or failure to accept a plan by the holder of any claim or stock is not in good faith, in the light of or irrespective of the time of acquisition thereof, the judge may, after hearing upon notice, direct that such claim or stock be disqualified for the purpose of determining the requisite majority for the acceptance of a plan.” 52 Stat. 894. XOA year before the House Committee on the Judiciary held its extensive hearings on the Chandler Act, a Circuit Court of Appeals held that a creditor could not be denied the privilege of voting on a reorganization plan under § 77B, although he bought the votes for the purpose of preventing confirmation unless certain demands of his should be met. Texas Hotel Corp. v. Waco Development Co., 87 F. 2d 395. The hearings make clear the purpose of the Committee to pass legislation which would bar creditors from a vote who were prompted by such a purpose. To this end they adopted the “good faith” provisions of § 203. Its purpose was to prevent creditors from participating who “by the use of obstructive tactics and hold-up techniques exact for themselves undue advantages from the other stockholders who are cooperating.” Bad faith was to be attributed to claimants who opposed a plan for a time until they were “bought off’; those who “refused to vote in favor of a plan unless . . . given some particular preferential advantage.” Hearings on Revision of the Bankruptcy Act before the Committee on the Judiciary of the House of Representatives, 75th Cong., 1st Sess., on H. R. 6439, Serial 9, pp. 180-182. See also, on the same general topic, McLaughlin, Capacity of aintiff-Stockholder to Terminate a Stockholder’s Suit, 46 Yale L. J. 21, Hornstein, Problems of Procedure in Stockholder’s Derivative uits, 42 Col. L. Rev. 574, Rodgers and Groom, Reorganization of a road Corporations under Section 77 of the Bankruptcy Act, 33 Lol. L. Rev. 571, 588-601. 212 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. their appeal) they were acting in bad faith within the statutory meaning of that term. And accepting money as the end result of such a statutory violation cannot vest them with a right to keep it. Payment to them of this money simply meant that the distribution of bankrupt assets to the junior debt claimants, who paid Potts and Boag, would represent a smaller net value. The statute contemplates, and the appeal was taken on the assumption, that the less the junior claimants were awarded the more all the preferred stockholders would receive. Therefore, the consideration of the sale which Potts and Boag made was not merely their own interest in the bankrupt estate, but the interest of all the preferred stockholders. The situation which enabled them to traffic in the interests of others was created by a statute passed to protect the interests of all of them.11 The statute neither compels them to appeal nor to prosecute an appeal already taken contrary to their own interests; it does impose upon them the duty of good faith to all other stockholders whose interests they temporarily control because they are necessarily involved in the appeal. This control of the common rights of all the preferred stockholders imposed on Potts and Boag a duty fairly to represent those common rights.11 12 This representative responsibility is emphasized 11 See Federal Communications Comm’n v. Sanders Radio Station, 309 U. S. 470, 476-7; Interstate Commerce Comm’n v. Oregon-Washington R. Co., 288 U. S. 14, 25-7. 12 By virtue of their standing as sole appellants, Potts and Boag, during the pendency of the appeal, dominated the fate of the reorganization as completely as though they had been the majority stockholders of a going corporation. Cf. Southern Pacific Co. v. Bogert, 250 U. S. 483, 492: “But the doctrine by which the holders of a majority of the stock of a corporation who dominate its affairs are held to act as trustees for the minority, does not rest upon such technical distinctions. It is the fact of control of the common property held and exercised, not the particular means by which or manner in which the control is exercised, that creates the fiduciary obligation. . . . The essential of the liability to account sought to be enforced YOUNG v. HIGBEE CO. 213 204 Opinion of the Court. by the fact that they might have been awarded compensation for their services had they succeeded in reducing the claim of the junior indebtedness to the advantage of all the preferred stockholders. § 243; cf. § 249. In re Keystone Realty Holding Co., 117 F. 2d 1003, 1006. They cannot avail themselves of the statutory privilege of litigating for the interest of a class and then shake off their self-assumed responsibilities to others by a simple announcement that henceforth they will trade in the rights of others for their own aggrandizement. To hold that the Chandler Act permits this, would be to say that Congress, which sought more effectively to accomplish fair and equitable treatment of investors, had, by granting a right of appeal to stockholders, defeated its purpose, and had substantially modified the whole body of law imposing the most rigorous responsibilities for fair dealing upon those who represent the rights of others.13 The money Potts and Boag received in excess of their own interest as stockholders was not paid for anything they owned. It came to them in settlement of litigation which if carried to a successful conclusion would have added to the value of other preferred stockholders of the common debtor. That the suit was settled and dismissed does not alter the rights of parties as to distribution of the fruits of the settlement. A distinction as to rights arising from litigation, which rests upon the difference between a judgment and a settlement of a lawsuit, under these circumstances, as in others, is “too formal to be sound.” Lyeth v. Hoey, 305 U. S. 188, 195, 196; Helvering v. Safe m this suit lies not in fraud or mismanagement, but in the fact that, having become a fiduciary through taking control of the old Houston Company, the Southern Pacific has secured fruits which it has not shared with the minority. The wrong lay not in acquiring the stock, ut in refusing to make a pro rata distribution on equal terms among the old Houston Company shareholders. 18 Cf. Woods v. City Bank, 312 U. S. 262, 267-269; Meinhard v. Salmon, 249 N. Y. 458,164 N. E. 545. 637582°—46-18 214 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. Deposit & Trust Co., 316 U. S. 56, 63-67. The appeal of Potts and Boag was alleged to be for the benefit of all preferred stockholders. In the contemplation of the statute which authorized the appeal, its fruit properly belongs to all the preferred stockholders. One creditor, therefore, cannot make that fruit his own by a simple appropriation of it. Cf. Terry v. Little, 101U. S. 216,218. Third. It is argued that even though the money paid in excess of the stock value does in equity and good conscience belong to the stockholders, the bankruptcy court is without power to award the relief prayed. Courts of bankruptcy are courts of equity and exercise all equitable powers unless prohibited by the Bankruptcy Act. Securities & Exchange Comm’n v. United States Realty Co., 310 U. S. 434, 455. The District Court still has jurisdiction to exercise its powers under the Act both because of its express reservation and because of the provisions of § 222.14 That power is ample to authorize the court to order an accounting for the funds in dispute here. Pepper v. Litton, 308 U. S. 295, 303-310; American United Ins. Co. v. Avon Park, 311 U. S. 138,145-147; Consolidated Rock Co. v. DuBois, 312 U. S. 510, 521-523. Nor can we sustain the contention that relief should be denied on the allegations that Young’s motive in bringing the proceeding is an unworthy one. His petition sought relief for the benefit of all the stockholders. The rights of these stockholders are not to be ignored because of some motive attributable to Young. Reversed. The Chief Justice and Mr. Justice Jackson concur in the result. Mr. Justice Roberts dissents. 14 This Section gives the judge power, under conditions applicable here, to alter and modify a reorganization plan even after confirmation. CANADIAN AVIATOR, LTD. v. U. S. 215 Counsel for Parties. CANADIAN AVIATOR, LIMITED v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 279. Argued January 5, 1945.—Decided February 26, 1945. The Public Vessels Act provides that “a libel in personam in admiralty may be brought against the United States . . . for damages caused by a public vessel of the United States . . Held: 1. The remedy afforded by the Act is not confined to cases where the public vessel is the “physical instrument” by which the “physical damage” is done. P. 222. 2. Damage “caused by a public vessel” embraces damage resulting from negligence of personnel in the operation of the vessel. P. 224. 3. The Osceola, 189 U. S. 158; The Vera Cruz, No. 2, 9 L. R., Prob. Div. 96 [1884]; Dobson v. United States, 27 F. 2d 807; and O'Neal v. United States, 11 F. 2d 869, distinguished. P. 225. 4. The Act authorizes the courts to apply principles of in rem as well as in personam liability in admiralty, even though it denies a maritime lien; which is in accord with the broad purpose of the Act as evidenced in its legislative history. P. 227. 5. A complaint alleging that, while following directly astern of a public vessel as ordered by Naval authorities, complainant’s vessel was damaged when it struck a submerged wreck, and that the accident resulted solely from the negligence of the public vessel and its crew, stated a cause of action under the Act. P. 228. 142 F. 2d 709, reversed. Certiorari, 323 U. S. 688, to review a judgment affirming the dismissal of a libel, 52 F. Supp. 211, under the Public Vessels Act. Mr. Eugene Underwood, with whom Mr. Chauncey I. Clark was on the brief, for petitioner. Assistant Attorney General Shea, with whom Solicitor General Fahy and Mr. Ralph F. Fuchs were on the brief, for the United States. 216 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. Mr. Justice Reed delivered the opinion of the Court. This writ brings here for review a libel filed by the petitioner, a Canadian corporation and owner of the steamship Cavelier, against the respondent, the United States Government, to recover, under the provisions of the Public Vessels Act, 1925, 43 Stat. 1112,1 damages alleged to have been suffered by the Cavelier due to the negligent operation of a public vessel of the United States. The United States District Court dismissed the libel on the ground that it failed to state a cause of action within the Public Vessels Act, 1925, for which the United States had consented to be sued.* 2 3 The Circuit Court of Appeals, one judge dissenting, affirmed the District Court.8 The jurisdiction of the United States District Court is based on § 24 of the Judicial Code. The petition for certiorari was granted, 323 U. S. 688, because the Circuit Court of Appeals decided a question of general importance relating to the construction of a federal statute. Jurisdiction of this Court rests on § 240 (a) of the Judicial Code. On August 4, 1942, the petitioner, the owners of the steamship Cavelier, filed a libel in personam in admiralty in a federal district court against the United States to recover for damages to its ship, the Cavelier, alleged to have been caused by the negligent operation of the United States Naval patrol boat, YP 249, a public vessel of the United States. The libel averred that on July 7,1942, the Cavelier, while en route from Canada to Jamaica, was ordered by United States Naval authorities to enter De a- 143 Stat. 1112. Section 1 provides: “That a libel in personam in admiralty may be brought against the United States ... for damages caused by a public vessel of the United States, and for compen sation for towage and salvage services, including contract sa vage, rendered to a public vessel of the United States . . . 2 Canadian Aviator, Ltd. v. United States, 52 F. Supp. 211. 3 Canadian Aviator, Ltd. v. United States, 142 F. 2d 709. CANADIAN AVIATOR, LTD. v. U. S. 217 215 Opinion of the Court. ware Bay. Upon approaching the bay, the Cavelier received further instructions from the naval authorities that in her transit of the waters constituting the entrance to the bay, the Cavelier was to follow directly astern of the patrol boat, YP 249, a public vessel of the United States. While following directly astern of the YP 249, as ordered, the Cavelier struck a submerged wreck and sustained serious damages. It was further alleged that the collision with the wreck was due “solely to the fault and negligence of the United States vessel YP 249 and those in charge of her.”4 The libel also stated that petitioner, a Canadian corporation, elected to have its suit proceed in accordance with principles of libels in personam and in rem; that in similar circumstances the Government of the Dominion of Canada allows nationals of the United States to sue in its courts. The respondent, United States, appeared specially and sought to have the libel dismissed because it failed to state a cause of action for which the United States had consented to be sued. Petitioner, the libelant, opposed this action, relying on § 1 of the Public Vessels Act, 1925, which provided that a “libel in personam in admiralty may be brought against the United States . . . for damages caused by a public vessel of the United States . . .”5 6 The federal district court dismissed the libel on the ground that the accident alleged in the libel was not caused by the negligent operation of the vessel” that the vessel was 4 The petitioner’s libel alleged the following specific acts of negligence: ‘1. She was not in charge of a competent person. 2. She failed to keep a good look-out. 3. She failed to guide the Cavelier safely through the waters constituting the entrance to Delaware Bay. , 4. She led the Cavelier directly over a submerged wreck. 5. She failed to give the Cavelier proper or adequate guidance as to making a safe entrance into Delaware Bay.” 6 See note 1, supra. 218 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. not the “efficient cause” of the accident but that the accident arose from the “personal and independent negligence of its officers” The court held that the Act authorized suit only where the public vessel was the proximate cause of the damage. The Circuit Court of Appeals affirmed the action of the district court on the theory that the phrase in the Act “caused by a public vessel” meant caused by those in charge of the vessel, with the vessel as the “noxious instrument,” the “physical instrument,” by which the physical damage was done; that in the instant case the physical cause was the submerged wreck. The Circuit Court also held that the Act did not authorize recovery on the admiralty principles of in rem liability. The dismissal by the lower court of petitioner’s libel raises three questions for consideration by this Court: Does the Public Vessels Act, 1925, authorize suit against the United States where the public vessel is not the physical cause, the “physical instrument” by which the damage is done; that is, is the Act confined to cases involving the collision situation? If not, does the Act, which authorizes the filing of a libel in personam against the United States, authorize recovery in such suit on admiralty principles of in rem as well as in personam liability? Finally, if the Act authorizes recovery on admiralty principles in rem and in personam, does petitioner’s libel state a cause of action under those principles of admiralty law? The Public Vessels Act, 1925, was the last in a series of statutes directed generally at affording private vessel owners an adequate and efficient remedy for damages arising from negligent operation of ships owned by the United States.® Prior to 1916 a private owner whose ship was 6 Benedict, Admiralty (6th Ed.) vol. 1, 437; Robinson, Admiralty, 266; Lord, Admiralty Claims Against the Government, 19 Columbia L. Rev. 467; Borchard, Government Liability in Tort, 34 Yale L. J. 1,35-41; 39 Yale L. J. 1189. CANADIAN AVIATOR, LTD. v. U. S. 219 215 Opinion of the Court. damaged by negligent operation of a vessel owned or operated by the United States could not recover from the United States for damages suffered due to the United States’ immunity from suit. On the other hand, the United States could sue private owners for damages arising from their negligence. Recognizing the inequities of this situation, Congress passed numerous private acts granting relief in a particular case where a private vessel was damaged by negligent operation of a government ship. The delays, coupled with the inconvenience to Congress of handling each claim by separate bill, led Congress to provide in the Shipping Act of 1916, 39 Stat. 728, that Shipping Board vessels while employed as merchant vessels were subject to “all laws, regulations, and liabilities governing merchant vessels” regardless of the fact that the United States owned or had an interest in them.7 In The Lake Monroe, 250 U. S. 246, this Court held that this statutory waiver of sovereign immunity from suit subjected Shipping Board merchant vessels to proceedings in rem in admiralty. Since the arrest and seizure of a vessel incident to an admiralty proceeding in rem proved embarrassing, Congress, in 1920, adopted the Suits in Admiralty Act, 41 Stat. 525,8 which provided 7 Section 9 provides, in part, 39 Stat. 730-31: ‘Every vessel purchased, chartered, or leased from the board . . . while employed solely as merchant vessels shall be subject to all laws, regulations, and liabilities governing merchant vessels, whether the United States be interested therein as owner, in whole or in part, or hold any mortgage, lien, or other interest therein.” 8 41 Stat. 525-26, § 1: “That no vessel owned by the United States • • . or in the possession of the United States . . . and no cargo owned or possessed by the United States . . . shall hereafter, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions . . . Sec. 2. That in cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the com- 220 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. generally that a “libel in personam” for damages could be filed against the government in any case where if the government merchant vessel were privately owned or operated a “proceeding in admiralty” could be maintained, § 2; but that vessels subject to suit under the Act should not be subject to seizure or arrest, § 1. Although § 2 of the Act limited suit to the “filing of a libel in personam,” this Court interpreted the provisions of § 3 of the Act to authorize recovery in such suit on admiralty principles of in rem as well as in personam liability.* 9 Eastern Transportation Co. v. United States, 272 U. S. 675. The Act also provided that the United States should be entitled to the benefits of all exemptions and of all limitations of liability accorded by law to owners, charterers, operators or agents of vessels, § 6.10 At the time the Suits in Admiralty Act was being considered by Congress, it was proposed to extend its coverage mencement of the action herein provided for, a libel in personam may be brought against the United States or against such corporation, as the case may be, provided that such vessel is employed as a merchant vessel or is a tug boat operated by such corporation. Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found. . . .” 9 41 Stat. 526: “That such suits shall proceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties. ... If the libelant so elects in his libel the suit may proceed in accordance with the principles of libels in rem wherever it shall appear that had the vessel or cargo been privately owned and possessed a libel in rem might have been maintained. Election so to proceed shall not preclude the libelant in any proper case from seeking relief in personam in the same suit. . . .” 10 41 Stat. 527: “Sec. 6. That the United States or such corporation shall be entitled to the benefits of all exemptions and of all limitations of liability accorded by law to the owners, charterers, operators, or agents of vessels.” CANADIAN AVIATOR, LTD. v. U. S. 221 215 Opinion of the Court. to include “public vessels” as well as merchant vessels of the United States. Apparently fearing that such an extension of the scope of the bill would delay passage, the Suits in Admiralty Act was adopted, its provisions being confined to “merchant vessels.”11 After the introduction of several bills11 12 dealing with suits against public vessels, Congress, in 1925, adopted the Public Vessels Act, 43 Stat. 1112. It provided that a “libel in personam in admiralty may be brought against the United States . . . for damages caused by a public vessel of the United States.” § I.13 Venue of such suits is laid in the district court for the district “in which the vessel or cargo charged with creating the liability is found within the United States.”14 § 2. It was also provided that suits under the Act “shall be subject to and proceed in accordance with the provisions of . . . [Suits in Admir-alty Act, 1920, 41 Stat. 525] or any amendment thereof, in so far as the same are not inconsistent herewith . . .”15 11 Hearings of the House Committee on Judiciary, S. 3076 and H. R. 7124, Nov. 13, 1919, 66th Cong., 1st Sess., at p. 7. 12 H. R. 13591, April 13, 1920, 66th Cong., 2d Sess.; H. R. 6989, February 14, 1924, 68th Cong., 1st Sess.; H. R. 9075, May 5, 1924, 68th Cong., 1st Sess.; H. R. 9535, May 29,1924,68th Cong., 1st Sess. 13 See note 1. 4 The Act also contained a special venue provision for cases where the vessel was outside the territorial waters of the United States. 43 Stat. 1112. 15 43 Stat. 1112: “Sec. 2. That such suit shall be brought in the district court of the United States for the district in which the vessel or cargo charged with creating the liability is found within the United States, . . . Such suits shall be subject to and proceed in accordance with the provisions of an Act entitled ‘An Act authorizing suits against the United States in admiralty, suits for salvage services, and providing for the release of merchant vessels belonging to the United tates from arrest and attachment in foreign jurisdictions, and for other purposes,’ approved March 9, 1920, or any amendment thereof, m so far as the same are not inconsistent herewith, except that no interest shall be allowed on any claim up to the time of the rendition 222 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. The Act also specified that no suit may be brought by a national of a foreign government unless said foreign government, under similar circumstances, allows nationals of the United States to sue in its courts, § 5; §§ 8 and 9 of the Act contain provisions similar to those in the Suits in Admiralty Act, providing that the statute should not be construed to recognize the existence of a lien against a public vessel and conferring on the United States all exemptions and limitations of liability accorded by law to owners of private vessels.* 16 First. Respondent contends that § 1 of the Public Vessels Act authorizing suits against the United States “for damages caused by a public vessel” should be construed to apply only in cases where the public vessel is the “physical instrument” by which the “physical damage” is done, e. g. collision; that therefore petitioner’s libel does not lie under the Act. Such a construction narrowly limits the Act’s relief. We conclude that such a narrow interpretation of the Act is not justifiable. While the general history of the Act as outlined above does not establish that the statute necessarily extends to the non-collision cases in view of the rule of strict construction of statutory waiver of sovereign immunity, United States v. Sherwood, 312 U. S. 584, 586; Eastern Transportation Co. n. United States, supra, we think Congressional adoption of broad statutory language authorizing suit was deliberate and is not to be thwarted by an unduly restrictive interpretation. See The Lake Monroe, 250 U. S. 246; of judgment unless upon a contract expressly stipulating for the payment of interest.” 16 43 Stat. 1113: “Sec. 8. Nothing contained in this Act shall be construed to recognize the existence of or as creating a lien against any public vessel of the United States. “Sec. 9. The United States shall be entitled to the benefits of all exemptions and of all limitations of liability accorded by law to the owners, charterers, operators or agents of vessels.” CANADIAN AVIATOR, LTD. v. U. S. 223 215 Opinion of the Court. Nahmeh v. United States, 267 U. S. 122, 125-26; Eastern Transportation Co. v. United States, supra; Federal Land Bank v. Priddy, 295 U. S. 229, 231. In 1924, H. R. 6989 was introduced in the House of Representatives, its provisions being similar17 to those of the Public Vessels Act as adopted, with this material difference: Section 1 of that bill authorized suit against the United States “for damages caused by collision by a public vessel.” (Italics added.) On reference to the House Committee on Claims, a substitute bill, H. R. 9535, was reported to the House.18 This bill provided for suits “for damages caused by a public vessel of the United States.” This bill with the latter phrase included subsequently became the Public Vessels Act. This change in the language of the Act prior to its adoption convinces us that Congress intended to authorize suits in other than collision cases. The sponsors of the bill in both houses of Congress understood that it extended to cases where damage was done “by collision, or other fault of Government vessels and Government agents.”19 Moreover, Congres- 17 H. R. 6989, 68th Cong., 2d Sess., provided: “That a libel in personam in admiralty may be brought against the United States, . . . for damages caused by collision by a public vessel of the United States, . . This bill was highly similar to the Public Vessels Act, 1925, 43 Stat. 1112, as finally adopted. A material variance, other than the one mentioned above, was a provision making the consent of the Attorney General a condition precedent to suit under the bill. 18 H. Rep. No. 913, May 31,1924, 68th Cong., 1st Sess. 19 66 Cong. Rec. 2087. Representative Underhill, the sponsor of the bill, stated: The bill I have introduced simply allows suits in admiralty to be fought by owners of vessels whose property has been damaged by collision or other fault of Government vessels and Government agents.” Similarly, Senator Bayard, in discussing the measure in the Senate, said, 66 Cong. Rec. 3560: J* would give a person aggrieved because of an accident by reason of e shortcomings of a United States ship the right to go into a dis 224 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. sional reports on this bill and the course of discussion in the numerous hearings held on predecessor measures to the present bill, indicates that authority to sue was not to be limited to cases where the vessel was the physical instrument that caused the physical damage.20 The use of the phrase “caused by a public vessel” constitutes an adoption by Congress of the customary legal terminology of the admiralty law which refers to the vessel as causing the harm although the actual cause is the negligence of the personnel in the operation of the ship. Such personification of the vessel, treating it as a juristic person whose acts and omissions, although brought about by her personnel, are personal acts of the ship for which, as a juristic person, she is legally responsible, has long been recognized by this Court. United States v. Brig Malek Adhel, 2 How. 210, 233-34; The China, 7 Wall. 53, 68; Rolli v. Troop, 157 U. S. 386,402-3; The John G. Stevens, 170 U. S. 113, 120; The Barnstable, 181 U. S. 464, 467. That such was the meaning attributed to this phrase is further evidenced by § 2 of the Act, relating to venue, which provides that venue shall lie in the district “in which the vessel dr cargo charged with creating the liability is found.” 43 Stat. 1112. The consent to suit embodied in the Act thus extends to cases where the negligence of the personnel of a public vessel in the operation of the vessel causes damage to other ships, their cargoes, and trict court and prosecute his action. It provides for the appearance of the Attorney General of the United States, and all maritime accidents of any kind resulting from collision, and so on, are taken care of. A great deal of money would be saved to the Government.” 20 H. Rep. No. 913, 68th Cong., 1st Sess., at p. 63; S. Rep. No. 941, 68th Cong., 2d Sess., at p. 3; see also H. Rep. No. 1301, 66th Cong., 3rd Sess., Feb. 7, 1921, see especially letter of the Acting Secretary of the Navy, p. 8; Hearings before Committee on Judiciary of the House of Representatives, on H. R. 9075, 68th Cong., 1st Sess., May 21,1924, pp. 6,19,21,23,28,30. CANADIAN AVIATOR, LTD. v. U. S. 225 215 Opinion of the Court. personnel, regardless of physical contact between the two ships,21 and where principles of admiralty law impose liability on private parties. There seems no logical reason for allowing recovery for collision and refusing recovery for damages caused by other movements of the offending vessel. The fact that the Committee reports on the bill state that the “chief purpose” of the Act is to authorize recovery in collision cases, that the departmental letters attached to the report consider principally the “collision” situation, does not require that the statute should be so limited.22 Respondent relies on The Osceola, 189 U. S. 158, in which it was held that a Wisconsin statute imposing liability “for all damages . . . done to persons or property by such ship,” did not apply to injuries suffered by a member of a ship’s crew arising from the negligence of the master of the vessel, since the damage was not “done by the ship herself, as the offending thing, . . .” 189 U. S. 158,176. Since that case involved a suit by a member of the crew against his employer-owner of the vessel, the holding in that decision on its facts is clearly inapplicable to the instant case. Moreover, the language in the Wisconsin statute is narrower in scope than that in the Public Vessels Act, 1925, which refers generally to “damages caused by a public vessel.” Furthermore, the legislative history of the Public Vessels Act requires a different result in so far as the Osceola case interprets the Wisconsin statute to apply only to cases where the vessel is itself the physical cause of the damage. These latter two considerations serve also to distinguish The Vera Cruz, No. 2, 9 L. R., Prob. Div. 96 [1884]. Respondent also relies on 21 See Coastwise Transportation Corp. v. United States, 43 F. 2d 401; The Harding Highway, 53 F. 2d 938. 22 H. Rep. 913, 68th Cong., 1st Sess., pp. 1, 6; S. Rep. No. 941, 68th Cong., 2d Sess., pp. 1, 6. 226 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. Dobson v. United States, 27 F. 2d 807, and O'Neal v. United States, 11 F. 2d 869. These cases are not apposite on the question under consideration since they also involved suits for damages, for personal injuries sustained by a seaman employee aboard his own ship, against the United States as employer. Second. Petitioner, evidently relying on § 2 of the Act, states in its libel that it elects to have the action proceed on principles of in rem as well as in personam liability.23 As the Circuit Court of Appeals apparently holds that the Act does not authorize recovery on principles of in rem liability because of the statutory denial of a maritime lien, we turn to a consideration of this holding. Does the Public Vessels Act which authorizes filing of a “libel in personam” authorize the courts to apply principles of in rem as well as in personam liability in admiralty?24 * * As was indicated, p. 219 supra, this Court held that the Suits in Admiralty Act, which also authorizes filing of a “libel in personam” authorizes the courts to grant judgment on in rem as well as in personam principles, except that the government vessel was not subject to seizure or arrest. 23 See Admiralty Rules, Supreme Court, Rule 14: “In all suits for pilotage or damage by collision, the libellant may proceed in rem against the ship and/or in personam against the master and/or the owner.” 24 See note 1, supra. At the time of the Committee reports on H. R. 9535 (which when adopted became the Public Vessels Act), the courts had not yet interpreted the Suits in Admiralty Act, 41 Stat. 525, to authorize recovery on admiralty principles of both in rem and in personam liability. See Eastern Transportation Co. v. United States, 272 U. S. 675 (1927). We find no discussion of whether § 2 of the Public Vessels Act imported both principles into its text. The problem had been adverted to in the Attorney General’s letters of opinion to the committees considering the problem. H. Rep. No. 913, p. 12, 68th Cong., 1st Sess.; S. Rep. No. 941, p. 12, 68th Cong., 2d Sess.; Hearings before the Committee on Judiciary of the House of Repre- sentatives on H. R. 9075, May 21, 1924, pp. 30, 31 and 34. CANADIAN AVIATOR, LTD. v. U. S. 227 215 Opinion of the Court. Section 3 of that Act, “Procedure in cases of libel in personam,” 25 specifically authorizes a libelant, if he so elects, to proceed in accordance with principles of libels in rem if it appears that had the vessel been privately owned a libel in rem might be maintained; election to so proceed is not to preclude the libelant from seeking relief in personam in the same suit. Although the Public Vessels Act does not have a similar provision, § 2 of the Public Vessels Act expressly provides that “suits shall be subject to and proceed in accordance with the provisions” of the Suits in Admiralty Act, “in so far as the same are not inconsistent” with the provisions of the Public Vessels Act.26 Since there is nothing in the Public Vessels Act that is inconsistent with this provision of the Suits in Admiralty Act, we hold that the incorporation clause applies. Other provisions of the Public Vessels Act support such incorporation. Authority is given to sue generally “in admiralty”; this broad generic term implies a right to invoke principles of in rem and in personam liability. Furthermore, in Eastern Transportation Co. v. United States, supra, we held that authority to resort to both types of principles of admiralty liability was borne out by the fact that the Suits in Admiralty Act provided that the United States should be entitled to all the exemptions accorded to private persons under admiralty law. We there held: “The necessary implication is that if, under the Harter Act ... or the Limitation of Liability Act, . . . the United States as owner of a merchant vessel should not be able to show performance of the conditions upon which such statutory limitations of liability are granted, it must assume the personal liability for negligence in such cases exactly as a private owner would.” (272 U. S. 675, 690-91.) * 28 46 U. S. C. § 743; see note 9, supra. 28 See note 15, supra. 228 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. The Public Vessels Act contains the same exemption provision as that in the Suits in Admiralty Act.27 This interpretation of the Act accords with the broad purpose expressed in the Congressional hearings and reports on the Act.28 In addition, such an interpretation accomplishes Congress’ purpose to grant foreign nationals the same rights as would be accorded our nationals in foreign courts in a similar situation; a narrower interpretation would limit the reciprocal effect of this Act.29 * Third. Since we hold that the Public Vessels Act was intended to impose on the United States the same liability (apart from seizure or arrest under a libel in rem) as is imposed by the admiralty law on the private shipowner, it remains to be considered whether petitioner states a valid cause of action under general principles of admiralty law, in rem and in personam. Petitioner alleges that the respondent’s vessel, having undertaken to guide petitioner’s boat, the Cavelier, through the waters at the entrance of the bay, did so in a negligent fashion causing petitioner to strike a submerged wreck; that the accident was caused solely by the negligence of YP 249 and its crew. It needs no extended citation of authority to show that where a tug negligently grounds its tow, the tug and its owner are liable for the damages resulting therefrom. The Quickstep, 9 Wall. 665; The John G. Stevens, 170 U. S. 113; The Temple Emery, 122 F. 180; The W. G. Mason, 142 F. 913; see, The Caspian, 14 F. 2d 1013; The Murrell, 200 F. 826; The Sally McDevitt v. The J. W. Paxon, 24 F. 302; The Rescue, 74 F. 847.80 The fact that the Cavelier was not fastened to the YP 249 by a tow rope is irrelevant.31 The libel avers that she was under 27 See note 16, supra. 28 See note 20, supra. 29 See note 16, supra. 80Benedict, Admiralty (6th Ed.), vol. 1, pp. 363-5, 367-69. 81 It is clear that tort liability in admiralty does not require physical contact between the offending vessel and its victim. See Leathers CATLIN v. UNITED STATES. 229 215 Syllabus. orders by the naval authorities to proceed directly astern of the YP 249; for all practical purposes she was as firmly fastened to the stern of the YP 249 as if she had been in tow. The judgment of the circuit court is reversed, and the cause remanded to the district court with direction to proceed with consideration of the case on the merits. CATLIN et al., TRUSTEES, v. UNITED STATES. CERTIORARI to the circuit court of appeals for the SEVENTH CIRCUIT. No. 419. Argued February 1, 2, 1945.—Decided February 26, 1945. 1. In a proceeding instituted by a petition in the District Court for the condemnation of land under the War Purposes Act of 1917, a “judgment” entered upon a declaration of taking filed pursuant to the Declaration of Taking Act of 1931, and a subsequent order denying the landowner’s motion to vacate the judgment and to dismiss the petition, held not “final decisions” under § 128 of the Judicial Code and therefore not appealable. P. 232. 2. The right of the landowner to challenge the validity of the taking, for nonconformity with the prescribed statutory purposes, was not abrogated by the Declaration of Taking Act; but the right of appeal m this relation may be exercised only when final judgment, disposing of the cause in its entirety, has been rendered. P. 240. 142 F. 2d 781, affirmed. v. Blessing, 105 U. S. 626, 630: “Nor is the term ‘tort,’ when used in reference to admiralty jurisdiction, confined to wrongs or injuries committed by direct force, but it includes wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common-law is by an action on the case.” See also Eastern Transportation Co. v. United States, 272 U. S. 675; In re Fossett, 142 U. S. 479, 485; Philadelphia, W. & B. R. Co. v. Philadelphia & H. de G. Towboat Co., 23 How. 209, 215-16; The Lyndhurst, 92 F. 681; The Kronprinzessin Cecilie, 192 F. 27; The Campania, 203 F. 855; The Washington Irving, 250 F. 797; The Luke, 19 F. 2d 923, aff’d, 19 F. 2d 5, Coastwise Transportation Corp. v. United States, 43 F. 2d 401; The J. C. Hart, 43 F. 2d 566; The Favorita, 43 F. 2d 569. 637582°—46__19 230 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. Certiorari, 323 U. S. 696, to review the dismissal of an appeal from a judgment and order of the District Court in a condemnation proceeding. Messrs. Thomas 8. McPheeters, Henry Davis and George D. Burroughs submitted for petitioners. Mr. Ralph F. Fuchs, with whom Solicitor General Fahy, Messrs. J. Edward Williams and Vernon L. Wilkinson were on the brief, for the United States. Mr. Justice Rutledge delivered the opinion of the Court. The proceeding is for the condemnation of land in Madison County, Illinois, under the War Purposes Act of 1917? The question for review is whether orders entered in the 1 Act of August 18, 1890, 26 Stat. 316, as amended by the Acts of July 2, 1917, 40 Stat. 241, and April 11, 1918, 40 Stat. 518, 50 U. S. C. § 171. The Act provides: “That hereafter the Secretary of War may cause proceedings to be instituted in the name of the United States, in any court having jurisdiction of such proceedings for the acquirement by condemnation of any land, temporary use thereof or other interest therein, or right pertaining thereto, needed for the site, location, construction, or prosecution of works for fortifications, coast defenses, military training camps, and for the construction and operation of plants for the production of nitrate and other compounds and the manufacture of explosives and other munitions of war and for the development and transmission of power for the operations of such plants; such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted . . . And provided further, That when such property is acquired in time of war, or the imminence thereof, upon the filing of the petition for the condemnation of any land, temporary use thereof or other interest therein or right pertaining thereto to be acquired for any of the purposes aforesaid, immediate possession thereof may be taken to the extent of the interest to be acquired and the lands may be occupied and used for military purposes . . .” (Emphasis added.) CATLIN v. UNITED STATES. 231 229 Opinion of the Court. course of the proceedings are appealable as “final decisions” within the meaning of § 128 of the Judicial Code, as amended, 28 U. S. C. § 225 (a).2 The petition for condemnation was filed in the District Court March 31, 1942. The same day an order for immediate possession was entered ex parte. On November 12, 1942, pursuant to the Declaration of Taking Act of February 26, 1931,3 the Secretary of War filed a declaration and deposited in court $43,579.00 as the estimated compensation for Tract ED-7, to which petitioners assert ownership as trustees. The court thereupon entered “judgment,” likewise ex parte, decreeing that title had vested in the United States upon the filing of the declaration and making of the deposit, also declaring the right of just compensation “now vested in the persons entitled thereto,” and holding the cause open for further “orders, judgments and decrees.” Thereafter, on August 2, 1943, an order for service of process by publication was entered, and in October following petitioners moved to vacate the “judgment” and to dismiss the petition as to Tract ED-7. After this the Government amended its petition4 * * * 8 and petitioners filed 2 Section 128 is in part as follows: “The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions— First. In the district courts, in all cases save where a direct review of the decision may be had in the Supreme Court under section 345 of this title.” 8 46 Stat. 1421, 40 U. S. C. §§ 258a-258e. Material portions of the statute are set forth in the text of this opinion and the notes. ^Petitioners attacked the original petition for failure to set forth ( ) the purpose of the acquisition or that it was for any purpose authorized by the act; (2) that the Secretary of War had found that e land was needed or (3) had requested the Attorney General to institute the proceeding to acquire it for such a purpose. Considering ese objections jurisdictional, petitioners regard “all further proceed- 232 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. an amended motion to vacate and dismiss,6 which the court denied. From this order and the order entering the “judgment” on the declaration of taking, petitioners appealed. The Circuit Court of Appeals held the orders not final decisions within § 128 and dismissed the appeal. 142 F. 2d 781. We granted certiorari, 323 U. S. 696, in order to resolve conflict upon this question among several Circuit Courts of Appeals.® We think the judgment was right. Petitioners’ motions raised issues grounded in contentions that the taking was not for a purpose authorized by the War Purposes Act.7 * 6 7 ings based upon the said petition” as “ineffective,” including the filing of the first declaration of taking and the “judgment” entered pursuant to it. The amendment added a new paragraph to the petition stating the lands were being taken for purposes described in the language of the statute and incorporated in the petition the letter of the Secretary of War requesting the Attorney General to institute the proceedings to acquire the land “for use in the establishment of the Granite City Engineer Branch Depot.” This is the specific purpose which petitioners say does not come within any set forth in the statute, for which see note 1. 6 The amended motion urged that the amendment of the petition, by incorporating the Secretary’s statement of intended use for an engineer depot, caused the petition to show on its face that the use was not within those authorized by the act. Petitioners assert the amendment “came too late to validate” the “judgment.” 6 Dade County v. United States, 142 F. 2d 230 (C. C. A. 5), accords with the decision in this case. Contrary decisions were rendered in City of Oakland v. United States, 124 F. 2d 959 (C. C. A. 9), cert, denied, 316 U. S. 679; United States v. 21$ 2% Acres of Land, 129 F. 2d 678 (C. C. A. 2), cert, denied, 317 U. S. 698; Puerto Rico R. Co. v. United States, 131 F. 2d 491 (C. C. A. 2). Under the comparable provision of the 1929 act applicable in the District of Columbia, where special appeal may be allowed upon interlocutory orders, D. C. Code (1940) § 17-101, compare Lee v. United States, 58 F. 2d 879, with Keyes v. United States, 119 F. 2 444. 7 See notes 1,4 and 5. CATLIN v. UNITED STATES. 233 229 Opinion of the Court. Accordingly they urged that neither petition stated a cause of action, the court acquired no jurisdiction of the cause or to enter the order relating to title, and it was error to deny the motion to vacate and to dismiss. Since the issue here is whether the orders are final, for purposes of appeal, we assume, though we do not decide, that the substantive issues have sufficient merit to warrant determination upon review. Even so, we think petitioners have mistaken their remedy. Their right to appeal rests upon § 128 of the Judicial Code. This limits review to “final decisions” in the District Court. A “final decision” generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. St. Louis, I. M. & S. R. Co. v. Southern Express Co., 108 U. S. 24,28. Hence, ordinarily in condemnation proceedings appellate review may be had only upon an order or judgment disposing of the whole case, and adjudicating all rights, including ownership and just compensation, as well as the right to take the property. This has been the repeated holding of decisions here.® The rule applies to review by this Court of judgments of state courts, in advance of determination of just compensation, although by local statute “judgments of condemnation,” i. e., of the right to condemn particular property, are reviewable before compensation is found and awarded. Wick v. Superior Court, 278 U. S. 574, 575; Public Service Co. v. Lebanon, 305 U. S. 558, 671; cf. Dieckmann v. United States, 88 F. 2d 902. The foundation of this policy is not in merely technical conceptions of “finality.” It is one against piece- 8 Luxton v. North River Bridge Co., 147 U. S. 337, 341; Southern B. Co. v. Postal Telegraph Co., 179 U. S. 641, 643; Grays Harbor Go. v. Coats-Fordney Co., 243 U. S. 251, 256; Washington ex rel. McPherson Bros. Co. v. Superior Court, 274 U. S. 726; Ornstein v. Chesapeake & Ohio R. Co., 284 U. S. 572; cf. Collins v. Miller, 252 U- 8.364,370; United States v. Florian, 312 U. S. 656. 234 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. meal litigation. “The case is not to be sent up in fragments. . . Luxton v. North River Bridge Co., 147 IT. S. 337, 341. Reasons other than conservation of judicial energy sustain the limitation. One is elimination of delays caused by interlocutory appeals. The rule applies to proceedings under the War Purposes Act of 1917.8 9 That act does not purport to change or depart from the generally prevailing rule concerning appeals in condemnation proceedings. It is an amended version of the 1890 act, under which from its enactment to now that rule has been applied, except in the three decisions of Circuit Courts of Appeals reaching the contrary result, where, however, the Declaration of Taking Act of 1931 also was involved.10 The 1917 act purports to authorize no judgment except one “for the acquirement by condemnation of any land,” etc., for the purposes specified or, necessarily, one finally denying this. The provision for the proceedings “to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted . . .” had no purpose to make the right of appeal in such proceedings depend upon and vary with the local procedure in this respect, cf. Wick v. Superior Court, supra; Public Service Co. v. Lebanon, supra, or to incor- 8 No case has been found in which appeal was taken, or attempted to be taken, under the 1890 and 1917 acts, from an order other than the final judgment disposing of all issues raised in the proceeding, including compensation. The uniform practice under those acts appears to have been therefore to confine appeals to such orders. Only three cases appear to have sought to raise, in appeals from final judgments, the question of the right to condemn. See Forbes v. United States, 268 F. 273; Chappell v. United States, 81 F. 764,160 U. S. 499; Henry v. United States, 46 F. 2d 640. Numerous other cases involved appeals on questions affecting compensation without raising question concerning title or authority to condemn. 10 Cf. note 6 and text beginning with the paragraph following note 12. CATLIN v. UNITED STATES. 235 229 Opinion of the Court. porate local ideas of “finality” in the application of § 128 to such suits. The language may be applied in other ways without introducing so much lack of uniformity into the application of § 128, if indeed the quoted provision has not been largely nullified by the Federal Rules of Civil Procedure in all respects concerning appeals.11 Furthermore, the 1917 act contemplated emergency action, to the extent that upon the filing of the petition immediate possession might be taken and the lands occupied “for military purposes” during war “or the imminence thereof.” This purpose, it seems clear, would be largely defeated, if entry must be deferred until specific challenges to jurisdiction and the sufficiency of the petition are determined seriatim, not only by ruling of the trial court but by separate appeals from each ruling which, if sustained,11 12 would end the litigation, but if lacking in merit could only prolong it. We find neither in the language nor in the purposes of the 1917 act an intent to authorize departure from the general course of applying § 128 in condemnation proceedings. Indeed, we do not understand petitioners to urge that the 1917 act without more accomplishes the departure. They say rather that it does so when used in conjunction with the Declaration of Taking Act of 1931. It is the “judgment upon a declaration of taking” and the subsequent order denying their motion to vacate this “judgment” and to dismiss the proceedings which they contend are “final decisions” within § 128 and therefore appealable. It is “judgments” of this character which the decisions of Circuit Courts of Appeals, upon which petitioners rely, 11 “In proceedings for condemnation of property under the power of eminent domain, these rules govern appeals but are not otherwise applicable.” Rule 81 (a) (7). 12 See United States v. Carey. 143 F. 2d 445; United States v. Marin, 136 F. 2d 388. 236 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. have involved. One of them relied expressly upon the 1931 act as being intended “to sever the taking of title and possession from controversies as to valuation, and to provide a procedure whereby the United States might be speedily and conclusively vested with title and possession” and therefore as having a “final and immediate effect on property rights” which “obviously should be reviewable at once, without the necessity of awaiting the outcome of long drawn out controversies as to valuation.” Puerto Rico R. Co. v. United States, 131F. 2d 491,494. The reason stated might afford ground for Congress to provide a special appeal. However, we do not think the reason accords with the statute’s provisions or their effect. Consequently it gives no ground for believing that Congress has provided a separate appeal. We dispose shortly of the motion, or that part of it, which was directed at dismissal of the proceedings, in so far as it may require treatment separately from the motion to vacate the “judgment,” if it does so at all. Had this motion been granted and judgment of dismissal been entered, clearly there would have been an end of the litigation and appeal would lie within § 128. United States v. Carey, 143 F. 2d 445; United States v. Marin, 136 F. 2d 388. But denial of a motion to dismiss, even when the motion is based upon jurisdictional grounds, is not immediately reviewable. Cf. Roche v. Evaporated Milk Assn., 319 U. S. 21. See also Dieckmann v. United States, 88 F. 2d 902. Certainly this is true whenever the question may be saved for disposition upon review of final judgment disposing of all issues involved in the litigation or in some other adequate manner. As will appear, we think such a remedy is available in this case. The “judgment” and the order denying the motion to vacate it stand no better. The 1931 act, like that of 1917, contains no language purporting to change the general rule relating to appeals in condemnation proceedings. CATLIN v. UNITED STATES. 237 229 Opinion of the Court. Section 1, which is the basic section, makes no express reference to appeals.13 Section 2 implies the contrary ef- 13 Because of its importance, the Section is set forth here in full, except for the concluding paragraph which is quoted in note 14: “An Act To expedite the construction of public buildings and works outside of the District of Columbia by enabling possession and title of sites to be taken in advance of final judgment in proceedings for the acquisition thereof under the power of eminent domain. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in any proceeding in any court of the United States outside of the District of Columbia which has been or may be instituted by and in the name of and under the authority of the United States for the acquisition of any land or easement or right of way in land for the public use, the petitioner may file in the cause, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the lands described in the petition, declaring that said lands are thereby taken for the use of the United States. Said declaration of taking shall contain or have annexed thereto— “(1) A statement of the authority under which and the public use for which said lands are taken. “(2) A description of the lands taken sufficient for the identification thereof. ‘(3) A statement of the estate or interest in said lands taken for said public use. “(4) A plan showing the lands taken. * (5) A statement of the sum of money estimated by said acquiring authority to be just compensation for the land taken. Upon the filing said declaration of taking and of the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to the said lands in fee simple absolute, or such less estate or interest therein as is specified in said declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken or the use of the United States, and the right to just compensation ¡or the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein, and the said judgment shall in-c ude, as part of the just compensation awarded, interest at the rate 0 6 per centum per annum on the amount finally awarded as the va ue of the property as of the date of taking, from said date to the 238 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. feet. It provides: “No appeal in any such cause nor any bond or undertaking given therein shall operate to prevent or delay the vesting of title to such lands in the United States.” While the section does not in terms deny the right of appeal contended for, neither does it confer that right. The possibility of delaying or preventing the vesting of title by appeals was explicitly in the mind of Congress, when it included this section. If it had thought granting an earlier appeal than the existing procedure allowed, upon the severed issue of the right to take the property, would expedite the taking or the vesting of title or the proceedings in any other manner, slight additional words would have made provision for such an appeal. The omission, and the clear import of the language used, are against the implication that separate appeals were to be allowed. This seems reinforced by § 4. It makes the right to take possession and title “in advance of final judgment” additional to other rights, powers or authority conferred by federal or local law, and expressly states that this right “shall not be construed as abrogating, limiting, or modifying any such right, power, or authority.” One of the rights of the Government under preexisting federal law was the right not to have the proceeding, or the taking of date of payment; but interest shall not be allowed on so much thereof as shall have been paid into the court. No sum so paid into the court shall be charged with commissions or poundage. “Upon the application of the parties in interest, the court may order that the money deposited in the court, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in said proceeding. If the compensation finally awarded in respect of said lands, or any parcel thereof, shall exceed the amount of the money so received by any person entitled, the court shall enter judgment against the United States for the amount of the deficiency. (Emphasis added.) CATLIN v. UNITED STATES. 239 229 Opinion of the Court. possession,14 delayed by separate appeals over issues of title or taking.15 Its right was rather to have these issues determined with others in the final judgment dispositive of the whole cause. This right, we think, was guarded by § 4 against being construed as having been abrogated, limited or modified, by virtue of the additional right conferred “to take possession and title in advance of final judgment.” (Emphasis added.) Other provisions of the statute, as will appear, support the same conclusion. Moreover, the statute does not purport in terms to authorize such a “judgment” as was entered in this cause or to make its entry the event upon which title is changed, if so summary a procedure could be valid. The “judgment” apparently was entered ex parte, prior to service of process or publication of notice. Cf. Pennoy er v. Neff, 95 U. S. 714. By the terms of § 1, “Upon the filing said declaration of taking [in the condemnation proceeding] and of the deposit in the court . . . title . . . shall vest in the United States . . . and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein . . .”16 14 This was authorized by the Act of 1917, cf. note 1 above, as well as by the Act of 1931 in the concluding paragraph of § 1, which is as follows: “Upon the filing of a declaration of taking, the court shall have power to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner. The court shall have power to make such orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges, if any, as shall be just and equitable.” 15 See note 9. 16 See note 13 for the complete text. 240 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. The exact effect of these provisions is not entirely clear. But we find nothing in the statute to indicate that Congress intended to deprive the owner of all opportunity to challenge the validity of the taking for departure from the statutory limits. Such a purpose cannot be implied from the provision for transfer of title itself and the fact that the specific references to the final judgment in § 1 speak only concerning compensation. Those references, we think, are counterbalanced by other provisions and considerations, in so far as they may be thought to exclude matters of title from the final adjudication. We think the purpose was to leave intact the owner’s remedy existing before the statute was adopted. For one thing, the statute is not an independent one for condemnation. It provides for no new condemnation proceeding. It merely affords steps ancillary or incidental to suits brought under other statutes; and was so used in this case in conjunction with the suit brought under the Act of 1917. Its declared purpose is to expedite, in the cases to which it applies, the construction of public buildings and works “by enabling possession and title of sites to be taken in advance of final judgment in proceedings for the acquisition thereof under the power of eminent domain,” (emphasis added) as the title states, and it applies to “any proceeding . . . instituted . . . under the authority of the United States for the acquisition of any land ... for the public use ...” § 1. The procedure clearly is ancillary to the main condemnation proceeding, cf. United States v. 17,280 Acres of Land, 47 F. Supp. 267, 269, is intended to dovetail with it and by § 4 is declared expressly to provide rights which are to be “in addition to” preexisting rights and are not to “be construed as abrogating, limiting, or modifying” them. This provision, inserted primarily to safeguard the Government’s interest, is not expressly so limited; and we think it may be applied also to safeguard CATLIN v. UNITED STATES. 241 229 Opinion of the Court. the owner’s preexisting rights where doing this will not be in essential conflict with the additional rights validly conferred on the Government. This would be done by preserving his preexisting right of appeal. While the language and the wording of the act are not wholly free from doubt, we see no necessary inconsistency between the provisions for transfer of title upon filing of the declaration and making of the deposit and at the same time preserving the owner’s preexisting right to question the validity of the taking as not being for a purpose authorized by the statute under which the main proceeding is brought. That result may be reached if the statute is construed to confer upon the Government, upon occurrence of the events specified, only a defeasible title in cases where an issue concerning the validity of the taking arises. So to construe the act would accomplish fully the purposes for which it was adopted in the large number of cases where no such issue is made. In others this would go far toward doing so, for not all such issues will be followed through to final decision or, if so followed, will turn out adversely to the Government. The alternative construction, that title passes irrevocably, leaving the owner no opportunity to question the taking’s validity or one for which the only remedy would be to accept the compensation which would be just if the taking were valid, would raise serious question concerning the statute’s validity. In any event we think it would run counter to what- reasonable construction requires. Some stress is placed upon the provisions of §§ 3 and 5 relating to irrevocable commitment of the United States to pay the amount ultimately to be awarded,17 together 17 Section 3 is set forth in note 18. Section 5 is as follows: In any case in which the United States has taken or may take possession of any real property during the course of condemnation proceedings and in advance of final judgment therein and the United 242 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. with the provision of § 1 authorizing award of more than the amount deposited as estimated compensation, as indicating a purpose to make the transfer of title irrevocable upon the filing of the declaration and the making of the deposit.* 18 From the fact that the Government may become irrevocably committed to pay, it does not follow that the owner is irrevocably committed to submit to the taking, since the statute’s terms are not in pari materia in this respect. Neither § 3 nor § 5 purports to bind the owner irrevocably. On the contrary, § 5 deals only with authority to expend appropriated funds for demolition of existing structures and construction of new ones; and the concluding proviso, requiring the opinion of the Attorney General that “title has been vested in the United States or all persons having an interest therein have been made parties to such proceeding and will be bound by the final judgment therein,” (emphasis added) before the funds are expended, seems clearly to contemplate that title is not indefeasibly vested in the United States merely by following the administrative procedure. Final judg- States has become irrevocably committed to pay the amount ultimately to be awarded as compensation, it shall be lawful to expend moneys duly appropriated for that purpose in demolishing existing structures on said land and in erecting public buildings or public works thereon, notwithstanding the provisions of section 355 of the Revised Statutes of the United States: Provided, That in the opinion of the Attorney General, the title has been vested in the United States or all persons having an interest therein have been made parties to such proceeding and will be bound by the final judgment therein.” 18 Including or following the finding required by § 3, which provides: “Action under this statute irrevocably committing the United States to the payment of the ultimate award shall not be taken unless the chief of the executive department or agency or bureau of the Government empowered to acquire the land shall be of the opinion that the ultimate award probably will be within any limits prescribed by Congress on the price to be paid.” CATLIN v. UNITED STATES. 243 229 Opinion of the Court. ment in “such proceeding,” that is, the main condemnation suit, is necessary for that purpose. The operation of §§ 3 and 5 is to cut off the Government’s right to abandon the proceedings. It is not to compel the owner to submit to unauthorized takings. Accordingly, in our opinion the right of the owner to challenge the validity of the taking, for nonconformity with the prescribed statutory purposes, was not destroyed by the 1931 act. Nor was the right to do this upon appeal, existing before that act was adopted, affected. No such “severance” was made as the court deciding the Puerto Rico case thought was created. No new right of separate appeal was given. The preexisting right of appeal, including appeal on grounds relating to validity of the taking, remained in force to be exercised when and only when final judgment, disposing of the cause in its entirety, has been rendered. The statute makes no other explicit provision. Nor is one so clearly implied that we can make it. The weightier implications are the other way. We have not discussed other issues presented or suggested in the briefs or argument, since that has not been necessary to the disposition of this cause. These include the question whether, when possession has been taken and damage has been done to the premises in the course of proceedings not authorized, the remedy by appeal is adequate. That issue has not been made in this case, since the grounds urged rest upon the provisions of the 1931 act relating to title and their effect, through the proceedings had, upon the petitioners right. They do not relate simply to the taking of possession, the right to take it or damages resulting from exercise of that right, apart from the question of title. Possession in this case had been taken, pursuant to the terms of the 1917 act, prior to the time of the purported transfer of title. It will be time enough to con- 244 OCTOBER TERM, 1944. Counsel for Parties. 324U.S. sider the question concerning adequacy of the appeal or possible existence of other remedy affecting such a case when it arises. The judgment is Affirmed. Mr. Justice Roberts and Mr. Justice Douglas concur in the result. GEMSCO, INC. et al. v. WALLING, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, U. S. DEPARTMENT OF LABOR. NO. 368. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.* Argued December 5, 1944.—Decided February 26, 1945. Under § 8 (f) of the Fair Labor Standards Act, the Administrator has authority, as a necessary means of making effective a minimum wage order for the embroideries industry, to prohibit industrial homework. Pp. 254, 269. 144 F. 2d 608, affirmed. Certiorari, 323 U. S. 695, to review a judgment affirming a wage order promulgated by the Administrator under the Fair Labor Standards Act. Messrs. Samuel S. Allan and Seymour D. Altmark, with whom Messrs. Walter Brower, Samuel J. Cohen, Coleman Gang el, Ho Orleans and Myron P. Gordon were on the brief, for petitioners. *Together with No. 369, Maretzo et al. v. Walling, Administrator of the Wage and Hour Division, U. S. Department of Labor, and. No. 370, Quiseppi et al. v. Walling, Administrator of the Wage and Hour Division, U. S. Department of Labor, also on certiorari to the Circuit Court of Appeals for the Second Circuit. GEMSCO, INC. v. WALLING. 245 244 Opinion of the Court. Mr. Archibald Cox, with whom Solicitor General Fahy, Messrs. Douglas B. Maggs, Louis Sherman and Kenneth Meiklejohn were on the brief, for respondent. Briefs were filed by Messrs. Nathaniel L. Goldstein, Attorney General of New York, Orrin G. Judd, Solicitor General, Wendell P. Brown, First Assistant Attorney General, and Roy Wiedersum, Assistant Attorney General, on behalf of the Industrial Commissioner of the State of New York, and by Messrs. John H. Nolan, Attorney General of Rhode Island, and John J. Cooney, on behalf of the State of Rhode Island and Providence Plantations, as amici curiae, in support of the respondent. Mr. Justice Rutledge delivered the opinion of the Court. The issue to be decided in these cases is narrow. It is whether respondent, as Administrator, has authority under § 8 (f) of the Fair Labor Standards Act, 52 Stat. 1060, to prohibit industrial homework as a necessary means of making effective a minimum wage order for the embroideries industry. The question arises in proceedings brought to review the order pursuant to § 10. The cases were consolidated for hearing in the Circuit Court of Appeals, which sustained the Administrator’s action, one judge dissenting. Guiseppi n. Walling, 144 F. 2d 608. Because of the public importance of the question and its importance for purposes of administering the statute, certiorari was granted, 323 U. S. 695, limited to the stated issue.1 One of the Act’s primary objectives was “a universal minimum wage of 40 cents an hour in each industry 1The petition sought review also on questions of due process and delegation of legislative power. Cf. note 10 infra. 637582°—46-20 246 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. engaged in commerce or in the production of goods for commerce” and to reach this level as rapidly as was “economically feasible without substantially curtailing employment.” § 8 (a). Accordingly, § 6 established basic minimum statutory wages, to be stepped up from 25 cents an hour to 40 cents generally2 during the seven years from the section’s effective date, October 23, 1938. Limited flexibility was provided in accordance with the declared purpose to reach the 40-cent level earlier if “economically feasible.” Cf. 83 Cong. Rec. 9256. Section 8 empowers the Administrator to convene industry committees which, after investigation, report to him their recommendations concerning minimum wages3 and reasonable classifications. § 8 (a), (b), (c), (d). The Administrator is then required by order to approve and carry into effect the committee’s recommendations, after notice to interested persons and opportunity to be heard, if he finds they “are made in accordance with law, are supported by the evidence . . . and . . . will carry out the purposes” of the section; otherwise he must disapprove them. § 8 (d). The Act’s scheme is therefore a combination of “statutory” minimum wages fixed by § 6 and what may be termed “committee” wages,4 fixed by order made pursuant 2 Section 6 (a) (3), cf. also § 8 (e) and text infra page 267, provides for issuance and continuance in effect of wage orders, to some extent at least, after the seven-year period: “Sec. 6(a). Every employer shall pay to each of his employees ... (3) after the expiration of seven years . . . not less than 40 cents an hour, or the rate (not less than 30 cents an hour) prescribed in the applicable order of the Administrator issued under section 8, whichever is lower . . .” 3 “The committee shall recommend to the Administrator the highest minimum wage rates for the industry which it determines, having due regard to economic and competitive conditions, will not substantially curtail employment in the industry.” § 8 (b). Recommendations for classifications are covered by § 8 (c). 4 Cf. the concurring opinion of L. Hand, C. J., 144 F. 2d 608, 623. The combination is the result of a compromise, reached in con- GEMSCO, INC. v. WALLING. 247 244 Opinion of the Court. to § 8. The former prevail in the absence of special administrative action; the latter, when such action has been taken to prescribe for a specific industry a higher level than the generally prevailing statutory floor. The order in this case, entered on approval of the committee’s recommendations, after notice and extensive hearings,* 5 prescribed a minimum wage of 40 cents an hour, an increase ference, of differences between the Senate and the House as to the structure of the bill. Cf. text infra at note 32. 5 The Industry Committee (No. 45) was appointed June 6, 1942, and on June 30 following submitted its unanimous report and recommendations, for the 40-cent rate, to the Administrator. Published notice of public hearing was given September 16. The hearing extended over ten days of the following November. The Administrator broadened its scope to include the question “what, if any, prohibition, restriction, or regulation of home work in this industry is necessary to carry out the purpose of such order,” etc. Industry representatives, who appeared, were unanimous, with one exception, in supporting the committee’s recommendation, but divided on restricting or prohibiting industrial homework. Labor representatives supported both proposals, as did representatives of federal and state agencies, including the Departments of Labor of the United States and of the States of New York and Rhode Island. Extensive testimony was taken and many exhibits were received m evidence. In many of its aspects the Administrator found the evidence repetitious of that upon which previous findings were based approving the recommendations of an earlier industry committee (No. 15), which resulted in establishing the 37^-cent rate by order effective January 27, 1941. Oral argument was restricted to the question of homework, to which the greater part of the record of 1,691 pages relates. The procedure was substantially that which had been followed, upon the same question, in the cases of six other industries. See the Administrator’s Findings and Opinion on the minimum wage recommendation of Industry Committee No. 26 for, and industrial homework in, the Jewelry Manufacturing Industry, dated October 16, 1941, and in relation to the Knitted Outerwear Industry (March 30, 1942), Women’s Apparel Industry (July 8, 1942), Gloves and Mittens Industry (August 22, 1942), Button and Buckle Manufacturing Industry (September 19, 1942), and Handkerchief Manufacturing Industry (January 22, 1943). 248 OCTOBER TERM, 1944. Opinion of the Court. 324U.S. of 2y2 cents over the previously prevailing “committee” rate.6 * 8 Petitioners have not contested this, the primary, term of the order. In this statutory setting stands § 8 (f), the crucial provision which in material part is as follows: “(f) Orders issued under this section shall define the industries and classifications therein to which they are to apply, and shad contain such terms and conditions as the Administrator finds necessary to carry out the purposes of such orders, to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates established therein. No such order shall take effect until after due notice is given . . .” (Emphasis added.) I The narrow issue turns upon the scope properly to be given the emphasized portions of the section. Respondent says that this authorizes him to take whatever action he finds necessary to prevent circumvention or evasion of the order so that the wage rate it establishes may be safeguarded; and that in this case his findings, amply 6 The provision for the 40-cent rate became effective September 20, 1943. The order provided the prohibition of homework should become effective after November 15, 1943. But the date was postponed, successively, until July 26, 1944, when the Circuit Court of Appeals stayed enforcement until this Court should act on the petition for certiorari. The Administrator found that “the estimated direct increase in the wage bill resulting from the establishment of a minimum wage rate of 40 cents an hour would be 1.2 per cent in the three main areas and 2.6 per cent in the other areas.” These findings are related to others to the effect that “almost 90 percent of the embroidery establishments are located in the New York City (including northern New Jersey), Chicago, and Philadelphia metropolitan areas. . . The Administrator concluded that “the insignificant rise in operating costs which will result from the recommended minimum will not cause substantial curtailment of employment.” Cf. §8 (b), (d). GEMSCO, INC. v. WALLING. 249 244 Opinion of the Court. sustained by the evidence, show prohibition of industrial homework is necessary to accomplish this end. As applied in this case, he has construed “necessary” not as meaning “helpful,” “consistent,” or “convenient,”7 but as connoting that the prohibition is absolutely essential to achieve those purposes. He says the wage rate cannot be maintained unless industrial homework is prohibited, with the comparatively minor exceptions the order allows.8 His findings and indeed his express conclusions therefore necessarily determine that regulation, by measures short of prohibition, cannot accomplish the relevant purposes of the order and of the statute.9 7 Cf. Armour & Co. v. Wantock, 323 U. S. 126. 8 The exceptions relate to persons obtaining special homework certificates who are “unable to adjust to factory work because of” age, physical or mental disability or are unable to leave home because their presence is required to care for an invalid; and were engaged in industrial homework in the industry prior to November 2, 1942 (except that this requirement is not to be applied in cases of unusual hardship) or are engaged in such homework under the supervision of a state vocational rehabilitation agency or a sheltered workshop as defined in the Code of Federal Regulations. 9 The Administrator’s opinion reviews at length the conditions surrounding homework in the industry inevitably tending to produce violation of minimum wage requirements; and the efforts previously made under both state and federal legislation to overcome these tendencies by regulatory measures. His conclusions, upon the evidence, were in general that both state and federal efforts at regulation had been ineffective; that violations were widespread, of great variety and in great part concealed; and that these were due to factors inherent in the conditions under which industrial homework is performed and impossible to correct by the regulatory measures applied. The Administrator’s review of efforts at regulation, by both state, cf. note 17 infra, and federal authorities prior to the Fair Labor Standards Act, led him to conclude “that labor conditions in industrial home work are not susceptible to regulation,” and that, according to the nearly unanimous viewpoint of Federal and State officials having experience in the administration of labor laws, . . . regulation, re- 250 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. Petitioners do not dispute the Administrator’s findings of fact or that the evidence fully sustains them. Nor indeed do they question his conclusions in any respect except that he has no legal authority to make the prohibition.* 10 The petition for certiorari conceded, as does also the brief, that the prohibition was included solely because respondent found “he could not [otherwise] enforce the minimum wage rate as to the home workers employed in the industry.” The brief states further that petitioners, “during the entire course of the proceedings, . . . challenged only the statutory authority” of the respondent to include the prohibition. In this sharply chiseled state of the issue, the accuracy of the Administrator’s findings and conclusions and the sufficiency of the evidence to sustain them must be taken striction or prohibition of industrial home work must be on a Nation-wide basis if minimum wage standards are to be preserved and upheld.” Likewise, “experience under the Fair Labor Standards Act of 1938 [to November, 1942] has also indicated that labor conditions in industrial homework in this Industry are not susceptible to regulation that will guarantee that the home worker will be paid the established minimum rate. . . . Compliance with the Act has been the exception rather than the rule.” Cf. note 16 infra. Such homework, it is further concluded, “furnishes a ready means of circumventing or evading the minimum wage order for this Industry” and “mere regulation . . . including regulation of the record-keeping practices of employers or governmental establishment of piece rates will not be adequate to secure enforcement of the minimum wage order for the Embroideries Industry.” 10 In the petition for the writ of certiorari the only questions presented were (1) whether the statute authorizes inclusion of the prohibition as a “term and condition” of the wage order; (2) whether, if so, this delegation of authority is confined by adequate standards; and (3) whether the Fifth Amendment forbids Congress to authorize the prohibition “solely because of the inability to enforce the minimum wage rate applicable to homeworkers, without regard to the social and economic character of such employment.” Cf. note 1 and text supra. GEMSCO, INC. v. WALLING. 251 244 Opinion of the Court. not only as true but as conceded, apart from the single question of authority to include the prohibition notwithstanding it is so buttressed in fact.11 The posture of the case therefore compels acceptance of the Administrator’s position that, without the prohibition, the wage rate cannot be maintained, and that circumvention and evasion cannot be prevented. Furthermore, upon the findings that is true not only with reference to the employees who are themselves homeworkers. It is true also as to all other employees in the industry.11 12 According to the best available estimates, the number of homeworkers at peak employment (April 1, 1939, to July 15, 1942) ranged from 8,500 to 12,000, whereas the number of factory workers as of June, 1942, was 18,500. The number of wage earners per factory in 1939 employed in some 1,431 establishments averaged between 12 and 13 workers.13 Not only therefore is it im- 11 By § 10, “The review by the court shall be limited to questions of law, and findings of fact by the Administrator when supported by substantial evidence shall be conclusive.” 12 The Administrator’s report stated: “It was testified at the hearing that home work is cheaper in terms of labor costs than factory work and is used by employers to reduce production costs, despite the advantages derived from the direct supervision over production, standardization, and specialization which are possible in the factory. The evidence . . . conclusively shows that large proportions of home work employees . . . are paid less than the applicable minimum. It is apparent that if some employers are allowed to utilize home workers at subminimum wage scales, other employers compelled to pay a 40-cent minimum will be placed at a competitive disadvantage.” 13 The nature of homework, it was said, is such that estimates of the number of homeworkers in this industry are difficult, whereas by contrast employment figures for factory workers may be ascertained with ease and definiteness. The estimates stated are from data submitted by the Economics Branch, Wage and Hour Division, United States Department of Labor. The figures concerning the number of establishments and of factory workers were derived from the Census of Manufactures. 252 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. possible for the Administrator, without the prohibition, to follow the statute’s mandate (§8 (d)) to “carry into effect” the recommendations of the committee as to 8,500 to 12,000 homeworkers, who generally are part-time pieceworkers.14 He neither can do so as to factory workers, who generally are full-time workers. Hence, if the prohibition cannot be made, the floor for the entire industry falls and the right of the homeworkers and the employers to be free from the prohibition destroys the right of the much larger number of factory workers to receive the minimum wage. This is true not merely as a matter of inference from evidence having only prospective and predictive value. It is proved conclusively by the Administrator’s experience in attempting by regulatory methods to secure compliance with the previously 14 According to the report of the Economics Branch, cf. note 13 supra, entitled The Current Status of Home Work in the Embroideries Industry, October, 1942, one of the most important factors affecting earnings of homeworkers is “the great multiplicity of designs and styles.” Variations are constant and short lived. Piece rates must be determined and applied with every change. Few operations lend themselves to standardization, especially for homework. In one instance, during a period of six months, a “lace-cutting firm received work requiring the cutting of 300 different designs, each of which had a different piece rate.” The report further states: “Piece rates for plant workers can readily be checked . . . The setting of piece rates to yield the minimum wage for home workers is a much more complex problem than for plant workers.” The Administrator’s opinion states the most common practice in setting piece rates for home operations is by the timing of a sample worker in the factory and the evidence showed this worker may be a very skilled and experienced one. Of the firms inspected by the Wage and Hour Division June 1, 1939, to July 1, 1942, “a review of 211 showed that 80, or 37.9 percent, fixed piece rates for home workers upon the basis of arbitrary estimates; 73, or 34.6 percent, based the rates for home workers on time tests of plant sample workers; and only 40, or 19 percent, based the rates for home workers on time tests of some of the home workers themselves.” Cf. also note 16 infra. GEMSCO, INC. v. WALLING. 253 244 Opinion of the Court. prevailing15 lower “committee” rate.16 His experience is borne out by that of state and federal authorities prior to the Fair Labor Standards Act.17 Attempts to maintain 16 Cf. note 6 supra. 16 Cf. note 9 supra. The Administrator’s report stated: “The Economics Branch found that even during the boom period from January 27, 1941 to July 1942, 61.2 percent of the home workers in the Industry as a whole were paid less than 37% cents an hour, in violation of the applicable minimum wage order. It was found that 52.6 percent of the home workers received less than 35 cents an hour; nearly 30 percent less than 25 cents; and 17.4 percent less than 20 cents. Fifteen home workers, or 1.8 percent of the total number, were paid as little as 10 cents an hour or less. The percentage receiving less than 37% cents an hour was highest, 90.2 percent, in lace cutting and lowest, 23.3 percent, in crochet beading. Miscellaneous embroidery had 81.3 percent of the home workers receiving less than the wage order minimum, passementerie, 74.1 percent, hand embroidery, 72.6 percent, and Schiffli and Swiss hand-machine embroidery, 31.1 percent.” Much other evidence, including testimony of individual homeworkers and of the Director of the Women’s Division, New York Department of Labor, relating to inspections made in 1941 and 1942 involving 1,582 homeworkers, sustained the Administrator’s statement, “The evidence in the record, including the report of the Economics Branch, which showed low subminimum earnings for the bulk of the home-workers in this industry, was not seriously contested at the hearing,” and his further conclusions that, in view of competitive relationships, mere regulation of homework would not be adequate to secure effective enforcement of the order and, likewise, that this could not be had by applying the prohibition to only part of the industry. 17 He found specifically that the efforts of New York and New Jersey m prohibiting distributors who operate no shops from distributing homework and in restricting such contractors, though having a beneficial effect, had not “changed the economic structure of the Industry as presently carried on”; that hidden child labor is a widespread characteristic of the system, discoverable only after extensive investigation presenting an almost insurmountable problem for enforcement agencies, employers and homeworkers themselves; that violations of record keeping regulations by employers and workers are consistent and widespread; and that “in view of the competitive relationship 254 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. minimum wages by regulating homework have failed generally of their purpose. This failure, after fair trial, is responsible for the Administrator’s resort to prohibition in the present order. The case therefore comes down squarely to whether or not minimum wages may be effectively prescribed and required in this industry. If homework can be prohibited, this is possible. If it cannot, the floor provided by the order cannot be maintained and, further, what is more important, it inevitably follows that no floor, whether of “statutory” or of “committee” wages, can be maintained.18 between different types of embroidery, any regulatory, restrictive, or prohibitory order affecting only certain operations would create a competitive disadvantage for the employers engaged in those operations.” Noting that twelve states had legislated, before 1900, to regulate tenement workshops, the Administrator found that “effective enforcement was impossible, however, and home work remained a serious problem.” The subsequent period of legislation by a few states “achieved little effective control prior to 1930.” New state laws, enacted during the 1930’s, providing for abolition of homework by administrative order, “became the only effective statutory approach to a problem generally considered beyond regulation.” Under the National Industrial Recovery Administration, 118 of the 556 codes included homework provisions; and 86 percent of the 118 prohibited homework. Homework in consequence was greatly reduced, but its volume turned sharply upward when the National Industrial Recovery Act was declared unconstitutional in Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935). 18 No reason is apparent which would make any factor in the homework situation effective to nullify the 40-cent rate that would not apply also to the 3716-cent rate or any other minimum, however fixed, except one placed so low that even homeworkers would seek other kinds of employment or accept idleness in preference. The Administrator made no findings or conclusions concerning this self-evident matter. GEMSCO, INC. v. WALLING. 255 244 Opinion of the Court. In this light petitioners’ position is, in effect, that the statute cannot be applied to this industry. Their argument is not put in these terms. It comes to that. So to state it is to answer it. The industry is covered by the Act. This is not disputed. The intent of Congress was to provide the authorized minimum wage for each employee so covered. Neither is this questioned. Yet it is said in substance that Congress at the same time intended to deprive the Administrator of the only means available to make its mandate effective. The construction sought would make the statute a dead letter for this industry. The statute itself thus gives the answer. It does so in two ways, by necessity to avoid self-nullification and by its explicit terms. The necessity should be enough. But the Act’s terms reinforce the necessity’s teaching. Section 8 (d) requires the Administrator to “carry into effect” the committee’s approved recommendations. Section 8 (f) commands him to include in the order “such terms and conditions” as he “finds necessary to carry out” its purposes. These duties are backed up by other provisions.19 When command is so explicit and, moreover, is reinforced by necessity in order to make it operative, nothing short of express limitation or abuse of discretion in finding that the necessity exists should undermine the action taken to execute it. When neither such limitation nor such abuse exists, but the necessity is conceded to be well founded in fact, there would seem to be an end of the matter. II Petitioners’ objections are not procedural. They have not contended that the provision of the order forbidding homework is a definition or classification of the industry 19 Cf. text at note 38ff infra. 256 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. or, either for that reason or any other, must be submitted to the industry committee and made only upon its recommendation. Such a position would have nullified their argument that the statute confers no authority in any case to prohibit homework. The provision is neither a definition nor a classification of an industry. It relates merely to a mode or method of conducting the industry. The statute provides that the committee shall recommend minimum wage rates and reasonable classifications, and that the Administrator, if he disapproves “such recommendations,” shall refer them either to the committee or to another committee. § 8 (a), (b), (c), (d). Nothing in the Act requires the Administrator to take the committee’s recommendation concerning the terms and conditions found necessary to make their recommendation and the order based on it effective. He must find that the terms and conditions he imposes are necessary for this purpose. He did so in this case, after extended hearings, upon ample evidence and upon findings of necessity not questioned. To say that in such circumstances he can adopt no term or condition which materially alters the industry is only to say Congress did not mean what it said and that the industry cannot be made subject to the statute’s regulation. It is also to ignore “the distinct separation of the functions to be performed by the committee under § 8 (a), (b), (c), (d), from that to be performed by the Administrator after submission of the committees report . . .” Opp Cotton Mills v. Administrator, 312 U. S. 126, 147. Petitioners’ arguments rest chiefly on their views of the legislative history and the character of the prohibition. The latter, they say, is not a “method of enforcement” but is rather a form of “experimental social legislation” touching a matter not incidental to the order, but in the nature GEMSCO, INC. v. WALLING. 257 244 Opinion of the Court. of a wholly independent subject beyond the purview of the statute and therefore of the Administrator’s power. This argument is closely interlaced with the contentions drawn from the legislative history and the statute’s enforcement provisions, presently to be noted. In so far as it is independent of these, however, it rests on wholly untenable premises. One is that the prohibition is merely an “enforcement” measure. It is rather primarily preventive in character, intended to aid in making the order effective and to eliminate the need for enforcement. But, in accordance with their “enforcement” conception, petitioners’ larger fallacy is that the Administrator can take no action toward making his order effective which, if taken as a matter of independent legislation not expressly related to the Fair Labor Standards Act’s objects, would produce substantially the same social and economic effects, apart from those objects. In this view the Administrator’s power is so restricted that he can do nothing if, in addition to making the rate effective and safeguarding it against circumvention, other social and economic consequences would result. The answer is obvious. Section 8 (f), in directing the Administrator to include “such terms and conditions” as he “finds necessary to carry out the purposes of such orders,” did not forbid him to take the only measures which would be effective, merely because other consequences necessarily would follow. The language neither states expressly nor implies that he is to do only what will achieve the stated ends and nothing more. The statute does not direct the Administrator to make the rate effective by all necessary means except those which may have other social or economic consequences. His power, it is true, is not one of social or economic reform, except as that power relates to maintaining authorized minimum wages and the statutory hours of labor. 258 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. But the Administrator has not exercised his authority for such an extraneous purpose. He expressly disclaimed any such object.20 The entire record supports the disclaimer. The whole bearing of the evidence and the findings was toward the effects of homework upon the wage rate and its maintenance, not upon other evils it may generate. Petitioners’ argument, not questioning the necessity for the prohibition or the finding that it exists, would accomplish indirectly what direct challenge which they do not attempt would achieve, if successful. Absent the necessity, the Administrator’s power would not go to this length. Present that necessity, to deny it, because other effects necessarily but incidentally must follow his action, would be to nullify both his power and the statute. Nothing in the statute, whether of letter or of substance, warrants such a limitation. What is “incidental,” what “independent” of stated statutory ends often presents a difficult issue. But that is seldom if ever true when to deny the authority or other feature questioned would nullify the Act by reading out of its purview the only means for making it effective.21 Homework in this case is not an independent industry. It is conducted largely by the same employers who maintain factory establishments or by “contractors” who are 20 His opinion expressly states: “This proceeding is not concerned with the question whether home work is desirable or undesirable from a social point of view or as a form of economic organization. It is concerned solely with whether the home work system in the Embroideries Industry furnishes a means of circumventing or evading a wage order putting into effect the minimum wage recommendation of Industry Committee No. 45 so that it is necessary to provide in the wage order for its regulation, restriction or prohibition in order to carry out the purposes of such order and to safeguard the minimum wage rate established therein.” 21 Cf. Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381, 392; United States n. Powers, 307 U. S. 214, 217; Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U. S. 315, 333; Bird v. United States, 187 U. S. 118,124. GEMSCO, INC. v. WALLING. 259 244 Opinion of the Court. in competition with such employers. Homeworkers are an integral part of the single industry. Their labor competes with the labor of factory workers, within the same establishment, between establishments, and between regions where the industry is concentrated. The effects of their competition with factory workers are, as has been shown, to destroy the latters’ right as well as their own to have, practically speaking, the benefit of the minimum wage guaranteed by the Act. They represent the smaller fraction of the industry, both in numbers and in working time. Such are the uncontested findings of fact.22 When all of these facts are taken into account, the case is clearly not an instance of effort to achieve ends beyond or independent of the statutory objects. It rather exhibits but an exercise of the necessary means to accomplish those objects. This is confirmed, further, by the evidence and the findings which show that the prohibition will not eliminate the great majority of homeworkers from the industry; but on the contrary will result only in transfer of the scene of their work from the home to the factory and will do this without undue hardship.23 22 Cf. notes 12, 13 and text at notes 14 and 16 supra. Other relevant findings of the Administrator need not be quoted or noted specifically, reference being made to his opinion for them. 23 The Administrator’s opinion devotes some seventeen pages to review of the evidence in this aspect of the case, including previous experience with ability of both employers and homeworkers to adjust to the prohibition. This experience related to the effects of prohibitions under various state laws and the National Industrial Recovery Act. With reference to the latter, of 75 firms investigated by the Children’s Bureau, Department of Labor, only one discontinued the line of goods on which homeworkers had been employed and of 3,135 homework employees prior to the prohibition, 2,588 or 2 percent were employed in factories after the prohibition. Similar results were shown in the experience with state laws in New Jersey, New York and Rhode Island. Petitioners presented contrary evidence, largely statements of in-ividual homeworkers in embroidery that they could not or would 260 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. For the larger number of workers unable to make the transfer, the exceptions allowed by the order will provide an adequate mode for permitting continuance of work at home.24 The argument from the legislative history undertakes, in effect, to contradict the terms of § 8 (f) by negative inferences drawn from inconclusive events occurring in the course of consideration of the various and widely differing bills which finally, by compromise and adjustment between the two Houses of Congress, emerged from the conference as the Act. The plain words and meaning of a statute cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction. This is such a case. Petitioners’ most insistent emphasis is upon two things. One is that the committee in charge of the original Senate bill reported that it was limited to two objectives, the establishment of minimum wages and maximum hours and the prohibition of industrial child labor.25 * The other, that at various stages of consideration the Senate bill contained, in the section (9 (6)) comparable to what is now §8 (f), a parenthetical clause which expressly included not make the transfer, for various reasons, if the prohibition were adopted. The Administrator found some of this evidence unacceptable “as furnishing a sound basis for predicating their actual conduct when faced with actual prohibition” and concluded that reasonable adjustment could be made to the prohibition both by employees and by the employers. 24 Cf. note 8 supra. Because “relatively few home workers will be eligible to continue home work under this exception,” the Administrator found that “no threat to the standards of the wage order would be presented by making it. 25 8. Rep. No. 884, 75th Cong., 1st Sess.; cf. 81 Cong. Rec. 7658, 7659. GEMSCO, INC. v. WALLING. 261 244 Opinion of the Court. homework among other specified practices the Administrator was authorized to restrict or prohibit,26 and this clause was omitted from the final conference draft. The first objection merely repeats in another guise the argument that homework is an independent subject matter wholly without the statute’s purview, but bolsters this with the assumption that because oppressive child labor was covered expressly, homework and all other factors affecting maintenance of minimum wages were left entirely untouched, if they produce other evils which independent legislation might reach, merely because they were not also specifically mentioned. The assumption ignores the fact that the child labor provisions are themselves independent prohibitions, not limited to operation in situations where child labor has harmful effects on maintaining the minimum wage rate but working entirely inde- 28 The clause assumed various forms in the course of consideration of the Senate bill. The section comparable to §8 (f) was 9 (6). The original parenthesis, apparently, was inserted in committee in the form, “(including the restriction or prohibition of such acts or practices).” S. Rep. No. 884, 75th Cong., 1st Sess., 8. This was amended on the floor, without debate or record vote, to read, “(including the restriction or prohibition of industrial home work or of such other acts or practices),” thus introducing the first specific reference to homework. 81 Cong. Rec. 7891. The bill passed the Senate with the clause in this form. 81 Cong. Rec. 7957. The House Committee on Labor approved and reported the Senate bill with this version of the parenthesis, which was retained through many revisions of the bill after it was recommitted. Eventually the clause was expanded in the House Committee to read, “(including the restriction or prohibition of industrial home work or such other acts or practices and such requirements as the keeping of records, labeling, periodic reporting and posting of orders and schedules).” House Confidential Subcommittee Print “A” of February 18,1938. The clause disappeared entirely from the House bill when, shortly before passage, that body changed the entire scheme by substituting “statutory” for “committee” wages. Cf. H. Rep. No. 2182, 5th Cong., 3d Sess.; cf. also text infra at notes 32, 33. 637582°—46___21 262 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. pendently of such consequences.27 28 Those provisions are therefore not merely means of putting into effect and maintaining the wages required by the Act, as is the Administrator’s prohibition of homework. The former would apply regardless of any effect upon the wage structure. The latter can apply only when it is clear that such effects require this in order to maintain and safeguard that structure. This difference is in fact the difference between end and means, made such by the terms of the statute itself. Congress by stating expressly its primary ends does not deny resort to the means necessary to achieve them. Mention of child labor therefore gives no ground to infer, from failure expressly to mention homework, that the latter was not included within the general language which comprehends all necessary means to achieve the Act’s primary objects. Exactly the opposite conclusion must be drawn on the record, in view of the Administrator’s uncontested findings concerning the effects of homework in producing hidden child labor at substandard wages, thus circumventing the Act in two of its primary objects.28 These findings therefore give added reason to sustain his conclusion that homework was not put beyond his power to prescribe the means necessary to achieve the purposes of the order and of the Act. 27 Cf. § 12 and § 3 (1). The latter defines “oppressive child labor.” The former prohibits producers, manufacturers and dealers to “ship or deliver for shipment in commerce any goods produced in an establishment situated in the United States in or about which within thirty days prior to the removal of such goods therefrom any oppressive child labor has been employed . . .” See also note 17 supra. 28 The Administrator, referring to the prohibition of § 12, cf. note 27 supra, noted that the employment of children in either factories or homes, in the production of goods for commerce, must be hidden and commented: “This in itself contributes to the deterioration of minimum wage standards.” GEMSCO, INC. v. WALLING. 263 244 Opinion of the Court. The second objection fares no better. It is mere negative inference drawn from the bare fact that the illustrative parenthetical clause was omitted from the final conference draft which became the Act. Nothing in the committee or conference reports or in the debates indicates a purpose to put homework, or the other practices enumerated at one time or another within the parentheses, beyond the purview of the Act or of the Administrator’s power wherever these practices are shown to prevent achievement of the statute’s ends. The answer to the argument microscopically made from the long course of legislative events is obvious. From the beginning the parenthetical clause was but illustrative of the general authority conferred by the provision of which it was a part.29 It “grew up through step by step additions, among which ‘homework’ was one,” 144 F. 2d 624, until the parenthetical illustrations threatened to swallow up the general authority. If nothing more had occurred than elimination of the illustrations from a bill otherwise accepted, the change well might be put down, as Judge Hand suggests, 144 F. 2d 624, “to the belief that it was unwise to specify so much, lest the specification be taken as exhaustive.” However, as he points out, the course of events was quite different, and even more conclusive against the petitioners’ view. The section containing the parenthesis began, and continued, as a feature of the Senate bill. This followed an entirely different plan from the one eventually adopted, which was a compromise of Senate and House proposals. The Senate bill placed administration of the Act in the hands of a board, which was by order to fix all minimum wages. In this form, including the parenthetical reference to homework,30 the Senate adopted the bill. 29 Cf. note 26 supra; Phelps Dodge Corp. v. Labor Board, 313 U. S. 177,188ff, 211; Federal Land Bank n. Bismarck Co., 314 IT. S. 95,100. 30 Cf. note 26 supra. 264 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. The House Committee to which the measure was referred likewise approved it. But the House itself declined to do so. It adopted a different scheme, substituting statutory wages for wages fixed by order as the Senate bill proposed.81 There was therefore no need for, and the House bill did not contain, the parenthesis or the general provision of which it formed a part. When the two bills came to conference, compromise was worked out by writing around the conference table the final measure combining features of both bills.31 32 The House provisions for an administrator and for statutory wages were retained. But the latter were modified by providing for “committee” wages, to be fixed by order of the Administrator, by including the provisions of § 8, including 8 (f), and also of § 6 (a) (3) and (4). Section 8 (f), which originated in the Senate, thus found its way back into the final form of the measure, though without the parenthesis. The Conference report (H. Rep. No. 2738, 75th Cong., 3d Sess.) contains no reference to the elision and none appears in the record of the ensuing debate. 83 Cong. Rec. 9158, 9246. The history, accordingly, does not sustain the negative inference petitioners would draw from the omission. The paren- 31 The House bill also substituted an administrator for the Senate s board. Petitioners argue from the fact that substitution of “statutory” for “committee” wages was made because the House objected to the discretionary powers given the board in the Senate bill, H. Rep. No. 2182, 75th Cong., 3d Sess., and because it later rejected substitute bills patterned after the Senate measure, cf. 83 Cong. Rec. 7389, 7378, 7373, that Congress, in effect, rejected every feature of the bills which the House refused to enact. The non sequitur is apparent. But it may be noted the contention ignores entirely the Senate’s part in legislation, as well as the compromise effected in conference between the two bodies and the fact that this reintroduced some of the discretionary features contained in the bills the House rejecte . 32 Cf. 83 Cong. Rec. 9256; H. Rep. No. 2738, 75th Cong., 3d Sess. (Conference Report). GEMSCO, INC. v. WALLING. 265 244 Opinion of the Court. thesis was inserted, in the Senate, without discussion or controversy. It was likewise eliminated without discussion or controversy. So far as appears, it was never separately considered. Not the clause alone or particularly, but the entire bill containing it was rejected by the House. That rejection is no evidence that this single feature had special significance. Rejection of an entire bill cannot be taken to be a specific rejection of each and every feature, more especially of those later reintroduced in the final draft.33 The most tenable conclusion is drawn by Judge Hand, that “the section, which had apparently died with the Senate plan, was lifted out of that setting, and was put into the compromise bill as it had stood originally.” As he says, “It would be indeed a far cry to infer from that that all the items which by accretion had made their way into the parentheses were in this way excised from the Administrator’s powers. Indeed, if so—as he argues—he could not even regulate labels . . 144 F. 2d at 624. The amendment to § 6, relating to homework in Puerto Rico and the Virgin Islands, adopted in 1940,34 and Congress’ failure in 1939 and 1940 to adopt an amendment proposed by the Administrator to authorize explicitly prohibition of homework35 * cannot operate retroactively, as is urged, to give the statute enacted in 1938 a different meaning from what it then acquired.38 And petitioners’ con- 33 Cf. note 31 supra. 34Sections 6 (a) (5), 6 (c), 5 (e), added by Act of June 26, 1940, 54 Stat. 615, 616. Section 6 (a) (5) deals in detail with homeworkers in Puerto Rico and the Virgin Islands. 35 Cf. H. R. 5435, 76th Cong., 1st Sess., §4; H. Rep. No. 522, 76th Cong., 1st Sess., 8; 84 Cong. Rec. 3498; 86 Cong. Rec. 5122. 6 It is not altogether clear, from the terms of the proposed amendment, cf. note 35 supra, whether its purpose and effect were to clarify preexisting provisions or to extend the Administrator’s authority. The debate, 84 Cong. Rec. 6620-6622, indicates that opposition in the House was due primarily to belief that the amendment, if adopted, 266 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. tentions drawn from the Act’s enforcement provisions misconceive their effect. The idea seems to be twofold, first, that the Administrator has no enforcement functions under this Act; or, in any event, that the Act provides no means for enforcing the “terms and conditions,” including restriction or prohibition of homework, which he may include in his order.37 The Administrator’s function under § 8 (f), though primarily preventive, obviously is related to enforcement. And further, he is expressly granted powers bearing directly to that end. Apart from his investigative authority under § 11, he has power also by express provision of that section to bring suits under § 17 to restrain violations of wage orders.88 We need not determine whether this includes authority to sue independently to restrain violations of “terms and conditions” properly included in such an order or to ask for this relief as incidental to enjoining violations of the rate specified. Cf. Hecht Co. v. Bowles, 321 U. S. 321,330; Ethyl Gasoline Corp. n. United States, 309 U. S. 436, 461; would “take away some of the exemptions that so-called farm people enjoy under the Act.” 37 It is said that § 8 (f) does not provide for a hearing with reference to the “terms and conditions” of a wage order and the failure of the Act to provide expressly for their enforcement, as it does for enforcement of orders issued under §§11 (c), 12 and 14, indicates “the statute did not include the prohibition of homework as a ‘term and condition’ of a wage order.” The argument, it may be noted, applies to all “terms and conditions.” In effect it urges that all are unenforceable; and therefore none was intended. 88Section 11 (a) provides: “The Administrator . . . may investigate . . . such facts, conditions, practices, or matters as he may deem necessary or appropriate to determine whether any person has violated any provision of this Act, or which may aid in the enforcement of the provisions of this Act. . . . Except as provided in section 12, the Administrator shall bring all actions under section 17 to restrain violations of this Act.” Cf., e. g., Walling v. Helmerich & Payne, 323 U. S. 37; Walling v. Belo Corp., 316 U. S. 624. GEMSCO, INC. v. WALLING. 267 244 Opinion of the Court. United States v. Morgan, 307 U. S. 183, 194; Warner & Co. v. Lilly & Co., 265 U. S. 526, 532. But certainly the absence of such authority cannot be assumed, closely related as it would be to enforcement of the order’s primary term. Congress did not include authority to prescribe “terms and conditions” merely as a preachment. Cf. California Drive-In Restaurant Assn. v. Clark, 22 Cal. 2d 287, 140 P. 2d 657. We do not therefore consider further these assumptions. Finally, petitioners insist that power to prohibit homework could not have been intended because the authority to prescribe “terms and conditions” applies only to “committee,” not to “statutory” wages and will expire, by the terms of § 8 (e),39 on October 23, 1945, seven years from the effective date of § 8. This argument involves a medley of assumptions and conclusions, some contrary to the fact, others of doubtful validity. Among them are the ideas: (1) that the power to prescribe “terms and conditions” applies only to “committee” wages; (2) that the power to prescribe or maintain such wages expires altogether at the end of the seven years; and (3), upon these hypotheses, that it would be “absurd to assume that Congress intended that the Administrator could make so disruptive but temporary a regulation as the prohibition of homework would entail.” The last conclusion might be accepted, if its foundations were solid. But they crumble. In the first place the 89 “No order issued under this section with respect to any industry prior to the expiration of seven years from the effective date of section 6 shall remain in effect after such expiration, and no order shall be issued under this section with respect to any industry on or after such expiration, unless the industry committee by a preponderance of the evidence before it recommends, and the Administrator by a preponderance of the evidence adduced at the hearing finds, that the continued effectiveness or the issuance of the order, as the case may be, is necessary in order to prevent substantial curtailment of employment in the industry.” 268 OCTOBER TERM, 1944. Opinion of the Court. 324 U. 8. authority conferred by § 8 (f) is to be read, not as if it were given as of the date of the order (August, 1943) or the time when it may become effective,40 but as of 1938, when the section took effect. Accordingly, at the minimum, the authority given was to apply over a period of seven years. And these were the most crucial, because the initial, years in the statute’s anticipated life. The scope of the power was not cut down because the Administrator chose to try first the less effective, but similarly conferred though less extensive power of regulation. Beyond this, it is not true that the power either to prescribe “committee” wages or to include “terms and conditions” in the order expires altogether at the end of the first seven years. Section 8 (e) expressly provides for continuance or issuance of wage orders after that time, whenever the industry committee recommends and the Administrator finds “by a preponderance of the evidence . . . that the continued effectiveness or the issuance of the order, as the case may be, is necessary in order to prevent substantial curtailment of employment in the industry.” And § 6 (a) (3), perhaps also 6 (a) (4), expressly contemplates continuance of wage orders issued under § 8 after the initial seven years. The exact scope of these provisions need not now be determined. It is enough, for present purposes, that they leave some room, and it may be considerable, for the issuance or continued effectiveness of wage orders after October 23,1945. Finally, it is not necessary in this case to decide whether the power to prescribe “terms and conditions” applies only to “committee” wages and not to “statutory” wages. Strong reasons have been suggested for believing it applies to both.41 But this case involves only “committee” 40 Cf. note 6 supra. 41 Cf. the opinion of L. Hand, C. J., 144 F. 2d 608, 623, and the reservation in that of Frank, C. J., at 614, with the authorities he cites in note 7. GEMSCO, INC. v. WALLING. 269 244 FRANKyxmTEB, J., concurring. wages. The power to make them effective and to prevent evasion would not be cut down, were it more clear than it is that there is no authority to prescribe “terms and conditions” for “statutory” wages or were it true that authority to require “committee” wages would expire altogether with the initial seven-year period. The question whether the authority to prescribe “terms and conditions” applies to “statutory” wages may be left for decision when it arises. Uncertain as the answer now is, it cannot give solid ground for inference that the power to prohibit homework was not a necessary means of making effective the minimum wage prescribed by the order. Petitioners’ arguments have been directed chiefly to the power to prohibit. If valid, they would apply equally to the authority to restrict or regulate. They would nullify the Administrator’s power to establish or maintain minimum wages in the embroideries industry. They can have no such potency. The judgments are Affirmed. Mr. Justice Frankfurter, concurring. The Fair Labor Standards Act gives the Administrator charged with its enforcement power to fix wages so that they attain a basic minimum rate. In view of the vast and varied range of situations thus placed under his wagefixing authority, the Administrator naturally enough was given by Congress the power to issue these wage orders on “such terms and conditions as the Administrator finds necessary to carry out the purposes of such orders, to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates established therein.” § 8 (f), 52 Stat. 1060, 1065, 29 U. S. C. § 208 (f). It would disregard the authority thus given by Congress to deny that the power to fix minimum wages carries with it the subsidiary power to forbid and to prevent evasion of 270 OCTOBER TERM, 1944. Roberts, J., dissenting. 324 U. S. wages so fixed. In the light of the showing made on this record concerning the embroideries industry for which the Administrator concededly fixed valid wage rates, the measures that the Administrator took through provisions dealing with homework in the embroideries industry were relevant to, and in enforcement of, the subsidiary power granted by Congress to prevent evasion of the rates fixed for that industry. And so I join in the Court’s opinion. Mr. Justice Roberts. With deference I venture to think that the Court here essays to read into the law what its words, fairly construed, do not import. The Court arrives at that result by forming a judgment as to what Congress probably should have said, and would have said, if it had considered the matter, in order to make the statute what the Court deems a more perfect instrument for attaining the general objective which Congress sought to attain, and then makes the necessary additions to the language Congress has used. The principal, if not the only argument I find in the opinion for reading something into the statute, is that otherwise it cannot be most effectively applied to certain industries unless the industries themselves are made over. Section 8 (f) provides that the Administrator’s orders issued under the section “shall define the industries . . • to which they are to apply.” It is not suggested that the order in question is of this description. That with which the industry committee’s investigation dealt was a single industry in which two methods of work were pursued. Obviously it is not a definition of the industry to exclude from it some of those who labor in it. The section also provides that the Administrator’s orders “shall contain such terms and conditions as the Administrator finds necessary to carry out the purposes of GEMSCO, INC. v. WALLING. 271 244 Roberts, J., dissenting. such orders, to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates established therein.” The philosophy of the court’s opinion can be nothing less than that the Administrator may, if he finds it necessary, rewrite the statute. Suppose he finds that, in a given industry, it is, as he puts it, impossible to enforce the minimum wage provision. May he thereupon issue an order prohibiting the further prosecution of that industry and requiring all those who pursue it to follow some other calling? It may be said that the supposition is, on its face, ridiculous. But is it any more so than what was here accomplished? Forty per cent of the workers in an industry, under pain of otherwise losing their occupation, are compelled to give up what they have done time out of mind, and if they desire to pursue their calling to do so under completely changed economic conditions, not in their homes but in factories which, if they are available at all, may be remote from their homes. The language of § 8 (f) has a reasonable and proper office in the context of the Act. The provisions permitted by that section to be inserted in an order are obviously such as are incidental to administration, such as pertain to keeping records or filing reports; not exorbitant or excessive so as to amount to a regulation or suppression of an existing and recognized industry. In my view, one need not go outside the provisions of the Act to be convinced that Congress never intended to grant the Administrator the power he has assumed. If it be thought, however, that the phraseology of § 8 (f) is of doubtful import, the legislative history seems to me to demonstrate that Congress purposely, and not by inadvertence, denied the asserted power to the Administrator. The statute aimed at three things—the limitation of the hours of work, the fixing of minimum compensation per hour, and the prohibition of child labor, We may elim- 272 OCTOBER TERM, 1944. Roberts, J., dissenting. 324 U. S. inate from consideration the first and third of these objects, and the statutory provisions implementing them, since we are concerned only with minimum wages. The Act creates a Wage and Hour Division in the Department of Labor and authorizes the appointment of an administrator to be in charge of it (§ 4). It requires the appointment of industry committees representing those engaged in any industry (§5). It requires every employer to pay every employe engaged in commerce, or in the production of goods for commerce, at the rate of not less than twenty-five cents an hour for the first year, not less than thirty cents an hour during the next six years, and not less than forty cents an hour after the expiration of seven years. The Administrator is given no authority to issue any orders concerning these prescribed rates or their application in industry, with the sole exception about to be mentioned. Provision is made to raise wages above the prescribed minima during the seven year period after the effective date of the Act, without curtailing employment or disrupting the economy of an industry. Section 6 refers the reader to § 8 creating machinery to accomplish this. The latter section provides for the convening of industry committees to which the Administrator shall refer the question what minimum wage rate shall be set for the industry. The committee is to investigate conditions in the industry, hold hearings, and recommend the highest minimum wage rates which it determines, having regard to economic and competitive conditions, will not substantially curtail employment. Upon receiving the committee’s recommendation, the Administrator, after an opportunity for hearing, may approve or disapprove the committee’s recommendation. If he approves, he shall do so by an order the effect of which is to put into force the recommended wage scale. Such orders are not to continue in force after seven years from the effective date of the statute unless the committee GEMSCO, INC. v. WALLING. 273 244 Roberts, J., dissenting. and the Administrator conclude, and so declare, that it is within the purposes of the Act that the wage fixed by the order shall remain in effect after expiration of that period notwithstanding the requirement of § 6 that all wages shall reach the minimum of forty cents an hour at that time. Now it is only in enforcement of a committee’s report that the Administrator has power to issue an order with respect to wages, and it is in this context that § 8 (f) permits him to include in his order “such terms and conditions” as he “finds necessary to carry out the purposes” of the order, to prevent circumvention or evasion, and to safeguard the wage rates thereby established. With respect to the minima fixed by § 6, which apply universally (except where the special procedure authorized by § 8 is invoked), the Administrator has no authority to issue orders such as that issued in this case. He cannot, because he finds it difficult to enforce the Act in an industry, either remake or suppress the industry. The result of the decision is that, in the exceptional case where a special rate of wages is set in advance of the prescribed rate, the Administrator may do what, in the generality of cases, he may not do. This circumstance gave one of the judges below so much trouble that he was willing to hold, in the teeth of § 6, that the Administrator might in all cases make such orders as that here in question. Thus, instead of writing in additional provisions in § 8 (f), as does this court, he was prepared to write in a new provision in § 6 to make the Act a complete and logical statute. We have, then, this situation: With respect to any industry which has not been taken out of the provisions of § 6 by an industry committee’s report and an Administrator’s order, the Administrator cannot forbid home work. As respects an industry in which wages have been fixed by a committee, the Administrator has these sweep- 274 OCTOBER TERM, 1944. Roberts, J., dissenting. 324 U. S. ing and destructive powers. And this, in spite of the fact that the committee is authorized and required to deal with the wages of the industry as a whole, and did so deal with them here. The committee never considered the question of an appropriate wage for the industry, under the conditions which would prevail, after the suppression of a substantial part of it by the Administrator’s order. The interpretation now sanctioned of the Administrator’s statutory authority to make orders “to prevent the circumvention or evasion” of the purposes of the Act, as including the power to make over the industry to which a wage order is to apply, thus defeats one of the most fundamental purposes of the Act. By § 8 no wage order is to be promulgated with respect to an industry unless the question of the minimum wage for the industry has been referred by the Administrator to the industry committee, and the conditions in the industry and the appropriate wage for it have been the subjects of investigation and report by the committee. The committee is specifically enjoined to recommend to the Administrator “the highest minimum wage rates for the industry which it determines, having due regard to economic and competitive conditions, will not substantially curtail employment in the industry.” And by § 8 (d) the Administrator, before he promulgates a wage order, is required to find, after “taking into consideration the same factors as are required to be considered by the industry committee,” that its recommendations will carry out the purpose of § 8. These requirements make it clear that the terms and conditions which § 8 permit the Administrator to attach to his wage orders do not include those which materially alter the conditions of the industry which must be considered and reported upon by the committee. Such requirements are futile if the Administrator, under guise of preventing evasion of a minimum wage order, which the committee has recommended, has power, on promulgating a wage GEMSCO, INC. v. WALLING. 275 244 Roberts, J., dissenting. order, to change the industry into one which the committee has never investigated. The Administrator’s action is in effect a subversion of the committee’s report, whereas the Act contemplates a resubmission to the committee in such a case. Opp Cotton Mills v. Administrator, 312 U. S. 126, 146-149. Surely, if any such sweeping construction is to be given words having a narrower import, inquiry into the legislative history is of capital importance. That history, instead of being “wholly ambiguous” and furnishing a “dubious basis” for conflicting inferences, seems to me to be letter-clear. The Presidential message urging enactment of this legislation states two objects: “To reduce the lag in the purchasing power of industrial workers” and to put an end to “the existence of child labor.” Both purposes were to be accomplished “without creating economic dislocation.”1 Pursuant to this recommendation, Senate Bill No. 2475 was introduced and a similar bill, H. R. 7200, was introduced in the House. Joint hearings were held by Senate and House committees. Senate Bill No. 2475 was reported to the Senate. Those in charge of it on the floor repeatedly stated that the purpose was to limit the bill strictly to minimum wages, maximum hours, and child labor. There is no question that many experts in the field felt that the prohibition of home work was essential to the accomplishment of the objective of the legislation. In the joint hearings, the Secretary of Labor testified that power should be given to the administrative authority to prohibit entirely the use of industrial home work.”* 2 In this connection the Secretary also advised that the administrative powers to be granted should be carefully defined by the Congress so that the Act would clearly state ‘H. R. Report No. 1452, 75th Cong., 1st Sess., pp. 6-7. 2 Testimony at Joint Hearings, pp. 184, 190, 196, 197. 276 OCTOBER TERM, 1944. Roberts, J., dissenting. 324 U. S. them.3 The question of home work was again broached at the hearings at various points. Notwithstanding this, the bill, as reported to the Senate, contained no provision for the prohibition of home work. The measure was debated at length in that body. As it then stood, § 9 (6), dealing with administrative orders, which became § 8 (f) in the bill as enacted, provided that an order might contain terms and conditions the administrative authority should find necessary to carry out the purposes of the order to prevent circumvention or evasion, or to “safeguard the fair labor standards therein established.” It will be seen that this language is not materially different in meaning from that finally embodied in § 8 (f). An amendment was proposed from the floor to add the words “including the restriction or prohibition of industrial home work” and was agreed to. In order to expedite the adoption of the legislation, the House Committee limited its consideration to the bill passed by the Senate and reported it favorably with amendments. Without detailing the House proceedings, it is enough to say that ultimately a bill was presented largely embodying the provisions of Senate Bill No. 2475 but creating an administrator in lieu of a board. Section 9 (6), which related to wage orders, contained the same provisions respecting prohibition of home work as the Senate bill.4 The objections to the Senate bill in the House were such that a new measure was reported establishing fixed minimum wages and maximum hours and granting the Secretary of Labor only the power to declare that a particular industry was “an industry affecting commerce” and so subject to the Act. It contained no provision for administrative orders. During debate on this proposed 3 Ibid., p. 195. 4 82 Cong. Rec. 1511-1516, 1572-1577, 1580, 1585. GEMSCO, INC. v. WALLING. 277 244 Roberts, J., dissenting. bill a substitute was presented containing a section relating to wage orders, with provisions respecting home work the same as were contained in the Senate bill as passed and in the substitute theretofore offered to the House. The bill thus offered was rejected and the newly reported House bill was passed. Conferees were appointed amongst whom were the Senator who had first proposed the amendment respecting orders prohibiting home work and two of the Representatives who had presented bills containing similar provisions. The Conference Committee deliberated for a matter of twelve days and evidently gave the most meticulous care to each section of each of the bills before it. It in effect rewrote the measure. The Conference Report shows that the committee adopted the theory of the House bill fixing definite minimum standard wages to step up periodically in the future and also, as respects industry committees and interim orders based on industry committees’ reports, adopted the more flexible system embodied in the Senate bill. It is clear that in redrafting § 8 (f), which was § 9 (6) of the Senate bill, the conferees consciously and deliberately rejected the clause “including the restriction or prohibition of industrial home work or of such other acts or practices.” The Conference Report was accepted, the bill passed both houses, and was signed by the President. The Wage and Hour Division of the Department of Labor recognized that it had no power to abolish home work. In its First Annual Report, that Division stated (p. 14) that it was treating home workers as employes and not as independent contractors. In the same report (p. 31) the Division went into detail with respect to regulations for record keeping in respect of home work. At page 46, the Division said: “A difficult problem which has required the use of special inspectors and special techniques is that of industrial homework. It has been necessary to make elaborate and time-consuming investigations at the 637582°—46--22 278 OCTOBER TERM, 1944. Roberts, J., dissenting. 324U.S. establishment of the employer and in the homes of the workers.” That Division cooperated in the drafting of a bill (H. R. 5435)5 introduced by Representative Norton of the Labor Committee, which provided, inter alia: “The Administrator shall have power to make, issue, amend, and rescind such regulations and orders as are necessary or appropriate to carry out any of the provisions of this Act. Without limiting the generality of the foregoing, such regulations and orders may . . . make special provision with respect to, including the restriction of, home work subject to this Act to the extent necessary to safeguard the minimum standards provided in this Act or in any regulation or order issued pursuant thereto, . . The proposed amendment was debated at length and was defeated. With respect to it Representative Norton said:6 “I am sure that business would be less jittery about this law if the Administrator had the right to define the application of the law. Without this amendment he may not do so and some business has suffered as a result. I believe that he further needs the power to define technical and trade terms used in the act and the power to make special provisions with respect to industrial home work and make special provision for constant-wage plans consistent with section 7 relating to hours of work. Home work has long been a blot on the economic picture of this country, and I regret to say that in some cases employers have resorted to this means of employment to escape the provisions of this law.” Again she stated to the House:7 . we are proposing in section 4 of H. R. 5435 to authorize the Administrator to make rules and regulations to carry out any of the provisions of the act. This section 6 First Annual Report, 1939, p. 160. ® 84 Cong. Rec. 3498. 7 86 Cong. Rec. 5122. GEMSCO, INC. v. WALLING. 279 244 Roberts, J., dissenting. will also give him the right to define terms used in the act and make special provisions with respect to industrial home work. “As the act is now written it is extremely doubtful whether the wage and hour standards which it establishes can be enforced as to industrial home workers. Under present practice in industrial home work industries, the Administrator is unable to secure proper records on wages and hours of home workers. Business concerns relying on home work for their labor do not ordinarily deal directly with the home workers but turn over the goods or articles on which the work is to be done to contractors who employ the home workers. If time permitted, I could give you concrete examples of cruelty in this field. Section 4 of the amendments would give the Administrator the necessary authority to cope with this situation.” In the Annual Report of the Wage and Hour Division for 1940 industrial home work was discussed at page 89 and statements made as to the requirements of record keeping in respect of it. After the Wage and Hour Act had become law it developed that if the prescribed minimum hourly wages were enforced in Puerto Rico certain industries there, which consisted almost entirely of home work, would be destroyed. It was believed that the only relief which would correct the situation would be to amend the statute to abrogate the fixed minima named in § 6 to provide for an industry committee to fix lower standard wages for industries consisting largely of home workers ui the island. Such minima would be recommended by an industry committee and implemented by orders of the Administrator.8 The amendment was adopted in 1940. 8 See Annual Report, Wage and Hour Division, 1940, p. 113; Hearings Senate Committee on Appropriations, Emergency Relief Appropriation Act, 1941, p. 3; S. R. 1754, 76th Cong., 3d Sess., P- 5ff; H. R. No. 2186,76th Cong., 3d Sess., p. 15. 280 OCTOBER TERM, 1944. Roberts, J., dissenting. 324 U. S. Far from indicating any thought on the part of Congress or the Division that the Administrator was empowered to ban home work, this legislation, taken in connection with the defeat of H. R. 5435, indicates quite clearly that no one concerned either in the passage or the administration of the law had any notion that the Administrator was authorized to deal with the economic problem involved in home work. A section of the Wage and Hour Division’s Report for 1940 contained a discussion of enforcement of the Act with respect to home work, without any suggestion that the Administrator could deal with it by abolishing it. (p. 89) In the Report for 1941 the Division, for the first time, suggested that the Administrator had been considering, in connection with wage orders, the question : “Must homework be abolished as one of the terms and conditions of a wage order in order to safeguard and effectuate enforcement of the order.” (p. 64) Thus it appears that the Administrator, having failed to obtain explicit authority from Congress, began contemplating the effort to persuade the courts that he had implied authority in the premises. In the Report for 1942 (p. 19) all that appears is the following : “The problem of industrial homework has been one of the most important administrative questions since the inception of the Fair Labor Standards Act. For the guidance of the Administrator, the data were presented for the jewelry and knitted outerwear industries, showing conditions of industrial homework, the average earnings of homeworkers, the difficulties of enforcement of minimum wage provisions for homeworkers, and the methods of evasion of minimum wage regulations by workers and employers.” GEMSCO, INC. v. WALLING. 281 244 Roberts, J., dissenting. Though there was no declaration of a purpose to enter the sort of order now in question, it was, in fact, entered August 21, 1943. In the Report for 1943, for the first time, Congress was apprised of action being taken (p. 19) thus: “Enforcement measures established to protect the standards of the Act for factory employees have not been effective in controlling hours and wages of homeworkers. This failure prompted regulation of industrial homework under wage orders in industries in which homework is prevalent. These regulations are designed to protect factory employees against unfair wage competition. “Industrial homework in these industries is restricted to persons who are unable to adjust to factory work because of age or physical or mental disability or who are home-bound because of an invalid in the home and who have been engaged in the particular industry prior to a specified date. This latter requirement may be waived in unusual hardship cases. These restrictions were adopted after searching examination of the subject which included the opinions and convictions of representatives of management and labor. A total of 4,451 applications for industrial homework certificates have been received and 3,701 certificates have been granted.” But, by that time, this case had been taken to the Circuit Court of Appeals to test the validity of the order here under review. I would reverse the judgment. The Chief Justice joins in this opinion. 282 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. ROBINSON v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 514. Argued February 8, 1945.—Decided March 5, 1945. The Federal Kidnapping Act authorizes a sentence of death when recommended by the jury, “provided that the death sentence shall not be imposed by the court if, prior to its imposition, the kidnapped person has been liberated unharmed.” Held: 1. The fact that the injuries inflicted on the kidnapped person were not permanent, or were healed before imposition of sentence, did not bar the death penalty. P. 285. 2. In the case of a defendant who twice violently struck his victim on the head with an iron bar, inflicting injuries from which she was still suffering when liberated, and upon whom the death sentence was imposed, the proviso was not invalid for uncertainty in the meaning of the words “unharmed” and “liberated unharmed.” P. 286. 144 F. 2d 392, affirmed. Certiorari, 323 U. S. 808, to review the affirmance of a conviction and sentence of death for violation of the Federal Kidnapping Act. Mr. Robert E. Hogan for petitioner. Mr. Edward J. Ennis, with whom Solicitor General Fahy, Assistant Attorney General Tom C. Clark, Messrs. W. Marvin Smith, Robert S. Erdahl, and Miss Beatrice Rosenberg were on the brief, for the United States. Mr. Justice Black delivered the opinion of the Court. The petitioner was indicted and convicted in a District Court for violating the Federal Kidnapping Act, 47 Stat. 326, 48 Stat. 781, by transporting in interstate commerce a person whom he had kidnapped and held for a reward. The jury recommended and the court imposed the death penalty. The Circuit Court of Appeals affirmed, 144 F. ROBINSON v. UNITED STATES. 283 282 Opinion of the Court. 2d 392. We granted certiorari limited to the sole question of the court’s statutory authority to impose the death sentence. The Act authorizes the death sentence when recommended by a jury “provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnapped person has been liberated unharmed.” The indictment charged, and there was evidence before the jury, to the effect that the kidnapping victim yielded to capture only after the petitioner had twice violently struck her on the head with an iron bar; that while held in custody her lips were abrased and made swollen by repeated applications of tape on her mouth; and that wounds resulting from these assaults were not healed when she was liberated after six days’ captivity. No evidence was introduced, nor did the indictment charge, that the injuries inflicted were permanent, or that the victim still suffered from them when the petitioner was sentenced, nine years after commission of the offense.1 The trial court charged the jury that in determining whether the victim had been “liberated unharmed” they were limited to a consideration of her condition at the time she was liberated, and that they were not authorized to recommend the death penalty if at the time of her liberation she had recovered from her injuries. Petitioner took no exception to the charge, and asked no other. Its correctness is before us only to the extent that we are asked to say that the injuries inflicted must be permanent or they must be in existence at the time of sentence in order to authorize the infliction of the death sentence. The scant legislative history of the Act is of little assistance to us in interpreting this proviso. Two possible rea- 1 Petitioner pleaded guilty to the offense in 1936. In August, 1943, a district court held his plea of guilty invalid on the ground that he had been denied counsel. This appeal is from a trial which took place in October, 1943. See Robinson v. Johnston, 118 F. 2d 998; 316 U- S. 649; 130 F. 2d 202; 50 F. Supp. 774. 284 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. sons suggest themselves, however, as to the motivation of Congress in making the severity of a kidnapper’s punishment depend upon whether his victim has been injured. The first reason is the old belief that the severity of the injury should measure the rigor of the punishment. If this be the reasoning implicit in the statute, it would appear that Congress intended that for a kidnapper to obtain the benefit of the proviso he must both liberate and refrain from injuring his victim. Congress may equally have intended this provision as a deterrent, on the theory that kidnappers would be less likely to inflict violence upon their victims if they knew that such abstention would save them from the death penalty. This assumption finds some slight support in the legislative history,2 3 is not contested by the government, has been accepted in one case 8 and is the chief prop for the interpretation which the petitioner urges. He argues upon this assumption that the wider the scope of the exemption from the death penalty, the greater the inducement for the kidnapper to release the victim. To magnify the inducement, we are asked to interpret the proviso as granting immunity from the death sentence to any kidnapper who does not permanently injure his victim. We cannot ex- 2 When the original kidnapping bill was passed by the Senate it did not provide for a death penalty. The House Committee on the Judiciary reported it to the floor with an amendment which authorized a death penalty unless the jury recommended mercy. 75 Cong. Rec., Part 12, 13294. Considerable opposition to the death sentence developed in the ensuing debate. Ib. pp. 13282-13304. Some of the opposition rested on the argument that the death penalty would cause kidnappers to kill their victims rather than release them because of fear that a liberated victim could send a kidnapper to the electric chair, lb. PP-13285, 13304. The bill as passed did not authorize the death penalty, 47 Stat. 326. Two years later an amendment was passed containing the present proviso. 48 Stat. 781. Its legislative history throws no additional light on its purpose. 3 United States v. Parker, 19 F. Supp. 450, 103 F. 2d 857. ROBINSON v. UNITED STATES. 285 282 Opinion of the Court. pand the meaning of the statute on such a hypothesis and we turn to its language. We accept the word “unharmed” appearing in the proviso as meaning uninjured. Neither the word “permanent” nor any other word susceptible of that meaning was used by Congress. The quality of the injury to which Congress referred is not defined. It may be possible that some types of injury would be of such trifling nature as to be excluded from the category of injuries which Congress had in mind. We need indulge in no speculation in regard to such a category. The injuries inflicted upon this victim were of such degree that they can not be read out of the Act’s scope without contracting it to the point where almost all injuries would be excluded. We find no justification whatever for grafting the word “permanent” onto the language which Congress adopted. Nor can we construe the proviso as precluding the death sentence where the kidnapped person’s injuries have been healed at the time sentence is imposed. It is not to be assumed that Congress intended a matter of such grave consequence to defendants and the public to turn on the fortuitous circumstance of the length of time that a case is pending in the courts. Far too many contingencies are involved, for example, the time it takes to apprehend a criminal, the condition of the trial docket, and the uncertainties of appeals. We would long hesitate before interpreting the Act so as to make the severity of sentence turn upon the date sentence is ultimately imposed, even if the language of the Act more readily lent itself to such a construction than this one does. At the very least, the proviso s language must mean that the kidnapped person shall not be suffering from injuries when liberated; the kidnapped person here was still suffering from her injuries when liberated. Nevertheless it is argued that the death penalty proviso should be held invalid on the ground that there is uncer- 286 OCTOBER TERM, 1944. Rutledge, J., dissenting. 324U.S. tainty as to the precise meaning and scope of the word “unharmed” and the phrase “liberated unharmed.” In most English words and phrases there lurk uncertainties. The language Congress used in this Act presents no exception to this general truth. One thing about this Act is not uncertain, and that is the clear purpose of Congress to authorize juries to recommend and judges to inflict the death penalty, under certain circumstances, for kidnappers who harmed their victims. And we cannot doubt that a kidnapper who violently struck the head of his victim with an iron bar, as evidence showed that this petitioner did, comes within the group Congress had in mind. This purpose to authorize a death penalty is clear even though Congress did not unmistakably mark some boundary between a pin prick and a permanently mutilated body. It is for Congress and not for us to decide whether it is wise public policy to inflict the death penalty at all. We do not know what provision of law, Constitutional or statutory, gives us power wholly to nullify the clearly expressed purpose of Congress to authorize the death penalty because of a doubt as to the precise congressional purpose in regard to hypothetical cases that may never arise. The trial court committed no error of which this petitioner can complain. Affirmed. Mr. Justice Rutledge, dissenting. The penalty of death should not be imposed upon conditions defined so uncertainly that their identity cannot be ascertained or is left open to grave doubt. If words ever need to be clear, they do when they perform this function. I do not know what Congress meant when it commanded that “the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnapped person has been liberated unharmed.” 48 Stat. 781. ROBINSON v. UNITED STATES. 287 282 Rutledge, J., dissenting. The words have the sound of certainty which simple, everyday language gives forth. The certainty is only illusion. What does “liberated unharmed” mean? The statute does not tell us. Nor does the legislative history? Neither does the Court’s opinion. It rather demonstrates the statute’s ambiguity. It does not say what Congress meant. It says only that Congress meant one of two things, and either would cover this case.2 A third possible construction, put forward by petitioner, is rejected. The statute, it is held, does not mean that the death penalty can be imposed only when the injuries inflicted are permanent or, presumably, only when they remain at the time of sentence, though not permanent. The Court does not say what “liberated” means. Nor does it define “unharmed,” except that it excludes the injury inflicted in this case. What act is pointed to by “liberated”? Does it refer only to release by the kidnapper or does it include a case of rescue overcoming his will and purpose? Does it cover his abandonment of the victim in flight, leaving him perhaps gagged and bound in some lonely spot or cell, not free but no longer in the kidnapper’s power? Or must he, before the pressures become too great, change his mind, exercise discretion and set the victim free before he is forced to do so? Similarly, what is “unharmed”? A scratch, a cut, abrasions left by removal of tape or rope, bruises, nervous xThe Government’s brief candidly states: “The interpretation of the proviso here involved must be determined from the face of the statute itself since neither the legislative history nor prior state legislation offers guidance.” No hearings were held on the 1934 amendments, providing for the death penalty. They were accepted upon conference reports by both houses without debate. H. Rep. No. 1595, 73d Cong., 2d Sess.; 78 Cong. Rec. 8775, 8856-8857. Neither H. Rep. No. 1595 nor H. Rep. No. 1457, 73d Cong., 2d Sess., gives light on the meaning of the limitation. 2 Cf. note 3. 288 OCTOBER TERM, 1944. Rutledge, J., dissenting. 324U.S. shock, disturbance of digestion, all of a kind which heals or passes before “liberation” occurs? Few kidnappings take place without harm of some kind to the victim. They may be executed by force or by mere threats. One produces traumatic injury, from minor abrasion to death, the other nervous or mental shock of momentary or lifetime duration. How much injury, and what kind, did Congress have in mind? Is the death penalty to be imposed for the identical cut or abrasion, whether minor or serious, inflicted during the act of taking the victim, merely because in one case the kidnapper releases or abandons him quickly, perhaps because forced to do so, but forbidden in another because he holds the victim until the injury heals? Is reward thus to be given for prolonging the agony? Is the jury to range throughout the category of human ills, not only to find that injury has been inflicted but to evaluate whether those ills are “injuries” within the meaning of the statute? Or is this a question of law to be determined by the judge upon some vague criterion of “trifling nature” such as the opinion appears to suggest? Whether Congress meant all injuries, slight, substantial, serious or permanent, or only some of these, the statute does not say and the legislative history gives no guide. The judge, or the jury, or both together not only must apply, they must determine and write the law in this respect, until at any rate this Court, equally without legislative guidance, tells them what Congress had in mind. There are still other uncertainties. Was it the intent (1) that the kidnapper must both liberate and refrain from injuring his victim or (2) merely that he must not inflict harm, however the liberation may occur? We are not told what was Congress’ purpose, whether to measure the rigor of the punishment by the severity of the injury or to induce kidnappers not to use violence at all, deter- ROBINSON v. UNITED STATES. 289 282 Rutledge, J., dissenting. ring them by the threat of death for its use in whatever degree.8 Neither the legislative history nor the opinion gives light on this question. If Congress wished to induce gentle kidnappings, injuries inflicted in the course of the act of kidnapping are covered, provided they remain at the time of “liberation.” They would not be included, if healed before it, however grave when inflicted or however distant liberation from infliction. What if the kidnapper, knowing that time is crucial, keeps his victim until the injuries are healed? Was it Congress’ purpose to induce longer detention, the more serious the injury inflicted during the original act? What if it is inflicted afterward, but during the course of the detention? Once injury has taken place, the inducement held out by the statute necessarily is either to hold the victim until cure is effected or to do away with him so that evidence, both of the injury and of the kidnapping, is destroyed.3 4 The more serious 3 At one point the opinion declines to express a choice between these possible alternatives. At another it states “the clear purpose of Congress” was to authorize “the death penalty, under certain circumstances, for kidnappers who harmed their victims.” Is this to be taken as deciding that “liberated unharmed” means “liberated not having been harmed at all” ? If so, the Court’s view differs from the Government’s, which is that the words mean “unharmed at the time of liberation.” Cf. note 5. Moreover, the opinion, if so effective, invites for the victim the very danger Congress sought to avoid by placing the limitation upon the power to impose the sentence. 4 These considerations for the safety of the victim, recently dramatized by the Lindbergh case, were influential in bringing about the omission from the original Kidnapping Act of 1932 (47 Stat. 326) of any provision for the death penalty. Representative Celler stated them thus: “If you insist upon the death penalty, I wager that you will inflict a penalty on the victim who is kidnapped. The victim may be murdered or slain because the prisoner [sic] has nothing to gain by the victim being kept alive, because he forfeits his own life, in any event. . . . The person kidnapped is the witness who, even when 290 OCTOBER TERM, 1944. Rutledge, J., dissenting. 324U.S. the injury the stronger these inducements. It is only upon such considerations, affecting the victim’s safety, that Congress’ qualification of the power to impose the sentence of death can be accounted for.5 Finally, was Congress attempting to offer the maximum inducement to liberation? If this was the purpose, petitioner’s construction, rejected by the Court, has more force than the other possible ones among which it declines to choose. For in that event the kidnapper would have inducement, once injury is inflicted, though serious, to rescued, can always point the accusing finger at the guilty. Doing away with the victim would save the life of the guilty.” 75 Cong. Rec. 13285. See 75 Cong. Rec. 13282-13304 for other statements opposing the extreme penalty. From the viewpoint of possible effectiveness in securing the victim’s safety, the qualification imposed by the 1934 Act would seem to be directed more toward the kinds of danger Congress had in mind during the 1932 debate than toward preventing all use of force in the kidnapping act itself. Cf. note 5 and United States v. Parker, 19 F. Supp. 450, affirmed, 103 F. 2d 857, cert, denied, 307 U. S. 642. 6 The Government has urged adoption of the construction which takes account of these considerations. The brief states: “The words ‘liberated unharmed’.. . are subject to two interpretations. They may be construed to mean liberated without having been harmed at any time in the course of detention, or . . . liberated in an unharmed condition at the time of liberation. The first construction attributes to Congress the intention to cause kidnappers not to harm the victim but without tending to secure liberation of a victim who has been harmed. The second construction offers the kidnapper an inducement, in addition to the inducement not to harm, to care for and to cure an injured victim so that he may be unharmed when liberated. The second construction encourages kidnappers not to murder an injured victim, an inducement not present under the first construction. In view of the temptation to kidnappers to murder their victims in order to dispose of witnesses to their crime, and in view of the interest disclosed in Congress to avoid a death penalty provision which would encourage this result, the Government submits that the second construction more properly reflects the intention of Congress and should be adopted.” (Emphasis added.) ROBINSON v. UNITED STATES. 291 282 Rutledge, J., dissenting. surrender the victim in the hope that care after surrender might bring about cure before imposition of sentence. If the single and vague word “unharmed” is construed to mean absence of permanent injury or grave injury, though not permanent, he would have the hope, the inducement that surrender might give escape from the maximum sentence. Contrary to the Court’s view that this interpretation is impossible, it goes directly to the unanswered questions, how much and what kinds of injury Congress had in mind; and to adopt it would accord with the rule that criminal statutes should be strictly construed. Moreover it would apply in this case, since there is no evidence of permanent injury or even that the injuries inflicted were critical at the time of the victim’s release. She testified at the trial. It is true this construction would make imposition of that penalty depend upon fortuitous circumstances, the length of time between release and sentence, as well as the chances of the victim to recover and their successful working out in that period. But any other construction either makes it depend upon circumstances equally fortuitous or has the inevitable effect, in many cases, of holding out inducement to the kidnapper to inflict the ultimate harm rather than to refrain from inflicting harm at all. Petitioner’s construction more than any other takes into account the victim’s safe surrender. Once the victim is hurt, the kidnapper’s problem of what to do with him becomes inescapable and the provision for the extreme penalty can work only to defeat or defer liberation. Was this what Congress intended, knowing that few kidnappings can occur in which some substantial harm will not be done? I doubt that Congress intended these consequences. I do not know from its words what it did intend. The opinion does not enlighten me, except that this case is one of possibly many, vaguely indicated, which may have been in mind. Congress has broad power to prescribe 292 OCTOBER TERM, 1944. Rutledge, J., dissenting. 324U.S. penalties for crime, including death. It may give wide discretion to courts in selecting from a broad range of defined penalties to fit the individual case. Within limits this discretion may include the death penalty. It is one thing, however, for Congress to confer the discretion confined by specified and ascertainable limits. It is another thing for Congress itself to turn the exercise of the conferred discretion upon conditions which cannot be ascertained from its mandate or can be located only with the greatest uncertainty. Two things are clear. Congress did not intend the death penalty to apply to all convictions under the statute. Nor was its imposition intended to rest absolutely or exclusively either upon the jury’s recommendation or in the court’s discretion. The purpose obviously was to forbid it in some cases. But these can be determined only by choice among conflicting inferences which set one purpose Congress may have had in mind at war with others equally attributable to it. This case involves the law’s extreme penalty. That penalty should not rest on doubtful command or vague and uncertain conditions. The words used here, for its imposition, are too general and unprecise, the purposes Congress had in using them too obscure and contradictory, the consequences of applying them are too capricious, whether for the victim or for the kidnapper, to permit their giving foundation for exercise of the power of life and death over the citizen, though he be a convicted criminal. Other penalties might be rectified with time, if wrong. This one cannot be. Moreover, the Court’s refusal to resolve the statutes admitted ambiguity leaves hanging over the heads of future victims the danger which flows from “a death penalty provision which would encourage” the same irreparable fate for them. When that fate falls it will not be “hypothetical” and there will be nothing either we or Congress can do to revoke it. U. S. v. FRANKFORT DISTILLERIES. 293 282 Syllabus. I think the statute turns the power to impose the death penalty upon facts so vaguely defined that only judicial legislation can remedy the defect. This is not the kind of thing courts should be left to work out case by case through the “gradual process of inclusion and exclusion.” This business rather belongs to Congress, not to the courts. As the Court’s opinion states, though I think in contradiction of its judgment, “It is for Congress and not for us to decide whether it is wise public policy to inflict the death penalty at all.” Congress’ mandate in such matters must be clear; otherwise we, not Congress, decide. In this one it is beyond understanding. I would vacate the judgment and remand the cause for the petitioner to be resentenced. Mr. Justice Murphy joins in this opinion. UNITED STATES v. FRANKFORT DISTILLERIES, INC. NO. 523. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.* Argued February 8, 1945.—Decided March 5, 1945. 1. A conspiracy of producers, wholesalers and retailers to fix and maintain retail prices of alcoholic beverages shipped into a State, by adoption of a single course in making contracts of sale and boycotting others who would not conform, held a violation of the Sherman Antitrust Act. P. 296. 2. Neither the Miller-Tydings Amendment of the Sherman Act nor the Colorado Fair Trade Act permits combinations of businessmen to coerce others into making “fair trade” contracts. P. 296. *Together with No. 524, United States v. National Distillers Products Corp.; No. 525, United States v. Brown Forman Distillers Corp.; No. 526, United States v. Hiram Walker, Inc.; No. 527, United States v. Schenley Distillers Corp.; No. 528, United States v. Seagram-Distillers Corp.; No. 529, United States v. McKesson & Robbins, Inc.; and No. 530, United States v. Speegle, also on certiorari to the Circuit Court of Appeals for the Tenth Circuit. 637582 s—46-23 294 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. 3. The fact that the ultimate object of the conspiracy was the fixing or maintenance of local retail prices did not render the Sherman Act inapplicable. P. 298. 4. The Twenty-First Amendment of the Constitution does not preclude prosecution of the violation of the Sherman Act here alleged. P.299. 5. The Twenty-First Amendment conferred upon the States broad regulatory power over the liquor traffic within their boundaries, but did not give the States plenary and exclusive power to regulate the conduct of persons doing an interstate liquor business. P. 299. 144 F. 2d 824, reversed. Certiorari, 323 U. S. 699, to review the reversal of a conviction, 47 F. Supp. 160, of violation of the Sherman Antitrust Act. Mr. Edward H. Lem, with whom Solicitor General Fahy, Assistant Attorney General Berge, Messrs. Charles H. Weston and Matthias N. Or field were on the brief, for the United States. Mr. Robert S. Marx, with whom Messrs. Thomas Kiernan, Newell W. Ellison, A. H. Stuart, C. Frank Reavis and George R. Beneman were on the brief, for respondents. Mr. Justice Black delivered the opinion of the Court. Respondents are producers, wholesalers, and retailers, of alcoholic beverages, who were indicted in a federal district court for having conspired and combined to restrain commerce in violation of § 1 of the Sherman Act as amended. 26 Stat. 209; 50 Stat. 693. Their demurrers and motion to quash having been overruled, respondents pleaded nolo contendere to one count of the indictment. On these pleas they were adjudged guilty by the District Court and fined. 47 F. Supp. 160. The Circuit Court of Appeals reversed, on the ground that the indictment failed to show that the conspiracy charged was in restraint of U. S. V. FRANKFORT DISTILLERIES. 295 293 Opinion of the Court. interstate commerce. 144 F. 2d 824. The importance of the questions involved prompted us to grant certiorari.1 The indictment alleged that 98% of the spirituous liquors and 80% of the wines consumed in Colorado were shipped there from other states. The annual shipments into the state were 1,150,000 gallons of liquors and 800,000 gallons of wine. Seventy-five percent of these beverages were handled by the defendant wholesalers. Respondents were charged with conspiring, in violation of the Sherman Act, to raise, fix and maintain the retail prices of all these beverages by raising, fixing, and stabilizing retail markups and margins of profit. To accomplish the objects of the conspiracy, it is alleged that they adopted the following course of action. All of the respondents agreed amongst themselves to (1) discuss, agree upon and adopt arbitrary non-competitive retail prices, markups, and margins of profit; (2) defendant retailers and wholesalers agreed to persuade and compel producers to enter into fair trade contracts on every type and brand of alcoholic beverage shipped into the state, thereby to establish arbitrarily high and non-competitive retail markups and margins of profit, agreed upon by defendants; (3) the retailers were to prepare and adopt forms of fair trade contracts, and agree with producers and wholesalers upon these forms; (4) a boycott program was adopted by all of the defendants under which retailers would refuse to buy any of the beverages sold by wholesalers or producers who refused to enter into or enforce compliance with the terms of the price-fixing agreements, and non-complying retailers would be denied an opportunity to buy the goods of the defendant producers and wholesalers. Machinery was set up to make the boycott program effective. 1323U. S.699. 296 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. The facts alleged in the indictment, which stand admitted on demurrer, and on the plea of nolo contendere, indicate a pattern which bears all the earmarks of a traditional restraint of trade. The participants are producers, middlemen, and retailers. They have agreed among themselves to adopt a single course in making contracts of sale and to boycott all others who would not adopt the same course. The effect, and if it were material, the purpose of the combination charged, was to fix prices at an artificial level. Such combinations, affecting commerce among the states, tend to eliminate competition, and violate the Sherman Act per se. United States v. Socony Vacuum Co., 310 U. S. 150, 223-224. Price maintenance contracts fall under the same ban, Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 458, except as provided by the 1937 Miller-Tydings Amendment to the Sherman Act. 50 Stat. 693. The combination charged against respondents does not fall within this exception. It permits the seller of an article which bears his trade mark, brand, or name, to prescribe a minimum resale price by contract, if such contracts are lawful in the state where the resale is to be made and if the trade-marked article is in free and open competition with other articles of the same commodity. This type of “Fair Trade” price maintenance contract is lawful in Colorado. Session Laws of Colorado, 1937, Chap. 146. But the Miller-Tydings Amendment to the Sherman Act does not permit combinations of businessmen to coerce others into making such contracts, and Colorado has not attempted to grant such permission. Both the federal and state “Fair Trade” Acts expressly provide that they shall not apply to price maintenance contracts among producers, wholesalers and competitors. It follows that whatever may be the rights of an individual producer under the Miller-Tydings Amendment to make price maintenance contracts or to refuse to sell his goods to those who U. S. v. FRANKFORT DISTILLERIES. 297 293 Opinion of the Court. will not make such contracts, a combination to compel price maintenance in commerce among the states violates the Sherman Act. United States v. Bausch & Lomb Co., 321U. S. 707, 719-723. United States v. Univis Lens Co., 316 U. S. 241, 252-253. Consequently, respondents were properly convicted, unless as they argue, their conduct is not covered by the Sherman Act, either because the price fixing applied only to retail sales which were wholly intrastate, or because the state’s power to control the liquor traffic within its boundaries makes the Sherman Act inapplicable. These two questions thus posed relate to the extent of the Sherman Act’s application to trade restraints resulting from actions which take place within a state. In resolving them, there is an obvious distinction to be drawn between a course of conduct wholly within a state and conduct which is an inseparable element of a larger program dependent for its success upon activity which affects commerce between the states. It is true that this Court has on occasion determined that local conduct could be insulated from the operation of the Anti-Trust laws on the basis of the purely local aims of a combination, insofar as those aims were not motivated by the purpose of restraining commerce, and where the means used to achieve the purpose did not directly touch upon interstate commerce. The cases relied upon by respondents2 fall within this category. All of them involved the application of the Anti-Trust laws to combinations of businessmen or workers in labor disputes, and not to interstate commercial transactions. On the other hand, the sole ultimate object of respondents’ combination in the in- 2 Industrial Association of San Francisco v. United States, 268 U. S. 64; Levering & Garrigues Co. v. Morrin, 289 U. S. 103; United Leather Workers v. Herkert & Meisel Trunk Co., 265 U. S. 457; cf. Local 167 v- United States, 291 U. S. 293, 297, and United States v. Hutcheson, 312 U. S. 219. 298 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. stant case was price fixing or price maintenance. And with reference to commercial trade restraints such as these, Congress, in passing the Sherman Act, left no area of its constitutional power unoccupied; it “exercised all the power it possessed.” Apex Hosiery Co. n. Leader, 310 U. S. 469,495. The fact that the ultimate object of the conspiracy charged was the fixing or maintenance of local retail prices, does not of itself remove it from the scope of the Sherman Act; retail outlets have ordinarily been the object of illegal price maintenance.3 Whatever was the ultimate object of this conspiracy, the means adopted for its accomplishment reached beyond the boundaries of Colorado. The combination concerned itself with the type of contract used in making interstate sales; its coercive power was used to compel the producers of alcoholic beverages outside of Colorado to enter into price-maintenance contracts. Nor did the boycott used merely affect local retail business. Local purchasing power was the weapon used to force producers making interstate sales to fix prices against their will. It may be true, as has been argued, that under Colorado law, retailers are prohibited from buying from out-of-state producers, but this fact has no relevancy. The power of retailers to coerce out-of-state producers can be just as effectively exercised through pressure brought to bear upon wholesalers as though the retailers brought such pressure to bear directly upon the producers. And combinations to restrain, by a boycott of those engaged in interstate commerce, through such indirect coercion is prohibited by the Sherman Act.4 8 See, e. g., Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, 404; Ethyl Gasoline Corp. v. United States, 309 U. S. 436; United States v. Univis Lens Co., 316 U. S. 241, 244, 245. 4 Fashion Originators' Guild n. Federal Trade Commission, 312 U. S. 457, 465; Loewe v. Lawlor, 208 U. S. 274. U. S. v. FRANKFORT DISTILLERIES. 299 293 Opinion of the Court. It is argued that the Twenty-first Amendment to the Constitution bars this prosecution. That Amendment bestowed upon the states broad regulatory power over the liquor traffic within their territories.5 It has not given the states plenary and exclusive power to regulate the conduct of persons doing an interstate liquor business outside their boundaries. Granting the state’s full authority to determine the conditions upon which liquor can come into its territory and what will be done with it after it gets there, it does not follow from that fact that the United States is wholly without power to regulate the conduct of those who engage in interstate trade outside the jurisdiction of the State of Colorado. The Sherman Act is not being enforced in this case in such manner as to conflict with the law of Colorado. Those combinations which the Sherman Act makes illegal as to producers, wholesalers and retailers are expressly exempted from the scope of the Fair Trade Act of Colorado, and thus have no legal sanction under state law either.6 We therefore do not have here a case in which the Sherman Act is applied to defeat the policy of the state. That would raise questions of moment which need not be decided until they are presented. The judgment of the Cir- 5 Carter v. Virginia, 321 U. S. 131; Ziff tin, Inc. v. Reeves, 308 U. S. 132, 138; State Board v. Young’s Market Co., 299 U. S. 59. 6 The Colorado Fair Trade Act, 1937 Col. Session Laws, Ch. 146, provides that under certain conditions sellers of commodities can contract with buyers not to resell, and to require subsequent purchasers not to resell, at less than the minimum price stipulated by the seller. But that Act specifically provides that it shall not apply to horizontal agreements, “to any contract or agreement between or among producers or between or among wholesalers or between or among retailers as to sale or resale prices.” The Colorado Unfair Practices Act, 1941 Col. Session Laws, Ch. 227, amending and reenacting 1937 Col. Session Laws, Ch. 261, makes it unlawful to sell goods below cost to injure or destroy competition, and states that the express purpose of the Act is “to safeguard the public against ... monopolies and to foster and encourage competition.” 300 OCTOBER TERM, 1944. Frankfurter, J., concurring. 324U.S. cuit Court of Appeals is reversed and that of the District Court is affirmed. It is so ordered. The Chief Justice took no part in the consideration or decision of this case. Mr. Justice Frankfurter, concurring. The Twenty-first Amendment made a fundamental change, as to control of the liquor traffic, in the constitutional relations between the States and national authority. Before that Amendment—disregarding the interlude of the Eighteenth Amendment—alcohol was for constitutional purposes treated in the abstract as an article of commerce just like peanuts and potatoes. As a result, the power of the States to control the liquor traffic was subordinated to the right of free trade across state lines as embodied in the Commerce Clause. The Twenty-first Amendment reversed this legal situation by subordinating rights under the Commerce Clause to the power of a State to control, and to control effectively, the traffic in liquor within its borders. The course of legal history which made necessary the Twenty-first Amendment in order to permit the States to control the liquor traffic, according to their notions of policy freed from the restrictions upon state power which the Commerce Clause implies as to ordinary articles of commerce, was summarized in my concurring opinion in Carter v. Virginia, 321 U. S. 131, 139. As a matter of constitutional law, the result of the Twenty-first Amendment is that a State may erect any barrier it pleases to the entry of intoxicating liquors. Its barrier may be low, high, or insurmountable. Of course, if a State chooses not to exercise the power given it by the Twenty-first Amendment and to continue to treat intoxicating liquors like other articles, the operation of the Commerce Clause continues. Since the Commerce Clause U. S. v. FRANKFORT DISTILLERIES. 301 293 Frankfurter, J., concurring. is subordinate to the exercise of state power under the Twenty-first Amendment, the Sherman Law, deriving its authority from the Commerce Clause, can have no greater potency than the Commerce Clause itself. It must equally yield to state power drawn from the Twenty-first Amendment. And so, the validity of a charge under the Sherman Law relating to intoxicating liquors depends upon the utilization by a State of its constitutional power under the Twenty-first Amendment. If a State for its own sufficient reasons deems it a desirable policy to standardize the price of liquor within its borders either by a direct price-fixing statute or by permissive sanction of such pricefixing in order to discourage the temptations of cheap liquor due to cutthroat competition, the Twenty-first Amendment gives it that power and the Commerce Clause does not gainsay it. Such state policy can not offend the Sherman Law even though distillers or middlemen agree with local dealers to respect this policy. If an agreement among local dealers not to buy liquor through channels of interstate commerce does not offend the Sherman Law though a like agreement as to other commodities would, an agreement among liquor dealers to abide by state policy for a uniform price—which is far less restrictive of interstate commerce than a comprehensive boycott—can hardly be a violation of the Sherman Law. Thus the question in this case, as I see it, is whether in fact the policy of Colorado sanctions such an arrangement as the indictment charges. Such a policy may be expressed either formally by legislation or by implied permission. Unless state policy is voiced either by legislation or by state court decisions, it is precarious business for an outsider to be confident about the legal policy of a State. So far as our attention has been called to materials relevant for ascertaining the policy of Colorado toward such a price arrangement as is here charged, it would be temerarious to suggest that Colorado does sanction it. Indeed, the leg- 302 OCTOBER TERM, 1944. Frankfurter, J., concurring. 324U.S. islation of Colorado looks in the opposite direction. And we have no guidance from state decisions to suggest that the apparent condemnation of such an arrangement under the Colorado Fair Trade Act, § 2, Colo. Stat. Ann., ch. 165, § 20 (2), does not condemn the price arrangements before us. Although the Attorney General of Colorado has filed a brief as amicus curiae on the side of the respondents, his argument is not based on the contention that the policy of Colorado sanctions that which it is claimed the Sherman Law forbids. In the view I take of the matter, if a State authorized the transactions here complained of, the Sherman Law could not override such exercise of state power. For, in any event, if state policy did so authorize it, conformity with the state policy could not be deemed an “unreasonable” restraint of interstate commerce. But I do not find that Colorado has done so. The decision of the court below is not without support in what has been said in. the past in holding that, apart from the Twenty-first Amendment, this was a restraint local in its nature and therefore outside the scope of the Sherman Law. But price-fixing is such an immediate restraint upon trade that I do not think that the reach of the consequences of such an obvious restraint should be determined by drawing too nice lines as a matter of pleading. The case is before us, in effect, on demurrer to the indictment and judged abstractly, as a matter of pleading, I cannot say that the indictment was demurrable. Mr. Justice Roberts concurs in this opinion. COMMISSIONER v. WEMYSS. 303 Opinion of the Court. COMMISSIONER OF INTERNAL REVENUE v. WEMYSS. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 629. Argued January 9, 1945.—Decided March 5, 1945. 1. Pursuant to an antenuptial agreement, respondent made a transfer of property to his prospective wife in consideration of her promise of marriage and to compensate for her loss of trust income which upon her marriage would go to a child by a former marriage. Held that, under §§ 501 and 503 of the Revenue Act of 1932 and applicable Treasury Regulations, the transfer was a taxable gift in its entirety. P. 306. 2. The decision of the Tax Court that the transfer was not made for a “consideration in money or money’s worth,” within the meaning of § 503, is binding on review. P. 307. 3. To relieve a transfer from the gift tax under the Revenue Act of 1932 there must be a consideration in money or money’s worth of benefit to the transferor; detriment to the transferee is insufficient. P. 307. 144 F. 2d 78, reversed. Certiorari, 323 U. S. 703, to review the reversal of a decision of the Tax Court, 2 T. C. 876, sustaining the Commissioner’s determination of a deficiency in federal gift taxes. Miss Helen R. Carloss, with whom Solicitor General Fahy, Assistant Attorney General Samuel O. Clark, Jr., Messrs. Sewall Key and I. Henry Kutz were on the brief, for petitioner. Mr. Cecil Sims for respondent. Mr. Justice Frankfurter delivered the opinion of the Court. In 1939 taxpayer proposed marriage to Mrs. More, a widow with one child. Her deceased husband had set up 304 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. two trusts, one half the income of which was for the benefit of Mrs. More and the other half for that of the child with provision that, in the event of Mrs. More’s remarriage, her part of the income ceased and went to the child. The corpus of the two trusts consisted of stock which brought to Mrs. More from the death of her first husband to her remarriage, about five years later, an average income of $5,484 a year. On Mrs. More’s unwillingness to suffer loss of her trust income through remarriage the parties on May 24, 1939, entered upon an agreement whereby taxpayer transferred to Mrs. More a block of shares of stock. Within a month they married. The Commissioner ruled that the transfer of this stock, the value of which, $149,-456.13, taxpayer does not controvert, was subject to the Federal Gift Tax, §§ 501 and 503 of the Revenue Act of 1932, 47 Stat. 169, 245, 247, 26 U. S. C. §§ 1000, 1002. Accordingly, he assessed a deficiency which the Tax Court upheld, 2 T. C. 876, but the Circuit Court of Appeals reversed the Tax Court, 144 F. 2d 78. We granted certiorari to settle uncertainties in tax administration engendered by seemingly conflicting decisions. 323 U. S. 703. The answer to our problem turns on the proper application of §§ 501 (a) and 503 supra to the immediate facts. These provisions are as follows: “Sec. 501. Imposition of Tax. (a) For the calendar year 1932 and each calendar year thereafter a tax, computed as provided in section 502, shall be imposed upon the transfer during such calendar year by any individual ... of property by gift.” “Sec. 503. Transfer for less than adequate and full CONSIDERATION. Where property is transferred for less than an adequate and full consideration in money or money’s worth, then the amount by which the value of the property exceeded the value of the consideration shall, for the purpose of the tax imposed by this title, be deemed a gift, and shall be COMMISSIONER v. WEMYSS. 305 303 Opinion of the Court. included in computing the amount of gifts made during the calendar year.” In view of the major role which the Tax Court plays in Federal tax litigation, it becomes important to consider how that court dealt with this problem. Fusing, as it were, §§ 501 and 503, the Tax Court read them as not being limited by any common law technical notions about “consideration.” And so, while recognizing that marriage was of course a valuable consideration to support a contract, the Tax Court did not deem marriage to satisfy the requirement of § 503 in that it was not a consideration reducible to money value. Accordingly, the Court found the whole value of the stock transferred to Mrs. More taxable under the statute and the relevant Treas. Reg. 79 (1936 ed.) Art. 8: “A consideration not reducible to a money value, as love and affection, promise of marriage, etc., is to be wholly disregarded, and the entire value of the property transferred constitutes the amount of the gift.” In the alternative, the Tax Court was of the view that if Mrs. More’s loss of her trust income rather than the marriage was consideration for the taxpayer’s transfer of his stock to her, he is not relieved from the tax because he did not receive any money’s worth from Mrs. More’s relinquishment of her trust income, and, in any event, the actual value of her interest in the trust, subject to fluctuations of its stock earnings, was not proved. One member of the Tax Court dissented, deeming that the gift tax legislation invoked ordinary contract conceptions of “consideration.” The Circuit Court of Appeals rejected this line of reasoning. It found in the marriage agreement an arm’s length bargain and an absence of “donative intent” which it deemed essential: “A donative intent followed by a donative act is essential to constitute a gift; and no strained and artificial construction of a supplementary statute should be indulged to tax as a gift a transfer actually lacking donative intent.” 144 F. 2d 78, 82. 306 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. Sections 501 and 503 are not disparate provisions. Congress directed them to the same purpose, and they should not be separated in application. Had Congress taxed “gifts” simpliciter, it would be appropriate to assume that the term was used in its colloquial sense, and a search for “donative intent” would be indicated. But Congress intended to use the term “gifts” in its broadest and most comprehensive sense. H. Rep. No. 708, 72d Cong., 1st Sess., p. 27; S. Rep. No. 665, 72d Cong., 1st Sess., p. 39; cf. Smith n. Shaughnessy, 318 U. S. 176; Robinette v. Helvering, 318 U. S. 184. Congress chose not to require an ascertainment of what too often is an elusive state of mind. For purposes of the gift tax it not only dispensed with the test of “donative intent.” It formulated a much more workable external test, that where “property is transferred for less than an adequate and full consideration in money or money’s worth,” the excess in such money value “shall, for the purpose of the tax imposed by this title, be deemed a gift . . And Treasury Regulations have emphasized that common law considerations were not embodied in the gift tax.1 To reinforce the evident desire of Congress to hit all the protean arrangements which the wit of man can devise that are not business transactions within the meaning of ordinary speech, the Treasury Regulations make clear that no genuine business transaction comes within the purport of the gift tax by excluding “a sale, exchange, or other transfer of property made in the ordinary course of business (a transaction which is bona fide, at arm’s length, and free from any donative intent).” Treas. Reg. 79 (1936 ed.) Art. 8. Thus on finding that a transfer in the 1 Treas. Reg. 79 (1936 ed.) Art. 1: “Imposition of tax.— . . . The tax is not limited in its imposition to transfers of property without a valuable consideration, which at common law are treated as gifts, but extends to sales and exchanges for less than an adequate and full consideration in money or money’s worth.” COMMISSIONER v. WEMYSS. 307 303 Opinion of the Court. circumstances of a particular case is not made in the ordinary course of business, the transfer becomes subject to the gift tax to the extent that it is not made “for an adequate and full consideration in money or money’s worth.” See 2 Paul, Federal Estate and Gift Taxation (1942) p. 1113. The Tax Court in effect found the transfer of the stock to Mrs. More was not made at arm’s length in the ordinary course of business. It noted that the inducement was marriage, took account of the discrepancy between what she got and what she gave up, and also of the benefit that her marriage settlement brought to her son. These were considerations the Tax Court could justifiably heed, and heeding, decide as it did. Its conclusion on the issue before it was no less to be respected than were the issues which we deemed it was entitled to decide as it did in Dobson v. Commissioner, 320 U. S. 489, Commissioner v. Heininger, 320 U. S. 467, Commissioner v. Scottish American Co., 323 U. S. 119. If we are to isolate as an independently reviewable question of law the view of the Tax Court that money consideration must benefit the donor to relieve a transfer by him from being a gift, we think the Tax Court was correct. See Commissioner v. Bristol, 121 F. 2d 129. To be sure, the Revenue Act of 1932 does not spell out a requirement of benefit to the transferor to afford relief from the gift tax. Its forerunner, § 320 of the 1924 Act, 43 Stat. 253, 314, was more explicit in that it provided that the excess of the transfer over “the consideration received shall ... be deemed a gift.” It will hardly be suggested, however, that in re-imposing the gift tax in 1932 Congress meant to exclude transfers that would have been taxed under the 1924 Act. The section taxing as gifts transfers that are not made for “adequate and full [money] consideration” aims to reach those transfers which are withdrawn from the donor’s estate. To allow 308 OCTOBER TERM, 1944. Counsel for Parties. 324U.S. detriment to the donee to satisfy the requirement of “adequate and full consideration” would violate the purpose of the statute and open wide the door for evasion of the gift tax. See 2 Paul, supra, at 1114. Reversed. Mr. Justice Roberts dissents, and would affirm the judgment for the reasons given in the opinion of the Circuit Court of Appeals. MERRILL v. FAHS, COLLECTOR OF INTERNAL REVENUE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 126. Argued January 9, 1945.—Decided March 5, 1945. 1. By § 503 of the Revenue Act of 1932, transfers of property are relieved from the gift tax to the extent that they are made for an “adequate and full consideration.” Held, in the case of a transfer of property pursuant to an antenuptial agreement, that the relinquishment of marital rights can not to any extent constitute “adequate and full consideration.” P. 312. 2. Provisions of the federal gift and estate tax statutes are to be construed harmoniously; and, where obvious reasons do not compel divergent treatment, identical phrases concerning the same subject matter are to be given identical construction. P. 313. 142 F. 2d 651, affirmed. Certiorari, 323 U. S. 686, to review the reversal of a judgment of the District Court for the taxpayer, 51 F. Supp. 120, in a suit for a refund of gift taxes. Messrs. Sam R. Marks and Harry T. Gray, with whom Mr. Francis M. Holt was on the brief, for petitioner. Miss Helen R. Carloss, with whom Solicitor General Fahy, Assistant Attorney General Samuel 0. Clark, Jr., Messrs. Sewall Key and I. Henry Kutz were on the brief, for respondent. MERRILL v. FAHS. 309 308 Opinion of the Court. Mr. Justice Frankfurter delivered the opinion of the Court. This is a companion case to Commissioner v. Wemyss, ante, p. 303. On March 7, 1939, taxpayer, the petitioner, made an antenuptial agreement with Kinta Desmare. Taxpayer, a resident of Florida, had been twice married and had three children and two grandchildren. He was a man of large resources, with cash and securities worth more than $5,000,000, and Florida real estate valued at $135,000. Miss Desmare’s assets were negligible. By the arrangement entered into the day before their marriage, taxpayer agreed to set up within ninety days after marriage an irrevocable trust for $300,000, the provisions of which were to conform to Miss Desmare’s wishes. The taxpayer was also to provide in his will for two additional trusts, one, likewise in the amount of $300,000, to contain the same limitations as the inter vivos trust, and the other, also in the amount of $300,000, for the benefit of their surviving children. In return Miss Desmare released all rights that she might acquire as wife or widow in taxpayer’s property, both real and personal, excepting the right to maintenance and support. The inducements for this agreement were stated to be the contemplated marriage, desire to make fair requital for the release of marital rights, freedom for the taxpayer to make appropriate provisions for his children and other dependents, the uncertainty surrounding his financial future and marital tranquillity. That such an antenuptial agreement is enforceable in Florida is not disputed, North v. Ringling, 149 Fla. 739, 7 So. 2d 476, nor that Florida gives a wife an inchoate interest in all the husband’s property, contingent during his life but absolute upon death. Florida Statutes (1941) § 731.34; Smith v. Hines, 10 Fla. 258; Henderson v. Usher, 125 Fla. 709, 170 So. 846. The parties married, and the agreement was fully carried out. 637582°—46-24 310 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. On their gift tax return for 1939, both reported the creation of the trust but claimed that no tax was due. The Commissioner, however, determined a deficiency of $99,-000 in taxpayer’s return in relation to the transfer of the $300,000. Upon the Commissioner’s rejection of the taxpayer’s claim for refund of the assessment paid by him, the present suit against the Collector was filed. The District Court sustained the taxpayer, 51 F. Supp. 120, but was reversed by the Circuit Court of Appeals for the Fifth Circuit, one judge dissenting. 142 F. 2d 651. We granted certiorari in connection with Commissioner v. Wemyss, supra, and heard the two cases together. 323 U. S. 686. This case, unlike the Wemyss case, does not come here by way of the Tax Court. No aid can therefore be drawn from a prior determination by the tribunal specially entrusted with tax adjudications. (See Griswold, The Need for a Court of Tax Appeals (1944) 57 Harv. L. Rev. 1153, 1173.) But like the Wemyss case, this case turns on the proper application of § 503 of the Revenue Act of 1932,47 Stat. 169,247,26 U. S. C. § 1002. In the interest of clarity we reprint it here: “Where property is transferred for less than an adequate and full consideration in money or money’s worth, then the amount by which the value of the property exceeded the value of the consideration shall, for the purpose of the tax imposed by this title, be deemed a gift, and shall be included in computing the amount of gifts made during the calendar year.” Taxpayer claims that Miss Desmare’s relinquishment of her marital rights constituted “adequate and full consideration in money or money’s worth.” The Collector, relying on the construction of a like phrase in the estate tax, contends that release of marital rights does not furnish such “adequate and full consideration.” We put to one side the argument that in any event Miss Desmare’s contingent interest in her husband’s property had too many variables to be reducible to dollars and MERRILL v. FAHS. 311 308 Opinion of the Court. cents, and that any attempt to translate it into “money’s worth” was “mere speculation bearing the delusive appearance of accuracy.” Humes v. United States, 276 U. S. 487,494. We shall go at once to the main issue. The guiding light is what was said in Estate of Sanford v. Commissioner, 308 U. S. 39, 44: “The gift tax was supplementary to the estate tax. The two are in pari materia and must be construed together.” The phrase on the meaning of which decision must largely turn—that is, transfers for other than “an adequate and full consideration in money or money’s worth”—came into the gift tax by way of estate tax provisions. It first appeared in the Revenue Act of 1926. Section 303 (a) (1) of that Act, 44 Stat. 9, 72, allowed deductions from the value of the gross estate of claims against the estate to the extent that they were bona fide and incurred “for an adequate and full consideration in money or money’s worth.” It is important to note that the language of previous Acts which made the test “fair consideration” was thus changed after courts had given “fair consideration” an expansive construction. The first modern estate tax law had included in the gross estate transfers in contemplation of, or intended to take effect in possession or enjoyment at, death, except “a bona fide sale for a fair consideration in money or money’s worth.” § 202 (b), Revenue Act of 1916,39 Stat. 756, 777. Dower rights and other marital property rights were intended to be included in the gross estate, since they were considered merely an expectation, and in 1918 Congress specifically included them. § 402 (b), 40 Stat. 1057, 1097. This provision was for the purpose of clarifying the existing law. H. Rep. No. 767, 65th Cong., 2d Sess., p. 21. In 1924 Congress limited deductible claims against an estate to those supported by “a fair consideration in money or money’s worth,” § 303 (a) (1), 43 Stat. 253,305, employing the same standard applied to transfers in con- 312 OCTOBER TERM, 1944. Opinion of the Court. 324 U. S. templation of death, H. Rep. No. 179, 68th Cong., 1st Sess., pp. 28, 66. Similar language was used in the gift tax, first imposed by the 1924 Act, by providing, “Where property is sold or exchanged for less than a fair consideration in money or money’s worth” the excess shall be deemed a gift. § 320, 43 Stat. 253, 314. The two types of tax thus followed a similar course, like problems and purposes being expressed in like language. In this situation, courts held that “fair consideration” included relinquishment of dower rights. Ferguson n. Dickson, 300 F. 961; and see McCaughn v. Carver, 19 F. 2d 126; Stubblefield v. United States, 6 F. Supp. 440. Congress was thus led, as we have indicated, to substitute in the 1926 Revenue Act, the words “adequate and full consideration” in order to narrow the scope of tax exemptions. See Taft v. Commissioner, 304 U. S. 351, 356. When the gift tax was re-enacted in the 1932 Revenue Act, the restrictive phrase “adequate and full consideration” as found in the estate tax was taken over by the draftsman. To be sure, in the 1932 Act Congress specifically provided that relinquishment of marital rights for purposes of the estate tax shall not constitute “consideration in money or money’s worth.” The Committees of Congress reported that if the value of relinquished marital interests :